Independent Complaints Directorate; Secretariat for Safety & Security: annual report

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11 October 2000
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

11 October 2000

Chairperson: Mr M E George

Documents Handed Out:
Current Activities and Future Plans of the Secretariat for Safety & Security
Independent Complaints Directorate Presentation
ICD website:

ICD delegation: Adv. Karen McKenzie, Executive Director; Mr Julian Snitcher, Director of Investigations; Mr Riaz Salojee Western Cape ICD Provincial Head; Ms Krishne Kissindooth, Manager in Office of the Executive Director; Mr Tsoae Ntsane, Head of Public Hearings

The Independent Complaints Directorate and the Secretariat for Safety and Security made presentations.

Main points for discussion with the ICD surrounded the issue of lack of resources and capacity, which are inhibiting the ability of the ICD to act out their mandate. Lengthy discussion ensued as to the degree to which the ICD has attempted to solve this problem, culminating in the understanding that the Minister is both aware of the problem and has undertaken to find a solution. Report-backs were made on various high profile cases.

Discussion with the Secretariat centered on the issue of the possible conflict of interest as the Secretariat is both financially accountable to the SAPS but is responsible for monitoring its activities. It was suggested that a further meeting be held on this issue.

The Chair stated that the Portfolio Committee usually only met with the ICD at budget time. However the ICD had been invited to give a report back on their challenges and projects as there has been a perception that the ICD is too closely linked with the SAPS to be able to function effectively.

An ANC member raised a concern about the absence of opposition members. The Chair noted this.

Adv. McKenzie apologised for the absence of the Chief Director of the ICD, Mike Kekana, explaining that he was currently on compassionate leave. She briefed the committee on their information in their presentation document. The main issues were as follows:

· The mandate of the ICD is to investigate incidents of death in police custody, although it has the discretion to investigate any other allegations of police criminality or misconduct, making the ICD a mainly reactive body.
· Severely limited resources (45 investigators for 128 000 SAPS members) have resulted in cases having to be prioritised with only the most serious being investigated actively. Compounding this, there has been a 52% increase in complaints in the last financial year.
· An alternative way of dealing with this has been to refer some of the cases to the SAPS with the ICD retaining a monitoring role.
· 535 posts have been approved, but only 153 of these are currently funded, resulting in projects having to be cut back to be able to remain within the available resources. Components have been restructured and multi-tasking employed among staff, resulting in line function responsibilities being assigned to administrative staff.
· The appointment of a Chief Financial Officer and an audit component will enhance proper financial management within the ICD.
· The ICD is mainly concerned with its complaints registry, investigation and monitoring and development.
· Lack of capacity (both human, financial and material resources) has a severe negative effect on the ICD's ability to deliver on its service standards and strategic objectives.
· Investigations have therefore had to be prioritised, with a preliminary investigation being undertaken in all cases of police-related deaths and with a report being issued within 14 days. Where no prima facie evidence of SAPS complicity in criminal activity exists, the docket is returned to the SAPS for further investigation with the ICD retaining a monitoring role.
· The ICD will then be able to concentrate resources on the following areas: corruption, femicide, rape and spousal abuse, racism and racial discrimination in the SAPS, crimes against children and police brutality and the use of excessive force in terms of section 49 of the Criminal Procedure Act.
· Although there is an overlap between the mandates of the ICD and the Anti-Corruption Units (ACUs), it is not a viable option for an incorporation/ transfer of the ACUs into the ICD. This also does not fall into line with he ICD's strategic shift in focus from an investigative body to a more proactive, monitoring and civilian oversight body.
· Areas of co-operation and joint projects are being investigated between the two bodies.
· Implementation of the Domestic Violence Act has further stretched the budget of the ICD.
· The establishment of Municipal Police forces will have a further effect on the resources of the ICD, although plans are being implemented to allow for investigation of allegations involving the Municipal Police by SAPS structures.
· Research has been commissioned by the ICD into the following areas: the use and abuse of force by members of the SAPS; the skill of policing and improving the management of the use of force in the SAPS, and the examination of deaths in police custody or as a result of police action. Technikon SA have also been commissioned to conduct research with the aim of developing a profile of police officers prone to violence and misconduct.
· There is a need for the ICD to market itself aggressively to both internal and external clients.
· Special co-operative arrangements are being forged with bodies such as the National Directorate of Public Prosecutions, the Human Sciences Research Council and the Public Protector.

Mr Booi (ANC) stated that the ICD seems to be begging for help and intervention on the budgetary constraint issue, yet no mention is made of what solutions have been sought from the Minister of Safety and Security. Has this problem been referred to the Minister, and if so what resolution has been reached? He noted that the Minister is accountable to Parliament and will be taken to task for non-performance. He also asked what role the ICD is playing with regard to the Pagad issue, as allegations of police complicity with Pagad have been lodged.

Mr Zondo (ANC) asked for clarification of the Mostert case and the allegations of police complicity contained therein. He then picked up on the issue of the appointment of the Executive Director, stating that the PC had not been aware of Adv Melville's resignation. He asked for clarification of the relationship between the ICD and the Secretariat for Safety and Security, as well as with the Scorpions Elite Unit.

Mr Ndlovu (IFP) asked why the ICD would want to enter into joint investigations with the SAPS. He also asked why it was necessary to have a Board of Review as the ICD is primarily an investigative body. He then picked up on an example cited where SAPS members have been found to have extorted R500 from a man arrested on false charges, asking whether these SAPS members have been charged yet or not.

Mr Ndlovu referred to the case of the child who was burned to death, with an arrest of the suspect only being made a week later. Had the SAPS member who allowed the suspect to go free for a week, been investigated?

The Chairperson asked how the budget is allocated. If only the SAPS allocates the budget, then a conflict of interest may arise. He stated that it was ludicrous to pay ICD people salaries when there is no money for these people to function as they should.

Ms Sosibo (ANC) asked whether the SAPS members from Nongoma had all been transferred to the same police station or whether they had been separated. She also asked how the ICD deals with racism.

An ANC member asked why intervention in the Northern Cape did not result in the investigation being taken over by the ICD. As these people are out on bail, it is evident that the State did not oppose bail, leading to the conclusion that the ICD is not as independent from the SAPS as is desirable.

Ms McKenzie's reply:
- The ICD is different from the Secretariat for Safety and Security in that the ICD investigates allegations, while the Secretariat is responsible for policy making and the implementation/monitoring thereof. The Secretariat is responsible for the investigation of non-implementation of policy, while the ICD is responsible for the investigation of complaints. The ICD can make policy recommendations to the Secretariat, but it is ultimately up to the Secretariat for implementation.

The Chair interjected stating that although this is the case, the secretariat must make policy that aims to aid the ICD, asking for clarification of the interaction between the two bodies.

Ms McKenzie replied that there is a close relationship between the two bodies and assured the committee that these issues are being addressed through meetings and workshops between the two. This relationship is being cemented on both a national and provincial level.

- On the independence of the ICD, it is essential to involve all stakeholders in the making of pro-active policy and the SAPS must therefore be on board. It is essential for the ICD to be aware of the situation within the SAPS in order to be able to perform a successful oversight role.

- On interaction with the Minister on budget constraints, the ICD is accountable to the Minister, with the budget coming directly from Parliament. The SAPS are therefore not filtering the money, but the fact remains that there are too few investigators for the number of SAPS members. Informal discussions have been held with the Minister, and a consolidated presentation detailing expenditure in all areas will be presented in order to take stock of the extent of resources required to run the ICD properly.

Mr Booi interjected that it was his opinion that a more accurate appraisal was that the ICD's situation is being hampered by a lack of a business plan rather than a lack of resources.

Ms McKenzie replied that the ICD cannot comply with current statutory imperatives as there is not enough money for the operating budget and not because the ICD does not know what it is doing. Last year the ICD had to suspend operations for a full month because of a lack of funds.

The Chair asked again for clarity as to whether this has been raised with the Minister, and what the Minister's reply has been. If the Minister can be shown to be neglecting the issue, then the Committee can take up the problem, but in order for this to be done, the ICD must be able to show that they have done their part in the process thus far.

Ms McKenzie reminded the committee that she had only taken up office as of 1 September 2000, and that since then she has held talks with the Minister regarding budgetary allocation. The Minister has recognised that this is a problematic area, but the Minister has not been able to attend to the issue due to a visit to West Africa and being in Parliament. From the end of this session attention will be paid to the problem, aided by the detailed expenditure analysis they are preparing.

Ms McKenzie was asked if this was a formal undertaking by the Minister. The Chair underlined this, stating that there were two essential elements: firstly that the Minister is in agreement as to the existence of the problem and secondly that the Minister has undertaken to do something about the problem.

Ms McKenzie said that the Minister has recognised the problem and undertaken to do something about it.

- On the Mostert case, the head of the Provincial Office has compiled a report. This report is to be presented to the Minister before being distributed to the media. Allegations are made of high-ranking police officers' complicity in terrorist attacks.

Mr Salojee added that Mr Mostert had made 39 allegations of both a serious and less serious nature. There are real constraints in this case, but the allegations have been viewed seriously - even to the point of having two foreign specialists perform polygraph tests, both of which were passed. He also predicted five bombs. One SAPS member has been arrested and another SAPS member is being prosecuted. These allegations of SAPS supporting Pagad have come about as a result of accusations made by one individual during a trial. Investigation has lead to the prosecution of involved individuals, but care should be taken not to extrapolate these incidents to generalise about the organisation as a whole. Complaints are pursued across the religious/political/ideological spectrum.

- On the Kathlehong complaint where the accusation has been leveled that SAPS members had taken a R50 payoff, the reason that no action has been taken is that the ICD investigators are taking statements, and will make their recommendations to the DPP.

- On the Themba issue, an investigation is pending as the information received from a journalist runs contrary to the finding of the ICD investigation.

- On the Mkhize case, the four SAPS members have been transferred to the Marian Hill Police station.

Mr Ndlovu remarked that this surely defeats the aims of justice as the fact that they are all stationed together gives them the opportunity to corroborate their stories and construct alibis. He asked the ICD look into this situation further.

Ms McKenzie stated that the evidence is already on record, and cannot be tampered with - ballistics, scene reconstruction, forensics, post-mortem - and both the DPP and the ICD hold copies.

Mr Maziya asked whether these members have been suspended or not.

The Chair stated that the accused SAPS members are still working, and that this is a problem of the SAPS and the Secretariat.

Ms McKenzie stated that the ICD is not happy with the fact that these accused are out on bail, but that this is not a decision that lies with the ICD.

The Chair remarked that the Public Service Act allows that these members can be fired before the trial takes place, but the SAPS has chosen not to do so.

Ms McKenzie addressed the issue of racism, clarifying that the ICD intervenes in cases where racial slurs and statements are reported. The DPP charges these individuals with crimen injuria , but in some of these cases the accused have been found not guilty due to stress.

Regarding the Themba case, the complaint was received via the media. The ICD tried to reach the police station, but the phones were out of order. The ICD went to the station and held discussions with the head of the CID, asking why six days had passed since the alleged events. The facts as gathered by the CID head were presented, and the ICD was told that the accused were under surveillance and that the CID would investigate further.

A member from the ANC stated that it was his opinion that the SAPS were reluctant to investigate, and that the ICD was only spurred into action by reports in the media.

In conclusion, the Chair said that the committee would like to see a closer association with the ICD in order to help the ICD as much as possible. It is a fact that corruption and racism are prevalent within the SAPS, and that unless structures like the ICD are successful in performing their mandate, the situation will remain as it is. The Chair underlined the committee's commitment to ensuring that corruption and police brutality are eradicated.
The Chair recommended that the ICD return to the committee to report on its detailed analysis of expenditure and needs and concrete proposals as to how changes will be made.

Secretariat for Safety and Security
Mr Rasegatla provided background on the formation of the Secretariat, as well as outlined the developments since his appointment and current activities.

The objectives of the Secretariat were re-evaluated as being the following:
· To enable the Minister to direct the SAPS effectively
· To promote democratic accountability, effectiveness and the transformation of the SAPS
· To develop a monitoring framework in consultation with the Provincial Secretariats
· To support and assist the Minister in performing his Cabinet and Parliamentary responsibilities
· To initiate policy direction and processes and
· To provide legal and constitutional advice to the Minister.

Strategies to effect these objectives were identified as follows:
· To provide advice, information and strategic support services for the Minister and Secretariat on the following issues:
- Policy matters
- Ad-hoc issues & intervention
- Executive (Cabinet) and Parliamentary matters
- Legal and Constitutional Matters
- Provide research capacity
- Provide communication services
- Provide administrative services.
· A revision of the Secretariat's organogram
· Filling of vacancies
· Plans to enhance civilian oversight through the Advisory Services component
· Provide a Monitoring unit for evaluation within the SAPS
· To provide communication services to the Minister
· To create a coherent policy framework for the Department of Safety & Security
· To provide legal advice and recommendations to the Minister

Current activities were identified as follows:
· Private Security policy framework and the draft Bill
· VIP Handbook
· Regulations for CPFs
· Firearm Policy and Bill
· Review of security legislation: SA Law Commission Discussion Paper
· Rationalisation of legislation relating to Traditional Leaders
· Rape Project
· Youth Violence Project
· Development of Rural Safety and Security Policy Project
· Community Policing Review
· Development of a Monitoring Framework
· Development of five monitoring projects for 1999/2000:
- Policing Priorities and Objectives
- Monitoring Index
- Monitoring Briefs
- Provincial Briefs
- Monitoring Reports.

Mr Ndlovu asked for clarification of the amount of co-ordination between the Secretariat and the Provincial Secretariats. He asked how regularly the provincial bodies report to the National Secretary, and how well these interactions were functioning.

He also asked where the Rural Safety and Security document was, as this was an issue that has been kicked around for a long time with seemingly no progress. This was a mandate of the previous president, and yet nothing seems to have happened.

Mr Ndlovu also asked for clarification about the relationship with the ICD.

Mr Booi asked why there seemed to be confusion about the one department / one accounting office principle, asking for elaboration as to the department's reasoning in asking for permission to have its own accounting office.

He also asked why the Secretariat stated that it is suffering from a limited capacity as a result of the movement of staff to other projects. He stated that the Secretariat derives its mandate and accountability from the Policing Act, and not from the Constitution, and that the Secretariat must therefore take its mandate from the Minister. He asked whether the Minister has not clarified his expectations for the Secretariat.

The Chair added that the Secretariat is established in terms of Chapter 2 of the Police Act and Section 208 of the Constitution, asking where confusion as to the Secretariat's functions could possibly arise.

Mr Rasegatla replied as follows:
- On co-ordination with the provinces, that a monthly meeting is held with the secretaries of the provinces, with the aim of getting a feel for what is happening and the objective of learning from good practice examples. A bi-monthly meeting is also held with the provincial secretaries and the MECs, and station visits are also held with the provinces.
- The Secretariat is understood as a structure that assists and advises the Minister, playing an oversight and monitoring role of the SAPS. This means that the Secretariat must monitor the National Commissioner, although they are technically in the same department.
- Regarding the report on Rural Safety and Security, this should be available within a week or two and would be circulated among members.
- On lost capacity as a result of staff members being moved onto other projects, members moved to the National Crime Prevention Centre were no longer available to the Secretariat as this project falls under the SAPS now.

The Chair clarified that although the Secretariat accounts financially to the SAPS, they are accountable to the Minister. Mr Ndlovu asked whether the presenters were implying that they are not receiving the necessary resources from the SAPS to function successfully.

The Chair stated that they sit together as part of the Department of Safety and Security to allocate funds, and that this should therefore not be a problem. He asked whether they have used their initiative and the correct channels for addressing any shortfall.

Mr Rasegatla answered that their concernlies with the financial accounting aspect - that they feel that it is inappropriate to have to account to someone who they are monitoring. By way of example he cited the situation where the National Commissioner, in an effort to conserve financial resources, has stopped the use of vehicles for monitoring purposes. This function is essential to the running of the Secretariat, but should these vehicles be used, they would be contravening the directive given by the National Commissioner.

The Chair remarked that the Secretariat was set up to perform a monitoring role and cannot be impeded in this kind of way. As this discussion had been taking up a lot of time, a further meeting should be held to clarify this.

Mr Booi stated that the National Commissioner has a mandate to manage the SAPS, but how they are monitored is another issue altogether.

Mr Soman added that the presenters might have added to the confusion. They are merely stating that as they fall under the National Commissioner for budgetary issues, they can no longer be considered completely independent. The Secretariat had referred to the Department on Public Service and Administration for clarity on the issue, and were advised that they should have financial independence from the SAPS.

The Chair stated that financial independence would have serious implications, and if this is the case, then legislation may have to be amended. The Chair asked what the Minister's position was on this issue.

Mr Soman stated that the Minister is of the same opinion as the committee - namely that the Secretariat derives its mandate from the Police Act and the Constitution and is accountable to the Minister.

The Chair stated that as the committee and the Minister are of the same opinion with the Secretariat dissenting, it would be up to the Secretariat to convince the committee of their case. Should this be necessary a further meeting could be arranged for this purpose. The Chair asked that correspondence from the DPSA be forwarded to the committee.

The meeting was adjourned.

Appendix 1:
11 OCTOBER 2000

The Constitution provides for the establishment of a civilian secretariat in terms of Section 208 of the Constitution, which provides that:

"A civilian secretariat for the police service must be established by national legislation to function under the direction of the Cabinet member responsible for policing."

The South African Police Service Act (Act No 68 of 1995) ("the Act") is the national legislation, which gives effect to the constitutional requirement. Chapter 2 of the Act provides, inter alia, that:

The Minister shall establish a secretariat to be called the Secretariat for Safety and Security
~ A Provincial government may establish a provincial secretari at to be called the Provincial Secretariat for Safety and Security: Provided that the date on which a provincial secretariat will come into operation shall be determined by a provincial government in consultation with the Minister.
~ The Minister may, subject to the laws governing the public service, appoint a person to the office of Secretary who shall be responsible for-
· the performance of the functions of the secretariat, and
· the management and administration thereof
The Secretary may, in consultation with the Minister, subject to the laws governing the public service, appoint the necessary personnel to assist the Secretary to perform,subject to his or her control and directions, any function of the secretariat.

In order to provide for the concept of civilian oversight, the Act specifies that the functions of the Secretariat shall be as follows:
· advise the Minister in the exercise of his or her powers and the performance of his or her duties and functions
· promote democratic accountability and transparency in the Service;
promote and facilitate participation by the Service in the Reconstruction and Development Programme;
· provide the Minister with legal services and advice on constitutional matters;
· provide the Minister with communication, support and administrative services;
· monitor the implementation of policy and directions issued by the Minister and report to the Minister thereon;
· conduct research into any policing matter in accordance with the instructions of the Minister and report to the Minister thereon;
· perform such functions as may from time to time be assigned to the secretariat by the Minister; and
· evaluate the functioning of the Service and report to the Minister thereon.

The Secretariat came into being in January 1996 and Mr Azhar Cachalia, the first Secretary for Safety and Security was appointed by the former Minister in terms of the Act. The process of determining the post establishment and the filling of such posts in order to give effect to the legal mandate of the Secretariat began and posts were subsequently filled. During 1996, the then Minister assigned the overall responsibility for the co-ordination of the NCPS to the Secretariat. The Secretariat had undertaken various activities and initiatives under the direction of the Minister to perform the legal functions and to provide civilian oversight over the South African Police Service. A notable activity of the Secretariat was the drafting of the White Paper on Safety and Security, which was approved by Cabinet during September 1998. Whilst processes were being undertaken to implement the legal implications of the White Paper, the composition of Cabinet had changed after the 1999 general elections.

Since the coming into office of Minister Steve Tshwete, the Secretariat had undergone radical changes. Mr Cachalia, who held the position of Secretary, (on the level of Director-General) had vacated office. An acting Secretary, Dr Mark Shaw, was appointed as caretaker Secretary until the Minister appointed Mr MJ Rasegatla as the new Secretary. However, the position was downgraded from the level of Director-General to Deputy Director-General. As a result of the departure of Mr Cachalia and the Minister's direction that the Secretariat be downsized, the NCPC (National Crime Prevention Centre) was moved out of the Secretariat and is now located within the South African Police Service. In addition the Secretariat suffered severe movement of personnel, both in the form of resignations and transfers to the SAPS and other Departments. The factors contributed to a shift in functional performance and capacity to effectively fulfill the legal mandate of the Secretanat.

The Public Finance Management Act, which came into operation on the 1st of April 1999 provided for the principle of one Department - one Accounting Officer. This provision contrasted with the provisions of the White Paper as so far as institutional reform of the Department of Safety and Security is concerned. The White Paper proposed that the Secretary for Safety and Security become the Head of the Department of Safety and Security as well as its Accounting Officer.

On the other hand the Public Service Act reflects that the Head of the Department of Safety and Security is the National Commissioner.

Re.evaluation of the objectives of the Secretariat
In defining the Secretariat's role, it was agreed that the Secretariat needed to meet the following
~ To enable the Minister to direct the South African Police Service effectively;
~ To promote democratic accountability, effectiveness and the transformation of the South African Police Service;
~ To develop a monitoring framework in consultation with the Provincial Secretariats
~ To support and assist the Minister in performing his Cabinet and Parliamentary responsibilities;
~ To initiate policy direction and processes; and
~ To provide legal and constitutional advice to the Minister.

Strategies to achieve the objectives
Having agreed on the objectives, the following primary strategies have been identified:

1.Provide advice to the Minister on:
~ Policy matters;
~ Ad-hoc issues requiring intervention;
~ Executive (Cabinet) and Parliamentary matters;
~ Legal and Constitutional matters

2. Provide information to the Minister on:
~ Police implementation of policy;
~ Ministerial assignments;
~ Ad-hoc issues;
> Police performance; and
~ Relevant developments in other Government Departments.
3. Provide strategic support services for the Ministry and the Secretariat:
~ Prepare the Minister for meetings;
~ Provide administrative capacity to the Ministry and the Secretariat;
~ Provide research capacity;
~ Provide information management services; and
~ Provide communication services.

In order to service the Minister's needs, it was decided to integrate the Ministry and Secretariat to bolster the civilian arm of the Department of Safety and Security.

Structure to carry out the strategies
A revised organogram of the Secretariat has been developed as per Annexure A.

Filling of vacancies
In order to re-invigorate the Secretariat to effectively function, the Minister had directed that the vacancies in the Secretariat be advertised and filled as soon as possible. This process has commenced and will be completed before the end of November 2000.

Plans to enhance civilian oversight through the Advisory Services component
As the organogram reflects, the Advisory Services is made up of the following components:

1. Monitoring which comprises the following units:
1.1 Policing;
1.2 Institutional transformation; and
1.3 Community Police relations.

2. Communication

3. Policy

4. Legal

Objective and strategies of Advisory Services
A Chief Director will head the Advisory Services component and each unit of the component will meet the following broad objectives:

Monitoring Unit
1. To promote a culture of monitoring and performance evaluation within SAPS;
2. To-identify monitoring and evaluation priorities;
3. To carry out agreed monitoring and evaluation projects;
4. To manageloversee the monitoring activities of the Department of Safety and Security.

To provide communication services to the Minister and the Secretariat.

1. To create a coherent policy framework of the Department of Safety and Security (DoSS);
2. To initiatelmanageloversee the policy priorities and process in the DoSS;
3. To identify the policy priorities for DoSS; and
4. To facilitate policy implementation within DoSS.

1. To provide advice and recommendations to the Minister on legal issues;
2. To provide research and constitutional advice;
3. To co-ordinate, monitor and review legislation and regulations; and
4. To monitor cost-effectiveness and conduct of litigation involving DoSS.

Current activities
ð Private Security policy framework and the draft Bill
The Secretariat was the convenor and was instrumental in developing the policy document, which was approved by Cabinet. The draft Bill has subsequently been drafted in conjunction with the SAPS and was approved by Cabinet and submitted to the State Law Advisors for certification. The Secretariat was also involved in advising the Minister on the appointment of an independent Chairperson for the Security Officers Interim Board,

ð VIP Handbook
The Secretariat has developed a draft handbook for the VIP Protectors.

ð Regulations for CPFs
The Secretariat has developed draft regulations.

ð Firearm policy and Bill

ð Review of security legislation: South African Law Commission Discussion Paper

ð Rationalisation of legislation relating to Traditional Leaders
The Secretariat is involved in the process through the Department of Constitutional
Development of developing policy leading to the rationalisation of legislation. The SAPS is also involved in the legislative process.

ð Rape project

ð Youth violence project

ð Development of Rural Safety and Security Policy project

ð Community Policing Review

ð Developed a monitoring framework

ð The five monitoring projects which have been identified as:
· Policing Priorities and objectives 1999/2000;
· Monitoring Index;
· Monitoring briefs;
· Provincial briefs; and Monitoring reports


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