Review of SAPS Act: briefing

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
11 September 2002
REVIEW OF SAPS ACT: BRIEFING

Chairperson: Mr M George (ANC)

Documents handed out
Report on Policy Issues in SAPS Act
Final Report on Recommended Options

SUMMARY
The Secretariat for Safety and Security, the Independent Complaints Directorate and SAPS briefly explained to the Committee the process in drafting the Report. Three separate documents have been presented because, due to the very nature of the work done by each body, it is impossible to reach consensus on all issues. The intention is, however, to have a constructive relationship between all three bodies.

The Committee expressed its disappointment at the manner in which the Report had been compiled because those involved were given two years to finalise it, yet they still submitted an incomplete document to Members. Those three bodies have to resolve any existing differences between themselves, and the final Report has to reflect the position of the Department of Safety and Security as a whole. The three bodies will be given two more months to finalise the Report and it would then be submitted to this Committee with the Minister's signature, which will indicate that he has given political direction to the matter.

It was suggested that the three bodies are not disclosing to Members those matters at the heart of the differences between their views, and perhaps the Minister has to intervene here to elicit such disclosure.

MINUTES
The Chair stated that the Report on the Review of the SAPS Act (the Report) is aimed at identifying those areas of that Act that are no longer relevant. It is also to use the experiences of the last two years, the time span of the report, to strengthen the areas that will deal with crime and criminals. The report has thus been awaited for the last two years but it has not been forthcoming, because there was uncertainty as to whether SAPS or the Secretariat of Safety and Security (the Secretariat) would be responsible for compiling the report. It was eventually drafted by the Secretariat who then circulated it to the Committee to be discussed during this meeting.

One of the aspects to be focused on is that the amendments to the current SAPS Act could be so extensive that, should the Report be adopted by this Committee, a new SAPS Act might have to be drafted. It appeared, from careful consideration of the Report, that it reflects the views of the Secretariat alone. SAPS and the Independent Complaints Directorate (ICD) do not seem to be entirely satisfied with the Report and have since stated that they would make their own document available, and their report was then submitted to Members on 10 September.

A second problem in the documents made available relates to the recommendations from the Secretariat, the ICD and SAPS as the three components of the Department of Safety and Security (the Department), as each one has made recommendations. It thus seems necessary that each component would have to brief this Committee on its position before the process can continue, as Members would then decide on the route to be followed on the basis of these briefings.

Ms A Van Wyk (UDM) stated that it is very necessary to hear from the Secretariat, the ICD and SAPS on the position before the briefing on the Report.

The Chair requested each component to brief the Committee on the process to be followed and to not focus on the details of the Report.

Briefing by the Secretariat for Safety and Security
Mr Rasegatla, from the Secretariat, introduced his delegation to the Committee: Mr Solomon Maila, Executive Assistant and Mr A Soman, the Secretariat's Director of Legal Services.

Previously, this Committee was not satisfied with the timeframe set for the Act and it was returned to the parties involved to arrive at a shorter timeframe. The Secretariat then worked with the ICD and SAPS on the Report, and this document contains those issues on which the entire Department has agreed. The Secretariat then further elaborated on that document and invited the provincial secretariats in compiling the document that elaborated on various options, and this is contained in the document entitled "Final Report on Recommended Options". Yet the ICD and SAPS were not satisfied with this document and the parties therefore had to meet again to discuss the drafting of another document: the Report on Policy Issues on the Final Document. It was also decided that each would compile and submit its own recommendations.

Briefing by the Independent Complaints Directorate
Ms Karen McKenzie introduced herself and her colleague Dr Johan Strydom, the ICD Head of Legal Services, and stated that Mr Rasegatla has explained the process regarding the three documents. There are areas in terms of which all three agree. There are also those areas in which consensus has not been reached, and this is to be expected because of the nature of the work done by each component as it is difficult to reach consensus on all the issues. The three documents are thus a generation of ideas and are not final documents but constitute a work in progress, and consultation between those involved would continue.

Furthermore, the Minister of Safety and Security (the Minister) has himself not been brought on board fully here, so he would also have to be consulted as to his role in this process.

Briefing by the South African Police Services
Mr Geldenhuys introduced his colleague from SAPS Legal Services, Dr Joubert, and informed Members that he would not be repeating what has already been said by both Mr Rasegatla and Ms McKenzie. Soon after the new Minister had been appointment he called for this process to be expedited so that the review of the three components of the Department and their different mandates. The intention is to have a constructive relationship between these three components but a situation will never arise in which all three agree on all the issues, and for this reason it was decided that the Minister would be consulted on the various options available. The Minister would then provide political direction on these issues because it was recognised that the three components would not be able to reach consensus on the issues by themselves.

Yet the Minister has not yet had the opportunity to consider this matter and the three components now express different opinions. It is hoped that guidance would be offered by the Committee as well.

Discussion
Mr A Maziya (ANC) stated that he was a "little disturbed" at the manner in which the Report was presented to the Committee. In his view, the three components are supposed to co-operate with one another, especially when dealing with matters relating to the lives of those protecting the country. The Report has not been compiled with the necessary degree of seriousness.

He acknowledged the role of the Secretariat in reviewing the SAPS Act, but it seemed that the Secretariat was not granted sufficient independence to not consult with the other components within the Department. The actual position of SAPS is not even certain, which is important, because it was stated that the political head of the Department mandated the three components to complete the Report so that he could evaluate just how separate these three components are. Two years is a long time within which to reach consensus even for those who cannot agree to find a common ground, and this has not been put in place. It seems to be a matter of "who is bigger and who is the junior" and also the components "demonstrating their muscle", in an attempt to frustrate the process.

It is uncertain whether the three components can lead the Committee, and it is thus proposed that Members not proceed with the Report because of the disjointed approach presented by the three components. The result is that the Committee is then given a lot of work to do in this regard, which the three components were supposed to have done themselves. It is of no benefit to talk to three separate documents and they should be consolidated into one document, even if that single document does contain differing views.

It is thus proposed that this Committee grants the three components two months to compile one Report, and they should start today. That document should reflect that, although the three might have different views, it is necessary to work together when matters of state interest are involved. This document must then be signed by the Minister and it can then be discussed by the Committee. It has to be remembered that the Report is an important document because it carries the lives of those who risk their own lives to protect those of their fellow South Africans, and if the document is not respected those police officials will continue to die.

Adv P Swart (DP) stated that he agrees with the proposal put forward by Mr Maziya, but for completely different reasons. Three different documents have not been presented to the Committee, but instead one single document that expresses differing views. All agree that the document will have to be submitted to the Minister for political guidance.

Legislation originates with Cabinet and is then handed over to Parliament to process after these things are sorted out but, because they have not yet been sorted out by the three components, this Committee cannot proceed. The Minister now needs to use his political discretion to resolve those issues which have not been agreed to by the three components, and that report would then be forwarded to this Committee as a draft Bill. It was cause for concern that nothing has happened over the past two years until the new Minister called for the process to be expedited.

The alternative to not proceeding with the Report is for the Committee to discuss it and interact with the three components present at this meeting on that document, in order to draft another document containing the points of view of this Committee. Yet this is out of line with the normal legislative process.

Ms A Van Wyk (UDM) agreed with the proposals put forward but disagreed with Adv Swart in that Cabinet alone does not make law, because this review process was initiated upon recommendation by this Committee. Every Committee has the right to make law. The problem here, however, is that these very same differences go to the core of SAPS and the Report makes sweeping statements which are essentially policy issues, and this Committee has to look at these issues. Furthermore, SAPS stated that it has been transformed from the police force to the police service but it becomes apparent from delegates present at this meeting that such transformation has not been truly effected, and this has to be addressed.

The document itself is very helpful in allowing Members to focus on the main issues that need to be addressed, but when the final document is made available to the Committee it should also include those provisions which are not in line with the Constitution, the Public Service Act and the White Paper and so forth. This would enable Members to refer to the matter in total, and this would provide for more sensible reading.

Many of the differences between the views of the three components lies with policy considerations, and the best way to proceed would be to use the recommendations proposed in the Report as a suggestion. This is not to say that the Committee will necessarily accept the Report, but it would at least provide guidance. The fact that a new Minister has been appointed should no longer be used as an excuse for failure to deliver, and this has too often become the case over the past two weeks. Should this be allowed to continue, the country would be moving to very dangerous ground.

Mr J Schippers (NNP) contended that it is not important whether two or three different views being expressed in the Report, but what is most important is that consensus has not been reached by all three components. It is thus suggested that the three components endeavour to reach consensus amongst themselves, and they should also get the Minister's view on the matter. Mr Maziya's proposal that they be granted two months within which to finalise this matter and obtain the Minister's approval is supported.

Furthermore, it is true, as contended earlier by Ms Van Wyk, that there are important policy issues that have to be taken on board.

Mr M Booi (ANC) stated that this is an interesting matter because it revolves around policy concerns on which the three components are not delivering in order to put in place a system or structure that would help South Africa.

Members of this Committee are from different political parties and, even though they do not agree on all matters, they do realise that each has a single goal to fight crime in South Africa, and thus work together on matters that affect the whole of South Africa.

It is important for this Members to evaluate the processes in place and experiences of law enforcement in foreign jurisdictions. Furthermore, Mr Booi stated that he had asked the German police service whether they too have a police forum, only to be met with laughter because no such body exists in Germany. Yet South Africa does have such a body and even encourages citizen involvement in policy matters.

Mr E Maserumule (ANC) suggested that the Chair should consult with the Minister so that he might not only provide political guidance but also ensure proper co-ordination, because the fear here is that the three components do not agree on matters which they are not disclosing to Members. The Minister thus has to ensure that the three components inform this Committee on exactly which matters they are unable to agree, because if this proper consultation is not instilled the three components would then present the same problem to the Committee in two months time.

Furthermore, the Communications Portfolio Committee has passed legislation authorising the monitoring of electronic communications in an effort to address crime in South Africa. Yet, prior to the September 11 attacks, the United States government dismissed such legislative initiatives as being incapable of enforcing. Since the attack that government has reconsidered this matter and agrees with the steps taken by the South African Parliament, as small as it is.

The Chair contended that all clearly agree that the documents presented to the Committee have to be sent back to the three components for reconsideration. The revised document which they would then have to submit to this Committee will have to be signed by the Minister, and this will serve as a clear indication that he has provided political guidance.

The ICD, the Secretariat and SAPS have to realise that they remain three components within the Department and do not constitute separate departments by themselves, as much as they would like to think of themselves in this light. The revised document therefore has to come from the Department and reflect its view as a whole, and any difference of views between the three components must be sorted out internally amongst those three components themselves. This Committee would not have a problem should the document then states the different views expressed on a particular issue, but at the end of the day the document has to reflect the view of the Department.

Furthermore, the Minister is the political head of the Department, yet it appears that the three components have decided to ignore his involvement in this process. What are the reasons for this? This has contributed to the uncertainty.

The proposal from Mr Maziya that the three components be given a further two months is a sound one, as this would then grant them ample time to review the matter. This would also fit in nicely with the Committee programme, because the Explosives Act and the Anti-Terrorism legislation has to be processed as soon as possible.

The Committee would be failing its mandate if it does not express its disappointment at the current state of affairs. Those involved here were given two years to review the SAPS Act, yet at the end of that period they have still come before this Committee without being fully prepared. This does not create a good image of the Department, whatever the excuses offered and irrespective of whether there was proper consultation or not. It seems that the process was, as contended earlier by Ms Van Wyk, "woken up" by Minister Nqakula. In fact at a much earlier stage SAPS itself requested that it be tasked with reviewing the SAPS Act and, in retrospect, it should have been allowed to do so. This review will not be rushed, and it will be ensured that a proper job is done.

The document should not concern itself with administrative issues because the matter at hand only deals with policy considerations aimed at ensuring that the SAPS function properly, and is also aimed at making the lives of criminals very difficult. The criminal element in South Africa will not disappear, but while the three components are fighting amongst themselves the criminals are getting stronger.

Mr Schippers requested that the revised document be made available to Members one week before the meeting in which it will be discussed, because it would first have to be scrutinised by his legal advisor.

This was agreed to.

There were no further questions or comments and the meeting was adjourned.