ATC191121: Report of the Select Committee on Security and Justice on the Independent Police Investigative Directorate Amendment Bill [B 25 – 2018] (National Assembly – sec 75), dated 20 November 2019:
NCOP Security and Justice
Report of the Select Committee on Security and Justice on the Independent Police Investigative Directorate Amendment Bill [B 25 – 2018] (National Assembly – sec 75), dated 20 November 2019:
The Select Committee on Security and Justice, having deliberated on and considered the subject of the Independent Police Investigative Directorate Amendment Bill [B 25 – 2018] (National Assembly – sec 75), referred to it on 4 September 2018 and classified by the JTM as a section 75 Bill, reports that it has agreed to the Bill without proposed amendments.
Background
Independent Police Investigative Directorate Amendment Bill (The Bill) before the Committee deals with the amendment of Section 6 of the Bill which stipulates the process of the removal of the Executive Director of the Independent Police Investigative Directorate (IPID). The PC on Police initiated the Committee Bill in order to give effect to the Constitutional Court judgment in McBride v Minister of Police and Another, which directed Parliament to enact legislation to remedy the Constitutional defects regarding the process for the removal of the Executive Director of the IPID by 5 September 2018.
- The Bill is tagged as a Bill to be dealt with in terms of Section 75 of the Constitution (a bill not affecting provinces).
- There are no financial implications associated with the Bill.
- The Bill was referred to the 5th Parliament Select Committee on Security and Justice on 4 September 2018.
- The 5th Parliament Select Committee advertised the Bill for public comment.
- The Bill lapsed at the end of the 5th Parliament.
- The 6th Parliament National Council of Provinces passed a resolution, on 17 October 2019, reviving the Bill and further, that the proceedings on these Bills should resume at the stage at which they were at the end of the term; and that where Committees have commenced with the processing of the Bills, work be accepted as having being done by Committees.
- Public participation process on the Independent Police Investigative Directorate Amendment Bill [B 25 – 2018] (National Assembly – sec 75)
The 5th Parliament Select Committee on Security and Justice advertised the Bill in print media and on electronic platforms of Parliament on 26 October 2018 with a deadline of 16 November 2018.
Independent Police Investigative Directorate Amendment Bill [B24-2018]: |
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- Summary of Submissions (See Annexure A):
- The Committee received seven written submissions from five organisations and two individuals.
- Most of the submissions refer to a process that is broader than the amendments contained in the current Bill before the Committee. The organisations, including IPID, wished to have the entire IPID Act reviewed.
- The majority of the submissions therefore contain recommendations related to broader amendments to the IPID Act as a whole, with a few concentrating on the specific amendments before the Committee.
- Committee consideration of the Independent Police Investigative Directorate Amendment Bill [B 25 – 2018]
The Select Committee received a briefing on the Bill on 11 September 2019 and a briefing from the Parliamentary Legal Adviser on 6 November 2019 on the written submissions. The Parliamentary Legal Adviser addressed the concerns raised in the submissions.
The Committee considered the written submissions amending additional areas of the IPID Act and noted that while there was a need for a broader review of the IPID Act, the best place to review the IPID Act was the Department of Police as advised by the Civilian Secretariat for Police Service. The Independent Police Investigative Directorate Amendment Bill before the Committee only seeks to remedy the Court identified unconstitutional provisions of the IPID Act.
The Committee agreed to restrict its focus to the remedy sought by the Court considering the matter had already exceeded the deadline set by the Court.
- Proposed Amendments agreed to
The Committee did not propose further amendments to the Bill.
- Consensus on the Bill
- Support for the adoption of the Bill was unanimous.
Report to be considered.
ANNEXURE A Summary of Public Submissions: IPID Amendment Bill. |
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ORGANISATION |
SUBMISSION
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COMMENTS |
1. |
African Policing Civilian Oversight Forum (APCOF) |
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The Submission as with many of the submissions hereunder falls outside of the scope of the current bill which only seeks to amend Section 6 of the Act to accommodate the Constitutional Court’s recommendations.
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2. |
Individual: James Furse |
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IPID makes recommendations to SAPS and this is an issue which the Committee has been monitoring in terms of whether or not SAPS is acting on IPID’s recommendations.
The punishment of police officers falls outside the ambit of the current amendments before the Committee. |
3. |
COSATU |
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4. |
Helen Suzman Foundation |
Stakeholder engagement process The HSF has had the benefit of reading the African Policing Civilian Oversight Forum’s (APCOF) submission to the Portfolio Committee. We make two comments in this regard: a) The APCOF submission references a Draft Bill finalised in November 2017, which was a product of the stakeholder engagement workshops facilitated by IPID. We understand that the Civilian Secretariat of Police (CSP) serves as a legislative partner to IPID, and that it plays a crucial role in placing relevant information before Parliament. We share APCOF’s concern that the Draft Bill, for various reasons, could not be deliberated on by Parliament. We hope that this consultation process reopens the possibility for the Draft Bill to be deliberated on.
Throughout the stakeholder engagement processes, emphasis was placed on creating a sufficient degree of independence within IPID. The Bill as it currently stands is deeply concerning as it only deals with a technical compliance with the Constitutional Court Order. It is our view that this undermines the intent of both the High Court and the Constitutional Court. We urge the Select Committee to use this opportunity to consider a broader amendment of the Bill, beyond what appears to be a mere copy and paste exercise from the South African Police Service Act 68 of 1995 (“SAPS Act”).
Substantive comments
The proposed section 6A (1)
The proposed subsection 1 of the new Section 6A of the Bill makes reference to “a Committee of the National Assembly”. This wording is drawn directly from Section 17DA (3) of the SAPS Act. The use of the words “a Committee” is ambiguous for the following reasons:
a) Section 1 of the SAPS Act makes reference to “the Standing Committees of the National Assembly and the Senate [sic] responsible for safety and security issues”;
b) “Committee” is defined in the IPID Act as follows: ““” means the Management Committee established under section 11”;
c) Section 6(2) of the existing IPID Act states, “The relevant Parliamentary Committee must, within a period of 30 parliamentary working days of the nomination in terms of subsection (1), confirm or reject such nomination.”
This Section makes clear reference to a Committee distinct from the Management Committee, through use of the words “relevant Parliamentary”. This anomaly must be addressed. Proposed section 6A(3)(a)
The proposed wording of this clause is drawn from Section 17DA (5) of the SAPS Act. The use of the word “Committee” is ambiguous for the same reasons set out above. Recommendations a) Insertion of the words “relevant Parliamentary” before the word “Committee” in the proposed Section 6A 1(a) to bring the clause in line with the wording in Section 6(2) of the IPID Act. b) Addition of the words, “and as contemplated in Sections 12, 13 and 14” in the definition of “Committee” in Section 1 of the IPID Act. c) Addition of the definition of “Parliamentary Committee”, in section 1 of the IPID Act, that describes the specific Committee referred to in Section 6(2) of the IPID Act and Section 6A of the proposed Amendment. This definition must make clear that the relevant Parliamentary Committee which is empowered to appoint the Executive Director in Section 6(2), is the same Parliamentary Committee referred to in the proposed Section 6A.
This distinction is important in order to differentiate it from “the Committee” as contemplated in Sections 11, 12, 13 and 14 of the IPID Act which concern the “Management Committee”.
Conclusion
There is room to improve the IPID Act beyond a mere technical incorporation of the SAPS Act, which effectively forms the entirety of this current Bill. Should the Select Committee decide against a broader consideration of the Bill, we caution that this opens up the proposed amendments to judicial review. The inclusion of appointment criteria and the procedural requirements of removal of the Executive Director are necessary additions to the IPID Act in order to ensure that IPID is imbued with a sufficient degree of operational and structural independence, as envisaged by the Constitutional Court. |
The Foundation recommends specific changes to the IPID Act broadly as has been raised by the other organisations supporting such a broad review of the Act. These recommendations fall outside of the ambit of the current amendments before the Committee.
Substantive Comments for consideration by the Committee during its deliberations on the Bill. |
5. |
IPID |
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The submission largely contains recommendations pertaining to the review of the IPID Act as a whole which falls outside the ambit of the current amendments before the Committee.
Substantive Comments in relation to Section 6 of the amendment bill for consideration by the Committee during its deliberations on the Bill. |
6. |
Individual Submission by Mr Buthelezi |
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7. |
Western Cape Government: Community Safety |
Specific recommendations to the Bill before the Committee is limited to the following:
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The recommendations are technical in nature. |
Documents
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