IPID & PSIRA Annual Report 2021/22; Col Kinnear assassination investigation; with Deputy Minister

Meeting report

Col Kinnear assassination investigation

On behalf of the Committee, the Chairperson said there would be little time to discuss the Kinnear report as the meeting would be focused on the Annual Reports of the Private Security Industry Regulatory Authority (PSIRA) and the Independent Police Investigative Directorate (IPID). She wanted to put it on record that this Committee and Parliament had been specifically involved in engagements and actions subsequent to the murder of the late Col Kinnear. She recalled that she had given the Committee a long list of engagements she had had on the matter, including a petition by Mrs Kinnear that had been presented to the Committee in February 2021.

The South African Police Service (SAPS) had also been summoned to the Committee to report on the Kinnear matter. It then provided the Committee with BRR Report recommendations and status updates. The National Assembly had approved and adopted the reports presented by the SAPS. At a Committee meeting following complaints about the report presented by SAPS, the Chairperson, on behalf of the Committee, had said that the Committee had no control over threats and security concerns involving Mrs Kinnear. She had insisted that keeping Mrs Kinnear safe was the SAPS's responsibility and that the Committee's interference in the issue of Mrs Kinnear's safety would be viewed as interference of a political nature, which would not be in the best interests of the Committee.

She said that a second submission to Parliament was made by Mrs Kinnear, which she thought was a petition. This submission had been referred to the Minister of Police by the Speaker of the National Assembly and not the Portfolio Committee on Police, as it had been noted that there was not much the Committee could assist with. The Committee also noted that Parliament had received a report on the Kinnear investigation on 2 July 2022, even though it was dated 4 May 2022. She had since asked for a copy of the report from the Speaker of the National Assembly, and but that report would not be discussed in the Committee before the Speaker referred it to the Committee. The report may have been discussed with Mrs Kinnear by the IPID, and the media may already have been given access to it, but it would not be discussed before a legal, formal referral by the Speaker.

The Chairperson recalled that the Speaker had responded to her request for the document, and said that the Committee would be given supervised access to the report, as some parts of it were classified. In the response by the Speaker, it was also stated that the contents of the report would not be dealt with in the Committee due to it being highly classified.

The Chairperson also recalled that Mr Paul O'Sullivan had sent an accusatory email and published an article on Members of the Committee, including the Chairperson and several other Members of Parliament, wherein he accused them of not doing their work. Mrs Kinnear had also written an email to Members of the Committee wherein she had expressed concern over the lack of transparency in the National Assembly. The Chairperson had forwarded the email to the Content Advisor and then responded by itemising all the work that the Committee had done regarding the matter of Col Kinnear's the death.

The Committee had done a considerable amount of work on this matter. Furthermore, she had explained to Mrs Kinnear that her second submission to Parliament had not been referred to the Committee, but directly to Minister Cele. The Chairperson reiterated that the contents of Kinnear report would not be discussed in the Committee meeting, but Members who wished to view it would have to make arrangements to get clearance.

She clarified that the report had not been classified by Parliament, the Minister of Police or even the National Commissioner of Police. IPID was solely responsible for the classification of this report, due to the sensitive nature of its contents. The Committee had also received a letter from  IPID, and she instructed that there should be no discussion on this letter as well. She asked that IPID give a brief summary of their progress without discussing the recommendations, as they had been made for the Minister and not the Committee.

It was her wish to ensure that both SAPS and IPID be given an opportunity to do their work without any interference from the Committee.

The Chairperson asked the Deputy Minister and other Members if they had received IPID’s presentation prior to the Committee meeting, as they should have. All of the Members said that they had not received the presentation and in response to this, the Chairperson said that she would not allow the presentation to take place as procedure had not been followed.

Mr A Whitfield (DA) acknowledged that the Chairperson was correct in saying that presentations to the Committee must be sent to all Members before a meeting takes place. However, he argued that this presentation was exceptional and must be presented under exceptional circumstances. IPID should be allowed and trusted to present to this Committee.

Mr Whitfield said that he did not see the purpose of censoring or postponing this presentation, given the enormous public interest and the concerns of the Committee in the case of Col Kinnear. Because there was no guarantee that the Committee would be given access to it soon, he asked if this could be dealt with as a matter of urgency. There were no reasonable grounds on which an independent agency of the state should be denied the opportunity to present information on a matter of significant public interest.

The Chairperson responded that the Kinnear investigation had not been on the agenda for the meeting, and that the recommendations in the report would be dealt with. Due to the serious legal implications of the report, she would protect the investigation of the case without compromising it, pointing out that as the Chairperson of the Committee, she would be the one called to court to defend the actions of the Committee.

The Chairperson said that the Committee was still responsible for acting within the confines of the law, even though the Kinnear matter was of significant public interest. She said that temporarily barring the Committee and IPID from discussing the report was another way of ensuring that the investigation into the death of Col Kinnear was not compromised in any way.

The Chairperson said there were other cases similar to those of Col Kinnear, and they had not received as much attention. The Kinnear matter had put the Committee under pressure, and it had to be ensured that everything was done according to the law to allow the investigation to be concluded. The Committee would follow up every recommendation made regarding the case of Col Kinnear.

Dr P Groenewald (FF+) said that the assassination of Col Kinnear was serious, regardless of the fact that it was a widely publicised matter. As Members of Parliament, legislation protected the Committee from potential legal action. He did not see Members of the Committee being held legally liable for having information presented to them.

He expressed his problem with the classification of the report, particularly because the Chairperson would be in contravention of certain laws if she saw it without being given clearance. He asked why the Director of IPID had classified the document. The Committee could not necessarily compromise itself in a legal sense, only the process of the investigation. He asked if the document could be declassified, considering that the IPID would know whether their presentation would compromise investigations in any way. He added that as Members of Parliament, they had the responsibility to answer questions on this matter, and this could not be done if the report was classified.

Dr Groenewald said that there may cases similar to that of Col Kinnear which were not in the public eye. If the Kinnear matter was not handled well, other members of the SAPS could be compromised. If there was criminal activity in this investigation, and if it seemed as if the Committee was protecting certain individuals, then the lives of other members of the SAPS would be in imminent danger.

He asked the Chairperson to reconsider her decision not to allow the Committee to be presented with the report by the IPID. He asked that he at least be given reasons why the report was classified if the Chairperson insisted on not discussing it in the meeting.

The Chairperson said she was willing to discuss three things regarding the Kinnear matter. The first item she was willing to discuss was why the IPID had classified the report. Secondly, she was willing to discuss Mrs Kinnear’s second submission -- the one which the Speaker did not classify as a petition to the Committee. This particular submission was referred directly to the Minister by the Speaker, as it was not a submission that the Committee could assist with. Thirdly, she would discuss how the investigation into the assassination of Col Kinnear should be considered and not compromised.

The Committee should discuss the way forward, and whether it would be in the best interests of the investigation to present a report that she had not seen and approved prior to the meeting.

Mr O Terblanche (DA) agreed with Dr Groenewald that the Committee should be seen to be dealing with this matter effectively to send a clear message. The police had been instructed to report back to the Committee regularly on any updates regarding the investigation. He asked if the police would still be reporting to the Committee on this matter. Have there been any updates since the second submission to the Minister, and should the matter be considered finalised? He said that Mrs Kinnear was still not satisfied, and that the Committee would have failed if it did not ensure that this matter was dealt with in a proper manner.

The Chairperson responded that the Committee had requested quarterly reports because of an ongoing investigation. However, requesting monthly reports and putting the matter on the agenda every month was some form of micromanaging and was, in fact, counterproductive. There was a forensic report on the matter, and she would be discussing the BRR Report, not the classified report.

Mr M Seabi (ANC) asked for the Deputy Minister’s opinion on the classification of the IPID report. He agreed that the Kinnear matter was extremely serious, and that a good precedent should be set to avoid anything of this nature again. He asked that the IPID brief the Committee on the recommendations in the report and explain why it was classified. He asked if the presentation could be circulated during their current meeting so it could be prioritised and discussed at the next meeting. This would stop the Committee from creating a precedent where information was presented at a meeting before the Chairperson and the Ministry had had a chance to view it.

Ms G Marekwa (ANC) agreed with Mr Seabi on the importance of not setting a precedent, where information was presented before the Chairperson and the Ministry had had an opportunity to view and approve it. The presentation should be put on hold since the Chairperson had not seen it and was unsure whether it covered certain classified parts of the report. The Kinnear case was of high public interest, which meant that the Committee had a big responsibility to do things thoroughly, following correct procedures, so that they could engage with the public regarding this matter.

The Chairperson responded by explaining that she had never allowed any walk-in presentations to be made to the Committee. All presentations were expected to be circulated amongst all Members a week in advance. She would not allow this presentation to take place because Members had complained in instances where they had not received presentations well in advance. That was one of the principles that the Committee would always stand by. The Kinnear case was an ongoing matter, and if the IPID or any other organisation would like to make submissions, they would have to do so in advance.

The Chairperson asked the Deputy Minister and IPID why the Kinnear report was classified, considering that any document submitted to Parliament had to be made public. She emphasised that South Africa was a constitutional democracy and that IPID should note that their classified submission had compromised Parliament and the Committee’s oversight mandate. The Committee needed to have information at hand to carry out its oversight mandate. All Members of Parliament had access to the report but did not have clearance to view it. She added that she had not had an opportunity to look at the report as the Speaker’s office was still busy with security arrangements for the document.

The issue of the report would be placed on the next meeting’s agenda because she had quite limited information, as she had not read the document yet. She added that Members with security clearance who wished to read the report should see the Speaker, and their request would be granted. She agreed with Mr Terblanche that the Kinnear investigation was a murder investigation and should be treated as such.

Deputy Minister of Police, Mr Cassel Mathale, said that the presentation by IPID should be made on the day that the Chairperson would choose, since she had stated her reasons for not allowing the IPID to present on the day of the meeting. Both SAPS and IPID wanted to account for the matter to the Committee, and it should never seem as if they did not want to do that. He added that the Ministry, the SAPS and IPID would find a way to account for matters with high security concerns without compromising any processes. The report given to the Speaker would allow her and the joint standing committee that dealt with highly sensitive matters to decide how the matter should be handled. Parliament and the Speaker’s office had the capacity to process documents and sensitive information that would not ordinarily be put on a public platform.

The Chairperson reiterated that she did not want the contents and the findings of the report presented to the Committee. She asked the Executive Director of IPID for a clear explanation on why the report was classified.

Ms Jennifer Ntlatseng, Executive Director, IPID, said that the IPID report was classified because of the sensitive nature of the Kinnear matter and how it implicated senior officers in the South African Police Service. The IPID had forwarded the report to the National Prosecuting Authority (NPA) and the National Commissioner of Police to act on the recommendations stipulated in the report, but had not received a response from either entity.

Dr Groenewald asked IPID to provide their reasons for classifying their report in writing so he could study them. The reasons that the Executive Director had given the Committee were unacceptable, and that the implication of senior officers in the report was not an excuse for them to classify a document. He asked how the Committee would have to wait for a full report, since there was outstanding information. He also requested that IPID answer why there was outstanding information, and that all the relevant bodies account for that. He added that the matter was urgent, and should be finalised.

Mr Terblanche agreed with Dr Groenewald, and said that the implication of senior officials in the report was not enough reason to classify it. He added that the Phala Phala case was out in the media, and even the State President was involved, so the classification of this report was uncalled for.

The Chairperson said it was her wish for the Kinnear case to have a way forward and be dealt with, which was why it was first on the agenda. The matter would be placed on the next meeting’s agenda, with absolute reasons as to why the report was classified. The matter would also be followed by a presentation and an opportunity for the Committee Members to ask questions. The presentation would be sent to the Committee before it was placed on the agenda. The meeting was meant to be a BRR Report meeting because the Committee did not have time to discuss a presentation and report they had not seen.

The Chairperson asked that the Committee complete the BRR reports by the stipulated date as per the legal requirements. Thereafter, the Members who wished to do so may engage with the Speaker’s office to be granted access to the report. She added that the Committee would have a record of all Members who were given an opportunity to read the report after she had given them permission in writing.

Dr Groenewald asked that the Committee write a letter to the Speaker to ask that certain parts of the report be revealed, since not all Members had security clearance for access to classified information. Allowing Members who did not have security clearance to view the report would be in contravention of certain legislation, which could have serious legal implications for the Committee. He had had security clearance before 1994, but was certain that his clearance was no longer valid, meaning that he would be breaking the law if given access to the IPID report. He asked for clarity on the issue of clearance before the Committee was allowed to see the report.

The Chairperson responded that she had reservations regarding the legality of viewing the report without top secret clearance, and had since asked the Committee’s legal advisor to advise her on behalf of the Committee.

IPID 2021/2022 Annual Financial and Performance Report

Ms Ntlatseng said that during the period under review, the Department had executed its mandate in accordance with the regulations outlined in the IPID Act. It achieved 94% of its annual performance plan (APP) targets and spent 98.34% of its budget. The audit outcome had remained unqualified, with no identified material misstatements.

Eleven new offices were established in the year under review -- four in Gauteng, four in KwaZulu-Natal, and three in the Northern Cape. The IPID had also collaborated with the African Policing Civilian Oversight Forum (APCOF) as one of its stakeholders to develop a case prioritisation framework.

The Department had partnered with the National Youth Development Agency (NYDA) and the Safety and Security Sector Education and Training (SASSETA) to fund the youth development programme for the SAPS, MPs and the NPA. She reported that a total of 239 departmental convictions and 20 criminal convictions were secured, with 941 cases still on the court roll.

Mr Patrick Setshedi, Chief Financial Officer: IPID, reported that the Directorate had not incurred unauthorised expenditure in the year under review, but had incurred a total of R165 000 in transactions classified as fruitless and wasteful. These included interest on overdue Telkom and fleet services accounts, the renewal of the SPSS software annual licence, and the implementation of the arbitration award. The Auditor General (AG) had registered a transaction amounting to R94 080 as irregular expenditure. This amount was said to be used in the procurement of office furniture.

Ms Suzan Letlape, Director: Strategy and Performance Monitoring, IPID, presented the performance information and highlighted that the Department had reached most of its 2021/22 targets, and had received an overall performance rating of 94%.

See presentation for further details

Discussion

Mr H Shembeni (EFF) asked how IPID was going to prioritise cases against police officials. Which province had the highest number of officials who were found guilty of misconduct from the year 2019? What were the possible reasons this particular province was leading in the number of officials who were found guilty of misconduct, and what interventions had IPID put in place?

He also asked about the dismissals of police officials, their leading causes, the ranks most affected and the interventions IPID had in place. Were the transgressions by the police officials committed while they were on duty?

Mr Terblanche expressed concern at IPID’s unqualified audit. The figures looked appealing at face value, but were actually quite concerning and unsatisfactory because there was a backlog of about 40 000 cases. The turnaround time from the NPA was problematic, because there were 1 401 cases awaiting feedback. The conviction rate was also concerning and dismal compared to the number of cases brought to them. He asked why there was such a growing backlog and slow feedback from the NPA. When would the IPID be able to deal with the growing number of cases?

He recalled seeing articles in the media about police officials getting only warnings after being reported for rape. He asked if these cases were ever referred to the NPA, because it was concerning to have only suspended salaries and written warnings as punishment for rape. He was aware that IPID was battling financial constraints and asked how they would be working at their best with their resources.

Dr Groenewald referred the Committee to slide 22 of IPID’s presentation, and asked if it was true that only two police officers had been reported for rape in the year under review, seeing that there had been 99 cases in the previous year. He asked if rape by police officers was classified according to whether incidents took place in police stations or not.

He referred the Committee to slide 32, highlighting that IPID had a success rate of only 4.9% for convictions. He asked the IPID to explain why this was the case.

The Chairperson agreed with Mr Terblanche, Mr Shembeni and Dr Groenewald on the concerning IPID figures, and said its performance was unacceptable. It was disconcerting to have individuals in the police service actively participating in the scourge of gender-based violence (GBV) when they were meant to be fighting against it.

IPID's response

Mr Innocent Khuba, National Head of Investigations, IPID, responded to Mr Shembeni’s question on the prioritisation of cases, and explained that this was based on three pillars -- top priority, high priority and common assault. IPID had collaborated with AFCOF to support this structure of prioritisation. It had also instructed provincial offices to check whether cases were categorised accordingly. Former prosecutors would be recruited as quality assurers to improve the quality of investigations. He said the Department was on track when it came to case prioritisation.

IPID could provide a response in writing on which province was leading when it came to issues of misconduct, the types of actions that gave rise to cases of misconduct, and the ranks most affected. He estimated that the most affected ranks were in the operational side of the SAPS, meaning constables, warrant officers and, in some cases, captains. IPID's intervention programmes included station lectures, cell inspections and educating members of the SAPS on the importance of respecting people’s rights and the work of the Directorate.

He admitted that the conviction rate was a challenge. He and the Executive Director had asked the same question. They realised that the number of convictions was negatively affected by withdrawals and cases being declined by the Director of Public Prosecutions (DPP). A team had been formed and investigated the cases declined by the DPP. This assisted in crafting a strategy to investigate cases to improve conviction rates. Police officials were aware that criminal cases had to be proven beyond reasonable doubt. This caused them to get away with many of their crimes because they were mostly committed in secluded areas with no witnesses, making it hard to get them convicted.

Regarding the backlogs, he explained that a large number of cases needed to be closed because there was not much IPID could do. 72% of the cases that were backlogged were common assault cases that could be dealt with and solved. IPID was currently recruiting more staff in the provinces with a large number of backlog cases. The provinces were Gauteng, the Western Cape and KwaZulu-Natal. IPID would rigorously vet retired members from the SAPS and other law enforcement agencies during this recruitment process.

He answered the question on rape, and clarified that the rape highlighted in the slides was rape in custody by other parties, not by police officers. The number drastically had reduced to two cases from the previous year because of the cell inspections conducted by IPID. There were 49 cases of rape by police officers while on duty, and 50 cases which implicated off-duty officers. He added that these cases were heavily prioritised because they formed a part of the anti-GBV initiatives.

Ms Ntlatseng noted all the concerns raised by Committee Members, and assured them that IPID would do its best to deal with police brutality. It would continue to arrest police officers who broke the law while being an oversight body for the police service.

Mr Setshedi responded to the question of limited funding, saying that IPID would continue to prioritise core functions through internal shifting funds where necessary. It also engaged with various stakeholders such as the NYDA and the Department of Community Safety without compromising the mandate of IPID. The NYDA had assisted IPID with an intake of interns in various offices, and the Department of Community Safety had increased the footprint of IPID. SASSETA also assisted IPID with skills development and training their investigators and administrative officers.

Mr Terblanche said that he was more concerned than he was before IPID’s responses, because their plans referred to the future, and were not in place at the moment. It was clear that the quality of investigations was not up to standard, because the number of declined cases by the NPA was an indication that they were sending cases that did not stand a good chance of being prosecuted.

IPID, as an institution, was in trouble because they were not doing what it ought to be doing. They did not have the impact that they should have, and the police were getting away with serious crimes as a result.

Dr Groenewald agreed with Mr Terblanche, and said that the conviction rate was concerning. IPID had been established for the public who wished to raise concerns about the police, but it was failing South Africans. IPID’s consistent promise to improve was not showing in the number of cases that get to court. He asked the Deputy Minister why IPID was referring dockets to the SAPS, and if that was indeed the correct procedure. It appeared that it became a problem when the police had to forward the dockets for prosecution.

The Chairperson said that IPID’s performance was unacceptable because it could not be said that there had been progress and an improvement at the Directorate.

Ms Ntlatseng answered Mr Terblanche's statement that IPID's plans being futuristic. She said IPID had already initiated programmes to act on their plans to improve. They had already started recruiting former prosecutors to improve the quality of their investigations, and had already begun the process of recruiting quality assurers.

Mr Khuba addressed the concerns over the quality of investigations, and said there was room for improvement. The number of cases in court was a reflection of the work that was being done by the Directorate, because there would not be a case in court unless the investigations were conducted properly. He highlighted that there were 108 cases on the court roll, which meant there would be an increase in the conviction rate if these cases were concluded. He said that Covid-19 and its restrictions had affected the conviction rate and the finalisation of cases. The interns that had recently been hired had closed over 2 000 cases and the number would improve as they got accustomed to the processes. He estimated that the IPID would close 5 000 cases by the end of the year, as they were continuously improving.

Dockets were not referred to the SAPS for criminal prosecution, but for departmental steps. The IPID had a problem with SAPS’s disciplinary process because officials would be acquitted of any wrongdoing in their departments, but be found guilty in a court of law.

Ms Ntlatseng concluded the presentation by telling the Committee that IPID was doing its best to improve its conviction rate by implementing the backlog strategy and the recruitment of quality assurers. The Directorate would continue to engage with other stakeholders. She added that being included in the disciplinary processes of the SAPS would help the Directorate.

The Chairperson told the Deputy Minister that the urgent issues highlighted in this meeting stressed the importance of the IPID Amendment Bill. She added that the Committee had failed to bring the legislation forward. She appealed to the Deputy Minister to fast-track the amendment bill to strengthen IPID.

PSIRA 2021/2022 Annual Financial and Performance Report

Dr Leah Mofomme, Chairperson, PSIRA Board, introduced other members of the board, and said that Ms Mmatlou Sebogodi, Chief Financial Officer, would do the presentation.

Ms Sebogodi said that PSIRA had achieved 82% of their APP targets in 2021/22 and successfully finalised 1 035 prosecutions after 825 arrests were made. Over R25 million in fines had been imposed against security providers, with a turnaround time of 73 days. It was also recommended that a crime prevention strategy between the SAPS and PSIRA needed to be developed.

PSIRA had accredited 174 new centres and over 500 000 training course reports had been captured. The Portfolio Committee had recommended that PSIRA consider purchasing its own buildings to reduce the excessive building expenses. An assessment of the structure and condition of a PSiRA-owned building in Pretoria had been conducted by engineers to determine its usability.

PSIRA’s total revenue had increased by 28% compared to the previous financial year. The positive variance was due to increased collection of annual fees, the sale of goods, fines and training. PSIRA has improved its financial sustainability and audit outcomes. These two challenges would be managed by re-prioritising expenditure to cater for critical projects, and having internal audit to audit matters that affected the audit outcome, respectively. She added that using internal venues and other available government venues would significantly lessen PSIRA’s expenditure and contain costs.

Discussion

Mr Shembeni asked if PSIRA was doing inspections regularly to ensure that companies were still adhering to the law by having security guards with the necessary documentation. He also asked PSIRA to check if security guards had legal firearms and how many security guards had been arrested for possession of unlawful firearms.

Mr Terblanche asked how PSIRA planned to turn their situation around, since they were moving in a southerly direction. How did it plan to get rid of security companies which did not have the required documentation to operate? He asked for an assurance from PSIRA's management to deal with the problem of unlawful security companies.

Mr Shembeni asked if legislation forced companies to give their security officers uniforms, since there were multiple complaints about funds being deducted for this particular expense.

PSIRA responses

Mr Manabela Chauke, CEO, PSIRA, responded that there were constant inspections and arrests made at unregistered companies that hired security officers who did not have the necessary documentation. It was not only the security officers that got arrested, but the owners of the companies as well.

He said there had been multiple arrests concerning illegal firearms and firearms not being issued to licensed personnel. He also assured Mr Terblanche and members of the public that PSIRA remained an entity that was managed properly, with its governance processes and financial controls still intact.

Ms Sebgodi said PSIRA would have assistance from internal auditors to ensure a return to clean audits. They would have an expert to assist them on the issue of the principal liability note presented in the financial statement. The expertise would be sourced from the National Treasury and the Office of the Auditor General.

Deputy Minister Mathale said he and the management of PSIRA would not allow PSIRA to regress.

Ms Talent Zwane, Head of Law Enforcement, PSIRA, responded to the question of security guards' uniforms, and said that companies should give their officers two sets of uniforms without deducting funds from the officer's account.

The Chairperson said that the IPID and PSIRA should be regularly called to the Committee and scheduled as priority items on the agenda.

The meeting was adjourned.