IPID Amendment Bill: briefing & public hearings; Critical Infrastructure Protection Bill: legal opinion

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Police

28 June 2018
Chairperson: Mr F Beukman (ANC)
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Meeting Summary

The Civilian Secretariat for Police (CSP) and the Independent Police Investigative Directorate (IPID) briefed the Portfolio Committee on the IPID Amendment Bill.

The CSPS and IPID proposed the amendment of section 6(1) by the insertion of paragraphs 6(1)(a) – (e) and the repeal of section 6(3)(a) of the Act in order to align it with the judgment and order in the McBride case, which had declared the provisions of section 6(3)(a) inconsistent with the provisions of section 206(6) of the Constitution. This would demand that the Executive Director must be independent of the laws governing the public service, which would undermine or subvert his/her independence. The independence of the IPID required careful examination of a wide range of facts, which included the method of appointment of the Executive Director. It would be important to have a formalised procedure for the appointment, following confirmation of the Minister’s nomination of a suitably qualified candidate by the relevant Parliamentary Committee. The insertion of a new 6A under clause 2 dealt with the remuneration and conditions of service of the position. The new proposed Section 6B sought to provide for a procedure to be followed by the relevant Parliamentary Committee when suspending or removing the Executive Director from office, thereby curing the defect as ordered by the Court.

A Member wanted to know if any action had been taken against the former Minister of Police for “the destruction of IPID.” The former Minister should be held accountable for his actions and the illegal removal of the top structure of IPID.

Proposals for amendments to the Bill were also suggested by the Western Cape Department of Community Safety, Africa Criminal Justice Reform and the African Police Civilian Oversight Forum. There was no discussion on any of their submissions.

The Committee received a briefing from the Parliamentary Legal Adviser on the Critical Infrastructure Bill, and were told that legal opinion was that the clause 26 prohibitions would fall foul of the right to freedom of expression in Section 16 of the Constitution unless they were made subject to a defence of “publication in the public interest.” Parliament sought a second opinion on this issue. The prohibition of the prescribed conduct -- only if it was “unlawfully” done -- was of little value and rendered the meaning of prohibition uncertain. The definition of “security measures” was too wide, as it included security measures which were already on public display, such as the fence around Parliament and the police officers on duty at its entrance. The prohibitions, as currently formulated, would not pass constitutional muster, and to render them constitutionally compliant, they should be limited to the disclosure of information and the taking of pictures of security measures of critical infrastructure that were not in the public domain.

The legal drafting team said it would redraft affected clauses and make a submission to the Committee, and this would be from clause 16 up to clause 20. In relation to clause 26(1) (a) and (b), they agreed that the definition of “security measures” created a big obstacle for the purposes of offences, and believed that this could be addressed by narrowing down the definition to clause 26(1) (a) and (b). The Chairperson said that Members would be given ample time at its meeting next Tuesday to deliberate on the amendments that would be made by the legal drafting team, and this was when the Committee would adopt the Bill if everyone was happy with the final draft.

Meeting report

Chairperson’s opening remarks

The Chairperson welcomed everyone and indicated that the Committee had extended the deadline for submissions on the Independent Police Investigative Directorate (IPID) Amendment Bill up until Friday, 29 June 2018. It was still expecting one other stakeholder to make a submission. The extension of the deadline was to give everyone an ample opportunity to make an input on the Bill. The Committee would deliberate on those submissions on Tuesday. The Committee would also simultaneously deal with outstanding work on the Critical Infrastructure Protection Bill. There was still one chapter outstanding on the legal opinion in relation to clause 26, and the Committee would get a briefing later on in this specific item. There was anticipation that the Committee would not have a meeting tomorrow due to the fact that the Committee was still waiting for outstanding submissions.

In relation to the issues in the public domain, the Committee had noted the spate of murder incidents in the past seven days in the country. There had been the unfortunate death of two members of the South African Police Service (SAPS), and young children on the Cape Flats had been murdered. There had also been incidents of murder in rural and farm settings as well as taxi violence-related deaths. The Committee would like to send sympathy to those grieving families. The Committee welcomed the intervention by the Minister of Police on the taxi-related violence in various provinces and the Committee looked forward to the results of those interventions.

The common factor in these killings was the issue of illegal firearms and dangerous weapons, and the crime of armed robbery and murder. The Committee would like to call on the SAPS management to ensure that the necessary investigations were being done so that the perpetrators of these crimes were apprehended and brought to book. The Committee was also calling for the Directorate for Priority Crime Investigation (DPCI) specialised units focusing on illegal firearms, to confiscate and trace their origin.

The Committee also noted the conflicting media reports on the position of the Gauteng provincial commissioner this week, and it was calling for SAPS management to follow clear guidelines for the removal of the provincial commissioner.

The Committee would invite the National Commissioner in August to brief it on the status of a restructuring plan for SAPS, as well as the envisioned changes to the structure and practical ways to boost  the quality of station management in underperforming stations. The Committee would also invite the relevant unions to this important meeting. 

Ms D Kohler Barnard (DA) commented that it had been horrific to read reports on the killings in the country, and it was always horrific when the police were being killed. The Minister of Police should speak out on the murders on farms in the country. There were many farm workers and farm owners who had been killed. The farmer that had been killed last week in the Western Cape employed 1 000 people, and most of those workers would now have nowhere to go. These murders were catastrophic to the economy of the country, but there had not been a commitment from the Minister of Police on ways to deal with these killings. The rural strategy was clearly weak and ineffective.

The Chairperson said that the Committee would also deal with issues related to rural strategy when meeting with the Minster in August, and civil society would also be involved at this meeting.

Regarding the IPID Amendment Bill, the Committee had followed all the steps for its processing, including the advice on its classification and the publication of the Bill in the Government Gazette.                                  

IPID Amendment Bill: briefing by IPID and CSP

Mr Viceroy Maoka, Director: Litigation, IPID; said that Section 206(6) of the Constitution provides for the establishment of an independent police complaints body to monitor and investigate the conduct of members of the police service. In order to give effect to the provisions of section 206(6) of the Constitution, the Independent Police Investigative Directorate Act, 2011 (Act No. 1 of 2011) had been enacted and in terms of section 3(1) thereof, the Independent Police Investigative Directorate had been established.

In order to provide the factual background to the amendment of the IPID Act, on 24 March 2015 the Minister of Police had suspended and removed the Executive Director of IPID by invoking sections 6(3)(a) and 6(6) of the Act. As a result, the Executive Director had approached the Constitutional Court, challenging the constitutionality of the provisions of sections 6(3)(a) and 6(6) of the Act. The Executive Director’s contention was that the provisions were inconsistent with the provisions of section 206(6) of the Constitution. Further, the contention was that the Minister’s decision to suspend and remove the Executive Director from his position without Parliamentary oversight was invalid and unconstitutional.

Following the judgment and orders of the Constitutional Court in the McBride v Minister of Police and Another (CCT255/16) [2016] ZACC 30 (“the McBride case”), it became clear that the provisions of the Act relating to the suspension and removal of the Executive Director of the IPID were inconsistent with the provisions of section 206(6) of the Constitution, when the Act was proclaimed into law. The following provisions were declared unconstitutional and invalid to the extent that they authorised the Minister of Police to suspend, take any disciplinary steps pursuant to suspension, or remove from office the Executive Director of the IPID:

  • Section 6(3)(a) and 6(6) of the Independent Police Investigative Directorate Act 1 of 2011; and
  • Sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act, Proclamation 103 of 1994.

Parliament had been directed to cure the defects in the legislation within 24 months from the date of this order.

The Department proposed the amendment of section 6(1) by the insertion of paragraphs 6(1)(a) – (e) and the repeal of section 6(3)(a) of the Act in order to align it with the judgment and order of the McBride case declaring the provisions of section 6(3)(a) of the Act inconsistent with the provisions of section 206(6) of the Constitution. This would demand that the Executive Director must be independent to the laws governing the public service. The Executive Director must not be subjected to the same regime that applied to public servants, which would undermine or subvert his/her independence. The independence of the IPID required careful examination of a wide range of facts which included, amongst others, the method of appointment of the Executive Director.

Adv Dawn Bell, Chief Director: Legislation, Civilian Secretariat for Police (CSP), said that the insertions were consistent with the finding of the Court that the IPID must be afforded at least the equivalent protection that the Constitution required for the DPCI. This was to provide a procedure for the recruitment of the Executive Director, which required the advertisement of the vacant post in the Government Gazette and national newspapers.

There should be requirements relating to the recruitment of a potential candidate for the position of the Executive Director. There should be a non-renewable fixed term of office of not less than seven years and not exceeding 10 years. It would be important to have a formalised procedure for the appointment of the Executive Director, following confirmation of the Minister’s nomination of a suitably qualified candidate by the relevant Parliamentary Committee. The insertion of a new 6A under clause 2 dealt with the remuneration and conditions of service of the Executive Director. This was consistent with the finding of the Court declaring the provisions of section 6(3)(a) of the Act invalid and inconsistent with the provisions of section 206(6) of the Constitution.

Adv Bell added that the new proposed Section 6B sought to provide for a procedure to be followed by the relevant Parliamentary Committee when suspending or removing the Executive Director from office. It was consistent with the order of the Court declaring the provisions of section 6(6), read with section 6(3)(a) of the Act, dealing with the suspension, removal and discipline of the Executive Director, inconsistent with the provisions of section 206(6) of the Constitution and invalid in as far as it applied to the Executive Director without oversight. As a result, this proposed new section sought to cure the defect ordered by the Court. Section 6 of the Act gives the Minister enormous political power and control over the Executive Director and the power to remove the Executive Director from his/her office without Parliamentary oversight. The enormous power given to the Minister is antithetical to the entrenched independence of IPID as envisaged by the Constitution, and permits political management of IPID by the Minister.

Discussion

Ms Kohler Barnard wanted to know if any action had been taken against the former Minister of Police, Mr Nkosinathi Nhleko, for the destruction of IPID. The former Minister of Police had illegally restructured IPID without any repercussions. Why was the former Minister of Police not paying the legal fees for this out of his own pocket? It was unclear if any criminal charges had been laid against the Minister. He should be held accountable for the near destruction of IPID and the illegal removal of the top structure of IPID. It seemed like the Committee was just moving on as if nothing had happened. There should be consequences for the people who almost resulted in the near destruction of the civilian body.

Mr Robert McBride, Director: IPID, responded that he was not aware of any consequence management action that had been taken against Mr Nhleko for unconstitutional, illegal and irrational activities. 

Ms Kohler Barnard said that it was inconceivable that the Committee had not taken any action against the former Minister of Police.

Mr McBride clarified that the courts in recent years had sought to make a person liable to pay for costs that had been incurred in illegal actions.          

Western Cape Department of Community Safety submission     

Ms Gwen Dereymaeker, Deputy Director: Policy Research, Western Cape Department of Community Safety (WCDCS), said the Western Cape government had reviewed the Independent Police Investigative Directorate Amendment Bill, 2018.

The proposed repeal of section 6(6) of the IPID Act, which empowered the Minister of Police, without Parliamentary oversight, to remove the Executive Director of IPID on account of misconduct, ill-health or inability to perform the functions and duties of that office, was supported.  The proposed insertion of section 6A, which sets out the procedure to be followed when removing the Executive Director, was also supported. The fact that the Amendment Bill did not deal with the comments of the Constitutional Court in relation to section 6(3)(a) was of concern. IPID’s independence was, however, constrained by certain provisions in the IPID Act which were not in keeping with its oversight role. 

The Amendment Bill was a good opportunity to consider the aspects of the IPID Act which could be improved by way of further amendments. In the proposed section 6A(3)(b), the reference to “a resolution calling for the removal of the Executive Director’s removal” should be “the resolution” so that it referred to the resolution of the National Assembly referred to in sections 6A(1)(b) and 6A(2), which precede section 6A(3)(b).

The WCDCS also proposed that section 6(3)(a) be qualified to properly reflect that the Executive Director was appointed in terms of the IPID Act.  The precise intersection with the “laws of the public service” must be considered and, if applicable in any way, must be adequately explained. There was a further proposal that section 6(3)(a) be qualified to properly reflect that the Executive Director was appointed in terms of the IPID Act.  The precise intersection with the “laws of the public service” must be considered and, if applicable in any way, must be adequately explained. The Department suggested that section 7(5) of the IPID Act be amended to reflect that the National Prosecuting Authority (NPA) must notify the Executive Director of its intention to prosecute or not to prosecute. The Executive Director must notify the Minister and provide a copy thereof to the Secretary. The NPA should provide the Executive Director with reasons for not continuing with prosecuting.

There was no discussion on this submission.         

Africa Criminal Justice Reform submission  

Dr Lukas Muntingh, Project Coordinator: Africa Criminal Justice Reform (ACJF), said that the lack of prosecutions initiated by the NPA emanating from criminal recommendations by IPID to the NPA fundamentally undermined the purpose of IPID, as articulated by the IPID Act. If there were no, or few, actual prosecutions in relation to the number of recommendations for prosecutions, as was the case, it placed the purpose of both institutions into question. Addressing the issue of impunity in the police required close cooperation between SAPS, the NPA and IPID, as there was a collective duty under the Constitution to hold perpetrators of rights violations accountable.

ACJF strongly believed that Section 7 of the IPID Act should be amended to address the lack of transparency and accountability, and to compel the NPA to make decisions to prosecute or not. The aim is to avoid the current situation, where cases were apparently in limbo at the NPA. It was therefore proposed that the NPA submit regular reports to IPID on the status of cases under consideration for prosecution. Such reports should reflect whether a decision to prosecute or not has been taken, and if not, the reasons for this. It was further proposed that the NPA must make a decision to prosecute within a set period, unless further investigation was required. The Committee should be the one to determine the time period. The NPA should submit a report stating the reasons for failure to proceed with prosecution in order for IPID to be able to address any shortcomings and also so that this information could be conveyed to the alleged victim.

There was no discussion on this submission.

African Police Civilian Oversight Forum submission 

Mr Chumile Sali, Project Officer: African Police Civilian Oversight Forum (APCOF), said IPID played a critical role in a democratic South Africa by providing for, inter alia, independent and impartial investigations of the most serious violations of the law by officials of the South African Police Service (SAPS) and the Metro Police Service (MPS).

APCOF supported the efforts taken by the Committee to implement the decision of the Constitutional Court through the development of the draft IPID Amendment Bill. APCOF commended IPID for its considered engagement with the Constitutional Court’s decision, which included two stakeholder consultations on proposed amendments to the current IPID Act. However, there was a concern that the CSPS did not facilitate the necessary process of ministerial and Cabinet review in time to allow the draft Bill to be presented before Parliament.

APCOF submitted that consideration should be given by the Committee to the appointment of the Executive Director. Whenever there was a vacancy, a committee established by the National Assembly should initiate the appointment of the Executive Director through an open, transparent and competitive recruitment process. The Executive Director should be appointed for a non-renewable fixed term of not shorter than seven years and not exceeding ten years.

Regarding the removal of the Executive Director, APCOF supported the proposed amendments in Section 6 of the IPID Act. APCOF was however concerned that no criteria or direction was provided for the suspension, discipline or removal of the Executive Director on grounds which included misconduct, incapacity and incompetence. Further, given that the suspension, discipline or removal of the Executive Director was premised on a finding by the Committee of the National Assembly. APCOF submitted that it was crucial that a process for such a finding was established in the Act. Any complaints relating to allegations contemplated in the Act must be communicated in writing to the Speaker of the National Assembly and copied to the Minister within 14 days after the receipt of such complaints.

APCOF suggested that the Committee should amend the current Section 4 of the IPID Act to promote more robust institutional independence of IPID. Section 28 of the Bill should be amended to be able to distinguish between assault and torture, as contemplated in the Prevention and Combating of Torture of Persons Act, 2013. Section 29 of the Bill should be amended to provide for compulsory reporting of specific types of offences committed by members of the police service. APCOF recommended that Section 30 should be amended to stipulate the initiation of a disciplinary inquiry on a recommendation from IPID, and providing for the definition of “initiation”.

There was no discussion on this submission.

Critical Infrastructure Protection Bill: Briefing by Parliamentary Legal Adviser

Mr Siviwe Njikela, Senior Parliamentary Legal Adviser; said that the Critical Infrastructure Protection Bill was currently before Parliament and would replace the National Key Points Act 102 of 1980, which has always been flawed and had recently become outdated in the light of the heightened international awareness of the threats of terrorism.

AmaBhungane had made representations to Parliament on the Bill and provided it with an opinion by Dr Dario Milo, of Webber Wentzel, and Advocate Ben Winks, dated 25 April 2018. They had expressed the view that the clause 26 prohibitions would fall foul of the right to freedom of expression in Section 16 of the Constitution unless they were made subject to a defence of ‘publication in the public interest.’ Parliament sought a second opinion on this issue. The prohibition of the prescribed conduct, only if it was “unlawfully” done, was of little value and rendered the meaning of prohibition uncertain. The prohibition in clause 26(1)(c) seemed to be a mistake – it did not add anything to the prohibition in clause 26(1) (b). The taking of a photograph could also never be a contravention of the notices contemplated in clauses 24(8) and clause 25(8), because they did not prohibit the taking of photographs. The substance of the prohibition in clauses 26(1) (a) and (b) was that nobody may disclose any information, or take a picture, of the security measures at critical infrastructure.

Mr Njikela commented that the definition of “security measures” was too wide, as it included security measures which were already on public display, such as the fence around Parliament and the police officers on duty at its entrance. The prohibitions of the disclosure of information, and the taking of pictures of security measures of this kind, were clearly not justified. They did not serve any justifiable purpose and thus unreasonably limited the constitutional right to freedom of expression. The prohibitions, as currently formulated, would not pass constitutional muster because they unjustifiably limited the right to freedom of expression in Section 16 of the Constitution. To render them constitutionally compliant, they should be limited to the disclosure of information, and the taking of pictures of the security measures of critical infrastructure that were not in the public domain. Adv Trengove believed that the current formulation of prohibitions would not be saved from constitutional invalidity by the introduction of a public interest defence. If the prohibitions were reformulated, however, along the lines as suggested, then they should pass constitutional muster without the ‘public interest’ defence.

Discussion

The Chairperson welcomed the legal opinion that had been presented to the Committee. and said Members would be given ample time to study it so as to discuss it further when the Committee resumed with this matter on Tuesday. The Committee would now give an opportunity to the legal drafting team to brief the Committee on the consequences resulting from this legal opinion that had been presented to the Committee.

Legal drafting team: Briefing

Brigadier Bert van der Walt, Head: Legal Support Service, South African Police Service (SAPS); said the legal opinion that had been presented by the Parliamentary Legal Adviser did not expand on the objective measures, as only two statements had been made on this issue. The legal drafting team would redraft the affected clauses and make a submission to the Committee, and this would be from clause 16 up to clause 20. It had to be clarified that the actions that were enumerated in clause 26(1) may be performed by an official like an inspector, who was supposed to disclose information about the security measures in a report to the Critical Infrastructure Council. The inspector may take pictures of the critical infrastructure.

The word “unlawfully” was a drafting convention and appeared in the bulk of South African legislation. The legal drafters believed that the word “unlawfully” should be retained in the offences section in order to exclude lawful actions by, for example, officials. The legal drafting team agreed with the submission that had been made by Adv Trengove that clause 26(1)(c) should be removed from the current draft.

With regard to clause 26(1) (a) and (b), the legal drafting team agreed that the definition of “security measures” created a big obstacle for the purpose of offences. They believed that this could be addressed by narrowing down the definition of “security measures”. This could be addressed if the definition of security measures could be narrowed down to clause 26(1) (a) and (b). It must also be clarified that the “public interest defence” became unnecessary if the clause was limited to prohibit the disclosure of information that was not in the public domain and the taking of pictures of critical infrastructure that was not in the public domain. 

Discussion

The Chairperson reiterated that Members would be given ample time on the coming Tuesday to reflect on this matter. The Committee would also ensure that Members were provided with the draft presentation that had been made by the legal drafting team.

Ms Kohler Barnard said that the “public interest defence” was not limited to the taking of pictures, and this needed to be emphasised.

Brigadier Van Der Walt clarified that the journalists would still be allowed to publish information that exposed corruption, as long as this did not expose security measures themselves that were not in the public domain.

Ms Kohler Barnard maintained that there was no journalist that was interested in security measures – they were only interested if there was corruption happening inside the critical infrastructure.

The Chairperson said that Members would be given ample time on Tuesday in the afternoon to deliberate on the amendments that would be made by the legal drafting team, and this was when the Committee would adopt the Bill if everyone was happy with the final drafting of the Bill. The Committee would allow stakeholders to make the presentations on Tuesday in the morning on the IPID Amendment Bill, and then the Parliamentary Legal Adviser would go through the matrix of the submissions and determine the issues that were relevant from the submissions, if there would be no other submissions to be made. The reality was that a lot of the presentations that had been made today were outside the scope of the Bill, but were still valuable, and there were lot of good inputs that could be looked into in the future.

The meeting was adjourned.

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