South African Police Service Amendment Bill: Department response to submissions

Meeting report

Response to submissions by Civilian Secretariat for Police
Ms Jenni Irish-Qhobosheane, Secretary of Police, Civilian Secretariat for Police, said that three broad issues had been raised by the submissions at the public hearings. These were:
- The structural independence of the Directorate for Priority Crime Investigation,
- Its placement within or outside of the South African Police Service,
- Suggested changes to the Amendment Bill.

Ms Irish-Qhobosheane said that the provisions of the Act were that the legislation must be reviewed within eighteen months, and there was the Constitutional Court (Concourt) judgement ruling in the Glenister cases. The location of the Directorate for Priority Crimes Investigation (DPCI, commonly known as the Hawks) had been considered at some length. The Concourt had not found the placement of the DPCI within SAPS unconstitutional. However, they had raised issues concerning the independence of the body. Adequate independence was what the Concourt had called for. Many submissions had commented on the Organisation for Economic Co-Operation and Development (OECD) report. While independence was desirable, anti-corruption units did have to report to those in power.

Ms Irish-Qhobosheane said that the United Nations (UN) had given guidelines. In some cases it was useful to expand the capabilities of existing bodies to deal with corruption and commercial crime. The creation of a fully independent body might lead to conflicts of interest. There was no international standard or definition of independence. If the structure was to be within SAPS, its ability to operate independently must not be compromised. This was the reason for specific legislation being drafted. The Khampepe Commission had expressed concerns that the competition between the Directorate for Specialised Operations (DSO, commonly known as the Scorpions) and SAPS had not been in the best interests of the country due to overlapping mandates. The Commission had recommended that the law enforcement aspects of the DSO should have been transferred to the then Minister of Safety and Security.

Ms Irish-Qhobosheane said that many submissions had recognised the need for a Constitutional amendment to create a new Chapter 9 body. There was scope for different organisations, such as the Public Protector, to address corruption. Some submissions had argued strongly against DPCI being incorporated into SAPS. The Concourt had found that this was not an irrational proposal, providing that its independence was not compromised. There should still be political accountability. They were concerned with the hands-on control of the DPCI. The Bill in its current form would make the Amendment to the SAPS Act compliant with the Constitution. The issue of perception had been raised by a number of submissions. The Concourt had defined that the perception was that of the reasonably informed person. The public should be advised of the measures in place to allow for a positive perception. When the DPCI was established, different perceptions had been found in the provinces as opposed to the submissions made to Parliament the previous week.

Ms Irish-Qhobosheane said that the Committee had amended the IPID Act after listening to public opinion. Section 207 of the Constitution conferred certain powers on the National Commissioner of Police. It was clear that the judges had considered and discussed both the majority and minority opinions in reaching their conclusions. Sections 207(1) and (2) must be read together. Legislation should be part of national policy. The amendment to Section 11 of the Act provided that the National Commissioner shall exercise control over the SAPS, guided by national policy. The State Law Advisers (SLA) could expand on this issue.

Ms Irish-Qhobosheane said that policy related to there being clarity on the role of the DPCI and that of the SAPS. No institution should be completely unaccountable. Policy guidelines should clarify these roles. The issue with the Concourt was that Parliament should have a greater role rather than the unfettered role of the Ministerial Committee. The current Bill made provision for Parliament to approve policies.

Ms Irish-Qhobosheane accepted that some areas related to the appointment or dismissal of the Head of the DPCI should be tightened up. The issue of ring-fencing staff should be considered to ensure security of tenure. The removal processes for the Head and Deputy Head were designed to speed up the process. The lengthy procedure regarding the enquiry into the current National Commissioner showed how difficult this process could be.

Ms Irish-Qhobosheane said that the Khampepe report had criticised government for the Ministerial Committee not meeting. This committee still had a role to play in reducing tensions. The Concourt had however ruled that the Ministerial Committee's ability to run the daily operations of the DPCI should be removed.

Ms Irish-Qhobosheane said that the budget question was a major issue. The DPCI was better resourced than the DSO had been. The DSO staff establishment had been approximately 600, while the current DPCI staff establishment was 3 900. Of these posts, 2 900 were currently filled. There should be a greater focus on the requirement for consultation on the budget between the Head of the DPCI and the National Commissioner. The DPCI would become a separate programme, and should be listed in the budget separately. Parliament now had a greater say in addressing the components of a Department's budget vote, and could intervene to ensure the independence of the DPCI.

Ms Irish-Qhobosheane said that the term of office for the retired judge to hear complaints had expired soon after the Concourt judgement. Given the uncertainty over the role of the judge, no replacement appointment had been made to date. He had handled two cases in his term, one related to possible interference by a senior SAPS officer and one related to a complaint against DPCI members. The National Prosecuting Authority (NPA) would now be compelled to provide information to the judge. The role of the judge should be made public. While he or she should not be inundated by public queries, the role of the judge as an oversight channel should be known. The Committee could consider the budget for the judge's office.

Mr Irish-Qhobosheane said that minimum terms were seldom used in practice. There would be no fundamental difference if the term was made a fixed one.

Ms Irish-Qhobosheane said that it was already an offence to interfere with a SAPS investigation. The Committee could consider strengthening these provisions. The need for both Houses of Parliament to concur on the removal of a DPCI member from office should be considered. The argument of security issues came down to members of the DPCI being held to a higher standard than ordinary SAPS members.

Response to submissions by Head of Directorate for Priority Crime Investigation (DPCI)
Gen Anwar Dramat, Head of DPCI, SAPS, said that fears had been expressed that security clearances could be revoked to hamper investigations. The DPCI had to deal with powerful individuals. The integrity of Hawks members had to be beyond reproach, and they must not be tainted by criminal acts. This could only be ensured by a comprehensive vetting process. This was necessary. There were different stages of processing a clearance. A trained vetting officer was given a file and followed a prescribed procedure, guided by factual information. Potential risks were pointed out and the file was delivered to a committee, which discussed the vetting officer's recommendations. The subject of the investigation could appeal a non-award. The appeals board was a separate body, and would consider the facts of the matter separately. If the applicant was still not satisfied, the courts were an option. Few cases had gone this far, and none had succeeded. There was no evidence of abuse of the vetting procedure.

Dr Philip Jacobs, Head: Legal Support: Crime Operations, SAPS, said that the vetting procedures were included in the National Strategic Intelligence Act (NSIA). It was required of the SAPS to investigate possible security problems. The section was used to engage in counter-intelligence operations. The Bill included a provision for the Minister to decide which agency should perform vetting. Counter-intelligence measures included security screening activities. There was a prescribed manner, as described by Gen Dramat. The agency would be responsible for security clearance of persons named by the SAPS or South African National Defence Force (SANDF). Use of a polygraph was permissible. The purpose was to assess the competence of a person to use information in a responsible manner without disclosing it to unauthorised persons. A judge had to approve any request to monitor an applicant's communications. Gen Dramat had described the appeal process. An appeal could be referred to the Minister. Information to be protected included information related to the safety of witnesses.

Gen Dramat said that it would make a lot of sense for the DPCI to be situated within SAPS. The Hawks had to deal with serious organised and commercial crime, and corruption. The nature and volume of such crimes suggested that an elite unit on its own would not combat these threats. SAPS had the mandate to investigate all crime. There should be a degree of specialisation to investigate organised crime. House-breaking and vehicle hijackings were often related to organised crime, but the DPCI would be swamped if it had to deal with all cases. The top slice of such crimes should be investigated by the Hawks. Cooperation would be better managed by cooperation between the Hawks and the general detective branch, rather than by having rivalry between the bodies. Co-ordinated action was needed to impact substantially on these crimes.

Gen Dramat said that the link between organised and commercial crime, and corruption, spoke more for cooperation than for separation of bodies. The forms of crime were so inter-linked that it was difficult to give an aspect of crime a single name. Selection criteria were needed to determine which cases should be investigated by the Hawks. Such criteria could be the urgency of the matter, the monetary value of the crime, the location, whether crossing provincial or even international borders, and the extent of organisation of the crime. Some form of committee would be needed to address these criteria.

Gen Dramat had noted concerns over perceived lack of investigations into corruption. All allegations should be investigated. A target of convicting 100 corrupt individuals and seizing R5 million of assets would assist with determining if the matters would meet the criteria. Lesser matters would be diverted to other SAPS units. The DPCI currently had the chair for the Anti-Corruption Task Team (ACTT), which included members of various organisations acting in a co-ordinated manner.

Ms Irish-Qhobosheane said that there was international recognition of the link between organised crime and corruption. The United Nations Office on Drugs and Crime (UNODC) warned of overlapping mandates and turf wars between different organisations. In the cases that the judge had dealt with, one had been reported during the investigation and the judge had carried out a parallel investigation. Something had to happen to justify a report, not a mere suspicion. The Committee might want to strengthen the judge's hand.

Comments by State Law Advisor
Ms Carin Booyse, SLA, said that her office had been tasked to look into Section 207 of the Constitution and its implications for the Bill. They had looked at the Bill, the Glenister judgement and other documents. There was a report that an aspect of the Bill regarding Command and Control mechanisms was unconstitutional. It came down to the independence of the DPCI should it be within SAPS. They had also looked at the deliberations of the Concourt. The judges had considered the SAPS Act extensively, Section 207 and international conventions. There was caution against adopting a model developed elsewhere into the South African context. The issue being investigated was the requirement for adequate independence.

Ms Booyse said that the Concourt had dealt comprehensively with the question of independence. The placement of the DPCI within the SAPS was not unconstitutional, nor was the disbandment of the DSO.

Ms Booyse said that the Amendment Bill had been drafted to satisfy the requirements of the Concourt. A structure was specified and provision was made for the appointment of the Head, Deputy Head, Provincial Heads and ordinary members. The mandate was to investigate priority crimes. This satisfied the need for an anti-corruption body.

Ms Booyse said that they had then considered the role of the National Commissioner. They had looked at the mandate given to the National Commissioner in Section 207 of the Constitution. “Managed and controlled” were not defined in either the Constitution nor the SAPS Act.

Ms Booyse said comparisons had been made to the United Kingdom, Australia and New Zealand. In the latter case, specific functions were not entitled to the National Commissioner. In the Amendment Bill certain functions were assigned to the Head of the DPCI.

Ms Booyse said that the National Commissioner had a broad mandate. In combating priority crimes, the DPCI was removed from the responsibility of the SAPS which had a narrow mandate to perform these functions.

Discussion
Mr M George (COPE) asked for more clarification on the SLA's opinion on the location of the unit.

Ms D Kohler-Barnard (DA) said that the SLA had discussed the crime investigation function being removed from the ambit of the National Commissioner. Nothing was said about the budget. This brought huge possibilities of interference. The tone of the debate which created the DPCI had dismissed a unit which had been constitutional and replaced it with one which was not. Virtually every submission had recommended that DPCI should not be placed under the SAPS. There was no such thing as total independence. Mr Glenister was not going away, and was already preparing to challenge the new legislation. She had cautioned against the disbandment of the Scorpions, and the issue was before Parliament again. Parliament should be striving to put the best solution in place, not one which might just pass muster.

Mr P Groenewald (FF+) asked for a ruling on Ms Kohler-Barnard expressing her views rather than asking questions of clarity.

The Chairperson agreed. There would be plenty of time for discussion as Members deliberated the Bill. This was why she had invited Members to ask questions of clarity.

Ms Kohler-Barnard wanted the Secretary of Police to explain why she had not considered the possibility of a Chapter 9 institution. She asked if this had been considered at all, and if so, why the idea had been rejected. She noted that Gen Dramat had seen the conflict between SAPS and an independent body, and asked if former National Commissioner Jackie Selebi would have been prosecuted if the DSO had been part of SAPS. She was still concerned with the apparent ease with which an office bearer could be dismissed. Due process was needed.

Mr Groenewald felt it would be best practice for a unit to be outside the SAPS. He presumed that Members would receive a written copy of the SLA opinion. He asked if they had applied their mind to Clause 7 of the Bill, which referred to policy guidelines approved by the Minister and Parliament. He asked if there would be any compromise on independence. He had heard Gen Dramat's argument in favour of maintaining the Hawks within the SAPS. However, there were already channels for co-operation with the prosecutors. In the case of the Scorpions, they had had a strong relationship with the prosecutors. This had led to a high conviction rate. He asked what role the prosecutors were currently playing.

Mr L Ramatlakane (COPE) said there was a thin line between questions of clarity and debate. Both responses had implied that the current Bill would meet the test of constitutionality. He asked if the Secretary of Police and the SLA had take the time to consider the submissions made which disagreed with this viewpoint. The vast majority had felt that the Bill did not address the Concourt judgement. The SLA had given an interesting view on Section 207(1) of the Constitution. He had not understood the interpretation of 'control and manage' put forward by the SLA. Section 17H of the amended Act, should it be passed, would place all financial control in the hands of the National Commissioner. Financial independence was a key aspect of the adequate independence required by the Concourt. There was a question over how the Head of the DPCI should be appointed. He asked what the SLA believed should be the case. He wanted clarification on the Khampepe Commission issue. It was difficult to understand what the link was. It had made a finding that the DSO should remain where it was, but with accountability to the Minister of Police. The argument of using the recommendations of this Commission should be explained. He asked if the question of adequate independence had been addressed.

Ms A van Wyk (ANC) asked the Secretary of Police why there was no consideration of making the policy guidelines to be drafted by the Head of the DPCI, in consultation with the Minister and approval of Parliament. These had to be specific to investigations. The process outlined would be cumbersome. She asked what administrative burden would be added to the DPCI, should it be made independent of the SAPS. She asked what implications there would be regarding budget, administration and staff.

Ms van Wyk said that SAPS generally and the DPCI in particular were not doing enough to market their own successes. She found it interesting that what had been presented as a problem, although every other Department worked the same way, that the appointment of the National Commissioner by the President was a political appointment. She asked if the Head of a Department made it a political appointment.

Mr M George (COPE) said the Secretary of Police had said there was no common definition of independence. She could surely find it in any dictionary. She had repeated that the Concourt had not said that the DPCI must be outside SAPS. He asked if she had looked at other options. The SLA had also avoided the question of adequate independence. He asked if their opinion was that the Concourt judgement requirements had been satisfied. He asked why they had not regarded the budget as a manner of exerting influence. Ring-fencing did not take the authority away from the Accounting Officer.

Mr George asked Gen Dramat if he honestly believed that there would be a bad relationship between SAPS and an outside body. There were many cases of SAPS working very well with bodies such as the South African Revenue Service (SARS) and the NPA. He asked why Gen Dramat was so sure that there would be rivalry between SAPS and an independent DPCI.

Mr George considered Section 207 of the Constitution. It seemed that the law was not being read in its totality, and that certain sections were being ignored. Parliament could not make policy which could override the Constitution. He asked if Parliament could legislate against sections of the Constitution.

Mr Groenewald excused himself due to commitments in the National Assembly, but would read the minutes of the meeting carefully.

Mr G Lekgetho (ANC) said that they were now dealing with perceptions. He asked how perceptions could be addressed adequately to remove the fears of the masses. When this Bill was enacted, there would be complaints of corruption from various quarters. He feared that there would be a flood of complaints. Ms van Wyk had mentioned the figures from Hong Kong which had very few cases going to court. He had not heard of any benchmarking. He asked how they would go to work without any cut-off dates.

Mr V Ndlovu (IFP) had been reading Sections 205, 206 and 207 of the Constitution. He wanted clarity on what SLA meant by quoting 205(2) and 207(2).

The Chairperson reminded Members that 21 submissions had been received. Of these, ten had been substantial. She quoted the shorter submissions. The other ten had been discussed at some length in a single meeting. She mused on the possibility that the DSO might have been called on to investigate the Head of the NPA. She noted the possibility of influence being exerted on an incumbent Head seeking to gain a second term of office. The Head of the NPA had a non-negotiable term of ten years.

Ms Irish-Qhobosheane pointed out that the DSO was subject to the Head of the NPA, who was appointed by the President. Their budget fell under the NPA. The Concourt had never been asked to rule on the constitutionality of the DSO. This had never been tested. The Concourt had liked aspects of their operation. It was important to listen to what the submissions had submitted. Their contributions were not being written off. Before the Bill was even drafted, the Secretariat had given only the Committee a briefing on the judgement. When she returned to her officee, she already had an email from Mr Glenister's lawyers.

Ms Irish-Qhobosheane said that the Secretariat had conducted extensive research, which could be made available to Members. Some of the procedures had started even before the Concourt judgement had been handed down. There was no litmus test for adequate independence. Reports from the OECD and UN indicated there was no definition for adequate independence and no best practice. There were some requirements, however. These included political commitment, operational and structural independence, and necessary budget and resources. It was an unfounded fear that resources would be cut. A ring-fenced budget meant that the budget could only be spent on the specified purpose. A procedure could be followed to change it, but Parliament had the power to prevent any cut to ring-fenced funds.

Ms Irish-Qhobosheane had said categorically that the issue around dismissals should still be explored. The board of enquiry to investigate the competence of the current National Commissioner had been a hugely expensive exercise. Separate prosecution systems had been found to be an important check and balance by the Concourt, but was found to be not enough on its own. The Khampepe Commission had not said there could not be a DSO, but had recommended the split in accountability between the two different Ministers.

Ms Irish-Qhobosheane said that certain submissions had been considered. Some of the issues, especially those raised by Prof de Vos, warranted further discussion.

The Chairperson said that the Secretariat was raising the same argument as had been raised over a different Bill. The National Commissioner should only report to the Minister of Police, who in his turn could consult with other Cabinet colleagues.

Ms Irish-Qhobosheane believed that the Bill was constitutional, but additions could be made to strengthen the legislation. Looking at all international literature, it was about avoiding political interference. The DPCI would need an adequate budget, but this did not mean it had to have its own Accounting Officer. The DPCI budget was much higher than that of the DSO. Parliament still had a role to play in controlling the way in which the budget was administered.

It was noted it was a general practice that the Department would draft policy guidelines in consultation with the Minister. A joint policy document had resulted. While the Minister might not have written it personally, guidelines would be written in his name, as was the Annual Report. Section 207(1) should not be read without reference to 207(2). The Secretariat was well aware of the importance of perceptions. It was important to educate the public. In Botswana, 102 000 complaints had been received. Only approximately 400 people had been prosecuted. A number of mechanisms were in existence for different areas.

Ms Irish-Qhobosheane said that every police system was different. For example, there was no single national police service in the United States of America or the United Kingdom. Even the DSO Head had had a renewable term of office. This had to be seen with the Head of the DPCI now being given certain extra powers. The matter was also related to security of tenure.

Gen Dramat said that National Commissioner Selebi would have been investigated. Stature was not a consideration. SAPS Generals had been investigated and some cases had been taken to court. In the Anti-Corruption Task Team (ACTT) model there were dedicated prosecutors. The DPCI investigated and the prosecutors took the matter to court. It was important for the two parties to decide on a strategy at an early stage. It was logical that there would need to be an increase in staff in being independent, and this would divert it from its objectives. He felt it would be a distraction. He did not think there would be any problem with drawing support from the SAPS. There was a reference to an operational committee within the model of the ACTT. Cases could be fast-tracked as a result. The different institutions could hold each other in check. He conceded that marketing was a weak point. Not enough effort had been spent on marketing the successes of the Hawks. It would not be correct to market such successes as if the DPCI had done it all by itself. In terms of the threats to investigate, DPCI was only responsible for the top slice. When addressing the threat it was important to have mechanisms where policemen could interact with each other rather than working with an external body. There could be distracting attitudes. There could be rivalry, even within the SAPS. It would be better if only specified cases were referred to the DPCI.

Ms Booyse said that the Concourt had not required that the DPCI should have an independent budget. Even with the DSO, the Accounting Officer had been the Director-General of the Department of Justice. Guidelines had been considered and the function of the Ministerial Committee. The function of developing national policy fell to the Cabinet. She said that SLA had been asked to consider the Bill in light of Section 207. The Bill was constitutional.

Ms Booyse said that in terms of control and management, the Constitution as a whole and the wording of the SAPS Act should be considered. Their conclusion was that the National Commissioner had certain responsibilities as contained in Section 11 of the Act and in the interim Constitution.

Ms Booyse said that the appointment of the Head of the DPCI had also been considered. The Concourt had specified that there were certain requirements. It was not a requirement that the unit should be totally independent, and therefore the provisions for the appointment of the Head were sufficient. The appointment of the National Commissioner had been considered. The National Commissioner had a mandate to perform his functions. The appointment was made in terms of the Constitution and Section 6 of the SAPS Act. The Bill did amend this Section. Should there be loss of confidence in the National Commissioner, then it should be by the entire Cabinet. Should this happen the President would appoint a board of enquiry. Their conclusion was that the appointment procedure did allow for independence. Section 2 of the Constitution made provision for the Constitution to be supreme over any law made by Parliament.

Ms Booyse said that they had looked at the mandate of the National Commissioner in the light of the SAPS Act and national policy.

Mr George asked if the SLA had looked at the same definition of command and control as that which applied to the SANDF. SAPS was a para-military structure.

Ms Booyse said that they had.

The Chairperson said that it was not about where the house was built but how it was built. The structure and operations of the DPCI had to be considered. Members would use this as a starting point for their deliberations. The only thing in the current mandate for the Committee was to review the Amendment Bill. Any other aspect would be investigated later, even as a Private Member's Bill.

The Chairperson encouraged Members to reread the judgement. Members should also read the minority judgement. Members would meet the following day to start their deliberations.

The Chairperson tabled the report on the Police Budget Vote 25. She asked Members to read the report with a view to approving the report later in the week. She asked Members to bring any corrections to her attention before the meeting.

Ms van Wyk said that the first challenge was to adopt the Committee Report on the Police Department budget, as the debate was on the 9 May.

Committee Report on Independent Police Investigative Directorate (IPID) Budget Vote 23
The Chairperson asked Members to consider the report on the IPID budget vote.

Ms D Kohler-Barnard (DA) suggested a formatting change to highlight the Programme numbers. Members were in agreement. She asked if there was a date set for IPID to report back to the Committee regarding matters raised on page 5. The report was well written apart from a few grammatical errors. There was no response from IPID to her knowledge on the matter raised on page 6.

The Chairperson noted that there was a list of outstanding items at the end of the report.

Ms A van Wyk (ANC) noted on page 8 that the Committee had requested further clarity regarding Information Desks at South African Police Service (SAPS) stations. She did not think that the list alluded to by the Chairperson was complete.

Ms Kohler-Barnard was satisfied that all the points that she had raised were covered. There could be more clarity around the Implementation Plan referred to in the report.

Ms van Wyk said that the Asset Removal Policy had been negotiated internally, but she could not find a reference to it in the report. IPID had reported that it had been completed but apparently it was still subject to internal discussion.

The Chairperson read through the recommendations. Members debated the appropriateness of the phrase “at pains” in describing the responses of IPID regarding the prioritisation of expenditure in Programme 2.

Ms Kohler-Barnard suggested that an insertion be made that the Committee believed IPID was not meeting expectations in this regard.

The Chairperson suggested that in the recommendation on acquisition of office accommodation for IPID, that the reference to ‘building’ its own premises be expanded to include buying as an option.

Mr L Ramatlakane (COPE) commented on the alignment of indicators to the Programmes.

Ms van Wyk reminded the Chairperson that Members had requested a wider range of indicators, which should be aligned to the Act.

The Chairperson requested a vote on the Committee’s support for the IPID budget vote.

Ms Kohler-Barnard abstained from voting as she had not had the chance to discuss it with her caucus.

Mr P Groenewald (FF+) abstained on the same grounds.

Ms van Wyk moved that the report be adopted, seconded by Ms D Molebatsi (ANC).

Mr Groenewald asked if the report had been adopted by a majority vote. He asked if the majority related to those present or to a majority of all Members of the Committee.

Ms van Wyk said that the number of Members on Committees had been generally cut to nine. If a quorum was present, then the Committee still had the right to take decisions.

The Chairperson said that abstentions did not impact on the achievement of quorum.

Ms Kohler-Barnard said she personally agreed with the report, but could not vote on it without the approval of her caucus.

The Chairperson stated that the report had been adopted with amendments. The abstentions of the DA and FF+ were noted.

The meeting was adjourned.