South African Police Service (Hawks) Amendment Bill; Committee Report on SAPS budget

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

The Committee discussed Clauses 8 to 13. It plans to have an extended meeting on 8 May. The Chairperson said she hoped that the Committee would be able to adopt the Bill on Friday 11 May.

The discussion on each clause was as follows:
Clause 7 of the South African Police Service Amendment Bill, which amended Section 17D of the principal Act, made provision for national priority offences being addressed by the Directorate for Priority Crime Investigation. ANC Members proposed a comprehensive list of priority offences should be included. Opposition members were satisfied with the proposal, but felt that specifying the offences might detract from the discretion of the Head to select crimes for investigation. The State Law Advisor would look at redrafting the clause.

Clause 8 inserts new Sections 17DA and 17DB. This described the procedure by which the Head of the Directorate could be removed or request to be removed from office. The ANC proposed that the heading should be changed as the term “Loss of confidence” was subjective, and that provision should be made for Parliament to have the option to call for an enquiry if it was dissatisfied with the Head, similar to the possibility of the Minister calling an enquiry. A minimum requirement would be needed. Opposition Members supported this proposal. Members called on the State Legal Advisor to tighten the wording of the clause to prevent too broad an interpretation. Members discussed the issue of suspension without salary, agreeing that the standard principle of assuming innocence dictated that, except in exceptional circumstances, any suspension should be with pay. Members also debated the six-month notice period should the Head wish to end his term of office early.

A new Section 17DB would allow the Head to determine the staff establishment. Members were assured that any movement of current Police members to the Directorate would be treated as a transfer, but there were further procedures should the new members be from other Departments.

Clause 9 amended Section 17E. It made provision for security clearances for members of the Directorate. The ANC proposed that an extra paragraph be inserted to stress that any interference would be considered a criminal offence.

Clause 10 amended Section 17F. It described the procedure for secondment of personnel, which would now be done by the Head. Members were satisfied with the changes.

Clause 11 amended section 17H of the Act, and dealt with finances and financial accountability. While the National Commissioner would remain the Accounting Officer and be responsible for the budget, funds would be earmarked for the Directorate and the Head would be consulted on the budget. Members did not think the changes went far enough, and called for the Head to have a greater role in the budget process and financial control. Superficial changes might give the public a better perception that the Directorate was adequately financially independent.

Clause 12 amended section 17I of the Act. Many of the rights assigned to the Ministerial Committee in terms of setting policy guidelines had been removed. Members questioned the relevance of the Ministerial Committee, and felt that the requirement for four meetings a year was excessive. However, some mechanism for this committee to report to Parliament was still needed.

Clause 13 amended section 17J of the Act. It made changes to the composition of the Operational Committee. The Head of the Directorate would now chair this committee and not the National Commissioner.

The Committee also adopted its Report on the South African Police Service Budget. Members expressed their concerns over certain related issues, in particular the question of sector policing.

Meeting report

Deliberations on SAPS Amendment Bill
Gen Phillip Jacobs, Head: Legal Support: Crime Operations, SAPS, said that the salary scale for a Deputy National Commissioner was approximately R1.3 million per annum.

Ms A van Wyk (ANC) said that this was a good salary, comparable to that of the Public Protector.

Mr G Lekgetho (ANC) said that the figures were very selective.

The Chairperson said that this was what the Committee had asked.

Mr M George (COPE) felt that this might still be restrictive.

Ms van Wyk retorted that this was a minimum scale.

Clause 7
Ms Jenni Irish-Qhobosheane, Secretary for Police, Civilian Secretariat for Police, said that Clause 7 of the South African Police Service Amendment Bill amended Section 17D of the principal Act and made provision for national priority offences being addressed by the Directorate for Priority Crime Investigation.

Ms van Wyk wished to propose a comprehensive list of priority offences. These were based on the work of the researchers. To avoid unnecessary cross-references, certain offences should be listed. These included corruption, offences regarding corrupt activities of public officers and foreign public officials, agents, Members of legislative authorities, judicial officers, the prosecuting authority, witnesses, corrupt activities regarding contracts, procurement and withdrawal of tenders, auctions, sporting events, gambling, acquisitions of interests, unacceptable actions towards witnesses, obstruction of investigations, attempt or conspiracy to commit such an offence, and offences regarding blockage of attempts to report such activities. This was taken from the Corrupt Activities Act.

Mr K Stubbe (DA) thought that agents and foreign officials might have immunity. It could lead to chaos.

Ms van Wyk would have to ask the legal team to respond. She had also thought so when taking this section from the Act. She was not sure how 'agent' was defined.

Mr George said that most of these offences could be investigated by SAPS, depending on their magnitude.

Ms van Wyk said that the Directorate for Priority Crime Investigation (DPCI, commonly known as the Hawks) would only deal with the top slice. The amendment would make the Bill more readable by removing the cross-reference.

Gen Jacobs said that an agent was defined as any person acting on behalf of another person. There was a process for agents to be authorised. There was a detailed description in the Act. The list presented by Ms van Wyk was in Chapter 2. This was correct. Selected offences would be referred to the DPCI, according to the guidelines approved by Parliament.

Mr L Ramatlakane (COPE) did not have an objection in principle to list the offences. He asked what the effect of the law would be. If the offences were listed, there would be a legal directive. This would override the question of selected offences. Listing the offences prevented the leeway which might be needed in selecting offences for investigation.

Ms Irish-Qhobosheane said that corruption needed the attention it required. Listing the offences would provide the gravity required, but she understood what Mr Ramatlakane was saying. She asked that the Secretariat liaise with the State Law Advisor on this matter.

Gen Jacobs said that the DPCI would operate on a selection of cases. In each case, there would be a referral to the guidelines. Factors would the monetary value, the extent and urgency of the investigation, the safety of the community and the profile of the alleged offender. Whatever offences were mentioned, there should be a good idea of which offences were to be investigated.

Ms Carin Booyse, State Law Advisor (SLA), requested that this clause should be considered and redrafted.

The Chairperson acceded to this request.

Mr George said that the legal implications must also be considered. There might be legal wrangles should the DPCI refer a case back to the SAPS.

Clause 8
Ms Irish-Qhobosheane said that Clause 8 would insert new Sections 17DA and 17DB. This made provision for the circumstances under which the Head of the DPCI could be removed from office. The reasons for any such removal should be reported to Parliament within fourteen days. While this could be done by the Minister, the Head could also be removed following a resolution from each House of Parliament.

Ms van Wyk suggested a number of changes. The heading should be changed to “Removal from office of Head of Directorate”. The term “loss of confidence” had been described as too subjective by many submissions at the public hearings. The process needed to be more transparent. She suggested that provision should be made for an enquiry in terms of the Promotion of Administrative Justice Act. An enquiry should be led by a legal professional in practice for at least ten years. The Head of the DPCI should be informed of allegations, and should have the right to make representations to the enquiry. Written submissions could also be entertained.

Mr Ramatlakane said that the submission would go a long way to making the removal process more transparent. He welcomed the change.

Ms van Wyk said that the section related to Parliament should include a process. It could not just be a majority of one House. She suggested that an enquiry must first be conducted before Parliament could ask for the removal of the Head. She stressed that either the Minister or Parliament could call for an enquiry. The two options were separate avenues.

Mr Stubbe said that the provision for dismissal for any other reason should be deleted.

Ms Irish-Qhobosheane said this provision covered the case of the Head feeling the need to resign from office.

Ms van Wyk agreed that the clause could be interpreted incorrectly. She suggested that the legal team make it clearer that this would be on the request of the Head.

Mr George said that the wording was quite clear if the whole sub-clause (4) was read.

Mr Lekgetho (ANC) agreed with Mr George.

Mr Ramatlakane said that there was a repetition. He said that the suggestion made by Ms van Wyk should be couched in the correct legal terms.

Ms van Wyk said that if a Member of the Committee could misread the Bill, then so could any other person. She requested that the legal team alter the wording to make this crystal clear. It must be clear how an enquiry into the removal of the Head should be initiated. The separation of powers should be emphasised.

Mr Ramatlakane queried the suspension without pay. It was curious how this was written. The operative words were 'no salary'. Most suspensions were governed by fair labour practice.

Mr Lekgetho also felt that the primary statement should be suspended with salary, and suspended without pay as a secondary option.

Mr George said that the principle of the assumption of innocence was not being respected. There should be a clear case to justify a suspension without salary.

Ms Irish-Qhobosheane noted that the question of suspension without salary could be used as a punitive measure. She conceded that the drafting was clumsy. She took Mr George's suggestion and this would be revisited when the amendments were made to the Bill.

Mr Ramatlakane said that the suspension would be provisional. It was an interim measure. Salary should not be an issue in this case.

Ms van Wyk emphasised that the suggestion put forward regarding the enquiry might be legally flawed. The point she wished to make was that Parliament must have an input and that the procedure must be correct.

Mr George had a problem with the six month notice period required for a voluntary removal from office. Things could happen overnight. Three months might be better.

Ms A Molebatsi (ANC) noted that there was provision for a shorter period,

Mr Stubbe agreed that there was leeway.

Mr Ramatlakane asked about the voluntary request for removal. A procedure was needed to cover the possibility that the Head might wish to resign with immediate effect.

Mr George added that the Minister might not choose to allow the shorter notice period.

The Chairperson said that the public service generally worked on a thirty-day notice period. Anything less might be regarded as the person absconding. This was a very important office and should be treated with respect.

Mr Lekgetho felt he was being ignored. There could be a case of life-threatening illness. Holding such a person to a six month notice period would be inhuman. Members had suggested different notice periods. He asked what benchmark had been used in determining this.

Ms van Wyk did not think this was a valid reason. It would take some time to fill this position should it become vacant. A six month notice period should cover most possible circumstances. She did not know of a single Minister who would refuse a request for termination based on compassionate grounds.

Ms Irish-Qhobosheane said that the six-month period had been benchmarked against the National Prosecuting Authority (NPA). Six months was a reasonable period to advertise the post, conduct interviews, vet the candidates and conduct other tests. There was also an issue of proper hand-overs. The Minister would not be allowed to be unreasonable in terms of labour legislation. It would be unproductive to force a person to remain in his post reluctantly.

Ms Booyse agreed on the question of fair labour practice.

Mr Ramatlakane asked what would happen where the Head walked out of the job without proper notice. Ignoring the thirty days notice in the general public service would have consequences in terms of pension and other benefits.

Ms van Wyk said that this should be stipulated in the person's contract. She did not think it necessary to legislate on this issue as it could be left as a contractual issue.

Ms Irish-Qhobosheane said that the new Section 17DB would make provision for the Head of the DPCI to appoint staff. In SAPS, a work study was done before structural changes were made. Some negotiation was needed should the Head of the DPCI wish to appoint a member from the general SAPS ranks.

Mr Ramatlakane asked what would happen if the National Commissioner (NC) and the Head were in a dispute over an appointment. He asked if there was any resolution mechanism. The staff establishment in the public service provided for concurrency in agreeing on a staff establishment. The Bill referred to the staff being appointed after consultation.

Mr George asked if a person looking to take up an appointment in the DPCI would first have to resign from SAPS. It this was the case, there was no need for consultation.

Ms van Wyk said the question related to all members of the DPCI, not just the top structure.

Mr Lekgetho was happy to hear that the Head would determine the establishment of the DPCI. Although he would consult with the Minister and National Commissioner, there would be adequate independence.

Ms Irish-Qhobosheane said the wording was consistent with the legislation for the NPA. The work studies conducted within SAPS allowed for quicker restructuring. She recounted the story of a SAPS member who had been earmarked for a position at the Secretariat, and the member had then been offered a better position within SAPS.

Ms van Wyk said that no State Department could have a free hand in staff establishment. Treasury would determine how many people could be afforded.

Gen Jacobs said that appointments would be made after consultation. The Head would have the final decision.

Ms van Wyk asked what the ramifications were for an existing SAPS member. An explicit answer was needed.

Gen Anwar Dramat, Head of the DPCI, SAPS, said that members would remain SAPS members. They would not need to resign. An appointment to the DPCI for a normal SAPS member would be treated as a transfer and not a resignation.

Ms Irish-Qhobosheane said that if the Secretariat took on a SAPS member, it was a lateral transfer. A person from another Department would have to resign and an inter-departmental transfer would be made with no loss of benefits. Other members in the DPCI would be employed like any others. Only senior members would be on fixed-term contracts.

Clause 9
Ms Irish-Qhobosheane said that Clause 9 amended Section 17E of the Act. This made provision for any person appointed to the DPCI to be in possession of a security clearance. Any intelligence structure listed in the National Strategic Intelligence Act could conduct the screening. Should a clearance be refused or revoked, the subject of that clearance could be discarded or transferred by the National Commissioner. A new section would make provision for members of the DPCI to serve impartially, and to swear an oath of office. This had been benchmarked against the NPA. No member of the DPCI could be interfered with or hindered by any person or organ of state.

Ms van Wyk proposed a further amendment to be inserted after the oath of office. Any person who wilfully hinders the Head or any other member of the DPCI should be guilty of an offence and should be subject to a term of imprisonment not exceeding two years. No harm would be done by stating this categorically. A number of submissions had called for such a provision.

Mr Lekgetho agreed. It should be stressed that this would be a criminal offence.

Ms van Wyk said that the prison term made this a criminal offence.

Mr Ramatlakane said that the NPA Act had a similar provision. The word 'criminal' did not appear, but it was implied that this was a criminal offence.

Clause 10
Ms Irish-Qhobosheane said that Clause 10 amended Section 17F. A multi-disciplinary approach was called for. The Head, and no longer the National Commissioner, was given the power to request the secondment of personnel from any other government department. This was exactly a requirement of the Glenister judgement. Any person seconded would retain any powers vested in him or her, but would not be given policing powers.

Ms van Wyk was satisfied that these amendments would provide greater independence for the unit.

Mr Ramatlakane asked for a reminder about the vetting of seconded personnel.

Gen Jacobs replied that seconded persons would be subject to the same vetting process.

Ms van Wyk added that most seconded personnel would already be vetted in their own departments.

Gen Dramat said that there was also provision for temporary vetting.

Clause 11
Ms Irish-Qhobosheane said that Clause 11 amended Section 17H of the Act. This related to financial issues. The National Commissioner would prepare expenditure estimates for the DPCI, and would be the Accounting Officer. The Annual Report of the DPCI would be included as a separate Programme in the SAPS Annual Report. Monies appropriated for the DPCI would be earmarked for this purpose.

Ms van Wyk said that it was vital for the adequate independence of the unit that budget would not be used as a means of interference. The National Commissioner should prepare the budget in, not after, consultation with the Head. If there was a dispute then the Minister should intervene. As the Accounting Officer, the National Commissioner should also be subject to Section 2 of the SAPS Act. The ring-fencing of the budget was not enough. The Head must be part of the presentation to Treasury, which was a negotiating process. It was important that the Head should be part of the process. The Head of the DPCI should have control of earmarked funds for the DPCI at both national and provincial level.

Mr Ramatlakane thought that the changes did not go far enough. COPE suggested that the drafting of the budget should be done by the Head in consultation with the National Commissioner. The National Commissioner must still present the budget. Secondly, ring-fencing funds was good but did not go far enough. The Public Finances Management Act (PFMA) gave Accounting Officers the authority to shift up to 8% of the budget. This discretion should not be given to the National Commissioner in terms of the DPCI budget.

Ms van Wyk did not disagree in principle. She was not sure, but understood that the virement process described by Mr Ramatlakane did not apply to ring-fenced funding. It would not be harmful if the amendment was to be worded in accordance with his suggestion.

Ms Irish-Qhobosheane said that virements did not apply to ring-fenced funds. Although adopting the suggestion made by Mr Ramatlakane would make no difference in effect, it would be a way of improving the public perception of the DPCI.

Clause 12
Ms Irish-Qhobosheane said that Clause 12 amended Section 17I of the Act. The Ministerial Committee would no longer issue guidelines. It would now only receive general performance reports.

Mr Ramatlakane said that he did not see anything about general performance reports in the original wording.

Ms van Wyk said that these reports were in Clause 12(3)(b). The Ministerial Committee should meet four times a year. This had never happened. They could be compelled to report to Parliament after their meeting. The Ministerial Committee had never met since the creation of the Directorate of Special Operations (DSO). It was not uncommon that such committees could report to Parliament in the relevant Annual Report.

The Chairperson said that the requirement for four meetings was unnecessary. The committee had never met in the past, and now their responsibilities had been reduced.

Mr Ramatlakane said that one of the submissions at the public hearing had noted that four meetings a year could be seen as a hands-on approach in the eyes of the Constitutional Court. By insisting that the Ministerial Committee meet four times a year might be seen as a means of entrenching this approach.

Ms Irish-Qhobosheane said that the clause could be reworded to obviate the need for such frequent meetings.

Ms van Wyk wanted to see reports from the Ministerial Committee, even if brief or just to say that no meetings had been held. There should be a report in the SAPS Annual Report, but Parliament should also have the right to call for reports.

Ms Irish-Qhobosheane said that Section 17K dealt with reporting to Parliament.

Ms van Wyk replied that the issues should not be meshed.

Clause 13
Gen Jacobs said that Clause 13 amended section 17J of the Act. It stipulated that the National Commissioner would no longer chair the Operational Committee. This responsibility would now be given to the Head of the DPCI. It made some changes to the composition of the committee.

The Chairperson said she found it difficult to follow the changes without the text in front of her. She said the Committee would meet again on 8 May, and warned Members that it would be a long day. She hoped that they would be able to adopt the Bill on the following Friday 11 May.

Committee Report on
SAPS Budget: adoption
Members considered the South African Police Service (SAPS) Budget Report. Members pointed out some minor errors. Reference to accommodation for SAPS should refer specifically to barracks or living quarters. Some sentences would be reworded for greater clarity. The budget allocation should be recorded as R62.48 billion. With such large numbers, it would be more accurate to round the figure to two decimal places. Presentation of numbers should be consistent. There was not clarity on which funds were ring-fenced.

Ms A van Wyk (ANC) said that the introduction to the section on Programme 1 should read that administration was responsible for the development of operational policy. She thought that some issues regarding the Secretariat should be incorporated. Clear recommendations made by the Committee had not been included. She asked that the researchers revise this section with the presentation as a reference.

The Chairperson said that some aspects needed to be added to the observations. These included a perception that SAPS members were ignorant of the Criminal Law (Forensic Procedures) Amendment Act. Attention should be paid to vehicle control and promotion policy. Detective services fell under Programme 3.

Ms van Wyk said that the Information Services / Integrated Communications and Technology Plan should not be described as detailed as it was still incomplete. SAPS should be commended where they had set quarterly targets.

The Chairperson and other Members requested some wording changes in the section outlining the Committee's observation regarding promotions and on the allocation of vehicles to the provinces. Some changes were requested in the paragraph relating to the payment of municipal services.

Ms van Wyk said that references to 24 hours in the section on Visible Policing should be to 48 hours. There should be more emphasis on the human rights abuses which might result from the detention policy not being observed.

The Chairperson noted that written replies to some questions had been received. Some of the policies forwarded to the Committee had been signed by Gen Jacky Selebi, and she could not believe that they were still current. Reference to cleaners should be deleted but the report could refer to questions raised over contracts for cleaners. Members had made some comments on the practice of SAPS officers granting bail to suspects creating the potential for corruption.

Mr K Stubbe (DA) said that the response of the Department was that it would deal with this situation on an urgent basis.

Ms van Wyk said that the retention policy in the Detective service was a shortcoming. Figures needed to be added to the observations in the report. The training of detectives had been discussed at length, and figures had been provided. More detail should be included in the report. It should be noted that the detection and conviction targets were now similar to those of the Department of Justice and Constitutional Development.

The Chairperson wanted to include the unhappiness of the Committee on the response to their concerns over the lack of targets for actions against narcotics and the illegal sale of alcohol. She felt that the citation of the Act regarding forensic procedures was incorrect. An Act of 2008 had been cited but she thought the reference should be to a different Act passed in 2010. The Act did not call for accreditation of forensic laboratories, but Members felt this should be the case. A note was needed on the phasing out of the Genetic Sample Processing System (GSPS) due to it being obsolete and expensive to operate.

Ms van Wyk said the question relating to the structural changes in VIP Protection Services, which now fell under Crime Intelligence, had not been included in the report. The information was significant. More clarity was needed over the hand-over of duties between the Civilian Secretariat for Police, SAPS and the Independent Police Investigative Directorate (IPID).

The Chairperson said that something should be said in the recommendations regarding sector policing, but she did not know what to say. Perhaps Members should pray for the success of this initiative.

Mr M George (COPE) felt that SAPS did not know how to implement sector policing.

Ms van Wyk said that Members did want sector policing to be implemented. A target could be set regarding the number of SAPS stations which would implement the policy.

The Chairperson wanted to scream over aspects of Visible Policing. SAPS had asked the provinces to give lists of stations to implement sector policing. Nothing seemed to be happening.

Ms van Wyk said the money taken away from the Detectives programme had to be returned.

Mr George said that the Secretariat had a responsibility to research pertinent issues. It was time that they be asked to do research into the question of sector policing. It was an unknown idea at some stations.

The Chairperson said this had not been discussed at the meeting with SAPS, but could be included in the report as a recommendation. There should either be country-wide targets or a clear plan should be presented.

Ms van Wyk said that the request for measurable targets in the Crime Intelligence programme would be more of an asset to the SAPS for their management responsibilities rather than for the Committee in their oversight role. Some clear recommendations had been made regarding the Secretariat which needed to be reflected in the report.

Mr Stubbe said that the SAPS were not able to divulge some details of funding for Crime Intelligence. This recommendation should be deleted.

Ms van Wyk said that the reference was to those items which were not financed by the secret part of the fund. Open expenses should be included as line item details. A reference to the Minister should be deleted.

Mr V Ndlovu (IFP) moved that the report be adopted with amendments. Ms A Molebatsi (ANC) seconded the motion.

The Chairperson asked that the amendments be incorporated as soon as possible. She encouraged Members to read the guidelines forwarded by SAPS on detention policy.

The meeting was adjourned.


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