IPID A/B: SAPS briefing; Divorce A/B: adoption; with Deputy Minister

Meeting report

The Chairperson welcomed the Committee Members, the Deputy Minister of Police, and officials from the Department of the Civilian Secretariat for Police Service (CSPS) and went through the agenda items for the meeting. She noted an apology from Mr F Badenhorst (DA, Western Cape).

She reminded the Members that they had made amendments to the Independent Police Investigative Directorate (IPID) Amendment Bill [B21B-2023] at the beginning of the term. That process commenced in 2016 immediately after a Constitutional Court judgment in McBride v the Minister of Police and Another 2016 (11) BCLR 1398 (CC). In that judgement, the Constitutional Court had agreed with the applicant (McBride) and ruled that Section 6(3a) of the IPID Act was invalid to the extent that it authorised the Minister to take any unilateral disciplinary steps and to suspend or remove the Executive Director of IPID.

She noted that Parliament was given 24 months to ratify the constitutional defect. As a result, the IPID Amendment Act was signed by the President on 26 May 2020. This amendment afforded parliamentary oversight for suspending or removing the Executive Director. The IPID Amendment Act was approved by Cabinet on 24 May 2023. She invited the Deputy Minister to begin taking them through the IPID Amendment Bill.

The Deputy Minister of Police, Mr Cassel Mathale, advised that the necessary support and information on the IPID Amendment Bill would be provided to the Committee should Members require them. He requested that Mr Takalani Ramaru, Acting Secretary for Police, CSPS, be allowed to lead the Committee through the presentation. He requested that the Chairperson allow him to be excused early for medical reasons.

Mr Ramaru advised that the presentation on the IPID Amendment Bill would be dealt with by Adv Dawn Bell, Chief Director: Legislation, CSPS.

Presentation by the Department of the Civilian Secretariat for Police Service on the Independent Police Investigative Directorate Amendment Bill [B21B-2023]

Background

Adv Bell provided an overview of the dates on which the IPID Amendment Bill was introduced to Parliament, when public submissions were made, and when the Portfolio Committee on Police deliberated on and adopted its report on the IPID Amendment Bill. On 05 December 2023, the Second Reading Debate on the IPID Amendment Bill took place, and the IPID Amendment Bill was passed by the National Assembly (NA) on the same day.

Adv Bell proceeded to take the Committee through a clause-by-clause analysis of the IPID Amendment Bill.

Clause 1 & 2

These clauses dealt with the provision of new definitions in the IPID Act and the establishment of the constitutionality of IPID.

Clause 3

This clause sought to amend Section 4 of the IPID Act, in providing that IPID was institutionally and operationally independent, and further, that IPID must be independent, and impartial and must exercise its powers and perform its functions without fear, favour, prejudice, or undue influence.

Clause 4

In response to concerns in the public comments regarding the lack of parliamentary oversight over the processes for appointment of the Executive Director, Section 6 of the IPID Act has been substituted. The result was that the clause now provided for the appointment of a panel to assist the Minister with the nomination of a candidate for the Executive Director post and the submission of the name of the candidate to the relevant Parliamentary Committee for approval.

Clause 5

Clause 5 sought to amend Section 7 of the IPID Act, in order to ensure that “recommendations” regarding disciplinary matters which involved certain provincial and national executives were referred to all appropriate authorities, including the municipal manager and the executive head of municipal police service.

Clause 6

This clause provided for the deletion of Section 8(1) of the IPID Act, which provided for the composition of the national office of IPID, as it was a matter that could be dealt with through IPID’s internal policies and procedures.

Clause 7

This clause amended Section 9 of the IPID Act which provided for identification and review of legislative needs in consultation with CSPS, and further that the reporting of such matters was to be made to the Minister and not to the CSPS as provided for in the IPID Act.

Clause 8

This clause amended Section 10(3) of the IPID Act, by deleting reference to Section 7(9), to empower the Executive Director to delegate the initiation of investigations to provincial heads of IPID.

Clause 9 & 10

These clauses dealt with the composition of the forum that would take place with representatives of government departments and setting out salary levels for the provincial heads of IPID.

Clause 11 & 12

This section provided some of the responsibilities of the provincial heads, such as the preparation of financial statements. It also provided for a higher standard of qualifications required for investigators in IPID.

Clause 13

Clause 13 sought to amend Section 23 of the IPID Act. It provided that the conditions of service, including salary and allowances payable to investigator, shall be determined by the Minister in consultation with the Minister of Finance.

Clause 14

Clause 14 provided for the insertion of paragraph (bA) in Section 24(2) of the IPID Act to bestow upon IPID investigators the power to take buccal samples in terms of the South African Police Service Act 68 of 1995.

Clauses 15 & 16

These clauses provided for the insertion of Section 27(2) of the IPID Act to provide for the limitation of liability of IPID officials. It also sought to amend Section 28(1) of the IPID Act to provide that IPID shall investigate the crimes of rape and murder whether they have been committed on or off duty.

Clauses 17 & 18

These clauses provided reporting obligations and required cooperation by members of IPID. Clause 18 dealt with the strengthening of disciplinary recommendations.

Clauses 19 & 20

These clauses sought to make IPID accountable to Parliament and not only to the Minister. Clause 20 proposed consequences for failure to act on recommendations made by IPID.

Clauses 21 & 22

Clause 21 sought to empower the Minister to have more control over regulating IPID.

Clause 22 would ensure that the conditions of service, including remuneration and benefits payable to the employees of IPID before the commencement of these amendments to the IPID Act, may not be less favourable upon the commencement of the Act.

Clauses 23 & 24

These clauses provided for the substitution of headings of certain sections of the Act and the determination of the date on which the Act shall come into operation by the President by means of proclamation in the Gazette.

(see attached presentation for further details)

Discussion

The Chairperson asked if Members had any questions or comments regarding the presentation.

Ms A Maleka (ANC, Mpumalanga) addressed Clause 4 which dealt with the appointment of the Executive Director, and asked CSPS to expand on the panel that will be formed to this end. She asked who would serve on this panel. On the issue of pre-employment security screening in Clause 6 and Clause 12, she asked if IPID would have the necessary capacity to conduct such a screening.

Mr T Dodovu (ANC, North West) welcomed the presentation and remarked that it was very good. He thanked the Deputy Minister for being upfront and always engaging with the Committee. Mr Dodovu wished him a speedy recovery as he knew he was going to see a doctor. He expressed concern that this presentation came very late to the National Council of Provinces (NCOP), as the NA already passed the Bill on 5 December 2023. It was his view that this placed a lot of pressure on Members and the NCoP to ensure public participation and meaningfully deliberate on the Bill since Parliament reconvened for the year. He would continue to raise this concern as it puts the Committee under unnecessary pressure, seeing as they do not give the NCoP enough time to reflect on important legislation such as this Bill.

Mr Dodovu commented that IPID was not a Chapter 9 institution, and it was noted in the presentation that this required a policy decision. He asked the Deputy Minister to advise them on this process. According to him, IPID should be a Chapter 9 Institution to guarantee its independence, as it is a very important institution, and a constitutional amendment would be required to include it as a Chapter 9 institution. Had any process been started to induct IPID as a Chapter 9 institution? This would promote and protect democracy like other Chapter 9 institutions, and it would also address all the issues highlighted by the Constitutional Court.

Mr G Michalakis (DA, Free State) thanked the Chairperson. He echoed Mr Dodovu's sentiments and expressed his wish that he would take those sentiments to the programming meeting as well. He reiterated that the NCOP was under a lot of pressure to deal with legislation in a timely manner. He noted that he had raised this concern three or four times before with regard to various pieces of legislation and hoped all other Members agreed that the NCoP could not be expected to deal with legislation in a rushed manner. He said they should guard against this to ensure they process legislation properly.

He stated that the problem with IPID was not the legislation, as their legislation is usually of good quality. The problem was with its implementation which reflected on the Deputy Minister. Should he be in the fortunate position where his party was in charge of the budget after the election, the effectiveness of this legislation would depend on whether IPID was funded properly. Up to this point, IPID had been grossly underfunded, and for this reason it could not fulfil its constitutional mandate.

The Chairperson thanked Members for their questions and comments. She handed over to the Deputy Minister for his responses.

Responses

Deputy Minister Mathale thanked the Members for their questions and input. He noted that the existing legislation sufficed for the CSPS to carry out its duties, but from time to time, amendments were required to stay in line with the tests it was subjected to. In this case, lawmakers passed a law that they believed was a good piece of legislation, but as it is implemented, it gets tested. Through the course of this implementation, it was discovered that an amendment was required. He said the CSPS was confident it was doing the right thing by adopting this piece of legislation. However, through its execution, it could be found that more amendments were required for the same piece of legislation that was being amended today.

He stated that the Constitution defined Chapter 9 institutions and their mandates. They had not found that existing Chapter 9 institutions were insufficient. He said the comment made by Adv Bell in this context was due to a number of South Africans who believed IPID should be a Chapter 9 institution. This was unnecessary as once the South African Police Service (SAPS) became efficient and professional, IPID would become redundant and wither away. Once members of SAPS conducted themselves beyond reproach, they would not require a watchdog. It would be inappropriate to amend the Constitution to induct IPID as a Chapter 9 institution in the long term. IPID was formed due to the past conduct of police officers, which he noted was still a problem today. There were elements in SAPS which did not operate within the confines of the law, and it was the mandate of IPID to police these elements. IPID acted as a deterrent for police officers to conduct themselves appropriately. It was within the rights of lawmakers to amend the Constitution in order to establish IPID as a Chapter 9 institution. However, in his view, going in that direction would not be advisable.

Addressing the concerns of Mr Michalakis and Mr Dodovu, he said they would have enough time to process this piece of legislation effectively. He fully shared their concerns that the NCOP should not be bombarded with legislation that made it difficult for them to do their work appropriately. He was aware of a piece of legislation brought before the NCOP at the last minute, and he apologised again. They should not have done this, as they had to push the NCoP to process this legislation with constrained timeframes. He commended the Chairperson and Members of the Committee for making excellent contributions under these circumstances.

Mr Ramaru dealt with the question regarding the appointment panel. He said there were legal frameworks for the appointment of heads of departments or government institutions. These were outlined under the Executive Protocol of 2020 and the Public Service Act. The composition of the panel was determined by the chairperson of the panel, and two other ministers had to be appointed to the panel. It also provided that there had to be a Director-General from a national department. This composition was regulated and thus was not solely up to the executive authority’s decision.

On whether IPID would have the capacity to deal with pre-employment screening, Mr Ramaru stated that this was a function it was already performing along with all other government departments. When they speak of pre-employment screening, they refer to a basic human resources function. They had to verify the criminal record, the credit record, and the qualifications of any candidate. Once that was done, the candidate was appointed. There was a clause in the contract that stated that employment would be subject to successful vetting, which vetting was a rigorous process done by the state security.

The Chairperson thanked Mr Ramaru and the Deputy Minister for their responses. She indicated that the IPID Amendment Bill had been referred to the Committee in the previous term. It was open to public comment from 8 December 2023 to 19 January 2024. She noted that the Committee would continue to engage with the CSPS on this IPID Amendment Bill in the next meeting, when they would also expect the CSPS to provide them with responses to the public comments. She observed that the Committee should receive those responses early so they may familiarise themselves with it. She thanked the Deputy Minister, CSPS officials, and the Executive Director of IPID for their engagement with the Committee.

Adoption of the Divorce Amendment Bill [B22-2023]

The Chairperson advised that she was aware that the Committee was faced with time constraints, but noted that the agenda for the meeting was not very extensive. The remaining items on the agenda included the briefing on the NPA Amendment Bill would be dealt with in a future meeting. She said the Committee would move on to the next item on the agenda, which was the consideration and adoption of the Divorce Amendment Bill. In their last meeting on 25 January 2024, the Department of Justice and Constitutional Development (DoJ&CD) responded to submissions on the Divorce Amendment Bill. They explained the rationale of the retrospective application in the Divorce Amendment Bill. The DoJ&CD made it clear that the Divorce Amendment Bill addressed the Constitutional Court judgement regarding the Women’s Legal Centre Trust vs. the President of the Republic of South Africa and Others (1) BCLR 80 (CC). The remaining matters would be addressed in the Marriage Bill of the Department of Home Affairs. In addition, the Parliamentary Legal Advisor clarified the tagging of the Divorce Amendment Bill as a Section 75 Bill in the last meeting.

The Chairperson asked if Members had any additional comments on the Divorce Amendment Bill. She asked if the Members would allow her to move for the adoption of the Divorce Amendment Bill without any amendments.

Ms M Bartlett (ANC, Northern Cape) moved to adopt the Divorce Amendment Bill without amendments.

Ms N Ndongeni (ANC, Eastern Cape) seconded this motion.

The Chairperson asked if there were any objections. There were no objections. The Divorce Amendment Bill was accordingly adopted without amendments.

The Chairperson requested that the draft report on the Divorce Amendment Bill be presented to the Committee.

Report of the Select Committee on Security and Justice on the Divorce Amendment Bill [B22-2023]

Mr Gurshwyn Dixon, Secretariat, Select Committee on Security and Justice, presented the draft report on the Divorce Amendment Bill. He advised that the Divorce Amendment Bill sought to amend the Divorce Act 70 of 1979, so as to insert a definition for a Muslim marriage, provide for the protection and safeguard the interests of dependent and minor children of a Muslim marriage, provide for the redistribution of assets on the dissolution of a Muslim marriage, provide for the forfeiture of patrimonial benefits of a Muslim marriage, and to provide for matters connected therewith.

He noted that the Committee had invited stakeholders to make submissions and publish adverts in all official languages on Parliament’s electronic platform from 15 November 2023 to 5 December 2023. Five submissions had been received, and Annexure A to the report contained the responses to those submissions. One submission came from an individual, Simphiwe Tau, the second submission was from VCV Malala on behalf of Senzokhule Advice Centre, the third submission was received from the National Education, Health and Allied Workers’ Union (NEHAWU), the fourth submission was from Women’s Legal Centre, and the fifth submission from the Congress of South African Trade Unions (COSATU).

The Committee had received a briefing on the Divorce Amendment Bill on 15 November 2023 and on 25 January 2024, the Committee had received a briefing by the DoJ&CD on the public submissions received for the Divorce Amendment Bill. Today, the Committee adopted the Divorce Amendment Bill without amendments. The Committee further adopted the report on the Bill on 14 February 2024.

He moved on to the penultimate section of the report, which provided that the Chairperson put forward the Divorce Amendment Bill for consideration, and that the majority of Members supported the Divorce Amendment Bill, with there being no objections or abstentions.

The Chairperson dealt with the recommendation in terms of the report, and stated that the report would provide that the Select Committee on Security and Justice, having considered the Divorce Amendment Bill [B22-2023] (National Assembly – S75), referred to it on 15 November 2023 and classified by the Joint Tagging Mechanism (JTM) as a Section 75 Bill, recommended the NCoP pass the Divorce Amendment Bill without proposed amendments.

The Chairperson asked for the report to be adopted. The Members accordingly moved for the adoption of the report.

Read report: ATC240214: Report of the Select Committee on Security and Justice on the Divorce Amendment Bill [B22-2023] (National Assembly – S75), dated 14 February 2024.

Concluding remarks

The Chairperson apologised to the Deputy Minister and the NPA for not being able to deal with the NPA Amendment Bill as scheduled. She noted that the Committee would deal with that agenda item in a future meeting. She thanked the Members for their attendance and participation.

The meeting was adjourned.