Independent Complaints Directorate Annual Report: briefing; Protection of Constitutional Democracy Against Terrorist and Related

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Police

05 November 2004
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Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE

SAFETY AND SECURITY PORTFOLIO COMMITTEE
5 November 2004
Independent Complaints Directorate
ANNUAL REPORT: BRIEFING; PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES BILL: ADOPTION

Chairperson:
Ms M Sotyu (ANC)

Documents handed out:
Independent Complaints Directorate presentation
Updated Bill reflecting the NCOP amendments [B 12B - 2003 (Reprint)]
Independent Complaints Directorate Annual Report (see http://www.icd.gov.za )

SUMMARY
The Independent Complaints Directorate (ICD) briefed the Committee on its Annual Report and Financial Statements, highlighting some of its challenges and successes. Much discussion had ensued over the numbers of deaths that had occurred in police custody and the recurring problem of the ICD being unable to fill its staff vacancies.

The Committee was also briefed on the NCOP's proposed amendments to the Protection of Constitutional Democracy Against Terrorist and Related Activities Bill [B 12B - 2003 (Reprint)]. The Committee effected a further amendment to sub-clause 12(4), relating to the enforcement of clause 12 and the publication of directives by the National Commissioner. The Bill was adopted as amended.

MINUTES

Independent Complaints Directorate briefing
The ICD delegation was comprised of Ms E Verster, Acting Executive Director, Mr E Valoyi, Mr S Mahlangu and Mr S Mabona. Ms Verster highlighted some of their challenges, the most prominent being that the number of deaths reported to the ICD, and the number of complaints received about members of the municipal police services, had increased. However daunting its workload, the ICD engaged in activities to 'multiskill' its members and to prioritise tasks. Co-operation with the SAPS was improving.

Mr Valoyi provided the Committee with an overview of the administrative framework of the ICD and provided details on its staff complement, turnover and leave. Specific mention was also made of the ICD's service delivery achievements and challenges such as filling vacancies. Mr Mahlangu gave the Committee a breakdown of figures for the investigation of complaints. The overall number of complaints received by the ICD had increased by 32.9% from the previous financial year. The ICD had improved its service delivery in that the registration of new cases were now done within 24 hours, and there was a greater attendance of its members at crime scenes. Ms Verster concluded the briefing with a factual account of the ICD's finances. A total of R37 043 million had been appropriated to the ICD. Total expenditure amounted to about R36 991 million - that meant that a surplus of R52 000 would be returned to state coffers. Huge expenses on upgrading the ICD's accounting system and increased spending on administrative costs, accounted for much of the expenditure. Ms Verster noted that a donation of R300 000 had also been received from the European Union (EU) to fund an international conference on the policing oversight in Africa.

Discussion
Adv A Gaum (DA) felt that the ICD's average leave per person per year was too high. He asked what actions had been taken to address the ICD's high vacancy rate. It was also asked why there had been a sharp rise in cases reported. Was it a question of more problems, or was awareness of the ICD increasing?

Mr Valoyi noted that the average vacancy rate for government was 10%, whereas the ICD's was lower at 9.6%. Bad working conditions were not the reason for the high vacancy rate. Mr Mahlangu noted that the sharp rise in complaints received was largely due to a successful awareness campaign about their role.

Mr V Ndlovu (IFP) commented that the ICD had a recurring problem each year with posts remaining vacant. He asked why there were so many deaths at the hands of the police. Had the police contravened Section 49 of the Criminal Procedure Act (CPA) by using excessive force in making arrests? The Chairperson added her concern over the increase in such deaths.

Mr Mahlangu referred to the Annual Report and said that 47% of deaths at the hands of the police had occurred while trying to arrest perpetrators at crime scenes. 29% of the deaths had occurred at hospitals and clinics. The police had been 'cleared' for most of the killings, as these were not negligent nature nor intentional. There had however been some instances where excessive force had been used.

Mr E Xolo (ANC) asked how members of the ICD felt about their working conditions. Mr Valoyi said that the issues were being addressed to reduce the grievances.

Ms J Sosibo (ANC) asked about the complaint regarding the increase in the numbers of SAPS members, whereas the ICD staff complement remained the same. She also asked about the funds the RDP Fund had held back, that should have been allocated to the ICD.

Ms Verster explained that as SAPS numbers increased, so did the number of complaints received by the ICD. The ICD however had to cope with the increased workload with its existing staff. The European Union (EU) had required funds to be held back until such time that financial statements had been received from the Attorney-General. The funds had been kept in the RDP Fund, but had subsequently been released.

Ms A Van Wyk (ANC) asked for the definitions of high profile and sensitive cases. She asked whether these cases should receive the same attention as any other.

Mr Mahlangu said that the ICD had the same service delivery standards for all cases. He however noted that certain cases received much media coverage, and hence the public expectations of the ICD were greater.

Mr A Maziya (ANC) referred to the conference that had been partly sponsored by the EU, and asked whether the ICD had foreseen the rest of the expense in its budgets. He also asked why delays had been experienced in the appointment of personnel, given the high vacancy rate. The Chairperson asked whether it was correct that candidates often turned down the ICD's job offers.

Ms Verster said that hosting the conference had cost a total of R800 000. The EU had donated R500 000 and the balance of R300 000 had been paid by the ICD. Mr Valoyi noted that possible candidates were vetted by the National Intelligence Agency (NIA). The process was however time-consuming, and huge delays were experienced. Mr Valoyi said that due to these delays, candidates often accepted other job offers.

Protection of Constitutional Democracy Against Terrorist and Related Activities Bill briefing
Adv P Jacobs presented the Committee with the proposed amendments by the NCOP. The amendments were as follows:

Chapter 1: Definitions
The definition of "property" had been changed. The proposed definition had much less detail and was in line with the definition of "property" in the Financial Intelligence Act.

Under the definition of "terrorist and related activities", the NCOP had proposed to omit the current sub-clause (3) and to substitute it with a new clause.

Ms Van Wyk was concerned over how the new sub-clause dealt with the issue of essential services.

Adv Jacobs said that where industrial action was taken by emergency services and there was no threat to person or property, it would not be regarded as a terrorist activity. If harm was contemplated, the other provisions of the definition of "terrorist activity "would apply.

In clause 1(xxv)(6), to omit the existing paragraph (a) and to substitute it with a new (a). The new paragraph would be in line with the Financial Intelligence Act.

Chapter 2, Part 3: Other offenses

Clause 12: Duty to report presence of person suspected of intending to commit or having committed an offence and failure to so report

Clause 12(1)(b)
The NCOP had proposed, after the word "report", to insert "as reasonably possible". It was in line with the Financial Intelligence Act.

Adv Gaum commented that the provision allowed time limits to set on a case by case basis. The amendment made it much clearer on the requirement of reporting.

Clause 12(4)

The NCOP had proposed to insert after sub-clause (4), additional sub-clauses (5), (6), (7) and (8). The change made the provision in line with the Financial Intelligence Act.

Clause 17: Evidential matters and exclusions

Clause 17(6)
The NCOP had proposed to omit the existing sub-clause (6) and to substitute it with a new sub-clause (6).

Clause 17(7)
The NCOP had proposed to insert after sub-clause (6), additional sub-clauses (7), (8) and (9). The amendment was in line with the Financial Intelligence Act.

Ms Van Wyk asked whether the amendment would impact upon the success of SAPS investigations.

Adv Jacobs noted that the provision had been drafted to encourage the reporting of possible terrorist activities. The objective of the provision would not be achieved if the public did not report.

Chapter 6: General Provisions

Clause 27: Short title and commencement

Clause 27(28):
The NCOP had proposed to omit clause 28, and to substitute it with a new clause 28.

Ms Van Wyk was concerned about the provision in the new sub-clause 28(2) which provided for clause 12 to come into effect only three months after the rest of the Bill took effect. She noted that the obligation to report should exist from the outset of the Act's implementation. Adv Gaum agreed.

Adv Jacobs explained that the three-month delay had been provided for, in order to allow the National Commissioner to set directives. The same provision was provided for in the Anti-Corruption Bill.

Ms Van Wyk, Adv Gaum and Mr Ndlovu felt the three-month delay would to be too long. Adv Gaum proposed a seven-day period. The directives or guidelines could be worked on immediately and could be ready at the commencement of the Bill. Ms Van Wyk noted that the Bill could not compare with the Corruption Bill. She felt the current Bill's subject could be more "life-threatening and urgent". Ms Van Wyk proposed that the time frame in sub-clause 12(4) be amended and that clause 28 remained the same.

Mr Ndlovu proposed the deletion of "within three months of commencement of the Act" in sub-clause 12(4) and the insertion of "at the commencement of the Act". Ms Van Wyk seconded the proposal, and the Committee agreed.

The Committee adopted the Bill as amended.

The meeting was adjourned.

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