South African Police Service (Hawks) Amendment Bill: deliberations

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03 May 2012
Chairperson: Ms L Chikunga (ANC)
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Meeting Summary

Clause 2 of the South African Police Service Amendment Bill amending Section 11 of the Act said that the National Commissioner should exercise control over the South African Police Service. There was no objection from Members.

Clause 3 of the Amendment Bill amending Section 16 of the Act made provision for a Provincial Commissioner to direct a request for an investigation to the Head of the Directorate for Priority Crime Investigation rather than the National Commissioner. Members agreed to change the wording of Clause 3 (c) from 'in consultation' to 'after consultation' as this implied a more formal process.

Clause 4 made provision for a Directorate to be established within the South African Police Service. This would give the unit higher status than the original intention of creating the unit as a division of the Service. ANC members were satisfied that the Directorate would be located correctly but opposition Members felt that the Directorate would not be sufficiently independent if located within the Police. There was a suggestion that the Bill in its current form would not satisfy the Constitutional Court.

Clause 5 made provision for the appointment of a Head of the Directorate, a Deputy Head and Provincial Heads. Several issues arising from this clause were debated. The decision to appoint the Head as a Deputy National Commissioner was queried as this might lead to confused lines of authority. Salary scales might be a problem. Members pointed out that there was no provision for public or parliamentary input in appointing the Head. Top legal minds in the country had made this point. Members felt that the independence of the unit was not being guaranteed, although they were told that there would be some restrictions on the authority of the National Commissioner. The Chairperson said the placement of the Directorate was not part of the mandate given to the Committee, only the structure and operations of the DPCI. Members agreed that more substantive criteria were needed for the appointment of the Head of the Directorate. The weight of public opinion was against the Minister appointing the Head. Members suggested the term of office should be increased to ten years. They bemoaned the lack of any role for Parliament in making the appointment. Members discussed the procedures relating to the appointment of an Acting Head. Emotions began running high, with one Member commenting that the opinions of opposition parties and the majority of public opinion were being ignored. A counter charge was that the organisations making presentations against the Bill had acted in concert. The Member felt that the Bill had already been decided and took no further part in the meeting. The ANC introduced an amendment to Clause 5, specifying that any dismissal or transfer of a member of the Directorate could only be done with the approval of the Head, and all disciplinary procedures against a member of the Directorate should be held internally.

Meeting report

The Chairperson commented on stories which had been in the media. The Committee was not a Court, and their competency to look into the affairs of some aspects of the South African Police Service (SAPS) were limited, particularly related to crime intelligence. The Joint Standing Committee on Intelligence was dealing with the allegations regarding the abuse of the secret fund in their own closed meetings. Similarly it was up to a court of law to deal with allegations of murder. Members had been given the opportunity to ask questions on this matter during the budget hearings.

Clause 2
Ms Jenni Irish-Qhobosheane, Secretary of Police, Civilian Secretariat for Police, said that the Bill had changed the Act to state the Minister 'shall' rather than 'may' exercise control over the Directorate for Priority Crime Investigations (DPCI, also known as the Hawks). This would amend Section 11 of the SAPS Act.

Clause 3
Ms Irish-Qhobosehane said that in the past the Provincial Commissioner would request the National Commissioner (NC) to conduct an investigation. Such requests would now go directly to the Head of the DPCI. This would amend Section 16 of the SAPS Act.

Ms A van Wyk (ANC) said that this change would address the question of independence and perceived independence. Decisions would now be made by the Head of the DPCI.

Mr V Ndlovu (IFP) said that he would return to the question of accountability. Perceived independence, financial accountability and accountability in terms of command and control were the three matters to form the basis for discussion. Members would be failing in their task if they did not address these issues. While removing the NC from this Section in favour of the Head of the Hawks these three issues should be borne in mind. There was a reference in the Clause to consultation with the Provincial Commissioner:

The [National Commissioner] Head of the Directorate for Priority Crime Investigation may, in consultation with the Provincial Commissioner concerned, notwithstanding the presence of the circumstances referred to in subsection (2), direct that the investigation or any part thereof, be conducted by the Provincial Commissioner.’’.

The Chairperson said that the judgement had defined independence. The DPCI must be free from undue political interference. Structural autonomy was needed. Appointment and dismissal procedures had to be transparent. Adequate resources were needed. She agreed that Members must keep these three principles in mind.

Ms van Wyk had a copy of the SAPS Act at hand. She suggested that copies of the relevant Sections of the SAPS Act should be provided for reference.

The Chairperson that the files distributed to members did contain a copy of the SAPS Act.

Ms Irish-Qhobosehane said that it was only the section relating to referral to cases of organised crime and corruption. In the Act as it stood, a Provincial Commissioner had to ask the NC to instigate an investigation. In terms of the Amendment Bill, a Provincial Commissioner would now refer such crimes to the Head of the DPCI.

Mr M George (COPE) said that Members should not concentrate too much on the judgement. Courts gave different verdicts every day. 'In consultation' implied that there must be agreement before an investigation could be launched. Ms van Wyk often referred to organised crime, and he agreed with her. However, the normal SAPS could deal with certain aspects of organised crime. He asked who would make the determination. Cases normally started at a low level in the SAPS. The law must be constitutional. It would not help if Members had to debate the issue again within three months.

Ms van Wyk agreed that the Committee must act correctly. Criteria must be set. If she read the matter correctly, the opinion of the Head of the DPCI would hold sway. SAPS must investigate all crime, but the Hawks must not be a catch-all for crime but should instead concentrate on the top level while the normal SAPS channels would handle all other crime.

Mr Ndlovu suggested that the question of 'in consultation' should be noted and put aside. The issue should be readdressed later.

Ms van Wyk asked what was the effect of changing 'in' to 'after consultation'.

Ms Irish-Qhobosehane felt that using 'after consultation' might be better to improve public perception of independence.

Ms C Booyse, State Law Advisor (SLA), said that 'in consultation' simply referred to a meeting of the minds whereas 'after consultation' implied a set process.

Ms Irish-Qhobosehane read the reworded clause. In the event of a dispute between the Head of the DPCI and a Provincial Commissioner, the determination would be made by the Head in accordance with approved policy. The NC would no longer have the final say over whether an investigation would be held. The Provincial Commissioner would now report serious crime to the Head, who might, after consultation with the Provincial Commissioner, direct that the Provincial Commissioner should conduct the investigation.

Clause 4
Ms Irish-Qhobosehane said this clause amended Section 17B. The body to address serious crime had been referred to as a Division but this had now been changed to a Directorate.

Mr George asked if there were any SAPS Directorates that were completely independent of the NC. The changes described so far were a recipe for creating confusion as there were now too many bosses.

Ms Irish-Qhobosehane said that there was no such independent Directorate. A Directorate had a higher status than a Division. There had been discussion with Treasury on the matter.

Ms D Kohler-Barnard (DA) asked if the issues were bieng debated. If the current exercise was only a briefing presentation she would hold back her comments. She had already noted a number of issues. After being assured by the Chairperson that the Committee was busy with deliberations, she asked how there could be any claim for independence if Parliament had no input into the appointment of the Head.

The Chairperson said that they were moving clause by clause. She noted the question but would entertain further discussion at the appropriate time.

Mr Ndlovu said that the first issue he wished to debate arose from this paragraph. Where a Directorate was established in the SAPS, it was like establishing a family within a family. This paragraph highlighted areas of perceived independence and interference. The whole debate of perceived accountability would rest on this paragraph. The SAPS Act was being amended, not a new Act being created. He asked if they were creating accountability within accountability.

The Chairperson said that the Constitutional Court (Concourt) allowed the DPCI to be established within SAPS.

Ms van Wyk said that the Secretariat was indeed an example of what Mr Ndlovu was raising. The paragraph could not be read in isolation. Certain rules would be created. It was not a foreign concept. The body would be adequately independent.

Ms Booyse said that the broader mandate would be that of control and management, but the DPCI would have a specific mandate to perform a certain function.

Mr George was not satisfied with this answer. The Secretariat was not adequately independent. It worked under the NC. He felt that the Amendment was overruling the Constitution. He felt that the mandate to the DPCI would be overridden by this legislation. The Constitution was the supreme law of the land.

Ms van Wyk felt that some discussion was needed on the issue. She did not agree that they were overriding the Constitution. The Committee was reacting to a Concourt ruling. It was clear that it went about managing rather than command and control. The Constitution was clear. Only the military had a constitutional licence to command. The Concourt had considered Sections 207(1) and (2) in their deliberations.

Mr G Lekgetho (ANC) said that the perceived independence alluded to, would be strengthened by the establishment of a Directorate. He appreciated the concerns raised. Time was limited and the issues that Mr Ndlovu and Mr George were raising should be parked. They should table a proposal.

Mr George noted that the Concourt had not said that the DPCI must be established within SAPS. It had said that it was not necessarily wrong to do this.

Ms Kohler-Barnard did not want to have to sit through a third session of creating the correct legislation. Members must be beyond careful in how they handled this Bill. The Concourt had ruled that the defunct Directorate for Specialised Operations (DSO, known as the Scorpions) had been independent, but the DPCI was markedly not so. This had led to the ruling. Members must tread carefully. It would be an unmitigated disaster if the Concourt had to reject this legislation again. She could not understand how the Concourt had expressed its gravest disquiet about the control vested in the Ministerial Committee, and yet this body still was given a role to play. A body must be created that would not respond to political players. The Concourt would not accept what she described as a ‘wolf in sheep's clothing’.

Mr Ndlovu said that Members should read the first paragraph of the principal Act. This was what had led to his analogy of a house within a house.

Ms Booyse said that the DPCI would be located within SAPS. The mandate to investigate specific offences stemmed from legislation. The NC had responsibilities in terms of the interim Constitution. Control of the DPCI was no longer vested in the NC. There were international models in which such agencies were located within the police services. The Concourt did not have a problem with the location of the unit.

The Chairperson said that the independence of the DSO was not an inviolable standard. The independence of the DSO was not the matter before the Concourt.

Ms Irish-Qhobosehane said there were numerous references to the DSO not being a reference model. Some comparisons had been in reference to issues such as security of tenure.

Mr K Stubbe (DA) read that the purpose of DPCI was to investigate serious crime. He asked who would determine what was serious crime.

Ms Irish-Qhobosehane said that Parliament would approve guidelines, and the Head of the DPCI would act according to those guidelines. Strong emphasis had been placed on the head of such a body having this power of discretion.

Ms Kohler-Barnard said that the Independent Police Investigative Directorate (IPID) had been established according to Section 50 of the SAPS Act. She asked if this provision had been considered.

Ms Irish-Qhobosehane said that the Secretariat had looked at a number of options. Their opinion was that the best option was a ring-fenced unit within SAPS.

Clause 5
Ms Irish-Qhobosehane said that Section 17C would be amended to make provision for a Head, Deputy Head, and Provincial Heads of the DPCI. The Head would be a Deputy NC. Appointments would now be made by the Head and not the NC. There would be an adequate number of legal officers and administrative staff.

Mr George asked what the rationale was to appoint the Head as a Deputy NC. This body remained within the SAPS. The Bill spoke to adequate resources and proper pay. A Deputy NC had a prescribed salary scale. This would be a compromise of the unit's independence.

Mr Ndlovu concluded that the Head would be someone's deputy. The Head would be nominally independent, but would still be responsible to the NC.

Rev K Meshoe (ACDP) said that being a deputy surely made that person accountable to the NC. This undermined the desired independence. The NC could instruct his deputy. When the Head was given the title of Deputy NC, he asked if this was linked to a salary level.

Mr L Ramatlakane (COPE) supported the creation of the unit to fight corruption. An appropriate unit was needed with adequate resources and protection from interference. The question was the degree of protection and the location. An issue of subordination had been raised, in that the Head would be subordinate to the NC. This would lead to a problem. The perception of the actual independence of the unit was the issue, and he did not think that this was being addressed properly. He asked if the Head would be at the same level as the NC. In terms of the Constitution there could only be one NC. The issue of subordination would become slippery due to the current wording of the Bill. He asked what would happen in the case of a dispute between the Head and the NC. This issue was not addressed anywhere. Members had to foresee future problems. He asked who was playing the guitar.

The Chairperson said that the Minister was in charge of the policing function.

Mr Ramatlakane was describing a situation that had already arisen a few times. In terms of the Constitution, the NC was in charge of SAPS.

Ms van Wyk said that Members were forgetting that the head of the DSO also had to report to people, amongst those persons appointed for ten years by the President. There was an organisational boss as well as the Head of the National Prosecuting Authority (NPA). She wondered if the people calling for the Hawks to be moved to the NPA, would do so if Mr Menzi was still the Head. Deputy NC was the second most senior position within SAPS. This gave authority to the Head. In the event of a dispute, there would be a prescribed resolution mechanism. Deputy NC was an equivalent status to the Deputy Director-General of any government department. She believed that the Head of the DPCI could not have any other responsibilities outside of DPCI. It was a question of how the title could be strengthened. Salary was not an issue.

Ms Kohler-Barnard said she might be going crazy, but she thought that the current Head was already a Deputy NC. She asked how increased independence was being granted to this person while the status quo would prevail. There was no public or parliamentary input into the appointment process of the Head. There was no increase in independence being achieved by this amendment. Some of the top legal minds in the country had made inputs during the public hearing process, but these were being ignored. A Directorate should fall outside the hierarchy. The subordination to the NC had been questioned on numerous occasions. It seemed that this issue had not even been considered in the drafting of the Bill.

The Chairperson said that Members should raise issues to be discussed.

Ms van Wyk said that this was the time that Members would consider public opinion. The public had been given a chance to comment but the Bill had already been drafted. The deliberation process was where public opinion would be considered. Members could either give sound bites or make the legislation the best it could be.

Rev Meshoe said Members agreed that the DPCI should fall under a Ministry. He reminded Members of the status of the DSO. The rank for the Head of the Hawks was the same as that before the judgement had been passed down.

The Chairperson said that the Head of the Scorpions had been a Chief Director.

Ms Irish-Qhobosehane confirmed the rank of the Head of the Scorpions. In the current structure the Head of the Hawks was one level higher than that of the DSO, namely Deputy Director-General.

Mr Ramatlakane said that three options had been presented by the Secretariat. There was no agreement on which was the ideal one. There was no need to create a Chapter 9 institution. Independence was still an issue, and Members should strive to create a body with maximum independence. Independent Police Investigative Directorate (IPID) was a model to consider. The concern was subordinating the DPCI to the NC.

Mr George said that the term Deputy NC was going to lead to confusion. The Head of the DPCI had to be perceived as independent. Perception was a key word. The public would see the Head in the same light as other senior SAPS officers. Some other name was needed. The title would be undermining what the law meant to achieve.

Mr Ndlovu proposed that this issue be flagged. Many names could be suggested, but these might impact on further deliberations on the Bill.

Ms van Wyk agreed that it should be flagged. She pointed out that there would be an impact of a person without a rank on the perceptions of members of the SAPS.

Ms Kohler-Barnard referred to Section 207 of the Constitution. There was a claim that allowing the Head to appoint staff would undermine the authority of the NC. She asked what the legal opinion was on this apparent contradiction.

Ms Booyse said that the Head was appointed by the Minister. The NC did not perform his functions independently of the Minister. It was clear that the policy directives must be in line. The Amendment to the Act would give the Head the authority to fulfil the areas of functionality allocated to him.

Ms Kohler-Barnard felt that she was being asked to pass a Bill which went against the Constitution. This would leave the legislation open to a challenge.

The Chairperson said that the Constitution did not grant open-ended control and management functions to the NC. Policies had to be followed and the NC was responsible to the Minister. The Committee was determining a policy in the form of legislation.

Ms van Wyk said that the Committee would have no right to exercise oversight if Parliament did not have a role to play. Parliament would determine the confinement within which the NC would control SAPS. She noted that the Committee would soon be working on a major overhaul of the SAPS Act. The NC could not be given unfettered powers, and had to remain within the law.

Ms Kohler-Barnard said that there was another provision for the Head to second personnel from other departments. However, there was no obligation on the NPA to provide such personnel.

Ms Irish-Qhobosehane quoted the relevant Clause. The Bill was removing the prerogative from the NC of making the request.

Gen Phillip Jacobs, Head: Legal Support: Crime Operations, SAPS, said that a prosecutor seconded to the DPCI could not act as a prosecutor. There was good co-operation on current investigations.

Rev Meshoe asked when Members would be asked to decide on the location of DPCI. So much time was being spent on the Bill.

Mr Lekgetho said that this was an issue which should be parked.

The Chairperson did not think there was a valid question involved. She did not think that the issue of the placement of the DPCI was part of the Committee's mandate. The Committee was only instructed to look at the structure and operations of the DPCI.

Rev Meshoe said that the public was doubtful of the independence of the DPCI. This issue would not arise if it were removed from SAPS.

Mr George reminded Members that the Concourt had not ruled that the DPCI must not be outside SAPS. Locating it outside SAPS could be the best way to ensure adequate independence. He had not been convinced by the argument put forward by the State Law Advisor. Even if the DPCI was within SAPS, he would have to be convinced that there was adequate independence. He foresaw a possibility that the NC could interfere with the work of the DPCI. He wanted to see the unit working, but wanted to see independence. He felt that the current Amendment Bill was failing.

The Chairperson said that the NC was not a politician, even though he was appointed by the President. He was the manager of a Department. The Concourt had ruled on undue political influence.

Ms van Wyk concluded that Mr George was asking for sufficient independence before finalising their deliberation. The Constitution gave SAPS the right to investigate crime, and they could not ignore their responsibility to investigate serious crime. This did not exclude the Public Protector or the Special Investigating Unit (SIU) from conducting investigations. In time the Concourt could come to a different conclusion. Even if there were a call for a new body, SAPS would still have the obligation to fight crime. Parliament had the responsibility to ensure that this unit was placed in the best location to do its work.

Mr Ndlovu said that the three points he had raised should be assessed at the completion of the deliberations.

Ms Kohler-Barnard agreed with the point made by Rev Meshoe. The Concourt had not determined where the unit should be, but only spoke to its independence. The location seemed to the greatest public concern, and yet it seemed to be a prescribed route that the DPCI must be within SAPS.

The Chairperson said that the issue should be flagged. There was no agreement on the issue.

Mr Ramatlakane still had a point on secondment. He asked how the issue of security vetting of seconded staff would be addressed. He had read that the conditions of the principal Department would be applicable to seconded staff. Staff from other departments did not have the same requirements in this regard. One of the submissions noted that SAPS was not expected to be independent, but only impartial.

Ms Irish-Qhobosehane said that seconded members would be vetted. There was an emergency procedure that could be followed. However, a seconded person, while retaining their normal powers, would not be given policing powers. At present SAPS was the only department in which senior staff were not being vetted.

Mr Ramatlakane appreciated the explanation. The officials of the DPCI would be classified as SAPS officials, according to something he had read.

Ms Irish-Qhobosehane said that policing functions were given to full time members. Seconded members remained under the authority of their normal department, no matter how long the investigation might take.

Clause 6
Ms Irish-Qhobosehane explained that a new Section 17CA was inserted to make provision for the appointment of the Head of the DPCI for a non-renewable fixed term not exceeding seven years. It also made provision for a Deputy Head and Provincial Heads. The Minister would report to Parliament on the appointment. Salary scales were prescribed. Provision was made for an Acting Head.

Ms van Wyk said that there should be criteria for the Head. The person should be a fit and proper person with due regard to experience, trustworthiness and integrity. The term should be a fixed term of seven years.

Ms Kohler-Barnard asked if there was a particular phrase used by other entities. None of the submissions had been satisfied with the Minister making the appointment, and Parliament should play a role. This would satisfy the requirement of independence. While the Head would appoint the Deputy Head, the Minister could exercise a veto.

Mr Ndlovu was happy with the concept of a fixed term. He did not understand the term “in concurrence of Parliament” in 17CA(6). The proper word to use regarding the Head consulting with the Minister regarding an Acting Head should be determined, whether it should be 'in' or 'after' consultation. He needed more clarity on the two-year extension for a person reaching the age of sixty. It was not clear who would initiate such an extension, and it could make an incumbent vulnerable to interference. He asked if the Head or the Minister would submit salary scales for approval by Parliament.

Mr Ramatlakane noted that the Head may appoint a qualified person to act as the Deputy. He did not know from where a suitably qualified and experienced person would come. He wanted clarity on how the issue of age related to a fixed term. He asked if the seven-year term would include the possible two-year extension for a person turning sixty.

Mr George asked if the word 'integrity' was appropriate. A subjective interpretation was possible. He was still not convinced by the provision for salaries. The Head might deal with the rich and powerful. He feared that the Head or Deputy could be tempted to take a bribe. He agreed that the Minister should determine the salary. By giving the Head the rank of Deputy NC, the Minister was already denied full discretion in setting a salary.

Ms van Wyk said that all references to terms not exceeding a certain period had been removed. The same criteria for appointment should be applied to the Deputy Head and Provincial Heads. She suggested that the salary of a Provincial Head should not be less than that of the most senior Deputy Provincial Commissioner. There were scales within these ranks. At the completion of the term, the officer would return to the ranks of SAPS.

Mr Stubbe said that a brilliant young person could be appointed for seven years and then have to move on. He asked why such a person could not be retained.

Ms Kohler-Barnard had seen fixed terms everywhere. Redeployment to SAPS would be to a lower position. This was a very sensitive point as it not possible in terms of labour legislation except in extreme cases.

Ms van Wyk said that SAPS was a huge organisation. People were on the move all the time. Gen Dramat, the current Head of the DPCI, could be used in any other position.

Mr Stubbe asked what would happen when such a person was due to end his term, but there were no suitable vacant positions.

Mr George assumed that the Head would be a senior public servant. He would take some time to find his feet, and would just be getting into the swing of things when it was time to leave.

Mr Ndlovu said Members were raising the issues against the judgement. The political discussion should follow later.

Mr Ramatlakane did not fully support the issue of a fixed term. The Head would lead the DPCI for seven years, and then move back into SAPS. He could not see how the Head could be redeployed. He suggested that the term should be “not more than ten years”.

Ms van Wyk said that there was also a concern around the age limit of sixty.

Ms Irish-Qhobosehane said that a renewable term of office laid the person open to lobbying around a second term of office.

Mr George said that the judgement queried the option of a renewable term. It did not say that terms applicable to the public service could not be used.

Mr Ramatlakane said that once a non-renewable term came to an end, there might still be interference with the possibility of redeployment.

Ms Irish-Qhobosehane said that it was a very sensitive position. Five years was perhaps too short, but pegging it to seven years would reduce the possibility of the incumbent losing enthusiasm. The salary scales were stipulated as being not less than comparable salaries. This left some room for discretion. The same principle had been used with the Secretariat. She said that if she got to a degree where she needed to take corrupt money to stay financially sound, she would only have herself to blame. The appointment of the IPID Head only talked about a suitable person. The legislation for the Secretariat was similar.

Gen Jacobs said the same applied to the Head of the NPA. The wording “with the concurrence of Parliament” had the same meaning of “in consultation with”, but with a more formal process. The courts had defined the terms 'in' and 'after' consultation. It was more appropriate to use 'in consultation' where the parties where at the same level.

Ms Irish-Qhobosehane said that Regulations were always treated as a legislative process. The Minister tabled the regulations even though others may have done the actual drafting.

Mr Ramatlakane asked about Parliament playing no role in the appointment process. He did not see how concurrence could be applied when the process was already completed. Some of the submissions had argued the need for a parliamentary committee to compile a short-list of candidates from which the Minister would make the final selection. It seemed to be purely an Executive function as he read the Bill, with Parliament required to apply a rubber stamp.

Ms van Wyk asked about the Deputy Head being appointed as Acting Head. This required the Minister to make the appointment in consultation with Cabinet.

Mr Ndlovu said that the issue raised by Ms van Wyk contradicted an earlier Clause.

Mr George said the Deputy was appointed by the Head. The Minister had no real role to play in this appointment.

Ms Irish-Qhobosehane agreed that this provision should be removed. It might have been a drafting error. 'Concurrence with Parliament' related to the regulations for remuneration. The appointment was reported to Parliament. Submissions had been in favour of a committee appointment, or that suitable criteria should be put in place. The suggestion made by Ms van Wyk was for the insertion of criteria.

The Chairperson said that the Deputy was appointed by the Head in concurrence with the Minister.

Ms Irish-Qhobosehane said it could occur that the Head could become incapacitated without the opportunity to appoint a stand-in. A senior person should make the appointment. Even in routine circumstances the Minister should still appoint the acting Head.

Mr Ramatlakane had no problem for a senior official to appoint a junior in an acting capacity.

Ms Irish-Qhobosehane said this was the normal practice.

Ms van Wyk felt that the reference to ‘concurrence with Cabinet’ in Clause 9B should also be removed.

Mr Lekgetho had thought that the Deputy would deputise for the Head in order to build his or her confidence. He asked what the role of the deputy should be if things had to go via the Minister.

Ms Irish-Qhobosehane said that these were government procedures. The Deputy Head would only be bypassed in exceptional circumstances. There were formalities which had to be observed.

Ms Kohler-Barnard requested that the State Law Advisor should comment on the status of a single politician having complete control over the DPCI's activities. There was no public or parliamentary input. All the submissions had raised this point.

Ms Irish-Qhobosehane said that the appointment process was an Executive decision, but the remuneration procedure was part of regulations which had to be tabled in Parliament.

Ms Kohler-Barnard still felt that it would be quite possible for the Minister to veto any choice of person which might compromise Minister.

Ms van Wyk asked why the appointment could not be done by the President, as had been done by the DSO.

Ms Booyse said that the whole of Cabinet was involved in the process. The Minister was an elected servant of the State. He was the political head of the SAPS.

Mr Ramatlakane asked if a hybrid model of short-listing by the Committee and appointment by the President was doable.

Mr Lekgetho asked for a simple explanation of what was meant by ‘concurrence with Parliament’.

Ms Kohler-Barnard said seven of the major submissions had dealt with the question of the role of the Minister, and this might well not satisfy the Concourt. There were minimum criteria regarding IPID appointments, such as a legal background. She asked if this had not been considered.

Ms van Wyk said that the ANC had suggested minimum criteria. She would be willing to consider any suggestions made by Ms Kohler-Barnard.

Ms Irish-Qhobosehane said that two professors had made submissions. Prof de Vos had said that a selection panel could be used, but a bare minimum would be proper criteria. She felt that the choice should be left with the Executive. Parliament had a purely approval role with IPID. ‘Concurrence’ implied a formal legal process. ‘Consultation’ could be no more than a telephone call.

Ms Kohler-Barnard said that there were three professors. She took exception to comments being made by other Members as she was trying to present the views conveyed by the submissions. She felt that she was being treated with contempt as none of the views expressed in the public hearings had been incorporated into changes to the Bill.

Ms van Wyk said that opposition Members were playing with numbers. She said that the presenters of the submissions had got together to form a common opinion.

The Chairperson called on Members not to become emotional. She did not believe that any view raised at the meeting was not important. Issues raised by Ms Kohler-Barnard had not been ignored. Caucuses and study groups might have brought their suggestions to the meeting. Even some of the ANC proposals had been changed in reaction to issues raised during the public hearings.

Ms Kohler-Barnard reiterated that every suggestion that she had made had been treated with contempt. The Chairperson treated her with respect, but the same could not be said for other Members of the Committee. She respected the views of the senior legal people who had been at the hearings. These people were becoming frustrated that their views were ignored. All the opinions of opposition Members were being ignored. She felt that the issue had already been decided. She excused herself from the meeting.

Ms van Wyk apologised if she was offending Ms Kohler-Barnard. There were numerous changes which had been made. The Committee would consider any suggestions. The ANC did not have a pre-conceived idea of the legislation.

Mr Ramatlakane said that when emotions did arise, they should not disrupt the meeting. Discussion should be robust but not personal. All Members should be free to put their ideas forward and engage on them. It was not an easy piece of legislation to deal with, and very emotional.

Mr George said that he agreed with Gen Jacobs. He disagreed with the interpretation made by the Secretary of Police. 'In consultation' meant that there could be no movement in the absence of agreement. Members had to agree on the issue of minimum criteria. The person who was to head the Department should have some qualifications. Senior DPCI officials would be dealing with the super rich. The criteria would help to determine the salary of the applicant.

Ms van Wyk asked that the Department should provide the salary scales of the Deputy NCs. Within the public sector, Directors-General were the highest paid officials and the Deputy Directors-Generals. Salaries at this level in SAPS were better than in the rest of the public service.

The Chairperson returned to the case of former NC Jacky Selebi. He had not become corrupt for need of money. All politicians were confronted with corrupt people. It was a question as to whether the person involved was corruptible or not. Billions of Rands were being moved by the corrupt. It was a personal choice. No one who earned a salary could be truly rich.

Gen Jacobs said that 17CA(12) related to the age of sixty, which was the retirement age in the SAPS. There would be consequential amendments from the suggestions relating to the term of office. He would follow-up on this with the Department of Public Service Administration. The provisions for a two-year extension might be dropped depending on the finalisation of the length of the term.

Mr George said that the top criminal bosses did not get their hands dirty. The criminal activities were carried out by the juniors in the organisation. He felt that this was a reason for making the term ten years.

Mr Ndlovu said that Members had only discussed the merits of a fixed term. There had been no discussion over the actual length of the term. The principle should be a non-renewable fixed term, but the length must still be determined.

Mr Ramatlakane thought there had been a proposal of seven years, although he would suggest ten years would be better. The Head of the NPA served for ten years, but he would not split hairs over the exact length. He felt that seven years would go quickly.

Mr Ndlovu said that some of the submissions had called for a ten-year term. He would accept that, and then the two-year extension would not be necessary.

The Chairperson said the two-year period was relevant to a person reaching retirement age. There should be no discrimination based on age. The retirement age in the NPA was 65. If the Head turned 65 before completing his term, then the Minister could extend the term by two years provided the overall length of the term would not be more than ten years. This was in the Public Service Act.

Mr George said that it would be ridiculous to appoint a person close to retirement age for a long period.

Mr Stubbe said there should also be a minimum time period in the clause. A person who would reach retirement age during his term of office could then be appointed for a shorter time period.

The Chairperson said that there was provision for a person to retire at the age of sixty.

Ms van Wyk suggested that the State Law Advisor should look at the clause. Consequential changes were needed in any event. There were two other additions. No person should be dismissed or transferred from the DPCI except with the approval of the Head. This would address the requirement for security of tenure. Furthermore, any disciplinary action against a person other than the Head would happen according to SAPS procedures but would be dealt with within the Directorate.

Mr George found this proposal redundant. If the Head appointed the staff, then no one on the outside should be taking action against members of the DPCI. To insert such a Clause would imply that the DPCI was not adequately independent. The clause was sneaking in what opposition Members were worried about. There was a possibility that the NC could intervene with staff.

Ms van Wyk said that legislation was being written to ensure independence. The ANC proposal would achieve what was concerning Mr George.

Mr Ramatlakane said that there was value in accepting the suggestions. Without the insertions proposed by Ms van Wyk there would be concern that there could be malpractice. These additions would act as a safety valve. He supported the proposal.

Mr Ndlovu agreed with the first amendment on the removal of staff members. The second amendment spoke to discipline within the unit. He did not know what time frame could be allocated for suspensions. Members advised him that the Labour Act specified a maximum suspension of ninety days.

Mr George asked for an opinion from the State Law Advisor. He asked if the NC had any power to discipline members of the DPCI. Surely the NC would have the power to discipline any member of SAPS.

The Chairperson said that the sub-clause on disciplinary action should precede the one on dismissal and transfer. She asked the State Law Advisor to consider the matters raised and advise the Committee the following day.

The meeting was adjourned.

Appendix : Sections 207(1) and (2) of Constitution
Control of police service
207. (1) The President as head of the national executive must appoint a woman or a man as
the National Commissioner of the police service, to control and manage the police
(2) The National Commissioner must exercise control over and manage the police
service in accordance with the national policing policy and the directions of the
Cabinet member responsible for policing.
(3) The National Commissioner, with the concurrence of the provincial executive, must
appoint a woman or a man as the provincial commissioner for that province, but if
the National Commissioner and the provincial executive are unable to agree on the
appointment, the Cabinet member responsible for policing must mediate between
the parties.
(4) The provincial commissioners are responsible for policing in their respective
(a) as prescribed by national legislation; and
(b) subject to the power of the National Commissioner to exercise control over and
manage the police service in terms of subsection (2).
(5) The provincial commissioner must report to the provincial legislature annually
on policing in the province, and must send a copy of the report to the National
(6) If the provincial commissioner has lost the confidence of the provincial executive,
that executive may institute appropriate proceedings for the removal or transfer
of, or disciplinary action against, that commissioner, in accordance with national


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