South African Police Service (Hawks) Amendment Bill: public hearings Day 1
Police
24 April 2012
Chairperson: Ms L Chikunga (ANC)
Meeting Summary
Parliamentary researchers briefed the Committee on the background to the South African Police Service Amendment Bill of 2012. Previous legislation regarding the disbandment of the Directorate of Specialised Operations (known as the Scorpions) and the creation of the Directorate for Priority Crime Investigations (known as the Hawks) within the South African Police Service. This had been challenged by Mr Hugh Glenister at the Constitutional Court, and the Court had found that the Amendment to the South African Police Act of 1995 was not consistent with the Constitution. Major questions were the constitutional requirement for an anti-corruption body and whether the Hawks were sufficiently independent. Parliament had been give until September 2012 to bring the Amendment Bill into line with the Constitution.
The researchers briefed the Committee on the contents of the Amendment Bill. Many submissions had been received, only one of which expressed the opinion that the Amendment bill was consistent with the judgement in the Glenister case. Members asked whether the unit should be located within the Police. International models did not show a conclusive pattern one way or another.
Professor Pierre de Vos, a constitutional and legal expert, said that the Amendment Bill was not consistent with the Glenister judgement. There was not sufficient provision for the independence of an anti-corruption body. A distinction was necessary between control and oversight. The reasonable man must be satisfied that the body would be independent from political interference. The terms of the Amendment Bill would not address the problems of the lack of security of tenure. There were no criteria for the appointment of the Head of the Directorate, while the criteria for dismissal were vague and subjective. It might be better if Parliament was responsible for appointments. A fixed term might be better. There was no protection for ordinary members of the Directorate. The other problem areas were remuneration and policy guidelines. There was still a chance for interference from the Ministerial Committee even though their role had been minimised. There were no proactive measures to counter potential interference. It should be a criminal offence to interfere with the operations of the Directorate.
Members asked if it was necessary for security clearances. It was agreed that a minimum form of integrity checking was needed for members of the Directorate. If the members were still under the South African Police Service, it was already a criminal offence to intervene in investigations. There was, however, still a potential for internal interference. Members were told that it did sometimes happen that the minority judgement was referred to as the main judgement. However, the majority judgement was the one that would be legally recognised in future.
The Institute for Strategic Studies reported that corruption was occurring on a massive scale. This was harming the country apart from the direct implications for its citizens. Their concerns with the Amendment Bill were in the procedure to appoint the Head, Deputy Head and Provincial Heads, and the way in which they could be dismissed on subjective grounds. There was also a concern that an outgoing incumbent might be influenced in his or her decision making by the likelihood of returning to the general ranks of the Police on completing a term in the Directorate. The possibility of a security clearance being withdrawn might have an impact on investigations. While the role of the Ministerial Committee had been narrowed there was still a possibility of them influencing the Directorate. The choice of cases should be left to the Directorate. The Institute felt that the Directorate should not fall under the South African Police Service. Public perception was an important test on the perceived independence of the unit.
Members noted that the National Commissioner of Police and the Head of the National Prosecution Authority were done by the President and were thus political appointments. There was an appeals process for revoked security clearances. It was important that members of the unit be beyond reproach. The role of Parliament in oversight should be increased. There was a question of how insubordination would be handled, and whether leaving the National Commissioner in control of the budget for the Directorate would compromise independence. The Institute had taken a narrow view of the judgement, especially the discussion regarding independence. There was a link between organised crime and corruption, which made it desirable for the unit to operate from within the Police. It was stressed to the Institute that the Court had not declared that the unit must not be outside the Police in order to be independent.
The Institute for Accountability in Southern Africa was warned Members of the consequences of corruption for all its citizens, including themselves. They disagreed that the Amendment Bill would satisfy the essential requirement for an independent, specialised anti-corruption body. They addressed the issues of specialisation, training, independence, resources and security of tenure, all of which would compromise the independence of the Directorate in its current form and location. The Bill was a minimalist approach to the scourge of corruption. They appealed to Members to follow their consciences and scrap the Bill altogether. Instead, they argued that a new Chapter 9 institution was needed which could be called the Eagles. They argued that it was madness to house the unit within the Police given the public perception of corruption and incompetence at the highest levels.
Members were reminded about changes that had been made to Cabinet, and were urged to think about the reasons behind these changes. The Amendment Bill was not in line with the judgement and would not be constitutional. Members were warned that litigation was already being prepared to challenge the Amendment Bill should it be passed in its current form. Mr Glenister was present, and said that action was needed against corruption in both the private and public sectors. The rule of law must apply.
Members said that Parliament had the right to oversee public funds. There was a link between organised crime and corruption, which made it practical for an anti-corruption unit to work in concert with other aspects of policing. Members felt that the submission had not addressed the Bill. The response of the institution was that Members should act as midwives to new legislation rather than panel-beaters attempting to repair what the Institution considered flawed amendments.
Meeting report
Parliament Research Unit briefing on South African Police Service Amendment Bill
Ms Nicolette van Zyl-Gous, Parliamentary Researcher, said that the Directorate for Specialised Operations (DSO), commonly known as the Scorpions, had been disbanded in 2009. Their mandate to fight corruption was taken over by the Directorate for Priority Crime Investigation (DPCI), commonly known as the Hawks. Mr Hugh Glenister challenged the amendment to the South African Police Service (SAPS) Act which had made this possible. The
Ms van Zyl-Gous said that the SAPS Amendment Bill [B7-2012] had been drafted by the Civilian Secretariat of Police. It was presented to the Committee on 7 March 2012. Public submissions had been invited and the current series of public hearings had been scheduled.
Ms van Zyl-Gous said that the Concourt ruling posed two major questions. The first was whether the Constitution required the State to establish and maintain an independent body to combat corruption and organised crime. The Concourt found that the State did indeed have this obligation. The second question was whether the DPCI met the standards of independence expected of such a body. The Concourt found that there were not adequate safeguards to ensure independence. The Concourt focused on three main aspects of the Amendment of 2008. The first of these was the operational and structural independence of the DPCI. The second was the security of tenure and remuneration. The third question was the accountability question and oversight by the Ministerial Committee. The Concourt found that this committee would undermine the independence of the DPCI.
Ms van Zyl-Gous outlined some major areas addressed in the new Bill. The question of independence would be remedied by granting Parliament greater oversight. Measures to achieve this included scrutiny of Annual Reports, Budget Allocations, Annual Performance Plans and Strategic Plans of the Department of Police. The Minister would have to report to Parliament within fourteen days of appointing the head of the DPCI. The Ministers would have to submit remuneration scales to Parliament for approval, and any further changes must be done in concurrence with Parliament. Policy guidelines for the DPCI, as drafted by the Minister, must be approved by Parliament. Parliament must concur with the guidelines for the selection of national priority offences as drafted by the Minister.
Ms van Zyl-Gous added that the second focus area of the Amendment Bill (A/B) was to address security of tenure. Provision had been made for a non-renewable fixed term appointment not exceeding seven years for the Head, Deputy Head and Provincial Heads. Provision was also made for remuneration, allowances and other conditions of service. The third area was the concern over potential political interference. Almost all references to the Ministerial Committee had been removed.
Ms van Zyl-Gous then summarised the contents of the A/B. These clauses explained the purpose of the A/B. The White Paper on Police would be adopted within the following year. It would align the SAPS Act to the Constitution:
Clause 3 dealt with the Authority of the Head of the DPCI. The Head had been given more responsibility regarding secondment of personnel and resources. The authority of the National Commissioner (NC) of Police would be aligned to Section 207 of the Constitution. A dispute resolution process was included.
Clause 4, which would amend Section 17B of the Act, was related to the location of the unit. It would now be wholly located within the SAPS. It was not uncommon to have anti-corruption agencies functioning within law enforcement agencies. The DPCI would become Programme 6 of SAPS.
Ms van Zyl-Gous showed how Clause would amend Section 17C of the Act. The Head of the DPCI would be a Deputy NC within the SAPS. He or she would be appointed by the Minister in concurrence with the Cabinet. There was a concern over a lack of criteria for the appointment. The Minister would have to report to Parliament on the appointment of the Head. The Head would appoint the Deputy National Head and Provincial Heads. Specialised training would be needed for members of the DCPI.
Clause 6 would insert a new Section 17CA. It would regulate the appointment of the Head, Deputy Head and Provincial Heads, remuneration and conditions of service. There would be a non-renewable seven-year term. It was recommended that there also be reference to a minimum term but this was not incorporated in the A/B at present. It was not clear if Parliament would have any recourse if it felt that appointments were inappropriate. The appointment should be made by Cabinet in the same manner as a Chapter 9 institute.
Clause 7 referred to the mandate of the DCPI. It would amend Section 17D. The Minister should be held accountable to Parliament whereas the Ministerial Committee was not. Policy guidelines would now be drafted only by the Minister and would have to be approved by Parliament. It was recommended that the offences to be investigated should be stipulated.
Clause 8 dealt with a loss of confidence in the Head of the DCPI. It would insert new Sections 17DA and 17DB. The Head could be removed from office, but this was dependent on an enquiry. It was not clear who would conduct the enquiry. This had to be clarified. The wording "gloss of confidence" could be subjective. The role of Parliament had to be clarified. Incorrect terminology had been used in Section 17DA(3).
Clause 9 addressed the security clearance for members of the DCPI. It would amend Section 17E. It was internationally acceptable for members to be subject to security clearances. There was no recourse should a security clearance be denied or revoked. There was no legal obligation for the reasons for a denial to be declared. The Oath of Affirmation was not a legally binding document.
Clause 10 addressed the appointment of personnel. It would amend Section 17F. It was international practice to make it possible to appoint outside experts.
Clause 11 addressed finances. It would amend Section 17H. Money allocated to the DPCI could only be used for its own purposes. Consultation on the budget allocation would be decided by the NC after compensation had been considered. The NC would remain the accounting officer in terms of the Public Finances Management Act (PFMA).
Clause 12 virtually removed all powers previously given to the Ministerial Committee. It would amend Section 17I. The Minister took final responsibility for the Hawks. It was recommended that the reference to the Ministerial Committee should be entirely removed. Performance and implementation reports should be clarified.
Clause 13 addressed the Operational Committee. It would amend Section 17J. It was unclear what the function of this Committee was. It seemed as if its sole role would be to ensure inter-sectoral operational coordination and cooperation. More motivation for this might be needed.
Ms van Zyl-Gous noted that Clause 14 addressed policy guidelines. It would amend Section 17K. It specified that the DPCI would be a separate programme within SAPS. The requirement for the DPCI to report to Parliament should be removed. Policy guidelines would be drafted in concurrence with Parliament, where the previous wording was with Parliamentary approval.
Clause 15 made provision for the appointment of a retired judge. It would amend Section 17L. This would provide a safeguard against undue political interference. It was arguable that this safeguard would not prevent political interference. The judge would be able to conduct an enquiry into alleged interference. A more proactive measure than responding to a complaint after the fact might be needed.
Clause 16 dealt with Command and Control, and would amend Section 17M. Members of DPCI would remain SAPS members. This might lead to structural confinements. Section 47(1) of SAPS Act stated that an SAPS member must not obey a patently unlawful order. If such an order was issued a member might request that it be given to him or her in writing, and could approach the retired judge to intervene.
Clause 17 regulated transitional arrangements. Provision for all current investigations or prosecutions would not be affected by any amendment. Current heads would remain in office until the Act came into force. She noted that current members of DPCI would be uncertain of the future.
Ms van Zyl-Gous gave a summary of the written submission. The Committee had received 21 written submissions. Ten had been selected for oral submissions. One had been received after the deadline and would still be considered. She gave a list of submissions that would be presented orally.
Ms van Zyl-Gous said that Professor Pierre de Vos would argue that the Bill was inconsistent with the Glenister Judgement. The
Discussion
Mr V Ndlovu (IFP) thanked the researchers for their work, which made the task of Members easier. There was a lot of reference to independence and accountability. He asked for clarity. He asked if independence meant excluding the Minister, Parliament and the Ministerial Committee.
Ms van Zyl-Gous said that this had been taken from the previous Bill. Members of political executives might exert undue influence, which might undermine independence. The body should still be accountable in terms of quality guidelines. The Ministerial Committee was still in the Bill but only in playing a co-ordinating role.
Ms Nadia Dollie, Senior Parliamentary Researcher, said that the Ministerial Committee did have a role in the accountability process. The more Parliamentary control the better, in the general opinion. It would be preferable to hold a single Minister accountable.
Mr L Ramatlakane (COPE) noted that only ten of the submissions were considered substantial enough for oral submissions. There seemed to be a trend that organisations were arguing that the Bill was inconsistent with the judgement. He asked if the remaining submissions followed the same theme. He argued if the independence of the DPCI was being argued in terms of Chapter 9 legislation. He asked if the gist of the arguments was trying to restore the situation that had been the case under the Scorpions. He asked if the budget allocation would be independent.
Ms van Zyl-Gous replied that one of the submissions had said that the Bill was compliant with the judgement. Many spoke towards a Chapter 9 institution or certain elements thereof. The Independent Electoral Commission was an example. Their modus operandi was unique. Reference was made to the NC, but less than in the previous Bill. The NC had more responsibility over the DPCI. It was argued that having the NC responsible would limit independence. It was possible for the NC to ignore budget recommendations for the DPCI as a way of influencing their work.
Ms A van Wyk (ANC) said some submissions referred to international models. She asked if the researchers had looked at these models, specifically that of
Ms van Zyl-Gous said that most submissions were not opposed to the Bill itself, but focussed on major issues raised by the Bill.
Ms D Kohler-Barnard (DA) noted that a retired judge would be made available for consultation. She asked if SAPS members would approach this judge, as it was often seen as a career limiting move for members to “tell tales” about their comrades. She questioned the merit of this suggestion. The researchers might not be able to answer some questions.
The Chairperson said that such questions should rather be held over until the presenters were present. The suggestion of the retired judge had met with much criticism. It was a reactive provision.
Mr G Lekgetho (ANC) wanted to check if members would be adequately trained to take the suggested decision to disobey an unlawful order.
Ms van Zyl-Gous said it was difficult to disobey the orders of a superior officer. The provision should be made although it might not be easy to execute in practice.
Ms van Wyk asked for an indication of what need has been expressed for a retired judge in the current legislation.
Ms Kohler-Barnard said that the conviction of former NC Jackie Selebi would never have happened if he had enjoyed absolute control over the Scorpions.
Ms van Zyl-Gous replied that the researchers had not identified institutions where there was a similar governance model. There were international models, and
Ms Kohler-Barnard asked what could be done to make provision for members to disobey wrongful orders and report misconduct by a superior. The rank structure was a serious concern, and members were taught from the start to obey their superiors.
Ms van Zyl-Gous said that the South African model did conform to the most dominant models in
Mr Ramatlakane asked if the researchers had looked at the judgement itself regarding the role of the NC and the Head of the DPCI. He asked if the DPCI would be independent enough to do its work.
Ms Dollie recollected studying the judgement. She was sure that all the presenters had done so as well. The judges had not said that the DPCI could not be within the SAPS. Instead, the judgement had focussed on specific areas. There was some limitation on the scope of accountability of the NC, and increased scope for independent operations by the Head of the DPCI. Budget was an area that needed to be studied.
The Chairperson thanked the researchers. She encouraged Members to read the judgement. The basis for appeal was that in effecting the "Hawks" Amendment Act, a number of obligations in terms of the Constitution had been neglected. In granting leave to appeal, the Concourt had asked if the provisions were contrary to the Constitution. The question was whether Parliament was indeed creating an independent anti-corruption unit. The judgement spent a lot of time on defining independence. Anti-corruption guardians should be shielded from political influence. It should have structural autonomy. An adequate level of structural autonomy was required.
Submission by Prof Pierre de Vos
Prof Pierre de Vos, Department of Public Law,
Prof de Vos said that the judgement set out general criteria for any anti-corruption body. It then looked at the legislation which had created the Hawks, and found it wanting in certain areas. The majority decision was that the State should establish an efficient mechanism to eradicate corruption. At the heart of the matter was that the body should be free of political interference and influence. There was a distinction between control and oversight. The court also emphasised the need to depoliticise the body. There would always be suspicion otherwise. It was not the same extreme form of independence required of the judiciary. Interference in operational decisions should not be possible. Structural independence related to the appointment of members and funding. Factors involved were security of tenure, compensation and freedom from political influence. Where a body was placed within an existing Police structure, care must be taken to ensure independence from higher authority.
Prof de Vos said that possibility must be avoided for an abuse of the chain of command. The return to military style ranks made this chain clear in the SAPS. Hierarchical rules and appointment procedures applied. The Court admitted that a range of measures could be taken. These measures had to be reasonable. The Court had said that independence was not just about what was written in a document. A reasonable person was informed about current events, not overly suspicious and could make logical decisions. Such a reasonable person should be satisfied that the anti-corruption body was indeed free of political influence.
Prof de Vos said the Concourt had said that the thrust of the reasoning for finding that the Hawks were not independent was that they were not sufficiently insulated from potential political interference. There was no security of tenure for the Head or the members. The Head was appointed by the Minister while other members were appointed on a different basis. Persons were appointed by the NC. The Minister was required to report to Parliament on appointments. The NC could dismiss members on subjective criteria provided such dismissals were reasonable. This impacted on security of tenure. The majority judgement did not make a finding, but did feel that Section 179 could be used as a guideline for making appointments. It was not a definitive ruling. The Minister should not be able to intervene with prosecutions. It would be a criminal offence to intervene. Satisfactory remuneration levels were required. There was no current provision for this.
Prof de Vos said that the Constitution required that a Member of Cabinet be responsible for policing. This must be squared with the notion that an anti-corruption unit should be independent. The court found that the controls over the Hawks were not compatible with the degree of independence required. Accountability meant that the body could make independent decisions on which cases it wanted to prosecute, but must report on its activities to political superiors.
Prof de Vos said that the court had found the issuing of policy guidelines a problem. The Ministerial Committee could set guidelines as to which cases should or should not be investigated. The court found this to be incorrect. A Member of Cabinet could also issue guidelines, which was also found to be incorrect. Policy guidelines could be above board, but could also be abused. One must not legislate on what one feared might happen if not checked.
Prof de Vos said that the same concerns were raised over the provision that the NC of SAPS could instruct on the selection of cases. The Hawks were accountable to the NC. Due to lack of tenure, political pressure could be exerted. The Concourt said the legislation did not require guidelines to be broad and harmless. It had to be clear what kinds of policy guidelines could be issued.
Prof de Vos said the draft legislation did address these issues to some degree. He had set out the possible problems. The first one he wanted to highlight was the problem of security of tenure. It was clear from the Concourt case that the appointment of the Head was a problem. This person was appointed by the Minister, but there were no criteria to inform the process. A better model would be to have a different appointments mechanism. The method used to appoint the Head of the IEC might be more appropriate.
Prof de Vos said that security of tenure was compromised. The Head could be appointed for a seven-year term. This should be fixed. The firing of the Head of the Hawks was problematic. An improvement would be the introduction of criteria. One of these was not objective. This was the suggested criterion of the Head being unable to perform his or her duties efficiently. This was a subjective measure. An enquiry was needed to perform this act, but again there were no subjective criteria for the procedure surrounding such an enquiry. There was a provision to suspend the Head without pay, and this could be used to intimidate the incumbent. Parliament could also suspend the Head after an enquiry, but this was also not objectively defined.
Prof de Vos said that the reference to a loss of confidence in the Head was extremely subjective. There was also a problem regarding ordinary members. Section 17M specified that members of the DPCI remained SAPS members, and were thus subject to SAPS disciplinary provisions. They could be dismissed or transferred without any objective explanation. This might exert pressure on members.
Prof de Vos said the legislation went some way to remove the powers of the Ministerial Committee. However, there was still a back-door route for the Ministerial Committee. Section 17(J)(2)(b) gave powers to the Ministerial Committee to instruct the Operational Committee. This was an indirect way for the Ministerial Committee to influence the unit. The Concourt had said that the heart of the matter was the complete independence such a unit should enjoy in their decision-making.
Prof de Vos then raised the question of the protection of members of the Hawks. The retired judge would have the power to investigate and to hear complaints by members. The Concourt fell this was not proactive enough. Complaints to the judge could only be made after the fact. The draft did not address the question of a proactive mechanism to protect the unit from interference. All over the world the practice of exerting political interference had been seen.
Prof de Vos had made a number of other suggestions, but would leave Members to read the document and consider the suggestions in their deliberations. One additional provision what could help to create the impression of independence would be including a provision used in DPP legislation. This stated that it was a criminal offence to interfere with a DPP investigation, and could also be incorporated into the Amendment in order to protect the Hawks.
Discussion
Ms M Molebatsi (ANC) asked if enough was being done to secure tenure, and what suggestions he could make. She asked if either House of Parliament could remove the Head without enquiry.
Ms van Wyk asked how tenure could be secured. It would eventually come down to the NC. Prof de Vos was suggesting some other mechanism. It was not currently a Chapter 9 body. An amendment to the Constitution would be needed. Currently, investigators in the National Prosecuting Authority (NPA) had to go through the same security clearance procedure. It was not about state security, but rather ensuring that the person appointed would not be a risk in his or her position. Appointees should not be at risk of any form of corruption, intimidation or blackmail. It was not that bad a thing that interference should be criminalised. It was already a criminal offence to interfere with normal SAPS investigations. The Hawks needed to retain the normal powers invested in a police officer to do their jobs.
Ms van Wyk asked why the Glenister judgement referred to the minority judgement as the main judgement. The powers of the Ministerial Committee had been watered down, and might be further diluted. There had been no objection to the Scorpions being under the authority of this body.
Mr Ramatlakane said that the drafters of the Amendment Bill had a difficult job in complying with the Concourt judgement. He asked if the accountability mechanism had been set up correctly. He asked if there should be a direct line of accountability to the Minister. He asked if the Chapter 9 option was the best one. He asked if the Ministerial Committee had been given the proper mandate.
Ms Kohler-Barnard noted that there was no Constitutional imperative to have a fully independent unit. If it did not fall under the SAPS, she asked where it would be accommodated.
Ms van Wyk quoted from the judgement. The judgement was happy that Parliament had not had to find a political home for the Hawks.
The Chairperson said that the majority judgement referred to the legal system requiring a form of executive involvement. The judgement referred to the appointment of the Head of the NPA being appointed by the President. The NC of the SAPS was also appointed by the President.
Prof de Vos replied that a system of precedent was followed when there were majority and minority judgements. Any future cases would be bound by the majority judgement unless it was found to be preposterously wrong. It had happened before that the minority judgement was given as the main judgement. He did not know why this happened. It might be that members of the Concourt changed their minds, turning majority into minority, but this made no difference legally. The majority judgement was the legally relevant one.
Prof de Vos said that the Head of the Hawks could be appointed for a period of up to seven years. He would prefer a longer term, perhaps up to ten years. One did not want to see a permanent appointment. The distinction between the head of the NPA was that he was appointed for a fixed ten-year term, whereas the NC of SAPS was appointed for a shorter term, which could be renewed. There was a fear that an appointee's actions could be influenced by his or her desire to canvas for a subsequent term. The provision regarding a Head reaching the age of sixty and having his or her term extended could create a loophole.
Prof de Vos said that the Head could be removed as a result of an enquiry. Some provisions regarding dismissal were too broad. It might be better to have more requirements for the enquiry listed. If it were a quasi-legal investigation by a judge, for example, it would become a matter of fact rather than opinion. This would go a long way to protect security of tenure. The ordinary members had no protection. The same level was not needed as for the Head. Members should be appointed by the Head and they should only be removed on the recommendation of the Head. At present this power lay with the NC. The appointments procedure had to be trustworthy and criteria were needed. He would suggest Parliament appoint the Head with a super majority of 60%. Corruption became a political issue. He stressed this was a personal opinion. The clause relating to removal by Parliament should be cleared up, and should only follow an enquiry. Criteria for appointment had to be clear. He would suggest that the candidate should not be a current leader in any political party.
Prof de Vos said it was important that there should be some integrity check on members investigating corruption. There had been difficulties with Crime Intelligence. It was difficult to call it a security clearance. A term such as 'integrity check' might be better.
Ms van Wyk asked if the Professor meant that some other agency should to the checking. There were other mechanisms available. Without a proper security clearance, there might be an argument that investigations were not being done thoroughly.
Prof de Vos said it was important that such a unit should have members with a minimum integrity check. Others might need a higher clearance depending on the issues to be handled. As a SAPS unit, there was a legal bar on interference by members outside the SAPS in an investigation. However, there was a chance that the continuation of an investigation could be influenced by internal influences.
Prof de Vos said that the judgement in this case disagreed with elements of the Potsane case. This had involved a dispute resulting from a prosecution by South African National Defence Force authorities. A single authority was needed, but the Court found that the military could have their own prosecuting arm. Accountability had to be given to the Minister and Parliament. Information should be given to the Minister. Accountability to Parliament should be on the effectiveness of its investigations. The difficulty of locating the unit inside the SAPS was that there would still be some accountability to Parliament as well.
Prof de Vos did not favour changing the Constitution. He did not think it was necessary to create another Chapter 9 institution. It would be like borrowing from existing structures. It would be easier to create a different body but protection would still be needed. With the Scorpions, the Ministerial Committee to which they reported had never met. That legislation had never been challenged at the Concourt. It was more about perception and the fear of political interference rather than the reality of the situation. The Ministerial Committee would always be problematic with a potential for political intervention. The Portfolio Committee on Police might be the most appropriate oversight body.
The Chairperson said that the law stipulated that the Ministerial Committee should meet at least four times annually, but this seldom happened. She thanked Prof de Vos for his input and it was pleasing to know that he was always prepared to share his knowledge with Members.
Submission by Institute for Security Studies
Mr Gareth Newham, Head of Crime and Justice Programme, ISS, said that the Glenister judgement gave the country an opportunity to study how corruption was combated. Allegations should be investigated while false accusers should be taken to task. There was a conservative estimate that R30 billion was being wasted on corrupt activities, while the image of the country was being harmed. On an index reflecting international perception of corruption,
Mr Newham said that there were good and bad aspects to the SAPS Amendment Bill. He had prepared a detailed submission, but would raise four key issues. The first issue was the appointment of the Head of the DPCI. A key element of the judgement was structural independence. If any senior members of staff felt themselves under pressure investigations could be compromised. The legislation said that the Minister could appoint the Head, but there were no criteria listed regarding that person's qualifications. This made it difficult for the public to support the Head. ISS felt that a transparent, public process was needed. The Portfolio Committee might be the best body to discuss the candidates and draw up a short-list for the Minister to make the final appointment. Any skeletons could be let out of the proverbial cupboard in the process. Secondly, there would be public interest, which would build trust and confidence.
Mr Newham said that the appointments of Deputy and Provincial Heads could be vetoed by the Minister. There was a possibility of a perception of political influence. Security of tenure was a related matter. The Concourt had spoken on this issue. Members of the DPCI could be dismissed for subjective reasons. There was no clear guidance on how an enquiry to remove the Head would proceed.
Mr Newham was also concerned over the uncertainty of the term of the Head's appointment. The only reference in the legislation was to a term not exceeding seven years. The most likely career path after completing a term in the Hawks was to return to the SAPS, and pressure might be brought to bear in this regard.
Mr Newham said that intelligence structures would consider the security clearance of members. This issue was related to the security of tenure issue as security clearances could be withdrawn to rule a member unfit for further service in the DPCI.
Mr Newham said that powers had previously been vested in the Ministerial Committee, but would now fall directly under the Minister of Police. It was not clear that this would lead to better independence. Co-ordination with other government Departments was necessary, but more clarity was needed on how this would be done in practice. It was not clear why a Ministerial Committee would have to do this. The Bill was not clear on the oversight function to be exercised. Various bodies such as Parliament and the Auditor-General (AG) might be more appropriate. In other countries there was much better insulation from political authority.
Mr Newham said that more consultation would be needed on the mandate for internal investigation. It should be clear who was investigating what, and the choice of cases should be left to DPCI.
Mr Newham did not think that DPCI should fall under the SAPS. There could only be one accounting officer, therefore the DPCI would remain under the authority of the NC of the SAPS. This left the door wide open for political interference.
Mr Newham
said that the people of the country must believe that the Hawks were independent. It was all about perception rather than facts. The DPCI should be independent and report to Parliament.
Discussion
The Chairperson said that Members had already referred to the criteria for the appointment of the Head. She asked what ISS thought the length of a term of office should be. She asked what criteria should be used for the appointment of the Head and perhaps also for Provincial Heads. He had said that the NC of SAPS was appointed by the President and was thus seen as a political appointment, but this was also the case with the head of the NPA.
Ms Molebatsi asked for the views of the ISS for appointment criteria. She asked where the DPCI should be allocated.
Mr Ndlovu supposed the DPCI might fall under the SAPS, in which case the NC would have the financial muscle. Budget control might be used to control investigations.
Ms van Wyk said that there was an appeal process for security clearances. The integrity measures currently in the act should address the matter well. Further integrity tests could be done on receipt of reports. It was not clear if they should be done by SAPS Crime Intelligence, or by the National Intelligence Agency. Officers of this unit should be beyond reproach. ISS was saying that they were not happy with the decision of what was investigated, coupled to financial constraints. Perhaps the Head of Hawks should make the submission to National Treasury (NT). These funds could then be ring-fenced. The AG was limited in capacity and was only operating at 25% of what it could be. Parliament itself needed to approve a budget. The role of Parliament should perhaps be strengthened as well. She asked if such measures would address the concerns of ISS.
Ms van Wyk said that Prof de Vos had raised the issue of training of Hawks members. She asked if ISS shared this concern. With the SAPS generally, Provincial Commissioners were appointed in consultation with provincial Members of the Executive Committee (MECs).
Ms D Lishiva (ANC) said that the preliminary suspension of a Head by the Minister would equate to being punished before the verdict was known. She asked if ISS felt that members under suspicion should be suspended.
Mr Ramatlakane asked how the key issue of insubordination would be addressed. The Head of the Hawks would still be subordinate to the NC. His second question was on how to deal with the authority given to the NC in terms of budget. ISS had included in its submission a narrow interpretation of the judgement. When reading the submission, he could not clearly understand what was being said about independence. It would be helpful if members could get some understanding.
Mr Newham said that it was difficult to get their heads around the challenges. Many challenges had emerged because of trying to keep everything within the SAPS. A process was needed to reveal things which might become public later. The President had to appoint someone, but it was important that the right person was chosen. The length of term was difficult to determine. On selection criteria, more work was needed. The function of a person had to be defined. The criteria should not so onerous so as to dismiss all applications, but some criteria were needed. Controversy should be avoided.
Mr Newham said that the DPCI could be in other places, such as the Public Protector. The DPP might be the best place. The Constitution should determine this. The NC should have a lot of insight. A research report had been completed on ideal locations for the unit. The Honk Kong model was totally independent. SAPS did not fall under a Ministerial Committee. There could be an independent board. The Ministerial Committee would certainly be political. The Portfolio Committee operated in public, unlike the Ministerial Committee.
Mr Newham said a high level of integrity was needed, hence the requirements for some form of test. However, if a clearance was revoked it could interfere with an investigation. He was not sure how training could be legislated. It was very much an operational issue. Ideally, the leadership should set training priorities. Any training would probably be at a high and specialised level. He liked the approach being taken by the National Planning Commission (NPC) was a good one.
Mr Newham said that there was a concern with persons on suspension with paid while being absent from work for some time. It was a harsh punishment to withhold or reduce a person's salary while investigations were under way. Accusations might prove to be false. Threats of this nature could compromise independence. Members might have to deal with pressure imposed in this way. The NC would still have to deal with this. It would be a very specialised unit, dealing with people with many resources. The organisation culture would be different to SAPS. ISS had a sense that the legislation had looked at the judgement carefully and addressed the issues. Open consultation periods might have helped.
Ms Chandre Gould, ISS, added that it was important to emphasise that many questions were about how to keep the unit within the SAPS and circumvent the problems. Many problems could be looked at by precedent. There were structures such as the Independent Police Investigative Directorate (IPID), which stood outside the SAPS. The Ministerial Committee had such a small role that it should be scrapped. The independence of the unit was important to public perception.
Ms van Wyk talked about the
Mr Ramatlakane asked what the features of a truly independent body would be. He asked if it was in the programme, the budget, the personnel, or in accountability. He asked what the litmus test was in responding to expectations.
Mr Ndlovu said that Section 207 of the Constitution talked about Command and Control. The SAPS was now of a semi-military nature.
Ms van Wyk said there was a general agreement internationally that there was a relationship between organised crime and corruption. This was an argument in favour of keeping DPCI within SAPS. Agencies should not get in each other's way. There were international precedents. She listed several factors which would influence a successful anti-corruption service.
Mr Newham said ticking boxes might just leave ticked boxes. Many of the factors mentioned would need extensive changes to the legislation if they were to be addressed. Organised crime was facilitated through corruption, but not all corruption was linked to organised crime. ISS did not see the need for ongoing direct supervision.
Ms Gould said resources could be diverted into easy activities. In relation to the criteria, a group of civil society organisations had come together to discuss expectations. The way in which the Head was appointed was important, as well as the profile of this person. If the appointment was transparent, which process should be dealt with by a Parliamentary sub-committee, the candidate should be identified and appointed by either the Minister or the President. Removal from office was equally important. Objective criteria were needed, but a removal process was needed. Parliament should oversee this.
Ms Gould said the budget should be a separate vote and should go directly through Parliament. Oversight and accountability needed a lot of work. Fundamentally the independence would be undermined if the NC remained the accounting officer. The body must be accountable without interference in its work.
Ms van Wyk said that even more anti-corruption bodies were being set up. She asked why there could not also be one within SAPS.
Ms Gould said that the SAPS could have a unit, but the Concourt had ruled that there must be an independent body. This was needed to investigate persons holding high positions in government, and where there was systemic corruption.
The Chairperson asked if this meant political accountability should be set aside.
Ms Gould said Parliament would continue to have an important oversight role.
Ms van Wyk said the presence of the body within SAPS was not in contradiction to the requirements of the rest of the world. SAPS should have a capability. NGOs had met to discuss the matter. There were thousands of them and she would like to know who had been there.
Mr J Jeffrey (ANC), Member of the Portfolio Committee on Justice and Constitutional Development, asked where in the Glenister judgement it had been stated that there must be an independent unit outside the SAPS.
Mr Newham said that the Concourt had not said that the body must be outside the SAPS, but that it should not report to the NC. While it was still an SAPS unit there would be difficulty in dismissing the perception that it was part of the Police.
Mr Jeffrey said that there was a precedent with the NPA falling under the Justice vote. There was a specific provision in the Constitution.
Mr Newham was not saying that this was not constitutionally acceptable for Hawks to be under SAPS, but that this was their suggestion.
Mr Jeffrey said that ISS could not argue that it was unconstitutional for the Hawks to be under SAPS management.
Ms Gould said that it was a small group of NGOs that had met on this issue, led by ISS.
The Chairperson said that important issues had been raised and that Members would consider their inputs during their deliberations.
Submission by IFAISA
Mr Paul Hoffman, Director, IFAISA, welcomed the opportunity to make a submission on this important Bill. He quipped that if Mr Glenister not taken up the cudgels on the inadequacy of the Hawks then all those present might have been enjoying a glorious
Mr Hoffman said that the questions needed to be asked on every facet. Members of Parliament had duties to the public. He proposed to speak to the Committee on the values that must be considered during the evaluation of the Bill. A thorough assessment of values would be a powerful weapon in the fight against corruption. If the fight failed, then there would be new levels of misery not just for the poor, but also for every Member of Parliament. Corruption would destroy their pensions and all other investments.
Mr Hoffman said that invalid actions could be reversed. There were five values to be considered in creating a best practice solution to combat corruption. The acronym was STIRS. The word 'ifaisa' in isiXhosa meant confront. Corruption was the worm that would eat every citizen. The five values, as approved by the Concourt, were specialisation. The Hawks did a lot of good work. However, their mandate related to priority crimes of which corruption was only one. The activities of the Hawks ranged from poaching to drugs. Without specialisation Parliament would not have put its foot down to fight corruption. Corruption had to be a specific focus. The prosecution of corruption should be left with the NPA, but everything else surrounding the fight against corruption should fall under a single body.
Mr Hoffman said that the second value was training. When the Scorpions had been formed their members had been sent to international bodies such as Scotland Yard and the Federal Bureau for Investigation. Many of the members held more than one degree. Some had even been sent to a special military school to learn self-defence techniques as their lives were under constant threat. The people in this body needed to have a level of training and insight to ask the question "Why". They needed the clout and seniority to ask the important questions. The Hawks did not have this level of training. In fact, a minimalist approach was being taken into the judgement of the Concourt. The people of
Mr Hoffman said that the third value was independence. This was the ability to act without fear, favour or prejudice. When the independence of the body to replace the Hawks was considered, it must operate without fear of the powerful, both in the criminal and political world.
Mr Hoffman said that the fourth value was resources. A guaranteed budget was needed. Starvation of resources was the best way to shut a body down, from staff to staples. The Special Investigative Unit (SIU) was between a rock and a hard place. He asked if it was because of problems around payments for investigations, or if nobody on the Executive cared if they did their job properly or not. It was there to look into matters referred to them by Presidential proclamation. The anti-corruption machine had to be well oiled and sure of future resources.
Mr Hoffman said that the final value was security of tenure. A man could not be fired for doing his job properly. This is what had happened with the Scorpions. Some of their members may have acted excessively, but a simple majority in Parliament could not be the base for getting rid of an efficient anti-corruption machine. If corruption was allowed to spread the way it was, the country was in for a very hard time. Members of this Committee must vote according to their consciences and not follow a party line.
Mr Hoffman said that the Bill before Parliament had been put there by the Executive. The real question was how corruption would be fought. He asked if it was appropriate to house anti-corruption machinery within SAPS. The news had reported on how good the Johannesburg Traffic Department was that one in four motorists in that city had bribed a traffic official. The former NC of SAPS, Jacky Selebi, was in jail for corruption. He had been protected by President Mbeki. Vusi Pikoli had been suspended for insisting on investigating 783 charges against Mr Zuma. Gen Selebi was succeeded by Bheki Cele, who was being investigated by a board of enquiry on charges that he had signed an agreement to pay three times the market value on leased buildings. Either Gen Cele was an incompetent businessman or he had relied on incompetent assistants. Gen Richard Mdluli stood charged with murder, defeating the ends of justice, fraud and corruption. It was time to get real about what was happening in the country. The Concourt had said that the anti-corruption body could stay in the SAPS.
Mr Hoffman said that the role of the NC as the Accounting Officer had not been under discussion. An independent body could not be in the SAPS. Even the Acting NC of SAPS had said that higher bodies decided whom the SAPS could prosecute. IFAISA had put together a solution, but Parliament had more financial and intellectual resources. The way to go was to institute a Chapter 9 body. He suggested that the Eagles replace the Hawks, as they could see better, fly higher, take on bigger prey and be less susceptible to poison than hawks. Their proposal would not affect the good work the Hawks were currently doing to combat priority crime. The Eagles would be educators. R30 billion had been lost on tender corruption in the previous year. Another source quoted an amount of R260 billion. The Provincial Commissioner of Police in the
Mr Hoffman suggested to Members that they tore up the minimalist solution. Mr Johan Burger of the ISS had spent his whole life in and studying the Police. Sober minds were calling for a board of enquiry into the SAPS for their corruption and incompetence. It was madness to suggest that the anti-corruption unit should be placed within SAPS. A Minister had been fired for suggesting that corruption was rampant.
Discussion
Ms van Wyk said there were many examples. Some statements had been regarded where the people were not present. The Acting NC had made a statement based on another context.
Mr P Groenewald (FF+) said that IFAISA was being given an opportunity to make a submission. They should be allowed to state their case. There would be ample opportunity for questions afterwards.
The Chairperson said that IFAISA had already held the floor for thirty minutes without reaching the heart of the submission. The Acting NC had been speaking about conviction rates. He made an example of the Inspector-General. He had not been referring to higher authority. He had cautioned Members that it was not only the Police that were responsible for convictions. There had been reporting on a radio station on this matter, and she had confirmed with the Acting NC that his comments had been in that context. She was giving presenters the chance to make their views known, but there were times allocated to them. She would appreciate progress.
Mr Groenewald said that guests should have freedom of speech. They should be briefed on the time allocation and if they exceeded this and their submission was cut short, then they would have to explain why they had not made their point.
The Chairperson said that there were people in the private sector who were more corrupt than in the public sector.
Mr Groenewald said that Eagles should also be swooping on the private sector.
Mr Hoffman said that Members were well aware of changes to the Cabinet and they could draw their own conclusions. They should consider what the consequences of the proposed minimalist approach would be. The Bill did not measure up to best practice, or the requirements of the Constitution. The Committee could only act within the Constitution. The Committee could cobble out a Bill that was constitutionally compliant without creating a new Chapter 9 entity.
Mr Hugh Glenister, who was representing himself, said there was no division between the public and private regarding corruption. Members should be standing for the rule of law and not the rule of men. IFAISA was not on a different side. Politicians loved division, whether by colour, religion or other factors. Corruption occurred because laws enabled too much discretion. A sexy wink could earn a driver's licence. Parliament had a duty to make society fair and equitable. Society was crying out and needed the leadership expected of Parliament, which was the people's check against the Executive.
The Chairperson said that the submission only addressed public figures involved in corruption. There were systems in the SAPS such as PCAM, Tetra and the
Mr Lekgetho thanked the presenters. Corruption undermined democracy. The mandate was open-ended. It could not be left so. They did not say what period the Eagles should cover. Time frames were needed.
Mr Ndlovu said that IFAISA had mentioned independence and specialisation. He asked what in the Bill was underweight. The submission spoke to training, proper resources and security of tenure. He asked if all of these things were not encapsulated in the Amendment Bill. He asked if what they were suggestions could be provided in the current Bill, or whether it needed to be redrafted altogether.
Mr Groenewald said that Jacky Selebi and the protection given to him by Pres Mbeki were a reality and not a perception.
Mr Lekgetho said Mr Groenewald was out of order by mentioning names.
Mr Groenewald did not need Mr Lekgetho's permission to speak. The proposal was to think of fighting corruption on a broader field. Corruption was a huge issue. Parliament had to ensure that there was a structure to ensure that public funds were not abused. The private sector had no obligation but to pay taxes.
The Chairperson said that the Committee would be debating the legislation in detail the following week. The business of the day was to interact with members of the public who had made submissions.
Mr Groenewald accepted the ruling, but other Members must not challenge him. There were different structures. He asked IFAISA on their view of extending the powers and capacity of the Public Protector and rather do away with the Hawks. When the Scorpions were disbanded, Parliament had discussed the matter in detail for a week.
Mr M George (COPE) said that IFAISA had suggested an alternate Bill. A number of key issues had been raised, such as the lack of specialisation of the Hawks. An organisation which would only deal with corruption had been proposed. He asked if IFAISA had looked at the allegedly minimalist Bill, and if it could not be expanded to embrace the issues raised by them. To create a Chapter 9 body would require an amendment to the Constitution. This would require a two-thirds majority to be passed. He asked if there was another route that IFAISA could follow to achieve its objectives. He agreed that corruption would destroy
Mr Jeffrey said that government was opposed to corruption. Mr Hoffman should speak truth. Mr Hoffman had drawn a lot on the SIU. The issue of funding related to a court case where it was ruled that it could not charge for its services. In fact, funding to the SIU had increased exponentially. This proved that government was committed to fighting corruption. There could be a political debate but this was not the case. What IFAISA had come with was an entirely new proposal. He agreed that the Hawks were not what he was proposing, nor where the Scorpions. Mr Hoffman was not responding to the Concourt judgement. The issues raised deserved debate, but should be seen as new issues. He presumed that Mr Hoffman had read the NPC report which was not in favour of such a body.
Mr George complained on a point of order that Mr Jeffrey had not asked questions but had engaged in debate.
Mr Jeffrey wanted to hear the responses to his comments. He asked what would happen to the Hawks if the Eagles became a reality.
Mr Ramatlakane said that Members were committed to fighting corruption. He asked if the level of specialisation would not be reached under the current Bill. Issues regarding budget had not arisen in the submission. Responsibility of accounting officers should be considered. There were two draft versions for what should happen. He asked if the submission would not have had more clout if it had rather addressed the Bill.
Ms van Wyk said that the Committee had demonstrated its will to deal with corruption. Strict questions had been posed to SAPS on what was happening in their ranks. Mr Hoffman had referred to international standards. Those reports had also made it clear that corruption could not be divorced from organised crime. There was a definite link. One of three suggested models included an anti-corruption body within SAPS. An opportunity had been missed by IFAISA not commenting on the Bill itself. She asked how the challenges could be addressed. Even the Bill did not address this question fully. Anti-corruption bodies would report to those in power. The same level of independence was not needed as that for the judiciary. The success of any law enforcement initiative depended on the contribution of other role players. A proper anti-corruption strategy was needed in each Department.
Ms van Wyk said that there was systematic corruption regarding rhino poaching. A strong legal base was needed to combat corruption. Many of things labelled as part of the minimalist approach of the Bill were international requirements.
Mr Hoffman suggested that Members must make up their minds if they wanted to be panel beaters or midwives. A lot of panel beating was needed on the wreck of a Bill presented to them. If they wanted to be midwives they should restart on a new Bill. Panel beating was a nasty job and nowhere near as good as a newborn baby.
Mr Hoffman said that the National police Commissioner was in control of SAPS and therefore the Bill would not work. New life was needed. It was an African solution. He added that the Committee should do away with the draft Bill.
Mr George asked why the Committe should scrap the bill.
The Chairperson said that any Bill had to go through a process and the Committee would do the same and take all submissions into account.
Mr Jeffery said that the
Mr Hoffman explained that the Court did not focus on Section 27 of the Constitution but it said that the Commissioner Controlled the Police and he was a political appointee. The Helen Suzman Foundation and Professor Pierre De Vos submissions had also supported that argument.
Mr Jeffery pointed out that Prof De Vos did not see anything wrong with locating the Hawks within the SAPS.
Mr Hoffman reiterated his argument that the National Police Commissioner was a political appointee and was therefore more likely to push his party line and sacrifice the body’s independence. The Hugh Glenister ruling was made last year and the deadline for the legislation was September 2012. Lastly, Mr Hoffman emphasised that no one had a right to close down a Chapter nine institution like the Scorpions.
The Chairperson said that corruption was a terrible disease that could “kill our democracy”. Mr Hoffman‘s concerns would be taken into consideration.
The Chairperson noted that the presenter from Unisa had not arrived and the meeting would therefore conclude.
The meeting was adjourned
Documents
- Submission by Prof Pierre de Vos
- Concise Submission on the South African Police Service Amendment Bill
- Constitutional Court Judgement on Matter Brought by Hugh Glenister
- Summary of Written Submissions on the South African Police Services Amendment Bill
- Parliament Research Unit: Analysis of SAPS Amendment Bill (Hawks Bill) & Summary of Written Submissions
- Institute for Accountability in Southern Africa (IFAISA0 submission
- Institute for Security Studies submission
Present
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