ATC081020: Report on South African Police Service Amendment Bill

Police

Report of the Portfolio Committee on Safety and Security on the South African Police Service Amendment Bill [B 30-2008] (National Assembly – sec 75), dated 20 October 2008:

 

The Portfolio Committee on Safety and Security, having considered the South African Police Service Amendment Bill [B 30-2008] (National Assembly – sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents a redraft of the Bill [B 30B-2008].

 

The Committee further reports as follows:

 

1. Introduction

 

1.1.             The South African Police Service (SAPS) Amendment Bill was referred to the Portfolio Committee on Safety and Security, which was required to confer with the Portfolio Committee on Justice and Constitutional Development. The National Prosecuting Authority Amendment Bill [B23-2008] was referred to the Portfolio Committee on Justice and Constitutional Development, which was required to confer with the Portfolio Committee on Safety and Security. As the two Bills are inter-related, the two committees worked together on both Bills.

 

1.2.             To make fuller sense of this report, it should be read with the report on the National Prosecuting Authority (NPA) Amendment Bill.

 

1. Public participation

 

2.1.             Although the SAPS Amendment Bill and the NPA Amendment Bill are section 75 Bills, the Committees decided that, in view of the importance of and public interest in the Bills, we should organise extensive public hearings, not just in the National Assembly, but the provinces as well, in co-operation with the NCOP Security and Constitutional Affairs Select Committee. The hearings were not just   on the Bills, but the proposed new integrated criminal justice system (CJS) as well. Over 7200 people participated in the hearings. The Committees spent at least 190 hours in full committee and sub-committee meetings on the Bills, not to mention the many hours spent in informal exchanges with a variety of stakeholders. 

 

2.2.             However, very few people commented on the proposed new CJS. The Committees propose to undertake further public hearings before the year is out on the new CJS and report back to the public on progress regarding what have come to be known as the “Scorpions Bills”. 

   

1. Visit to the DSO AND SAPS

 

3.1 The Committees also visited the Directorate of Special Operations (DSO) and the SAPS organised crime-fighting units to report on progress on the Bills, hear their views, and encourage them to co-operate in implementing the Bills and ensure that the new organised crime fighting unit to be located within the SAPS works effectively. The Committees appreciate the concerns of the DSO staff about moving into the new unit. The Committees feel that the DSO staff should not prejudge the new unit but give it a chance to develop. We suggested to the staff who are not keen to move to consider going into the unit for a year or so before making a final decision.

 

1. Processing the Bill

 

4.1                    The Parliamentary Research unit and Committee Content Advisor presented a comprehensive report on every submission received and the Committees went through the report fully.

 

4.2                    The Committees drew in two representatives each of NPA and SAPS, and two technical advisors from civil society organisations to assist in the processing of the Bills. We express our appreciation for their participation.

 

4.3                    The Bill is highly contested, and served to polarise the Portfolio Committees. The Committees decided to more clearly identify the issues of agreement, if any, and the precise nature of the differences. As part of this process, the Committees identified the broad principles or characteristics of an effective crime-fighting unit and the different models that can be based on these principles. These principles and models were set out in our report of 30 September and are summarised in sections 5 and 6 below.

 

4.4                    The SAPS Amendment Bill is not elegant or easy to read necessarily. The main reason for this is that the Bill is an amendment to an existing Act that was drafted over a decade ago and been written in a particular way that does not easily allow for a Bill like this to be inserted into it.  The Committee, as pointed out in section 7 below, believes that the entire SAPS Act needs to be overhauled.

 

4.5                    The Committee sought a balance between providing a firm framework and not being too prescriptive.  The finalisation of this Bill for now should be seen as part of a process of shaping a new effective organised crime-fighting unit. The new model will have to be reviewed in three years to consider what improvements, if any, are necessary. This is referred to in section 5.15 and is provided for in the Bill.   

 

1. Principles of an Effective Organised Crime-Fighting Unit (OCU)

 

5.1               Basically, the Committees agreed that the principles set out in this section would characterise an effective organised crime-fighting unit (OCU). However the Committees disagreed on which model based on these principles would be most effective.

 

5.2               MULTI-DISCIPLINARY APPROACH: For a variety of reasons, including the complex and sophisticated nature of organised crime, there is clearly a need for a multi-disciplinary approach. At least, the OCU should include participants from the SAPS, NPA, SARS, Home Affairs, FIC and the intelligence agencies. The differences are over what form and structure this should happen.

 

5.3               ROLE OF PROSECUTORS: The prosecutor should be involved with the investigators from the outset of an investigation. The differences are over how this should happen and the extent and form of its institutionalisation in legislation.

           

5.4               NEED FOR CRIME INTELLIGENCE: Crime intelligence is crucial to pursuing organised crime cases. Crime intelligence should not be conflated with broader intelligence not directly related to crime. The differences are over whether this intelligence capacity should be granted to the OCU or it should be empowered to get the intelligence from the SAPS and other intelligence agencies.

 

5.5               DEFINITION OF ORGANISED CRIME: There is a need to both define organised crime more specifically and provide a measure of flexibility for the Head of the OCU and Minister to add to the mandate through regulations/policy frameworks to be approved by parliament. The OCU should deal with serious organised crimes, serious economic crimes, serious cases of corruption, and high priority crime.

 

5.6               POWERS AND FUNCTIONS: Besides cases referred to the OCU by other agencies, the Head of the OCU should be able to initiate cases within a policy framework determined by the Minister and the OCU and approved by parliament. The powers and functions of the OCU must be spelt out very clearly.

 

5.7               MINISTER APPOINTS HEAD: The Minister should appoint the OCU Head, with parliament playing an appropriate role.

 

5.8               VETTING OF EMPLOYEES: Employees of the OCU should be appropriately vetted by the appropriate agencies, and there should be regular internal “integrity” monitoring of the staff. Corruption within the OCU structures must be tackled effectively.

 

5.9               NEED FOR EXECUTIVE MONITORING STRUCTURES: There has to be an effective Inter-Ministerial Committee that monitors the OCU and supports it to play its role within its legal mandate. There also needs to be a high-powered Inter-Departmental Committee to ensure necessary day-to-day co-ordination across departments.

 

5.10            NO POLITICAL INTERFERENCE: The OCU should be free from political interference.

 

5.11            NEED FOR COMPLAINTS MECHANISM: There needs to be a structure to deal with complaints from the public and any other source about the behaviour of the OCU or individuals working for it, partly as a safeguard against any political bias in the OCU.

 

5.12            FIGHT AGAINST POLICE CORRUPTION SHOULD NOT BE UNDERMINED: Whatever the specific powers and functions allocated to the OCU, the fight against police corruption should be strengthened.

 

5.13            NEED FOR MORE EFFECTIVE PARLIAMENTARY OVERSIGHT OF OCU: There is a vital need to ensure more effective parliamentary oversight of the OCU. The OCU Annual Report must be considered in an open sitting of the Portfolio Committee, but the OCU should also report to the Committee at least 3 other times a year, with these other briefings being either in open or closed sittings, as decided by the Committee after consultation with the OCU on the sensitivity of the issues to be considered at the briefings. Parliament should also play an appropriate role in, among other issues, the appointment of the OCU Head, additions to the mandate on organised crime and the policy framework for cases to be pursued.

 

5.14            ADEQUATE BUDGET AND RESOURCES: The OCU must be allocated the necessary budget and other resources to ensure that it can effectively combat organized crime.

 

5.15            TWO-PHASED APPROACH: There should be a two-phased approach to developing an effective OCU model. The model decided on now should be reviewed 3 years from the date of its implementation to see how it is working and to consider improvements to it, if necessary. The aim would obviously not be to overhaul the entire OCU, but to consider improvements on the model decided on now; in other words, the model decided on now must serve as a “building-block” for possible further improvements 3 years from the date of its implementation. Such a review would be necessary also to consider how the OCU fits into the new integrated criminal justice system that is being shaped.

 

1. Different Models of an Effective OCU

 

6.1               While there is broad agreement on the above principles, there is no agreement on which model, based on these principles, would most effectively combat organised crime.

 

6.2               There were 5 models proposed:

 

·         Model 1: Improved DSO

·         Model 2: Separate OCU answerable to the Minister of Safety and Security

·         Model 3: Proposed Directorate of Priority Crime Investigation (DPCI) in SAPS Amendment Bill

·         Model 4: Improved DPCI

·         Model 5: New Ministerial model

 

6.3               MODEL 1: Improved DSO: This model is based on the current DSO model, with improvements based mainly on some of the key recommendations of the Khampepe Commission. It is supported by the Democratic Alliance and African Christian Democratic Party (ACDP). The Freedom Front Plus (FF+) also supports it as its first choice, but also offers model 5 as a “compromise”.  Among the  key features of this model are:

 

·         LOCATION AND BUDGET: The OCU will remain located within the National Prosecuting Authority, while its budget allocation remains within the Vote of the Department of Justice and Constitutional Development as a sub-programme in the NPA.

·         POLITICAL RESPONSIBILITY: The recommendation of the Khampepe Commission that the Minister of Justice be accountable for prosecutors in the OCU while the Minister of Safety and Security be accountable for the OCU’s special investigators is not workable. The Minister of Justice and Constitutional Development will take political responsibility for the OCU and Chair the MCC. The Minister of Safety and Security will be the Deputy Chair of the MCC and receive regular reports on the investigators in the OCU.

·

·         MULTI-DISCLIPINARY APPROACH, WITH PROSECUTORS PART OF OCU AND OTHERS SECONDED: Prosecutors will be part of the OCU, just as with the current DSO, but the other participants (from SARS etc) will be seconded to the Unit.

·         INTELLIGENCE FUNCTION: The Unit will have a crime intelligence function and this must be provided for in the National Strategic Intelligence Act, 1994. In the exercise of its crime intelligence mandate, the Unit should be accountable to the Joint Standing Committee on Intelligence and the Inspector General of Intelligence, in terms of the Intelligence Services Oversight Act, 1994.

·         LEVEL AND APPOINTMENT OF HEAD: The Head of the DSO will be a Deputy National Director of Public Prosecutions appointed by the President after consultation with Minister of Justice and the National Director of Public Prosecutions (NDPP).

·         STRENGTHENED MINISTERIAL COORDINATING COMMITTEE (MCC): The MCC will consist of the relevant Ministers, including Justice, Safety and Security, Intelligence, Finance and Home Affairs. The Minister of Justice will Chair the MCC. It will perform the functions set out for it in section 31 of the National Prosecuting Authority Act. The MCC will meet at least 4 times a year and report to Parliament 4 times a year.

·         OPERATIONAL COORDINATING COMMITTEE (OCC): There will be an Inter-Departmental Operational Coordinating Committee (OCC) with an operational mandate that includes drafting the Unit’s strategic plan for approval by the MCC; overseeing the Unit’s day-to-day-operations; facilitating secondments; coordinating joint operations; coordinating crime intelligence; and facilitating the sharing of information. The OCC will consist of the Directors-Generals of the relevant departments or senior managers delegated by them with the authority to make decisions on their behalf. The delegation should be on a permanent basis to ensure continuity. The Justice Department representative will chair the OCC.

·         PARLIAMENTARY OVERSIGHT: Parliament will play a strong oversight role, receiving reports from the OCU at least four times a year. Its meetings with the OCU may be closed depending on the nature of the matters being discussed.

 

6.4               MODEL 2: SEPARATE OCU RESPONSIBLE TO THE MINISTER OF SAFETY AND SECURITY: This model is supported by the InkathaFreedom Party (IFP). Among its key features are:

 

·         LOCATION AND BUDGET: The Unit will be located within Ministry of Safety and Security, not SAPS, and its budget allocation will be within the Vote for Safety and Security, as a sub-programme in the Ministry.

·         POLITICAL RESPONSIBILITY: Ministerial responsibility for the Unit will lie with the Minister of Safety and Security.

·         MULTI-DISCIPLINARY APPROACH, WITH PROSECUTORS CO-LOCATED AND OTHERS SECONDED: The NPA will establish a Special Prosecutorial Directorate to work with investigators from the OCU on organised crime cases. These specialist prosecutors will be co-located – meaning they will be answerable to the NPA, even if they work with investigators and others in the OCU. Consideration needs to be given to the prosecutors who work with the investigators (investigating prosecutors) not taking the same cases to court; instead this should be done by other prosecutors (prosecuting prosecutors).  The other participants (from SARS etc) will be seconded to the OCU – meaning they will be operationally answerable to the OCU, even though they are ultimately accountable to the institution that seconded them. There will be legal and policy frameworks to ensure that the secondments are effectively implemented. Departments and other organisations will be required to build their capacity for secondments. Secondments will be compulsory in terms of legislation and policy frameworks.

·         INTELLIGENCE FUNCTION: The OCU will not have a separate crime intelligence function, but will draw on intelligence experts from the SAPS Crime Intelligence Unit and other intelligence agencies seconded to the OCU.

·         LEVEL AND APPOINTMENT OF HEAD: The Head of the Unit is to be appointed by the Minister, while Parliament (or the Board referred to below) plays a role to ensure that the appointment is transparent and credible.  

·         ROLE OF A BOARD: The Board will include government and non-government stakeholders. To some extent, the precise composition of the Board will be influenced by whether it undertakes a governance or integrity assurance role or possibly both. Should the Board be given an integrity assurance role, its composition would be largely made up of members from outside of government. The Board will be headed by a person from outside government, possibly a retired judge. Two possible roles for the Board are suggested:

o        The first is that of the normal role of a Board in a non-profit state entity (Schedule 3 of the PFMA), which includes some governance functions, as well as certain measures to prevent external interference in the Unit’s investigations.

o        The second envisages that the Board will play an integrity assurance role and that non-government board members will be key in this regard. This would include:

§         Dealing credibly with complaints against members of the Unit or complaints that the Unit has abused its powers or is being used for ulterior purposes.

§         Setting up mechanisms to ensure that sensitive cases have been properly investigated.

·         The Board will also play a role in ensuring more effective coordination.

 

6.5               MODEL 3: Proposed Directorate of Priority Crime Investigation (DPCI): This is the model set out in the SAPS Amendment Bill introduced to Parliament – and so there is no need to repeat it here. It is the model supported by the executive.

 

6.6               MODEL 4: Improved DPCI: This model is based on the model in the SAPS Amendment Bill, but with significant improvements. The original model in the Bill, it is held, does not provide for an effective OCU. This improved DPCI model is supported by the ANC. Its key features are set out in the final amended version of the SAPS Amendment Bill and will not be set out in great detail here. Some of its features, very briefly, as compared to the original proposals in the introduced version of the Bill, are:

 

·         The new unit will still be located within the SAPS but there is now a balance between it being independent and being a part of SAPS.

·         The Head of the Unit is appointed not as a Divisional Commissioner answerable to a National Deputy Commissioner but as a National Deputy Commissioner. The Head is appointed by the Minister and subject to Cabinet approval, as is the case with all senior managers in the public service.

·         The Head of the Unit can now initiate cases within a policy framework, instead of seeking the approval of the SAPS National Commissioner for every case (see section 17D (I) (a) )

·         There is much greater recognition of the complex and specialised nature of organised crime and the need therefore for a unit that is able to tackle such crime in a complex and specialised way. The definition of national priority offences, including organised crime, is clearer, and the multi-disciplinary approach and integrated methodology of the new unit is emphasised much more clearly (sections 17B, 17D and 17F). 

·         Provision is made for effective Cabinet Co-ordination (section 17I) and Inter-Departmental Co-ordination (section 17J).

·         Provision is made for effective Parliamentary oversight (section 17K).

·         Security screening and integrity measures applicable to employees of the new unit have been strengthened (17E).

·         There is now an independent complaints mechanism (17L).

·         The transitional mechanisms have been strengthened, though some of the aspects have been moved to the NPA Amendment Bill because they relate to the personnel issues and affect the NPA as the current employer.

·         The new model will have to be reviewed within 3 years (see section 17K (6) )

  

6.7               MODEL 5: New Ministerial model: This model, supported by the FF, provides for a completely separate Ministry. Among its key features are:

 

·         LOCATION AND BUDGET: This will be a new Department, located under a separate Ministry for Priority Crime Investigations, headed by a Minister for Priority Crime Investigations, with a separate Budget vote.

·         POLITICAL RESPONSIBILITY: Ministerial responsibility for the new Department will lie with the proposed new Minister for Priority Crimes Investigations.

·         MANDATE: The new Department’s mandate will be to focus on priority crime, consistent with the proposed new integrated criminal justice system.

·         MULTI-DISCIPLINARY APPROACH, WITH SECONDMENTS AND OUTSOURCING AS NECESSSARY: There will be prosecution-driven investigations, with prosecutors seconded to the Unit as needed. There will also be outsourcing to approved agencies as needed.

·         CRIMINAL JUSTICE MINISTRY COMMITTEE: The Ministerial Committee will consist of the Minister of Priority Crime Investigations, Safety and Security, Intelligence, Correctional Services and Justice and Constitutional Development, and will have a coordinating role.

·         OPERATIONAL COORDINATING COMMITTEE: There will be an inter-departmental Operational Coordinating Committee (OCC), with an operational mandate that includes drafting the unit’s strategic plan for approval by the Criminal Justice Ministry Committee; overseeing the unit’s day-to-day-operations; facilitating secondments; coordinating joint operations; coordinating crime intelligence; and facilitating the sharing of information. The OCC will consist of the Directors General of the relevant departments or senior managers delegated by them with the authority to make decisions on their behalf. The delegation should also be on a permanent basis to ensure continuity.

·         PARLIAMENTARY OVERSIGHT: Parliamentary oversight will be exercised by a new Joint Standing Committee for Priority Crime Investigation, similar to the JSC on Intelligence.

 

1. Overhaul of SAPS Act

 

7.1               The Ministry has, for several years now, been promising to overhaul the original SAPS Act (1995) but has not done so.

 

7.2               In processing this Bill, the Committee was once again struck by the urgent need to revamp the SAPS Act. There were some aspects of the features of the new unit that the Committee supported that could not be put into legislation without having to overhaul the entire SAPS Act.

 

7.3               The Bill provides for an independent complaints mechanism (section 17L). The Committee feels that there is a need to consider whether it is necessary to have an Inspector General for SAPS as a whole. Certainly, the Committee is clear that the Independent Complaints Directorate (ICD) is ineffective and needs to be substantially improved. It might well be necessary to have separate legislation for the ICD instead of including the ICD in the SAPS Act as is the case at present. In the overhaul of the SAPS Act, consideration also needs to be given to having a single, effective independent complaints mechanism that deals with the SAPS as a whole.

 

7.4               The Committee urges the Ministry to bring a new version of the SAPS Act to parliament within 12 months of the new five-year term of parliament.

 

1. Conflict of Interest Issues

 

8.1 Issues of “conflict of interest” arose in the processing of the Bill. Should MPs who were investigated by the Scorpions participate in the processing of and voting on these Bills? Parliament’s legal office found that there was no legal basis to exclude any MPs. However, on political, not legal, grounds two MPs serving in the Committees who were either prosecuted by or facing prosecution following a Scorpions investigation into the use of MPs travel vouchers, decided not to participate in the processing of the Bills. The majority in the Committees felt that the Committees do not have the jurisdiction to decide on this matter and could not set precedents for parliament. We propose that within 2 years of the new term of Parliament the Speaker’s Office and the Rules Committee provide greater clarity on what precisely constitutes a “conflict of interest” for MPs beyond financial issues.         

 

1. Effective Parliamentary Oversight

 

9.1               The Committee is committed to ensuring effective oversight over the new unit as part of a far more effective oversight over SAPS as whole.

 

9.2               The Committee will develop an effective oversight programme within 3 months of new parliamentary term and upgrade our monitoring tool in this regard.

 

9.3               The Committee will consider reports from the new unit as part of its monitoring of the SAPS at least 4 meetings per year. The invitation to the Head of the Unit will be sent through the SAPS National Commissioner, who would also be encouraged to attend these meetings, but should he or she not be available, the Committee will continue with the meetings.

 

9.4               While recognising that the implementation of aspects of the transitional provisions in the Bill are the prerogative of the executive, there are aspects that have to be monitored by parliament, and within the existing parliamentary rules and norms, the Committee will, in co-operation with the Justice and Constitutional Development Committee, closely monitor the implementation of the relevant transitional provisions. Both Committees appeal to the SAPS and DSO to work co-operatively to implement the provisions as soon as possible and ensure an effective new organised crime-fighting unit.

 

9.5               The Committee feels that pending applications for security  clearances for DSO staff who want to move to the new unit that are being dealt with in terms of section 2A of the National Strategic Intelligence Act by the NIA should be completed by the NIA.

 

9.6               The Committee is clear that no person, whatever his or her station, is above the law, and the transfer of cases from the DSO to the new unit must be effected in a way that does not undermine the processing of cases.

 

9.7               Consideration needs to be given to finding a way to give DSO staff a sense of whether they are likely to be accepted into the new unit before they move into the SAPS. The Committee feels that as far as possible the selection process should take place before a member exercises his or her choice to move to the SAPS.

 

 

1. Work in Progress

 

10.1            As explained, the new organised crime-fighting unit shaped in this Bill should be seen as part of a process of creating a powerful and effective model to prevent and combat priority crimes. It can, of course, if necessary, be improved on over time. Aspects of it can be reviewed in three contexts: the pending overhaul of the whole SAPS Act; the finalisation of new proposed integrated CJS; and the review within 3 years provided for in the Bill.

 

10.2            When the reviews referred to above are made, serious consideration should be given to this report, and in particular sections 5 and 6 above.

 

10.3            The majority in the Committee feels that the new unit should be given a chance to develop and that all of us, even those who do not support the organised crime-fighting unit, should work together to ensure that the new unit becomes powerful and effective and substantially reduces the extent of organised crime and corruption as part of the overall campaign against crime as a whole. 

 

 

Report to be considered.