The meeting was convened to finalise the Critical Infrastructure Protection Bill, the tabling of a referral from the Speaker on the Independent Police Investigative Directorate (IPID), a briefing by the National Forensic Oversight and Ethics Board (DNA Board), and to attend to Committee business.
The Committee agreed that it had no major concerns regarding the amendments to the Bill, other than some grammatical issues and some aspects that required clarity. These were related to matters such as whether there was a need to consult with traditional leaders on the Bill, and whether non-South Africans could be employed as security personnel at critical infrastructure facilities. In this regard, SAPS advised that the vetting process for security personnel would exclude foreigners, while the State Law Advisor indicated that the Bill did not impact on traditional leaders.
The Committee approved the Critical Infrastructure Protection Bill and finalised its report to Parliament. All Committee Members accepted the report, but the DA advised that it did not accept or reject the Bill, as it still needed to discuss the issue at its caucus. Some ANC Members were not happy with this approach.
The Chairperson said that the Speaker had referred a matter involving the Independent Police Investigative Directorate (IPID) to the Committee concerning an issue raised by Mr Cedrick Nkabinde, a suspended investigator. Members could study the contents of the document to familiarise themselves on the matter, as the Committee would in due course attend to it.
The briefing and discussion on the DNA Board took a substantial period to conclude due to the concerns and problems relating to the interface between the Board and the Civilian Secretariat for the Police Service (CSPS). The Chairperson and all Committee Members expressed their displeasure and concern regarding the fractured working relationship between the Board and the CSPS.
The DNA Board briefed the Committee on developments at the organisation and highlighted that the Board’s strategic objective was to ensure that an effective DNA data base was in place that would enhance the criminal investigation capacity of the South African Police Service (SAPS). The Board had three statutory obligations - to improve operational practices at the National Forensic DNA Database (NFDD), to provide oversight on the collection and storage of DNA samples, and to receive and assess any complaints regarding alleged violations of the abuse of DNA samples and forensic DNA profiles. Thus far no complaints had been received and there had been no security breaches at the NFDD.
Important issues the Board was dealing with related to the inadequate supply of buccal sample kits at police stations, oversight on procurement related to DNA information, and reporting on complaints and the misuse of DNA information. A key concern was the structuring of the Board and its relationship with the Ministry of Police and the CSPS. Plans were in place to address this issue at a strategic planning session to be scheduled in due course. The Board was also concerned about the delay in approving the Amendment Bill, which contained measures to improve crime fighting in terms of improved forensic information and operations.
The Committee discussed the continued in-fighting between the Board and CSPS, and how this impacted service delivery. Members demanded a clear plan to address the challenges between the two parties that would stabilise the organisation. Concern was expressed that the CSPS was using its budgetary control to influence the Board. They questioned the readiness of the provincial task teams to help in combating crime, using DNA information, and wanted to know what was being done to address the shortage of buccal sample kits at police stations.
The Chairperson requested the Board and the CSPS to meet urgently to resolve their differences and provide the Committee with a structured plan on the way forward. The Committee would then compile its report on the matter and inform Parliament. This was agreed to by all parties.
The Chairperson outlined the programme for the day and advised that it would encompass the following:
- Amendments to the Critical Infrastructure Protection Bill (B22-2017), hereinafter referred to as the Bill;
- The Committee report on the Bill;
- A referral from the Speaker on the Independent Police Investigative Directorate (IPID) to the Committee;
- A briefing by the National Forensic Oversight and Ethics Board (DNA Board) on its strategic plan and annual performance plan for 2018/19;
- Finalisation of outstanding Committee administration issues (meetings and plans).
Critical Infrastructure Protection Bill (sec 75, B22-2017)
The Chairperson asked the Department of Police if there they had any further comments prior to the Committee’s discussion on the Bill.
Brigadier Bert van der Walt, Head: Legal Support, South African Police Service (SAPS), responded that there were no further aspects to be added and that the Department had checked all amendments and that these were now included in the documents before the Committee.
The Chairperson advised that the procedure to be followed in reviewing and checking the amendments to be incorporated in the Bill, would be as follows:
Firstly, the Committee would review each page of amendments which had emanated from prior meetings with stakeholders, and verify them for clarification, discussion and further additions prior to their acceptance.
Secondly the Committee would vote on the amendments, and the last process would be to get agreement amongst Members on the Committee report on the Bill to be submitted to the National Assembly.
Committee review on amendments to the Bill
The Chairperson advised that Mr Irvin Kinnes, the Committee Content Advisor, would read out the amendments to the Bill, page by page. Committee Members could discuss and ask for clarity on issues as these arose, as each page was read.
All Members accepted the amendments as read out, when asked so by the Chairperson after each page. There were no substantial discussions to clarify, reject or propose further changes – only very minor comments and discussion.
Mr Z Mbhele (DA) queried if the numbering in the document was correct, as it did not seem to correspond to numbering in the Bill. Brig Van der Walt responded that the numbering in the amendments referred to the original Bill. He advised that the final numbering would conform to Bill B22-2017.
Mr J Maake (ANC) also queried the numbering of certain clauses as read out by the Committee Content Advisor, but the issue was clarified as the Content Advisor had misread a clause in the amendments.
During the reading of the amendments page by page, Mr Sisa Makabeni, the State Law Advisor, gave the Committee Content Advisor an updated document on the amendments that contained the correct numbering.
Mr Maake raised a concern pertaining to Clause 17 of the Bill that dealt with the declaration and registration (name and address of facility) of critical infrastructure. He wanted to know if there were any critical infrastructure facilities whose location had to remain unknown to the general public, in the interest of national security.
Brig Van der Walt responded that the Bill made provision for this -- where necessary, the address of a facility would be excluded in the registration process.
After the above process, the Committee proceeded to vote on the inclusion of the amendments, as discussed.
The Committee accepted by the amendments as read.
Mr Mbhele advised that the DA at this stage was neither rejecting or accepting the amendments and that it reserved its right on the matter, subject to deliberations in its caucus.
Mr Maake wanted to know if the Bill had to be referred to the House of Traditional Leaders, and if the Bill would impact on the National House of Traditional Leaders (NHTL). He queried if perhaps the Bill had to be a s76 bill, and be referred to the National Council of Provinces (NCOP)
Mr B Mhlongo (EFF) commented that he was sure that the Bill addressed the issue of critical infrastructure in areas under the jurisdiction of traditional leaders.
Mr Makabeni responded that the Bill would not impact or affect land under the jurisdiction of traditional leaders.
Mr Maake questioned whether non-South Africans could serve on the security teams associated with critical infrastructure.
Brig Van der Walt responded that all security personal would be vetted, so this issue would be addressed in this process.
Mr Maake wanted to know if the Bill specifically indicated that non-South Africans would be excluded.
Brig van der Walt indicated that the Bill did specifically indicate this. He was very confident, however, that the vetting process for security personal would ensure that non-South Africans were excluded.
Committee report on Bill
The Chairperson asked Members to review and give their approval or rejection of the Bill on a page by page basis. The Committee report was accepted by the Committee as presented, except for a minor grammatical correction.
Mr Mbhele reminded the Committee of the DA’s position that it neither accepted or rejected the Bill, subject to its caucus deliberations. The Chairperson said he noted this.
Despite the comments above, Mr Mbhele (DA) proposed acceptance of the Committee Report on the Bill, and was supported by Mr Maake (ANC).
The Committee adopted the Bill.
Ms L Mabija (ANC) said she was not happy with the DA’s response, reserving its right until its caucus discussion on the Bill. She felt that as there was agreement in the Committee on the Bill, all had to support it. She did not want to see a different view expressed elsewhere, such as in the media. She said this would undermine the Committee and the people of South Africa.
Mr Mbhele responded that he was not sure what Ms Mabija meant, and that he would be happy to clarify the issue with her off-line.
Ms D Kohler Barnard (DA) said the DA was merely following past practices. This approach was not new.
The Chairperson expressed his appreciation to all who had worked on the Bill and the co-operative approach taken by all stakeholders to get to this stage of its finalisation.
The Committee reviewed its draft minutes for the period from January 2018 until July 2018. The draft minutes were not available to the general public attending the meeting.
All minutes were approved with amendments, except those for the meetings on 16 May, 3 July and 29 July, which were referred back to the Committee secretariat for correction. Most of the amendments related to the correction of some grammatical errors and minor technicalities. A recurring concern raised by Committee Members was that some of there were recorded as absent from meetings they had actually attended. The Chairperson asked the Committee secretariat to investigate and correct these instances.
The Chairperson informed members that the Speaker had referred a matter to the Committee regarding the Independent Police Investigative Directorate (IPID). The contents of the referral document from the Speaker were not made public at the meeting, but the Chairperson indicated that it was related to an issue tabled by Mr Cedrick Nkabinde, a suspended investigator, on 11 July 2018. He said Members could study the contents of the document to familiarise themselves on the matter, as the Committee would in due course attend to it.
National Forensic Oversight and Ethics Board (DNA Board) Annual Performance Plan
Ms Vanessa Lynch, Deputy Chairperson: DNA Board, said that the DNA Board had been established in terms of section 15V of the Criminal Law Amendment Act, No. 37 of 2013, which dealt with forensic procedures (“the DNA Act”). It was funded by the Minister of Police. The current structuring of the Board constrained its effectiveness due to various conflicting reporting lines that hampered its functioning. This was a major issue that had to be addressed.
The Board had three statutory obligations. These related to improvement of the operational practices at the National Forensic DNA Database (NFDD), providing oversight on the collection and storage of DNA samples, and receiving and assessing any complaints regarding alleged violations of the abuse of DNA samples and forensic DNA profiles. Thus far no complaints had been received, and there had been no security breaches of the NFDD
The DNA Board was financed by the Department of Police. Resourcing was the major component of the budget – for example, 77% of 2018/19 budget was for the remuneration of employees. The Board had now appointed a Director, and a Deputy Director would be appointed soon. The organisation was still looking for office accommodation as this was subject to approvals and allocations within the Civilian Secretariat for Police Service (CSPS).
Mr Tumelo Nkojoana, Chief Financial Officer (CFO), CSPS, advised he would provide comments on financial matters later in the meeting.
Regarding the performance objectives of the DNA Board, Ms Lynch said the key purpose was to oversee the administration and maintenance of the NFDD. The strategic objective of the DNA Board was to ensure that an effective DNA data base was in place that enhanced the criminal investigations capacity of SAPS. Some of the key performance indicators of the Board were:
- The number of reports on the functioning of the NFDD on an annual basis - the target was four;
- The number of reports in respect of buccal swab training per annum, which was a very important aspect as it allowed police officers to take samples from arrestees. The shortage of buccal swabs at police stations was impacting negatively on this performance indicator;
- The number of outcome reports to the Minister of Police (complaints and other assessments). Thus far there had been no formal complaints in respect of the NFDD.
- Quarterly reports submitted to Parliament
- The number of Board meetings per annum. The target was four (quarterly).
- Site visits to police stations and forensic laboratories to engage on issues and assess operations.
The key challenge remained the structuring of the Board, and where it resided within current SAPS organisational structures, as well as reporting lines and the overall independence of the unit. A strategic planning session would be convened in due course to address this.
Other important aspects that required urgent attention were:
- that the Board had to work closely with SAPS and other role players to unlock the challenges of the inadequate supply of buccal swab kits and consumables at police stations;
- that it would work closely with the CSPS to amend the DNA regulations, as this would improve the effectiveness and functioning of the provincial task teams charged with following up forensic leads. It was a major concern that the Amendment Bill, which would allow convicted offenders to be sampled on an ongoing basis to improve crime fighting through correlation with other crime data for example, had yet to approved. Some serial offenders were slipping through this loophole, due to the delay. The information of serial offenders on the NFDD was crucial to the success of combating crime. The Minister of Police had indicated that he wanted to explore another option of using data on the population register compared to just a data base of criminal offenders.
- to maintain oversight over the procurement of the FBI’s Combined DNA Index System (CODIS). This would allow SAPS to conduct familial searches. The procurement had been approved, but was still in the process of administration procedures being finalised.
- the information on the Sexual Offenders Database still had to be integrated within the DNA data base. This remained problematic due to systems problems, but would be addressed within the next few months.
The Chairperson said that the presentation was not what the Committee had expected, as it was not in the usual format that strategic plans and annual performance plans were presented for approval in Parliament. He was therefore not sure what the Board wanted the Committee to do. He was also concerned with the lack of buccal kits at police stations, and wanted to know what was being done to rectify the problem.
Ms M Molebatsi (ANC) wanted answers on four aspects. Had the situation regarding the shortage of DNA kits improved? Had any complaints been raised on the unethical use of DNA? Were the Board sub-committees functioning properly? Was there any way of detecting if any DNA samples were taken incorrectly?
Ms M Mmola (ANC) said she was concerned about the lack of office space for the DNA Board, as well as the whereabouts of the Director and Deputy Director. She wanted to know if the Secretary of Police was aware of this. She also wanted to know how many DNA profiles had been deleted from the NFDD.
Mr Maake wanted to know what the reason was for the Minister’s refusal to approve the amendments to the Bill. He said that the provincial task teams were very important, and wanted to know if they were already in existence or still needed to be established. Were they part of SAPS, the DNA Board or the CSPS?
Mr Mbhele said it was critical that there were enough buccal sample kits. He was concerned about the status of the Board, and felt there was a misalignment of perspective on what or who the Board was and the relationship with the police secretariat. He wanted to know if the Board was independent and if it operated as such. Did the Board have any financial constraints? Did anyone know where the Director and Deputy Director were and why they had not attended the meeting. He wanted more information on the proposed strategic planning session, as it was important to address the concerns raised. He commented that the Committee could provide assistance to facilitate and fast track the planning session to resolve the concern around the identity and structure of the Board. He asked where the most acute supply bottlenecks were for buccal sample kits. Lastly, he wanted to know if anyone from the Ministry could clarify why the Amendment Bill was being delayed.
Mr Mhlongo said that the critical question was what the role of the Minister was in all the issues raised thus far, and if there was a problem in the relationship between the DNA Board and the Minister. He asked if the DNA Board collected samples at crime scenes, not just buccal samples of inmates. He was concerned about the potential for conflict between the CSPS and the independence of the DNA Board, as the Secretariat funded the Board, and could therefore use this to influence the Board.
Ms Kohler-Barnard said that at a meeting on12 June with the DNA Board, it had emerged that there were problems at the Board and that it seemed as if it was dysfunctional. She wanted to know if there were still disagreements between the Board and Secretary of the Police. This was the ‘elephant in the room,’ and it had to be addressed. She wanted to know what the cause was for the ineffectiveness of the Board and where the problem was. Another concern was about the Amendment Bill, which had been stopped by the Minister of Police. She suggested that the Committee had to engage the Minister to resolve this. She wanted to know if the buccal swab shortage was national, or if the problem was just in some areas.
Ms Lynch said that the Board relied on its Director to advise it on matters regarding Parliamentary protocols and information for the Portfolio Committee. She apologised for the lack of information and not meeting the guidelines as expected by the Committee. The Director had taken leave, hence his absence. The Board would get back to the Committee to ensure that the appropriate information was made available. She asked if the Police Secretariat could assist in this regard.
She said that the current structure of the Board was complicated, and that it constrained its overall operational effectiveness. She had approached the Police Secretariat to assist in helping to address the problem.
Mr Alvin Rapea, Secretary for Police Service, said that it was very easy to point fingers when things did not go according to plan, and that it was not fruitful in helping to address the concerns. The CSPS observed the government planning cycle, and he had written to the DNA Board to inform it of this. He was a member of the Board, and that the Board reported to the CSPS. He indicated that the Minister might still change his mind regarding approving the amendments referred to earlier, as he was awaiting more information, including a memo from Cabinet on the issue.
Regarding buccal sample requirements, he advised that the Minister needed more clarity on the outstanding sample kits required between SAPS and the Department of Correctional Services. Once the disparity between these was addressed, the issue should be resolved.
Mr Rapea agreed that the suggestion to utilise data on the national population register would not be appropriate.
He had not said that the Board had to be dissolved, but had merely said that in his opinion, it was dysfunctional.
At this stage Ms Kohler Barnard interjected and said that she was quoting from the Committee minutes on the issue, and that there was a comment in the minutes from Mr Rapea that the Board had to be dissolved.
Mr Rapea said he did not recall making such a statement.
He continued responding on other issues raised by the Committee, and said that he had consulted National Treasury (NT) on the need for offices for the CSPS and the DNA Board. A facility had been identified and a process was under way to secure office space.
Mr Mhlongo said he required clarity on the comment by Mr Rapea that the Board had be dissolved. As Mr Rapea was part of the Board, was he in essence “dissolving” himself as well?
Mr Rapea responded that he has aware of this, and that the dissolution of the Board would include himself. He reiterated that he had said that the Board was dysfunctional and had not called for its dissolution.
Mr Maake said that it was evident that the problems discussed thus far had been ongoing for some time. He wanted to know what the Committee was going to do to address the problem and provide stability within the Board. It was impossible for the CSPS to be impartial as it was funding the Board. In addition, the Secretary of Police was a member of the Board.
Mr Tumelo Nkojoane, Chief Financial Officer (CFO): CSPS, said that the DNA Board was adequately funded
Ms Mabija said she was disturbed on what was unfolding at the meeting between the Board and the CSPS. There were two opposing views and both parties were blaming one another. She approached the Chairperson and said that the Committee had to act decisively once all input had been given, and that it should provide a recommendation on the way forward.
Ms Molebatsi said she could see that the Deputy Chairperson of the Board was unhappy about proceedings. She wanted more information on the absence of the Director, and wanted to know what the problem was.
Mr Maake said he was concerned that the CSPS was budgeting for issues without the proper approvals – for example, the office space for the DNA Board. Public Finance Management Act (PFMA) rules had to be adhered to when using government funds. He was also concerned that the CSPS was using money to the control the DNA Board. He suggested that the Ministry of Police, the CSPS and the DNA Board had to meet and thrash out their problems, as it was not the Committee’s job to resolve the current impasse between the parties. He asked the Chairperson to provide a timeframe within which the CSPS and the Board had to meet and revert to the Committee with a solution.
The Chairperson responded that the Committee had already requested that from both parties.
Mr Mhlongo questioned whether, given the impasse, it was fruitful to continue with the meeting. In addition, it was crucial for the Director to be present.
Mr Maake said that in the absence of the Director, the Committee could not provide effective oversight on the issues raised regarding the Board. He also felt that the CSPS could not “rule” on the dissolution or dysfunction of the Board, as this was a Parliamentary responsibility, and not that of the CSPS secretary.
Ms Mmola said that the DNA Board, SAPS and the CSPS had to meet and thrash out their differences and report back to the Committee. The Committee needed answers on the way forward and not any of the infighting currently on display.
Ms Mabija said she wanted to close the discussion by saying that the Committee would require another briefing by the parties involved. Failing that, an investigation would have to be launched to get to the bottom of the problems.
SAPS feedback on Committee issues
Lieutenant General Dumisa Magadlela, Acting Divisional Commissioner: Forensic Services, Fingerprints and Related Databases, SAPS, provided feedback related to queries and issues raised by the Committee.
He said that SAPS had dealt with 179 546 DNA cases. Regarding provincial task teams, he indicated that SAPS needed a target to ensure it knew what to address. Operations at forensic laboratories were fine, but that SAPS had a problem when capturing data. About 36 000 SAPS members had been trained to collect buccal samples. Buccal sample kits earmarked for training had been diverted to police stations to address the shortage. In addition, SAPS had short-term contracts in place with suppliers to alleviate the current shortage. The sample shortage arose due to procurement issues, including the issue of a single “evergreen” supplier questioned by the Standing Committee on Public Accounts (SCOPA).
The Chairperson wanted to know if there were enough buccal samples country wide.
Lt Gen Magadlela responded that they were moving samples from where they were not needed to where where was an urgent need. He indicated that by September 2018, the shortage should be alleviated once the new supply chain was established.
The Chairperson wanted to know what the protocol was for DNA collections and analysis, and how these were prioritised between political high profile cases and ordinary priority criminal cases. He said the Committee was in full support of the DNA analysis that provided operational support to SAPS and led to the arrest of criminals. He wanted to know if it was possible to leave the old data on the system -- even those of closed cases -- as this would be useful if a re-offence occurred.
Mr Maake said that the Committee should not allow supply chain constraints to impact on service delivery to the people of the country.
DNA Board response
Ms Lynch said that the Board would urgently attend to the strategic plan to address the problems, and would implement a new plan with clear directions for the organisation going forward. The Board had good intentions regarding its oversight on issues, and had a good relationship with SAPS. A key deliverable would be how the Board could deliver on its mandate within the current constraints. The Board would keep the Committee informed of developments, including the terms of reference for the strategic planning session. The Board would welcome input from the Committee and the CSPS on the terms of reference.
The issue of the Deputy Director would be addressed at the strategic planning session, as funding was available to fill this position.
She said that if any buccal samples were taken incorrectly, these could be detected and rejected. Samples would then have to be retaken by members of the SAPS forensics team.
The Board was concerned about the delay in progressing the Amendment Bill. The Board wanted the amendments to be implemented, as this would enable the creation of a convicted criminal index system
Ms Lynch advised that the provincial task teams were currently in place, but they were small and operating informally in addition to their other tasks. The amendments would formalise the task teams as stand-alone units with clear guidelines and deliverables. It would enable them to operate within SAPS but with their own budget. The SAPS members currently attached to these teams were very committed.
The most acute bottlenecks regarding buccal sampling kits, consumables and laboratory forensic materials were in supply chain management. SAPS were redistributing buccal samples during this period, but she believed that some criminal offenders were not being sampled due to the shortage.
Ms Lynch said that thus far the Board had received no complaints from the public regarding the unethical use of DNA information.
Mr Rapea asked that the Board and CSPS be given time until the end of September to resolve their differences. He was confident the Board and the CSPS would “find” one another and resolve their differences. They would then report back to the Committee.
He said that the Board, like SAPS, had to procure office accommodation through the Department of Public Works, and that departmental budgets were administered as per government’s Medium Term Expenditure Framework (MTEF).
Chairperson’s concluding comments
The Chairperson said that from the Committee’s perspective, it was critical that government departments adhered to the PFMA, National Treasury regulations and other guidelines regarding their engagement on aspects like annual performance plans. All presentations to Parliament had to conform to these agreed guidelines.
He requested that the Board and CSPS report back to the Committee within 14 days regarding the resolution of the issues and problems discussed during the meeting. This was agreed to by all parties.
The Committee would then compile its report to Parliament on the matter.
The meeting was adjourned.
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