ATC190228: Report by the Portfolio Committee on Police on the referral by the Speaker of the National Assembly on the recommendation by the Minister of Police, Hon. B. Cele, MP dated 05 February 2019, not to renew the employment contract of the Executive Director of the Independent Police Investigative Directorate, Dated 28 February 2019
In this virtual meeting, the Minister of the Policed briefed the Portfolio Committee on Police on the appointment process of the Executive Director of IPID. The Minister highlighted the challenges in filling the position within the twelve month period that was prescribed in the IPID Act. The Department and an interview panel hired the services of an independent recruiting company and pursued a process of head-hunting. .
The Committee received and considered a legal opinion relating to the Helen Suzman Foundation’s appeal on the matter. The opinion highlighted that Parliament has a constitutional and statutory obligation to fill the vacancy. The Committee agreed that the appeal did not prevent the process of filling the vacancy.
During deliberations, some members highlighted the Minister’s failure to appoint an Executive Director of IPID within the prescribed twelve month period. The Minister needed to be held accountable for his failure to appoint. The Committee had also been put in a precarious situation and it was suggested that they do not appoint an IPID head until the IPID Act was fully amended.
Despite objections from the DA and FF+, the Committee approved the candidate as nominated by the Minister - Ms Jennifer Dikeledi Ntlatseng - as the Executive Director of the Independent Police Investigative Directorate.
In her concluding remarks, the Chairperson highlighted:
“The appointment process was robust and the Committee was assured that it appointed an individual who has the necessary qualifications for this position. The candidate demonstrates an in-depth knowledge of the criminal justice system based on the documents. The candidate that the Committee was supporting was interviewed. The panel nominated her as the best candidate. The panel nominated her as the candidate that understood the work of IPID. She said that the members had had a robust discussion on their oversight role and that the IPID Act needed to be amended. The interview process has been transparent and the Committee has had all the relevant legal opinions. This has been a rigorous process. The Chairperson would have been disappointed if the Committee simply rubberstamped the nomination from the Minister. In no way has the Committee rubberstamped the Minister’s candidate. In the amendment of the Act the Committee would ensure that the appointment process would be tightened up”.
The Committee asked the Department to submit a comprehensive report on why there was a delay in introducing the nominee to Parliament.
The Committee considered and adopted adjusted budget reports for SAPS, CSPS and IPID.
Briefing by the Minister of Police on the appointment of the Executive Director of IPID
Minister Bheki Cele briefed the Committee on the process of the appointment of the Executive Director of IPID. The process had been tedious and long. The Department tried to complete the process within twelve months as was prescribed by the law but was not able to do so within that time. The Department started by advertising within the initial period and the quality of the applicants were not good enough to select a suitable candidate to fill this position. The Department then sent out a second round of adverts. The Department shortlisted and interviewed candidates but still could not find a suitable candidate. This had taken place during the end of the twelve month period. Those interviews were done by Minister Ndabeni-Abrahams, Minister Lamola, Deputy Minister Mathale and the Head of the CSPS Mr Rapea. At the end of the twelve month period the Department wrote a letter to the Speaker requesting an extension and requested to use a head-hunting process instead, which was allowed. The company Ultimate Recruitment Solutions (URS) was chosen to complete the head-hunting process and find the suitable candidates. This process continued after the request for an extension from the Office of the Speaker, which was a letter written on 20 April 2020.
24 people were approached by the URS to be part of the head-hunting process. Five candidates were shortlisted. The Head of URS was invited to give a presentation on the five names that it had shortlisted. Three from that five was shortlisted by Minister Ndabeni-Abrahams, Minister Lamola, Deputy Minister Mathale and Mr Rapea. The three shortlisted were Ms Jennifer Dikeledi Ntlatseng, Mr Solomon Mayile and Dr Mike Masiyeko. The Department checked their CVs noting that the candidates were already vetted by the independent recruitment company. After shortlisting, the candidates were interviewed. For the interview the candidates were given a technical exercise to prepare and present to the panel for an hour. The candidates were asked to outline the challenges that IPID faces and the strategy needed to deal with those challenges. The candidates were asked how they would implement that strategy. The candidates were also asked to outline the financial constraints in the country and how they would ensure service delivery based on those financial constraints. The candidates were also asked how they would deal with the low morale of employees while also ensuring improved performance and achieving all targets. The suitable candidate needed to show an in-depth understanding of the criminal justice system, the legislative framework and public service policy. The candidate was required to ensure the effective management of investigation, complaints and impact of the police service conduct. The candidate must understand the work of IPID and be able to work with the key strategic stakeholders. The candidate also needed the special and unique qualities required for the position of Executive Director of IPID. Of the three candidates who were interviewed, Ms Jennifer Dikeledi Ntlatseng was unanimously nominated by the panel as the best candidate and who should be submitted to Parliament for consideration for the position of Executive Director. The shortlisting and CVs of all three candidates were sent to the members of the Committee. Almost every member of the interviewing panel thought that Ms Ntlatseng was the best candidate for the position. Once the candidate was chosen the Department wrote a letter to the Speaker and submitted the process and the name that was nominated. The Department had the CV of Ms Ntlatseng and the verification of the qualifications. The fingerprints of all the candidates were sent off to see if they had a criminal record. The Department had not received a response on whether the candidates had a criminal record or not. That was the process that was taken to find a new Head of IPID.
The Chairperson provided a background on the appointment process. A research paper, explaining the chronological events, was provided to the Committee. The events pertaining to the previous IPID head was considered. The legal judgements, notably the McBride matter, was looked at. The Act describing the appointment of the IPID head was also looked at. The IPID Act states that an IPID head must be appointed within one year of the end of the contract of the previous incumbent. The Minister was to nominate a suitably qualified candidate, as stated in Section 6 which explains how to nominate an Executive Director, and this must be presented to the Speaker. The Minister presented all the documents of this appointment to the Speaker. It was very transparent. All the documents, the shortlisting of candidates and CVs of the candidates was presented to the Speaker. The Committee had 30 Parliamentary working days from the time of nomination to confirm or reject the nomination. The Act states that, in case of a vacancy, the Minister must fill the vacancy within a reasonable period of time which period must not exceed one year. The period of one year has been exceeded and that creates a conundrum that needed to be dealt with before the appointment of the IPID head.
The Chairperson said she would allow the members to ask questions because this was a serious matter. The Act categorically stated that the Minister was to appoint an IPID head within the period of one year. That did not happen and a vacuum arose. Because of this vacuum a situation arose where the Committee either had to leave IPID without a head or to allow an acting head to continue. The Committee was doomed if it extended the period of the acting head because it could not appoint in time. The Committee was doomed if it did not appoint an acting head because IPID could not function without a head. The Act does not prescribe what happens if a head is not appointed within the stipulated period. This vacuum created an issue and it needed to be addressed. The Minister wrote to the Speaker indicating that the Department had interviewed and not found a suitable candidate. The Speaker said that the Act stated an IPID head had to be appointed within a year but the issue of the failure to appoint needed to be referred to the Portfolio Committee on Police. The Committee deliberated on the matter and the exact dates of when the Minister and Deputy Minister presented to the Committee was provided. There was definitely a willingness on the side of the Minister to make an appointment. However, that willingness did not produce a result and because there was a vacuum the Committee had to appoint an acting head. The law did not stipulate what the Committee had to do. The law said that the Minister had to make the appointment within a year. The situation the Committee was in compelled it to appoint an acting head.. On 15 May the High Court of South Africa, the Gauteng Division, on the Khosa matter noted that inadequacy of the investigative mechanisms in IPID. The Judge noted with concern that IPID at present ‘does not even have a permanent Executive Director for the duration of the lockdown who could act independently as was required in the Court in the McBride versus the Minister matter’. The Constitutional Court found that certain provisions in the IPID Act were unconstitutional. The amendment of the IPID Act was there to allow for the firing of the IPID head. That amendment was assented to by the President. The Court had ordered Parliament to cure the defects in legislation within 24 months. Since then, about 24 months later, Parliament has still not amended the IPID Act. The debate has occurred in the Committee and there was a commitment from the Minister that there would be a full scale amendment to the IPID Act. The IPID Act cannot just be amended for the appointment of the Executive Director because the IPID Act does not cover the functioning of the Metro Police, the City Police or traffic officials. This was seen in the incidents in the City of Cape Town where a naked man was dragged out of his informal settlement. The Committee requested that the City of Cape Town and the Province report to the Committee on this matter. Mr Whitfield suggested that the Committee wait until the IPID Act is complete before an Executive Director is appointed.
The Chairperson wanted the Committee to discuss and debate the matter. Should IPID remain without a permanent head until the Act is amended? It could take Parliament over a year to totally amend the IPID Act. If the Committee waited till the amendment of the IPID Act, IPID would be without a head because legally the Committee would not be able to extend the acting head’s term of office. The Committee had sought lead opinion and there was no piece of advice which told the Committee what to do if it failed to appoint within one year. The matter has been sent to the Committee and the Committee is requested to resolve this matter. The argument is that during this period of COVID-19 with all the cases referred to IPID it would be irresponsible of the Committee to not appoint an IPID head. The Committee had received documents from the Helen Suzman Foundation, Mr Whitfield and letters from Corruption Watch and a number of other institutions which have all been considered.
The Chairperson opened the floor for discussion and debate on the matter.
Mr A Whitfield (DA) was extremely disappointed that the Minister was allowed to proceed with his presentation given the overwhelming information that the process appears to be flawed. He had said this in his letter to the Committee and had debated about it. It has been raised by himself and many other colleagues in the Committee that there were concerns. He directed the Chairperson’s attention to the legal opinion that was solicited by the Chairperson and was sent to the Committee on 11 June. It says that the section does not clothe Parliament with the power to extend the period. This Committee has extended, erroneously in his view, the Minister’s period to nominate an IPID head, twice. The first time it was extended he had cautioned against it and the Committee was told that it would be provided with comprehensive information by the Deputy Minister regarding the selection process which was conducted earlier this year. The Committee never received that information and therefore the Committee could not conduct its oversight responsibility nor could it hold the Executive to account. Now the Minister was presenting a timeline of failure to nominate. A timeline of complete and utter failure and disregard for the law where there was no provision for the Committee to extend the period of nomination. The Committee was being put in a very precarious situation. He noted that the Chairperson had said ‘we had failed’ but it was the Minister who has failed. It was the Minister’s job to bring a nominee to the Committee before twelve months was up. The Minister had twelve months to nominate somebody and to run a process. The Executive has failed. This Committee could not simply rubberstamp the Minister’s nominee without considering the very serious legal implications. He thanked the Chairperson for including the letter from the Speaker because it appears in the Minister’s remarks that he was under the impression that he was granted an extension by the Speaker and that was simply not true. The Speaker says that the wording of the particular legislation in the IPID Act is very specific and does not allow for any extension to be granted even by Parliament. The Committee may not extend the period for the Minister to nominate. He had made it repeatedly clear on a number of occasions and it was unfortunate that the Committee found itself in a situation where it must make a decision which appears to have already been made. The Committee was being placed in a very difficult position legally. He did not think the Committee had the authority to proceed with the appointment of the Minister’s nominee. The process was fatally flawed and will be challenged. This could be seen from the letters from Corruption Watch and Helen Suzman Foundation. The Committee needed to be very cautious to protect the Committee and Parliament. The Act needed to be amended in order to deal with the inconsistencies so that when the appointment was made it would be beyond reproach.
Mr O Terblanche (DA) agreed with Mr Whitfield. He emphasised that the Minister failed dismally and this was raised on numerous occasions. The Department told the Committee that it cannot run a process again but the service provider that they acquired did exactly that. The process was flawed. The Committee needed to deal with the legal issues and therefore the Committee could not continue with the appointment of the Minister’s nominee.
Dr P Groenewald (FF+) said that the Committee was in a ‘Catch-22’ situation. He thought that the Committee would have received a legal opinion from Parliament on the Helen Suzman case where the Foundation was taking the matter on appeal. He would have liked a legal opinion from Parliament to state what the position of the Portfolio Committee was seeing as there was an appeal from the Helen Suzman Foundation. There was an agreement between the Minister and McBride that was made an order of the court. That was the one concern. The Committee was already outside of the prescribed timeframe. If the Committee was outside of the timeframe was it still required to do an appointment immediately or should the Committee ensure that there was a more thorough process? The Committee should make decisions on what it wants to discuss before it makes a recommendation on a nominee. He did not think that the Committee had to amend the Act immediately to determine the internal process with regards to the criteria that it wanted to use to make an appointment. Last year the Committee was confronted with only one name. He had said in the Committee that that was not acceptable. The Committee said that it wanted more names. He saw the letter from the Minister and what the Minister has said. The Committee needed to make a recommendation. If the Committee needs to approve the nominee then it can decide the process for nomination. He did not see how the Committee would have to wait for an amendment if the Committee determined a specific criteria, which it wants to follow, to appoint an IPID head. The amendment of the Act can continue to ensure that in future there is a proper process. In summary he wanted two things. Firstly, he wanted a legal opinion on the Helen Suzman Foundation’s appeal. Secondly, he wanted a legal opinion from the Parliamentary legal advisors whether the Committee can determine its own criteria for the appointment of an IPID head. If the Committee was allowed to determine its own criteria he suggested that the Committee compile this and go forward on that basis.
The Chairperson said there was a legal opinion on the Helen Suzman Foundation matter. She requested that the Committee Secretariat find the legal opinion.
She confirmed that there was a legal opinion.
Dr Groenewald said he did not receive the legal opinion on the Helen Suzman Foundation situation.
The Chairperson asked for the legal opinion to be displayed once the inputs from the other members were finished.
Mr A Shaik Emam (NFP) said that the Committee needs to be mindful of the fact that there was no IPID head at the moment. IPID was functioning without a head and that has serious consequences. It was very clear that the Court has asked for the Act to be amended. Parliament was not able to amend the act timeously and was still busy with it. It was clear that it would take a period of time before the Act would be amended. He felt that sometimes the Courts wanted to run Parliament and he had a problem with that. The Act is not clear what happens if the Minister does not appoint in twelve months. Given the absence of that should Parliament not be able to exercise its right to do what is in the best interest of serving the people in the country? Parliament should in the meantime appoint the head while it was in the process of amending the Act. No one knew how long the process of amending the Act will take and that means that IPID will continue to function without a head. That was not good for the large amount of complaints and that was why IPID was not functionally optimally. The Committee needed to think of what was in the best interest in the people of the country and the need for an IPID head. He knew that there was a legal opinion. What the legal opinion does not consider is what must happen in the interim. Parliament needed to look at whether it could appoint somebody and accelerate the process of amending the Act. The Committee needed to be mindful of the various reasons like the issue of the McBride matter or the fact that the Minister could not find suitable nominees. It is clear that the Act does not stipulate what happens when the Minister fails to appoint a head and the Act does not give direction to Parliament either. There was a grey area and he believed the Committee needed to act in the best interest of IPID so that the organisation can operate optimally.
Ms J Mofokeng (ANC) agreed with Mr Shaik Emam on the process of amending the IPID Act. There were many grey areas in the Act and it does not say what must happen if the Minister does not make an appointment. The Committee must agree that IPID has been facing a number of challenges. The Committee has done a lot of research on the matter. She was happy that for the first time IPID would have a women as Executive Director who has over 20 years of experience in Gauteng community safety. This person has a Degree in Law. What is it that the Committee wants because this is the person that the Committee has been looking for? This would be the first time the IPID head would be a women. The Committee needed to look forward. What worried her was the spokespeople from Corruption Watch and the Helen Suzman Foundation. She had a serious problem with those organisations. She said that the Committee must allow the parliamentary legal advisor to speak. From the side of the ANC they supported the nomination of Ms Jennifer Dikeledi Ntlatseng to be the IPID head.
Ms Z Majozi (IFP) said that the survival of IPID needed to be prioritised. She saw the different legal advice but it did not state what was unlawful in the appointments. If the legal advice said that the process undertaken by the Minister was unlawful then the Committee would have a clear idea of what to do. The legal advice was not clear on what should be done. The Committee could not afford to let IPID suffer not having a head. IPID was already suffering with the acting Executive Director. The Committee really needed to make a decision and it had options available. If the nomination of Ms Ntlatseng was accepted she did not see why the Committee would have to argue about it. She supported the appointment of an Executive Director. The process needed to be given a chance to unfold. She agreed with Ms Mofokeng that if this candidate is qualified and has experience then what is holding the Committee back? Who exactly does the Committee want? If the Committee waits for the Act to be amended then in another year the same issue will still be there of IPID suffering because it does not have a head. She suggested that the Committee continue with the process even though it was supposed to have been done a long time ago.
Mr H Shembeni (EFF) said that the law does not say anything about the appointment of the Executive Director after the twelve month period has collapsed. The law does not talk about an extension or if there is any wrong doing the period is extended. He was afraid that the Committee might find itself in the crossfire between the Helen Suzman Foundation and the law. He did not hear what the response of the Speaker was when the Minister wrote the letter to ask for an extension. Did the Speaker grant the extension or did she say it must be decided in the Committee? The Committee might find itself in the wrong position in extending the period of appointment of the IPID head. The acceleration of the IPID Amendment Act would help the Committee. The acceleration of the McBride issue might also help the Committee.
Mr K Maphatsoe (ANC) said that the Committee had been fighting for the appointment of a permanent appointment of an IPID Executive Director. Whenever the Deputy Minister was present in the Committee meetings he would provide an update that the Department was trying its best to find a suitable candidate to occupy the position. The Speaker responded to the letter from the Minister. He had a problem with what Mr Whitfield was saying. Mr Whitfield was mainly concentrating on the amendment of the Act which the Department was in the process of doing. He did not think that the Committee should wait for the amendment of the Act to appoint an IPID head. That would mean another year without an IPID head. This was the Portfolio Committee on Police and they were not representing the Helen Suzman Foundation. The Helen Suzman Foundation issue was an issue about renewal of the contract of McBride. McBride’s term of office expired so the Minister did not renew it. It was the prerogative of the Minister whether he or she decides to extend or not extend the term of office. The Minister did not renew or extend. It was wrong for the Helen Suzman Foundation to go to Court when the contract expired and was not renewed. He then moved onto the issue of the legal advice. The Act, in section 6 subsection 5, was silent on what must happen in the event that the Minister fails to fill the vacancy within the prescribed period. The Act was silent on what must happen so the Minister must be silent and the Committee must be silent. The amendment of the IPID Act does not only speak about the head. The amendment would be broad and speak about anything. He was worried that if the appointment of the head was not accelerated there would be scenes like those that happened in the Western Cape where the Metro Police undermine the people. The Metro Police evicted a person even though the regulations are very clear that no one was to be evicted during the time of the COVID-19 pandemic. The Western Cape ‘because it is a federal state’ thinks it can do as it wishes. The Western Cape thought it could undermine the dignity of the people. ‘It shows that the Western Cape did not respect the dignity of our people’. He wanted the IPID head to be appointed now so that she was able to deal with those Metro Police who undermined the dignity of the people. The ANC could not allow that. The ANC was against the aggression of the police. He did not agree with the stance the DA was taking. The Act was not clear on what the Minister must do in the event that the time has lapsed so he proposed that the Committee cannot wait for another year without having the amendment Act ready. He supported the appointment.
Mr Whitfield raised a point of order. It was unfortunate that some members were politicising the issue when all other members have stuck to the facts of law and the advices that have been provided to the Committee. The Western Cape was the only province with a Police Ombudsman. There were oversight bodies in place. He was clear that land grabs were a problem in every province and they were being enforced in every province where law enforcement were removing people who are legally occupying land.
The Chairperson called the members to order. She had already indicated to the Committee that the Western Cape will be called to the Committee to answer for what happened. In the next meeting the Committee was inviting the Western Cape, the City of Cape Town Mayor and the MEC for Safety where this matter would be dealt with. She requested that all members continue focusing on the appointment of the IPID head. It was stated that the Act was silent on the matter of the Metro Police, City Police as well as traffic officials. When the Act is amended it will be a complete amendment and not just an amendment on the appointment of the Executive Director. It was agreed that an overall amendment of the IPID Act was needed. She asked to receive an opinion from Adv Njikela on the Helen Suzman Foundation letter and what is recommended that the Committee do.
Briefing by Parliamentary Legal Advisor
Adv Siviwe Njikela, Parliamentary Legal Advisor, said the Committee was dealing with this matter in terms of sections 6 (1) and 6 (2) of the IPID Act. These sections say that the Minister must nominate a candidate to fill the position of the Executive Director. That nomination by the Minister must come to the Committee for confirmation or rejection. In law this was a simple and straightforward provision. What seems to complicate the decision that the Committee has to make now is that for the Minister to nominate there must have been a vacancy. That vacancy, in terms of the law, should have been filled, within a period of twelve months. Instead of the Committee dealing with sections 6 (1) and 6 (2), which deals with nomination and confirmation, the Committee needs to deal with the non-compliance with the provision that it must be done within twelve months. The law as it stands is silent on what must happen should there be a non-compliance with the provision. What the legal advisors suggested to the Committee in the past was that the fact that there has been a non-compliance does not take away the power to nominate and for the Committee to appoint. How the Committee deals with the non-compliance, in the view of the legal advisors, was through the normal oversight processes. The Minister must appear before the Committee and explain why he has not been able to appoint within the prescribed period. The Committee must deliberate on that non-compliance. It must make its report available to the House and the House makes a decision. That was the oversight process. Nowhere in the legal opinion is it suggested that the fact that there has been a non-compliance means the process cannot proceed. He then moved onto the issue of the Helen Suzman Foundation. He took the Committee through to how it came to this position.
The term of Mr McBride was scheduled to come to an end on 28 February 2019. In January Mr McBride had received a letter from the Minister informing him that the Minister had no intention of extending his contract. Mr McBride objected to that decision and wrote to Parliament and wrote to the Minister and said that the power to renew lies with the Committee. When he went to the High Court he sought to enforce the provisions of section six insofar as they relate to renewal. Before the matter became a hearing all the parties involved came to an agreement that the matter had been referred to Parliament for a decision. Parliament was to make a decision by 22 February 2019. Parliament made a decision to not renew the contract of Mr McBride. That was the basis of the settlement. What Parliament did is what was agreed to by all the parties concerned before the Court. That agreement was made an order of Court. The Helen Suzman Foundation had difficulty with that settlement and appealed that settlement agreement that was ordered by the Court. The Helen Suzman Foundation failed in the Pretoria High Court. The Foundation has now taken their grievance to the Supreme Court of Appeal. The legal advisors sought to draw a distinction between the issue that is before the Supreme Court of Appeal and the issue that the Committee was now called upon to decide. What is before the Supreme Court of Appeal is the issue of the nonrenewal: whether Parliament should have played any role in the renewal or nonrenewal of the Executive Director’s previous term. In his opinion that decision was made subsequent to a court order and that decision by Parliament is not under review in the Supreme Court of Appeal. There was a vacancy that occurred on 28 February 2019 and that was why there has been an acting Executive Director for this entire period. There was a new nomination that must be confirmed by the Committee. Whether Parliament should have been involved does not mean there is no vacancy because the vacancy occurred on 28 February. These were the two things that the legal advisors sought to separate. The appeal that was pending was on a different matter. It was not on the power of the Minister to nominate because that section is not being challenged. The power of Parliament to confirm or not confirm is not under consideration by the Supreme Court of Appeal. It was the interpretation of the Helen Suzman Foundation based on the previous judgement that is the subject of interpretation in the Supreme Court of Appeal. He added that in law there is a principle that subsection 1 can not be read in isolation from subsection 3 and subsection 6. The entire provision needed to be ready in harmony. That was the challenged that was being faced. Although it is clear what the Minister must do and what the Committee must do but that must be done in the context of the vacancy that has occurred. Everything has been brought together to suggest that the Committee should not do anything. These are the issues that the Committee must consider. He was deliberately limiting himself to the legal issues as they appear in section 6. There had been a lot of policy issues raised which were in the domain of the Committee to consider. Section 6 (1) and 6 (2) state that there must be a nomination and that nomination must be confirmed or rejected by the Committee that was the issue. The issue of the vacancy created the problems facing the Committee. The legal opinion provided to the Committee stated that these matters were separate. Parliament has a constitutional and statutory obligation to fill the vacancy. That was a purely legal response and did not take into account policy considerations that the Committee had to consider.
The Chairperson said that the Committee may proceed and either approve or rejection the nomination from the Minister. She was convinced that the legal opinion allows the Committee to do so.
Ms P Faku (ANC) said it was important that the Committee support the nomination by the Minister. The Minister has been honest to the Committee and has presented all the challenges they have had to appoint the IPID head. The legal team has provided clarity on the issue of non-compliance. The Minister explained that there was a period where the Department shortlisted but no suitable candidate was found. For the issue of non-compliance there was an explanation. She was really comfortable with the non-compliance issue because the Committee was aware of the challenges facing the process of appointment. It was important, given the challenges facing IPID, that the Committee support the appointment of the IPID head. It was important to not delay the matter any further. The Helen Suzman Foundation appeal was about the amendment and that the Committee could consider at a later stage. The appointment of the IPID head must not be delayed.
Mr Whitfield drew the Committee’s attention back to the letter from the Speaker. The letter said that the wording of the particular provision of the IPID Act was very specific and does not allow for any extension to be granted even by Parliament. That the vacancy remains unfilled since becoming vacant, since February 2019, is on the face of it a breach of the Act. The Minister is in breach of the Act and the Committee is not doing anything about it. The best way to hold the Minister accountable, which was the duty of this Committee, was to suspend this process, conclude the amendment of the Act and then proceed with a nomination process to appoint a permanent head of IPID. He did not believe that this current decision would bring stability to IPID. It would be a dark cloud hanging over the police watchdog which was not going to help the Committee fulfil its oversight functions of the police in South Africa. He did not support the nomination of the Minister and he encouraged the Committee to follow suit.
Ms Mofokeng started reading from the last part of the letter from the attorney’s from the Helen Suzman Foundation. It says that should the Committee proceed to deliberate and reach a decision on the Minister’s nomination the Helen Suzman Foundation reserves its right in respect of the legal remedies available to it including the right to take appropriate remedial action. Therefore, the Committee had a right to continue to choose whoever it wants to and the Helen Suzman Foundation can take its action wherever it wants to. Members of the DA and others who were against this appointment were not honest with the Committee. It was as if the members who are against the appointment were happy to see all the challenges in IPID. The Western Cape is not better and it was also having challenges unless these members did not want IPID zooming in to whatever is happening in the Western Cape. The ANC was not politicising this the DA was. The DA keeps on telling the Committee about the Helen Suzman Foundation and Corruption Watch. Was the DA spokespersons for these organisations? IPID needed someone to be in charge and this time it was a woman and she supported the nomination.
Dr Groenewald said that in law there was the de jure situation and the de facto situation. That simply means what is the tactical issue and then what happens in practice. He thought the legal opinion on the Helen Suzman Foundation situation was correct. The de jure situation is that there was a breach of an Act. The question is what was the Committee going to do in practice? This Committee should take a decision to get a comprehensive report from the Minister for the reasons of the delay and why there was a breach of the Act. As the Portfolio Committee on Police they had an obligation of oversight. If the Committee did not receive a comprehensive report then the Committee was failing the people of South Africa. The Committee still needed to continue amending the IPID Act and that did not mean that the Committee could not appoint a new Executive Director. He did not support this nomination because he believed that the Committee should determine its own criteria. One of the criteria should have been that the person appears in front of the Committee because the Committee had not interviewed the nominee. He gave an example of the SABC board members being interviewed by a Committee of Parliament. The Portfolio Committee on Police should follow a similar process. The Committee needs to ask why in the previous Court cases the Courts instructed Parliament to amend the IPID Act. It is because the Court feels that there should be proper oversight from Parliament in the appointment of the Executive Director. There should not be political manipulation from the Minister and from the Executive. Technically the Committee was going to take a decision. The ANC had the majority in the Committee so it was going to be a political decision and not a merit decision. He had a problem with the fact that there was no proper process. He did not support the nomination of the candidate.
The Chairperson said that the Committee was in agreement that the IPID Act needs to be completely and fully amended. The Committee needs a comprehensive report that details the delay. The Committee expected the Minister to provide a comprehensive report to the Committee giving the reasons for the delay. The appointment or rejection of the IPID head should be discussed. She would rule any member out of order if they did not discuss the appointment or rejection of the IPID head. If the Committee discusses criteria after there has already been a nomination would this be fair on the existing process? There has been an existing process and the Committee cannot reverse that process.
Ms P Peacock (ANC) said that the Committee should support the appointment of the IPID head. One thing that worried her is that when the nominee is about to be finalised some members were finding faults. Dr Groenewald and Mr Whitfield have been complaining that IPID needs a head and now that the Committee was performing its role the two of them were finding faults with the Minister. The Minister has always been honest with the Committee as to why there were delays and why the Department could not appoint a head. The Committee needed to agree with the recommendation made by the Minister.
Mr Shaik Emam said he was satisfied that the Committee had the authority to finalise the appointment made by the Minister. He went through the entire CV of the nominee and saw that she has the necessary qualifications. She has the necessary experience. This candidate has experience in managing, budgeting and finances. She also has experience in conflict resolution. He was quite satisfied that the candidate has the necessary qualifications, the expertise and the experience to fill the position. IPID did not have a head and the Committee was aware of the consequences of that. He did not think it was going to prejudice anybody if the Committee appoints this particular candidate and then amend the Act accordingly. The National Freedom Party was satisfied that the Minister has the power to nominate and appoint and for the Committee to verify that appointment. He would be supporting the nomination of Ms Ntlatseng to be the IPID head.
The Chairperson said that the proposal was that Ms Ntlatseng be appointed as the IPID head.
Mr Terblanche did not support the nomination. The candidate has no experience regarding investigations and that was the most important part of IPIDs job.
Dr Groenewald was not in support of the nomination.
Mr Whitfield was not in support of the nomination
Mr Maphatsoe said that sometimes the Committee undermines the quality of women. If people did not have confidence in a woman who has spent time studying and working on some of these matters ‘then what country are we?’ The ANC supports the emancipation and empowerment of women. If a woman has the qualifications and meets the requirements then the Committee must support them. He was surprised that the Committee was asking for a report when the Committee had been pressuring the Minister to appoint an IPID head. The entire Committee agreed that the IPID head needed to be appointed and members did not bring up the Helen Suzman Foundation issue or any other issue. Now that the Minister has nominated a candidate some members were politicising the issue.
Dr Groenewald raised a point of order. It was not acceptable that Mr Maphatsoe says that the members objecting to the nomination are against women. The gender of the candidate has nothing to do with the matter. He objectively gave the Committee his opinion. He objected to Mr Maphatsoe saying that he had a problem against the candidate because she was a woman. It was totally unacceptable and he should withdraw that remark.
The Chairperson asked Mr Maphatsoe to withdraw his remark.
Mr Maphatsoe said maybe he misunderstood Mr Terblanche and what he was saying. His remarks were meant for Mr Terblanche and not Dr Groenewald. He thought Mr Terblanche did mention something to that effect.
The Chairperson called for order. The Chairperson clarified that Mr Terblanche said that the candidate did not have investigative experience. He did not say that she should not be appointed because she is a woman. This Committee has expressed itself on the matter of gender equity and gender representation in the Police. She ruled the members all out of order on that matter. The members must discuss whether the Committee approve the candidate or not. As of now most of the members were approving the candidate.
Ms Mofokeng supported the nomination of Ms Ntlatseng to be the Executive Director for IPID. The Committee would be appointing a person with qualifications that were correct and a person with experience. She hoped that the Committee would give Ms Ntlatseng support.
Ms Peacock supported the nomination of Ms Ntlatseng as proposed by the Minister. She commented that whenever a women is to be appointed to a senior position there is always the issue of experience. Now there was an issue of investigative experience. Who is born with experience? She supported the nomination and knew that the Ms Ntlatseng would do her best in the position.
Mr Shembeni said that he was not against the appointment of the IPID Executive Director. He was, however, against the politicising of the matter. The Committee must make sure it did not politicise the appointment of the IPID head so that the organisation may function optimally. The appointment of a woman was very important and he applauded that. He asked that politics not be involved in this matter. The Committee must appoint a person who is qualified to do the job for South Africa. The issue of politics around this matter needed to come to an end. The Committee needed to be involved when the appointment and the interviews were being done. Being part of the interview and appointment process will help the Committee. Politics needed to stay away from appointing Executives especially in IPID. If politics were involved in the matter it would mean that IPID would be controlled and under siege.
The Chairperson said that the Committee agreed that there was no way to politicise the appointment of the IPID head. This position was too important for a cloud to be hanging over the appointee. When the person is appointed it will be an appointee of the Committee. Whether certain members agree or disagree the final decision will be taken by the Committee. She agreed with Mr Shembeni that the matter should not be politicised. When the Act is amended the Committee has to look at the process of appointment and that the Committee should become part of the interview panel or that the candidate be interviewed by the Committee. The current Act does not allow for this nor does it expect the Committee to do so.
Dr Groenewald raised a point of order to address Ms Peacock’s remarks about the investigative abilities of the candidate. He said it was important to put on record that six potential candidates were rejected because they did not have investigative experience. Those were the reasons for non-recommendation. Six candidates with good qualifications were rejected and now the Committee will appointment someone who also does not have investigative experience. That needed to be put on record.
Ms Faku said it was important that the Committee move forward and approve the IPID head. Some members were coming up with all sorts of issues. What the Minister presented to the Committee qualifies the appointment of the IPID head. First some members were complaining about the process and then about legal matters. The issues Mr Terblanche and Dr Groenewald were raising were not relevant. Whatever the Committee discussed it needed to be consistent. She agreed with the Chairperson that the matter should not be politicised. All the necessary steps have been taken and let the Committee appoint the IPID head. Let the Helen Suzman Foundation pursue the appeal. The issue of non-compliance has been taken into consideration. The Minister has come to the Committee and explained those mitigating factors why the IPID head was not appointed in the twelve month period. She proposed that the matter be closed because the majority of the members agreed in the appointment of the IPID head. She appreciated the Minister nominating a woman. Women are often overlooked in the security sector. The candidate is qualified and has the experience.
The Chairperson said that the Committee reached a conclusion that it strongly supports the candidate that has been proposed by the Minister. The Committee accepts that Ms Jennifer Dikeledi Ntlatseng be appointed as the Executive Director of IPID. The appointment process was robust and the Committee was assured that it appointed an individual who has the necessary qualifications for this position. The candidate demonstrates an in-depth knowledge of the criminal justice system based on the documents. The candidate that the Committee was supporting was interviewed. The panel nominated her as the best candidate. The panel nominated her as the candidate that understood the work of IPID. She said that the members had had a robust discussion on their oversight role and that the IPID Act needed to be amended. The interview process has been transparent and the Committee has had all the relevant legal opinions. This has been a rigorous process. The Chairperson would have been disappointed if the Committee simply rubberstamped the nomination from the Minister. In no way has the Committee rubberstamped the Minister’s candidate. In the amendment of the Act the Committee would ensure that the appointment process would be tightened up. The Committee approves the candidate as nominated by the Minister.
Minister Cele said that he just received a report that there had been no illicit activity done by the candidate.
The Chairperson wanted the process of vetting to be completed so that the Committee knew there were no ‘skeletons in the closet’ of the candidate.
Consideration and adoption of the adjustments budget report of the South African Police Service, Vote 28
The Chairperson went through the adjusted budget report of the South African Police Service and asked if there were any amendments or comments?
Mr Whitfield said that the paragraph under ‘Costs of Personal Protection Equipment’ the last sentence says ‘the Committee in raising this matter, was concerned that corrupt practices were not present in the supply of such PPE’. He did not understand why the Committee would say that corrupt practices were not present. He wanted an explanation and correction on that sentence.
Dr Irvin Kinnes, Content Advisor, noted Mr Whitfield’s point and the amendment will be placed in the report. That was an error on the part of the advisory team.
Mr Shaik Emam said that the comprehensive report was still to be provided by SAPS on the issue of PPEs.
Dr Kinnes said that on page 11 it states that the Committee recommends that SAPS provides a breakdown of personal protection equipment and make it available to the Committee so the matter was included in the report.
The Chairperson said that the report was considered. Was there a proposal for adoption?
Ms Mofokeng asked to go back to page 9 on crime intelligence. It should state that the Committee noted the crime intelligence budget was not cut. She then moved for the adoption of the report with amendments.
Mr Shaik Emam seconded the adoption.
Mr Whitfield said that the DA reserves its right to vote on the report.
The report was adopted with amendments.
Consideration and adoption of the adjustments budget report of the Civilian Secretariat for Police Service
The Chairperson went through the adjusted budget report of the Civilian Secretariat for Police Service and asked if there were any amendments or comments? There were no amendments or comments. The report was put to the Committee.
Ms Faku moved for the adoption of the report.
Ms Peacock seconded the adoption of the report.
The report was adopted.
Consideration and adoption of the adjustments budget report of the Independent Police Investigative Directorate
The Chairperson went through the adjusted budget report of the Civilian Secretariat for Police Service and asked if there were any amendments or comments?
Ms Mofokeng raised a point on recommendations. The Committee noted IPID’s spending on PPEs and especially hand sanitisers. The recommendation was that IPID should come and present to the Committee a detailed report on the procurement of PPEs.
The Chairperson agreed and it would be captured in the report.
Mr Terblanche placed it on record that during the presentation he was unable to participate because of a bad connection. He was therefore not part of that discussion.
The Chairperson noted his point and said that she too was disconnected from that meeting and that it should be recorded.
Ms Mofokeng moved for the adoption of the report with amendments.
Mr Shaik Emam seconded the adoption of the report.
The report was adopted with amendments.
The meeting was adjourned.
28 Feb 2019
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