NPA A/B: adoption; IPID A/B: deliberation (with Deputy Ministers)

Meeting report

Opening remarks

The Chairperson said that this meeting was to deal with the adoption of the National Prosecuting Authority (NPA) Amendment Bill and to continue with the processing of the Independent Police Investigative Directorate (IPID) Amendment Bill.

Mr Gurshwyn Dixon, Committee Secretary, confirmed that there was a quorum for purposes of adopting the section 75 Bills.

The Chairperson welcomed Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, as well as Mr Cassel Mathale, Deputy Minister of Police, who were both in attendance.

NPA Amendment Bill [B29B-2023]

The Chairperson noted that the NPA Amendment Bill establishes the Investigating Directorate (ID) against corruption as a permanent entity within the office of the National Director of Public Prosecutions (NDPP). It also provides for the appointment and powers of investigators, their remuneration and conditions of service.

She recalled that in last week’s meeting, the Department of Justice and Constitutional Development responded to the four submissions received on the NPA Bill. The Department assured the Members that a broader review of legislation about the NPA will be conducted in the Seventh Parliament. The Department also clarified that the investigators will be appointed by the NPA. The NPA will employ capable, competent, qualified and knowledgeable investigators.

Ms A Maleka (ANC, Mpumalanga) moved for the adoption of the Bill; Mr T Dodovu (ANC, North West) seconded this.

The NPA Amendment Bill was duly adopted.

Committee Report on the NPA Amendment Bill

Mr Dixon read through the Committee’s Report. He noted that the NPA Amendment Bill was referred to the Committee on 5 December 2023. The NPA Amendment Bill seeks to:

• amend the NPA Act, 1998, so as to insert certain definitions;

• provide for the establishment of the ID against corruption, and its powers and functions;

• provide for the appointment of investigators in the ID against corruption;

• provide for the vetting of investigators, as well as the remuneration and conditions of service;

• establish a mechanism to deal with complaints of a serious nature pertaining to persons appointed at or assigned to an ID;

• establish the powers and functions of investigators;

• provide for transactional arrangements, and matters connected therewith.

The Committee invited stakeholders and interested persons to make written submissions. The Committee received four submissions from AfriForum, the Council for the Advancement of the South African Constitution (CASAC), Transnet and the Helen Suzman Foundation.

The Committee received a briefing on the Bill and the submissions received on 21 February 2024. On 6 March 2024, the Committee adopted the Bill as referred, without proposed amendments.

Ms Maleka moved for the adoption of the Committee’s Report; Ms M Bartlett (ANC, Northern Cape) seconded this.

The Chairperson emphasised the importance of the broader reforms that are required to address the concerns raised in respect of the NPA’s independence. She believed that the NPA Amendment Bill would strengthen the work of the NPA in ensuring that the public receives access to justice efficiently and effectively. The Bill will go a long way in formally establishing the ID against corruption.

Read: ATC240306: Report of the Select Committee on Security and Justice on the National Prosecuting Authority Amendment Bill [B 29B-2023] (National Assembly – S75), dated 6 March 2024

IPID Amendment Bill [B21B-2023]

The Chairperson said that the IPID Amendment Bill seeks to entrench the institutional and operational independence of IPID, as well as to make it explicitly clear that IPID must be independent and impartial. IPID must exercise its powers and functions without fear, favour or prejudice.

In last week’s meeting, the Committee received the Department of Police’s response to the public submissions that were made on the Bill. During deliberations, Members sought clarity on the safeguards that are in place to ensure the independence of the panel, as well as the qualifications of the panel members. The Department responded to the concerns and indicated that there are guidelines in terms of the Public Service Act and the regulations, which determines how this panel will be appointed.

Members also sought clarity on IPID’s response to the recommendation by Gun Free South Africa in respect of their suggestion that the IPID Act 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. In response, the Department indicated that this proposal is at odds with the constitutional mandate of IPID.

The Department provided statistics about the discharge of an official firearm. The Department explained that the police within the course and scope of their duties would discharge a firearm, but this would be investigated when it becomes a charge of murder or attempted murder. The investigation would determine whether they have exceeded the boundaries of what is proposed in section 49 of the Criminal Procedure Act.

Mr R Badenhorst (DA, Western Cape) said that the main objective of this Bill was to amend the IPID Act, to cure certain defective clauses contained therein, as it was declared unconstitutional in the judgement of McBride v Minister of Police and Another (“McBride judgement”). This is specifically about the better provision for IPID’s institutional and operational independence, and to ensure parliamentary oversight in the event of the Executive Director’s removal from office.

The DA believes that the lack of independence in the appointment of the Executive Director and the fact that the Minister still has significant powers in terms of the appointment, fails to achieve the entrenchment of IPID’s institutional and operational independence. It fails to make it expressly clear that IPID must be independent, impartial, and exercise its powers and functions without fear, favour or prejudice.

He said that the DA is of the view that the proposed Clause 3 of the Bill, which seeks to amend section 4 of the Act, does not expressly stipulate that IPID is to be independent of the South African Police Service (SAPS), as is provided for in the Act.

The proposed Clause 4 of the Bill, which seeks to amend section 6 of the Act, does not contain sufficient safeguards to guarantee the independence of the panel to be appointed by the Minister to assist in identifying suitably qualified candidates. Clause 4 also fails to ensure that the panel will be appropriately qualified. This implies that the Minister can essentially appoint whomever he chooses to the panel, which negates the whole purpose of the panel.

The proposed Clause 13 of the Bill seeks to amend section 23 of the Act to place the determination of IPID investigators’ conditions of service, salaries and allowances in the hands of the Minister. Although this will be in consultation with the Minister of Finance, the Act, as it stands, guarantees that investigators' conditions of service are on par with members appointed as detectives in SAPS. Removing this guarantee and conferring the responsibility for these determinations in the hands of the Minister, further undermines IPID’s independence and increases the risk of executive and political interference.

Mr Badenhorst added that there were a few other changes that the DA believed were done without valid reasons, such as the deletion of the provision on investigation of complaints of assault. The DA believed that this Bill should not be signed into law in its current form because it is going to fail the requirements of the McBride judgement.

Mr Dodovu thanked the Department and Deputy Minister for sharpening this process and providing the necessary information with respect to the IPID Amendment Bill. He said that it is quite clear that the thrust of Mr Badenhorst’s argument is that if the Bill is passed as it is, then IPID’s independence would come into question and the court might declare that the appointment process of the Executive Director is unconstitutional. He differed with Mr Badenhorst’s approach. Mr Dodovu explained that IPID is an independent body that specifically deals with the conduct of the members of SAPS and the Metropolitan Police Service (MPS). He believed that the IPID Amendment Bill has gone a long way to cure the defects which were identified by the Constitutional Court in the McBride judgement. As such, the Bill must be supported and come to its conclusion so that work can be done. The Bill has addressed all the concerns that have been raised to a great extent.

He explained that in government, a Minister comes from a particular political party, but this does not suggest that the Minister would not consider the necessary skills, expertise and qualifications of the members appointed to the panel. He believed that it is in the best interest of the country to ensure that people with the right expertise are chosen to work for the state, because the people that are appointed must serve the nation – they do not serve a particular political party. He believed that the IPID Amendment Bill sufficed.

The Chairperson invited the Department’s officials to comment on the issues that have been raised from a policy and technical perspective.

Deputy Minister Mathale said that the Department has taken note of what Mr Badenhorst said, but the Department are of the view that those issues have been addressed. He handed over to the officials from the Civilian Secretariat for Police Service (CSPS) to respond.

Adv Dawn Bell, Chief Director: Legislation, CSPS, said that Mr Dodovu had already covered most of what she was going to say. She explained that in terms of the independence and impartiality of IPID, the Act does implore each organ of state to assist the Directorate in maintaining its impartiality and to perform its functions effectively. The Minister will be guided by the legal framework on how appointments of national heads are made, in terms of the Public Service Act, the regulations, and the Executive Protocol 2020. Over the years, it has been a practice that the Minister has a panel which assists him with the shortlisting, interviews, nomination and recommendation to the parliamentary committee for confirmation or rejection of the candidate.

On the remuneration of investigators, Adv Bell said that Clause 22 is a safeguard to ensure that the conditions of service (including the remuneration and benefits that are payable to employees of IPID) before the commencement of these amendments to the principal Act are not less favourable upon the commencement of the Act. The salaries of the investigators are also taken out of IPID’s budget, so it is not just something that the Minister will decide on. The Minister would have to be guided by the National Treasury’s protocols and other pieces of legislation and guidelines.

Mr Badenhorst said that Mr Dodovu had eloquently explained exactly how cadre deployment will undermine the IPID Amendment Bill. He strongly believed that the Bill gave way too many powers to the Minister. He said that one has already seen what happens when Ministers have excessive powers and interfere with the appointment of panels and Executive Directors. He requested that the DA’s minority view be noted.

The Chairperson suggested that Mr Badenhorst present the issues concisely so that the DA’s minority view can be formalised, and for it to be clearly stated in the Committee’s Report.

Mr Badenhorst replied that he stood by the comments that he made earlier in the meeting. He informed the Chairperson that he had already emailed the DA’s views to the Committee Secretary.

Mr G Michalakis (DA, Free State) said that he did not think that it was procedurally appropriate for the Committee to consider the adoption of the IPID Amendment Bill and the Committee’s Report on the Bill in the same meeting as the final deliberations. He appealed that the consideration of the Bill and the Committee’s Report be postponed, as is the normal practice when considering Bills.

The Chairperson told Mr Michalakis that the Committee had previously dealt with deliberation and adoption within the same meeting. She noted that she had just received a notice from the Committee Secretary indicating that he had received Mr Badenhorst’s email. She said that considering that the adoption of the IPID Amendment Bill was indicated as a provisional agenda item for this meeting, there was no problem in dealing with the adoption in the next meeting. This will also allow Mr Badenhorst some time to relook at the issues he had raised so that he can convey the DA’s minority view more concisely.

Closing remarks

The Chairperson said that the Committee have exhausted the agenda items for today’s meeting. The Committee will deal with the adoption of the IPID Amendment Bill and the Committee’s Report on the Bill in the next meeting.

She thanked the Members and departmental officials.

The meeting was adjourned.