South African Police Service (Hawks) Amendment Bill: deliberations

Meeting report

The Chairperson summarised the proposals made by Members at the end of the meeting the previous day.

Title of Head of the Directorate for Priority Crime Investigation (DPCI)
Mr V Ndlovu (IFP) said that the titles National and Provincial head of the DPCI, popularly known as the Hawks, were acceptable to his party.

Mr L Ramatlakane (COPE) said that his party had considered the issue of subordination in arriving at the proposed title National DPCI Commissioner.  The principle was to have a clear distinction from the National Commissioner of Police (NC).  He would accept the counter-proposal made by the ANC to use the titles National, Deputy and Provincial Head of the DPCI.

Ms D Kohler-Barnard (DA) said that as long as the DPCI was commonly known as the Hawks, the public would continue to see the unit as being as it was before the legislation was amended.  It would be hard to convince the public that this was a new body.

Ms A van Wyk (ANC) thanked the Members from IFP and COPE for their support.  The name 'Hawks' was a nickname and not to be found anywhere in the legislation.  She took the point made by Ms Kohler-Barnard and asked if she was suggesting that the official name of the Directorate should be changed to reflect its new status.

The Chairperson noted that Members were agreed on the titles National, Deputy and Provincial Head of the DPCI.

Location of the DPCI
Ms van Wyk said that the South African Police Service (SAPS) had an obligation in terms of the Constitution to fight all forms of crime. The Constitutional Court (Concourt) had not found it unconstitutional for the unit to be located within SAPS. She felt that the issues of adequate independence had been addressed in the amendments made to the Bill. Security of tenure had been addressed.  Authority had been given to the Head.  Funds would be earmarked so that they could not be denied to the DPCI.  Reporting to Parliament had been changed.  The DPCI would be involved in drafting and negotiating its budget, and arguing its budget before Parliament.  The Directorate would report directly to Parliament.  The Ministerial Committee would report to Parliament.  Policy must come from the Minister, but with the approval of Parliament.  The procedure related to the appointment and removal of the Head had been improved.  The ANC believed that SAPS must deal with crime, and could not ignore corruption and organised crime.  The unit would be as independent as possible within SAPS.  People could still lobby for a Chapter 9 or other institution.  Submissions made during the public hearings had been considered.  The ANC proposed that the DPCI should remain in SAPS.

Ms Kohler-Barnard said that the South Africa had been admired by corruption fighting agencies elsewhere for establishing the Directorate for Special Operations (DSO, also known as the Scorpions). This unit had been closed due to political motivation.  17 of the submissions made had called for the DPCI to be located outside SAPS.  Some of the judgement had been adhered to, but there was still an enormous problem in that the Head would be appointed by a single politician.  The Committee had never been given the opportunity to explore the options of a different location.  She believed that the Concourt would not be satisfied by the changes that had been made to the Bill.

Mr Ramatlakane said that COPE had participated in the process of amending and advising the draft Bill.  There was a legal dispute over the possibility, or the perception of, the issue of subordination.  The State Law Advisors had been mainly defending their own perspective regarding the Bill.  An independent viewpoint was needed.  The Khampepe Commission had been emphatic about independence.  The Commission had felt that the anti-corruption unit should fall under the Minister of Justice.  Although the Minister of Police needed to be involved, there was no recommendation that the anti-corruption unit should be located within SAPS. While the Bill had been improved, some out-of-the-box thinking was needed. If the Bill had looked more like the legislation for the Independent Police Investigative Directorate (IPID), it would have been a better option. This Bill would be tested by the Concourt. Even IPID was still in the SAPS family. Currently, the issue regarding Gen Richard Mdluli was major news and it was clear that a unit was needed to fight corruption. 

Mr Ramatlakane said that the majority judgement of the Concourt had taken heed of international obligations which South Africa had taken on. The minority judgement had ignored these obligations. Parliament must decide where the unit should be located, not the judges.  He suggested that the DPCI should be modelled on IPID.

Mr Ndlovu said that the Committee had to identify the independence requirements for the DPCI. The Amendment Bill introduced by the Ministry had been changed dramatically by the deliberation process. However, he felt that it had not gone far enough. The judgement had not called for a relocation. There could not be a Chapter 9 institution within the SAPS Act. It would be wise to discuss the issue of relocation. The former Independent Complaints Directorate (ICD) had been described as a bulldog without teeth. IPID was a much more effective concept, and would assist Members in arriving at a body with adequate independence.

The Chairperson reminded Members that IPID was not established in terms of the SAPS Act, unlike the ICD.  It had been created by separate legislation and was a Department on its own.

Ms Kohler-Barnard had spoken to counterparts on other Committees.  On several occasions, the Concourt had acceded to requests for postponements to deadlines.  Members were working under extreme time pressure to finalise the Bill.

Ms van Wyk heard the arguments, but had also heard the opinion of the current Head of the DPCI.  The United Nations (UN) report had warned against creating a separate entity because of the administrative burden which could overshadow investigation. In the majority of countries which were signatories to the convention, anti-corruption units were located within the police family. IPID was established as a separate entity. It was not part of the police family. It was an oversight body. She asked why Members were opposed to having the unit within SAPS. The National Planning Commission was looking at a layered approach. Corruption could not be fought in isolation. If the route of the ICD was followed, the unit would be responsible for its own administration and support such as forensic laboratories.  The IPID route could not be followed as it would deprive the DPCI from the support of the SAPS.  Judge Khampepe had said that the anti-corruption unit must report to the Minister. While Members were looking at disadvantages, there should be a focus on the advantages of leaving the unit within SAPS.

Ms van Wyk agreed that there was an obligation on the unit, Members, the Ministry, the Secretariat and government as a whole to support the work of the DPCI. The complaints mechanism must be popularised both within SAPS and with the public. She knew that there would be another Concourt challenge. It was the right of people like Mr Glenister to challenge legislation.  She was worried that too much power might be given to the Head. All the issues had been addressed. Going outside the Department of Police was not feasible. The Committee would be failing if it said that SAPS did not need such a unit.

The Chairperson said that Members must also bear in mind the challenges IPID was facing.  A high percentage of its budget was going to administration rather than investigations. The staff complement of DPCI was already 10 times that of IPID.

Ms Kohler-Barnard said it was ludicrous that the location of the unit was only being considered at this stage.  In paragraph 214 of the judgement, there was the possibility of a different location.  The Concourt had been critical of the role of the Ministerial Committee.  There was still a role to play for the Ministerial Committee.  It was not for the ANC to be satisfied by the Bill, but the Concourt.  She feared that it would not be satisfied.

The Chairperson asked if it had ever happened that Cabinet had passed a Bill with different options to Parliament.  The process had given the Committee an option to decide on the location.

Ms Kohler-Barnard said that four options had been given when the original Amendment Bill had been presented.  The Committee had worked with its counterparts on the Justice Committee. The ANC caucus had rejected the other three options.

Mr Ndlovu felt that Members were trying to respond to the statement made by Ms van Wyk.  It was the duty of SAPS to combat crime. The Bill no longer reflected the ideas of the Department, but was now the Committee's Bill. Members might approve or not, but it could not be thrown away.  IPID was still under the Minister of Police.

Mr Ramatlakane respected the view of Mr Ndlovu.  His earlier point should be considered. Some of the opinions should be tested legally. The administrative burden was a worry, but it was Parliament that would draft the Act and not the DPCI. This was not a reason to dismiss discussion on the issue. One of the presenters had argued strongly about independence. There was no requirement in the Constitution for SAPS to be independent, only that it should act impartially. While the draft Bill had been improved, there was still a need for a specialised approach. It was not the view of COPE that a Chapter 9 institution should be formed. Maximum independence was needed within the broader police community. He repeated his call for an independent legal opinion.

Ms van Wyk replied on the independence of the SAPS. This had been a dangerous and irresponsible comment. This happened because articles of the Constitution were being read in isolation. SAPS must act in accordance with laws established by Parliament. She read a section of the Constitution which called for impartiality in terms of party politics for the security services. Section 199 directed that SAPS and other security agencies must act independently. There had been no options regarding the DSO legislation. There may have been discussions on other options but only one Bill had been presented.

Ms Kohler-Barnard clarified that there had not been four Bills, but there had been extensive discussion before a single Bill had been introduced.

The Chairperson said that Parliament might seek a legal opinion. She would not call for a vote at this stage in the hope of achieving consensus.

Mr Ndlovu excused himself due to travel arrangements.

Clause 4

Gen Anwar Dramat, Head: DPCI, SAPS, said that clause 4 would insert a new section 17AA enforcing the role of the Constitution. 

Clause 7

Gen Dramat said that clause 7 had been amended to provide for a term of office of between 7 and 10 years.

Ms Jenni Irish-Qhobosheane, Secretary of Police, Civilian Secretariat for Police, said that the salary of the Deputy Head should not be less than that of the most senior Divisional Commissioner.

Gen Dramat said that the retirement age had been returned to 60 years.

Ms van Wyk said that the public interest issue relating to the retention of the Head beyond retirement age had not been deleted, as requested by Members.

Ms Carin Booyse, State Law Advisor (SLA), said that the issue of public interest was standard in the public service.  There had been some rewording of the proposed new section 17CA (15).  However, she had two alternative proposals.  The first was that the Minister might retain the Head of the DPCI in office beyond retirement age for a period not exceeding two years. The second option was that the Head or Deputy Head may remain in office beyond the age of sixty if they so wished, if they still enjoyed good mental and physical healthy. There was a further proviso that his or her term of office should not exceed the term agreed to originally.

Ms Kohler-Barnard asked who would determine if the Head was as healthy physically and mentally on the day after turning sixty as he or she was the day before. She asked if the Head would be subject to a barrage of tests to determine physical and mental fitness.

Ms van Wyk said that the wording was drawn from the Public Service Act.

Ms Irish-Qhobosheane said that this was a standard provision in the public service. It had to be included as it would be a contract position. It would not require a barrage of tests.

Mr Ramatlakane said that there had been a concern that the clause was giving the impression that the extension would take the incumbent past the age of 60. A simpler cause might be to state that the retirement age was 60, but the contract could be for a shorter period if age would intervene. The second alternative proposal better matched the discussion held the previous day.

Ms van Wyk agreed that the second proposal was better.

The Chairperson did not see who would decide if the Head would continue. 

Ms van Wyk said that Parliament would still have the final say. The process of negotiating between the Head and the Minister was not described.  The second option did not refer to public interest.

The Chairperson said that it should be clear that the Minister would decide if the Head should be retained.

Mr Ramatlakane asked what the activating mechanism would be.  The drafting should reflect that the Minister should initiate the process.

Clause 8

Gen Dramat said that the list of specific offences had been deleted from clause 8.  There would instead be a reference to relevant sections to the Prevention and Combating of Corrupt Activities Act.  He proposed a change to the syntax of the sentence for greater clarity.

Mr Ramatlakane said that the proposed wording was an improvement. He was uncomfortable with the role the General was playing at the meeting. The Secretary had been absent the previous day but was present at this meeting.

The Chairperson explained that the Secretary had requested Gen Dramat to lead the presentation because of her absence the previous day.

Clause 9

Gen Dramat read the new wording of clause 9 (3), relating to the removal of the Head of the DPCI.  This would be on the adoption of a resolution by both Houses of Parliament, with a two thirds majority vote.  The Minister could suspend the Head any time after the start of proceedings of a Joint Committee of Parliament to consider the removal.

Ms van Wyk said that a two thirds majority applied in the National Assembly (NA), but was not sure if the same could apply in the National Council of Provinces (NCOP) because of a different voting system based on provincial rather than strict party lines.

Clause 12

Gen Dramat said that the Head of the DPCI would now prepare and provide the necessary information to the NC for the expenditure of the DPCI.

Clause 13

Gen Dramat said that clause 13 had been amended to require that the Ministerial Committee should meet as regularly as necessary, and should report to Parliament on its activities.

Clause 15

Gen Dramat said that the issue of when the guidelines should be submitted to Parliament had been discussed.

Mr Ramatlakane felt that Members had agreed that the approval of the guidelines should not be linked to the appointment of the Head, but to the activation of the Act.

The Chairperson said that the Bill should be amended accordingly.

Clause 16

Gen Dramat said that clause 16 had been amended to provide for the Secretary to prepare the operational budget for the judge's office in consultation with the judge

Ms Irish-Qhobosheane suggested that 'public awareness' would be better than 'public knowledge'.

Gen Dramat said that a change to the Constitution would be needed. Changes had been made to the Objects of the Bill consequential to the changes to the Bill made during the deliberations. The penalties related to offences described in clause 16 regarding interference with the work of the judge still had to be captured.

Mr Ramatlakane said that reference to “the said Act” in paragraph 2.17 was confusing.

Ms Irish-Qhobosheane replied that this would be the amended SAPS Act, but agreed that there was potential confusion.  She read through the headings of the clauses and noted where changes had been made.

Ms van Wyk suggested that the provision for the Head of the DPCI being a Deputy NC in clause 6, which would amend section 17C (2) (a), be deleted. There was a move away from the use of ranks.

Mr Ramatlakane assumed that the proposal regarding the title of the Head would be incorporated.

Ms Irish-Qhobosheane said that it had been noted.

Ms van Wyk proposed a change to clause 13. The proposed section 17I (3) (b) should be deleted. As the Ministerial Committee would no longer have oversight over the DPCI, it would not be necessary for the NC and the Head to submit performance reports to them.

Ms Kohler-Barnard said that there was joint oversight of the Crime Intelligence budget. She asked if the Committee would have oversight over the Crime Intelligence component of the DPCI budget.

Ms Irish-Qhobosheane said that the DPCI budget would be fully transparent to the Committee.

The Chairperson said that Members now had the amended Bill to consider. The Committee should be in a position to go through it again at its next meeting, and hopefully adopt it.

Mr Ramatlakane wanted to check on the process. He would read it over the weekend.  He asked if the changes made during this meeting would be provided to Members before the next meeting.

The Chairperson directed the researchers to go through the Bill and consider it against the Glenister judgement.  She thanked Members for the work that had been put into the Bill.

The meeting was adjourned.