Police Legislative Programme; PSIRA proposed regulations; AGSA new powers

This premium content has been made freely available


11 September 2019
Chairperson: Ms T Joemat-Petterssen (ANC)
Share this page:

Meeting Summary

Auditor General South Africa presented on the new amendments which give extended powers to the Auditor General to enhance the ability for consequence management. It also gave a summary of past audit findings for the Police portfolio.

Members asked how often the Committee as an oversight body could expect progress reports from entities on material irregularities; if there were incidents of non cooperation from the Police portfolio; and the move of the Integrated Justice System budget from Department of Police to Department of Justice. Questions on the Police 2018/19 audit would be answered in October after the release of the audit findings.

The Civilian Secretariat for Police Services presented the current status of legislative which included the South African Police Service Amendment Draft Bill, Firearms Control Amendment Draft Bill, Second-Hand Goods Amendment Draft Bill, Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Draft Bill (POCDATARA) said that Independent Police Investigative Directorate (IPID) Amendment Draft Bill, Criminal Law (Forensic Procedures) Draft Bill, and the Controlled Animal and Animal Products Draft Bill.

Members asked why these many Bills had still not been processed, what did "the legislation was at an advanced stage" mean and what role could the Committee play to facilitate to get these to Parliament faster.

SAPS was to present the draft gun amnesty notice. However, due to technical and legal concerns raised by the Committee, this briefing was postponed.

The Private Security Industry Regulatory Authority (PSIRA) spoke on its proposed regulations for the private security industry. These dealt with the possession and use of firearms by security personnel; the use, training and welfare of working animals such as dogs and horses; and the regulation of uniforms and insignias, especially to more easily distinguish the difference between the police and private security.

Questions were raised about the lack of coordination between SAPS and PSIRA, especially in light of the PSIRA requirement for registration of firearms and whether this would help or hinder SAPS processes. There were also concerns that the regulations do not go far enough in ensuring security guards are adequately armed and adequately trained in use of firearms, care for the working animal, and crowd control.

Meeting report

Auditor General South Africa (AGSA) extended powers
Mr Eugene de Haan, Deputy Business Executive, AGSA, in order to conserve time, addressed the most important slides but questions were welcomed on any matter contained within the slides. The briefing covered the mandate to provide reasonable assurance that Annual Financial Statements are free from material misstatements based on in accordance with international auditing standards. The AG will report on the usefulness and reliability of information in the Annual Performance Report. However, there is no official opinion given on the guarantee of service delivery. They will report on material non-compliance with relevant legislation, but not all applicable laws and regulations – specifically looking at PFMA and Treasury Regulations and any enabling legislation. Although the AG will look at any internal control deficiencies that caused audit outcomes, there is not a full identification of fraud. If any fraud is determined there is an obligation to report this to management. However, the audit itself is not set out to identify fraud. The different audit outcomes were described: clean audit; financially unqualified opinion with findings; financially qualified opinion with findings; adverse opinion; and disclaimer.

Slide 9 dealt with the oversight role of the Portfolio Committee and how the AG can assist with capacity. The Committee gathers information and examines reports, and formulates findings and recommendations before submission to the legislature for adoption. The audits will find inconsistencies and make recommendations on how to improve further audit outcomes. Therefore, external assurance can be given on financial affairs, performance information and compliance of legislation.

Slide 11 gave the audit outcomes for all levels of government from 2008 until 2017/18. Over the last 10 years there is little improvement. There is an alarming rate of continual irregular expenditure, fruitless and wasteful and unauthorised expenditure. From 2016/17 to 2017/18 there was an accrued R194 million in irregular expenditure, 89% of which has not been dealt with at all. Over the last 10 years AGSA identified that accounting officers, and accounting authorities are not instigating their consequence management responsibilities in line with PFMA regulations. As a result, less than 1% of the total amount in this category has been recovered or transferred to debtors.

The root causes of continual poor audit outcomes:
• Blatant disregard for controls, compliance with legislation and AGSA recommendations
• Continued capacity gap in administration
• Vacancies and instability slow down systematic and disciplined improvements
• Unethical behaviour in administration and by political leaders
• Leadership’s inaction / inconsistent action to addressing persistent transgression creates culture of ‘no consequences’

Due to the assessment of audit outcomes over the last 10 years, the AG engaged with Parliament to ask for extended powers. The Public Audit Amendment Bill was brought into operation on 1 April 2019. The three main areas in which the powers have been extended are:
• During the audit process the AG will now be able to identify a material irregularity, then an assessment will be done, and depending on capacity and necessity for expertise, the AG will investigate further or pass to another Chapter 9 institution or law enforcement agencies.
• Take binding remedial action, where once a material irregularity is found, and it is not addressed, then binding recommendations will be made on how to deal with them.
• If the recommendations are ignored, then the AG will issue a certificate of debt. This means the accounting officer/authority is not complying with the PFMA by not holding staff to account for irregular expenditure and there is potential for theft or fraud. The accounting officer/authority is then held solely responsible for the certificate of debt.

The definition of 'material irregularity' was outlined and the difference between irregular expenditure and material irregularity. Irregular expenditure and material irregularity are different, irregular expenditure is non-compliance to legislation. Material irregularity goes a step further, where it is possible to proof an entity has incurred or is likely to incur a loss because of non-compliance.

Examples of material irregularity:
• non-compliance with supply chain management legislation, and competitive vetting processes, the resulting impact is a material financial loss due to goods being priced above the market value.
• fraud, such as bribery of an official, where payments are made for services never delivered.
• breach of fiduciary duty, where the board of a public entity is not exercising proper care with material loss.
• repeat disclaimer audit opinion, where there is substantial harm as accountability significantly weakened.

Slide 25 outlines how the process will be implemented (see document).

Within the expanded mandate the AG has the sole discretion to determine the nature, frequency and scope of the audits, and may refer material irregularities to public entities, and may make recommendations in the report concerning any matter including irregularities.

The full implementation of the legislation has not yet been rolled out for all of government; 16 audits have been identified to roll out first. The criteria for selection of these were whether the Department or entity had excessive amounts of irregular expenditure, and continuity of irregular expenditure that was not dealt with. The Department of Police was not included in these. Whatever is learned from these audits, however, can be used as examples for recommendations to all Departments on how to prevent these issues going forward.

The role of the executive authority will be to:
• Insist on frequent credible reporting on state of financial and performance management from entity
• Using these reports to monitor, direct and support accountability,
• Set the terms of accountability,
• Share any knowledge on possible material irregularities with the AG,
• Monitor the progress of the implementation of recommendations on material irregularities.
• Support referral and remedial process, including recovery of debt if required. The certificate of debt will be issued to the accounting officer or authority, but it will up to the executive authority to oversee implementation in order to follow up on the recovery of debt. Any remedial action to be taken will also be sent to the executive authority to follow up on the binding recommendations as put forth in the audit report.
• Monitor progress of investigations.

 It is recommended that oversight bodies use the information in audit reports for the purpose of accountability, insisting in the timeliness implementation of recommendations. As soon as a material irregularity is recognised within the audit report then the AG will inform the Portfolio Committee to ensure they can monitor the process.

Similarly, when material irregularities are referred to other bodies, then the AG has an obligation to monitor the progress of these and report to Parliament so they can be followed up.

Slide 34 speaks on oversight and preventing and tracking material irregularities. There are specific reports, registers and control documents, the Committee can request for the purpose of tracking and monitoring.

Slide 37 shows the audit outcomes of Police and its entities from 2013/14 to 2017/18, the 2018/19 is not yet tabled but will be presented in October 2019. The Department of Police was unqualified in 15/16 but then in 16/17 and 17/18 they received qualified opinion. In 16/17 there were network assets that SITA procured on behalf of the Police which were not disclosed in the financial statements of Police.

In 17/18 the Department tried to record these network assets; however, it was viewed as incomplete; therefore, they were qualified. In 17/18 reviews were conducted on supply chain management procedure and it was found there were deviations not properly supported by motivations, resulting in irregular expenditure. There were also contracts, which were extended over and above 15%. There was no way to quantify the amount disclosed in the financial statements in 17/18 as complete; therefore, they were qualified on the completeness of financial statements.

The Department in 17/18 incurred accruals of almost R800 million which caused a net liability position of R397 million. The accruals and payables are highlighted because they will end up being paid out of the next year’s budget. This will potentially affect service delivery on the predetermined objectives for that next year.

The Private Security Industry Regulatory Authority (PSIRA) incurred a deficit of R12 million, and the net liability position was R4.7 million. They receive levies from private security companies. There is a concern due to the slow collection of revenue. Management have implemented a turnaround strategy which has been assessed in 18/19 and will be reported on next month.

In 17/18 SAPS had R996 million on irregular expenditure from the samples audited but management only disclosed R19 million, thus the qualification on irregular expenditure. This irregular expenditure was mainly because of exceeding contracts payments by more than 15%, irregularities regarding rewards to suppliers that did not meet the qualifying criteria and unable to confirm competitive bidding process for goods and services received over R500 000.

Slide 43 shows that 83% of total budget was spent but the performance information reported that only 3 out of 12 projects were achieved. The funds intended for certain projects were spent on vehicles and not for the intended purpose therefore incurring irregular expenditure. Further, some information required for assessment could not be provided. It was also noted that formal training for the Integrated Case Docket Management System (ICDMS) electronic docket system was still not conducted.

There are three main root causes for these findings:
• Slow management responses in not implementing the AG recommendations
• Instability and vacancies.
• Poor performance and lack of consequence management.
These root causes are the same as identified broadly across government.

Mr A Whitfield (DA) said that the Amendment Act could not have retrospective action; however, the 2017/18 qualified audit for SAPS suggests there may well be material irregularities within the year on year expansion of irregular expenditure. Surely this raises flags as it could be a deliberate move to avoid material irregularities through non-disclosure. Is there more detail on what the AG looks for to find the material irregularities?

Does the AG have a template dashboard that can be provided to the Committee, if not, can this be designed, to monitor the recommendations by the AG? In this way there is no need to wait for SAPS to report quarterly and the Committee can request this information from SAPS on a monthly basis to oversee the progress in implementation of the recommendations. He said this was a proposal to the Committee for discussion.

The Chairperson asked for the proposal to be repeated.

Mr Whitfield said that the AG recommends SAPS presents on a quarterly basis to update the Committee on the progress on the AG recommendations. The proposal is that this Committee design a dashboard to receive monthly reports as a proactive step to take control of this process, as it is clear that SAPS is not taking the process seriously.

When an instruction is issued to provincial commissioners to get quotations for services or products, such as the tender for rape kits, does this trigger a flag for the AG that there may be irregular expenditure if processes are not followed and deviations pursued. In SAPS first presentation to the Committee after the new parliament it indicated that the Integrated Justice System budget would be transferred to the Department of Justice. Is the AG aware of this? Is it a matter of removing the liability from SAPS books and making it someone else’s problem?

Mr O Terblanche (DA) asked where SAPS is. When discussing SAPS audit outcomes there needs to be representation from them. There are questions we need to ask them.

The Chairperson said that a message has been sent to SAPS to say they have to be here. They are presenting to the NCOP on the firearm amnesty currently.

Mr Terblanche said that understanding that then, what now, is there need for another meeting?

Ms Mofokeng (ANC) said on the issue raised by Mr Whitfield, there is agreement on the necessary process. There is also agreement that everyone needs to be here.

The Chairperson said that SAPS will be called in immediately after recess.

Mr P Groenewald (FF+) noted that this briefing is on the new powers of the AG and speaks of audit reports from 2017/18. However, in October there will be a full audit report and of course the police will be here.

He asked if the large timeframe for this new process from first identifying a material irregularity is not too long. In the end, if a certificate of debt is issued, what happens after that, are there consequences?

Ms N Peacock (ANC) said there is a need for this Committee to understand what the previous audits' findings and recommendations were if the Committee is to effectively play its oversight role. She agreed the Committee should get a month to month report from SAPS on the audit recommendations.

Ms Mofokeng (ANC) asked if an audit action plan was submitted by the Department to the AG. If not, has consequence management been applied?

Mr H Shembeni (EFF) asked how many certificates of debt have been issued and what have been the outcomes of those? Is the AG being taken seriously?

Mr W Mafanya (EFF) asked if there have been difficulties with non cooperation from the Department about adverse findings. What happens from there?

The Chairperson remarked that there does need to be occasions where the Committee meets with the AG independently. As mentioned, SAPS will be present for the audit findings report in October and a scheduled meeting will take place for SAPS to respond to those findings.

Mr de Haan, AGSA, replied about retrospective action when there is a multiyear project where contract payments are still being made in this financial year. There is the chance to go back to the procurement of that contract. Where financial statements are closed for previous years then there is no chance to go back retrospectively. It is only where payments are made in the current financial year. The definition of material irregularity is that it is identified through this audit.

On why the Department of Police only disclosed R19 million and not the full amount, he explained that there was a disagreement between the Department and the AG, where evaluations where made on deviations and it was found the motivations for those deviations were not justifiable. They were qualified because of the disagreement in only disclosing R19 million. This question then needs to be asked of the Department.

Every auditee should have an audit action plan which includes internal and external audit findings. The Committee can request the Department's internal audit committee to present the action plan, for the purpose of monitoring how they are dealing with the audit findings. Some other Portfolio Committees do this.

With the instruction is given to provinces to tender, one needs to determine where the expense lies. If an instruction is given to the provinces to procure goods and services but the finance is coming from the Department, they still have an obligation to ensure the province is adhering to proper supply chain management protocols, because any irregular expenditure will be incurred by the Department. If the budget has been transferred to the provinces, then they become responsible. Whoever pays for the goods and services is ultimately responsible for compliance with supply chain management protocols.

The material irregularity timeframe is a lengthy process because the financial officer first needs the opportunity to deal with the identified issues. There is also a need to address likely loss and not just the actual loss. The challenge is when the Department incurs the material irregularity when the audit is not taking place and then there is a continuous loss. As soon as these are found though, then the accounting officer is issued recommendations with timeframes, and they are obligated to comply with these. The example given was approximately 18 months, but this is not the case with each irregularity, it can be a shortened process.

In issuing a certificate of debt, the executive authority then needs to consult with the accounting officer to recover the money. The AG will then assess how the executive authority and accounting officer will recover the money. Regardless of whether the accounting officer has left the Department or is no longer in their employ, the certificate is still a legal document. The executive authority can still follow up with legal services to recover the money.

The fruitless and wasteful expenditure relate to interest and incorrect payments being made.

The new law only came into effect in April 2019, so it is still in the implementation stage. There are 16 audits being done and no certificates of debt have been issued so far.

Ms Mmule Thipe, Senior Manager: AGSA, replied that in previous years SAPS had access to the Integrated Justice System budget and therefore could buy whatever they want. There have been challenges with the 2018/19 budget, but it is understood the money should have been transferred to the Department of Justice.

In terms of cooperation, there were disagreements with management which resulted in the qualifications. More feedback will come in October.

Ms Mofokeng said that further clarification is needed on the IJS money going from SAPS to the Department of Justice, as they have been waiting on it for some time. Is this happening now?

Ms Thipe replied that access to that information and relevant feedback on the 2018/19 audit will only become available in October.

Mr Terblanche asked if this money transfer is done by Treasury with approval, or is this another process.

Mr Mafanya said that the economy of the country has declined tremendously. The reality is the AG has been operating for many years. How did the country get to the level where it is now, when considering the clearly competent AG as represented in this report? Again, are there areas where there is no cooperation from the auditee? Lastly, who monitors the performance of the AG?

Ms Thipe replied that in terms of cooperation specifically with the police, there were disagreements in 2016/17 where they refused to disclose assets. In the following year they were disclosed, however, these were incomplete. There is now at least some cooperation and it is starting to move.

The performance information has been a challenge for a long time, there has always been material findings with performance information. Management would submit an action plan; this would be rolled out to provinces and police stations everywhere. The burden would then fall to the people on the ground who often do not understand how to put together a proper portfolio of evidence.

There were irregular expenditures in previous financial years, where no consequence management was taken. There have been issues again with cooperation and this has been escalated to the National Commissioner.

Mr de Haan, AGSA, replied about the transfer of money for the IJS, saying that it has been confirmed that Treasury has moved over the R236 million to the Department of Justice. The most severe thing to happen when there is no cooperation is the disclaimer opinion, when the AG receives no information. As an example of performance information, they should be supported by samples that can be tested. If these are not received, then the disclaimer opinion is given. If there is consistently no information given, then the AG is forced to cut-off, as the audit opinion will not change. However, AGSA will meet with the department to discuss action plans, so this does not happen.

Civilian Secretariat for Police Service (CSPS) presentation
Ms Dawn Bell, Chief Director of Legislation: CSPS, spoke on legislation of the last five years. It was noted that the Private Security Industry Regulation Amendment Bill was passed by Parliament in March 2014 and is still with the Office of the President. The Critical Infrastructure Bill was passed by Parliament in March 2019 and is currently with the Office of the President.

Drafting on the following Bills commenced during the Fifth Administration and are at an advanced stage:
Draft SAPS Amendment Bill began in earnest last year and has progressed substantially.
Draft Firearms Control Amendment Bill
Draft Second Hand Goods Amendment Bill
Draft Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill
Draft Independent Police Investigative Directorate (IPID) Amendment Bill
Draft Criminal Law (Forensic Procedures) Bill
Draft Controlled Animal and Animal Products Bill

The draft SAPS Amendment Bill has been identified as a priority for this financial year. This seeks to amend the South African Police Service Act 68 of 1995, to align the Act to all relevant government policies relating to policing to professionalise the service. It also seeks to align the Act with provisions of the Constitution. The Act predates the 1996 Constitution, and though this is an Amendment Bill the entire act is being reviewed. This is at an advanced stage and the only outstanding issues were with stakeholders about the financial implications of the implementation which is necessary to conclude the socio-economic impact assessment study. These processes have now been completed, and the Bill is ready to proceed through the next processes including the JCPS and DG cluster and eventually to the Cabinet committee for publication in the gazette, which will be done in the third quarter.

The Firearms Control Amendment Bill seeks to provide a framework for a holistic approach to the control and use of firearms and ammunition. The drafting was suspended due to a Cabinet decision in 2015 and later in that year the then Minister gave directives to conduct research. There are other litigation issues that hinder the progress of the Bill. Despite this it is in an advanced stage and there has been internal consultation with relevant departments; the Central Firearms Registry, Defence, PSIRA, State Security Agency (SSA), Justice, Firearms Appeal Board and others. The socio-economic impact assessment system (SEIAS) report has been finalised and a submission to Cabinet to publish the Bill in the gazette will be sourced in Quarter 4.

The Second-Hand Goods Amendment Bill has been drafted to amend sections of the Act which have been seen as challenges to the implementation and the interpretation of the Act. It will improve practical implementation of the Act and enhance regulation of dealers in second-hand goods and prevent the trade in stolen goods. This draft Bill has been completed and there have been consultations with the stakeholder advisors, whose concerns have been addressed. Recently meetings were held with the NPA, who gave recommendations of the offences that should be included in the Bill. Also, in consideration of illicit mining, consultations were had with the jewellers industry and these proposals are currently being incorporated. The Office of the Chief State Law Advisor will be approached to certify the Bill for Cabinet approval and submission for publication. This will take place during the first quarter of 2020/21.

The POCDATARA Amendment Bill will update the Act to reflect South Africa’s changed circumstances relating to international involvement in combating and prevention of terrorism. It also seeks to strengthen the legislative framework for combating terrorism. Extensive internal consultations have been conducted, the socio-economic impact assessment report has been concluded, and submission to Cabinet for publication will be done in Quarter 4 of this financial year.

The Constitutional Court in the matter of Robert McBride v The Minister of Police found some sections in the IPID and Public Service Acts to be unconstitutional. The Constitutional Court provided a reading in for section 6(6) of the IPID Act: “Sub-sections 17DA(3) to 17DA(7) of the SAPS Act apply to the suspension and removal of the Executive Director of IPID, with such changes as may be required by the context”; and Sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act, 1994 and regulation 13 of the IPID Regulations, shall be read as having no application to the IPID Executive Director with reference to sections 17 DA(3) to 17 DA(7) of the SAPS Act.

The Constitutional Court directed Parliament to correct these defects in the IPID Act by 5 September 2018. There is a draft Bill that amends the Act in its entirety, but it was decided that the Portfolio Committee should proceed with a Committee Bill. The IPID Amendment Bill was finalised by the Portfolio Committee in 2018. In view of there being a Constitutional Court deadline, the Portfolio Committee processed the amendments to the Bill before the Constitutional Court deadline. The Bill was passed by National Assembly and submitted for concurrence to the National Council of Provinces (NCOP) on 4 September 2018. Parliament’s Legal Services applied for an extension of the NCOP deadline to deal with the amendments. This matter is being raised by the Select Committee on Security and Justice.

The Criminal Law (Forensic Procedures) Amendment Act came into operation in January 2015. It provides for the taking of buccal samples – a sample of a person’s saliva taken from the person’s mouth – from all convicted Schedule 8 offenders for forensic DNA analysis, within a period of two years from the date of commencement of the Act, January 2015 – January 2017. Buccal samples still need to be taken from convicted schedule 8 offenders whose buccal samples were not taken prior to the Act's commencement.

The draft Criminal Law (Forensic Procedures) Amendment Bill seeks further transitional provisions for the full implementation of the Act and the enforcement of the obligation to submit to the taking of buccal samples. The Bill was scheduled to be presented to the JCPS Cabinet Committee in May 2018. However, the Minister deferred the presentation as he sought information on the figures for the outstanding sampling of convicted offenders. The JCPS Cabinet Committee advised the Minister to consider the buccal sampling of all citizens. Correspondence has been forwarded to the Minister of Home Affairs about buccal sampling of all citizens. The processing of the Bill is held in abeyance pending the response from the Minister of Home Affairs.

The Draft Controlled Animals and Animal Products Bill seeks to regulate the possession and ownership of controlled animals, and to control the movement of controlled animals and animal products within and through the borders of South Africa. This is to combat crimes related to their possession. The Bill will repeal the Stock Theft Act of 1959. Consultations with relevant stakeholders, such as Provincial Stock Theft Units and traditional leaders, have been concluded. The Bill was submitted to the Chief State Law Adviser for consultation and preliminary certification last week. Recently consultations were held with the Department of Agriculture and senior management of the Stock Theft Unit and they will submit inputs by 19 September 2019. There are also discussions with the Department of Planning, Monitoring and Evaluation (DPME) for a Socio-Economic Impact Assessment System (SEIAS) report, and a Cabinet Memorandum is being finalised. On 9 September feedback was received from the Office of the Chief State Law Advisor, and a meeting will be held in October to discuss any issues with the Bill. Cabinet approval for publication will be sought in the first quarter of 2020/21.

The Civilian Secretariat for Police Service Amendment Bill is necessary because of the amendments made to the SAPS Act. The White Paper on Policing and the White Paper on Safety and Security make policy shifts that call for the amendment of certain clauses in the Civilian Secretariat for Police Service Act. The process to amend the CSPS Act will commence on completion of the amendment of the SAPS Act. In the meantime, a process has been created for electronically circulating to members of the Department to comment, provide recommendations, or suggestions about amending the Act.

Mr Whitfield said that there is a lot of legislation. In consideration of what the Fifth Parliament achieved through this Committee, there is a need to understand the frustrations of the Department with legislation, and what the Committee can do to help with any roadblocks.

The Committee is about to hear from SAPS about the draft firearm amnesty notice and here is the presentation on the Firearms Control Amendment Bill. Were there significant legal issues around the Bill which may affect it? Is it wise to proceed with the Bill in such earnest considering the implications of any legal processes around the Bill, such as judgements that may be handed down which may affect the direction of the Bill? As a new Committee more information is needed about the risks of proceeding with legislation that may be affected by legal action.

It is absurd that the Forensic Procedures Bill has been delayed because of administration reasons. Transitional extension since the deadline of 2017 is still being asked for but since then there have been no additions. It is now being held up because of suggestions of rather doing a national buccal swab, which arguably has its own constitutional challenges. Considering what has transpired in this country over the last two years, and even more recently over the last couple of weeks, and the calls for Parliament to act, this is something the Committee can take immediate action on should the Minister send the Bill to Parliament. Pressure needs to be placed on the Minister to bring this Bill to Parliament. The Constitutional Court might have a field day with it but the issue remains that there is an existing index, a transitional period extension required, and a request for compulsory buccal swabs for convicted offenders so when they are released, and they are released too often, there is a way to trace them to previous offences. Is this the only reason this is delayed because of an absurd controversial technicality.

Mr Terblanche said that the term is used often that the legislation is "at an advanced stage", what does this mean?

Mr Groenewald said that for the IPID Amendment Bill it states the Parliament's Legal Services applied for an extension, was it extended or not and what is the new date? How does the CSPS see the fourth quarter, what time period is that?

Ms Mofokeng asked, considering the McBride court case, if that means the Minister cannot appoint a new IPID head. On the Firearm Control Amendment Bill, drafting was suspended due to a Cabinet decision; Minister directives and litigation. What is SAPS going to be saying to the Committee about the firearms amnesty? The Terrorist Amendment Bill is at the stage of Cabinet approval for publication because internal consultation has been done, what does this mean? There is a need to know externally whether people understand it because public participation is a constitutional mandate. Even after publication in the gazette, it is not afforded to everybody and is not reaching every community, so other mechanisms need to be in place to ensure everybody understands it.

Ms Peacock asked how these outstanding Bills can be prioritised. How can the Committee help to move these forward?

Ms Z Majozi (IFP) asked what the Committee can do to help fast track the submission of these Bills. There is a socio-economic impact assessment system (SEIAS) but Cabinet memorandums still need to be prepared, by whom? If there is nothing that needs to be done on the side of the Secretariat then the Chair can send reminders to the Minister of the crucial nature of these Bills. The Criminal Law (Forensic Procedures) Amendment Bill needs to take some priority and be fast tracked. The Minister for Police and Minister for Home Affairs need to work together to get these done.

The Chairperson said that at the next committee meeting they needed timeframes and not mere quarters. By ‘X’ date the following will be done. This way every time there is a meeting there is a chance to keep track of how legislation progress, especially the ones that are highlighted as priorities.

Mr Whitfield said on a point of clarification, the Committee has been presented with the Bills but not what is contained within them. There is a need to understand whether this Committee has any oversight over these Bills until the Minister signs them.

The Chairperson asked if a briefing can be had before the Minister signs off on the Bill.

Mr Groenewald said that the process is the Committee can only discuss the Bill once it has been tabled in Parliament. This is the pre-process, the draft Bill appears in the gazette, stakeholders can respond, then the draft Bill goes to Cabinet, and after Cabinet has approved it, it will go to Parliament, and the moment it is tabled, then that is the Bill. It will then come to the Committee and be dealt with.

Dr Philip Jacobs, Director of Legislation, CSPS, replied that the legislative programme will be submitted to Parliament by the Leader of Government Business, the Deputy President. "At an advanced stage" means the draft Bill has been looked at by the Chief State Law Advisor, and it is already a document.

On the question of briefing the Committee on the draft Bills, if the Minister wants to brief the Committee, then the legislative drafters can do that, but this discretion is with the Minister.

On the request for extension of the Constitutional Court deadline for the IPID Amendment Bill, Parliament’s Legal Services applied for the extension so they should know this. The Committee must approach them to answer that question.

The Chairperson said that given the current climate, the country demands the need to move with speed with the Criminal Law (Forensic Procedures) Amendment Bill. The climate of crime, femicide and gender-based violence, dictates that Parliament must move with speed.

Dr Jacobs replied that when we get the mandate from the Committee that will be done. He explained the use of quarters is aligned with the Annual Performance Plan and the financial year, so Quarter 4 would be January, February, March 2020 – the last quarter of financial year.

Internal consultation means that it is still within government, so there has been no consultation with outside stakeholders. When internal consultation has been finished it goes to the Director General cluster, and finally Cabinet. There will be unsolicited proposals made to the Department from external stakeholders but as the Bills are being drafted, these proposals may be consulted, but active engagement will not be done.

Ms Dawn Bell, Chief Director of Legislation, CSPS, noted that the legislative program, whether it is realistic or not and given the challenges faced, the Bills are there, drafted already. The Bills are spaced out and will not be presented to Parliament all at once. There is a need to deal with those that are priority, such as the SAPS Amendment or Firearms Control Amendment. It does not help when the Bill is leaked and the people looking at the leaked Bill do not give the Department a chance to respond to this. This does not help at this stage of the process because one has to go back and look at the issues people are complaining about within the leaked Bill. The leaked Bills are sometimes used in court papers which does not help either. Once the Bill is drafted it is almost out of the hands of the Department, but there are processes within the DG cluster to potentially consult with another cluster which the Department has not programmed into the process or the cluster will make suggestions for changes that will restart the entire process. There is also a capacity challenge which many departments have.

Considering the DNA Bill, it has been tough to get the Department of Correctional Services and SAPS together so an understanding can be had of how many convicted offenders have not been sampled. From a meeting with both departments a figure of 46 727 outstanding samples was given. A follow up letter to the Minister for Home Affairs will be sent to get further clarification on that sampling request.

The fact that the IPID Amendment Bill has not yet come to Parliament does not preclude the Minister from appointing a new IPID head.

Considering the Firearms Control Amendment Bill and firearms amnesty, there is no way to know what SAPS will be saying about the firearms amnesty, but that should not delay the Department drafting of the Bill, because the amnesty has nothing to do with the Bill.

As far as prioritising Bills, if there is a Bill that has not been addressed by the Minister, then the Department will proceed with something else. There is no need to inundate the Minister or the Department with every Bill, but the process needs to continue.

The Chairperson said there is an opportunity to consider the information, consult with your parties and come back with the priorities that you want to consider. The current climate dictates that even though we do not want to inundate the Parliament, these things need to be done.

Ms Dawn Bell, Chief Director of Legislation, CSPS, replied that the Cabinet memo is drafted within the Department with valuable information from departments on the draft Bill. It needs to address how much the implementation of that Bill will cost and so information is key from the implementers. There are two occasions where the Chief Law Advisor is addressed. One is for the preliminary certification which allows for public comment on the draft Bill and the final certification is for the Bill's introduction to Parliament. This takes a minimum of six weeks to prepare and sometimes there is a need to consult and this takes the process back a step.

Mr Alvin Rapea, Secretary for Police Services: CSPS, replied that there was a 2009 interim court order which stated that people who had not renewed licences since the era of the Arms and Ammunition Act of 1969 remained lawfully in possession and licences remained valid. That issue has not been reviewed yet, and this will be continued in the Bill. In 2018 the Constitutional Court ruled that sections 24 and 28 of the Firearms Control Act under which gun owners must renew their firearm licences or forfeit guns for which licences have expired, to the state, were constitutional. The Constitutional Court looked at the constitutionality of the renewal procedures in the Act and found the measures are constitutional. They also found that licences have lapsed, and people are unlawfully in possession of firearms. The Court also decided that people who handed their firearms over to the police would not be prosecuted. A follow up case ruled that expired gun licences can be renewed and gun owners will not be prosecuted. The Minister has appealed that case.

Mr Rapea replied about the terrorism legislation that there is an inter-departmental working group in which all the departments that have anything to do with terrorism from finance to the Financial Intelligence Centre are represented and have been intimately involved in the drafting of this Bill.

On the Draft Criminal Law (Forensic Procedures) Bill, this is an area of very quick success if the Bill gets adopted. The people who are subject to the taking of buccal samples are people already sitting in jail and for Section 8 offences. When dealing with the Committee previously, it was presented with a European case on human rights, where the taking of DNA samples from everyone in the nation created some problems. The sheer financial implications of taking all those samples would be huge: 46 million people and R600 per sample would create a serious challenge.

Firearm Amnesty Draft Notice: SAPS briefing - cancelled
Mr P Groenewald (FF+) noted as a general comment that the document states that the purpose is to brief the Select Committee on Security and Justice on the draft notice of declaration of amnesty. It is clear this presentation is not for the Portfolio Committee on Police. On page 15, the Conclusion talks about the 2018 firearm amnesty. There is no point to continue. Further, there is no draft notice on the amnesty in any of the documentation, how can the Committee decide considering this is important because that notice will determine the preconditions.

On these points alone a decision cannot be made because there is no draft amnesty notice. Further technicalities, looking at the interim High Court order of Gun Owners South Africa, it states that SAPS is prohibited from implementing any plan of action or from obtaining a firearm where licences have expired. SAPS is prohibited from demanding such firearms be handed over for the sole reason of licence expiration.

The purpose of the amnesty is to get illegal firearms handed in. The Police were asked how many firearms handed in during an amnesty period, the last being approximately 32 000, have been tested and found to be used in crime – the answer was zero. The fact is that a criminal will not come forward and hand in an illegal firearm because it will be ballistics tested. If a criminal hands in a firearm used in a murder case, amnesty will not ensure the person who handed in the firearm will not be prosecuted. In fact, that person must prosecuted. So, this is an amnesty solely targeting the renewal of firearm licences. Technically, according to the amnesty, SAPS could argue that the gun is illegal but considering the Gun Owners of South Africa court case, it is not illegal. The court has preconditions on what must and must not happen for firearms where the licence has expired, and owners did not apply for renewal within a specific time. The Committee has now been informed the police are taking this judgement on appeal. Before the Committee even discusses amnesty, the appeal needs to be completed. Access needs to be given to the draft amnesty notice.

Mr Terblanche said that if this is the position then there is no need to waste more time. There are many serious questions that need to be asked about what should have been presented.

The Chairperson said if there are serious questions to be asked then this is the time to ask them, to save coming back for another meeting. Use this opportunity to ask questions as a prerogative of the Committee.

Mr Groenewald said that on a point of order if there is a ruling now that questions should be asked, then there will be further questions.

The Chairperson said that concerns had been raised, and now there is an opportunity to ask questions.

Mr Terblanche said that the Committee needs to decide if the presentation is going to be dealt with. This should be discussed and a vote taken.

The Chairperson said that should this decision be taken now or after questions?

Mr Whitfield said that the concerns of Mr Groenewald are valid. There is a matter before the Committee that is not the purview of the Committee as set out in the presentation. There were many nodding heads when the technicalities were raised. Discussing questions about something that is not the purview of this Committee is simply a waste of everyone’s time. SAPS should prepare a much more comprehensive presentation making sure it is directed to this Committee. It was only late yesterday that the updated notice of the meeting was circulated that included this presentation, so further arguments could be had that the Committee has not had adequate time to prepare for this discussion or the decision. Is it a decision that the Committee needs to make, is it a briefing that needs to be had, and why was this added to the agenda only late yesterday? Aside from the concerns already raised there are clearly many procedural issues. So, the Committee needs to decide whether they entertain this and proceed with questions or not.

The Chairperson said that there is a proposal to not entertain the discussion. Proposed and seconded.

Ms Mofokeng said that on behalf of the ANC there is agreement the matter should be adjourned. The matter will be with the court which is still outstanding. There is also a need to include a copy of the Bill to clarify some items, such as section 15 which speaks to ownership of firearms for self-defence. What has been presented states the Minister may declare an amnesty because of public interest to do so. However, but then it was also said there were no public participation.

Mr Groenewald said that this is the correct decision by the Committee. When SAPS returns, what is essential is the draft amnesty notice because this determines everything. No discussion can be had without knowing what is on the notice.

Mr Mafanya said that this should be postponed; SAPS has to come prepared. Considering the level of crime that is happening, a serious determination is required on the part of the police. The AG has already given a bleak outlook on the condition of the Department.

Ms Majozi said that there is a risk in discussing a document that is not for the Committee. A proper presentation which is easier to follow and can be engaged with is needed.

Private Security Industry Regulatory Authority (PSIRA) briefing
Mr Manabela Chauke, CEO: PSIRA, said PSIRA’s role is to provide oversight, regulate and control the private security industry, in the interest of both the public and the industry. This is done through:
• Promotion of a legitimate industry; anyone in the industry must comply with all relevant legislation.
• Promotion of professionalism, transparency and accountability.
• Determine and enforce minimum occupational conduct of the providers.
• Actively monitor and investigate affairs of service providers.
• Promotion of trustworthiness, if the public cannot trust the industry, then there is a problem.
• Respond to the needs of the users.

He noted Section 4 of the Act deals with the PSIRA function to brief the Minister of Police on any matter determined by PSIRA to be necessary for the Minister to consider in connection with the Act. This includes any evasion of the Act or abuse of processes by security agencies and where gaps in policy allow for this. An ongoing study is done into the industry so that the shortcomings can be addressed. There is an R&D Department within PSIRA that looks at the industry in specific segments and categories. These research reports can be shared.

• Regulate practices within the industry in compliance with law.
• Determine minimum internal control systems for security business, such as accounting and reporting. If PSIRA identifies processes and controls that need to be in place across the industry, then these need to be installed in every security business.

Section 35 of the Act deals with the regulations the Minister of Police is empowered to make on different categories and classes of service providers within the industry. One is to deal with uniforms and insignia regulation and identification by security service providers. Another is the issuing, possession and use of firearms and other weapons in the private security industry. However, this does not include licensing. Further regulations deal with the training, registration, use, treatment, transportation and general care of working animals within the industry, including dogs and horses.

Draft regulations were published for public comment in March and there are also others that are being called back to strengthen them based on the concerns raised.

Mr Howard Thwane, Senior Manager, Legal Services, PSIRA, said that when conducting the public consultation on the amnesty, the industry suggested PSIRA is trying to disarm the industry – this is simply not the case. The proposed amendment seeks to promote cooperation between institutions that have regulatory mandates on firearms, particularly the Central Firearms Register. It aligns with the principles of the Firearms Control Act to ensure proper control and use of firearms by addressing ineffective regulation. Current regulations do exist; however, this will be expanding on those existing regulations.

Further, the proposed amendments aim to improve on monitoring of firearms within the industry, and promote lawful, responsible, transparent and accountable security businesses in the issuing, possessing and using of firearms and other weapons. It aims to ensure the provision of firearms is effectively regulated and to address the risk posed by the possession of firearms by security personnel. It aims for accountability for firearms, for ammunition and for fatalities and casualties as a result of the use of firearms within the industry.

The process of the regulations is coming to finality. Considerations need to be made on the definition of shotgun, escort service, vehicle recovery, and bolt action rifle. In sub section 8 there was an omitted word: semi-automatic was supposed to be semi-automatic rifle.

Mr Jan Sambo, Senior Manage: Law Enforcement, PSIRA, said the purpose of the regulations for special events is to ensure security services provide their services at sporting, recreation and entertainment events in line with the public interest. There is a need to ensure any security service provider acts with professionalism and within the law, respecting basic human rights with every interaction.

Particularly important changes to these regulations are as a result of events that led to fatalities, because of the poor handling of security. There is a need to ensure security officers are trained properly to manage crowds. These regulations ensure security providers have a safety plan in place which is enforced. Whoever provides the service in security needs to be properly trained and if they are not capacitated then they do not take on the job.

Mr Stefan Badenhorst, COO, PSIRA, spoke on the regulation provisions for the use of working animals. The draft regulations speak of two different animals, dogs and horses. In the security industry the use of security dogs is increasing significantly and is considered an important tool in increasing safety and security. Due to the increase in the use of security dogs, there is a need to regulate the use of this practice.

There is a gap as there are regulations for individuals who use working animals but there are no regulations for the animal. The purpose of these regulations is to regulate the suppliers, trainers and users of working animals. The proposal is that all trainer centres must be registered with PSIRA, and all working animals must be registered with PSIRA as well, so it can be verified that the animal is being used for what it was intended to be used. A simple example would be substance or sniffer dogs working at forward freight companies and their responsibility is to ensure no bombs or illegal substances are there and yet there are no regulations to test these particular dogs. There are three categories of dogs:
• Patrol dog, usually on leash
• Protection dog, taken off leash and can apprehend criminals
• Substance detection dog, which is a narcotics sniffer dog, human scent trail or bomb detection.

The regulations go deeper as well into the welfare, including deployment conditions such as working hours, health and hygiene, veterinarian procedures. They will get an electronic tag, which will allow law enforcement agencies, including PSIRA, to scan the tag and identify whether it is registered and its level of competency. Even further will be safe transportation and the responsible manner in which they must be used, especially in public spaces such as schooling environments where there must be authorisation given.

These draft regulations were developed by the R&D Department where the gaps were identified in the use of working animals. Most of the regulations are the product of research and the gaps that are identified. There was a lot of engagement with industry members during the consultation phase, and the regulations are not conclusive. The use of animals must be responsible and the safety of the public protected.

Mr Manabela Chauke, CEO, PSIRA, said the purpose of the draft regulations is to bring accountability to the industry. This was when PSIRA is asked to account for how many firearms private security companies have, how many security officers have died due to guns, how many were attacked, how many were trained, then these questions can be answered. There may be cases where the industry thinks there is overregulation; however, there are many incidents, because of these gaps, where firearms are used and the person is not adequately trained, or in stadiums where people died due to lack of proper management of security.

The PSIRA representative said that there is also regulation on the use of uniforms and insignia within the private security industry. The purpose of the regulation is to prohibit uniforms or insignia that are similar to the police services or defence force. The regulation states that new entrants into the private security industry will have to provide a sketch or photograph of the uniform / emblem. With existing businesses there will be a timeframe where uniforms / insignia look too similar will be given time to change. There are a lot of security providers that use the colour blue, so the designated specific colour blue used by SAPS that cannot be used.

He concluded by stating that there are two things that are of urgent need. One is to have a firearms summit, with Members of Parliament and stakeholders. In the current climate this cannot be taken lightly. It is also urgent for PSIRA to have a one-on-one meeting with the Committee.

Mr Whitfield commented that whatever needs to be done should be done, as long as there is the intention of coordinating this towards a conclusion. There are so many balls in the air with PSIRA, SAPS or private interests, all dancing around issues of trust, cooperation and collaboration around the lawful possession of firearms without discriminating against any interests. How can there still be struggles with a Bill that has not been signed into law? It seems the cart is going before the horse. There are a lot of dots that need to be connected for a coordinated outcome. To what extent do the PSIRA regulations, currently being redrafted, affect the SAPS mandate? Will there be two firearm registers in the country, how will they be synchronised? Is it not the responsibility of the Committee to ensure SAPS restores the credibility of the Central Firearm Register, so that it is modern and equipped to capacitate the volume of applications, and then be able to report on the private security industry incidents PSIRA presented? It is a convoluted mess and the responsibility of the Committee is to ensure a coordinated approach is adopted.

What other regulation sections are being amended - other sections are being redrafted but there is a need to understand whether PSIRA intends to suspend the process until the Firearms Control Amendment Bill is dealt with and the PSIRA Amendment Bill is signed into law.

Under section 13, on the definition of the semi-automatic rifle, private security firms will be allowed to use semi-automatic pistols or handguns. What is found though is the potential limitation to private security forces, who deal with cash in transit and who are dealing with very well armed criminals. What is the rationale that inhibits the option for private security firms to use semi-automatic rifles?

The Chairperson said that there is agreement that there are too many balls being juggled. There is a need for a summit with briefings from stakeholders. A little more than these Committee meetings are needed.

Mr Terblanche said it is very difficult to properly assess what has been presented without having a proper background, especially when dealing with a Bill that has not been signed into law. In terms of different shades of blue, Mr Joe Public is not going to have a sense of understanding what shade of blue it is. There needs to be very clear distinction in uniform colour and insignia. For example, there are captains, brigadiers and generals in the security industry – this cannot carry on. There needs to be very specific definition between the two. On the matter of semi-automatic rifles, there are a lot of very hardened criminals and the security industry needs to be properly trained and armed to deal with them. There are many people who are dedicated to the proper care of their animals; however, far too often dogs are left in the backs of vehicles in the heat and so this needs to be looked into.

Ms P Faku (ANC) said that there is a need to over-regulate – a database of everything presented will give clear direction for the future. There seems to be confusion about whether this database exists. It is important to note the original Private Security Industry Regulation Act commenced with its regulations in 2002. She suggested that other Members read this Act which clearly identifies the mandate.

Ms Peacock said that proactively regulating in light of concerns from both the industry and the public shows great initiative. Prevention is better than cure and this presentation clearly shows the proactive solutions to the challenges faced.

Ms Mofokeng said that Mr Terblanche has raised concerns when looking at the Act of 2002 and the new regulations they are working to improve themselves. There is agreement that security guard and police uniforms cannot be the same and these regulations seek to address that. These regulations are also in line with the Private Security Industry Regulation Act (No 56 of 2001), so they are in order. There should be a review every five years or so. These changes are supported. Where there are any other things that need to be improved, they will also be done. The other issue would be taxi marshals who have lights. There needs to be understanding whether they are part of the security industry, and they need to be registered somewhere. There is also appreciation for the regulations on working animals.

Mr Shembeni said that there was mention of regulations for crowd control training. There have been stories of people killed by security guards and more clarity is needed on how well equipped and trained staff will be. Private security is not supposed to use their private firearms. However, there are some companies that hire staff with their private firearm. How can this be solved? There are cases where security guards rent their firearms to criminals and with a private firearm there is no way to know when they have or not. Regulations that require the signing in and out of firearms and registration to a company could prevent this.

Mr Mafanya noted that when questioned about the coordination and cooperation between SAPS and PSIRA, the simple answer always given is that the relationship is fine. However, when looking at how the two function together, the relationship does not always seem to work. On the uniforms, there are not just similarities to SAPS, but also similarities between competing security companies. With working animals and the untrained personnel who deal with them, the issue is not just the need for experts to be involved but how this will be monitored. There will be times when the animals get sick, need operations, and the people handling the animals are not trained for that. In a previous presentation it was mentioned that PSIRA had budget constraints and from this presentation it seems there is going to be more work and more costs involved. The Committee meets with international security agencies to capacitate themselves in understanding the industry. Where does PSIRA source their information to capacitate themselves?

Ms Majozi said that there is a need to have a summit to help with regulations that may need changes and get a complete understanding of all regulatory bodies. More clarity is needed on the firearms amnesty, does it fall under SAPS? She asked PSIRA if there will be a duplication of the firearm register. On animals, are these regulations aligned with the People's Dispensary for Sick Animals (PDSA) as it would be a critical body to engage with on animal welfare. The vetting and screening of security guards is very important to ensure they do not abuse their firearms. Is there a proper process of vetting and screening, and alongside that, anger management?

Mr Whitfield said that as a point of clarity, Ms Mofokeng stated “we” support the regulations. There is a need to understand whether this is in reference to the Committee or her esteemed team, which has read the legislation. The regulations are being redrafted, so it is confusing what is being supported. Which sections of the regulations are being redrafted so the Committee can understand what direction PSIRA is going in? It is fantastic that PSIRA have come to present. However, there is a need to return with the consolidated regulations once finalised so the discussion can be had on whether the Committee supports them or not.

Ms Mofokeng said that the documents were read, the regulations were seen within the context of potential changes, examples were given. The documents were read with other Members, and there is agreement. There is clear leadership within PSIRA, and it is obvious from the presentation that there are several managers driving their respective units. Where there are mistakes these will be dealt with. When the Member speaks of who supports this it is “us” and the numbers can be taken.

The Chairperson quipped that this is not about male versus female gender-based issues.

Mr Manabela Chauke, CEO, PSIRA, replied that it is correct the Bill is not signed; however, section 35(m) in the current Act states the Minister can issue regulations on issuing, possession and use. From the context of other questions there is confusion on the scope of the regulations, but they are dealing with only issuing, possession and use. The work of regulating firearms generally is handled by SAPS, specifically for businesses and security companies and PSIRA is working with them. There is no intention to duplicate the records of the SAPS firearms register; this is about accountability. As a regulator, PSIRA is entitled to ask questions of the industry to account for the use of firearms. Any reports generated by PSIRA on firearms will account only for possession and use, there will be nothing in regard to licencing.

The Chairperson clarified the question of what the Members are approving. The PSIRA CEO was asked to brief the Committee on the proposed regulations. The Committee is approving the continuation of work on the proposed regulations. Thank you, there is no need to continue.

Meeting adjourned.

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: