Parliamentary Inquiry ToR; SAPS & IPID Discipline Management; with Ministry

Meeting report

Opening Remarks
The Chairperson greeted the Minister, Deputy Minister and National Commissioner of Police.

Committee Report on oversight visit to KwaZulu-Natal
The Chairperson noted that Members had received the oversight visit report. She asked Members to indicate if they would like to correct anything.

Mr A Whitfield (DA) referred to the “length of the Minister and Departmental briefing” and the Concluding Remarks of the Committee Report. In the absence of a formal programme, the Committee deliberated at length on the morning presentations by the South African Police Service (SAPS) and the South African National Defence Force (SANDF). What is not clear is if after that meeting adjourned, if the Committee Chairperson went on oversight. All the Members went to the airport except the Chairperson. It infers that the Chairperson went on to do the oversight. He asked if the Chairperson went back to the airport as well.

The Chairperson read the Concluding Remarks of the KZN Report: “Committee Members insisted on asking questions to the Minister of Police and the senior management of the South African Police Service. This led to the extension of the meeting that lasted over 5 hours and in essence prevented the Committee from proceeding to the planned sites for the visit. Most of the Committee Members left the venue and departed to the airport except the Chairperson.” She replied that she did indeed sit in the venue and waited. The Committee decided to leave for the airport and that Dr Groenewald and Ms Peacock gave an apology and the other Members left. She confirmed that she sat and waited before she departed, but it was clear that Members would not return, she then left.

Mr Whitfield said that he recalled that Members went to the Chairperson to indicate that they would depart, so that they would not miss their flights. What is not clear is if the Chairperson also went to the airport, or went to where the oversight was to take place, or stayed at the police station.

The Chairperson replied that she could not have done the oversight visit on her own. The oversight visit is not conducted by the Chairperson but by the Committee. She confirmed that she waited at the venue, but the Members had left.

Mr Whitfield replied that the Members had told the Chairperson they were leaving and explained their reasons. With the greatest of respect, it would be prejudicial to Members who had informed the Chairperson of their reasons, to then say that they did not apologise.

The Chairperson replied that the report does not include who apologised. The report says that the five-hour long meeting prevented the Committee from proceeding to their planned oversight visit and that most of the Committee Members left, which is true.

Mr Whitfield noted the Chairperson said there were only two apologies, but there were more.

Mr H Shembeni (EFF) said that he remembered the Members spoke to the Chairperson before they left, saying that time was against them and not on their side, which is the reason everyone had to leave. The Chairperson had said that Members would have to pay for their own transport and accommodation, which was not properly discussed. The meeting took long and it was chaired by the Committee Chairperson. After the Chairperson realised that the meeting had taken long, the Minister advised that the oversight visit cannot be for less than an hour, which is the reason Members could not go to the oversight. There were no new arrangements made for flights. The Members were supposed to be there for two to three days, but the Chairperson insisted that it was the Committee Members who took long to ask questions, which was not the case. Members did not even take 30 minutes to ask questions. There were many people in that meeting and Members did not know that they would be invited. Members were not even aware that the Minister would be there. It now seems as if Members took long when asking questions, but they did not. If something went wrong in that meeting, then all Members must take responsibility and the Chairperson should not be exempted.

Dr Groenewald said that the Committee needs some perspective. It is important that Members get a thorough briefing when they do an oversight visit. He looked at the Report recommendations and he is of the opinion that one day allocated for KZN was not enough. Members did not have a meeting before the time to receive a briefing. There are some matters that had an influence on this, firstly, the Committee received a briefing together with the Portfolio Committee on Defence. When the Committee receives answers, sometimes they are very long answers which are not always relevant to the question, and with this the Committee runs out of time.

The programme stated that the Committee would visit Phoenix, but the Minister said that he would advise that they cannot only visit Phoenix because it can cause further perceptions and racialism. The fact of the matter is there was then no use to visit the community as the Committee could not ensure they would get back to the airport in time. That would have led to disrespect towards the community. The Committee cannot arrive at the community and within thirty minutes say “thank you, we have seen you, we have heard you” and say goodbye. If the Committee visits a community, the Committee should listen to the people. The Committee should have visited only two communities for the whole day, to hear what the problems are.

Visiting malls that have been destroyed is one issue, but thanks to the media and journalists, all that is seen is the destruction. This matter must be seen in the correct perspective. He has seen the media reports that the Committee wasted the taxpayer money. In response, he suggested including in the recommendations, that when oversight visits take place, there must be thorough planning to ensure there is enough time to look after the interests of the communities. He feels very strongly that for future oversight visits, there is enough time for briefings as well as visiting communities, to give them a fair share of time and to show the communities that the Committee do see them as important.

The Chairperson thanked Dr Groenewald for his perspective and for the substantive matters he had raised. The Committee is concerned about the substantive matters and she does take these into serious consideration. The Committee will arrange an additional oversight visit to Durban and KZN, as Members have requested that they want to cover other areas. She asked that Members please understand that if the House Chair and the Chief Whip gives permission to the Committee for two days for oversight visits, then that is what is allocated, so this makes it extremely difficult. The Committee will continue and have another session in KZN, which will include Durban, if the budget permits and the Chief Whip and Chair of Chair allows the additional visit.

Mr M Shaik Emam (NFP) said that it was not possible to have a joint meeting in the morning with several committees and many people asking questions and getting responses, and then expect to go to Umlazi and to Phoenix and be at the airport by 4pm to fly out to Johannesburg. He agreed that the planning was poor. The Committee had started the meeting at 09:30 at Chatsworth police station. The Committee did not even know that the Minister was coming. The Minister came with his responses and also interfered with the Committee programme which created a problem, there is no doubt about that.

With the limited budget allocated, Members were afraid that they would have to meet their own costs. Even if the Committee had left at 1pm to drive to Phoenix, they would have only arrived at 2pm. Taking the seriousness of what happened in those communities, the Committee would never have been able to conclude and be back at the airport by 4pm. He does not think that this should be an indictment on any Member, including the Chairperson. When Parliament is budgeting, it must be mindful of the Committee’s responsibilities and what it wants to achieve. There has to be understanding of the geographical area the Committee needs to cover and the seriousness of matter otherwise it already creates the problem. The Committee thought it was going to Phoenix to meet the committees from both sides. The Minister then advised them and fortunately the Committee did not go there because if the Committee had only gone one side that would have been a problem.

When the Committee conducts oversight, it needs to be engaged on the logistics to see if its objectives can be achieved. That was the cause of the problem. From experience, when the Department comes, the Chairperson knows the time it takes just asking questions, and in the oversight visit other committees were also present which made it very difficult. He is of the view that nobody should be held responsible under the circumstances. The Committee wanted different objectives but time and resources did not permit. It is a learning exercise, and next time, the Committee should work together and deliberate on the programme beforehand.

The Chairperson asked that Mr Shaik Emam please conclude as the Committee has a long agenda. She wants to avoid being blamed for not getting through the agenda. If she stops him from speaking, he is angry. If he does not receive all his responses, he is angry. If the meeting goes on for too long, he is angry. She asked that she be allowed to chair the meeting. The Committee will go back to Durban and Pietermaritzburg. The House Chairperson has now agreed that the Committee needs more time and a better budget and the Committee will plan accordingly. When the Committee discusses the inquiry, Members will realise that they do need more time to do that inquiry, which will take the Committee to a number of communities in KZN. If Members do not want to approve the KZN oversight visit report, they should indicate. She asked if there was agreement for the adoption of the report.

Mr Terblanche and Mr Whitfield reserved their right to vote in the National Assembly.

Dr Groenewald requested the addition of a recommendation that future oversight visits should be well planned to ensure ample time. If so, he would adopt the report. The report as it stands does not reflect the real situation as far as KZN is concerned. He was with the KZN delegation but he was not in Gauteng. He asked if this recommendation for future oversight visits would be included.

The Chairperson agreed that the recommendation be included as it would be important for the Committee's next visit to KZN, which will happen in the immediate future.

The Committee Report on the KZN oversight visit was adopted.

Committee Report on oversight visit to Gauteng
The Chairperson asked if Members wanted to make any comments or suggestions.

There were none and the Chairperson asked if anyone reserved their right not to adopt the report.

Mr Terblanche objected and reserved his right.

Mr Shembeni reserved his right.

The Committee adopted the Committee Report on the oversight visit to Gauteng.

Parliamentary Inquiry into serious lapses in ability and capacity of policing services to deal with violence and unrest in KZN and Gauteng during July 2021
The Chairperson said that on 27 July 2021, she received a letter from the House Chairperson, Mr Cedric Frolick instructing her to call an inquiry into the violence in KZN and Gauteng. For Parliament to have a complete picture of the reasons for the unrest and its consequences, there needed to be a comprehensive response by Parliament. The House Chairperson said in the letter that this can only be done by means of a thorough inquiry led by the Portfolio Committee on Police. He indicated that the other relevant committees in the Peace and Stability cluster from both Houses had to be included. Such a meeting was called and before the meeting occurred the political application was sent to Mr Frolick indicating the committees which would be invited. It was approved by Mr Frolick and Chief Whip, Ms Pemmy Majodina. She has the records of that approval and if Members would like those records, it will be made available to them.

Unfortunately, the perception was created that no such permission was granted for that meeting. On 10 August 2021, she subsequently received a letter from the House Chairperson, that as per decision of the National Assembly Programme Committee meeting of 5 August 2021, that the Portfolio Committee on Police was informed to conduct an inquiry into the events prior, during and after the insurrection in KZN and Gauteng. The Committee must focus and deal with the matters within its mandate and oversight responsibilities. The Committee must be guided by National Assembly Rule 167 and Rule 227 in its work. A new joint committee will not be established. It was agreed with the National Council of Provinces (NCOP) that the Select Committee on Security and Justice will collaborate with the Portfolio Committee on Police, and that Joint Rule 147 of Parliament allows for such collaboration. The Committee must determine the Terms of Reference for the inquiry. With regard to resources, a Senior Legal Advisor has already been assigned by Legal Services to assist the Committee. An update of the inquiry programme and related matters was sent to the National Assembly House Chairperson, Speaker, Acting Speaker, Chief Whip and Secretary.

With the two letters from the House Chairperson, it is very clear that the Portfolio Committee on Police will lead the inquiry into the violence in KZN and Gauteng. The Terms of Reference to the inquiry has been drafted and will be presented to the Committee today. Members will be given the opportunity to make inputs for the next half an hour which will be taken on board. If Members are not happy with the time allocated to make inputs, then they will be given the opportunity to send their inputs in writing to the Committee Content Advisor and those inputs will be considered and presented in the next Committee meeting. Therefore, the Terms of Reference will not be for adoption today. She asked if Members had any comments.

Mr Whitfield said that the intentions to convene the multi-committee meeting on 30 July 2021 were good and were informed by the House Chairperson's instructions. This has since changed, and it is now clear that the Portfolio Committee on Police will lead the inquiry and it may collaborate with the NCOP. It is not clear to what extent the Committee is expected or permitted to collaborate with other National Assembly committees. He asked if it is permissible that the Committee collaborate with other National Assembly Committees. He asked if the Rules permitted the Committee to call on any other departments or ministries such as the Department of Defence or the Department of Intelligence and Security to provide insights to the inquiry.

The Chairperson said that the House Chairperson has indicated that the inquiry into the insurrection will not take the form of a new joint committee. Whoever will be invited will be included in the Terms of Reference, but a joint committee will not be established, so it will then be in the form of the Portfolio Committee on Police running the investigation, but Members can indicate who they would like to invite for the inquiry.

Mr K Maphatsoe (ANC) agreed with the proposal that Members need time to study the Terms of Reference. So when it is finally adopted, that the Members really understand what they are adopting. He agreed that the Terms of Reference should not be adopted today but at the next Committee meeting.

The Chairperson respectfully requested that the Committee look at the Terms of Reference as the first draft, unless Members do not want to see the Terms of Reference now and believe that their questions are not included in the draft Terms of Reference. She gave Members the opportunity to speak if their questions have been included in the draft.

Mr Shembeni did not have any question on the draft Terms of Reference. He referred to the joint meeting that was cancelled because it seemed to be unconstitutional. He asked how this meeting was agreed upon.

The Chairperson replied that the joint meeting was approved by the House Chairperson and the Chief Whip. That meeting was on the Z-list and there was nothing unconstitutional about the meeting. All the Members, parties and different committees that were invited were informed of the political application, and before any meeting, the political application is sent to the House Chair. Any meeting that is called by Parliament, needs the approval of the House Chair and Chief Whip and needs to be on the Z-list. If Members followed the documents correctly, it showed that the meeting was on the Z-list.

Dr Groenewald asked for assurance that the Committee can be 100% sure that they do not need a specific resolution adopted in the National Assembly to continue within their powers to carry out the investigation. If he looks at the Terms of Reference, they are wide and they do cover the scope. However, he just wants to check if the Committee needs a resolution adopted in the National Assembly, especially as it has the NCOP Select Committee to collaborate with.

The Chairperson referred to the House Chair letter and said that it will be distributed to Members. She acts upon the letter which is an instruction from the House Chairperson responsible for Committees and Oversight. He gave the Committee the Joint Rules of Parliament and said that the Committee must work in collaboration with both Houses. That does not mean that the NCOP Select Committee on Security and Justice has to be in each meeting.

Mr Shaik Emam said that he is concerned about the objectivity of it only the Portfolio Committee on Police conducting this inquiry. The instructions from the House Chair seem to be vague when it says that the Committee must work in collaboration with the Select Committee on Security and Justice. If the Committee work "in collaboration", it could be interpreted that the Committee would have joint meetings and joint oversight with them. It is a bit vague.

He is mainly concerned that this Committee is going to conduct this inquiry with time constraints and be restricted in the questions that are asked and the way that it will approach it. He asked if the Committee will do justice to this inquiry, because this is not a minor inquiry but a major inquiry with serious implications, that have various other departments implicated in this as well, and a lot of work needs to be done. He is concerned the Committee being restricted to 20 and 30 minutes for this and that, and is not really understanding its responsibilities, in order to do justice to the questioning, the responses and the follow-up.

The Chairperson replied that this is exactly why she requested the Committee take the presentation on the Terms of Reference. The reason she will not rush through the Terms of Reference and the approval today is precisely to give Members the opportunity to shape the Terms of Reference. The Terms of Reference should indicate who the Committee is going to call. The House Chairperson said that the Committee must present the timeframes in which it will complete its work. The Committee was not given a precise time by which it must complete this work, but it should be stipulated in the Terms of Reference with the resources needed. The Committee must determine the Terms of Reference for this inquiry. It is then the responsibility of this Committee to look at the Terms of Reference, the resources needed and the envisaged timeframes to complete its work. She said that the Committee Content Advisor present the Terms of Reference and to inform them if there should be a House resolution to adopt the inquiry process.

Draft Terms of Reference for Parliamentary Inquiry
Dr Irvin Kinnes, Committee Content Advisor, said that the Committee did previously receive the legal opinion from the Senior Legal Advisor on the House Resolution which was tabled in the meeting held in July. He would speak to the Senior Legal Advisor because subsequent to that meeting, the Committee had now received the second letter with the particular instructions which will relate to this presentation (see document):
· Introduction
· Background
· Regulatory Framework
· Rule 227(c) and Rules of the NCOP
· Committees forming part of the Inquiry
Even though it is not a joint committee, but a collaboration, the two Committees forming the inquiry are Portfolio Committee on Police and Select Committee on Justice and Security.
· Terms of Reference
1. Establish and consider what relevant information and intelligence was available to the security agencies prior to, during and after the violence.
2. Establish and consider how the violence unfolded and was allowed to spread, despite the presence of the security agencies.
3. Establish and consider how police officers in both the Metro Police and the SAPS made themselves guilty of participating in the looting and the consequence management for such officers.
4. Establish what resources, equipment and staff were available prior to and during the unrest and the challenges experienced in addressing the unrest.
5. Establish what consequence management has been put in place and the lessons learned moving forward.
6. Establish what leadership was given to all law enforcement agencies during the unfolding of the violence.
7. Examine the documents and electronic material made available to the Committee to verify the statements made during the said Committee meetings.
8. Establish and consider if the relevant statements were made in compliance with the National Instruction 156.
9. Establish and consider if the relevant conduct by the officers is in line with good governance principles.
10. Establish and consider if the violence was organised and what the role of the instigators and perpetrators were, what happened to them and if they have been arrested and being charged
11. Establish the levels of co-operation between law enforcement agencies and the challenges experienced in respect of co-operation before, during and after the unrest.
12. Establish the impact of the unrest on the communities.
13. Make available its Report to the National Assembly and the National Council of Provinces.
· Procedure
- The Committee will invite all the identified persons to appear before it to answer oral questions related to the subject-matter of the Inquiry.
- All persons will be invited to submit an affidavit or any other evidence prior to the commencement of their evidence.
- The process will be member-led and all members will be given equal opportunity to pose questions to witnesses.
- The Committee is not a judicial tribunal or court of law and accordingly the process will be conducted according to the Rules of the National Assembly. This means that no witness or third party will be allowed to cross-examine any other witnesses.
- Prior to the report of the Committee being adopted and tabled, affected persons will be provided with an opportunity to make representations on the findings and recommendations in line with the audi alteram partem principle of natural justice. These representations must be considered by the Committee prior to the adoption of the report.
· Public Participation
· Other Logistics.

Discussion on ToR
The Chairperson said that quite a lot of work has been done on the Terms of Reference and the substantive matters have been covered in the presentation. She reiterated that the Committee will not have a long discussion on this and Members are expected to engage in writing on the ToR if they feel that there are areas that have not been well covered. Whatever information is provided by Members will be considered before this report is adopted. The ToR will not be adopted today to allow Members to give their inputs.

Mr Shaik Emam said that he still does not have clarity on the involvement of the Select Committee and if it is going to be a joint committee because it was said that it is only the Portfolio Committee on Police working in collaboration with the Select Committee. He questioned how the committees will work together and if the inquiry will be conducted together.

The Chairperson reiterated that a new joint committee will not be established. This inquiry allows for collaboration between both Houses and therefore a new joint committee will not be established.

Mr Whitfield asked the Chairperson when she would like to receive Members' written submissions. If Members indicate participants to come forward as witnesses or to testify, he asked if this will be decided by the Chairperson or by the Committee as a whole.

The Chairperson replied that the ToR could obviously not be adopted today without Members input. The proposed time for the input would be Friday 20 August, and if Members feel that this is inadequate then she will take direction from the Committee for the closing date for submissions from Members. This will only be submissions from Members. The public will not be allowed to give the Committee submissions on the ToR, but when the public are called, they will then be given the opportunity to make presentations to the Committee. The Committee will decide when it will complete this ToR process and when the next step will be to present the ToR. If Members submit their inputs by Friday, then this will be worked into the ToR second draft. Before the second draft is approved, Members will again have the opportunity to comment on the ToR. The ToR is very important as it will direct this Committee on how it will conduct the inquiry, the process it will follow and the detail of what will be expected from this Committee and the public.

Dr Groenewald said that he accepts the Chairperson's ruling but he wants to make an informative decision on this matter. It is very important that when the Committee does this investigation that it is a thorough investigation and that it is within the legal framework. He asked that Members receive a copy of the letter the Chairperson received from Mr Frolick. He referred to Rule 227(c) of the National Assembly Rules and said that it is quite clear that the Committee must also deal with bills and other matters falling within its portfolio as they are referred to it.

When looking at the ToR, in many cases it refers to the security agencies. The essence of this investigation will lie in the intelligence material and whether the chaos was thoroughly investigated. He questioned if the Committee will not be confronted by officials that will say that the intelligence information is confidential and that it is not part of what falls within the ambit of the Portfolio Committee on Police. It is known that the Joint Standing Committee on Intelligence is a closed committee and he is sure that those agencies will say that the information is classified and that it is not permissible to give that information, which includes SAPS Crime Intelligence. The SAPS National Commissioner can say that the information is classified and that he will first have to declassify it. He asked that when the Committee next meets, that it can get clarity on if it will have the powers to say that it wants to be provided that information – before it starts this investigation, because the Committee cannot continue and then hear that the information is classified. Then there will be no use in further investigation.

The Chairperson said that the Committee will very carefully consider what Dr Groenewald had said. Before adopting the ToR, the Committee will first address all the questions raised, as they are very pertinent questions. Even though the draft ToR has been prepared, the legal process has to be in place and has to be thoroughly looked at. The Committee must move within the ambit of the law, and if it does not do so then the inquiry will just be a waste of time, it will be fruitless expenditure. It will create expectations that the Committee will not be able to meet; it will create more harm than good; it will create more problems instead of solutions. The Joint Standing Committee on Intelligence also plans to hold an inquiry into the failures of intelligence services.

The first draft of the ToR was presented to Members for consideration and not for adoption. The concerns and questions Members may have will be recorded meticulously. She will consider all those requests and questions, and take these back to the Chief Whip and House Chairperson. She will send both letters to Members. She read the letter that said that the Committee should invite relevant committees in the Peace and Stability cluster from both Houses. If Members request to invite relevant committees, then she will invite those committees. The National Assembly Programme Committee met on 5 August 2021 and decided that the Portfolio Committee on Police would be informed – not requested, but informed to conduct an inquiry into the events prior, during and after the insurrection in KZN and Gauteng.

She agreed with Dr Groenewald that before the Committee conducts this inquiry that the Committee must set the parameters, timeframes, ToR and ensure that the Committee has followed all the legal procedures and that those questions Members have raised have been responded to. The Committee has a very efficient team. As Chairperson she is working with the administration team, the legal team led by Adv Siviwe Njikela and a number of capable staff who have been allocated to this committee to do its work. After this meeting, she will meet with the staff to consider Members' inputs. All the documents relating to the ToR will be provided to Members and will be made public. She asked Members about the timeframe for their ToR inputs.

Mr Terblanche asked if at this stage Members are also expected to name certain individuals that they believe should be invited to answer to this Committee.

The Chairperson replied that the Committee had first agreed to take the ambit of the law and the legal questions into account. The Committee had requested to determine if this falls within the responsibility of the Portfolio Committee on Police, to determine what the Joint Standing Committee on Intelligence is doing and if this Committee will be able to declassify classified information. Before the Committee starts this inquiry, it needs to seek clarity. She asked Mr Terblanche if he agreed.

Mr Terblanche agreed.

The Chairperson said that before the Committee starts the inquiry that the Committee first needs clarity on the legal framework, and the different perspectives on the Committee's powers. She asked if Members agreed.

The Committee agreed.

The Chairperson said that the second recommendation is that Members would indicate who the stakeholders should be, this would include individuals who would participate either virtually or give their inputs in writing. She asked if Members approved this resolution.

The Committee agreed.

The Chairperson asked the timeframe for Members' inputs.

Mr Terblanche proposed that it be one week.

Mr Maphatsoe proposed that it be two weeks.

The Chairperson replied that she will allow sufficient time. If Members provide inputs within one week, then the Committee will receive a second draft, and if Members are still unhappy with the draft then there will be enough time. She asked that the Chairperson not be blamed for delaying this process. Members have requested the opportunity to engage with the ToR. Members have given the staff the responsibility of inquiring about the legality and the powers of the Committee. The staff will continue with this task and report back to the Committee. If an urgent report back meeting is required, then she will call that meeting with Members' permission. This Committee will have to meet more frequently and for longer periods of time. Once the Committee has the legal opinion, then the Committee will be informed if the inquiry will go ahead in this format. Two weeks will be permitted for Members to submit inputs, and after one week Members will be sent a progress report. The progress report will be sent in writing, including the two letters from the House Chairperson. She asked if Members agreed.

The Committee agreed.

IPID and SAPS on Discipline Management
Police Minister, Gen Bheki Cele, said that he will hand over to the Deputy Minister who will hand over to the Executive Director of the Independent Police Investigative Directorate (IPID).

Police Deputy Minister, Mr Cassel Mathale, said that this presentation is a follow-up interaction with the Committee. The IPID Executive Director would lead the presentation.

Ms Dikeledi Ntlatseng, IPID Executive Director, said a joint SAPS / IPID team had worked on this presentation. She said Lt Gen Ntshiea of SAPS and Mr Sesoko of IPID would present.

Lt Gen Lineo Ntshiea: SAPS Divisional Commissioner: Human Resource Management, presented:
· Concerns raised by Portfolio Committee of Police
- Working relationship between the SAPS and IPID.
- Terms of reference to be concluded and a copy to be forwarded to the Committee.
- Why the SAPS and IPID statistics differ (data discrepancies)
- Lack of disciplinary action by SAPS.
- Re-investigation of the IPID recommendations by SAPS.
- Lenient outcomes/sanctions at disciplinary hearings.

· Remedies/Solutions
- The Memorandum of Understanding (MoU) between the SAPS and IPID, regarding cooperation to comply with the IPID Act, has been signed.
- SAPS, as employer, remains responsible to decide on disciplinary steps to be taken, in terms of its disciplinary code. IPID's role in monitoring such internal disciplinary action is to be viewed as a way of ensuring transparency and accountability.
- An interdepartmental committee between the SAPS, IPID and the Civilian Secretariat of Police Service (CSPS), has been established at national level, to oversee the effective management and coordination of disciplinary recommendations.
- Terms of Reference has been developed to regulate the functioning of the Committee, which is in the final stage of being concluded.
- On data discrepancies, the information between SAPS and IPID now correlate because documents were provided to IPID to update their records.
- All disciplinary recommendations received from IPID are considered and disciplinary proceedings are being initiated.

· IPID Recommendations and 2020/21 Statistical Information (see document).

SAPS National Commissioner, Gen Khehla Sitole, said that after the Committee had given them the task, SAPS and IPID agreed on the common approach and shared information. The Memorandum of Understanding is still anticipated to escalate into an action plan. Within the action plan, will also be a performance management system so that SAPS and IPID can hold each other accountable, and this will also be linked to other prescripts. The regulatory legislation has been clearly outlined, because the legislation that governs the SAPS discipline process is based on the Labour Relations Act. That Act has been further operationalised into the labour avenues from the Safety and Security Sectoral Bargaining Council (SSSBC) right up to the Public Service Coordinating Bargaining Council (PSCBC). There should be further alignment to the action plan. For now, SAPS is satisfied and is working in cooperation and understanding with IPID.

Police Deputy Minister Mathale said that the IPID Executive Director did explain what the National Commissioner has confirmed. The presentation was a follow-up to integrate and update the Committee on the concerns raised in the May 2021 meeting. SAPS and IPID are grateful for the interaction they have had with the Committee. This helps SAPS and IPID to work better and improve their interaction.

Discussion
The Chairperson thanked the SAPS and IPID for the enhanced presentation. The Committee appreciates the work that has been done.

Mr Shembeni referred to Regulation 6(7) of SAPS Discipline Regulations 2016, that provides a recourse. He asked how many decisions have been reversed by SAPS during the past five years. He asked how many people are currently requesting such decisions be reversed.

Mr Whitfield said that this was a joint presentation, which appears to have been presented only by SAPS which is not in the sentiment captured in the presentation and the comments made by the presenter. He asked for clarity on the working relationship between SAPS and IPID and if the presentation was concluded, because it looks as if it stopped before the end of the presentation.

Mr Terblanche said that in 2016 new disciplinary regulations were introduced, but what is quite glaring is that 2016/17 and 2017/18 had the most significant decline in the finalisation of disciplinary cases and sanctions implemented. He asked why this is the case.

Dr Groenewald referred to the MoU and said that the proof lies in the eating of the pudding and the results will be seen after a year. He noticed that “Assault and Torture” is under one category and suggested that “Assault” and “Torture” should each be under its own category.

SAPS and IPID responses
The Deputy Minister clarified that the presentation was a product of both SAPS and IPID. When introducing the presentation, the Executive Director said that the presentation would be led by Lt Gen Ntshiea and Mr Sesoko because these are the two officials who worked on the document. Gen Ntshiea was the person who presented. The National Commissioner was asked to comment, because he was supposed to validate what the IPID Executive Directive had said. This was not a SAPS presentation, but a joint presentation by SAPS and IPID as indicated by the logos on the presentation.

The Chairperson said that both the IPID Executive Director and SAPS National Commissioner would be given the opportunity to speak. She understood that it was a joint presentation.

Ms Ntlatseng, IPID Executive Director, replied to how many decisions have been reversed by SAPS, saying perhaps the National Commissioner and his team might be able to respond to that question, but IPID currently does not have that information. The question asked how many decisions have been reversed in the past five years and this would require the team to go back and gather that information before it is presented to the Committee. She said that she has noted the requested that “Assault” and “Torture” be under two different categories.

Gen Sitole suggested that the responses at the operational level be handed to Lt Gen Ntshiea.

Lt Gen Ntshiea replied on how many decisions have been reversed by SAPS in the past five years. She said that they do not have the figures with them currently, but she can indicate that there have been a number of matters that have been referred to the Labour Court for review as the employee is not happy with the sanctions provided. She is certain that SAPS Legal Services would be able to provide this information to the Committee, because there are a number of cases pending review and there are other cases that have been concluded and communicated to SAPS.

On the decline in the finalisation of cases after the introduction of the 2016 Discipline Regulations, Lt Gen Ntshiea said that this needs to be investigated because SAPS do not have a straight-cut answer on the cause for the decline in the finalisation of cases. If the Committee indicates, then SAPS could conduct an investigation into what might have caused this and submit a report. She replied that “Assault and Torture” is combined in Section 28(1)(f) of the IPID Act, 2011.

Mr Mathews Sesoko, IPID National Head: Investigations and Information Management, replied that the presentation was the work of both SAPS and the IPID. The purpose of the presentation was to deal with the concerns the Committee had raised in the May meeting, and SAPS and IPID ensured that it dealt with those concerns. In terms of the discrepancies in information that was outstanding, SAPS was able to provide the information which made it possible for IPID to update its information, and be able to reflect this information which indicated that there was 100% initiation of cases by SAPS. IPID was able to update its information based on the information provided by SAPS.

He noted the point raised by Dr Groenewald and thought that this is important. He had already indicated to IPID Programme 4 that deals with this kind of information, that they should separate the “Assault” and “Torture” cases, even though these two crimes are combined in Section 28(1)(f) of the IPID Act. He agreed that for the purpose of reporting, these crimes must be separated so that the Committee and the public have a clear view of the distinction between these two crimes, especially now that “torture” is a crime of its own, with the enactment of the Prevention of Combating and Torture of Persons Act, 2013. Moving forward, he will definitely ensure that these two crimes are separated in all the presentations.

Further discussion
Mr Shembeni referred to the offences by employees and asked SAPS about police assisting in escape from custody and theft out of motor vehicle by police. Which offence is more serious than the other, and what are the sentences for these two offences? If an employee has been acquitted criminally, he asked if such an employee would be dismissed.

Mr Terblanche was concerned that apparently the involvement of IPID is not really a deterrent for police brutality. He wondered if the IPID Act of 2011 should be revisited. Between April 2020 and March 2021, IPID had an active case load of 7 820 assault cases and 665 torture cases, with a combined total of 8485. Only 105 guilty verdicts were reached by the end of this period, which represents 1.23% of the total case load, and only two dismissals (0.2% of the total case load). He asked for an explanation why this is so low. Apparently, there is very little impact from IPID's involvement.

Mr Whitfield referred to 2020/21 where there was one guilty verdict for a death in police custody for which the sanction was only a written warning. That seems to be a completely inadequate consequence for something so serious, even if it was negligence. He asked SAPS or IPID for this specific case to be explained so Members can understand how someone that is responsible for a death in police custody would receive only a written warning, and if this would be considered a sufficient consequence for such action or inaction.

SAPS and IPID responses
Lt Gen Ntshiea replied that both the offence of police assisting an escapee and that of theft are serious, in terms of the regulation 5(4) of the disciplinary code. In the case of an employee being acquitted criminally, the judicial process runs separately from the internal police process. The employee will be charged internally and go through the relevant disciplinary process and if the employee is dismissed from the service, then the employee will remain dismissed while the criminal case is still running. The two processes run separately as they test two different aspects. For SAPS to fully respond to the question on the written warning for the death in custody, they would have to refer to the records of this disciplinary hearing.

Mr Sesoko referred to the written warning for the death in custody, saying that in cases of a death in custody, they investigate the circumstances surrounding the death of a person in police custody. In most cases, it is found that it could be negligence on the part of police members in how they handle the detained person. Sometimes there are recommendations for disciplinary action because police officials fail to comply with their own standing orders on custody management such as visiting cells on an hourly basis. Those sanctions could be been influenced by those kinds of considerations; but Lt Gen Ntshiea is correct in that this case would have to be zoomed into, to see what the considerations were at the disciplinary hearing and the rationale for that kind of sanction.

Mr Sesoko replied that to a large extent, IPID does have a deterrent impact on the conduct of SAPS. The context is also important to understand, and that in most cases when IPID investigates, there has been an interaction between the police and members of the public. In terms of evidence, it sometimes becomes difficult to get credible evidence that enables IPID to make a case that could be winnable in court, that may be why the numbers look as they do. It must also be noted that there are a number of cases where police arrest members of the public and they countercharge against the police. The work that IPID does is difficult and this must be recognised, especially when dealing with police officials who understand the criminal justice system, so these are not easy investigations. The fact that there are also capacity constraints within IPID does not assist the situation. There will always be leeway to look at how the IPID Act can be strengthened further. There is a process of amending the IPID Act that Members can interact with and assist.

Lt Gen (Adv) Sally Khan, SAPS Divisional Commissioner: Legal and Policy Services, replied on how many decisions were reviewed for employees dismissed in the past five years, and how many people are waiting for dismissals to be reversed. She does not have the complete information, but she can report that in 2017/18 there were 57 decisions in favour of the employees who appealed for arbitration for alleged unfair dismissal. This needs to be looked at in comparison to the total number that appealed for arbitration. For 2018/19 there were 51 decisions in favour of employees, and in 2019/20 there were 35 decisions in favour of employees. This information will be consolidated and forwarded to the Chairperson in a proper format.

Deputy Minister response
Deputy Minister Mathale referred to Mr Sesoko's remarks on the need to strengthen the IPID legislation for more regulation. He does not think that this will address the problem, but what South Africans need to do is to embark on a programme to completely change the attitude of South Africans to act in a manner that they do not need to be policed. We should strive to create a society that will have the capacity to police itself. It does not mean that we will have a 100% perfect society, as there will be one or two people who will break the law from time to time, but if there is a citizen rate that is very responsible and who understands the Constitution, human rights and what is expected of them, then we will have a better society.

Policing is not necessarily a solution to the problems that we have, but it is a societal issue that we need to deal with. We should acknowledge and appreciate the legacy of from where we come. Apartheid and colonialism created a particular society that created these problems with which we are bedeviled now. In the democratic dispensation, Members of Parliament and the country in general have the responsibility to contribute towards ensuring that the children now born and that grow in this country shall have a different attitude compared to what most people have now. It is very difficult to teach a grown-up new tricks when the only thing they know is to be violent and to respond in a manner that is not helpful.

IPID is doing a very good job and SAPS officials are very much afraid of IPID, because they know that if they do the wrong thing then they will be arrested. However, this does not mean that all police officers are cautious of that, which is why there are elements that have been discussed today where there are cases of police misconduct. There are instances when people get arrested and are in police custody when they experience another criminal act done by members of SAPS. This clearly means that there are rotten elements within the ranks, but there will be continuous engagement in a programme that will ensure that SAPS rid themselves of these rotten elements. This will be the lasting solution as further regulation will not be a lasting resolution.

SAPS and IPID appreciate the comments and interaction with Members. He is aware that sometimes they respond in a manner that Members may not like, especially when listening to the comments about the KZN oversight visit in that the Minister and Departmental briefing took more than five hours and as a result the Committee did not have enough time to do their oversight work. Sometimes such things happen but it is not intentional.

Closing Remarks
The Chairperson said that she will very carefully engage with the IPID Executive Director and Gen Sitole on discipline management. She does not directly respond to media within the Committee, but she had read a very disturbing article today and she had also watched the tapes of a journalist. She raised her concern that the recordings revealed how easy it is for SAPS employees to override the IPID findings with their own opinions. The evidence that is led supports their colleague's claim to innocence, which assures a “not guilty” finding during departmental investigations, without a full consideration of the evidence. She would like to get a clearer understanding of SAPS departmental disciplinary proceedings. The Committee will really interrogate the IPID Act. The Committee found the amendment of the 2011 IPID Act a concern when it was involved with the appointment of the IPID Executive Director. At that stage, this Committee had made certain comments about the amendment which had been a legal obligation and a ruling by a court of law.

In terms of the impetus of these proceedings on discipline management, investigations would need to be held in a more open fashion. She questioned investigations done behind closed doors as there are still too many loopholes and conflicts of interest built into SAPS discipline management and its regulations. In the interest of transparency, integrity and professionalism of SAPS, it is imperative that SAPS discipline management is transparent and that SAPS and IPID management can be held to account. She will also make some written submissions so that when the Committee deals with the disciplinary system of SAPS and IPID, the Committee does not only have a report to question but that the Committee look at the disciplinary system which has essentially remained unchanged. The Panel of Experts Report admitted that an overhaul was needed to make discipline management more independent and less prone to conflict of interest and less vulnerable to the loopholes which undo IPID findings. The Committee has requested SAPS and IPID to come back but before so, she would like to formulate a detailed written response to these kinds of loopholes and to the concerns about transparency. This matter has been dealt with in this Committee and a number of questions raised by Committee Researcher, Ms Nicolette Van Zyl-Gous, are still matters of concern. She will refer to those questions and engage with Lt Gen Ntshiea, Ms Ntlatseng, Mr Sesoko and Gen Sitole.

She informed the Members that when the Committee starts the inquiry, it will meet twice per week, but this may include a third meeting per week. The Committee will be sent the second draft of Terms of Reference within a week. This will include responses about the legal framework and the questions raised by Dr Groenewald on the powers of the Committee and classified information. She asked that Members submit their first inputs by 24 August, so that Members can be sent a second draft of the Terms of Reference before the Committee meets again. If Members do not submit inputs, then it will be taken for granted that they are happy with the Terms of Reference as presented today.

She informed Gen Sitole that Members have complained that SAPS presentations are too long and so Members do not have sufficient time to ask questions and to receive responses. She will be stricter about time allocations, as requested by Members.

The meeting is adjourned.