South African Police Service Amendment Bill: deliberations

Meeting report

Clause 13
Ms Jenni Irish-Qhobosheane, Secretary for Police, Civilian Secretariat for Police, said Clause 13 amended section 17J of the South African Police Service (SAPS) Act. It made provision for the Head of the Directorate for Priority Crime Investigation (DPCI, commonly known as the Hawks) to chair the Operational Committee. This had been the National Commissioner of Police in the original Act. The Deputy Head would be the Deputy Chairperson. An official of the rank of Major General could be designated as a representative.

Mr L Ramatlakane (COPE) asked about the removal of the words 'Assistant Commissioner' and their replacement by 'Major General'. This latter rank was not defined in the Constitution.

Ms A van Wyk (ANC) agreed with Mr Ramatlakane. She presumed that this should be something like Divisional Commissioner or Deputy National Commissioner. Nowhere else in the Bill was there any reference to a specific rank.

Mr V Ndlovu (IFP) supported the previous two Members. There should be no reference to a rank.

Clause 14
Ms Irish-Qhobosheane said that Clause 14 amended section 17K of the Act. This made provision for Parliamentary oversight. The National Commissioner was instructed to include in the SAPS Annual Report a separate section on the DPCI as a separate programme. The Minister would determine policy guidelines for the selection of national priority offences and for the referral of selected offences to the DPCI, with the concurrence of Parliament. The previous provision was that if the guidelines were not approved within three months, they would be deemed to have been approved. The first guidelines should be tabled within six months of the appointment of the Head. Any changes should be approved by Parliament. The Minister should report to Parliament on the appointment of the Head.

Mr M George (COPE) had a major problem in that he felt that the Head of an independent unit should write his own report. This should not be left to the National Commissioner. The Head should decide on the cases to be taken on by the DPCI.

Ms van Wyk had similar concerns. She proposed an amendment starting with the budget. This should happen before the Annual Report. The budget report to Parliament should include a full breakdown of the earmarked budget for DPCI. The word 'ring-fenced' was incorrect and should be replaced by 'earmarked' wherever it occurred. The Head of the DPCI should make a presentation to Parliament on the budget. The National Commissioner should include a report on the activities of the DPCI as a separate programme, and this report should be compiled by the Head.

Rev K Meshoe (ACDP) said there was still no agreement on where the DPCI should be placed. The assumption had already been made that the DPCI should be placed under SAPS. He requested that Members proposing amendments should make copies for the rest of the Committee.

Ms van Wyk said it was difficult as some amendments were made on the spur of the moment. The amendments were being put forward before a decision was made on the placement lest they be lost later.

Mr Ramatlakane wanted to understand what was meant by 'as soon as possible'. He felt a time-frame could be specified.

Mr Ndlovu said it was the first time that this phrase had been used in the Bill. Different interpretations could be attached to the phrase.

Ms van Wyk proposed that the phrase 'as soon as possible' in clause 14 (e) should be deleted.

Ms Irish-Qhobosheane replied that their intention had been to refer to a shorter time, but she was comfortable with leaving it as 'no later than six months'. A formal process was needed to determine which cases could be referred to the DPCI. A national policing policy needed to be in place to guide the National Commissioner.

Mr George asked why this responsibility should not be given to the Head.

Ms van Wyk said that Parliament would determine the way in which the National Commissioner would refer a case to the Hawks.

Mr George had heard the explanation but was still not satisfied.

The Chairperson said that a politician would seldom give a simple 'yes'.

Ms Carin Booyse, State Legal Advisor (SLA), noted that there was a reference to the incorrect section of the Public Finance Management Act (PFMA). This would be corrected.

Clause 15
Ms Irish-Qhobosheane said that section 17L would be amended by Clause 15. This made provision for the retired judge to request information from the National Director of Public Prosecutions (NDPP). The ability of the NDPP to refuse such a request on reasonable grounds would be deleted.

Ms van Wyk proposed an amendment to include a new sub-section. This would allow the retired judge to request necessary information from any SAPS member. Any refusal to provide such information would be a criminal offence with a penalty of a fine and/or a two year jail sentence.

Mr Ramatlakane agreed with the proposal made by Ms van Wyk. This covered the proposal which he was about to make.

Ms van Wyk had another amendment. The judge's independence should be affirmed. The Minister should ensure that the judge had sufficient resources. An annual operational budget should be prepared in consultation with the judge and be provided for by the budget of the Secretariat. Another proposal was that the judge should not be inhibited from examining any matter related to an ongoing investigation. The Secretary of Police, in consultation with the judge, must develop and implement a plan to promote knowledge of the function of the complaints mechanism, both regarding the public and members of the DPCI. Any interference with the activities of the judge would be a criminal offence, with a fine or a maximum two year jail sentence, or both.

Mr Ramatlakane said that important proposals had been put forward. The word 'inhibit' sounded like a catch-all phrase. He asked what transitional arrangement would be made for the budget proposal. There was no retired judge in office at present.

Ms D Kohler-Barnard (DA) said that when the issue of the judge had been mooted, it was felt that SAPS members would use his services. However, there had only been two investigations in five years. The judge was not being utilised. The public seemed to be ignorant of this complaints mechanism. This would not be a preventative measure as most complaints would be after the fact.

Rev Meshoe asked who would appoint the retired judge, and what the term of office would be.

Ms van Wyk said that there was a reference to this in the Bill. The Minister of Justice paid the salaries of retired judges, who were never allowed to retire fully. There was a “chicken and egg” situation. It was up to members of the Hawks to raise complaints about interference and not general members of the SAPS or the public. The position was currently vacant. The operational budget fell under SAPS. This could be transferred to the Secretariat's budget if so motivated by Parliament. The Secretariat still fell under the SAPS cost centre.

Ms Irish-Qhobosheane supported the proposal. There was a plan in the ANC proposal to publicise the role of the judge among both the public and SAPS.

Mr Ndlovu asked which section of the SAPS Act referred to the judge.

Ms Irish-Qhobosheane said that the appointment would by the Minister of Police, in consultation with the Minister of Justice and the Chief Justice. Any member of the DPCI could lay a complaint with details of any alleged interference. It was not possible to predict such complaints.

Ms van Wyk said it would be difficult for the Committee to make any stronger provision. Making the budget part of that of the Secretariat would prevent any financial interference from the National Commissioner.

Clause 16
Ms Irish-Qhobosheane said that Clause 16 inserted a new section 17M to make provision for command and control. All members would be SAPS members with all the associated policing powers.

Ms van Wyk proposed that this Clause be deleted altogether. The command and control concept was not in the Constitution. Other Members agreed with this proposal.

The Chairperson said that the Constitution spoke of management and control rather than command and control.

Clause 17
Ms Irish-Qhobosheane said that Clause 17 dealt with transitional arrangements. The funding for the office of the retired judge would need to be addressed. No current investigations would be affected. The posts of Head, Deputy Head and Provincial Heads would be held by the current incumbents until such time as official appointments were made, even if these persons remained in the posts. The Head could evaluate the suitability of any person for further employment in the DPCI, failing which said person could be transferred. All persons currently in the DPCI would remain so. Persons could only be transferred to the DPCI by consent.

Gen Anwar Dramat, Head of the DPCI, SAPS, said that the mandate of the DPCI was to tackle the top slice of crime. It might be more appropriate to place some DPCI members in the general branches of the SAPS where their skills could be better utilised.

Mr Ramatlakane said that any evaluation in terms of the Labour Act was worrisome for various reasons. He asked why a normal manager – worker relationship should be detailed in the Act. He wondered if there was some other problem behind this provision. This might even be seen as a way of initiating a purge. All persons were currently employed on a contract basis. There were other ways of dealing with members who might be incapacitated or under-performing.

Ms van Wyk also wanted to know what the thinking was. Clause 17(4) should precede 17(3), if 17(3) was not deleted altogether. She asked if this provision was really needed. There should not be a perception that another restructuring would be taking place. Provision was already made in the Bill for the Head to redeploy or dismiss under-performing members.

Mr Ndlovu said that any reference to the National Commissioner in this Clause should be to the Head.

Ms Irish-Qhobosheane said that the legal team had no problem with deleting 17(3).

The Chairperson asked what the rationale was for inserting this sub-clause in the first place.

Mr G Lekgetho (ANC) felt that this was an important clause. Employees would be given the right of belonging, which was a human right. It restricted the power of the Head to move people around.

The Chairperson said that Members must not act in a way to undermine another Member. Members must feel free to speak freely. Members should be free to speak their mind without being belittled.

Ms Irish-Qhobosheane did not feel there had been any malicious intent by inserting this provision. She agreed that these powers were encapsulated elsewhere in the Bill.

Gen Dramat said that the establishment of the DPCI had been an amalgamation of people from various organisations, including the Directorate for Special Operations (DSO, also known as the Scorpions). Members from other branches might not be suitable for use in the DPCI but would be better employed as general detectives or in the Commercial Crime unit. He agreed that sub-clause (3) could be referred.

Ms Irish-Qhobosheane said that only people who wanted to be in the DPCI should be there. Sub-clauses (5) and (6) referred to persons being transferred to the DPCI from the SAPS. It was not about the National Commissioner interfering with the staff or transferring members out of the DPCI. The National Commissioner would need to place any members who did not want to be in the DPCI.

Ms van Wyk said that sub-clause (3) must go. This would address Mr Ndlovu's concern.

Mr George said that sub-clause 17(6) said that the formation of the DPCI should not be used to force members out of SAPS. The use of 'may' in this context worried him. He said that 'must' would be more appropriate, as any member not wishing to be in the DPCI should still be employed in SAPS.

Ms van Wyk said that the drafting had been careless. Clause 17(3) only dealt with existing members of DPCI. Clause 17(5) and (6) dealt with current SAPS members offered the chance to move to DPCI. She suggested that 17(5) and (6) should remain, but with the reference to 17(3) deleted.

Mr Ramatlakane said that 17(6) was a reference to new people. They should not need to give 30 days notice of their reluctance to remain within DPCI. Either a person would accept employment or not.

The Chairperson replied that they would be existing SAPS members.

Mr D Stubbe (DA) also felt that if DPCI wanted to head-hunt someone there would be prior consultation. A SAPS member would already be in a post. He suggested that 17(6) be scrapped.

Rev K Meshoe (ACDP) agreed that 17(6) be scrapped.

Ms van Wyk said that the only reason for 17(6) being included was to have a record for administrative purposes. The whole Clause should be redrafted. 17(3) and (6) could be deleted, or if anything 17(6)(b) could be retained.

Ms Irish-Qhobosheane said that they felt the need to retain 17(5) and (6)(a). The drafters would look at the wording.

Mr Ramatlakane asked if the Secretary was saying that this was a way to prevent “dead wood” from being transferred into the DPCI. The National Commissioner could transfer members into the Hawks. His understanding was that the Head was responsible for appointing members of the DPCI.

Mr George asked if the drafters could also look at the aspect of career limitation. There was already a limit imposed by the limited number of posts available. Good persons might eventually have to return to the general SAPS ranks to advance their careers and would be lost in the process.

The Chairperson noted that the Head was given a lot of power to appoint staff. This could result in the appointment of so-called “yes men” or a “jobs for friends” situation.

Ms van Wyk thought there was no such provision in government. It would be an interesting challenge to word such a proposal. The Department should reconsider the wording of clause 17, including provision for the budget of the office of the retired judge. Members had spoken with detectives who were unhappy about being forced into the job, and a similar situation should not be allowed to arise with the DPCI. The Head of the Hawks should not have any other function within the SAPS, such as representing the National Commissioner at Parliament or even on the Committee's oversight visits.

Ms Irish-Qhobosheane said that the legal team would discuss this issue with the SLAs and reconsider the clause.

Clause 18
Gen Phillip Jacobs, Head: Legal Services, SAPS, said that the Preamble to the Act would be amended by Clause 18. References to the interim Constitution of 1993 would be deleted. A new paragraph would be inserted to express the commitment to providing a Directorate to prevent, investigate and combat national priority crime. This Directorate should be adequately independent.

Clause 19
Gen Jacobs said that Clause 19 was a Schedule of laws to be repealed or amended. An amendment to the Constitution was needed to repeal item 1(c) of Annexure D of Schedule 6 relating to the role of the National Commissioner in combating priority crime. Amendments would also be needed to the Prevention and Combating of Corrupt Activities Act of 2004.

Mr Ramatlakane said that there would be a major amendment to the SAPS Act in the near future. He asked what progress was being made to that amendment. He felt that it would be a challenge to change the Constitution through the Act.

Ms van Wyk said that there was a history of making amendments to legislation in order to keep the SAPS Act consistent with the Constitution. The drafters should ensure that there were no embarrassments in store.

Gen Jacobs said the interim Constitution said that the National Commissioner was currently responsible for priority crime investigation. This responsibility would fall on the Head of the DPCI. Their opinion was that the Annexures to the Constitution could be amended by normal legislation. There might be another paragraph that needed to be changed.

Ms van Wyk cited the Firearms Control Amendment Act. The issue had been control of the registers.

Mr Ramatlakane took assurance from what had been said.

Memorandum of Objectives
Ms van Wyk said that she had proposals regarding amendments to the Memorandum of Objectives. She felt that Members must deal with this issue before setting the drafters to work on incorporating amendments.

Ms Irish-Qhobosheane said that the Memorandum was a completely new document.

Ms van Wyk said that a major issue was that of the removal of the Head of DPCI. The term “loss of confidence” had been removed from the Bill. More criteria had been specified in amendments raised during deliberations and needed to be reflected in the Memorandum. There was another proposal regarding section 17C of the Act. The Head should be given direct management and control over all members of the DPCI, including those in the provinces.

Flagged issues
The Chairperson said that Members could now return to issues that had been flagged earlier. These included the location of the DPCI, the appointment of the Head, the determination of which cases would be investigated by the Hawks, the budget for the retired judge and salaries.

Ms van Wyk said it made more sense to have a cleaned up Bill available before discussing the flagged issues. There had been dramatic changes to the Bill. Issues might be re-opened that had already been addressed.

The Chairperson said that the issue of the location of the Hawks would affect the Bill vastly.

Ms Kohler-Barnard had received an input from an overseas expert. This expert felt there would still be a problem with the Constitutional Court. Section 179(2), (4) and (5) said that the role of prosecuting high level crime should fall under the National Prosecuting Authority (NPA). Many legal experts had argued that the DPCI should not be located in SAPS. This possibility had still not been raised during the deliberations. The issue needed serious interrogation.

Ms van Wyk said that the sections of the Constitution referred to the NPA instigating criminal cases but not investigating them. The National Director of the NPA could issue guidelines on the prosecution process. She felt that the references given were incorrect. There was a differentiation between investigation and prosecution.

Mr George said that the bigger question was the obligation of the state to institute an independent body to combat corruption. There did not seem to be the necessary focus on this aspect. He did not have the confidence that this unit would be an adequately independent unit if it was placed under the SAPS. What was important was whether the requirements of the Constitutional Court had been met. If not, the legislation would be rejected by the Court. Some of the amendments put forward were not convincing. Any discussion of rank raised a question of subordination, which could be related to dependency. Many of the issues raised demonstrated that a body under the SAPS could not be fully or even adequately independent. He asked why Members were so adamant that the unit must be under SAPS. A Chapter 9 institution might be going too far, but there should be some structure outside the SAPS. The location should not necessarily follow the same model as the DSO. This body had had some weaknesses. Members should first explore the other options under the location.

Mr Ndlovu understood why the Chairperson had asked Members to discuss relocation. His initial comments had been to look at the legislation first and then raise questions. The current debate would be abstract. Members should ask the question if they had done enough to address the flagged issues. The nature of the Bill had changed. It would be better to work with the amended document. Debate was needed on the location, but he felt awkward doing so without the updated Bill. The Constitutional Court had asked questions regarding location, independence and accountability.

The Chairperson said the Constitutional Court had spoken only on structure and form, and not on location.

Mr Lekgetho agreed that Members should have a clean Bill to guide further deliberations. Huge changes had been made. The flagged issues should be suspended.

Ms van Wyk also felt that there should be a cleaned up Bill first. Mr George was raising issues that had already been addressed, such as the question of structural independence. Rank would be an issue but could be related to ranks within the public service. Safeguards had been introduced to give the Head the chance to lobby Parliament for funding. Criteria has been set for security of tenure. Parliament's oversight role had been strengthened. More discretion had been given to the Head regarding cases to be investigated. Significant changes had been made by the Committee. These changes addressed the instructions of the Constitutional Court. More changes could still be made.

Ms Kohler-Barnard realised that changes had been made. In her opinion it was not about the location of the Hawks but about potential interference and hierarchical pressures. There was still a role for the Ministerial Committee. She felt that even with the changes made, the unit could still not be seen as independent, and therefore the Constitutional Court would not be satisfied.

Mr Ndlovu said it was very difficult to discuss the matter further without a clean Bill in front of him. The new Bill might console him, but it might not either.

The Chairperson said that the Committee would allow the SLAs and the Secretariat to clean up the Bill while still keeping the unit within SAPS. This should be provided to Members the following day. Members would meet again on 10 May. The law provided for a level of Executive involvement. She requested that the clean version be supplied to Members before the Police Budget debate the following day.

Discussion on a request for a Committee hearing on activities of Gen Mdluli
Ms Kohler-Barnard formally asked that the Committee hold a hearing regarding the re-instatement of Gen Richard Mdluli. While the Committee was not a court of law, it was responsible for oversight over SAPS. The public had been subjected to the saga regarding this officer for over a year. Several serious allegations had been made and the Committee should discuss the issue with the National Commissioner and the Minister.

The Chairperson said that this suggestion would be considered, but was not within the scope of the day's business. The letter Ms Kohler-Barnard had written to her had included an invitation to Gen Mdluli. This was not appropriate. Time had been allocated for engagement during the budget hearings held with SAPS earlier. Members had engaged with the Department. Members of all parties had been invited to express their support for the ongoing investigation of three matters. Members had given their support at the time. The second issue was what was in the public domain. There was an allegation of murder in the public domain. An inquest was being held. This would determine if there was any prima facie evidence of a murder being committed. Inviting Gen Mdluli to answer to this allegation would be fruitless as he would refuse to make any statement which might incriminate himself. Members should rather wait until the result of the inquest was known. The NPA was waiting for this as well. The second allegation was related to abuse of secret funds. This Committee had no oversight over this particular fund. The Inspector General of Intelligence was investigating this. Even the Public Protector had declined to investigate on this basis. In any event, such a meeting would have to be closed. The third issue was a perception of tension between senior SAPS officials. She had made a public statement that the Committee should meet with the political head of SAPS to discuss this tension. She would respond to the letter from Ms Kohler-Barnard in writing, but she did not think there would be any benefit in inviting Gen Mdluli. Some Members had had reservations that he had attended the budget hearings, but he had been returned to office. This Committee had no say over secret funds, but had to concern itself with the effects the saga was having on SAPS. She did feel the need to consider this matter urgently.

Ms Kohler-Barnard did not want to contradict the Chairperson, but she had not made the request to invite Gen Mdluli. Any other SAPS member facing such accusations would have been suspended immediately. She had attempted to engage with Gen Mdluli during the hearings, but had been prevented from doing so by the Acting National Commissioner. She believed that the Acting National Commissioner and the Minister of Police should be requested to appear before the Committee.

Mr George understood that the Minister and the Acting National Commissioner had also been implicated, together with the Provincial Commissioner of Gauteng and others. He feared that if these persons were to appear before the Committee there might be a lack of response on the same grounds of self-incrimination.

Mr Ndlovu said that the Committee was anxious to do oversight over the matters raised. He asked if the Committee should wait until both sides had cleared themselves. Anyone called before the Committee could claim this excuse to refuse to attend a such meeting. It would be wrong to intervene in the middle of a process. Once everything was on the table, positive progress could be made.

Mr Ramatlakane said that the Committee would be failing in its responsibility if it did not declare its interest in investigating these matters, but they needed to plan their response. Timing was important, and the result of the inquest should first be obtained. On the abuse of secret funds, Members had made their stand that an investigation was needed. The Committee might not have oversight of these funds, but there were also accusations of Gen Mdluli appointing friends and family members into SAPS posts. All the facts should first be obtained.

Rev Meshoe agreed with Ms Kohler-Barnard that the Mdluli saga had caused a major crisis in the country. However, he agreed that it would serve no purpose to call him in at present. The inquest must still run its course. The Minister should still come to the Committee to put the issues into perspective. To read about in-fighting between Generals was affecting public confidence in SAPS. They needed to work together to fight crime, but a different perception was being spread. Some Cabinet ministers were now reportedly not trusting their own bodyguards. Questions needed to be answered.

Ms van Wyk said it was clear that Gen Mdluli should not be summonsed.

Ms Kohler-Barnard had just reread her letter, and this had not been suggested.

Ms van Wyk said that all Members had made a statement on 17 April. The Acting National Commissioner had said that new allegations had been made over the weekend. At the appropriate time the Committee had the right to request an update from the Acting National Commissioner. Similarly, the Minister should be called to explain at the appropriate time. She agreed that this was an oversight duty. She agreed that Members would need to be well prepared before this meeting was held. Even the Minister might not be able to answer all questions. The Auditor-General was now also launching an investigation. She agreed that the Minister be called, but emphasised that Members must prepare themselves.

The Chairperson read a section of the SAPS Act. A member convicted of an offence and sentenced to a jail term without the option of a fine would be considered to be discharged from the Service. This would not apply if the term was wholly suspended. An SAPS member who successfully appealed against a conviction or prison sentence could apply to the National Commissioner for re-instatement. A member detained would be deemed to be suspended without pay or allowances, but could apply for repayment should a not guilty verdict be returned at the trial or in a subsequent appeal. This illustrated that there was legislation in place and Members should consider if these conditions applied to Gen Mdluli.
 
After a tea break, the Chairperson read Members the letter written by Ms Kohler-Barnard. While concerns over Gen Mdluli's alleged conduct were revealed, there was no specific call for any person to be called to the Committee. There had been a media statement issued by Ms Kohler-Barnard in which she had called for Gen Mdluli to appear before the Committee. Members should give proper notice of raising matters not on the agenda.

The meeting was adjourned.