DPCI Judge + DNA Board performance and challenges

Meeting report

Opening remarks
The Chairperson indicated that the Committee was scheduled to meet with Crime Intelligence to receive a report back but this meeting was rescheduled to 30 November due to SAPS strategic planning. There was an apology from the Secretary of Police as he was requested to be present in the meeting.

Ms D Kohler-Barnard (DA) expressed concern about the very strange things happening in the Marks Building where a number of DA MP’s offices have been broken into and some have been trashed completely. There were Members from other committees who were being followed and their cars broken into without anything stolen. These are concerns that the Committee should be aware of and take possible action where needed.

The Chairperson said that the matter would need to be directed towards the Chief Whips Forum or the Speaker of Parliament.

Office of the Directorate for Priority Crime Investigations (DPCI) Judge
Judge Frans Kgomo, DPCI Judge, indicated that the tabling of the 2016/17 Annual Report was late due to the passing of the former DPCI Judge Essa Moosa on 26 February 2017. He was appointed on 6 October 2017 by the Minster of Police, Mr Fikile Mbalula. The appointment was preceded by consultation with the Minister of Justice and Correctional Services and Chief Justice. The Annual Report covered the period from April 2016 up to the 31 March 2017.

Mr Edward Rasiwela, Deputy Director: Investigations, Office of the DPCI Judge, discussed the performance targets for the past year. The Office was allocated R5.960 million and spent R5.215 million and was left with R700 000. The Office received a total of 69 complaints and 31 were complaints within the mandate of the Office while 38 complaints were not. The out-of-mandate cases simply mean there was no Hawks involvement in the complaint. Of the 31 complaints, 29 were from members of the public and two complaints were from Hawks members. Of the 31 complaints falling, 14 were finalised. The target was 70% of the complaints received during the year must be finalised. The Office only achieved 45%. The reason for failure was lack of capacity as the Office was understaffed. The Office had only two investigators who are overstretched in attending to the complaints in all the provinces.

Mr Rasiwela said that the target for public awareness campaigns was four campaigns per year and one campaign per quarter. The Office conducted five campaigns aimed at promoting the role and function of the Office. The awareness campaigns were conducted in the Eastern Cape, George in Western Cape, Kimberly in the Northern Cape, Nelspruit in Mpumalanga and Free State. The Office conducted eight meetings with various stakeholders and its target was achieved. These included the Commission on Gender Equality, National Director of Public Prosecution, SARS National Commissioner, Head of Hawks and traditional authorities. The staff of the Office have submitted performance agreements, the strategic plan and annual performance plan to the Secretariat and achieved its target on the required reports.

Mr Rasiwela noted that the investigation of cases was the key function of the Office. The performance indicator here is on the number of investigations finalised based on the complaints received. The Office received 31 complaints falling under its mandate and 14 of these complaints were finalised. The target was 70% of the complaints received must be finalised. The Office was unable to achieve the target as it only achieved 45%. The reason for failure to achieve the target was lack of capacity as the Office was understaffed. The Office had only tow investigators who are overstretched in attending to all the complaints in various provinces. The investigators are also responsible for the administration of the Office. There were 12 complaints that were carried over and nine of those complaints were finalised. The target is that 50% of the cases carried over must be finalised and the output was 75%.  

Discussion
The Chairperson indicated that the format of the presentation should include detailed financial information and this was lacking in the presentation. The staffing concern should be directed to the Department of Public Service and Administration (DPSA) to evaluate the existing staff and the need for additional staff. In terms of workload, it would be important to ascertain whether the Office had any Memorandum of Understanding (MoU) with Independent Police Investigative Directorate (IPID) so as to be provided with assistance. It looked like the workload for the Office was extremely low relative to other institutions particularly when taking into consideration that one detective in Khayelitsha was dealing with 120 case dockets.

Ms M Molebatsi (ANC) said that the SAPS Act indicates that the Office should be known about by the general public through awareness programmes. It looked like the Office was not known by most communities in the country. What is to be done to promote awareness of the Office? What was being done to address the lack of feedback from investigators? It was unclear if there were any mechanisms in place to improve the efficiency and professionalism of the Hawks. Was this really happening?

Ms M Mmola (ANC) asked when the Office managed to develop a standard template to deal with incoming complaints. What was being used previously to deal with complaints before the development of the standard template? How many of the carried-over complaints were still under investigation? It was concerning that there were two investigators within the Office covering the whole country? How many investigators were required by the Office? Are those required posts for investigators funded or not? It would be important to know if there was any follow-up being made after the submission of cases to the prosecutors.    

Mr Z Mbhele (DA) said that one of the things that came out from last year’s Annual Report was on the need to have breakdown of the cases completed and dates on which those cases were completed. This is important to get detailed information of the cases and the related dates. Was it possible to get this information in writing? He appreciated that there were complaints from the Hawks members as there were no complaints in last year’s Annual Report. However, it was still disappointing that there were only two complaints. How many cases were initially lodged by the Hawks and then withdrawn? Was there any complaint received from the former Minister of Finance, Mr Pravin Gordhan? It would be important to know if the Office had any arresting powers as part of its mandate. The Chairperson had already mentioned the concern around lack of financial information. It was worrisome to note that the procurement of promotional items like caps, t-shirts and flags was costing around R150 000. Why was this costing so much? It looked like there was price inflation in the procurement process. How was it possible for the Office to ensure adherence to Section 13?

Ms Kohler-Barnard asked the Office to indicate a wish list for the number of investigators required in the Office. It was not enough to just complain about the number of investigators without indicating the desired number of investigators. The Office was able to achieve most of the targets with only two investigators. The Committee should be briefed on the cases that are classified as out of the mandate of the Office. What kind of cases are these? It would be important for the Committee to be provided with detailed information on what was achieved previously so to be able to make comparisons in progress made. It was hard to ascertain if the Office was making any meaningful improvement as it was impossible to compare the achievements with previous financial year periods. It was unclear if the target setting on awareness campaigns was dealing with the location of where the campaigns would take place locally, provincially and nationally. Why was there lack of cooperation from some Hawks members? What were the strategies to deal with this lack of cooperation?

Mr P Mhlongo (EFF) wanted to know the meaning of lack of enforcement powers as this was not clearly explained in the presentation. Was this implying that the Office cannot take people to court? The country at the moment seemed to be under siege with massive corruption reported on a daily basis. Was it proper to say that South Africa is not following the rule of law? It was mentioned that part of the mandate of the Office is to ensure there is professionalisation within DPCI. However, everyone in the county is crying about state capture and how South Africa seemed to be the paradise of criminals. People were acting lawlessly with impunity. Why was DPCI not freezing the accounts of Guptas in the country? Why was it a case that not a single bank account of Guptas was frozen?

Mr Rasiwela replied that the Office did not have much information on the budget as the agreement was reached that this must be left to the Civilian Secretariat of Police. In terms of the workload, the Office entered into a Memorandum of Understanding with various stakeholders to try and decrease the workload but the workload had been increasing. The awareness campaigns are a continuous process and they hope to invite civil society to inform the general public of the role of the Office and this would certainly improve publicity for the Office. There was a concern about the lack of cooperation from some Hawks members and the lack of feedback. The investigators have already travelled to eight provinces for feedback and still needed to travel to North West to cover all the provinces. There was a template before to deal with complaints but there was a realisation that some of the complaints are not falling under mandate of the Office.  There were three outstanding complaints carried over that still needed to be addressed.  A task team has been established to review the structure of the Office looking into what posts were required and there was a request for additional investigators.

Judge Kgomo replied that the wish list is to get a Chief Executive Officer (CEO) to deal with the administration. There are blockages as everything had to pass through the DPCI Judge as head. He wanted to make it clear that he was still operating without a secretary and this was making things difficult. The Office appreciated the suggestion to consult DPSA to deal with the level of staff required and getting a full structure in place. There was the hope to have an office in KwaZulu-Natal (KZN) and an investigator in the Western Cape. The Office sometimes needed to request IPID to transmit complaints that had been received and this was not helping as there could be bias in dealing with those complaints. Members of the Hawks sometimes do not read the cases properly and this was a concern that needed to be addressed. There is a need to find ways to deal with complaints. The Office was impressed with the way cases were dealt with in the Western Cape. Some Hawks members are scared to speak out because of fear of reprisal or backlash. The problem does not lie with the investigation but rather once the investigation is completed and given to the Minister, those recommendations are sometimes not implemented by the Minister. The Office is not overly eager to get arresting powers as the Office was not operating as an enforcement agency. The Office was investigating complaints and not necessarily criminal elements. There are indeed complaints that the Hawks are not playing a meaningful role in dealing with crime in the country and this is something that should be addressed. The Acting Head of DPCI indicated recently that the Hawks are suffering from reputational damage and this is something that needs to be fixed so that people can regain confidence in Hawks. On complaints that are withdrawn, this was a bit tricky as the Office was concerned that one of the cases against a member of Hawks was withdrawn invalidly.

Mr Rasiwela responded that no complaint came from the former Minister of Finance, Mr Gordhan. The Office did not present a breakdown of the complaints and the targets achieved this year relative to the last financial year but the information can be provided in writing. The Western Cape and Gauteng were regarded as the provinces in the top four of complaints.  

Judge Kgomo appreciated the need to provide the breakdown of complaints and targets relative to the last financial year.
 
Mr Rasiwela replied that the cases falling outside the Office are complaints about the service at police stations, complaints about nepotism and corruption. The marketing is managed by the Communication section of the Civilian Secretariat of Police (CSP) and therefore they can be asked to respond to the cost of R150 000 for promotional materials. The understanding from the Office is that the materials were procured and the procurement process was followed. On the non-cooperation by Hawks members, there is resistance from some members to cooperate but the Office was engaging with them to ensure that there is some sort of cooperation.

Judge Kgomo wanted to make it clear that the allocated budget must be ring fenced but the Secretariat was not in support of this and yet he would suffer the consequences if laws and regulations were broken.

Ms Molebatsi expressed concern about the office not wanting enforcement powers as it was clear that there was a lack of cooperation from some Hawks members and this was not yielding good results.
  
DNA Board (National Forensic Oversight and Ethics Board) briefing
Ms Yvonne Mokgoro, Chairperson: DNA Board, explained that the Committee would not be briefed on the 2016/17 Annual Report as it was tabled late. The Board will brief the Committee on the operational and strategic challenges faced by the Board. The presentation will draw the attention of the Committee to the amendment of the legislation specifically the DNA Amendment Bill.  

The Chairperson expressed concern that the Annual Report of the Board was not submitted timeously. Ms Molebatsi added that it was worrisome that the Board had to be reminded to apologise for not submitting the Annual Report timeously.

Ms Mokgoro apologised for the late submission of the 2016/17 Annual Report.  

Ms Vanessa Lynch, Deputy Chairperson: DNA Board, indicated that the DNA Board has developed its own governance rules and procedures. This is supported by 8 sub-committees, including System Reports and Gap Analysis, Public Relations, Training and Assessment (Complaints) and Finance and Risk, which have developed charters to ensure the effective and efficient functioning of the Board. A full-time DNA Secretariat was not appointed during 2016/17 which hampered the ability of the Board to carry out its oversight mandate. The post was filled on 1 June 2017. The Board continued to function without adequate, independent office space. The required IT infrastructure has still not been developed.

Ms Lynch mentioned the sentencing of the Cape Town serial rapist, Sikhangele Mki, in the Western Cape High Court yesterday. The breakthrough in the investigation happened when Mki served 11 months for assault in 2014. In terms of the recently passed DNA Act, police collect the DNA samples of convicted offenders and run them through their system. In Mki’s case, this was what linked him to the rapes.

Section 7(7) of the DNA Act requires states that ‘the National Commissioner of the South African Police Service must, with the assistance of the National Commissioner of Correctional Services, from the date of commencement of this section, ensure that a buccal sample is taken within two years of any person serving a sentence of imprisonment in respect of any offence listed in Schedule 8 of the Criminal Procedure Act, No. 51 of 1977’. The transitional period expired in January 2017. The total convicted offender population had not been sampled at the date of expiry.

The strict interpretation of Section 7(7) indicates that sampling may not continue after the expiration of the two year period from date of operation of the DNA Act on 31 January 2015. The intention of the legislature at the time of drafting this provision was to expedite the sampling of criminal offenders and at the time, it was deemed feasible to collect samples of all criminal offenders within a two year period. Due to operational challenges such as training, refusals and systems requirements this two year period was in hindsight too short a time to achieve this.

The Board proposed an Amendment Bill that provides for a new two year period in which to reach all outstanding convicted offenders as a matter of urgency, especially in view of the high recidivism rate and success of linking convicted offenders to previous serial offences. The Bill also provides for a penalty for refusal to submit to the taking of a buccal sample (sentence of imprisonment not exceeding five years). The initial Socio-Economic Impact Assessment Survey (SEIAS) has been drafted for this Bill and is being considered by Department of Planning Monitoring and Evaluation (DPME) for certification. The Bill has been presented at the Justice Crime Prevention and Security (JCPS) Development Committee for consideration.

Ms Lynch said that the total number of DNA profiles loaded onto the NFDD has increased from 580 230 from the previously reported number to 891 590 DNA profiles by 30 September 2017. The expungement of DNA profiles from the Investigate and Arrestee index as required by the Act has been followed. For the period up to the end of August 2017, the NFDD had linked 19 987 cases with known person on the NFDD index. The number of known persons in the NFDD index linked to cases were 7 584. A number of 11 475 cases were linked to unknown persons on the NFDD and the unknown persons linked to these cases are 4357. Mki’s conviction is an example of one of these cases which would not have been possible without the functioning of the NFDD.

The Department of National Treasury earmarked CJS funds to support the successful implementation of the DNA Act. In August 2017, SAPS was notified that the CJS funds from 2018/19 onwards were to be re-scoped and may not include recurring costs (approx. R650 million) such as DNA consumables and collection kits. This must be funded from the SAPS baseline (operational) budget and will have dire consequences if SAPS does not increase the baseline (operational) budget of Forensic Services. Many stations have run-out of buccal sample kits.

The DNA Board requested that the Committee:
• support reactivation of CJS funding to comply with DNA Act to ensure optimal performance of NFDD or that saps increases the baseline (operational) budget to Forensic Services.
• prevail upon provincial commissioners to activate task teams to ensure investigative leads are followed up.
• SAPS supply chain management must take immediate measures to ensure buccal samples kits are procured and distributed to all stations.
• prevail upon SITA to complete NFDD solution software and IT infrastructure for effective operation of NFDD and DNA Board

Discussion
Mr Mbhele noted that many of the challenges identified by the Board were about SAPS management getting the basics right especially on SCM. It was mind boggling to witness SAPS management failing to get the basics right particularly when one looked at the immense value that DNA sampling could add for the conviction of criminals. The Committee should be briefed on when the Board received the determination from the Treasury that R650 million would be re-scoped and may not include recurring costs such as DNA consumables and collection kits. It was concerning to hear that there are cases where offenders are released before any DNA sampling because the two year window period had expired. Was there any way of sampling the offenders as they get released? There should be a prioritisation of doing DNA sampling of offenders from entrance to exit points. There is an understanding that there is a big mass of unsampled offenders in Correctional Services.

Ms Lynch responded that the Board received the information about a month ago that R650 million would be re-scoped and may not include recurring costs such as DNA consumables and collection kits. The sampling of outgoing offenders is not done arbitrarily unless there is a specific case where a convicted offender is suspected to be linked to other cases stipulated in Section 36(e)(1) of the Act. The incoming offenders are covered in the Act. Parole still falls under the convicted offender index. There is at least one person per station that is assigned to conduct sampling of offenders. 

Ms Kohler-Barnard said that it was incredibly frustrating to hear about how the Board was suffering because of failures of station commanders not executing their duties. The Committee should be provided with detailed information as to why the budget cuts were implemented. SAPS management was clearly leading the Board to failure. The concerns that had been highlighted by the Board should be taken to the highest level as station commanders were not doing their jobs.

Ms Molebatsi asked if all officers are provided with adequate training on DNA as this was an important determination to ensure conviction of offenders.

Ms Mokgoro responded that the Criminal Law (Forensic Procedures) Amendment Draft Bill specifically deals with the sampling of outgoing offenders. The approval of the Amendment Bill would allow the Board to be able to do the sampling of the inmates that had not been sampled.

The Chairperson asked about the timeline for the tabling of the Amendment Bill.    

Ms Lynch replied that it was difficult at this stage to stipulate the date of tabling in Parliament. The Board was hoping to make a presentation to Cabinet by March 2018 as there is a still a long process to be followed.

The Chairperson suggested that there should be a shorter process to be followed as the existing gap in the Act had severe implications for criminal justice. There are serious challenges within SAPS management and this would be taking up and discussed in the meeting on Friday and also to brief the new SAPS National Commissioner on these challenges. The Committee would schedule a meeting in February 2018 on the official briefing on the Board's 2016/17 Annual Report.

The meeting was adjourned.