Legislative update on SAPS, IPID, Firearms Control & DNA Forensic Amendment Bills; with Ministry

Meeting report

Opening remarks

The Chairperson said the Committee had set certain targets in relation to the bills on the meeting’s agenda and wanted to know how they would be met.

She noted that there had been spate of murders and rapes of children in the past week. The situation was becoming critical in the country. She had been made aware of a gruesome case that had occurred that morning where a six-year old girl had been raped and killed. At some stage or other the Committee and South Africans had to look at the killings of children in the country just as there had been a focus on GBV.

The bills were not to be looked at in a substantial manner that day – Members would not engage in the details. The meeting served as an overview of the bills.

The bills included the SAPS Amendment Bill, the IPID Bill, the Firearms Control Amendment Bill, as well as the Criminal Law (DNA Forensic Procedures) Amendment Bill.

She said the SAPS Amendment Bill had gone through Cabinet and was published for comment.

The Criminal Law (DNA Forensic Procedures) Amendment Bill was a matter that the Committee had been concerned about. She did not know how much progress would be made with the Bill in this meeting.

The Committee had to pay attention to the forensic and DNA matter, as well as the firearms issues. Concerns had been raised by the members the previous week in this regard.

Rev K Meshoe (ACDP) said the leaders of parties had been invited to meet with the Minister of Finance, Mr Tito Mboweni, at 10:00 and apologised that he would have to leave the meeting at that time.  

The Chairperson said that numerous members had apologised and would leave the meeting by 10:00. This was the reason for not dealing with the bills in detail that day.

She handed over to the Minister of Police, Mr Bheki Cele.

Remarks by the Minister

Minister Cele said the Deputy Minister of Police, Mr Cassel Mathale, was present. The question of the bills rested with the Deputy Minister, although he was properly briefed on the matters. The Committee had indicated that the meeting was not very focused on the content due to the time constraints.

He took on board what had been raised about the DNA matters. A full and informed presentation would be ready to be made in time for the next set date.

At that present moment, there were four bills on the table. There would not be the same wait in terms of timing of these bills however. Some would be for 2020, others 2021.

He said that the Secretary for Police Service, Mr Alvin Rapea, introduce the presentation and touch on the bills

Briefing by Civilian Secretariat for Police Services

Mr Rapea asked the Chairperson for the time constraints allocated for the presentations. The Chief Director: Legislation, CSPS, Adv Dawn Bell, would lead the presentations. They contained some legal content, mostly on matters of processes however.

The Chairperson asked the CSPS to use 20 minutes for the presentation. There would be 30 minutes for comments. The Committee would not have a quorum after 10:00.

Mr Rapea handed over to Advocate Bell.  

Adv Bell introduced the presentation.

Draft Criminal Law (Forensic Procedures) Amendment Bill

The Act had commenced on 31 January 2015 and there had been a period of transition within which the buccal samples of all convicted Schedule Eight offenders should have been taken. This had expired on 31 January 2017. Buccal samples still needed to be taken from convicted Schedule Eight offenders whose samples had not been taken prior to the commencement of the Act.

The Draft Amendment Bill was not a renewal of the Act; new provisions were being asked for. The transitional arrangements could not be renewed. There had been a proposal to the Minister of Home Affairs to urge the investigation of the feasibility of extending the taking of buccal samples to all South African citizens. CSPS awaited a response from Home Affairs.

Research on the implementation had been conducted in the meantime.

She had received an email the previous day from a Home Affairs official which had said the matter would be dealt with early in 2021.

Having realised that the process for new legislation on a national data base is going to be a lengthy one, the Minister is considering taking the process forward on the draft Bill and to proceed to Cabinet for approval for introduction.

This will therefore be a parallel process with the development of legislation on the one hand, to provide for a national data base which incorporates the buccal sampling of all citizens and the finalisation of the new transitional provisions in respect of the full implementation of the Act

Firearms Control Amendment Bill

This draft amendment Bill seeks to among other issues, provide a framework for a holistic approach to the control and use of firearms and ammunition.

The drafting of the Bill had been finalised.

It had been presented to the Justice, Crime Prevention and Security Cluster (JCPS) Directors General who had supported that the Bill be moved to the Minister’s cluster.

The issue of costing of implementation from SAPS remained outstanding.

The Minister is to be briefed shortly before the draft Bill is presented to the JCPS Minister’s Cluster.

Cabinet approval for publication in Gazette is targeted for the 4th Quarter.

South African Police Service Amendment Bill

The South African Police Service Act, 1995 (Act No. 68 of 1995), predates the Constitution of the Republic of South Africa, 1996 (“the Constitution”) and needs to be fully aligned with the Constitution. In addition, there were a number of other imperatives which led to a full review of the Act:

• There are various shortcomings in the legal framework which governs the police service, such as the fact that the intelligence division is not regulated in terms of the South African Police Service Act, 1995.
• Issues such as integrity testing, lifestyle audits and conflicts of interests are not addressed in the Act.
• Community policing and the oversight of the community police forums over the police service need to be enhanced.
• The coordination between the police service and municipal police services needs to be improved in terms of the concept of a single police service and section 206(7) of the Constitution to enhance the framework for the establishment, powers, functions and control of municipal police services.
• Numerous Governmental policies were developed and require integration thereof into the South African Police Service Act, 1995, for effective implementation, and to align the said Act with the White Paper on Policing, 2016, Community Policing Policy, the Policy on a Single Police Service, and the National Development Plan, 2030.

The Bill had been published for public comment.

The CSPS had conducted provincial consultations from 26 October 2020, eliciting comments on the Bill. The comments process had been extended from 16 November 2020 to 27 November 2020.

Independent Police Investigative Directorate Amendment Bill

In January 2018, the drafting of this Bill was suspended due to the commencement of a Committee Bill. The Bill was assented to by the President and published in the Gazette on 03 June 2020 as Act No.27 of 2019, Independent Police Investigative Directorate Amendment Act, 2019

The Bill was identified as a priority Bill for 2021 in the list of priority legislation that has been submitted to the Deputy President.

 A drafting team comprising officials from CSPS and IPID have resumed the process of reviewing and redrafting the current version of the Bill. The drafting team has developed a Project Plan which sets out timeframes for the development of the Bill, for the purpose of its introduction in Parliament on or before the end of 2021.

The draft Bill was consulted on internally, that is, the Ministry, IPID National and Provincial offices and the CSPS. The Bill was further revised, incorporating comments from the Ministry, the Secretary of Police and the Executive Director of IPID.

On 10 September 2020 all Principals (the Minister and the Deputy Minister, Secretary for Police and the Executive Director) were virtually briefed on the latest version of the Bill. Final changes were effected.

On 15 September 2020, the Bill was processed to the Office of the Chief State Law Advisor. The Bill has been allocated to a State Law Adviser who is familiar with the contents of the Bill. The State Law Advisor undertook to arrange a consultation should he be of the view that one is necessary.

On 21 October 2020, contact was made with the State Law Adviser who confirmed that the preliminary certificate on the draft Bill was in the process of being finalised and that it should reach the Department shortly

The comments/inputs and recommendations of the State Law Advisor will be considered and incorporated into the Amendment Bill. Approval of these changes will again be sought from the Minister in order to proceed with the consultation process for Cabinet approval for publication in the Gazette for public comments. Once public comments have been received, they will be considered and if useful, incorporated into the draft Bill and after the various processes have been followed, final approval will be sought from Cabinet for introduction of the Bill 

Adv Bell concluded the presentation.

The Chairperson handed to Deputy Minister Mathale for comments.  

Deputy Minister Mathale allowed for questions. He was happy with what had been presented.

Discussion

The Chairperson reminded Members that the Committee was discussing the processes of the bills, not the content, that day.

Mr A Whitfield (DA) said it had been the most efficient presentation the Committee had received in a while. It had dealt with a lot of content.

The Committee members were aware of the history of the DNA Bill.

He thanked Minister Cele for allowing the process to proceed in conjunction with the Department of Home Affairs. The process and timeline were now able to be dealt with concurrently. He presumed the Bill would see urgent gazetting. The importance of the Bill was that it ensured longer sentences for those whose DNA could be linked to other crimes.

This linked back to the Chairperson’s introductory remarks at beginning of the meeting on the spate of rapes and murders in the country, showing how important the Bill was.

On the Firearms Amendment Bill, the Committee needed to invite the Central Firearms Registry to present on the matter. He mentioned the case of Colonel Chris Prinsloo who had been sentenced to 18 years in prison as he was responsible for selling guns to gangs in the Western Cape. He had been released on parole after serving four years in April 2020. He added that the Committee needed to know what the capability of the Central Firearms Registry was.  

He understood that the IPID Amendment Bill should have been “ready to go”. The priority was to finalise it. He asked to be provided with a more specific timeline. Would it be done within the current financial year?

Rev Meshoe referred to the Firearms Control Amendment Bill and asked what was delaying the implementation of the costing. Where were the challenges?

Why had a police officer who had been arrested for selling guns to criminals been released on bail (parole)? He knew the courts determined such matters, but the police needed to do their utmost to ensure this was not possible. He suggested even an amendment or the insertion of a clause that allowed for bail of officials who worked with criminals to be prevented. Many lives were lost because of this. Was the Department doing enough to ensure police who were involved in such criminality were dealt with?

He asked for clarity on buccal samplings. What would be the benefit to the country if the taking of buccal samples could be enforced on all citizens? While he knew there were high levels of crime in the country, the majority of citizens were not criminals. Was there an idea or plan or intention to make it compulsory when most citizens were law abiding?

Mr A Shaik Emam (NFP) thanked the Chairperson for highlighting plight of children. There had recently been a case of a child mauled by a Pitbull in Hannover Park. Another child had lost their eyesight due to a criminal menace who could not be taken off the streets.

The DNA Bill would go a long way in solving many issues in the criminal justice system. There were matters where foreign nationals came to South Africa and died in the country, like the case of the Tanzanian who had died and been kept in a morgue for three years.

On the IPID Bill, the matter had been discussed in the House previously. Law enforcement officers needed to be held accountable and fall under SAPS including those who were currently excluded from that categorisation. Currently, only Metro Police and SAPS officers were investigated by IPID. How would this impact the Amendment Bill?

Mr O Terblanche (DA) referred to the draft SAPS Amendment Bill and thanked Minister Cele and those who had worked on the Bill. He welcomed extending the deadline for comments on the bill otherwise it would have raised some concerns about the constitutionality of the Bill. Good progress was being made and the substantive matters would be dealt with in good time.

Ms P Faku (ANC) said she appreciated the work on the bills.

On the Chairperson’s opening remarks of the six-year-old child, it linked with the rebranding of SAPS. She requested that provincial representatives sit with the grieving family and provide assurance that those responsible should be convicted.

She agreed with Mr Whitfield on the DNA Amendment Bill. It would take matters a long way so that criminals would not have to wait long to be prosecuted.

Pressure needed to be put on the Department of Home Affairs to understand the urgency of the Bill.

She urged that the SAPS Amendment Bill be appreciated especially after the Marikana tragedy. Judge Ian Farlam had made a recommendation for the inclusion of an international panel of experts to be formed to investigate the matter. This needed to be appreciated. Other issues had also been raised in the Committee in past.

On the IPID Bill, the Committee had almost not agreed on it. She appreciated that they had been able to get to the present position.

On the Firearms Amendment Bill, the previous day it had been raised that police were stealing guns. Very strict rules were needed, especially if police were the ones doing such crimes. They needed to be held responsible.

Mr E Maphatsoe (ANC) echoed the saddening news expressed by the Chairperson. He said society needed to be educated and brought together to confront such matters. He issued condolences and condemnation of the heinous acts that had been committed.

He was happy with the movement on the bills. As long as the Committee did its monitoring well, the bills would be approved as a matter of urgency.

He supported Mr Whitfield and Ms Faku for saying that running the process concurrently was important. Waiting for the Department of Home Affairs should not hold the work back.

He appreciated the movement that had been made ensuring the bills were done as had been requested.

The Chairperson said there were two matters the Committee had to express itself on. The first was the spate of violence against children. The second was the manner in which it was responding to the matter of firearms. She took strong exception to Colonel Chris Prinsloo being released on parole after serving four of the 18-year sentence. The previous day there had been another instance of police officers being apprehended because of involvement in illicit firearms. Such matters could not be left unattended and needed to be commented on in the media.

Ms Z Majozi (IFP) agreed that the DNA Forensic Bill needed to be fast tracked immediately. Once the DNA of culprits could not be proven, it put victims’ trauma into a worse state.

She appreciated the SAPS Amendment Bill. Society could understand they would receive protection from the police.

On the matter of the six-year old’s rape and murder that had been referenced by the Chairperson’s comments, she hoped the case would be fast tracked and not delayed like the Senzo Meyiwa case. Justice needed to be served for families. She asked for the Committee to speak to the Justice Department. People committing serious crimes could not be released on parole. There needed to be a discussion on who was deserving of parole and the merits of the matters. On the rape and brutal killing of a six-year-old; the perpetrator did not deserve to see the light of day.

She said the Committee should engage with the Department of Home Affairs and the Justice Department. The police were working so hard to bring justice to victims. Then cases were going to court and receiving different outcomes. Society and communities would lose hope.

Mr Whitfield said he had excluded in his original comments that he wanted to appeal to Minister Cele to pay attention to the funding of the DNA Forensic Bill. The current crisis was related to funding shortfalls, not only legislative issues. The Department could not allow the Bill to pass for it then to be sabotaged with funding priorities. DNA was the heartbeat of criminal justice. He appealed that Minister Cele keep an eye on the availability of funding.

Addressing the CSPS, he asked if there would be costing for the Bill.

The Chairperson believed that sooner than later there should be a joint meeting with the Justice, Peace and Security (JPS) Cluster. Time had been compromised because of COVID-19. She was working on an oversight visit to Gauteng. There would be a joint cluster meeting with JPS Cluster in the near future.

Mr H Shembeni (EFF) asked whether there were some measures where offenders or perpetrators of crime could be detected as soon as possible at roadblocks and ports of entry. Was there not a system in place for detecting whether a person was wanted for an alleged crime here? Could such measures for sooner detections not help SAPS in the detection of crime around South Africa? This related to the use of buccal samples being held up by the Department of Home Affairs and undocumented perpetrators. With the use of other measures it would be easy to identify people. This was especially important as during festive periods, people flocked home to Mozambique, Lesotho etc. and could be detected at ports of entry and roadblocks.

The Chairperson opened for responses.

Minister Cele said he wanted to work hard on the enforcement aspect on the forensic matter. This would be assisted by the dual approach to the DNA Bill going forward.

On the reasons for universal buccal samples, it was the same as with fingerprints. It allowed SAPS to immediately determine a person’s nationality, whether a person was South African or had come to the country “by other means”. He hoped there would not be much resistance on the matter. It did not mean SAPS would not stop to deal with the hardcore criminals in the system at that time.

He said Adv Bell had mentioned planning on short circuiting legal matters to ensure the speed of the bills.

One thing that SAPS had raised and that frustrated it bitterly was the issue of bail. This went hand in hand with the issue of parole. He had nearly jumped out of his skin when hearing of the parole of Colonel Prinsloo. The arrest had not been put down as the category of violent crimes, despite Prinsloo illegally selling over 2000 guns to gangsters. He did not understand how this could be considered a non-violent crime when the guns were then used by gangsters to shoot people in their communities.

He said the Cluster needed to come together. All “bashing” went to the police currently. There were other problems with Schedule Six bail matters. There was the big issue with the bail of cash in transit heist perpetrators. Over half of the perpetrators were released on bail, meaning the police had to chase them again. He did not understand how and why it was possible that a Schedule Six offender could be released on bail once, twice, ten times for cash heists. He did not want to shout about the matters publicly, but he hoped for internal engagement on the matters.

On IPID, he had tried to expand the Bill to look at all law enforcement members, rather than just Metro and SAPS. He wanted all organised, armed workers to be able to be investigated by IPID.

On the labs, it was not an issue of funding only. Contracts were also an issue. As political executives, they tried to stay away from contracts as much as possible because intervention could be interpreted as interference. However, there were problems with the labs and DNA that included funding as well as the issue of contracts. The Department was working on the matter – Deputy Minister Mathale was leading the response. There would be a meeting with the Minister of Finance and others to deal with the matters. If all of the scientific work, such as DNA and ballistics were in order, crime would be solved in a short time.

On outdated roadblock machines, improved systems would be welcome. SAPS caught many on highways with the science that was currently used.  

He took the suggestions that had been made on board.

All the bills were enabling the environment of the police. The police would love to be enabled and do better work.

Deputy Minister Mathale felt that Minister Cele had responded appropriately to the issues raised by members. He appreciated the collaborative nature of how the Department conducted work with the Committee.

Adv Bell responded to the question on IPID and timeframes. Mr Whitfield had said he understood that the “bill should be practically ready”. The IPID Bill with the matter of including ‘other’ law enforcement entities/members for investigation, was awaiting the state law advisors to determine what should/could be included under “all law enforcement” entities. She did not anticipate a significant delay in this regard. It could be expected in August 2021.

On what was holding up the costing of firearms, there were issues with SAPS. There needed to be a determination of costing from SAPS. She had sent letters to the National Commissioner of Police, General Khehla Sitole, on the matter and had not received a response.

Deputy Minister Mathale interjected. He asked Adv Bell not to bring “complaints” to the Committee. He said he would facilitate a meeting with SAPS and the CSPS after the Committee meeting.

Minister Cele emphasised the request of calling the Cluster to meet. For example, the Department of Home Affairs should be involved with the matters that had been discussed. He had written to the Department of Home Affairs when the Minister had been Dr Siyabonga Cwele. He had requested a joint meeting. It would help a lot.

The Chairperson said she had missed what Deputy Minster Mathale had said due to connectivity issues.

Deputy Minister Mathale replied that he had said that the CSPS could not come to the Committee and say that the Police Commissioner was not providing the CSPS with information. The Commissioner accounted to the Ministry. After the meeting, he would call the Commissioner and CSPS to deal with the matter. He added that they could not “come to complain” to the Committee. It needed to be sorted out.

The Chairperson was experiencing connection issues.

The Committee Content Advisor, Dr Irvin Kinnes, said the Chairperson had been kicked out of the meeting and had asked Mr Maphatsoe to continue the meeting.

Minister Cele joked that the Chairperson did not pay her bills.

Mr Maphatsoe hoped that Deputy Minister Mathale would explain that there could not be complaints about not getting information in the Committee. He hoped that the CSPS and the Deputy Minster would deal with the matter outside the Committee.

In general the Committee agreed with the good work being done under the executive. He urged that the work be kept up and to make sure the bills that had been a problem to the Committee were finalised, as well as ensuring that those involved in serious crimes were dealt with effectively. He hoped that the DNA Forensic Bill is passed.

He added that Departments should not work in silos.

The Chairperson thanked Mr Maphatsoe for standing in for her. She apologised for missing the last part of the meeting. She hoped the members understood and appreciated that the meeting had not been looking at substantial matters. She suggested getting further briefings again in this regard. The business of the Committee was passing legislation; she expressed desire to focus on this core business. She hoped it would be appreciated that the legislative matters would be monitored frequently.

The meeting was adjourned.