The Minister of Police introduced the Criminal Law (Forensic Procedures) Amendment Bill, 2013, to the Committee, noting that there had been a lengthy process followed on this Bill, but it was a very important tool in the fight against crime in the country. The background to the Bill was outlined, noting that legislation had first been presented to Parliament in 2009, but this Committee had decided to split the fingerprinting clauses from the DNA clauses and to conduct further comparative research. Following this, the Department of Police (SAPS) had then re-drawn this current Bill, which essentially was aiming to set up, within SAPS, a DNA database for the analysis, detection and investigation of crime and for general criminality. Worldwide best practice had been taken into account. The Bill took account of human rights aspects, and there were restrictions on the use of the DNA database, with abuse regarded as a serious offence. Protection of children was covered. Its implementation would cut across various departments, and there had been extensive consultations with the Departments of Justice and Constitutional Development, Health, and Correctional Services. Possible abuse would be countered through processes of oversight and internal mechanisms. There was an implementation plan, with steady filling of posts in crime scene management and forensic analysis. The SAPS legal advisers added that the Minister of Justice and Constitutional Development had agreed that the Minister of Police could introduce the Bill, and extensive consultation had been done. The Bill contemplated five indeces, which were explained. Non-intimate samples included buccal samples taken from under a nail of a person, which may only be taken by police officials with the prescribed training. Intimate samples, excluding buccal samples, may be taken only by a registered medical doctor or a registered nurse. The DNA records would be expunged if no prosecution occurred, or if it was unsuccessful. Bill provided for the expungement of records in matters where the prosecution decided not to prosecute, or where a person had been found not guilty of an offence. The Bill provided for the reporting to Parliament on the DNA database, contained requirements about information, security practices and procedures, and introduced a National Forensic Oversight Board comprising of both governmental and nongovernmental role players, which was also to advise the Minister. An implementation plan and costing had been prepared.
Members asked for further clarity on the indeces, particularly in regard to the duplication of samples and the distinction between the indices, training and employment figures, ethical issues in relation to familial testing and obtaining warrants to collect samples.
The Directorate for Priority Crime Investigations (DPCI) presented the draft Policy Guidelines on what types of investigations may be conducted by the Directorate for Priority Crime Investigation, as determined by the Ministerial Committee, with which Parliament must concur. A Parliamentary legal adviser explained the difference between concurrence and approval. Members noted that despite the fact that aspects of the legislation were before the Court, this process to approve guidelines must continue to allow the DPCI to carry out its work. It was noted that the guidelines were drawn in a collaborative effort and had involved Detective Services of SAPS, and there were clear communication plans for SAPS. The process was outlined, and the relevant sections of the SAPS Act that dealt with the focus of the DPCI were explained. In essence, DPCI was to deal with National Priority Offences, which, in the opinion of the National Head of DPCI, warranted investigation by that unit. However, it would also investigate selected offences, as outlined in other pieces of legislation, and could investigate any other offence or category of offences referred to it from time to time by the National Commissioner, subject to any policy guidelines issued by the Minister and approved by Parliament. An explanation was given of national priority offences, with examples, and it was explained how the offences would be selected by the National Head. It was mostly serious or high level crimes that were investigated. The necessity for, and confirmation around various operational protocols was outlined. A protocol had been adopted for referral of cases between the Detective Services and the DPCI. Finally, it was noted that transitional arrangements required the DPCI to finalise ongoing investigations until such time as sufficient capacity had been created within the Detective Services to deal with offences that fell outside the scope of these guidelines. An implementation plan for the guidelines would be provided to the Minster within one month of approval of the guidelines by Parliament.
Members asked for further clarity on crime threat assessments, the national priority offences not selected by the National Head, the protocols with provincial commissioners, the transitional arrangements, and how capacity was measured. They questioned why “degrees of corruption” were named, asked what might happen if the National Commissioner did not refer certain crimes, and what would be the case with matters falling outside the SAPS mandate. Members asked how may cases were currently being investigated by the DPCI, although they might not fall strictly within its mandate, and for more detail on the protocols. A question was raised about protection of local councillors but this was to be finalised outside the meeting. Members stressed that capacity was essential, and asked for an indication of where capacity did and did not exist at present, and how it would be addressed. Members noted that the Hawks, or DPCI, did not have a high public profile and urged the Directorate to work on this. They adopted the Report recommending that Parliament note its concurrence.
Criminal Law (Forensic Procedures) Amendment Bill: Minister’s briefing
The Minister of Police, Mr Nathi Mthethwa, attended the meeting to brief the Committee on the Criminal Law (Forensic Procedures) Amendment Bill, commonly known as “the DNA Bill”. He noted that the process behind this Bill had been long, but that the legislation would be a very important part of the fight against crime, particularly violent crime.
The Bill essentially dealt with the setting up, within the South African Police Service (SAPS) of a DNA database for the analysis of detection and investigation of crime, and for general criminality. He said it was a technical Bill, but the process was helped by the intimate involvement of the Committee and the Task Force which had studied practices worldwide, particularly those in Canada and the United Kingdom of England and Wales (UK).
The Minister noted the particular issue of human rights, which imposed restrictions on the use of a DNA database, and said that abuse of the DNA database would be regarded as a serious and unlawful offence. The Bill also applied to the protection of children. It cut across different departments and legislation; for instance, there were clauses that dealt with the Criminal Procedure Act (CPA), which was implemented by the Department of Justice and Constitutional Development, and the Department of Correctional Services would be involved in the taking of buccal of persons convicted, particularly in relation to Schedule One. Possible abuse would be countered through processes of oversight and internal mechanisms.
The Minister reiterated the significance of the Bill in the fight against crime, and highlighted the importance of the implementation plan for the Bill and the personnel who would be implementing the Bill on a technical level. 800 posts had been filled in this area, particularly in crime scene management and forensic analysis. He noted that he was satisfied with the Bill, apart from his disappointment at the delayed process.
Ms Jenni Irish-Qhobosheane, Secretary of Police, introduced the technical delegation present. She highlighted that there were three important issues to highlight. The first was the SAPS capacity to implement the Bill, and she noted that the Bill was accompanied by an implementation plan. Secondly there should be protection of processes around the Bill. Thirdly, she noted that extensive consultation was carried out on the Bill, specifically with the Departments of Health (DOH) and Correctional Services (DCS).
Criminal Law (Forensic Procedures) Amendment Bill: Departmental briefing
Commissioner Philip Jacobs, Legal Adviser, SAPS, began by discussing the background to the Bill. A Criminal Law (Forensic Procedures) Amendment Bill of 2009 had been introduced in Parliament, following the recommendations of the Office for Criminal Justice Reform (OCJR). That Bill had dealt with issues related to enhancing the use of fingerprints and interdepartmental cooperation to link different fingerprint databases for crime investigation purposes. That Bill had furthermore provided for the establishment of a DNA database to enhance criminal investigations.
When the 2009 Bill was considered by the Committee, it had decided to split it, and to concentrate on, and pass legislation on, only the fingerprinting aspects, leaving aside the DNA clauses until more comparative research into the DNA issues had been conducted. The “DNA portions” were then referred back to the Minister of Police, so that these could be aligned with the research to be undertaken by the Portfolio Committee, and with any of its findings and recommendations. The Committee undertook a study tour abroad, as referred to by the Minister, accompanied by officials of the SAPS and members of the Office of the Chief State Law Adviser. A policy document was prepared and presented to Parliament in 2012. This was aligned to common practices overseas. The present Bill was then drafted and taken through the Development Committee. The Bill was approved and presented to Cabinet, for approval for introduction to Parliament. The Minister of Justice and Constitutional Development had agreed that the Minister of Police could introduce the Bill.
Drafting of the Bill was done by SAPS Forensic Services, SAPS Legal Services and the Civilian Secretariat of Police, working jointly as a single committee. Consultations on the Bill included the Department of Health, Department of Correctional Services, Department of Justice and Constitutional Development, the National Prosecuting Authority, the Justice, Crime Prevention and Security (JCPS) Director- Generals’ (DGs) Cluster, and the Development Committee, as well as civil society.
Comm Jacobs outlined that this Bill established a DNA database within the SAPS, and recognised the role a DNA database could play in fighting crime. DNA samples would be analysed and profiles stored, for the purposes of detection of crime and the investigation of cases. The Bill also paid attention to the necessary limitations and protections required in terms of human rights.
He noted that the DNA database would consist of five indices:
- A Crime Scene Index of samples taken at a crime scene
- An Arrestees Index
- A Volunteers Index
- A Convicted Offender Index
- An Elimination Index
Comm Jacobs said the Bill allowed for DNA buccal samples to be taken by police officials trained in the taking of samples, in line with prescripts of the Minister of Health. Non-intimate samples included buccal samples taken from under a nail of a person, which may only be taken by police officials with the prescribed training. Intimate samples, excluding buccal samples, may be taken only by a registered medical doctor or a registered nurse. The Bill provided for the expungement of records in matters where the prosecution decided not to prosecute, or where a person had been found not guilty of an offence. The Bill provided for the reporting to Parliament on the DNA database. It placed responsibilities on the National Commissioner to ensure that generally accepted information, security practices and procedures were followed. The Bill further introduced a National Forensic Oversight Board comprising of both governmental and nongovernmental role players. The Board was also tasked with advising the Minister on reviewing legislation, regulations, policy and protocols relating to the use of DNA.
An implementation plan for the Bill had been developed, in tandem with the Bill. The implementation plan had been costed and presented to the JCPS Development Committee. The Departments of Correctional Services and Health were specifically consulted on the plan.
Mr V Ndlovu (IFP) sought elaboration on the indices outlined and training of crime officials.
Maj-Gen A Sheze, SAPS, again outlined the five indices covered in the Bill, and then amplified on them. The Crime Scene Index of samples taken at a crime scene would include any samples obtained from the crime scene itself, as collected by the Investigating Officer. The Arrestees Index made provisions for arrests, after which a sample would be taken from the arrestee. The Volunteers Index contained samples requested or samples volunteered. The Convicted Offender Index would be used if a conviction had been obtained, after the matter had been referred to the court and a finding of guilty was reached, and then samples would be retained under this category. The Elimination Index particularly pertained to the people working with samples, who would be asked to volunteer their samples, in order to prevent contamination.
Ms Irish-Qhobosheane added that samples given by parents of missing children would also fall under the volunteer sample index.
Lieut-Gen Johannes Phahlane, Divisional Commissioner, Forensic Services, SAPS, answered the question on training and employment. It was noted that 710 people were first employed in the 2010/11 financial year, 750 were employed in the 2011/12 financial year, 800 in 2012/13 and an additional 710 people were to be employed in this financial year. As the Minister had said, crime scene management in particular would be capacitated, but plans were also in place to increase the capacity of the forensic laboratories, by employing more forensic analysts. Another key area in which there was extra capacity was to ensure quality management for the purpose of compliance and standardisation. He said there was a requirement to have the broader SAPS members trained, in conjunction with the Department of Health, on the Bill, and the training programme would roll out once finalisation was complete. SAPS had also embarked on an awareness programme, to sensitise people to the implications, before the legislation was finally put in place.
Mr M George (COPE) questioned the consultation processes carried out, and asked if the Department consulted people with interest in these matters outside of government structures.
Ms Irish-Qhobosheane said a Memorandum of Understanding (MOU) was signed with the Department of Health, looking to the universities, which meant only trained officials could take samples. Extensive consultation was carried out outside government, through the Policy and Research Reference Group, for groups with particular interests, such as with the DNA Project.
Mr Ndlovu was worried that the SAPS still had not signed the MOU with the Department of Health and asked how long it would take to do so. He felt the entire process hinged on this and failure to do so could discredit the Department.
Ms Irish-Qhobosheane said the Department was at the final stages of signing the MOU, but there was already an agreement in place that the Department of Health would do the training.
The Chairperson asked whether the Board would play the part of an ethics committee.
Ms Irish-Qhobosheane said the Board would definitely need to look at ethics, as it was an oversight body, as well as setting standards, and it would need to be given the necessary capacity.
Mr George sought discussion on the implementation plan.
Ms M Molebatsi (ANC) questioned the arrestee and crime scene index samples, and said she was concerned about duplication between these two indices.
Gen Sheze noted that the crime scene and arrestee indices were two independent categories unrelated to one another. She explained that the role of the crime scene examiner was to pick up evidence from the crime scene, but not to collect a sample from an individual, as would be the case under the arrestee index. She said there may be a merge between the samples from these two indices.
The Chairperson told the Members that in the following week, a clause by clause evaluation from the Committee Researchers was needed, and there would be a discussion on the implementation plan before engaging with the legislation.
The Chairperson asked if SAPS had considered the use of a warrant to obtain samples, and asked how the officers who were to take the samples would be selected or determined, and what type of police officer this could be. She said the laboratories might be ready, but the collection of samples on the ground might not be ready.
Comm Jacobs spoke about warrants, noting that it was impossible to oblige police officers to obtain warrants for all Schedule One arrests. There was a clear distinction between the types of samples to be taken. For instance, blood samples could only be taken by a doctor or registered nurse. Under certain Acts, like the Firearm Control Act, a warrant also has to be obtained. He felt it was important to look at the practical implications of getting a warrant, and the issue of rights between a buccal sample and a fingerprint.
Mr G Lekgetho (ANC) appreciated the detailed information regarding appointments but he did not hear the date for the 710 appointees in crime scene management. He asked about the requirements for these appointments
Gen Phahlane said that the 710 appointments were made during this financial year but in total, 2 200 people had been appointed to capacitate the SAPS in this area, since the process began in the 2010/11 financial year. These appointments were done in phases, which made the appointment process a little lengthier, but this was necessary for full compliance. He said there was no contradiction and the same process had been spoken to throughout this presentation.
Ms Irish-Qhobosheane said the issue of training could be dealt with in the following week.
The Chairperson thought an indication could be given now.
Gen Sheze explained that the training of taking of samples involved also the members of the Independent Police Investigative Directorate (IPID) and those outside SAPS. Training must be done by the Department of Health, as it was part of the legislative mandate of that Department to deal with the medical practitioners. Within SAPS, the trained officers would go from the commander’s level through to cases and the Visible Policing (VISPOL) environment, while the crime scene managers would be the last to be trained. The MOU outlined the training programme of the different groups, and the processes were almost finalised, which would complete it. At the next session, this issue could be raised again, for an indication of further progress.
Ms D Kohler-Barnard (DA) sought clarity on the fairly contentious issue of familial searching, to find very similar DNA. She asked whether the process was allowed, as it seemed to be in the legislation, and whether it was likely to cause difficulties during the public hearings.
Comm Jacobs responded that familial searches related to evidence available in a certain case, but where the court could be approached to obtain a warrant to carry out a DNA search. For cases based on speculation, SAPS would have to make use of the mechanisms available in the Criminal Procedures Act.
Gen Sheze expanded that familial searches were searches conducted to try to source the originator of a sample, to see who could be associated with a certain profile, for example, if a sample was a common occurrence in a particular group or family. The family would then be approached to provide a sample. She noted there were a number of human rights concerns with this process all over the world, but it was accepted practice in the UK. The concerns particularly related to invasion of privacy. She said the Bill did not talk to familial searches, given the dynamics of the Constitution and Human Rights issues under Section 21.
The Chairperson highlighted that next week’s meeting would deal with the UN Proclamations on terrorism, the clause by clause evaluation from the researchers, as well as the implementation plan. The week thereafter would focus on the public hearings. She highlighted the processes of Parliament. Before hearings, the Bill needed to be advertised for a certain amount of time, and the Committee was now at that stage. The closing date for public comments was 31 May 2013. The comments would be summarised, and those who were invited to make public oral submissions would be invited to present them; at this stage three days had been set aside, although it may be longer. The Committee was then due to jointly meet with the Portfolio Committee on Justice and Constitutional Development, to go through the first part of the Bill, and then the rest of the Bill would be discussed by this Committee alone. She reminded the Committee Secretary to meet with her counterpart from the Justice Committee to secure dates. The Committee Section was beginning compiling files of the relevant documents for Members already.
Directorate for Priority Crime Investigation (DPCI): Draft policy guidelines by Minister of Police: Committee approval
The Chairperson reminded Members that the legislation required Parliament to concur with the policy guidelines for the types of investigations to be conducted by the Directorate for Priority Crime Investigation (DPCI or the Directorate), which had been previously determined by the Ministerial Committee. “Concurrence” meant the Committee Members must apply their minds to the policy guidelines. An official report would be submitted by the Committee. She noted that a Parliamentary legal advisor was present, if an explanation was needed to define the difference between concurrence and approval.
Ms Kohler-Barnard raised concerns that the process was somewhat premature. She pointed out that the legislation had been referred to the Court. She was worried that the Court’s decision could change the situation in the next few months.
The Chairperson did not believe this was a concern. The policy guidelines were subsidiary legislation. The main legislation was already enacted, and guidelines were needed for the DPCI’s work. She wanted Members to think clearly about the guidelines, ask questions, and then the discussion could be taken further.
Ms Irish-Qhobosheane said that an implementation team was established, which involved the DPCI, the Civilian Secretariat for Police, and different sections of SAPS, including finance, organisational and development sections and the Detective Services. The guidelines were drawn up in collaboration, particularly, with the Detective Services, with a clear communication plan for how this would be conveyed to SAPS members, following the approval of guidelines.
Lieut-Gen Anwar Dramat, Deputy National Commissioner: Directorate for Priority Crime Investigations, said that the policy guidelines, once approved by Parliament, would determine the parameters of the mandate of the DPCI. Section 17 K(1) and (2) of the SAPS Act provided that the Minister, with concurrence of Parliament, shall determine policy guidelines for the selection of national priority offences by the National Head of the Directorate, or policy guidelines for the referral to the Directorate by the National Commissioner, or any offence or category of offences for investigation by the Directorate. The consultation process on the guidelines began with the National Management Forum, which requested the re-evaluation of Organised Crime and Commercial Crime on 16 November 2011. The SAPS Amendment Act, No 10 of 2012, came into operation on 14 September 2012. The draft policy guidelines, aligned with that Amendment Act, were drafted and submitted to the National Head of DPCI, were discussed with DPCI and SAPS, and two workshops were conducted between CSP, the Detective Service and the DPCI, in order to discuss and finalise the alignment of their respective responsibilities or mandates, as well as to design a Protocol for the referral of cases between the two entities.
Section 17B of the SAPS Act ensured that the focus of the Directorate was to prevent, combat and investigate national priority offences, in particular, serious organised crime, serious commercial crime and serious corruption. Section 17D(1) of the SAPS Act stated the functions of the Directorate were to prevent, combat and investigate, firstly, National Priority Offences, which were those which, in the opinion of the National Head of the Directorate, needed to be addressed by the Directorate, subject to any policy guidelines issued by the Minister in concurrence with Parliament, and secondly, to investigate selected offences, not limited to offences referred to in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004. Thirdly, the DPCI could investigate any other offence or category of offences referred to it from time to time by the National Commissioner, subject to any policy guidelines issued by the Minister and approved by Parliament.
He explained that “National priority offences” were defined as organised crime, crime that required national prevention or investigation thereof, or crime that required specialised skills in the prevention or investigation thereof, as referred to in section 16(1) of the SAPS Act. These crimes included:
-crimes committed by persons in a position of trust and making use of specialised or exclusive knowledge
-crimes in respect of the revenue or expenditure of the national government|
-crimes in respect of the national economy or the integrity of currencies
-crimes whose proportions required national investigation or prevention, in the national interest
-crimes committed across national and international borders, and crimes where international requests for assistance were made in the investigation or prevention.
National priority offences also included the list of offences mentioned in the Schedule to the Act, which, amongst others, related to the security of the Republic and international obligations of the Republic in respect of terrorism, war crimes, genocide and crimes against humanity, non-proliferation of weapons of mass destruction, non proliferation of firearms, combating of mercenary activities and control of conventional arms.
Lieut-Gen Dramat said that, in essence, the policy guidelines provided for offences selected by the National Head of the Directorate, offences that must be addressed by the Directorate, offences that may be addressed by the Directorate, offences referred to the Directorate by the National Commissioner, the conclusion of protocol(s) for the identification of possible offences that may be selected by the National Head of the Directorate, protocol(s) in respect of national priority offences not selected by the National Head, and transitional arrangements.
He then outlined how these offences were to be selected by the National Head. The DPCI must focus on crimes of a considerable extent and scope, in other words “serious or high level crimes”. Selection was to be informed by crime threat assessments. The National Head must conclude operational protocol(s) with Provincial Commissioners and Divisional Commissioners, to identify matters to be addressed by the Directorate. An offence, to be considered as “a selected offence” must therefore be a national priority offence as defined, and its investigation must be aligned with Ministerial or SAPS strategic operational priorities. Selected offences must comply with one or more of the following criteria:
-the offence was committed or planned in more than one province or outside the borders of the Republic by the same perpetrators
-the offence had an impact on the revenue or expenditure of the national government
-the offence had an impact on the national economy or the integrity of currencies
-the offence was one in respect of which an international police agency, or the police of a foreign country had requested an investigation in the Republic of South Africa, by SAPS
-the offence was one that involved mutual legal assistance and / or extradition proceedings
-the prevention or investigation of the offence required the application of specialised skills, which were only available in, or could only be sourced by, the Directorate.
Lieut-Gen Dramat explained that offences that must be addressed by the Directorate, as an exclusive responsibility, included:
-any offence referred to in paragraph (a) of the definition of “specified offence” in the Protection of Constitutional Democracy against Terrorist and Related Activities Act of 2004
-any offence referred to in Schedule 1 to the Implementation of the Rome Statute of the International Criminal Court Act 2002
-any offence referred to in the Non-Proliferation of Weapons of Mass Destruction Act of 1993
-any offence referred to in the Regulation of Foreign Military Assistance Act, 1998 or the Prohibition of Mercenary Activities and the Regulation of Certain Activities in Country of Armed Conflict Act, 2006.
He highlighted that the DPCI would not address all “national priority offences”, but only those which, in the opinion of the National Head, needed to be addressed by the Directorate.
These offences, not selected, included offences which a Provincial Commissioner requested the National Head to prevent or investigate, which may be addressed by the Directorate, based on certain criteria. The criteria included monetary value, complexity of the case, extent of the case, public interest, urgency and organised fashion.
He said offences referred by the National Commissioner must be aligned with strategic priorities of the Department of Police/SAPS, must be in writing and where possible, supported by documentary evidence of such offence. The aim of the investigation must be ensuring that serious organised crime, commercial crime and corruption were being attended to by the Directorate.
National Priority offences not selected by the National Head, including protocols between the National Head and the relevant Provincial Commissioner as well as Divisional Commissioners, must be concluded to ensure that all offences received attention. Examples were:
- offences which a Provincial Commissioner requested the National Head of the Directorate to prevent or investigate, but to which the National Head did not accede to
-any offence referred to in Chapters 2, 3, and 4 of the Prevention of Organised Crime Act, 1998
-any offence referred to in section 13(f) of the Drugs and Drug Trafficking Act of 1992
-any offence related to the dealing in or smuggling of ammunition, firearms, explosives or armaments and the unlawful possession of such firearms, explosives or armament
-any offence contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act of 2004
-any offence where the punishment may be imprisonment for life
-offences reported to the Directorate under the Prevention and Combating of Corrupt Activities Act, 2004.
Lieut-Gen Dramat discussed the protocol for the referral of cases between the Detective Services and the Directorate. The protocol was adopted to provide for a mechanism in terms of which potential national priority offences, which were investigated by or reported to the Detective Service, could be referred to the Directorate. Secondly, the protocol intended to provide a mechanism in terms of which national priority offences not complying with the selection criteria of the Directorate could be referred to the Detective Service for investigation.
Transitional arrangements meant that ongoing criminal investigations of the Directorate must be finalised by the Directorate, until such time as sufficient capacity had been created within the Detective Services to deal with offences that fell outside the scope of these guidelines. An implementation plan for the guidelines would be provided to the Minster of Police, within one month of approval of the guidelines by Parliament.
Ms Molebatsi wanted an explanation of a “crime threat assessment”.
Lieut Gen Dramat explained that a crime scene threat was an appreciation and assessment of the extent of the crime threat, and this assessment would be carried out to assess who were the key players in a specific crime threat. The assessment would also give an indication of the extent of the threat, where it occurred and possible individuals involved. Such threats could be in narcotics, illicit cigarette smuggling on cash-in-transit robberies.
Mr Ndlovu sought an elaboration on national priority offences not selected by the National Head, and the protocol signed between the DPCI and the Provincial Commissioners. He asked if any processes had been done to ensure that they understood what was required of them in terms of the guidelines.
Lieut-Gen Dramat said a set of proposed protocols were outlined with the Detective Services, subject to the approval of the guidelines, so there was essentially a working document subject to approval of the guidelines before final adoption of the protocols. These protocols were aligned with the current policy guidelines.
Mr Lekgetho wanted more detail on the transitional arrangements, and how “sufficient capacity” was measured, and when it would happen.
Lieut-Gen Dramat noted that, in relation to the transitional arrangements, the DPCI did have cases that fell outside of its mandate so the transitional arrangements were in place to ensure there was conclusion of the cases currently with the DPCI. Some level of expertise was needed for some of the cases. Capacity needed to be built for detectives to deal with the cases falling outside of the mandate of the DPCI. He outlined that there was an implementation team who would look at issues of capacity and human resources, as a result of the implementation of the guidelines, but this was very much waiting on the approval of the guidelines.
Mr Lekgetho felt that “corruption was corruption” and asked how the varying degrees of corruption were reached or measured.
Lieut-Gen Dramat stated that the Act defined that the DPCI was to deal with serious corruption, so the different categories were in place to define which corruption, and which other crime, was to be investigated by the DPCI, and which was to be investigated by Detective Services.
Mr George wanted clarity on what would happen if the National Commissioner, for instance, did not refer crime to the DPCI, if colleagues were involved. He emphasised he was speaking in general and did not want the question attached to any specific person.
Lieut-Gen Dramat said if the National Commissioner did not refer, the Investigating Head could still direct a particular investigation, which meant the process was not dependent only on referral by the National Commissioner.
Ms D Sibiya (ANC) sought clarity on what happened when a certain offence fell outside of the operations of the Department of Police.
Lieut-Gen Dramat could not, off the cuff, think of any such investigations that would be conducted outside of SAPS, except perhaps cases being investigated by the Special Investigating Unit (SIU), which was governed by proclamations, and investigations referred by the Public Protector. Meetings were held amongst the relevant bodies to ensure that there was no duplication.
The Chairperson wanted an idea of the extent of cases currently under the investigation of the DPCI, which they believed should not fall under their auspices.
Lieut-Gen Dramat said he did not have exact figures at the moment. He explained that a referral committee, comprised of DPCI provincial heads, provincial detective heads and different unit commanders in the provinces, was to look at cases currently with DPCI, and begin to apply the current criteria to assess which cases were to be investigated by the DPCI. Thereafter, an assessment would be done of the personnel strengths.
Comm Jacobs outlined that the three main role players were the provincial commissioners, the National Commissioner and the National Head. The protocols made provision for the interaction between the provincial and national levels to get to the specific crimes mentioned in Section 16.
Ms Irish- Qhobosheane also clarified that the provisions were intended to ensure that any cases not handled by the DPCI did not “fall into a hole” and reach the situation where no one handled the case. This was why there was a need for protocols. In relation to specific cases, she said a huge proportion of the commercial crimes had fallen to the DPCI, which meant that a lot of the capacity for investigating commercial crimes rested with the DPCI, although some of the less high-profile or less highly-organised aspects of commercial crimes might be handled by SAPS. For this reason, there was also a need to have capacity in SAPS.
Mr George asked who was investigating the raiding of the Public Protector’s office.
Lieut-Gen Dramat was not aware of an investigation by the DPCI into the Public Protector.
Mr Ndlovu sought clarity on a specific paragraph in the presentation stating: “offences which a Provincial Commissioner requested the National Head of the Directorate to prevent or investigate but to which the National Head did not accede to”, and its practical meaning.
The Chairperson said the fact of the matter was that the final decision rested with the National Head and not anybody else. She asked if there were protocols in place with the National Commissioner, for the cases the DPCI denied investigating. If so, then she enquired how far the DPCI was with drawing the protocols and when they would be finalised. She asked if the new guidelines and capacity would be able to meet the challenges.
Ms Kohler-Barnard asked what happened if a local councillor needed protection, and was not given it, and if that person, for example, could approach the DPCI as the next step.
The Chairperson felt this question was a bit misplaced, but nonetheless asked that it be responded to.
Comm Jacobs asked for further clarity.
Ms Kohler-Barnard clarified that, in the matter that she had referred to, Crime Intelligence did report but the councillors were questioning the veracity of the Crime Intelligence report.
Comm Jacobs said there was a different section dealing with this, Protection and Community Services, so the Crime Intelligence report would go there.
The Chairperson suggested that this point be discussed by Comm Jacobs and Ms Kohler-Barnard outside the meeting.
Mr Ndlovu asked if capacity referred to national or provincial. He felt capacity was very important and questioned if it was available now.
Lieut-Gen Dramat explained how cases could be selected, by using a hypothetical example that the Provincial Head in Kwazulu-Natal might, upon noting a spate of armed robberies in his cluster, then approach the National Head and request investigation by the DPCI. If the National Head felt it did not fall within the scope of the DPCI, he could refer it back to the Provincial Head for investigation. DPCI played the role of a consultant, to offer guidance to the Provincial Heads or station detectives on challenging matters. He confirmed that protocols were concluded, and covered issues such as what happened when the DPCI referred and accepted, and what happened when the DPCI did not accede. One of the sources of threat assessments was Crime Intelligence and State Security, where engagement with all the stakeholders occurred through the Priority Crime Management Centre.
Lieut-Gen Dramat confirmed that the DPCI currently did have crime investigative capacity in all nine provinces, and in some provinces there was a wide geographical spread of DPCI offices. The focus of the capacity was very much on organised and commercial crime, as this was, historically, an area in which its staff had particularly strengths. Capacity was lacking in anti-corruption investigations but DPCI was working on this.
He highlighted the Priority Crime Management Centres, which were completely new and still in their infancy stages. These Centres went along with the Asset Forfeiture Unit, which was also new and small at this stage, although there was capacity. It was investigating a sizable portion of commercial crimes (14 000 current case load) and organised crime (23 000 current case load).
He also explained that it was possible that if there was a movement of caseload, there might be a short-term movement of personnel to follow as he felt there was insufficient capacity to deal with commercial and organised crime phenomena even within the DPCI. He said this capacity needed to be built over a certain period.
Mr George was concerned about the profile and publicity around the DPCI. He noted there was not as much talk about the Hawks, or the Directorate, as there had been with the former unit, the Scorpions. He asked if DPCI was doing anything around this.
The Chairperson agreed and felt there was an inability by the DPCI to communicate its successes. She noted the problems of communication with the previous DPCI spokesperson. She said there was a specific identity given to the Scorpions, and although that was not entirely relevant to this discussion, it needed to be taken into account. She said the DPCI was going to be criticised if it did not communicate its successes.
Lieut-Gen Dramat said there was no DPCI-specific communication at the moment, as it was structured, as such, on the “mother body”. There were proposed plans to institute communication capacity to communicate the successes. He noted that a number of significant successes were achieved in the areas of narcotics and organised crime, and agreed that the challenge was in communicating these successes. He got a sense that on the ground, there was a sense of confidence in the DPCI from ordinary members of communities, based on the reports his office received of cases being referred to the DPCI. He completely agreed that the image of the Hawks needed to be publicised and strengthened, to further enhance the confidence people had in the DPCI.
Mr Ndlovu asked for the answer to the question of capacity to be repeated.
The Chairperson said that Comm Dramat had said that DPCI did have capacity in all nine provinces, although it was lacking in some areas, but there would be a migration of SAPS toward the Hawks to strengthen the numbers of the Hawks in the short-term.
Lieut-Gen Dramat said the current movement of personnel was from the current DPCI to the SAPS, and not the other way round, as the capacity was currently in the DPCI.
Mr Ndlovu felt this migration process caused a problem, considering that the capacity and publicity of the DPCI was less than in SAPS.
The Chairperson said the Committee, in particular, needed to know if DPCI had capacity to deal with the crimes in the re-defined areas. The fact that SAPS lacked capacity in investigative areas was a problem on its own. She asked why SAPS was not training people within its own environment to be able to deal with this, as it was the case that SAPS did not know about the matter.
Lieut-Gen Dramat said that DPCI, currently, had capacity to deal with the mandate as defined, but there were also certain shortcomings in terms of the financial and asset forfeiture section, the Priority Crime Management Centres, and the anti-corruption investigation component. There was capacity to deal with the mandate as defined. However, it was necessary to increase the capacity of detectives in SAPS in the immediate term. The protocol would also allow for the DPCI to acquire the skills it needed – for instance, those in cybercrime, which was in its infancy stage. There were people in this area, but they did not have the right skills at this point in time, and there was a need to attract skilled people.
Ms Irish-Qhobosheane said the migration could lead to the development of capacity in the DPCI, by bringing in people from SAPS, other government departments and training existing personnel, but the implementation team was looking at this.
The Chairperson said it may be necessary to have a meeting with the implementation team, even if this could not happen in this quarter, to consider the financial implications, so that Parliament could then offer support. She noted that the DPCI would need to brief the Committee further on where exactly it was, in the short, medium and long-term implementation plans, and what needed to be done to capacitate fully.
Adoption of Report
The draft Report of the Portfolio Committee on Police, on the Policy Guidelines, was then tabled for consideration.
Mr George asked the legal advisors would explain the difference between “concurrence” and “approval”.
The Chairperson asked the legal advisor to do so.
Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Advisor, explained that “concurrence” meant a meeting of the minds. In this instance, the power of determining the guidelines resided with the Minister, in terms of the Constitution, but the Committee, as part of its oversight function, as stated in the Act, must concur. If the Committee was not happy with some issues it could make proposals for the Minister to consider. If he did consider those favourably, there would be a meeting of the minds between the Committee and the Minister, and concurrence. “Approval” was more authoritative. This concept was found mainly in delegated legislation, such as regulations, where the power lay with Parliament, in terms of the Constitution, while Ministers had the delegated function to make the regulations and then seek approval of Parliament.
Members adopted the Report.
The Chairperson noted that next week’s meeting would focus on the UN Declarations and the clause by clause evaluation of the DNA Bill, by the researchers. She asked that some members from the Department should be present to answer any questions of clarity. On Thursday, the budget debate for the Department of Police was scheduled.
The meeting was adjourned.
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