ATC151112: Rule 201 Enquiry Report of the Portfolio Committee on Police in terms of the National Assembly Rules (8th edition, February 2014) dated 11 November 2015

Police

Rule 201 Enquiry Report of the Portfolio Committee on Police in terms of the National Assembly Rules (8th edition, February 2014) dated 11 November 2015

 

 

1. Introduction

 

The South African Police Services (SAPS) is required by section 205(3) of the Constitution   of the Republic of South Africa (Act 108 of 1996) to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

 

Section 205(1) of the Constitution requires that the police service must be structured to function in the national, provincial and where appropriate, local spheres of government.

 

Section 207(1) of the Constitution makes provision for the President as head of the national executive to appoint a man or woman as the National Commissioner of the SAPS to control and manage the police service. Section 207 provides that:

(4) Provincial Commissioners are responsible for policing in their respective provinces –

            (a) as prescribed by national legislation; and

            (b) subject to the power of the National Commissioner to exercise control over and              manage the police service in terms of subsection (2)

 

Section 206 (1) provides that the role of the Minister of Police is to be responsible determining national policing policy after consultation with the provincial governments and after taking the needs and priorities of the provinces into account.     

 

The SAPS is governed by the South African Police Services Act, 68 of 1995 (SAPS Act), regulations and standing orders. Section 10 of the SAPS Act provides for the establishment of a Board of Commissioners (BOC). Section 10(2) states that the functions of the BOC shall be to promote co-operation and co-ordination in the Service. Section 10(3) states that the BOC shall be presided over by the National Commissioner or his or her nominee and shall determine its own procedure.

 

The SAPS BOC released a media statement on 1 August 2015 entitled: “The SAPS Board of Commissioners fully supports General Riah Phiyega”. The statement pledges support for the National Commissioner subsequent to media reports published on 26 July 2015, in which several senior officers in the SAPS allegedly questioned her leadership of the SAPS and made various damning statements around the overall weakening of the SAPS structures.

 

The media statement states that the allegations made by media reports that morale in the SAPS was low, breaking ranks and an overall messy state affairs within the SAPS were unfounded. The statement further noted that none of the SAPS management structures have taken a decision not to support the submission made at the Farlam Commission of Inquiry. It then goes on to list the successes achieved under the leadership of General Phiyega.

The media statement issued by the Head of Corporate Communication was supported by all the Provincial Commissioners, the Deputy National Commissioner for Corporate Services, the Deputy National Commissioner for Policing and the Acting Divisional Commissioner for Crime Intelligence and the Head of Corporate Communication.

 

In addition, individual media statements were also released by individual Provincial Commissioners and at least one Divisional Commissioner. All the media statements pledged support for the National Commissioner. Individual media statements expressing support for the National Commissioner was issued by the Provincial Commissioners for North West, Gauteng and Mpumalanga. All the statements from the Provincial Commissioners were released on 26 July 2015. The statement by the Divisional Commissioner for Human Resources was entitled: “Hands Off General Riah Phiyega” was released on 30 July 2015.

 

Following the publishing of the statement by the BOC on 1 August 2015 (1st BOC media statement), the Chairperson of the Portfolio Committee on Police issued a statement on 5 August 2015 indicating that the Portfolio Committee on Police (hereafter referred to as ‘the Committee’) viewed the declaration of support to the National Commissioner as inappropriate and unfortunate. The Chairperson noted that it was not up to certain members of the SAPS management to become involved in an overtly public discourse or to indirectly engage in lobbying on behalf of a party or parties who are the subject of an official process. He called on the process initiated by the President to be respected. The statement concluded with the Committee stating it intends calling the BOC to its meeting on 12 August 2015 to explain itself.

 

On 12 August 2015, the Portfolio Committee on Police considered the first BOC statement (issued on 01 August 2015). The statement was released two weeks after the BOC meeting on 15-16 July 2015 and one day after the National Commissioner’s deadline to respond to the President’s letter in which he asked her for her responses to the Farlam Commission Report. The statement of the BOC pledged support to the National Commissioner from all the Provincial Commissioners, two acting Provincial Commissioners, two of the Deputy National Commissioners and one Acting Divisional Commissioner.

 

 

1. Background

 

The serious constitutional implications of the BOC statements and the subsequent meetings of the Portfolio Committee has its genesis in the Constitution and is based amongst others on the principle of separation of powers. This founding principle remains a fundamental element of the case law and was captured in the Interim Constitution.[1] According to Justice Majapelo[2], Section 8(1) of the final Constitution lists all the elements of the structures that are bound by the Bill of Rights namely, the legislature, the executive, the judiciary and all organs of state. Significantly, Justice Majapelo notes that the purpose of the separation of powers principle as:

 

The main objective of the doctrine is to prevent the abuse of power within different spheres of government. In our constitutional democracy public power is subject to constitutional control.[3]

 

 

 

The separation of powers is noted as one of the constitutional principles in the Constitution certification judgement wherein the judgement defines the constitutional principle of separation of powers as:

 

            a separation of powers between the legislature, executive and judiciary with appropriate checks   and balances to ensure accountability, responsiveness and openness.[4]

 

 

The Committee also noted the SAPS Code of Conduct which places particular obligations on all members of the SAPS. It states:

 

“I commit myself to creating a safe and secure environment for all people in South Africa by-

            •           Participating in all endeavours aimed at addressing the root causes of crime;

            •           Preventing all acts that may threaten the safety or security of any community;

            •           Investigating criminal conduct that endangers the safety or security of the                       community;

            •           Bringing the perpetrators to justice;

In carrying out this commitment, I shall at all times-

            •           Uphold the Constitution and the law;

            •           Take into account the needs of the community;

            •           Recognise the needs of the South African Police Service as my employer, and

            •           Cooperate with all interested parties in the community and the government at                   every level.”

 

The Committee was concerned that in a constitutional democracy, in which the Constitution is supreme, the top leadership of the SAPS which is accountable to Parliament has overstepped that mark of separation of powers. For the purposes of emphasising that separation of powers principle, the Committee deems it necessary to restate the different legislative, executive and judicial authorities of the three branches of State.

 

 

1. The Legislature (Parliament)

 

Section 44 of the Constitution provides for the national legislative authority of Parliament:

1. The national legislative authority as vested in Parliament –
   1. confers on the National Assembly the power –
      1. to amend the Constitution;
      2. to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
      3. to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and
   2. confers on the National Council of Provinces the power –
      1. (i) to participate in amending the Constitution in accordance with section 74;
      2. to pass, in accordance with section 76, legislation with regard to any matter        within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with section 76; and
      3. to consider, in accordance with section 75, any other legislation passed by the National Assembly
2. Parliament may intervene, by passing legislation in accordance with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary –
   1. to maintain national security;
   2. to maintain economic unity;
   3. to maintain essential national standards;
   4. to establish minimum standards required for the rendering of services; or
   5. to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.
3. Legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4 is, for all purposes, legislation with regard to a matter listed in Schedule 4.
4. When exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.

           

1. The Executive

 

Section 85 of the Constitution provides for the Executive Authority of the Republic as follows:

 

1. The executive authority of the Republic is vested in the President.
2. The President exercises the executive authority, together with the other members of the Cabinet, by –
   1. implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;
   2. developing and implementing national policy;
   3. co-ordinating the functions of state departments and administrations;
   4. preparing and initiating legislation; and
   5. performing any other executive function provided for in the Constitution or in national legislation.

 

1. The Judiciary

 

Section 165 of the Constitution allows for judicial authority as follows:

1. The judicial authority of the Republic is vested in the courts.
2. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
3. No person or organ of state may interfere with the functioning of the courts.
4. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
5. An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
6. The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.
   1. Political responsibility and control of the police

 

In terms of the Constitution, the role of the police is clear. In terms of section 207(1) of the Constitution, it is the responsibility of the President to appoint a man or woman as the National Commissioner of the Police service. The National Commissioner exercises control over and manages the South African Police Services in accordance with the national policing policy and the directions of the Cabinet Member responsible for policing in terms of section 207(2).

 

The Minister of Police is the Cabinet Member responsible for policing and according to section 206(1) of the Constitution has political authority over the police. In terms of this section, the Minister of Police must determine the national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives.

 

In terms section 207(2) the National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing. Parliament in turn, has oversight over the Executive Authority of the SAPS in terms of section 55(2)(a) and (b) of the Constitution.

 

Section 6 of the SAPS Act (Act 68 of 1996) provides for appointment of the National and Provincial Commissioners.  In the case of the appointment of Provincial Commissioners, the SAPS Act makes provision in section 7(1)(b) for them to be appointed by the National Commissioner in consultation with the Member of the Executive Council. Section 8 of the SAPS Act provides for procedures and processes to be followed in the event of a loss of confidence in the National or Provincial Commissioners.     

 

3.         Mandate of the Portfolio Committee on Police

 

The mandate of the Portfolio Committee on Police is derived from sections 55 and 56 of the Constitution and the Rules of the National Assembly. Section 57 (1) and (2) makes provision for Parliament to determine its own Rules.

 

The mandate of the Portfolio Committee on Police is to:

a)         Monitor the financial and non-financial performance of government         departments and their entities to ensure that national objectives are met;

b)         Process and pass legislation;

c)         Facilitate public participation in Parliament relating to issues of oversight and      legislation;

d)         Review the performance of departments and the relevant entities through            annual   reports;

e)         Scrutinise the financial and non-financial performance of departments and           entity;

f)          Interrogate the annual performance and strategic plans of the departments and    entity; and

g)         Monitor the implementation of legislation.          

 

 

 

 

3.1        The purpose of the Rule 201 Enquiry

 

On 28 August 2015, the Portfolio Committee resolved to institute a Rule 201 Enquiry in terms of the Rules of the National Assembly (8th Edition, February 2014).

 

In particular, the Committee wanted to ascertain whether the press statement(s) issued by the BOC was designed to influence the process initiated by the President who had to consider the input of the National Commissioner with respect to the Farlam Commission recommendations.

 

The Committee wanted to establish whether the Provincial Commissioners were truthful with the Members of the Committee in answering the questions put to them in the meetings conducted with them on 12 and 18 August 2015. 

 

The Committee resolved to find answers to the following questions:

1)         Establish and consider whether the relevant officers were truthful with their          testimony in presenting the facts leading up to the issuing of the said       statements.

2)         Establish and consider whether the documents and electronic material made       available to the Committee verify the statements made during the said            Committee        meetings.

3)         Establish and consider whether the relevant statements were made in      compliance with the Standing Order 156.

4)         Establish and consider whether the relevant conduct by the officers is in line       with good governance principles.

5)         Establish and consider whether the relevant conduct prejudiced, embarrassed     and       discredited the SAPS.

6)         Establish and consider whether the said statements were aimed at influencing     the        process by the President in response to the recommendations of the Farlam             Commission in relation to the National Police Commissioner.

 

Rule 201(c) of the National Assembly Rules in particular is of relevance to the inquiry in that the Committee was of the opinion that it should determine the facts of the report that was provided by the Board of Commissioners at its meetings held on 12, 18 and 28 August 2015 about how the press statement originated, were crafted and who gave the authority for publication.

 

3.2        Rules of the National Assembly

 

In terms of Rule 201 the National Assembly Rules (February 2014 edition),

(1)        A portfolio committee:

(a)        must deal with bills and other matters falling within its portfolio as are referred     to it in terms of the Constitution, legislation, these Rules, the Joint Rules or by     resolution of the Assembly;

(b)        must maintain oversight of –

                        (i)         the exercise within its portfolio of national executive authority;                                        including the implementation of legislation;

                        (ii)         any executive organ of State falling within its portfolio;

                        (iii)        any constitutional institution falling within its portfolio; and

                        (iv)        any other body or institution in respect of which oversight was                                        assigned to it; 

(c)        may monitor, investigate, enquire into and make recommendations concerning any          such executive organ of state, constitutional or other body or institution including the       legislative programme, budget, rationalisation, restructuring, functioning, organisation,          structure, staff and policies of such organ of State,        institution or any other body or             institution;

(d)        may consult and liaise with any executive organ of State or constitutional            institution;         and

(e)        must perform any other functions, tasks or duties assigned to it in terms of the               Constitution, legislation, these Rules, the Joint Rules or by          resolution of the                        Assembly, including functions, tasks, and duties concerning parliamentary                       oversight or supervision of such executive organs of state, constitutional                                    institutions or other bodies or institutions.

 

In the process of conducting the Enquiry, the National Assembly or any of its Committee in terms of section 56 of the Constitution, may –

 

 (a)       summon any person to appear before it to give evidence on oath or affirmation, or to     produce documents;

(b)        require any person or institution to report to it;

(c)        compel, in terms of national legislation or the rules and orders, any person or      institution to comply with a summons or requirement in terms of paragraph (a) or (b);            and

(d)        receive petitions, representations or submissions from any interested persons                 or institutions.

 

The Committee has used the above mentioned Rules to determine answers to the six questions it posed.

 

4.         Events leading up to the decision of the Committee to institute a Rule 201 Enquiry

 

At its meeting on 12 August 2015, the Portfolio Committee instructed the police to retract the BOC statement issued on 1 August 2015. It also instructed that all the Commissioners who signed the statement apologise to the President for interfering in the process he initiated on the Farlam Recommendations; to apologise to the Committee; and lastly, that they never do the same again.

 

All the Commissioners and two Deputy National Commissioners who signed the statement apologised, except the Provincial Commissioner for KwaZulu-Natal who was not present in the meeting.  The Committee accepted all their individual apologies. The acting Divisional Commissioner for Intelligence attended the Magoebaskloof BOC, signed the BOC statement, but did not attend the Portfolio Committee meeting on 12 August 2015.

 

 

4.1        SAPS BOC statement on 13 August 2015 (2nd Statement)

 

The BOC issued a second statement on 13 August 2015 (2nd Statement), which indicated that it apologised for the “misinterpretation” of the original statement, but did not retract the original statement. In addition, at its meeting held on 18 August 2015, the Chairperson of the Portfolio Committee put it to the Commissioners to decide whether they stood by their original apology or whether they stood by their 2nd media statement. Some of the Commissioners indicated that they stood by their original apology on 12 August 2015 and others indicated that they stood by the apology and the second statement issued on 13 August 2015.

 

The Committee was of the opinion that despite its instruction to the SAPS to withdraw its statement issued on 1 August 2015, the BOC defied the Committee and did not do so. By defying the Committee and issuing the second statement which reinforced its 1st statement, the BOC escalated the problem. The demeanour of some of the Commissioner who attended the meeting was akin to a closing of ranks against the Committee when some of them took a decision to continue supporting the 2nd statement. The Committee was of the view that it was done with intent, despite one Provincial Commissioner expressing his discomfort with the statement and the Deputy National Commissioner for Policing initially sending a SMS supporting the decision and then subsequently raised questions (line 10, page 42, transcript of PC meeting on 28 August 2015).

 

The Committee viewed the fact that the National Commissioner was asked to recuse herself from the Committee meeting on 12 August 2015 and the subsequent 2nd statement that emerged as serious in terms of governance and accountability. This was because the National Commissioner also later on the same day attended the debriefing meeting of the BOC after they left the Portfolio Committee meeting and where the 2nd statement was crafted on the 12 August 2015.

 

In the transcripts, Lt. General Makgale indicates as much when questioned by the Chair (line 8, page 16, transcript PC meeting 28 August 2015):

 

THE CHAIRPERSON:   General, I just want to know just for clarity, who is the Chairperson of the BOC currently?

 

MR MAKGALE:   All the BOC meetings are chaired by the National Commissioner.

 

THE CHAIRPERSON:   Is she part of that process in discussing the statement?

 

MR MAKGALE:   Yes, she was.      

 

Given the fact that the National Commissioner also attended the meeting where the 2nd   statement was crafted makes her role even more concerning, particularly because she is responsible for ensuring that the SAPS comply with instructions of the Portfolio Committee.

 

Despite several questions to the members of the BOC, the Committee was no closer to getting answers as to who authorised the two statements issued by the BOC. At its meeting on 28 August 2015, the Committee decided to institute a Rule 201 Enquiry into the SAPS BOC responses it provided to the Committee (line 23, page 33, transcript of the Portfolio Committee meeting on 28 August 2015).

 

 

5.         Terms of Reference

 

The Portfolio Committee adopted the following Terms of Reference for the Rule 201 Enquiry on 28 August 2015:

 

The Portfolio Committee on Police resolves to enquire in terms of the Rule 201 of the Rules of the National Assembly:

 

A.  Annexure A

 

1. Statements issued by Senior Management members of the SAPS and Provincial Commissioners during July and August 2015 respectively, in support of the National Commissioner, General R Phiyega;
2. The process leading up to the issuing of the statements with specific reference to the meeting of the BOC that was held at Magoebaskloof on 15 and 16 July 2015.
3. Statements made by Senior Management and Provincial Commissioners during the Portfolio Committee meetings of 12, 18 and 19 August 2015; 
4. A Statement issued by Lt. General S. Makgale on 13 August 2015; and
5. Individual statements issued by senior commissioners in support of the National Commissioner.

 

B.  Objectives of the Enquiry

 

1. Establish and consider whether the relevant officers were truthful with their testimony in   presenting the facts leading up to the issuing of the said statements.
2. Establish and consider whether the documents and electronic material made available to the Committee verify the statements made during the said Committee meetings.
3. Establish and consider whether the relevant statements were made in compliance with the Standing Order 156.
4. Establish and consider whether the relevant conduct by the officers is in line with good governance principles.
5. Establish and consider whether the relevant conduct prejudiced, embarrassed and discredited the SAPS.
6. Establish and consider whether the said statements were aimed at influencing the process by the President in response to the recommendations of the Farlam Commission in relation to the National Police Commissioner.

 

C.  Documents to be considered

 

In establishing the facts and making recommendations, the following documents will be utilised as source documents:

 

C. 1      Legislation

 

1. Constitution of the Republic of South Africa, 1996
2. South African Police Service Act, 68 of 1995
3. Public Service Act, 1994, as amended Act 30 of 2007
4. Powers, Privileges and Immunities of Parliaments and Provincial Legislature Act, 2004
5. National Assembly Rules, 8th edition

 

 

C. 2. South African Police Service (SAPS) Documents

 

1. BOC Forum meeting held at Magoebaskloof (15-16 July 2015);

 

1.  Agenda of Magoebaskloof meeting;
2. Hard copy of the minutes of the meeting;
3. Electronic copy of the minutes of the meeting;
4. Attendance register of the meeting; and
5. Electronic recording of the meeting.

1. Standing Order 156.
2. Copies of all statements issued by the Senior Management members and
3. Provincial Commissioners.
4. Job Descriptions and Performance Agreements of Provincial Commissioners and Senior Managers.
5. SAPS Disciplinary Code of 2006.
6.  SAPS Code of Conduct.
7. Hard copy of the minutes of the Gauteng SAPS Provincial meeting. 

 

 C. 3. Committee Documents – Portfolio Committee

 

1. Transcript of meeting held on 12 August 2015.
2. Transcript of meeting held on 18 August 2015.
3. Transcript of meeting held on 19 August 2015.
4. Transcript of meeting held on 28 August 2015.

 

 

 

5.1        Process followed

 

The Committee held several meetings in considering the written, oral and electronic submissions made by the SAPS in answering the questions posed to it. Firstly the Committee requested the necessary documents from the National Commissioner of the SAPS. It should be pointed out that the minutes and attendance register of the Magoebaskloof meeting was classified as restricted and confidential and the Committee asked the National Commissioner to declassify it. She did not respond to the Committee. 

 

Secondly, the Committee analysed the documents and held meetings on the written, oral and electronic submissions provided by the SAPS. The Committee deliberated on the submissions received from the SAPS on the Rule 201 Enquiry on the following dates and received comments and questions from Members:

 

• 16 October 2015 – An analysis of the documents provide by the SAPS;
• 21 October 2015 – Committee deliberations on the submissions presented by the SAPS;
• 28 October 2015 – Committee deliberations on the submissions presented by the SAPS; and
• 4 November 2015 – Committee deliberations on the findings and recommendations of the Report

 

It should be pointed out that the Committee requested additional documents from the SAPS including the attendance register of the 15 July 2015, an electronic copy of the Magoebaskloof minutes and a copy of the statement issued by the SAPS on 26 June 2015. All the additional documents were furnished.

 

 

6.         Documents Examined

 

6.1        Standing Order 156: Media Communication in the South African Police                      Service (As amended 19/2012)

 

Standing Order 156 provides the guidelines for communication and media releases in the SAPS.

 

Section 3 (4) states:      Management at all levels must continuously bear in mind the media implications of their decisions and consult with media liaison officials in developing pro-active communication plans.

 

Section 3 (10) states:     All media related matters must be dealt with by the office of the National Commissioner (National Media Centre) or the Provincial Commissioner (Provincial Media Centre). Clusters, stations or units must direct or redirect all media interactions to the National or Provincial Communications Office. This information must simultaneously be forwarded to the Head: Corporate Communication at [email protected].

 

Section 3(14) states:      A member must consult the relevant media liaison official before making, on his or her own initiative, official statements to the media to ensure that the Service receives the maximum benefit from the exposure.

 

Section 3(18) states:      Only a member who is designated as an official spokesperson for the National Commissioner, a Deputy National Commissioner or a Divisional Commissioner, Provincial Commissioner, cluster or station commander, may be quoted as the official spokesperson of such an office.  

 

Section 8(4)(a)(iv) states:

No member, irrespective of rank, may in any way furnish any information to the media, a private institution or an individual, if the publishing or disclosure of such information may —

(iv)        prejudice, embarrass or discredit the Service.

 

The Committee Members noted that this was an important section of the Standing Order in view of the impact of the statements by the BOC. 

 

Lastly, section 12(1) of the Standing Order states: Every member is accountable for statements or comments to the media made by him or her and must give careful consideration to what he or she says and perceptions that may be created by his or her statement or comment.

 

7.         Committee Deliberations

 

The Committee held deliberations on 16, 21, 28 October and 4 November 2015 to discuss the written, oral and electronic submissions of the SAPS. These included transcripts of the Committee meetings held on the 12, 18 and 28 August 2015. 

 

 

7.1        SAPS BOC Statement on 1 August 2015 (1st Press Statement)

 

The SAPS Board of Commissioners statement issued on 1 August 2015 on behalf of the BOC by Lt. General Makgale entitled: “The SAPS Board of Commissioners fully supports General Riah Phiyega” explains what the BOC is and states that it was concerned about the prevailing unfair and largely negative attitude towards the National Commissioner. 

 

It pledges full support for the Commissioner in the face of unnamed sources misinforming the media that they (BOC) are unhappy with the National Commissioner. The statement states that the BOC is surprised by media reports that morale in the SAPS was low, and breaking ranks and an overall messy state affairs within the SAPS were unfounded. The statement denies that morale was low and that they worked closely with the National Commissioner.

 

It goes on to note that none of the SAPS management structures have taken a decision not to support the submission made at the Farlam Commission of Inquiry. It then goes on to list the successes achieved under the leadership of General Phiyega.

 

The media statement issued by the Head of Corporate Communication also noted that apart from the Provincial Commissioners, the Deputy National Commissioner for Corporate Services, the Deputy National Commissioner for Policing and the Acting Divisional Commissioner for Crime Intelligence and the Head of Corporate Communication all fully supported the statement. The Committee noted that the Deputy National Commissioner for Resource Management did not sign the statement and neither did the majority of Divisional Commissioners.

 

7.2        Input from the Ministry of Police

 

It should be noted that the Deputy Minister of Police, Hon. M. Sotyu, (MP) who attended the Portfolio Committee on behalf of the Minister of Police made it clear that the SAPS did not consult the Ministry in releasing its statement on 1 August 2015. In the meeting on 12 August 2015, she informed the Committee of the following:

 

As per your indicating in your request, I need to put it to the Committee straight that we as the Ministry were never consulted about the media statements that you read from the newspapers.  And also not even about the media interviews, radio interviews about who support who.  We (were) never consulted with regard to that. (line 17, PCOP transcript 12.08.15)

 

From the input presented by the Deputy Minister of Police, Hon. M. Sotyu (MP)  it is clear that the BOC clearly decided not to utilise the internal remedies and to follow the procedures as laid out in Standing Order 156 when they released their statements to the media.

 

The SAPS also did not consult with the Executive Authority with respect to the impact that the statements would have on the members of the SAPS by discrediting the leadership and embarrassing the department.

 

Members of the Committee were of the opinion that if the situation as alleged by the BOC was as serious as they had claimed and there were talks of mutiny in the ranks as had been reported by the media, the BOC and the National Commissioner had a duty of care to report it to the Minister of Police. They did not.

 

The Committee noted that at its meeting on 12 August 2015 it instructed the SAPS BOC to retract its 1st statement. The Committee however noted that the 2nd media statement released on 13 August 2015 was in direct contravention of the instruction of the Committee and had the effect of escalating the matter.

 

 

7.3        Portfolio Committee Meeting held 12 August 2015

 

The transcripts of the Portfolio Committee meeting held on 12 August 2015 shows that there were very clear request made to the SAPS with regards to the statements issued by the BOC.

 

Firstly, the Committee was concerned that civilian control over the police was undermined by the press statement. The Chairperson noted the following: The Constitution is supreme and the SAPS is accountable and subject to civilian control. He quoted the ANC’s Policy Proposals for the Final Constitution submission to the submitted to the Constitutional Assembly on 15 June 1995:

 

The final responsibility for security should be taken out of the hands of the security apparatuses. Final responsibility for security should be placed squarely in the jurisdiction of the democratically elected Parliament and the Executive. Civilian control over the security services at ministerial level and through other mechanisms should be constitutionally enshrined. The right of the public to access information must be provided for constitutionally with limitations in the interest of national security. Security institutions should not act on their own authority, but under the guidance of Parliament and the Executive.

 

Secondly, the Committee was concerned that the 1st press statement undermined the processes initiated by the President to respond to the Farlam Commission. The Committee noted that the 01 August 2015 media statement was only released two weeks after the Magoebaskloof meeting of the BOC and one day after the National Commissioner had to respond to the Honourable President on the findings of the Farlam Commission.

 

7.4        Timing of the 1st press statement

 

At the time of releasing the report the President required the National Commissioner to respond no later than 31 July 2015 to the Commission’s recommendations. This means that a month had lapsed since the release of the report to the date on which the National Commissioner submitted her response to the President on the evening of 31 July 2015.

 

Although the statements that were released on 30 July 2015 and 1 August 2015 purport to be responses to newspaper allegations that there is a “rebellion” or “mutiny” at senior management level within the SAPS, the statements coincide with the period when the National Commissioner was being severely criticised in the media as a result of the Commission’s findings and recommendations.

 

The Committee was of the view that the timing of the 1st statement on 1 August 2015 was timed to place undue pressure on the President in him considering the response of the National Commissioner to the Farlam Commission. The Committee raised serious concerns given that the Magoebaskloof meeting confirms the Committee’s view that the statement was issued to undermine the process of the President.

 

The Portfolio Committee asked the SAPS management to undertake four steps:

1. The BOC should retract its statement;
2. The BOC members should apologise to the Committee;
3. The BOC members should apologise to the President; and
4. The SAPS management should give an undertaking that it will never repeat the process.

 

All the following Provincial Commissioners apologised:

• Lt. General K. Sitole – Deputy National Commissioner (Policing)
• Lt. General N. Mbekela – Deputy National Commissioner (Corporate Services)
• Lt. General S. Masemola – Provincial Commissioner: Limpopo Province
• Lt. General C. Binta – Provincial Commissioner: Eastern Cape Province
• Lt. General S. Mpembe – Provincial Commissioner: Free State Province
• Lt. General J. Basson - Provincial Commissioner: Northern Cape Province
• Lt. General M. Magadlela – Provincial Commissioner: Mpumalanga Province
• Maj. General T. Patekile – Acting Provincial Commissioner: Western Cape Province
• Maj. General L. Tsumane – Acting Provincial Commissioner: North West Province
• Maj. General K. Jula – Acting Provincial Commissioner: KwaZulu Natal Province
• Lt. General L. Mothiba – Provincial Commissioner: Gauteng Province
• Lt. General S. Makgale – Head of Communication

 

 

7.5        Committee Findings with respect to the 1st Press Statement on 1 August 2015

 

7.5.1     The Committee finds that the press statements were aimed at influencing the public         discourse and process by the President in response to the recommendations of the            Farlam Commission.

 

7.5.2     The Committee finds that by releasing the statement on 1 August 2015, the BOC             choose to enter the political terrain because that date also coincided with the date by            which the National Commissioner was to give the President her response to his letter           on why he should not constitute a Board to inquire into her fitness to hold office.

 

7.5.3     The Committee finds that the timing of the release of the statements was designed to      place public pressure on the President to sway his decision on the Farlam      Recommendations. While the meeting of the BOC took place on 15 and 16 July 2015,         the statement was only released on 1 August 2015, a full two weeks after the meeting.

 

7.5.4     The Committee finds that the SAPS Management entered the political terrain by   releasing the statements because it was timed to influence the process initiated by the          President.

 

7.5.5     The Committee finds that on 26 June 2015, the SAPS spokesperson, Brigadier Vishnu     Naidoo issued a statement with respect to the Farlam Commission Report. He stated           the following:

 

 

“Out of respect for the processes outlined by the President, SAPS Management has taken a decision that no public pronouncements about the report, its findings and recommendations will be made. In the interim, the management of the police would like to reassure the public that policing duties will continue as normal.”

 

 

7.5.6     The Committee finds that the statement of 1 August 2015 was issued in disregard of       clause  3(4) and clause 8(4)(a) of the Standing Order 156 in the following respects:

 

1. The statement had an effect of pre-empting the process that the President had initiated in respect of the Commission’s findings and recommendations.

 

1. The statement had the effect of the BOC expressing support and allegiance to the National Commissioner in circumstances where they had to await the outcome of the process set out above.

 

1. In addition, the statement was issued in total disregard of the statement issued by the SAPS on 26 June 2015 to the effect that will be made during the processes outlined by the President.

 

1. The Committee finds that it is unavoidable to conclude therefore that whether such statements were made before the National Commissioner submitted her response to the President or a few hours thereafter, the aim was to confirm the SAPS’s support, belief and allegiance to the National Commissioner to the public in general, especially SAPS members that all the criticisms against her, in general and in particular in relation to her conduct surrounding the Marikana incident were unfounded.

 

1. It is the Committee’s considered view therefore that the issuing of the two statements, in particular the 1st statement by the BOC, was aimed at influencing the process by the President in response to the recommendations of the Commission in relation to the National Police Commissioner.

 

 

 

7.6        SAPS BOC Statement on 13 August 2015 (2nd Press Statement)

 

The BOC statement released by Lt. General Makgale on behalf of the BOC on 13 August 2015 refers to the interaction between the BOC and the Portfolio Committee on Police on 12 August 2015. It indicates that the BOC wanted to correct misperceptions following its statement on 1 August 2015.

 

It states that the BOC distanced itself from allegations of mutiny within the ranks of the SAPS and states that the purpose of the statement of 1 August 2015 was to refute such allegations. It goes on to state that the Portfolio Committee was of the view that the statement had unintended consequences in that it created the impression that the BOC was pre-empting the process that the President was initiating. It states that this was never intended to undermine such processes and that the BOC respected such processes.

 

It goes on to say that the BOC regretted the unintended consequences of the statement that was issued, but that it would like to engage further on the matter as there was information that the BOC was unable to share with the Committee. 

 

It further states that the BOC would continue to respect all processes and continue to lead the organisation in a professional manner and ensure that the communities are safe and secure. It states that the statement was never intended to cause any harm to the organisation and the community and that all the Provincial Commissioners apologised during the session with the Portfolio Committee for misperceptions that were created. It also states that the Deputy Minister of Police summarised that the BOC should have issued a statement to distance itself from the mutiny and other ills levelled against the organisation. Lastly, it commits the BOC to continue to lead the SAPS and protect communities.

 

 

7.7        Portfolio Committee meeting held 18 August 2015

 

The Committee met to consider the 2nd statement issued by the BOC. The Chairperson made it clear that the statement released by the BOC on 13 August 2015 was not what the Committee was expecting as the Committee requested that the BOC retract its first statement (01 August 2015).

 

The Committee will declare that it did not agree that the Committee had a “certain view” as captured in the statement, as it was incorrect. The Committee wanted this perception corrected. Members also asked what the procedures and protocols were for statements to be released by the SAPS and whether these were approved and signed off by the National Commissioner before being released.  Members also enquired when the meeting took place that mandated Lt. General Makgale to release the second statement.

 

Given that the BOC Commissioners attended the Portfolio Committee meeting, it is clear that the 2nd statement deliberately misconstrued the remarks of the Deputy Minister. The Committee also noted that there was discomfort with the statement by the Free State Provincial Commissioner, Lt. General Mpembe and Lt.General Sitole, Deputy National Commissioner for Policing.

 

The overwhelming view of all Members of the Committee was that the 2nd statement of the BOC clearly and deliberately undermined the Committee and that it was disrespectful towards the Committee. According to Members, the 2nd statement was not in keeping with the instruction of the Committee to the BOC. Members also took exception to the fact that the 2nd statement included the words:

 

“The BOC would like to engage further on this matter, as we believe there is information which the BOC was unable to share.’  

2nd BOC Statement, 13 August 2015

 

General Makgale indicated that he respected the Committee and that he was not a member of the Board of Commissioners. He would attend meetings by invitation and then he would make statements as directed by the BOC. The statement was not his own, but that of the BOC. It was drafted immediately after the Portfolio Committee meeting on 12 August 2015 (line 25, page 13, transcript of PC meeting on 28 August 2015).

 

He stated that a 2nd statement was crafted and all the Provincial Commissioners agreed with the statement, except the Provincial Commissioner of the Free State, General Mpembe and the Deputy National Commissioner for Policing General Sitole, who sent a SMS saying he was comfortable with the statement, but later questioned it (line 10, p42, transcript PC meeting on 28 August 2015).

 

He also under questioning conceded that there was a question from General Sitole after he sent an SMS, but that the statement was released. However, by the time General Mpembe informed him of his discomfort, he had already released the statement. General Ngobeni was also not present in the meeting held on 12 August 2015.

 

A concern from the Committee was the fact that General Makgale could not say who chaired the meeting as that he was in and out of the meeting. Members were unhappy in the way that he explained who gave him instructions to put out the statement. He acknowledged that the National Commissioner was part of the meeting. He indicated that it was not a formal meeting.

He also confirmed that the National Commissioner chairs all the meetings of the BOC.

 

The Committee enquired whether the National Commissioner participated in the discussion on the press statement in the meeting held at Magoebaskloof. He confirmed that she was part of the discussion. Members were in agreement that he was not giving the Committee clear answers.

 

The Committee also put it to the Commissioners to indicate whether they supported the apology to the Committee or whether they stood by the statement issued by Lt. General Makgale. Some of the Provincial Commissioners indicated that they stood by the apology and others stated that they stood by the apology and also supported the 2nd press statement (line 12, page 93 Transcript of PC meeting on 18 August 2015).

 

 

7.8        Portfolio Committee meeting on 21 October 2015

 

At its meeting on 21 October 2015, the Committee examined transcripts of its meetings held 12, 18 and 28 August 2015. The Committee found that the governance of the SAPS was compromised as the 2nd statement was issued with the full knowledge of the National Commissioner who was present at the meeting that crafted the statement issued on 13 August 2015. This meeting was described as an informal meeting by General Makgale, but it was clear to the Committee that it intended to defy and undermine the Portfolio Committee (line 9, page 33, transcript of PC meeting on 28 August 2015).

 

In its meeting on 12 August 2015, the Committee noted that it requested the Gauteng Provincial Commissioner, General Mothiba to confirm if he had the support of his provincial management team when he issued a statement in support of the National Commissioner and he replied in the affirmative (line 3, page 18, Transcript of PC meeting 12 August 2015). The Committee asked for a copy of the minutes of that meeting and it was subsequently informed by the Provincial Commissioner in a letter dated 17 September 2015, that there was no such formal meeting , that the discussion was informal and no minutes were kept.

 

At its meeting dated 18 August 2015, the Committee heard from General Ntshiea, Divisional Commissioner: Human Resource Management, that she released a statement in support of the National Commissioner.  She indicated that she was unsure if it had been checked by the head of Corporate Communication in the SAPS. The Committee was informed that she released the statement on 30 July 2015 with the heading “Hands off General Riah Phiyega”. According to General Ntshiea, she was prompted to release the statement in support of the National Commissioner because of media reports which spoke about a mutiny in the ranks (line 11, page 97, transcript of PC meeting 18 August 2015).  She informed the Committee that she apologised for the statement (line 4, page 107, transcript of the Portfolio Committee meeting on 18 August 2015).

 

The Committee heard from General Mbekela that there was never an instruction from anyone to issue a statement (line 25, page 18, Transcript of PC meeting on 12 August 2015).

 

The Committee noted that General Makgale indicated that the National Commissioner did not sign off on the statement (line 16, page 35, transcript of the PC meeting on 12 August 2015). It was in direct contrast to the SAPS Standing Order 156 which deals with media communication in the SAPS.

 

According to the General Principles (4) of the Standing Order,

 

Management at all levels must continuously bear in mind the media implications of their decisions and consult with media liaison officials in developing pro-active communication plans.

 

It was clear that the BOC did not take into account the implications of their statements in line with the media policy encapsulated in Standing Order 156. According to the Committee Members, the 1st statement that was issued constituted a threat to the President with respect to the processes initiated by him on the Farlam Recommendations. In the words of a Committee Member:

 

The Farlam Commission had international implications for South Africa and the SAPS. With this statement they embarrassed and discredited the SAPS. With this statement they sort of threatened the President, they were saying to the President (if you act against the National Commissioner) then you should fire us as well… this is a serious aspect of the statement.

 

 

7.9        Committee Findings with respect to the 2nd Press Statement on 13 August 2015

 

7.9.1     The Committee finds that the BOC was not truthful about these events in their      interaction with the Committee.  

 

7.9.2     The Committee finds that the BOC acted contrary to Standing Order 156 and in   disregard of the SAPS statement of 26 June 2015, they acted contrary to good         governance principles by issuing the statement on 13 August 2015.

 

7.9.3     The Committee further finds that in the Portfolio Committee meeting on 18 August 2015   some of the Commissioners saw the error of their judgement and stood by their         apology, while others stood by the 2nd press statement which re-enforced their earlier      statement on 1 August 2015.

 

7.9.4     The Committee finds that in view of the fact that the BOC did not consult with the            Executive Authority when releasing the statement, clearly prejudiced,         embarrassed and discredited the Service.

 

7.9.5     The Committee finds that the statements embarrassed the Executive Authority and the     police as a whole.

 

7.9.6     The Committee finds the misrepresentation by the SAPS leadership prejudiced the          SAPS to the extent that the trust between the SAPS and Parliament has been           severely compromised as a result.

 

7.9.7     The Committee finds that the BOC and senior officers contravened its own Code of        Conduct in releasing the statements.

 

 

 

8.         The Magoebaskloof Board of Commissioners meeting on 15-16 July 2015

 

In considering the transcripts and minutes of the Magoebaskloof meeting, it became apparent that there is a disjuncture between what is stated in the minutes and what the transcript of the meeting revealed.

 

8.1        Minutes of the Magoesbaskloof meeting

 

The SAPS held a Board of Commissioners meeting at the Magoebaskloof Hotel on 15 and 16 July 2015. The meeting was attended by the Deputy National Commissioner: Policing, Deputy National Commissioner: Corporate Service Management, a full complement of Provincial Commissioners (including acting Provincial Commissioners), the Acting Divisional Commissioner for Crime Intelligence, Divisional Commissioner for Communication, the Component Head for Strategic Management, Component Head for Crime Registrar and the Deputy Provincial Commissioners for the Limpopo Province. The agenda for the meeting made provision for a discussion on the Farlam Commission Report.

 

The minutes reflect that the National Commissioner was part of the discussion. The Minutes notes (on page 17) that General Mawela made a presentation on the subject. It notes the following:

 

“The meeting noted that there was never a plan approved in the meeting of the 15th as mentioned in the Marikana Report.

Noted the increased negative media reports which impact negatively on the morale of members and the need to encourage members to focus on the core business of fighting crime in the country.

Noted that a situation should not be allowed where the reports results in a state where it appears that police crime business has stopped, policing must continue.

After a lengthy deliberation on the negativity of media reports, the Prov Comms indicated a need to support members who were involved as well as to deal with some of the negative media communication that appears in the media.

Noted that the NatComm’s concern regarding issues of conflict during the discussion of the matter. The Prov Comms agreed to meet during lunch to discuss the matter further as well as to engage Corporate Communication to assist.”  

 

It should be noted that the National Commissioner raised issues of conflict on the issues and from the meeting of the Portfolio Committee on 12 August 2015, General Sitole noted that the Commissioner stated that she was conflicted. General Mbekela also indicated that the Commissioner did not take part in the meeting when the statement was discussed (line 8, page 39, transcript PC meeting on 12 August 2015).

 

 

8.2        Transcripts of the Magoebaskloof BOC meeting

 

The transcripts of the Magoebaskloof BOC shows that the Commissioner did in fact take part in the discussion on the Farlam Recommendations. The transcripts on page 7 show that the National Commissioner asked why there was silence on the matter. Her comments appear to urge the Provincial Commissioners to respond to the media reports as the transcript shows (line 12, page 7, transcript of Magoebaskloof meeting):

 

Chairperson: I hear you General. And I’m not here really to talk about – you are the police. And you are the leaders. But all I can say is that everybody saying everything about you, about your work, but your silence is deafening. It’s deafening. And I’m not sure whether that defence will ever come through because we don’t show that boldness in terms of our members. Leadership is cowering under the tables where – and I am not saying fight the report – at a time where our opinion matters, our opinion is not anywhere. And it’s a (intervention) of every other person – everybody will talk for the police.

So I – you see, when it comes to that, General, I don’t know whether we would even be able to convince our members. Part of this effort, General Mothiba, for me, I was just saying this silence is deafening. I‘m concerned about the members. And I am not sure that the leadership is standing up to say, Mamalani, this thing has to be looked into.  So when we started this process of reaching out, I was saying I’m not sure because you see, in any case I am conflicted because of the issues.

 

The transcripts reveal that the discussion on the Farlam Commission recommendations confirm that the Provincial Commissioners were aggrieved by the negative press reports and they asked Lt. Gen Makgale to assist in responding to the press reports. (line 21, page 17, Magoebaskloof transcript).

 

An acting Provincial Commissioner indicates that they have to respect and respond to the Farlam recommendations and abide by the Constitution (line 10, page 30, Magoebaskloof transcript), the comments strayed very close to impugning the Constitutional Order in view of the Farlam Commission’s Report. General Mbekela indicates that she had a problem with the Farlam Commission from its start and indicated that she was never going to attend the Commission (line 13, page 33, Magoebaskloof meeting transcript).

 

It is important to note that the chairperson of the Magoebaskloof meeting was the National Commissioner, General Phiyega.

 

The Acting Provincial Commissioner mentioned the following (line 6, pg. 29):

 

General, who were the Judges when they were attacked, they stood up? And we have a Constitutional (indistinct) which has to be developed. Between anarchy and honour, it’s us.

 

The discussion reflected in the transcripts cannot be separated from the official minutes which do not capture the emotion of the Provincial Commissioners. The SAPS leadership clearly see themselves as the line between anarchy and order in this version of the documents.

 

The minutes show that the Provincial Commissioners discussed the matter of the statement over lunch (minutes, p18). There is no indication that the National Commissioner attended this discussion at lunchtime.

 

The transcripts of the meeting of the Portfolio Committee (line 8, page 39) show that General Mbekela indicated that the National Commissioner was not part of the discussions around the matter of issuing a statement. However, the Magoebaskloof meeting transcripts show that she participated actively in the discussion on the Farlam Commission recommendations and chaired it, even though she said she was conflicted.

 

The Portfolio Committee was also told by General Mbekela that the National Commissioner did not issue an instruction for the release of the press statement (line 23, pg. 39).

 

It is quite clear from the Magoebaskloof minutes and the transcripts that a disjuncture exists between them and the police commissioners who attended the Magoebaskloof meeting were less than frank when appearing before the Portfolio Committee on 12, 18 and 28 August 2015.

 

 

8.3        Committee Findings with respect to the BOC and the Magoebaskloof meeting

 

8.3.1     The Committee finds that the BOC and senior officials misrepresented what happened     at the Board of Commissioners meeting with respect to the role of the National   Commissioner.

 

8.3.2     The Committee finds that the transcripts of the meetings considered did not verify what   the SAPS told the Portfolio Committee at its meetings on 12, 18 and 28 August 2015.           The transcripts of the meetings show a different version to that of the minutes produced     by the   police on the Magoebaskloof meeting. It showed that the National             Commissioner attended the meeting, chaired the meeting while discussing the Farlam      Commission,     while the minutes indicated that she was conflicted.

 

8.3.3     The Committee finds that the SAPS Management made up of the full complement of       Provincial Commissioners, the Head of Corporate Communication, an acting Divisional        Commissioner and the two Deputy National Commissioners misrepresented the facts           in their interactions with the Committee on 1 August 2015 about the Magoebaskloof             Board of Commissioners meeting held on 15 and 16 July 2015.

 

8.3.4     The Committee finds that the SAPS leadership tried to inform the Committee that she      played no role in the meeting and that she was conflicted. The minutes of the BOC      reflected this position. The transcripts however showed that the National            Commissioner was actively encouraging them to speak out in the media.

 

8.3.5     The Committee finds that their conduct was in total disregard of a call to refrain from       issuing media statements until the processes instituted by the President had been concluded.

 

8.3.6     The Committee finds that the statements embarrassed the Executive Authority and the     police as a whole.

 

8.3.7     The Committee notes that the statements were issued to all SAPS members and finds     that in view of the fact that the statements were not discussed with the Executive     Authority, despite the fact that the SAPS leadership knew that it had local and           international implications and impact.  

 

8.3.9     The Committee finds that the aim of the statement was to influence the decision of the    President. Even if this were not a direct intention of the BOC, since its statement was            released after the National Commissioner had submitted her response to the             President, the President still had to consider her response and only thereafter decide      whether she should be subjected to an inquiry in terms of section 9 of the Police Act             as recommended by the Commission.

 

8.3.10   The Committee finds that the BOC’s conduct was therefore inconsistent with the principle that an interested party should not conduct themselves in a manner that may      be perceived as trying to influence the outcome of a process before it has been        concluded.

 

 

 

9.         The role of the National Commissioner

 

According to the Deputy National Commissioner for Corporate Services the National Commissioner was not present in Magoebaskloof at the meeting where the 1st statement was discussed. She also indicated that the National Commissioner also did not issue a statement in that regard (line 8, page 39, transcript of PC on 12 August 2015.) The Committee probed the involvement of the National Commissioner in the statement during the meeting.

 

It became clear that when initially questioned about who attended the meeting, Lt. General Makgale omitted to indicate that the National Commissioner attended and chaired the meeting at Magoebaskloof (line 10, page 29, transcript of the PC meeting on 12 August 2015). Only after the Committee probed did he admit that the National Commissioner attended and chaired the meeting (line 18, page 34, PC meeting on 12 August 2015).

 

The Deputy National Commissioner for Policing, General Sitole reported that the National Commissioner stated that she was conflicted during the discussion (line 7, page 48, transcript PC meeting on 12 August 2015). Members of the Committee pointed out that while the issue of the Farlam Commission was debated, the National Commissioner was present, chaired the meeting and did not recuse herself, despite indicating that she was conflicted. This action on the part of the National Commissioner constituted a conflict of interest because the Farlam Recommendations directly affected and concerned the National Commissioner and yet she took part in the response of the SAPS. The National Commissioner also took part in the meeting where the 2nd press statement was discussed. Members of the Committee also pointed out that the members of the BOC must have known that she was conflicted, but continued with the discussion as pointed out earlier in this Report. Members pointed out that this was not in keeping with good governance principles.

 

General Sitole informed the Committee that when the SAPS realises that a matter escalates to the political level, the SAPS ask the National Commissioner to raise it with the Minister (line 5, page 56, transcript PC meeting 12 August 2015). Given that the Farlam Report had international and national implications for South Africa, Members pointed out that the National Commissioner should have discussed it with the Executive Authority. Committee Members pointed out that the Deputy Minister reported to the Committee that neither she nor the Minister was consulted on the statement that was issued on 1 August 2015.  

 

 

 

9.1        Committee Findings with respect to the National Commissioner 

 

9.1.1     The Committee finds that the transcripts also show that the National Commissioner          actively encouraged the police commissioners to respond to media reports and not to     cower under the table. It became clear during the course of the deliberations that the            National Commissioner urged the Commissioners to speak out. She lamented the             silence of the SAPS senior management in the light of the attacks on the police.

 

9.1.2     The Committee finds that the fact that the National Commissioner chaired the Board        of Commissioners meeting that discussed the Farlam Report and recommendations,            knowing full well that she was the subject of some of the recommendations was a            conflict of interest.

 

9.1.3     The Committee finds that the National Commissioner did not recuse herself from that      portion of the meeting that discussed the recommendations, is not in keeping with good      governance principles.

 

9.1.4     The Committee finds that the role of the National Commissioner at the Magoebaskloof    meeting on 15-16 July 2015 and her role in the meeting on 12 August 2015, was not   in keeping with good corporate governance and contributed significantly to the lead in          to the statements issued by the BOC.

 

9.1.5     The Committee finds that the National Commissioner knew that she was the subject         of recommendations by the Farlam Commission but yet participated in a meeting of the BOC that had the matter of the recommendations on the agenda. She did not       recuse herself from the meeting, choosing instead to chair the meeting and asked the     commissioners to break their silence on media attacks on the SAPS.

 

9.1.6     The Committee finds the National Commissioner deviated substantially from the role       of an accounting officer who has a duty of care to ensure compliance with directives from the Executive Authority and Parliament. She allowed her own interests to become       that of the SAPS leadership and did not stop the process when she could have,             instead, she encouraged her Provincial Commissioners to issue a statement.

 

9.1.7     The Committee finds that she must have known that the statements would have   impacted on the public discourse on the Farlam Recommendations and did not confer           with the Minister of Police and his deputy. The Committee finds this unacceptable.

 

9.1.8     Lastly, while knowing that the statements would have the effect of entering the political    arena, the National Commissioner made no attempt to stop the statements from being         released, or discussing it with the Executive Authority.

 

 

 

10.        Other Findings

 

10.1      The role of Lieutenant General Makgale

 

10.1.1   The Committee finds that Lieutenant General Makgale was obstructive, not          forthcoming and deliberately obfuscating the questions put to him. He was     uncooperative with the Committee and attempted not to provide full answers to the    Committee.

 

10.1.2   The Committee finds that his role in the interactions and deliberations has been to           deliberately mislead the Committee as to who ordered him to release the statement         and views his actions in a serious light.

 

10.1.3   The Committee must re-emphasise section 56 of the Constitution in this respect.

 

10.1.4   The Committee also finds that contrary to the version presented by the BOC of an           attack and mutiny against the SAPS, there was no unity amongst the top echelons of         the BOC. One deputy National Commissioner did not sign the statement issued by             Lt. General Makgale, while one Provincial Commissioner expressed his discomfort    with             the statement. 

 

10.1.5   The Committee finds that the distribution of the statements was aimed at canvassing       support for the National Commissioner and that it was not consistent with the governing principles in the police.

 

10.1.6   The Committee finds his actions inconsistent with the role of a high ranking officer of      his rank and status in the management echelon.

 

 

10.2      Press statements by individual Provincial Commissioners and Divisional       Commissioner Ntshiea

 

10.2.1   The Committee finds that the individual statements by the Provincial Commissioners       of the North West, Gauteng, Mpumalanga and the statement by Divisional     Commissioner for Human Resources violated the provisions of the Standing Order 156          because it prejudiced, embarrassed and discredited the SAPS.

 

10.2.2   The Committee finds that these officers did not follow the policy prescripts of the SAPS             and released their statements to support the National Commissioner.

 

10.2.3   The Committee finds that the Provincial Commissioner of Gauteng was not truthful with   the Committee on 12 August 2015 when he informed it that his provincial management            committee held a meeting to support the statement.

 

 

 

10.3      Civilian control of the Police

 

10.3.1   The Committee emphasised the importance of the principle of civilian oversight over       the SAPS in the Constitution. The Committee confirms the importance of adherence         by the SAPS to policy prescripts.

 

10.3.2   The Committee views the adherence to directives of the Minister of Police and    Parliament as critical for civilian control over the police. The Committee notes that the     conduct of the SAPS must take cognisance of this        important principle of civilian        control and the SAPS must take guidance from the        Executive Authority when it        comes to policing policy issues. 

 

10.3.3   The Committee deliberated on the Terms of Reference and had to make a           determination and findings on the matter before it. The Committee Findings are tied           up with the six questions posed in the Terms of Reference in addition to other findings:

 

 

10.4      Summary of the Findings

 

1)         Were the relevant officers truthful with their testimony in presenting the          facts leading up to the issuing of the said statements?

 

The BOC members who interacted with the Committee were not truthful with the Committee in presenting the facts as it unfolded in the Magoebaskloof meeting on 15 and 16 August 2015.

 

In their presentations before the Committee, the Commissioners were at pains to explain that their media intervention was divorced from commentary on the Marikana Commission report but merely strictly on policing matters. As stated above, the BOC’s desire to comment on the policing issues was in essence the need to respond to all parties that had commented on the Commission’s report.

 

Their decision to release a media statement arose out of their frustration that all and sundry had commented on the Commission’s report except the high echelons of the SAPS. The fact that the National Commissioner considered herself conflicted and choosing not to be part of the lunch time meeting to formulate the media statement is enough indication that the media statement had all to do with the Commission’s report and little or nothing to do with the policing issues that were contained in the media statements.

 

It is the Committee’s considered view therefore, that the transcript of the meeting of the BOC sets out the truth which the Commissioners were not prepared to acknowledge or own before the Committee.  The Committee note further that there was an attempt to play down the role of the National Commissioner at this meeting. It appears from the transcript that she was insistent that the BOC breaks its “deafening silence” and speak out.

 

 

2)         Whether the documents and electronic material made available to the             Committee verify the statements made during the said Committee meetings?

 

The fact that the National Commissioner considered herself conflicted and choosing not to be part of the lunch time meeting to formulate the media statement is enough indication that the media statement had all to do with the Commission’s report and little or nothing to do with the policing issues that were contained in the media statements.

 

The transcript of the BOC meeting evinces that the media statement was prompted by a discussion on the Commission’s report whereas in their presentations before the Committee sought to divorce the media statement from the discussions at the meeting of the BOC but to say that the media statement was as a result of responding to media statements about perceived rebellions and mutinies within the SAPS.

 

This contradiction therefore leads inevitably to the conclusion that the officers were not frank and candid when presenting before the Committee on the question whether the media statement represented a position taken by the BOC in regard to the Commission findings and recommendations.

 

3)         Was the relevant press statements made in compliance with the Standing       Order   156?

 

The statement of 1 August 2015 was issued in disregard of the Standing Order 156 in the following respects:

 

The statement had an effect of pre-empting the process that the President had initiated in respect of the Commission’s findings and recommendations. The statement had the effect of the BOC expressing support and allegiance to the National Commissioner in circumstances where they had to await the outcome of the process initiated by the President.

 

In addition, the statement was issued in total disregard of the statement issued by the SAPS on 26 June 2015 to the effect that will be made during the processes outlined by the President.

 

4)         Is the relevant conduct by the officers in line with good governance    principles?

 

The BOC acted contrary to Standing Order 156 and in disregard of the SAPS statement of 26 June 2015, they acted contrary to good governance principles by issuing the statement of 1 August 2015. Their conduct was in total disregard of a call to refrain from issuing media statements until the processes instituted by the President had been concluded.

 

 

5)         Did the conduct by the officers prejudice, embarrass and discredit the SAPS?

 

The Committee is of the opinion that both the statements purport to have been an effort to reassure the members and the public that the SAPS was continuing to do what is it required to do in terms of the Constitution and the Police Act despite the findings and recommendations of the Commission.

 

Indeed, this intervention may have reassured the members who were involved in the Marikana incident and those who may have been deployed to act in similar situations. The effect of the conduct is that it was embarrassing to the SAPS which had released a statement that there shall be no comment on the Commission until all processes under the command of the executive had been concluded.

 

It is the Committee’s considered view therefore that the SAPS remains embarrassed by this conduct because it contradicted its earlier statement that there should be no public pronouncements regarding the Commission Report.

 

 

6)         Was the press statements aimed at influencing the process by the President in           response to the recommendations of the Farlam Commission in relation to the           National Police Commissioner?

 

The BOC’s conduct was inconsistent with the principle that an interested party should not conduct themselves in a manner that may be perceived as trying to influence the outcome of a process before it has been concluded.

 

On the reading of the transcript of the BOC meeting of 15 and 16 July 2015 it is clear that the Commissioners were deeply aggrieved that there had been no response to the allegations made in the press and by commentators regarding the ability of the SAPS to function and regarding the National Commissioner’s fitness and propriety to continue in the position. The media statement that had been prepared during lunch time was not released immediately but only the day after the National Commissioner had submitted her response to the President.

 

This might be because the BOC was adhering to the SAPS statement of 26 June 2015 that no public pronouncements about the report, its findings and recommendations will be made. However, this does not address the difficulty that after the National Commissioner had submitted her response the President still remained to consider what cause of action to take in response thereto. The media statement of 1 August 2015 was therefore pre-emptive of a decision still to be taken.

 

It is the Committee’s considered view therefore that the issuing of the two statements was aimed at influencing the process by the President in response to the recommendations of the Commission in relation to the National Police Commissioner.

 

 

 

11.        Recommendations

 

11.1      The Committee recommends that the relevant Executive Authorities consider the appointment of Boards of Inquiry to inquire into the conduct of the relevant Provincial            Commissioners, and Acting Provincial Commissioners, who declared their support for            the suspended National Commissioner in a statement on 1 August 2015 and a second     statement on 13 August 2015, or any other appropriate steps.

 

11.2      The Committee recommends that the relevant Executive Authority consider          appropriate steps in relation to the conduct of the two Deputy National Commissioners,      one acting Divisional Commissioner and one Divisional Commissioner, who declared     their support for the suspended National Commissioner in a press statement sated 1             August 2015 and the second BOC statement dated 13 August 2015.

 

11.3      The Committee recommends that the relevant Executive Authority consider the    appropriate steps to inquire into the conduct of the Divisional Commissioner for Human        Resources, who declared her support for the suspended National             Commissioner in a         statement on 30 July 2015.

 

11.4      The Committee recommends that the relevant Executive Authority consider the    appropriate steps in relation to the conduct of the Head of Corporate          Communication, who issued the statement on 1 August 2015 and 13 August 2015;             declared his support for the suspended National Commissioner in a statement on 1         August 2015 and attempted to mislead the Committee on 28 August 2015.

 

 

11.5      The Committee recommends that the relevant Executive Authority consider the    appointment of a Board of Inquiry in relation to the conduct of the suspended National           Commissioner in relation to the process of keeping up and issuing the BOC statement,       dated 1 August 2015 and the second statement dated 13 August 2015, or any other         appropriate action. 

 

11.6      The Committee recommends that the Executive Authority report back to the        Committee on any other steps by 15 January 2015 that was taken with regard to the    above mentioned recommendations, or any other steps flowing from the said             Committee Report.  

 

11.7      The Executive Authority is to report back to the Committee on the final outcome and       determination with respect to the recommendations contained in this report.

 

 

 

 

 

 

 

 

 

 

End Notes

 

 

---

[1] Justice Phineas M Mojapelo, (Deputy Judge President of the Southern Gauteng High Court), The Doctrine of Separation of Powers (A South African Perspective), Paper delivered at the Middle Temple South Africa Conference, September 2012, Advocate, 2013, vol. 26 2013, available at: http://www.sabar.co.za/law-journals/2013/april/2013-april-vol026-no1-pp37-46.pdf , accessed 1 November 2015

[2] ibid

[3] ibid, p37

4 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4)   SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) , at p25 (c) 

 

 

TIMELINE OF EVENTS IN RELATION TO THE PORTFOLIO COMMITTEE ON POLICE RULE 201 INVESTIGATION INTO THE CONDUCT OF MEMBERS OF THE SAPS BOARD OF COMMISSIONERS (BOC)

 

26 June 2015		Farlam Report released
15, 16 July 2015		BoC Meeting at Magoebaskloof, Limpopo
26 July 2015		Phiyega must go article published in Sunday Times newspaper
26 July 2015		Gauteng Provincial Commissioner on the media reports on Marikana media statement released on behalf of Lt. Gen. Mothiba
30 July 2015		Response by Gen. Phiyega to President Zuma on the findings made by the Farlam Commission of Inquiry
30 July 2015		Hands off General Riah Phigega media statement released on behalf of Lt. Gen. Ntshiea
01 August 2015		SAPS BoC fully supports General Riah Phiyega media statement released on behalf of the BoC
12 August 2015		PC on Police meeting on BoC media statement released on 01 August 2015. The origin of the statement was interrogated and all Provincial Commissioners (except KZN), two Deputy National Commissioners and National Head of Communication were requested to apologise for the statement and to retract the statement.
13 August 2014		BoC releases second statement (not retracting original, but apologise for unintended consequences/misinterpretation).
18 August 2015		PC on Police meeting. Interrogated the rationale for and origin of the second BoC statement. All present Provincial Commissioners requested to either stand with the first apology or the second statement.
19 August 2015		PC on Police meeting. Requests made  for all relevant documentation for the Rule 201 Investigation into the conduct of the BoC
28 August 2015		PC on Police meeting. Terms of Reference (ToR) for the Rule 201 Investigation adopted.
23 September 2015		President Zuma announces the establishment of a Board of Inquiry into the ability of Gen Phiyega to hold office.
30 September 2015		Deadline for Gen. Phiyega to response to President Zuma on reasons for her not to be suspended.
14 October 2015		Gen. Phiyega suspended
16 October 2015		Provincial Commissioner of KZN appears before the Committee to tender apology for original BoC statement in support of Gen. Phiyega. Content Advisor takes Members through the initial analysis of the documents requested for the Rule 201 Investigation.
21 October 2015		Members read through the Rule 201 documents line by line and raised the key material issues.

The times on which the SAPS media statements were released are not available.