Explosives Bill Amendment, Section 49 Amendment of Criminal Procedure Act, Resolution 7/2002, AU Peace & Security Council: Brief

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
9 April 2003
EXPLOSIVES BILL AMENDMENT, SECTION 49 AMENDMENT OF CRIMINAL PROCEDURE ACT, RESOLUTION 7/2002, AU PEACE AND SECURITY COUNCIL: BRIEFING BY SAPS

Chairperson: Mr. M E George

Relevant Documents
AU Peace and Security Council Powerpoint presentation
AU Peace and Security Council text presentation
Resolution 7/2002 Powerpoint presentation
Explosives Bill amendments Powerpoint presentation
Section 49 amendments Powerpoint presentation
Letter from South African police union (see Appendix)

SUMMARY
The Committee heard presentations by the SAPS on four issues:
- The relationship of the South African Police Service with the AU Peace and Security Council was explained. The Protocol was accepted by the Committee.
- Some amendments to the Explosives Bill which were accepted by the committee.
- Confusion surrounded the status of the amended Section 49 of the Criminal Procedures Act which had not been implemented. The Committee believe that SAPS is delaying this on purpose.
SAPS was asked to prepare a document outlining the old and new acts with the judgments.
- Problems on the ground regarding the restructuring of SAPS according to Resolution 7/2002 were discussed. Concerns were raised about the transfer of excess personnel. The SAPS admitted that communication in the process was a problem. The relationship with the unions seemed to be a problem as well.

MINUTES
Briefing on AU Peace and Security Council
Advocate Jacobs (Head: Legal Support, SAPS) briefed the committee as in the Powerpoint presentation attached. He added that the police services of twelve Southern African countries were meeting together in SARPCCO (Southern African Regional Police Chiefs Cooperation Organisation). South Africa had also been the co-facilitator of a meeting in Botswana where terrorism was discussed. A further meeting was planned in Gambia and South Africa had been approached to participate. The SAPS had also been approached to assist with the restoration of peace and security in other African countries.

Discussion
Mr. M Booi (ANC) said that although there was financial constraints on South Africa to see the Peace and Security Council established, it was important since drugs and arms trafficking was happening across borders. His party, the ANC, therefore proposed that the protocol be ratified. He noted that the Democratic Alliance had said that they would make a submission on the protocol, but they had not done this.

Mr. P Swart (DA) said that there was some problems regarding the submission. The DA supported the Peace and Security Council and hoped that it would play a major role on the continent. The effect on the SAPS was a concern though as there was a lack of manpower and resources in the SAPS already. Police could not be sent to other countries when they were needed in South Africa.

Rev. K Meshoe (ACDP) referred to the peace fund and wanted to know if this would ensure that more police would be used in Africa.

Mr. J Schippers (NNP) said that he supported the Protocol. He asked if the SAPS would attend the small arms and weapons conference in New York.

Ms. A van Wyk (ANC) commented that crime knew no race or borders. In reference to the DA comment, she said that it should not be seen as if the SAPS would be withdrawn from South Africa. This was rather part of the SAPS task.

The Chair noted that some of the members' questions were political questions. It was not necessary for South Africa to have everything in place before it could assist. It was South Africa's duty to help. This was part of the African Renaissance.

In response to these questions, Adv Jacobs replied that firearms and terrorism affected the whole of Africa and South Africa. There would be large number of arms in the DRC after the war and many of them will find their way into South Africa. Commissioner Croeser added that the SAPS had received five requests to help in other countries but they had not acted yet. The SAPS had trained 201 civil police who were ready if they were needed. They would continue to build capacity with these policemen. The peace fund was from normal funds of the African Union. The Peace and Security Council could also obtain funds from elsewhere and from voluntary contributions from members.

The Chair asked members whether the Protocol could be accepted. Mr. Swart (DA) said he was in favour although his party would be discussing other aspects of the AU Protocol at its caucus and thus did not have an official mandate. The Chair referred to safety and security issues and wanted to know whether that was accepted. Mr. Maziya (ANC) said that Mr. Swart was wasting time. The Committee then adopted the protocol.

Amendments to Explosives Bill
The Chair noted that he had received a letter from the Minister about certain amendments which they had overlooked. He then handed over to Advocate Jacobs.

Adv Jacobs explained that issues around the term "explosion" had been a problem. The Department had thus added Section 28. 5 (a) and (b) which stated that a person with an incendiary device was guilty of an offence.

Mr. Booi (ANC) and Mr. Ferreira (IFP) proposed that the amendments be adopted. This was agreed unanimously.

Section 49 of the Criminal Procedures Act
Adv Geldenhuys, of the SAPS, addressed the committee as in the text presentation attached. He explained that the first developments around this Act had started two years after the Constitution was adopted. It was suggested that Section 49 of the Act was unconstitutional. Research was done on this as it was found that there was a likelihood that Section 49.2 was unconstitutional. An amendment was then drawn up by the Department of Justice and parliament. This amendment was completed. A Supreme Court judgment then disputed the interpretation of Section 49.1 around the definition of "deadly permissible force" to effect an arrest. Consultations were still ongoing with the Department of Justice. Since the S v Walters case, SAPS had informed all its members about the use of force. Once finality was obtained, training of the police would be done.

Discussion
The Chair expressed his concern about the issue as it seemed that there was much confusion. The amendment was supposed to have been given to the President. There had been no talk about consultations as Mr. Geldenhuys had mentioned. People were accusing the government that it was giving the SAPS powers to kill people. He wanted to know what the status of Section 49.1 was. If it had not been approved, it had to go to the Portfolio Committee on Justice.

Mr. Swart (DA) said that the SAPS must prepare a document for the committee outlining the old and new acts with the judgments.

Mr. Kgauwe (ANC) said that the SAPS had referred the Act to the Constitutional Court yet it had not agreed to implementing it as passed by Parliament.

Mr. Booi (ANC) said that the SAPS must assist the government in implementing its laws. He said that the ANC as the government was there to "protect the people".

Mr. Maziya (ANC) wanted to know when the whole process was started.

The Chair said that the Bill had been passed three years ago and it was still floating around because it seemed some people did not want it. He once again wanted to know what the status of section 49.1 was. He felt that the SAPS still did not understand it: the Act prevented the police from being trigger happy but did not stop force from being used.

Mr. Geldenhuys said that the Bill was in the hands of the Department of Justice and he could therefore not comment. He corrected Mr. Kgauwe and said that the SAPS had not referred the Bill to the Constitutional Court. It was a case in the Transkei which had prompted the submission to the Constitutional Court. The SAPS would prepare a document for the committee.

The Chair pointed out in frustration that the Bill had been stopped by the SAPS. The Department of Justice wanted the Bill to be signed. He said that it was in the hands of the Department of Safety and Security and not the Department of Justice.

[In the course of the discussion an IFP member, Mr. Ferreira, was asked to leave the meeting or withdraw a statement he had made about members making fools of themselves. He said this in reference to Mr Kgauwe's statement that SAPS had referred the Act to the Constitutional Court. Mr. Ferreira refused to withdraw the statement and suggested that the Chair report him to the Speaker. The Chair promised to follow up.]

Resolution 7/2002
The Chair introduced the topic by saying that everybody accepted the resolution. It seemed though that there were problems with the implementation of the resolution by the SAPS. Allegations were that management "was settling scores with policemen and splitting families". He then handed over to Deputy National Commissioner Singh.

Commissioner Singh addressed the committee according to the Powerpoint presentation attached. She added that the resolution was a technical and complex process. It was difficult to have a uniform implementation for all 130 000 employees as situations varied from region to region. The aim of Resolution 7/2002 was to address transformation and restructuring in the SAPS. It was inevitable that this would cause people to be uncomfortable. Mechanisms had to be built which would deal with this. The process consisted of two phases. Phase 1 was the matching and placing of employees. This should be completed by 25 April 2003. Phase 2 was dealing with excess personnel. The SAPS was trying to consider personal circumstances when it came to relocations. This was however not always possible. Some people would have to move as there were imbalances in certain regions. It was hoped that any disputes at management level would be dealt with at regional level. It had emerged that there were 111 labourers which were in excess in the North West and Limpopo. Consultations were taking place with the Departments of Education and Health to see if they could be absorbed. Communication with the staff on the ground had also emerged as a big problem. The matching and placing of senior management should be complete by June 2003. Levels 1 to 12 would be completed once the Minister had signed the agreement.

Discussion
The Chair expressed concern that the allegations made by unions were not addressed. He also wanted to know what would be done with staff who were declared in excess.

On the allegation about the grading of police stations, Commissioner Singh replied that this was part of the plans as the SAPS planned to decentralise its resources. This grading process however had been put on hold until Resolution 7/2002 was completed. Excess members were not placed yet. At senior management level, three to five members were in excess and 111 labourers. They would try to be placed in other departments or they had the option of accepting retrenchment packages

Mr. Swart (DA) said that it seemed that all the problems stemmed from a lack of communication and non-adherence of the guidelines. He asked if language proficiencies played a part in the matching and placing. He wanted to know if the dispute with the South African Police Union (SAPU) was resolved as the Commissioner had stated. He referred to the letter the Committee had received from SAPU in which it said that the dispute was not resolved.

Commissioner Singh said that as far as she was concerned, the dispute in the Eastern Cape was resolved.

Ms. van Wyk (ANC) said that communication seemed to be a repeating problem. She wanted to know what the "uniformity problems" were and whether three days were enough for an employee to appeal a decision. SAPU had also alleged that members who were on leave or suspended had been placed while those in the service were not. She wanted an explanation for this.

Commissioner Singh replied that the uniformity was a technical one which was connected to the misunderstanding of the resolution by people on the ground. The restructuring program was on a tight timeframe and therefore three days had been given as the period in which to appeal. This was realistic and was available each time a decision was made. All members were placed, including those who were sick or suspended. They aimed to speed up the medical boardings as well which were in process.

A NNP member wanted to know the number of relocations that would have to take place. He added that the concern by SAPS employees had not only been that seen in the media. The committee had visited police stations in the Northern Cape and had seen for themselves the concern of members.

Commissioner Singh said that she could not give the total number at the time. Disputes were still to be resolved the following Friday. Regarding the members in the Northern Cape, she said that the resolution was shifting everyone out their comfort zones.

Mr. Booi (ANC) commented that the SAPS need to be congratulated on the progress made so far and that they needed support.

The Chair asked who was responsible for communication in the SAPS as it seemed that this was the problem. Unions had been part of the process from the beginning yet it seemed as if the SAPS had left them behind at some point. He felt that the allegations SAPU were making were serious and that the SAPS needed to respond to them. He also expressed concern about the fact that government departments always seem to lose cases in court. He wondered what was wrong with government lawyers. He was concerned since the union, Solidarity, had taken the department to court which was pending.

Commissioner Nchwe replied that they had never split with the unions. This was a management lead process and they were partners with the unions. Joint teams with the SAPS and unions were established at every level of the process. This process was not easy for any union. The issues raised by the unions were very broad and general They would however consider them and address them.

The Chair asked if the issues in the SAPU letter had ever been raised in negotiations.

Commissioner Nchwe replied that this was the first time she was seeing them. De-grading of stations had been addressed with unions. Employees skills had also been looked at when they were placed and matched. Referring to SAPU's claim that 2000 members were relocating at a cost of R50 million, she said that the SAPS were looking at the costs of relocating members as they realised that this could be high. Commissioner Singh added that there had been no split between themselves and the unions. The author of the SAPU letter had been with the audit team, so it was strange that these issues were raised.

Mr. R Zondo (ANC) said that SAPU must be given the chance to address them. He also wanted to know who was responsible for SAPS communication and how the skills inventory was done. He made the example of trained officers who were in charge of the cars at a government depot. It was his feeling that these men could be used elsewhere considering the skills they had.

Commissioner Singh replied that Assistant Commissioner Ngubane was the chief of communications. She wanted specifics about the case mentioned so that they could act.

Ms. Jabu (ANC) asked if the language of members was matched with the region they were placed in. She also wanted to know when Phase 2 would be completed.

Commissioner Singh replied that SAPS requirements were that members spoke English and one other language. As far as possible they tried to keep a balance, but language was not one of the key areas. Phase 2 would be completed by June 2003.

Mr. Maziya (ANC) wanted to know what was meant by "comfort zones". It seemed to him as if only black members were being shifted out of their comfort zones. He cited an example of a black officer, who was the only black at the station, being relocated and being replaced by a white. This was not transformation. Referring to the SAPU letter he said that there had been a agreement with the unions and therefore they should act together on implementation.

Commissioner Singh noted that when officers are in one position for a long time, they could become too complacent and even develop unhealthy relationships with members of the community which could lead to corruption. Change would therefore keep them on their toes. SAPS was not aware of the case mentioned and she requested more details. She added that there was still a sifting process to be done which would probably uncover these kind of cases.

Mr. Kgauwe (ANC) said that the unions must address the Committee and that the SAPS should not just say that the issues in the letter are "too general".

Mr. Booi (ANC) said that it appeared that the SAPS management was responsible but that it seemed that unions were not responsible.

The Chair once again said that the perceptions the unions had of the process was important and that space had to be created for them.

Mr. B Sigidi, President of SAPU, said that his colleagues in the Eastern Cape had informed him that the dispute there was not resolved. The monitoring committee was not sharing information with the matching and placing committee. From what he had gathered, the employers (SAPS management) had left the Eastern Cape without the matter being resolved.

Commissioner Singh added that no figures could be given regarding relocation. The SAPU had given the estimate as R50 million. The SAPS was eager to do it for less.

The Chair said that it seems the problems were mainly in Gauteng and the Eastern Cape. He wanted to know more about the grading of police stations. The grading had to do with resources and it seemed that some black police stations were being downgraded which did not make sense as they were over-stretched already. He also felt that only Blacks were being shaken out of their comfort zones and would like something in writing about this matter. Commissioner Singh said that grading was related to the population and crime statistics. No station was being downgraded at the moment. The status quo was remaining as is for now.

In conclusion, the Chair said that the input given was good, but that he would have wanted more. He said that there was a good relationship between the SAPS and the Committee and that they were eager to see them succeed. The meeting was then adjourned.

Appendix
PRESENTATION TO THE PORTFOLIO COMMITTEE ON SAFETY AND SECURITY: re RESOLUTION 7/2002
By.: The South African Police Union (SAPU) 2003-04-09

1 Introduction
Resolution 7/2002 as signed in the Public Service Co-ordinating Bargaining Council (Pscbc) is geared to the TRANSFORMATION AND RE-STRUCTURING of the Public Service

SAPU was a signatory to the resolution, which has as it's primary objective the
ENHANCEMENT OF SERVICE DELIVERY, coupled with the increase in
REPRESENTIVITY

Historically the STATE, inherited a much skewed Public Service, viz-a-vie the former homelands and the RSA Public Service from the former Nationalist Government, these Services had to be Merged into ONE STREAMLINED PUBLIC SERVICE

Resolution 7/2002 seeks to facilitate this process, ensuring that employees are (a) Correctly placed in line with their skills, (b) and are not in excess at their current workplace in terms of the departments Human Resource needs, should this have been the case - procedures are in place for the RE-DEPLOYMENT of the individual concerned to where his her services are needed and are correctly matched

2
The S.A.Police Service (SAPS) as a growing organization, theoretically should not have been effected by the resolution, it is SAPU'S believe that Saps management have misused the Resolution to implement their Resource Establishment Plan (REP) and in doing so have by-passed the requirement of Meaningful Consultation with Organized Labour in Saps

Indeed SAPS are in breach of the agreement in this respect

Sapu, could have, and quite rightly so, during December of 2002 have launched an Interdict to restrain Saps from proceeding with this process - AS A RESPONSIBLE UNION, we on the 18th of Dec 2002, reached a settlement with Saps, THAT DESPITE THIS MATERIAL BREACH OF THE AGREEMENT, we would continue with the process, in view of the aims of the agreement as outlined in para 1 supra


Since December 2002, to date we have via our Provincial and Divisional MONITORING committees, tried to oversee the process

We are acutely aware of the onerous responsibility we have undertaken in being signatories to the agreement, and will not act irresponsibly in reneging on the agreement

WE HAVE HOWEVER IDENTIFIED THE FOLLOWING PROCEDURAL ERRORS
IN THE IMPLEMENTATION OF THE AGREEMENT - AND MUST INSIST THAT
SAPS RECTIFY THESE ERRORS BEFORE THE PROCESS CAN PROCEED TO THE
NEXT LEVEL

(a) In a lot of instances employees were not placed in terms of their skills
(b) Thousands of employees have been identified for Re-Deployment from one Station or Unit to another
(c) Of these thousands identified for Re-Deployment, at least two thousand households will have to physically re-locate at an estimated cost of some 50 Million rands to the SAPS
(d) Employees with the requisite skills have not been placed in positions which are vacant, based on race, whilst employees whom are under suspension or oft-sick have been allocated posts (e) No consistency was maintained in the criteria as re~2ards placement of employees, some provinces used only Service Delivery, whilst others used only Representivity
(C Thousands of Grievances [Representations remain UNRESOLVED

THESE ARE BUT A FEW EXAMPLES - DUE TO THE SENSITIVITY OF THIS
PROCESS AND SUB-JUDICE COURT PROCESSES, THE AUTHOR OF THIS
DOCUMENT WISHES RATHER TO ADDRESS THE HOUSE VIVA-VOCE ON THE
BALANCE OF THE PROBLEMS

SUGGESTED WAY FORWARD
Sapu is of the belief that due to the numerous problems facing Saps in implementing this process that WE MUST (a) PAUSE AT IT THIS STAGE (b) TAKE STOCK OF THE PROBLEMS ( c)RE-VISITING THE MATCHING AND PLACEMENT OF EMPLOYEE ( d) RECTIFY THE ORGANIZATION AND PROBLEMS ENCOUNTERED, ( e ) RESOLVE ALL GRIEVANCES

Only then will Saps be able to in terms of the process, be able to post its list of vacancies on
Persal. Only then will Saps be able to accept excess employees from other Government
Departments

Resolution 7/2002 makes provision for an extension of the time frames for finalization by three months - Not to make use of this extension would be foolhardy and will result in a flawed process which would be open to legal challenges

SAPU HAS ALREADY DECLARED DISPUTES AS REGARDS THE IMPLEMENTATION
OF THIS RESOLUTION IN GAUTENG AND THE EASTERN CAPE, OTHER DISPUTES
COULD FOLLOW IF THE PROCESS IS NOT CORRECTLY RECTIFIED

It must be borne in mind that SAPS is the largest Government Dept, we will have problems, these problems if handled correctly at this stage are not insurmountable

Sapu is committed to the process, we believe that TOGETHER WE CAN MAKE THE DIFFERENCE

Friendly Union Greetings