Independent Complaints Directorate Report: briefing

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
22 September 1998
INDEPENDENT COMPLAINTS DIRECTORATE (ICD) REPORT: BRIEFING

Documents handed out:

Report of the Independent Complaints Directorate to the Parliamentary Portfolio Committee on Safety and Security, 19 May 1998(See appendix)

Representatives from the ICD included : Advocate N Melville, Executive Director of the ICD ; Mr M. Kekana, Chief Director - Monitoring & Development (Pretoria); R Saloojee, Regional Director (W. Cape); Ms R Harmse, Deputy Director (W. Cape)

Chairperson Molekane opened the meeting stating that many committee members were absent as they were on other committees that were addressing the Lesotho military crisis. Following those opening statements, Adv. Melville presented a report summary.

He raised key issues regarding the operation of the ICD. The ICD is responsible for investigating, in an impartial manner, civilian deaths occurring in police custody or as the result of police action. It is an organization that aims to help increase accountability and transparency of the South African Police Service (SAPS). ICD intends to reshape police attitudes about using fatal force. There is a persistent problem of police officers not heeding legal instructions for caring for people in custody. Adv. Melville reported that the ICD has received 2,949 complaints in 1998 in response to SAPS-related deaths. Although the Police Act requires an investigation of all deaths, such high fatality rates are time consuming to the ICD and their limited capacity impedes them from fulfilling this statutory obligation. They propose a preliminary inquiry to determine police fault and to decide whether a full investigation is necessary.

The ICD is looking at other ways of addressing its capacity problems. For example, they have prioritized a process of collating statistical information to avoid the typical reactionary approach. Specifically, the capacity problem is that the ICD can only afford to appoint 145 investigators, rather than the 540 personnel needed to handle the case load. It was recognized that these constraints relate to the financial predicament facing the entire government. In respect of the regional office obstacles, it was highlighted that the Public Works Department has not made provision for the ICD. It is therefore impossible to open offices in Pietersburg and Bloemfontein. There are temporary offices in Mafikeng, and support staff in Kimberley to service the whole of the Northern Cape. Efforts are being made in the Western Cape at incorporating dispute resolution techniques. They are also attempting relations courses in gender and race sensitivity, as well as investigating a commander course to handle legal and constitutional aspects. In closing, Mr. Kekana provided a brief explanation of some of the report statistics. It was emphasized that the report is still in draft form, thus there may be some amendments.

The Chairperson then opened the floor to the comments, questions and recommendations of the committee members

Mr P Mathebe (ANC): Is there cooperation between top police management and the ICD?
Response: In fact, there has been much resistance. There have been problems with the police’s interpretation of constitutional rights. Adv. Melville spoke to the Safety and Security Minister to enable the imposition of more regulatory rights so that the police would have to communicate with the ICD. Regarding several legal matters, there has been deadlock between the two parties wherein the ICD has had to resort to the constitutional court.

Mr A Woodington (ANC): Bearing in mind investigation lag time and other complaints including your lack of access to police data, you seem unable to present a national profile because you have decentralized your database. There are 158 people on your staff yet most are based at Headquarters; this is problematic and suggests that there are inconsistencies in efficiency and structure within the ICD.
Response: Administration has been centralized for cost effectiveness but there are plans to devolve additional powers to workers at regional levels. There are provinces where there is no ICD presence which must be centrally controlled. Employing monitors as part of ICD structure has allowed for cases to be examined all over the nation. In terms of the national picture, the ICD research component aims to analyze trends so that recommendations can be made for the entire country. A matrix system is in use as a coordinating structure for investigations and administration. Moreover, it is a challenge to get high-grade information from offices currently in a transitional stage (i.e.: those presently being established). In addition, a central audit system is being set up to gather accurate statistics.

Mathebe: How has the ICD focused on a vision of transforming the SAPS?
Response: By making inroads to show police that they must be accountable in respect of misconduct, ICD makes an impact because police know that they will be reported for their violations. ICD presence is sufficiently known although there are certain units that are engaged in unacceptable behavior. In responding to complaints, and through monitoring and development, the ICD works to identify problems so that solutions are created with the endorsement of the Minister. Further, in the Western Cape, ICD offers workshops with police management and communities about rights and conduct. A Directorate of Monitoring and Development has been established to focus on output for making good recommendations. Among other things, these efforts are facilitating transformation.

Col N Ramaremisa (NP): Explain Annexure A in report.
Response: Complaints are classified in five groups according to priority:
deaths in custody/police action
cases referred by the Minister/provincial MEC
serious criminal offenses
minor criminal offenses/contravention of police disciplinary code
cases brought to the ICD but not in their jurisdiction -- referred elsewhere

Mr V Ndlovu (IFP): On the issue of structure of personnel, how do you recommend that the budget reductions are dealt with?
Mr Ndlovu continued by recommending that until the ICD establishes itself positively on the ground, the statistics should be carefully compiled because they show the appearance of failure to cope with budgetary problems and the problem of charging the police.
Response: The ICD will need a certain critical mass to make a positive impact. Additional budget cuts will have a significantly negative impact on the function of the organization. It is agreed that ICD should find a way of showing its results to best effect, yet it will always be difficult to quantify positive results.

Mathebe: What determines your decision to refer an investigation to the SAPS?
Response: To some extent that is predetermined by a classification of cases. Also, referrals relate to the ICD’s inability to actually get on the ground. In these cases, ICD either supervises an investigation using police personnel wherein their role is to ensure the efficacy of the investigation. ICD also refers back to the police when they receive complaints about their services.

Woodington: You say that your impact is being felt yet there has been an increase in the number of cases that have to be covered by us. On the other hand, your objective was to change the culture of the police from that of an abusive organization. In light of this contradiction, is the ICD project a success?
Response: There has been difficulty in getting accurate figures for gauging success. As ICD increases its presence in the provinces, there will be more complaints coming forward because as yet ICD only attempts to deal with a portion of the 27,000 complaints received by the SAPS. The structure of the Police Act and relevant resources has meant that the mechanisms for effectively carrying out investigations are not in place.

Mr D Gibson (DP): Based on the statistics, it is not clear whether you need more staff or whether people need to work harder.
Response: There is concern that ICD needs to maximize its output. However, with new cases always incoming, old ones pile up. A new database and training in case management will help in assessing the extent of investigation that is necessary.

Gibson: Give more details about the particular deaths being investigated.
Response: Some will be listed in the final draft document.

On a final note, many committee members present felt that ICD answers were incomplete. Chair Molekane suggested an informal follow-up.

Attendance:
ANC
M. Booi
M. George (apology)
N. Kondlo
R. Mabudafhasi
N. Mandela
P. Mathebe
R. Molekane (Chair)
R. Oliphant
N. Phakathi
G. Rockman
J. Sosibo
I. Vadi (apology)
A. Woodington
R. Zondo

NP
N. Ramaremisa
M. Ratsoma

IFP
E. Ferreira
V. Ndlovu

DP
D. Gibson

Appendix 1:

Independent Complaints Directorate: report of 19/05/98

Report of the Independent Complaints Directorate to the Parliamentary Committee on Safety and Security

19 May 1998

TABLE OF CONTENTS

1. INTRODUCTION

2. BACKGROUND

3. WORKSTUDY

4. OCCUPATIONAL CLASS OF CIVILIAN INVESTIGATORS

5. LOGISTICS AND ACCOMMODATION

6. STANDARD OPERATING PROCEDURES

7. RECRUITMENT AND DEVELOPMENT OF STAFF

8. MANAGEMENT AND OPERATIONS

9. RELATIONS WITH STAKEHOLDERS

10. BUDGET 1997/1998 AND 1998/1999

11. PLANS FOR THE FINANCIAL YEAR 1998/99 ICD's STATEGIC

PLAN

12. PROVINCIAL OFFICES

13. BUDGET AND EXPENDITURE

REPORT OF THE INDEPENDENT COMPLAINTS DIRECTORATE TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON SAFETY AND SECURITY

19 MAY 1998

1. INTRODUCTION

Internationally the emergence of civilian oversight or review of the investigation of complaints against police was spurred by the deterioration of police community relations and a lack of faith in internal police complaints handling mechanisms (Tammy Landau Public Complaints Against the Police (1994) page 4)

In South Africa, similar factors, albeit of a more severe nature, were and still are present.

Pressures for greater accountability of the police were part of the thrust towards the democratization of South Africa. These culminated in Section 222 of the Interim Constitution (Act 200 of 1993), which required the establishment of the Independent Complaints Directorate to ensure that complaints against the police are investigated properly.

According to David Landa and Colleen Lewis ((1997) 2 International Connection page 5) Governments must give police oversight bodies "the powers, range of functions and resources necessary to allow them to adequately perform their task."

They warn that to do otherwise is to "hoodwink the public into believing the police are being held accountable for their actions when they are not". Gabriel Chikes of the Civilian Complaints Review Board, Washington DC stated that: "if people have confidence that there will be an effective and expeditious civilian review process, they will not feel a great need to file a (civil) suit. Where the amount a city budget exceeds the (review body's) budget, civilian review becomes a strong dollar and cents arguments" (as cited in New York Civil Union Foundation: Civilian Review of Policing": A Case Study Report (1993)34)

During 1996 civil claims against the SAPS amounted to R409,6 million (Pretoria News 20 March 1997. During the 15 month period ending July 1996, the SAPS paid out R66 million in civil claims (The Star 21 January 1997).

The establishment of the Independent Complaints Directorate (ICD) has been a difficult process, with little guidance and many obstacles. The pressures on us to start operating were such that we were called upon to conduct investigations, and did so, before we had appointed any investigators or had any operating procedures established. We were queried about the number of convictions which had resulted from our investigations in our first month of operations.

Contrast this with what we were told by international trainers who recently conducted four weeks of training for our investigators: The police services that they come from would not consider putting a new recruit on the streets within 18 months of having joined the service.

Before allowing my colleagues to address you on their areas of responsibility, I wish to point out that we can only do that which is possible, with the resources made available to us. If we are expected to investigate all allegations of police misconduct, some 30 000 per annum, we would need 350 investigators alone. If we had used the information supplied to us by the Canadian Special Investigation Unit, that the average investigation of a police related death takes 30 working days, the number would be much higher, considering the 737 police related death notifications we received in our first year of operations.

I would like to quote from the report of one of the above-mentioned trainers : "In spite of these obstacles, the work performed by the ICD is of a high quality and is better than should be expected in an agency less than one year old. The ICD should be proud of its accomplishments. With continued effort, training and experience the ICD will become a truly fine investigative component of South African Law Enforcement and can become a model agency for the African continent and the entire free world."

2. BACKGROUND

The Independent Complaints Directorate (ICD) is now in the second phase of the three-year process of its establishment as a department. The process of establishing the ICD as a new government department, simultaneously conducting investigations and generally dealing with complaints from the public as part of the delivery, called for a carefully worked out plan to be implemented in phases. The process began in 1997 with an indication in last year's report of the substantial changes that need to be made during the 1997/98 financial period.

Last year it was pointed out that there were two phases to the budget to be discussed. The first budget for the ICD in respect of 1997/98 was in the form of an advance of R1 500 000 obtained by the South African Police Services (SAPS) from State Expenditure to begin the process of establishing the ICD. The expenditure was controlled by the SAPS and they undertook on the 14th April 1997 to report to the ICD and this portfolio committee, as to how the allocation was used.

After various requests from the ICD to SAPS, we were advised that the ICD used R610 213 of the advance. However, to date no report has reached the ICD, in respect of the saving of R889 000.

The second provisional budget of R15 491 000, iro. 1997/98 also prepared by the SAPS, was presented to this committee on 14 April 1997. The ICD, on that occasion, indicated that the said budget was inadequate to start a government department, i.e. to carry both the capital expenditure and recurrent expenditure necessary for delivery. The ICD also gave notice of the fact that the said budget was not based on a workstudy investigation and did not address the statutory requirements regarding ICD mandate. It needed restructuring and revision.

The problematic areas which emerged as challenges for the ICD were:

(1) Conducting a proper workstudy for establishment and structuring of the ICD as a new government department;

(2) Establishing a new occupational class of civilian investigators in the Personnel Administration Standard (PAS);

(3) Identifying appropriate office locations and accommodation, furniture and equipment;

(4) Developing a system of rules and procedures regarding operations as required by law;

(5) Recruitment and development of staff;

(6) Commencing with management systems in regard to proper financial and human resource management, as well as dealing with the complaints reported;

(7) Introducing the ICD to relevant stakeholders and developing agreements regarding operational procedures. The stakeholders in this case includes the SAPS, Attorney-General's Office, Public Protector, Human Rights Commission and NGO; and

(8) Developing a proper ICD budget for 1998/99 which takes off from the restructured provisional budget of 1997/98, prepared by the SAPS.

We are happy to report that in spite of the obstacles which confronted the ICD along the way, progress has been made in addressing the issues referred to in the previous paragraph. The issues listed in the previous paragraph were addressed as follows:

3. WORKSTUDY

The ICD enlisted the support of the Department of Public Service and Administration (DPSA) to conduct a proper workstudy. The DPSA had to consult experts from abroad, in countries where such institutions exist. The workstudy was completed in December 1997 and resulted in the following structure for ICD:

1. Components, viz. Investigations, Registry and Monitoring, Administration.

2. The total recommended staff of all to be phased-in over a period of 3 years, starting this year.

4. OCCUPATIONAL CLASS OF CIVILIAN INVESTIGATORS

Again with the assistance of the DPSA, a new occupational class of civilian investigators was introduced in the Personnel Administration Standard (PAS). The investigators are ranked as follows:

Investigator equivalent of Sergeant in SAPS

Senior Investigator equivalent of Inspector in SAPS

Principal Investigator equivalent of Captain in SAPS

Assistant Director Investigations

Deputy Director Investigations

Director Investigations

Chief Director Investigations

The employment conditions and benefits of these investigators are similar to those applicable to the South Africa Police Services. Due to budget limitations, we could not offer payment for some of these benefits.

5. LOGISTICS AND ACCOMMODATION

Like most processes, that of acquiring accommodation and furniture was delayed as a result of the pending workstudy to determine staffing needs and the processes within the Department of Public Works regarding tender procedures.

We have nevertheless acquired some furniture, administration and investigative equipment and motor vehicles, details of which appear in the budget report.

The head office's accommodation is pending on the signing of the lease rental and transfer of funds as we are advised that Department of Public Works will not be able to pay for the lease. We are now obliged to employ an amount that we had not budgeted for in regard to the Head Office and Regional Offices lease rentals.

6. STANDARD OPERATING PROCEDURES

As required by statute (Section 53 (7) of the South African Police Act 68 of 1995) we have begun a process of developing Standard Operating Procedures to guide our functions and operations. These procedures will be referred to the Minister for his consideration and approval as part of the consultative process required by the Act.

7. RECRUITMENT AND DEVELOPMENT OF STAFF

Based on the workstudy report and posts allocated to the ICD by the DPSA, the following staff was recruited during the 1997/98 period:

* See Annexure A.

We regret the loss of the following members of the staff:

5.1 Mr Pride Ndlovu, Deputy Director: Communications, who died with his wife tragically in a car accident.

5.2 Mr S. Maile, Assistant Director: Registry, who resigned.

5.3 Adv. T. NIqobi, Assistant Director: Registry, who resigned.

The ICD experienced delays in some instances in the process of appointing personnel. In terms of the Act, the Executive Director is required to consult the Minister prior to appointments. The process of consulting the Minister on this process and other matters is cumbersome as correspondence to the Minister has to be routed through the Secretariat. Basically, we report to the Minister via the Secretariat.

We have started with the process of training our personnel. The investigators were recently provided with training by the International Criminal Investigative Training Assistance Program (ICITAP), attached to the United States Department of Justice.

The training was conducted in-service over a period of 3 months. Five experienced training instructors from the United States were assigned to the various ICD regions to work with ICD investigators as part of the in-house training. Certificates were awarded at the end of this training.

The South African Management Development Institute (SAMDI) is also providing training to different categories of our personnel.

8. MANAGEMENT AND OPERATIONS

One of the first functions we had to perform at the commencement of the ICD operations was to establish management systems.

We have succeeded in establishing the PERSAL, EMS and Human Resource component as administration backup. Our Information Technology unit is delayed in taking off due to the pending accommodation. The computer network and data-base can only be installed after the office accommodation problem has been resolved.

Simultaneous with the process of establishing the new department, we received case reports and complaints and conducted investigations in most of these. Some of the investigations have been finalized whilst others are nearing completion. The statistics relating to these complaints are attached to this report. See Annexure B.

The investigation and monitoring functions operated under severe constraints. As stated earlier, the civil service had no posts available for civilian investigators. The creation of this PAS became a reality only in July 1997 and the first investigator posts were filled in September 1997.

Prior to that the ICD utilized, as its investigative staff, members of the SAPS who were transferred on loan to the ICD. We had to pay the SAPS the expenditure relating to these services.

On assuming duty, the investigators were confronted with a problem of lack of investigative equipment, motor vehicles and other logistics, as a result of the limitation in the budget. That problem still persists. Presently the 45 investigators have to cover the whole country in executing their functions. The ratio is disproportionate, considering that the SAPS personnel is approximately 140 000. Some cases require a bigger team of investigators, which the ICD staff cannot afford.

There were difficulties encountered regarding co-operation from the Police in terms of notifying the ICD timeously, if at all, of incidents of death in police custody or as a result of police action. It appeared that the agreements reached with top management did not filter down to the operational level.

To complicate matters even further, our past practical experience in conducting investigations, or the monitoring of matters referred to the SAPS for investigation, already indicated a degree of ineffectiveness of such investigations or monitoring on the part of the ICD due to the lack of necessary statutory powers to enable effective and efficient conducting of such investigations or monitoring functions.

In this regard, however, we are in a process of consulting with the Minister with a view to alleviating this problem and our Director: Legal Services is serving on the Minister's committee for drafting a new SAPS Bill. It must also be emphasized that the need of the ICD having its own independent legislation and not falling under the same Ministry as the SAPS are issues which may need to be considered.

9. RELATIONS WITH STAKEHOLDERS

The ICD has started a program of meeting with all stakeholders to explain its process and to arrive at some operational agreements.

In January 1998 a meeting was held with the SAPS to reach an understanding regarding operational problems that were experienced by both sides. This meeting contributed towards alleviating some of the problems.

Meetings were also held with Non-Governmental Organizations, the Attorney-General's Office in Pretoria, the Human Rights Commission, Police Unions, Provincial MEC's and Portfolio Committees in the various Provincial Legislatures.

All these meetings were to varying extents fruitful and working relationships are gradually developing.

10. BUDGET 1997/98 AND 1998/99

In consultation with the Departments of State Expenditure and Public Service and Administration, we restructured the budget to ensure that it become relevant to areas of priority as provided for in terms of the Act. This restructuring of the budget was made within the context of a three-year plan which maps out the establishment of the ICD.

The budget that is now before this committee takes off from the 1997/98 restructured budget. The details of the budget will be presented by my colleague, our Director of Finance Mr Eddie Jacobs.

11. PLANS FOR THE FINANCIAL YEAR 1998/99 ICD'S STRATEGIC PLAN

The ICD has started a process of preparing its strategic plan with the assistance of the South African Management Development Institute (SAMDI).

We were able, through this process, to work out our vision as well as the mission statement, corporate plan, business plans and operational plan. This plan is drafted within the context of the new Public Service Regulations.

The plan is presently in draft and has been forwarded to the Minister for his input and will then be shared with this portfolio committee.

Flowing from this plan, clear performance indicators have been worked out which will then enable the ICD to finalize performance contracts for all personnel as envisaged by the new Public Service Regulations, the policies on affirmative action, and best management practices.

The budget and structure that will be presented here this morning, conforms to this strategic plan.

12. PROVINCIAL OFFICES

12.1 BACKGROUND

With the vast geographical area of South Africa, the Independent Complaints Directorate (ICD) has to operate in, it becomes an impossibility to think of an effective administration of all functions at the centre without decentralisation of some. In terms of the SAPS Act, Act 65 of 1995 - Chapter 10, the ICD must have a presence in all nine provinces. Due to budgetary constraints, however, the bulk of administrative work will be performed in the National Office. Contrary to normal standards, the ICD is not in a position, at this stage, to decentralize administrative functions.

This is a progressive process dependent on the development of necessary capacity

at the service delivery front of the ICD and the availability of funds. The Provincial Offices serves as execution agencies of the programmes of the National branches of the Department.

12.2 ESTABLISHMENT AND FUNCTIONING OF PROVINCIAL OFFICES

In the course of establishing the Provincial Offices, all role-players were identified and consulted. The offices have been established in all the provincial capitals and became operational on the following dates :-

· Gauteng: 01 April 1997

· Kwa7ulu Natal: 01 April 1997

· Western Cape: 01 April 1997

· Northern Province: 01 January 1998

New provincial offices will be opened in the 1998/99 financial year in the following areas and the envisaged dates of becoming operational are as follows :-

· Eastern Cape: 01 June 1998

· Northern West: 01 July 1998

· Northern Cape: 01 October 1998

· Free State: 01 October 1998

· Mpumalanga: 01 April 1999

12.3 STAFF PROVISIONING

As was mentioned in paragraph 1, the staffing process cannot be completed due to budgetary constraints. The core function of the ICD is presented in the staffing process. However, this is far from the ideal situation and the impact of the ICD can only become effective the moment a reasonable level of staffing has been achieved.

13. BUDGET AND EXPENDITURE

13.1 THE 1997/98 BUDGET AND EXPENDITURE

The 1997/98 original budget was R15 491 000 and an additional amount of R20 000 was suspended from the SAPS budget and transferred to ICD's budget to compensate for audit fees. The adjusted budget was therefore 15 511 000.

The total provisional expenditure on the above budget amounts to R 14 495 000, which Ieaves a balance of R 1 016 000 as at 30 April 1998. This is subject to change due to the fact that our books are open for three months to take care of other entries and possible adjustments and corrections. Dept of State Expenditure has been requested to roll over an amount of R 1 463 000.

A fall analysis of expenditure against the budget is displayed on the table marked Annexure A. This table gives a breakdown of expenditure according to standard items.

13.2 THE THREE YEAR MTEF BUDGETS

The Department has been allocated budgets for the 1998/99. 1999/2000 and 2000/2001 financial years in terms of the Medium Term Expenditure Framework as follows:-

· 1998/99: R27 760 000

· 1999/2000: R24 566 000

· 2000/2001: R25 483 000

The above scenario reveals the fact that the budget is projected to decrease by 12% in the 1999/200 financial year and increase by 4% in the 2000/2001 financial year. When we take into consideration that the ICD is a new department and still in the process of establishing itself and that a total personnel structure of 531 was approved by the Department of Public Service and Administration during 1997, a decrease in a budget which can hardly sustain a personnel structure of 150 members is unthinkable if the ICD achieve its mandate in terms of Act 68 of 1995.

13.3 THE 1998/99 BUDGET ALLOCATION

The Department has been allocated a budget of R27 760 000 for the 1998/99 financial year. This shows an increase of R 12 269 000 from the 1997/98 financial years budget of R15 491 000. This might appear as a huge increase, but we must consider that the ICD, as a new government department, is still establishing itself.

The Department of Public Works informed the ICD during March 1998 that it must cover its own expenditure for accommodation for the 1998/99 and 1999/2000 financial years. This was not known when the budget for the 1998/99 financial year was drafted and presented to the Department of State Expenditure. This will seriously affect the operations and efficiency of the ICD. The total amount of funds to be transferred to the Department of Public Works is R3.6 million and this represents approximately 13 % of the total allocation to the ICD.

The document "Vote 20" gives an exposition of the budget as stated in the printers proof and the presentation is according to the standard items and economic classification.(ANNEXURE B)

The economic classification of the budget reveals the following:

· Current: R24 223 000

· Capital: R 3 537 000

Total: R27 760 000

[Ed note: Annexures A, B, C have not been included]