Listing of Taliban and Al Qaeda as terrorist organisations: SAPS briefing; Civilian Secretariat for Police Regulations: briefing

Meeting report

SAPS briefing on the Listing by Taliban and Al Qaida Sanctions
Brigadier Bert Van der Walt, SAPS Legal Advisor, said the listing of the Taliban and Al Qaida was to ensure that they were denied access to funding, access to arms and free travel. The Protection of Constitutional Democracy Against Terrorists and Related Activities (POCDATARA) Act provided for the enforcement of the sanctions.  The proclamation had been tabled and gazetted since August 2015. Section 26 of the POCDATARA Act said every proclamation had to be tabled in Parliament for consideration and a decision and hence the request by the Committee for the briefing. The list of names was available on the SAPS website.

The UN resolution had distinguished between the Taliban and Al Qaida and they were subdivided into individual and entity categories. UN member states were encouraged to send nominations for the list which would then be verified before a recommendation to be added to the list or not was made. Mr van der Walt gave the example of a recent case in South Africa where the US had wanted two brothers to be included on the list, but South Africa had provided sufficient reason why they should not be listed. To de-list, a petitioner had to submit a request to the office of the Ombud. If one member state objected, the request would be rejected. If the individual was deceased, a decision would be taken on any frozen assets.

Discussion
The Chairperson asked if SAPS was the coordinator and what the involvement of other bodies was.

Mr P Mhlongo (EFF) was concerned that the focus was on Al Qaida, when it was an entity that continually transformed itself. How would SAPS deal with formations with a different name? He had the feeling that there was no focus on terrorist threats on the African continent, for example Boko Haram, and that it was more concerned about the western countries.

Mr Z Mbhele (DA) asked whether the National Intelligence Coordinating Committee (NICOC) would be where the operational protocol was located and whether the lead agency had been identified.

Brigadier Van der Walt said SAPS would be the lead agency and administrator and NICOC would provide the intelligence portion. 

The question of the name of the organisation was an issue recognised internationally and the UN Security Council had included ISIL to the list. Organisations in Africa, like Boko Haram, were relevant only insofar they were attached to the three organisations mentioned, there was no separate list.

The Chairperson asked whether the Security Council's permanent or rotating members were the responsible body.

Brigadier van der Walt said it was the obligation of member states who picked up any activity to inform the UN. Most of the information was coordinated through Interpol.

Mr J Maake (ANC) asked what the obligations were if a name was given to the UN.

Brigadier Van der Walt said member states gathered information which was circulated to other member states.

Mr Mhlongo asked if there was a regional security charter where local security forces could have an influence on a regional level.

The Chairperson asked what listings there were. Regarding the case of the two South Africans, he asked whether the interaction had been at a bilateral level or at a full committee level.

Brigadier Van der Walt said organisations could submit names or reasons to be de-listed.

Mr Maake said he was confused. Was the terrorist list a US list or a UN list.

Brigadier Van der Walt said in the South African case it would be a bilateral, but members would be invited to comment. If there was one objection, then it would be rejected. However, the Office of the Ombud could still be approached.

The Chairperson said the Committee would compile a report for the National Assembly.

Civilian Secretariat for Police Service
Mr Alvin Rapea, Acting Secretary, Civilian Secretariat for Police Service, said the regulations had been tabled before the municipal elections and the Civilian Secretariat was obliged to present it to the Committee on Police.

Mr Amichand Soman, Director: Legislation, said the regulations were initially tabled in 2014 and had re-tabled in 2016 with slight amendments after consultations with provincial secretariats. The regulations were applicable to both national and provincial secretariats. Provincial Secretariats needed to align their plans to the regulations.

The Civilian Secretariat was empowered, through the regulations, to request access and obtain information, so as to deal with complaints. Corporate governance was important because the Civilian Secretariat operated at a national level and did not have a provincial presence. The regulations provided for the appointment of employees of the Civilian Secretariat and Provincial Secretariat and also provided for personnel to be seconded to the Civilian Secretariat. Appointment certificates were issued to category A staff who dealt with the core functions and they had access to information.

The regulations talked to the kind and manner of reports and the content thereof. The secretariat dealt with complaints on poor service delivery and the procedure to resolve these complaints as well as the communication protocols with the complainant. The findings and recommendations may be communicated to the police so that they could give effect to it. If the police did not give effect to them, the police had to provide written reasons within ten days of receipt of the report and recommendations.

The regulations spoke to the aspects of monitoring and evaluation. The Civilian Secretariat did not have a mandate to liaise directly with the police commissioner, it had to report directly to the Minister. On standards and procedures, there were reference groups which played an advisory role on for example where there were policy gaps or acted as a forum for debate. Provinces could be invited to be part of the groups in an ex officio capacity.  The regulations also spoke to the cooperation framework, the consultative forum and the senior management forum.

Discussion
The Chairperson asked if the Civilian Secretariat was ready to administer the regulations, especially given its staff capacity. What were the cost implications of administering the regulations? How was the issue of access going to be dealt with, as that was a big issue with the police? Were there implementation protocols for communication?

Ms L Mabija (ANC) asked if the Senior Management Forum was already in place and if so, was it effective enough.

Mr Mbhele said the Western Cape Province had established a police ombudsman. Was the Civilian Secretariat thinking of replicating this idea throughout the country? Was there an overlap between the MinMEC and the Senior Management forum? On section 21 and the evaluation of complaints, he asked what the reasons were for sub-clauses (b), (c) and (d). Were there other police services falling outside of these sub-clauses? Complainants should have the ability to go directly to the Civilian Secretariat without having first to go through internal police remedies because the point of the Civilian Secretariat was to provide an alternate mechanism. He said there might be gaps in section 51 on cooperation with the police.

Mr Mhlongo said policing was a national competence, yet the appointment of the head of Provincial Secretariats was a prerogative of the MEC and hence the success or failure rested with the provinces. This was calling for disorder in monitoring because political influence could be brought to bear on particular cases and therefore policy would not be streamlined. The regulation should be reworked.

Mr Maake asked what mandatory steps needed to be taken until they were proclaimed. What powers did the Civilian Secretariat have over provincial heads? Did the Civilian Secretariat have national representation at Provincial Secretariats?

Ms M Mmola (ANC) asked for an indication of the current status of security screening at the Civilian Secretariat and Provincial Secretariat. Regulation 10 stipulated that the annual report of the Civilian Secretariat should include a variety of aspects regarding its mandate. What format would be complied with?

The Chairperson said mention had been made in the presentation of the consultative forum. Should it have been the HOD forum? The IPID Act provided for a consultative forum but there was none in the Civilian Secretariat act. Should that not be in the Regulations? In terms of ensuring that there was cooperation and in terms of intergovernmental relations, why was there no provision for that in the regulations especially as it was the lead agency?

Mr Rapea said that the previous day the Civilian Secretariat had met with IPID at a forum meeting on the amendments to the IPID Act and revising the terms of reference so that it could assist the Civilian Secretariat. The legal team said the forum had to amend the act to address some of the issues but the meeting’s resolution was that it should be in the regulations. Initially the regulations were named Civilian Secretariat and Provincial Secretariat regulations.

On the status of vetting, Mr Rapea said a report had been complied. All senior management had been security vetted. He did not know about the vetting at provincial level.

The Chairperson said that that was where the issue with the police was, on having access to information.

Mr Rapea said he would get the information and send it to the Committee.

On the issue of powers over the province, the Civilian Secretariat was using the Intergovernmental Relations Framework act. The Civilian Secretariat had no authority over the province. The Provincial Secretariat reported to the head of department who reported to the Minister. Civilian Secretariat was utilising the forums to ensure the legislation was implemented.

The issue of the ombud, as in the Western Cape had been discussed at the HOD meeting. The Civilian Secretariat had requested that the Western Cape submit the report of the ombud and the HODs were looking into the report. It was on the HOD agenda and on the MinMEC agenda.

Mr Mhlongo said he could not see the reason for having a Civilian Secretariat where its powers were depleted at provincial level. The Civilian Secretariat was at the mercy of the provinces which had failed to appoint provincial heads as typified in KZN. The input of legal advisors was needed otherwise it would be a failure on the part of the Committee and would not be doing justice to the citizens of South Africa.

On overlap of functions, Mr Rapea said the HOD forum was a support to the MinMEC and Senior Management Forum and met on a quarterly basis. Every two months it met with the Provincial Secretariat and a report was tabled at the HOD forum.

On readiness of the Civilian Secretariat, the budget had been taken into consideration and it was finalising the filling of positions of director and deputy director of IT. Iit did not have all the capacity it needed. Treasury had said it would need 500 people.

The Chairperson asked if the Presidential Hotline would be a function of Civilian Secretariat. Would there be a call centre and a web presence, because the reality was that a lot of complaints would be received.

Mr Rapea said the hotline was not going to be phased out. The Civilian Secretariat had not discussed whether it needed a call centre as it required lots of manpower, but would consider it.

Mr Soman said the Civilian Secretariat was not an implementing agency, it had an oversight role.

Provincial Secretariats were required to be established within 18 months from 1 December 2015, but this was subject to the Provincial Secretariat having the competencies and capabilities in place.

Regarding the capacity to implement, the recent Constitutional Court judgement against the Minister in the Khayelitsha case dealt with provincial entitlement. Each province was entitled to monitor police conduct and assess the effectiveness of visible policing. The Civilian Secretariat could not interfere with that; therefore, the Provincial Secretariat was not a sub body of the Civilian Secretariat. Provinces had to report to the Minister. The Civilian Secretariat was bound by the Constitution.

On evaluation of complaints, the Civilian Secretariat had a mandate over SAPS but not over the metro police or the municipal police.

Complaints could be made directly to the Civilian Secretariat, but that if it was a discipline issue, the Civilian Secretariat had to take into account SAPS' own dealing of the matter.

There were gaps with regard to clause 51. The Civilian Secretariat could only recommend disciplinary action; it could not call for criminal sanction.

The SA police was a national competency but the Minister needed to take provinces into account even though he had overall responsibility, hence the establishment of MinMEC councils.

Regarding section 18, MEC's had to appoint the head of Provincial Secretariats in consultation with the Minister.

Regarding Mr Maake's question on the process, the Minister had to submit the regulations to Parliament but prior to that he had to submit it to the provinces.

The Provincial Secretariat had a degree of autonomy. There was no Civilian Secretariat representation at the Provincial Secretariat but there was collaboration or there could be secondment.

Mr Mhlongo asked what the wisdom was in not following the IPID form. Did the Civilian Secretariat fund Provincial Secretariat? If yes, then how could it fund it but not be accountable to Civilian Secretariat?

Mr Maake asked whether the Provincial Secretariat heads were appointed after consultation or in consultation with the Minister. He agreed with Mr Mhlongo, it would be correct to come with recommendations to change the regulations. If the Civilian Secretariat had no mandate over the metro and municipal police, did these bodies have their own complaints structures? Did provincial heads report to their provincial legislatures?

The Chairperson said there was no indication of the format of lodging a complaint. The issue of the evaluation tool needed to be looked at. The issue of time frames, quality control and definitions also needed to be looked at.

Mr Rapea said the White Paper on a policing implementation plan reflected on the issues raised by Members of the disjuncture in policing. The White Paper talked of a single police service but with the current Constitution there could not be a single police service. There would need to be changes in the Constitution. The Civilian Secretariat was establishing a task team which included SAPS and municipal police. The issues could be better discussed when the White Paper was brought before the Committee.

It was correct that the Minister did not approve the appointment of the provincial heads, the MEC had the final decision. The Civilian Secretariat did not finalise the Provincial Secretariat, it was finalised through the province. The Civilian Secretariat assisted with priorities that needed to be taken into consideration.

He noted that the documents needed to be edited properly as well as the suggestion about the complaints form.

On the question of why the Civilian Secretariat was not established like IPID, Mr Soman said services were also considered in the passing of the act. The regulations of the Civilian Secretariat were not like that of IPID which had national regulations. The Civilian Secretariat was constrained by the fact that it could not establish Provincial Secretariats and needed to navigate around section 206 of the Constitution.

The difference between 'after consultation' and 'in consultation' was that in the former, one was not bound by the consultation. Regarding the functioning of the Provincial Secretariat, the Act was clear that it had to be 'in consultation'.

Mr Maake asked what the procedure was if a CFP wanted a workshop with the Civilian Secretariat, did it approach the Provincial Secretariat or the Civilian Secretariat? Who established the reference groups?

Mr Mhlongo reiterated that the current structures did not help provide cohesiveness. There would be multiple oversight organs and all of them would be useless.

The Chairperson said the Committee had to talk to their NCOP colleagues to get the Provincial Secretariat heads appointed and established.

Mr Rapea said Mr Mhlongo's observations could be reflected in the White paper.

Regarding the CPF seeking workshops, the Civilian Secretariat was working with provinces to strengthen CPFs. Requests could be done both through the Provincial Secretariat or directly to the Civilian Secretariat.

The reference groups were established by the Civilian Secretariat with the Minister. The Civilian Secretariat had not established a process of advertising and nomination; currently it was based on a database of interested individuals and groups.

Mr Soman said CPFs would be shifting to the provinces once the Act was amended. The Act provided guidance from a national level on the functioning of CPFs in the province.

There was a distinction between policing, which was a national competency, and oversight, which was at both national and provincial levels.

Mr Rapea said he hoped that by 1 October the regulations would be in place and the Civilian Secretariat could then interact with provinces.

The Chairperson said there could not be a situation where only four or five provinces had Provincial Secretariat heads while the rest did not. He awaited the Civilian Secretariat’s implementation plans going forward.

The meeting was adjourned.