NPA A/B: discussion; IPID A/B: Department response to submissions (with Deputy Ministers)

Meeting report

The Chairperson opened the meeting and noted the Members present on the platform. She introduced the agenda for the day which was a briefing on the National Prosecuting Authority (NPA) Amendment Bill and to hear the Department of Police’s response to submissions received on the Independent Police Investigative Directorate (IPID) Amendment Bill. She welcomed the Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, teams from the departments, and legal advisors.

National Prosecuting Amendment (NPA) Amendment Bill [B29-2023]

The Chairperson noted that in the previous meeting, which was on 21 February, the Committee had received a briefing on the NPA Amendment Bill. The Bill amends the NPA Act to establish the Investigating Directorate Against Corruption (IDAC or ID) as a permanent entity within the office of the National Director of Public Prosecutions (NDPP). The Bill also provides for the appointment and powers of investigators and their remuneration and conditions of service.

In the previous meeting, Members raised issues on the functioning and independence of the ID, support and urgent need for the Bill, as well as an issue about the appointment of the retired judge to deal with complaints against investigators. The Department responded to two Members' questions, but the Department also briefed the Committee on the public submissions made on the Bill. It was also noted that the NPA requires independence and meaningful reforms to address existing issues within the NPA.

The Department assured the Committee that a broader review of the legislation about the NPA will be conducted in the new administration. The Chairperson mentioned the National Assembly might have requested that such be done. It was hoped the Department would start looking at this timeously, given the concerns raised by the public. She opened the floor to Members' input.

Mr G Michalakis (DA, Free State) said he had more of a comment than a question. The Department would remember that in the National Assembly Portfolio Committee, the DA made some constructive proposals. He would not repeat those proposals here, except to say that, in the DA’s opinion, the Bill could go much further in capacitating and assisting the NPA.  He hoped that those proposals would find their way into legislation in the near future. However, in as far as this Bill, he wished to express support for the slight distance it goes in improving matters. However, he still wished to remind the Department of the DA’s earlier proposals and request that that be considered as a matter of urgency.

Tongue-in-the-cheek, he said that if those proposals perhaps do not eventually find their way into legislation, that hopefully a new government will be able to do so after May.

Mr C Dodovu (ANC, North West) thanked the Department for patiently and painstakingly helping the Committee shuttle this route, particularly the Deputy Minister who shepherded this process to reach the point where it is. Mr Dodovu thought this was quite commendable, given the urgency of the Bill that is before the Committee. Everyone wants complex, very, very serious, and high-profile cases to be expeditiously dealt with. He was happy the Department and the ID would be afforded the opportunity to recruit people who are going to be employed permanently by the unit itself.

Mr Dodovu sincerely implored the Department to please appoint very, very capable, competent, skillful, qualified, and knowledgeable people in different positions, especially investigators. He emphasised that the issues before the NPA be tackled with spirit. South Africans are expectantly waiting to see the results of the important work that the Department is doing, in respect of helping SA to move forward and clearing it of all the maleficence as such.

Mr Dodovu urged the Department that as soon as the President has assented the Bill into an act, the ball should start rolling. He asked that people with moral high moral rectitude also be included, who can salvage and help SA, and extricate it from the kind of situation it is facing. He was quite positive that this would be done. He was also quite confident that little would change regarding the government for the seventh administration, but with that decision made, he was quite positive that this work must be continued.

Deputy Minister Jeffery thanked the Members for their comments. He said the comments made by the DA in the National Assembly would be considered as part of the full revision of the Act.

In response to Mr Dodovu, he said the Department will not be employing any investigators. That is the job of the NPA. However, these concerns will be passed on to the NDPP. He said these were very legitimate concerns to the NDPP, but the NPA will be employing the investigators, not the Department of Justice.

The Chairperson said there seems to be general consensus on the Bill. There was also consensus that the Bill be adopted without amendments. This would be dealt with in the next Committee meeting along with the adoption of the Committee report on the Bill.

Independent Police Investigative Directorate (IPID) Amendment Bill [B21-2023]

The Chairperson noted that in the meeting on 14 February, the Committee received an initial briefing on the Bill. The Bill seeks to entrench the institutional and operational independence of IPID, as well as to make it expressly clear that IPID must be independent, impartial, and must exercise its powers and functions without fear, favour, or prejudice.

In that meeting, the Deputy Minister and the Civilian Secretariat for Police Service (CSPS) also provided more clarity to Members' questions about the panel that will be appointed, the capacity to perform in-house pre-employment security screening, and issues around the implementation of the Bill.

The Committee called for comments on the Bill. There was also a request to extend the deadline. The Committee received seven submissions from the following commentators: the Commission for Gender Equality, Africa Criminal Justice Reform, Dear South Africa, the Western Cape Government, the Institute for Security Studies, the Catholic Parliamentary Liaison Office, and the Africa Policing Civil Oversight Forum.

Today, the Committee would receive responses from the CSPS to these comments made on the Bill for further deliberation by the Committee.

Mr Cassel Mathale, Deputy Minister of Police, said the Department would respond to the Committees but he noted the Department was with the Committee throughout the. The Committee is not in it alone but with the support of the Department.

Department response to public comments on IPID A/Bill

Adv Dawn Bell, Chief Director: Legislation, CSPS, took Members through the Department's response to the seven submissions received on the Bill.

Clause one: definitions

Proposals have been submitted that the words “national preventative mechanism” and “preventative monitoring” be defined in the Bill. These proposals were extensively deliberated upon during the Portfolio Committee hearings but they were not accepted. To put these words into context, there were proposals to incorporate in this Bill the preventative monitoring function in the National Preventative Mechanism, which is colloquially known as the NPM. The NPM is an independent mechanism for the prevention of torture designated or established in accordance with Article of the Optional Protocol to the Convention Against Torture and Cruel, Inhumane, and Degrading Treatment or Punishment, and that is also commonly known as OP-CAT. Parliament ratified the OPCAT However, there is no domestic legislation that currently regulates the NPM. So members of the NPM in South Africa are the South African Human Rights Commission, the Judicial Inspectorate for Criminal Services, the Military Ombud, the Health Ombud, and IPID. All these institutions are joined to enforce, observe, and promote OPCAT obligations. The Department's submission is that the inclusion of OPCAT in this Bill would limit the oversight of the effectiveness of the NPM to that of the SA Police Service (SAPS) and the Metropolitan Police Service (MPS), and there are several parties that enforce, observe and promote OPCAT, and therefore it was resolved that the issues of OPCAT should not be included in this Bill, but rather be considered in a separate piece of legislation or the existing Prevention and Combating of Torture of Persons Act. So in light of this, there is no need to define these words.

Further proposals were received to further clarify the role and function of IPID by defining the meaning of operational and institutional independence. The words operational independence and institutional independence are not used in the Bill, and therefore, including them in the definitions would be inconsistent with legislative drafting practice. Also concerning clause one, the proposal to include the word “initiate” was made, which included a proposed wording. It is a drafting practice that words that are only used once in the text of a Bill should not be defined. However, the wording proposed for this definition will be considered. The same applies to operational independence and institutional independence: these words are also only used once in the text of the Bill.

Clause three: independence and impartiality

The proposal received is that the director must be independent from any structure associated with the national or provincial secretariat of police service or ombudsman where it exists. The Department responded that what is in the Bill is sufficient for the intended purpose of the independence of IPID. In the Principal Act, section f, it encourages close cooperation between IPID and the civilian secretariat for police service. The Principle Act provides that each organ of state must assist IPID to maintain its impartiality and perform its functions effectively. So this essentially calls for the cooperation between IPID and other organs of state.

In addition, reference to IPID's independence is already inherent in the Act, and therefore this proposal is noted.

Clause four: appointment of the Executive Director

The submissions received were that more detail should be provided regarding the composition, work, and qualifications of the proposed panel, as well as the appointment criteria. Further, the clause should provide on how to respond should the relevant parliamentary committee reject the Minister's nomination. The Department submits that these issues were extensively deliberated on during the Portfolio Committee hearings. As a result, amendments were made to the published version of the Bill to accommodate the public comments, which are in line with the legal framework and protocol that governs the appointment of a head of a national department. Therefore, the Department submits that adequate consideration was provided to this clause. Further, the provision proposed will become cumbersome and the candidate will not be appointed within the envisaged timeframe provided in the legislation. So this proposal has also been noted.

There was a submission that there is no reason why the director of IPID should not be appointed by a process similar to that which applies to the majority of heads of Chapter Nine institutions, such as the Public Protector. The Department was of the view that there is no justification to apply the appointment processes of a head of a Chapter Nine institution to that of IPID. There are different criteria as the head of IPID is appointed in terms of the regulatory framework within government i.e., the Public Service Act, the regulations, and the executive protocol which regulates the appointment of a head of a national department.

There is also a proposal that the term, “the relevant parliamentary committee”, be amended to a committee of a National Assembly. The Department said the wording of the Bill is specific and there is no confusion as to which committee is being referred to. This reference is consistent throughout the Bill.

Clause 5: responsibilities of Executive Director

There was a submission that an important omission in law appears to require the NPA to make a decision within a reasonable time period, and importantly, to present the reasons why it has declined to prosecute. The decision not to prosecute may indeed be of great value to IPID with respect to its own performance and investigation standards. The Department submits that the current practice is that where the NPA refuses to prosecute, it does indeed provide reasons thereto and if IPID is not satisfied with the reasons, IPID is entitled to apply for a review of the NPA's decision. So if timeframes are prescribed in the bill, it will encroach on the NPA's legislative mandate.

Clause 6: remuneration and conditions of service of investigators

This section had originally been included to ensure that IPID investigators' salaries and benefits are on par with SAPS detectives and to ensure that IPID investigators do not leave their employment for better salary packages in SAPS. It is proposed that this provision should provide that salary be set by IPID within the allocated budget voted for by Parliament. The Department is of the view that the current version of the Bill addresses this issue sufficiently. IPID investigators are appointed and remunerated in terms of the Principal Act and not the Public Service Act. Therefore, the salaries are set by IPID and expropriated from the allocated budget vote by Parliament. The investigators therefore have a different compensation dispensation from the rest of the administrative employees and this puts them on par with the SAPS detectives. This is further entrenched in the savings clause towards the end of the Bill.

Functions and investigative powers

The submission was that this clause introduces measures to effectively cause persons to be subpoenaed to appear before the investigator or relevant provincial head. It is submitted that no penal provision is made for persons who without just cause fail to comply with a directive of an investigator despite proper service of the subpoena. It was therefore proposed that this section of the IPID Act be amended to specifically provide that any person who without just cause fails to comply with a directive direction or request under this section, is guilty of an offense and liable to a conviction on a conviction to a fine or imprisonment not exceeding two years.

The Department is of the view that the provision adequately captures offenses and penalties of the Principal Act, which makes provision for this concern raised.

Limitation of liability

it is proposed that the subsection be reworded as follows: “a member of the Directorate is not liable for a finding, point of view, recommendation or investigation made insofar as such is made or expressed in good faith and without gross negligence in performing a function in terms of this Act and submitted to Parliament, the National Prosecuting Authority or any other relevant authority”. With this in place, it is submitted that it becomes permissible for a determination to be undertaken on whether a report has been made in good faith, as there will be a greater measure of accountability in respect of all the content of the report finding or recommendation.

The Department has noted this proposal. However, the provision in the current version of the Bill is in line with other legislation, for example, section 5 (3) of the Public Prosecutor Act.

Type of matters to be investigated

It was proposed that section 218B be amended as follows: “Deaths as a result of the actions or omissions of members of the South African Police or a member of the Municipal Police Service, whether such a member was on or off duty”. The Department submits that the word “action” includes both commission or omission. Regulation provides for investigation of the death of a person in police custody, or the death of a person as a result of police. Therefore, this issue is adequately dealt with. It is also contained in the regulations well.

It was also submitted that by deleting the impunity in the police for firearm misuse, section 21C be retained in its current form and that the proposed submission 281G A not be incorporated. The Department's response is that the explanation provided during the Portfolio Committee hearings is that this would have a negative impact on deleting Section 281C remains. Discharge of a firearm would still be investigated by IPID where such discharge leads to a situation of torture, attempted murder, murder, or assault grievous bodily harm (GBH). It must also be appreciated that police officials will, when the need arises, discharge their firearms within the scope of their duties. The intention is therefore to align Section of the IPID Act and to focus only on instances where a police official has exceeded the bounds of reasonable use of force.

It is also not practical to investigate all cases when a firearm has been discharged. This diverts IPID from focusing on other priority investigations. And further, section 281C cases are negligible as opposed to investigations of attempted murder. This proposal has also been noted.

Concerns were raised by public comments regarding the deletion of the provision on investigation of complaints of assault. A proposal was made that assault be included as a new provision, that is G, or complaints of assault as currently provided. The distinction between assault common and assault with intent to cause GBH is often subjective and only based on visible injury made to retain the investigation of assault complaints by IPID. So the response by the Department is that most common assault cases arise from resisting arrest, and in some cases, it is clear that there is no evidence of physical assault.

The IPID Act provides for discretion upon receipt of a complaint caused to investigate any offense committed by a member of SAPS or the MPS, and where appropriate, refer such investigation to the national or provincial commissioner concerned. In terms of both the discharge of an official firearm and common assault statistics, IPID's Annual Report 2022/2023, revealed numbers for investigations for discharge of an official firearm, and 11 876 investigations for common assault. This constituted IPID’s investigators' workload. This would therefore leave little time for the investigation of the priority crimes chain.

It has been submitted that the investigation of allegations of torture be separated from assault and provided as a standalone provision, that is F. There is no legal or logical basis to reflect these as two sub-points in the legislation. The Department submits that the two concepts cannot be used interchangeably and therefore the rationale for two sub-paragraphs will remain.

Torture is defined in terms of the Prevention and Combating of Torture of Persons Act. The proposal is that this section be amended to include investigators by IPID on matters relating to systemic corruption or common assault. The Department submits that the door is not closed to the types of investigations that IPID can conduct. Section 7 (9) provides for this discretion by the ED. So this proposal has been noted.

There were proposals that the mandate of IPID be extended to include the monitoring of all police or in police custody. It argues that this will allow IPID to play its role as assigned to it by its participation in the national preventive mechanism established under South Africa's obligations following the ratification of the UN OPCAT. This was referred to earlier. So consideration should be consequently given to IPID as part of the NPM under OPCAT and its powers and functions in relation to the requirements under OPCAT to conduct regular monitoring visits to police stations.

Alternatively, serious consideration should be given to a lay visitor scheme to enhance transparency around police detention. The Department submits that this argument, as mentioned previously, was exhausted during the Portfolio Committee hearings, and these views have not changed. IPID conducts cell inspections and submits reports to the NPM and Parliament in their quarterly and annual reports. This matter was also explained in depth in the clause with disciplinary recommendations.

It was submitted proposed that the IPID Act should be amended to provide that the station commander, or any member of South African Police Service, a municipal manager, an executive head of a municipal police service, or any member of a municipal police service must, immediately after becoming aware, notify the Directorate of any matters referred to in section 281A to G, capital A, and section 282A to B. the Department submits that the IPID Act provides for a discretion by the ED upon receipt of a complaint to cause in the investigation of any offense allegedly committed by a member of SAPS or MPS and where appropriate, refer such investigation to the national or provincial commissioner concerned. So this has been adequately catered for in the Act as well as in the Bill.

A proposal was submitted for an amendment to the effect that SAPs may initiate disciplinary proceedings after the investigation of allegations has been finalised by the Directorate and, upon receipt of an investigation report from the Directorate, must be removed. It is argued that the use of the permissive word “may”, as opposed to the peremptory word “must”, could have an unintended consequence that SAPS simply don't initiate proceedings at all following the recommendation from IPID. The Department is of the view that the word “may” implies that SAPS does not have to wait for the outcome of IPID before they commence disciplinary proceedings. The discretion does not imply whether or not they may be disciplined or not. The discretion relates only to the timing of the commencement of the disciplinary proceedings.

There was a further proposal that a new clause should be inserted to the effect that “the IPID executive director may request the SAPS or the MPS to temporarily suspend disciplinary steps pending the outcome of IPID investigation in specific cases where the circumstance of the case warrants such suspension”. The Department is of the view that this is outside of the mandate of IPID, which is to make recommendations regarding disciplinary matters and does not step into the arena of the employer.

A proposal was received that asked for the IPID Act to be amended to ensure that new policing bodies, such as the Western Cape’s Law Enforcement Advancement Programme (LEAP) officers and Gauteng's crime prevention wardens, fall under the Directorate's authority. While this would increase the responsibility put on IPID and require additional funding, it would mean that all policing structures fall under the same authority, thereby reducing the risk of loopholes and exceptions. The Department submits that this proposal is at odds with the constitutional mandate of IPID as provided for in the Constitution.

It is recommended that the Select Committee on Security and Justice notes the comments and considers the responses by the Department.

See attached for full presentation

Discussion

Mr R Badenhorst (DA, Western Cape) wanted clarification on clause four. With regards to the presentation made, he said it was not clear what safeguards are in place to ensure the independence of the panel to be appointed by the Minister to assist in identifying suitably qualified candidates for directorship. It's not clear from the presentation what specific safeguards have been put in place. What measures are in place to ensure that the panel itself is going to be appropriately qualified? In his understanding, it looked as if the Minister could now just appoint anybody that he or she chooses to serve on the panel.

He further asked for clarity on the proposal made with regard to bodies, such as the Western Cape LEAP officers and the Gauteng Crime Prevention Wardens, to fall under the Directorate's authority. Why would this be at odds with the constitutional mandate of IPID?

The Chairperson noted that a common comment was that the election process for the IPID Executive Director should be open and transparent, especially with regard to the nomination panel. She sought more elaboration on why the Department felt this was adequately addressed in the Bill.

She then asked about the comments on the clause that relates to the discharge of the firearm, seeking more elaboration given the fact that the discharge of an official firearm by a police officer will be detained.

Mr Takalani Ramaru, Acting Secretary of Police, responded to the question on clause four, which talks about the safeguards in terms of the panel. He said there is a protocol around the appointment of heads of departments. There are also guidelines in terms of public service regulations and even the Public Service Act, which prescribes how the panel should be appointed. So it's not just a matter of the Minister deciding on his own to appoint anyone, but there are specific guidelines that have been set down that he needs to follow.

Adv Bell agreed that the Department is guided by the legal framework that deals with the appointment of a head of a national department. And it spells out who comprises the panel. That would also cover the qualification aspect of it because there are Ministers and Deputy Ministers and also a Director-General that would also be on the panel.

With regards to the LEAP members and the Gauteng members she mentioned were at odds with the Constitution, she elaborated that the Constitution says that on receipt of a complaint lodged by a provincial executive, an independent police complaints body established by national legislation must investigate any alleged misconduct or offense committed by a member of the police service in the province. So members of the SAPS and MPS. So in that light then, the LEAP and the Gauteng members that have been appointed do not fall under the definition of the South African Police Service or the MPS. So this is why the Department said it would be at odds with the Constitution.

With regards to the discharge of the firearm, the statistics were provided in the presentation and the Department said that the police are within their course of the scope of their duty to fire and discharge a firearm. But that also would be investigated when it becomes a murder or attempted murder to see whether or not they have exceeded the boundaries of what is proposed in the legislation. Statistics were also given regarding the discharge of an official firearm, as well as common assault, which were reported in IPID’s Annual Report 2022/23. This would leave IPID with little time for its investigations for priority crimes and also distracts IPID from actually carrying out investigations for priority crimes because they are looking at investigation, investigating matters of an official discharging of a firearm.

Mr Badenhorst followed up on his question with regards to the LEAP officers and the Gauteng security services or whatever they're called. He heard reference to the Constitution but there is a subsection referring to municipal police services which is not at odds. He asked for more clarity on this.

Adv Bell replied that the SAPS Act defines what a metro police officer is and what a South African police officer is – the LEAP and Gauteng security officers do not fall under that definition.

The Chairperson said this is still a process and the Committee will continue to deliberate on the matters of this Bill and the responses in the next meeting.

She thanked the DM and the CSPS for their input into this process of processing the IPID Amendment Bill and for Members interacting with this process. The Committee will continue to deliberate on the Bill in its next meeting or subsequent meetings.

The meeting was adjourned.