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ATC231129: Report of the Portfolio Committee on Police on the Independent Police Investigative Directorate (IPID) Amendment Bill [B21 – 2023] (National Assembly – Section 75), Dated 29 November 2023

Police

Report of the Portfolio Committee on Police on the Independent Police Investigative Directorate (IPID) Amendment Bill [B21 – 2023] (National Assembly – Section 75), Dated 29 November 2023

 

The Portfolio Committee on Police (the Committee), having considered the Independent Police Investigative Directorate Amendment Bill, 2023 [B21– 2023], referred to and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports the Bill with amendments [B21A – 2023]:

 

1.Introduction

 

The Independent Police Investigative Directorate (IPID) Amendment Bill, 2023 [B21-2023] (“the Amendment Bill”) was approved by the Cabinet for introduction in Parliament on 24 May 2023. Prior notice of its introduction was published in the Government Gazette No 48756, dated 07 June 2023. The Amendment Bill was subsequently introduced by the Minister of Police and referred to the Portfolio Committee on Police on 20 July 2023 (ATC No 96 – 2023) as a proposed Section 75 Bill (not affecting provinces). The Amendment Bill was officially tagged as a section 75 Bill by the Parliamentary Joint Tagging Mechanism (JTM) in terms of Joint Rule 106(6) on 16 August 2023 (ATC No. 100 - 2023). The Amendment Bill proposes amendments to various sections of the Independent Police Investigative Directorate Act, 2011 (Act No. 01 of 2011) (“the Principal Act”).  

 

In terms of National Assembly Rule 279(2), a Bill introduced by a Minister must be certified by the Chief State Law Adviser to be consistent with the Constitution and properly drafted in the form and style which conforms to standard legislative practice. The Office of the Chief State Law Adviser (OCSLA) did not certify that the Amendment Bill as constitutionally sound and drafted properly in the form and style which conforms to standard legislative practice. It is exceptionally rare for the OCSLA to refuse Constitutional certification, but in this instance, it was unavoidable as clause 4 of the Amendment Bill is in contradiction with the Constitutional Court in the judgement of McBride v Minister of Police and Another (McBride v Minister of Police and Another [2016] ZACC 30) (“McBride judgement”) relating to the structural and operational independence of the IPID.  The clause in question has been amended to include Parliamentary oversight in the appointment process of the IPID Executive Director in compliance with the McBride Judgement.

 

2.Objectives of the Amendment Bill

 

The objectives of the Amendment Bill are to amend the Independent Police Investigative Directorate Act, 2011, so as to:

  • amend and insert certain definitions;

  • provide for the Directorate’s institutional and operational independence;

  • provide that the Directorate must be independent, impartial and must exercise its powers and functions without fear, favour, prejudice, or undue influence in order to give effect to the judgment of the Constitutional Court in the case of McBride v Minister of Police and Another;

  • amend the provisions relating to the appointment of the Executive Director of the Directorate;

  • broaden the Executive Director’s responsibilities in respect of the referral of complaints regarding disciplinary matters;

  • provide for pre-employment security screening investigations to be conducted by the Directorate;

  • provide for the conditions of service of investigators to be determined by the Minister;

  • provide for the Directorate to investigate any deaths caused by the actions of a member of the South African Police Service or a member of a municipal police service, whether such member was on or off duty;

  • provide for the Directorate to investigate a rape by a member of the South African Police Service or a member of a municipal police service, whether such member was on or off duty;

  • strengthen the provisions relating to the implementation of disciplinary recommendations;

  • provide for a savings provision regarding the conditions of service of existing investigators and provincial heads;

  • amend other provisions of the Independent Police Investigative Directorate Act, 2011, so as to ensure that the Directorate executes its mandate effectively and efficiently; and to provide for matters connected therewith.

 

3.Meetings of the Committee

 

The Portfolio Committee on Police had nine scheduled meetings on the IPID Amendment Bill, held on:

  1. 30 August 2023: Introduction of the Amendment Bill

  2. 18 October 2023: First day of public hearings

  3. 25 October 2023: Second day of public hearings

  4. 01 November 2023: Deliberations

  5. 08 November 2023: Deliberations

  6. 10 November 2023: Clause-by-clause deliberations

  7. 15 November 2023: Further clause-by-clause deliberations

  8. 22 November 2023: Consideration of the A-list/A-version of the Bill

  9. 29 November 2023: Adoption of the Committee Report on the Bill and IPID Amendment Bill in its entirety.

 

4.Amended clauses of the Bill

 

Clause 1

 

  1. On page 3, after line 9, to insert the following paragraph and to renumber paragraphs (e) to (i) accordingly:

"(e) by the deletion of the definition of "fixed date".

  1. On page 3, in line 20, to omit "definitions, respectively" and to substitute "definition".

  2. On page 3, from line 21, to omit "'Programme Manager' means a person appointed to head a Unit or Programme of the Directorate;".

 

Clause 4

 

  1. Clause rejected.

  2. That the following be the new clause:

"Appointment, remuneration and conditions of service of Executive Director

 

6. (1) The Minister must—

  1. appoint a panel to assist the Minister to identify suitably qualified candidates for appointment as the Executive Director, in accordance with a procedure determined by the Minister; and

  2. nominate a suitably qualified person and submit the name of such person to the relevant Parliamentary Committee.

            (2) The relevant Parliamentary Committee must, within a period of 30 parliamentary working days from the date of the submission of the name of the suitably qualified person contemplated in subsection (1)(b), confirm or reject such nomination.

            (3)(a) In the event of the nomination made in terms of subsection (1)(b) being confirmed by the relevant Parliamentary Committee, the Minister must appoint the nominated person as the Executive Director to head the Directorate in accordance with the responsibilities listed in section 7, for a non-renewable period of seven years.

            (b) The person to be appointed as Executive Director must—

  1.  

  2.  

(iii) possess an appropriate qualification in law, safety and security, or in administration of criminal justice or forensic investigation;

(iv) have knowledge of safety and security, the policing environment and public administration for a cumulative period of between eight to 10 years at senior management level, at least three years of which must be within an organ of state as defined in the Constitution; and

(v) with due regard to his or her experience, demonstrate high levels of conscientiousness, integrity and commitment to human rights.

            (4) The remuneration, allowances, benefits and other terms and conditions of service of the Executive Director must be determined by the Minister, with the concurrence of the Minister responsible for Finance.

            (5) (a) When the Executive Director is unable to perform the functions of office, or when the Executive Director position is vacant, the Minister may, with the concurrence of the relevant Parliamentary Committee, designate another person to act as Executive Director until the Executive Director returns to perform the functions of office, or until the vacant post is filled; and

                                                (b)In the event of the Executive Director position being vacant, the position must be filled within six months from the date of such vacancy in accordance with the process contemplated in subsections (1) to (4).

                        (c)If the vacant Executive Director position is not filled within a period of six months, the Minister must provide the relevant Parliamentary Committee and the Minister for Public Service and Administration with reasons for the delay and request an extension of the period which must not exceed a further period of six months.".

 

 

Clause 5

 

  1. On page 4, in line 41, to omit "complaints" and to substitute "recommendations".

  2. On page 4, in line 47, to omit "complaints" and to substitute "recommendations".

  3. On page 5, in line 8, to omit "municipal police [services] service" and to substitute "[Municipal Police Services] municipal police service".

 

Clause 6

 

  1. On page 5, in line 13, to omit "of the heading for" and to substitute "for the heading of".

  2. On page 5, in line 16, to omit "of subsections (3), (4), (5), (7) and (8) for" and to substitute "for subsections (3), (4), (5), (7) and (8) of".

  3. On page 5, in line 18, to underline "(a)".

  4. On page 5, in line 22, to omit "Once" and to substitute "once".

  5. On page 5, from line 30, to underline "pre-employment".

  6. On page 5, in line 38, to underline "if" after the comma.

  7. On page 5, in line 39, to omit "causes [him or her]" and to substitute "[causes him or her]".

  8. On page 5, in line 40, to omit "to believe" and to substitute "[to believe] believes".

 

Clause 8

 

  1. On page 5, in line 55, to omit "[(9)]" and to substitute "[, (9)]".

 

Clause 10

 

  1. On page 6, in line 8, to omit "Amendment" and to substitute "Repeal".

 

Clause 12

 

  1. On page 6, after line 14, to insert the following paragraph:

"(a) by the substitution for subsection (1) of the following subsection:

'(1) The Executive Director, in consultation with the relevant provincial head, must, in the prescribed manner, appoint a fit and proper person as an investigator of the Directorate, subject to subsections (2), (3) and (4).' ".

  1. On page 6, in line 15, to omit paragraph (a).

  2. On page 6, after line 15, to insert the following paragraph:

"(b) by the substitution in subsection (2) for paragraph (a) of the following paragraph:

'(a) must have at least a grade 12 or equivalent certificate [or] and a relevant diploma or degree; and' ".

 

  1. On page 6, in line 16, to omit "(b)" and to substitute "(c)".

  2. On page 6, in line 22, to omit "(c)" and to substitute "(d)".

 

 

 

 

Clause 14

 

  1. On page 6, in line 42, to omit "of paragraph (a) for" and to substitute "for paragraph (a) of".

  2. On page 6, after line 49, to insert the following paragraph:

"(c) by the deletion of subsection (5); and".

  1. On page 7, in line 1, to omit "(c)" and to substitute "(d)".

  2. On page 7, in line 2, after "must" to insert ", where the person is not cooperative,".

  3. On page 7, in line 5, to omit "director" and to substitute "head".

  4. On page 7, in line 8, to omit "director" and to substitute "head".

  5. On page 7, in line 10, to omit "director" and to substitute "head".

  6. On page 7, in line 29, to omit "Programme Manager,".

  7. On page 7, in line 29, to omit "director" and to substitute "head".

 

Clause 16

 

  1. On page 7, in line 45, after "a" to insert "member of a".

  2. On page 7, in line 50, to omit "];" and to substitute ";]".

  3. On page 8, in line 6, to omit "and" and to substitute "or".

  4. On page 8, in line 13, after "service" to insert ",".

  5. On page 8, in line 22, after "firearm" to insert ", or through the use of any weapon or instrument,".

  6. On page 8, from line 25, to omit paragraph (h) and to substitute the following paragraph:

  " '(h) any other matter referred to it as a result of a decision by the Executive Director, or a provincial head, or if so requested by the Minister, an MEC, National Commissioner, or the appropriate Provincial Commissioner, National Head or the appropriate Provincial Head of the Directorate for Priority Crime Investigation, executive head of the relevant municipal police service, municipal manager, or the Secretary, as the case may be, in the prescribed manner.'; and".

 

Clause 17

 

  1. On page 8, in line 43, to omit "[or municipal police service]" and to substitute "[or Municipal Police Service]" and to underline "a".

 

Clause 18

 

  1. On page 8, in line 59, to omit "(7)], must" and to substitute “[,must]".

  2. On page 9, in line 2, to omit "only" and to substitute "may".

  3. On page 9, in line 5, to omit paragraph (c).

  4. On page 9, after line 5, to insert the following paragraph:

"(c)       by the substitution for paragraph (b) of the following paragraph:

  '(b)must quarterly submit a written report to the Minister on the progress regarding disciplinary matters made in   terms of paragraph (a) and provide a copy thereof to the Executive Director and the Secretary; [and]' ".

  1. On page 9, in line 6, to omit "of paragraph (c) for" and to substitute "for paragraph (c) of".

  2. On page 9, in line 7, before "immediately" to insert "must".

  3. On page 9, in line 11, to omit "and".

  4. On page 9, in line 12, to omit "paragraph" and to substitute "paragraphs".

  5. On page 9, in line 17, to omit ".”." and to substitute "; and".

  6. On page 9, after line 17, to insert the following paragraph:

"(e)  where the sanction is considered inappropriate the Directorate may request the National Commissioner, or the appropriate Provincial Commissioner, National Head or the appropriate Provincial Head of the Directorate for Priority Crime Investigation, or the executive head of the relevant municipal police service to review the sanction.".

 

Clause 19

 

  1. On page 9, in line 20, to omit "of paragraph (b) for" and to substitute "for paragraph (b) of".

 

New Clause

 

  1. On page 9, after line 23, to insert the following new clause:

 

"Amendment of section 33 of Act 1 of 2011

 

            20.       Section 33 of the principal Act is hereby amended—

(a)        by the substitution for subsection (3) of the following subsection:

'(3) Any [police officer] member of the South African Police Service or a member of a municipal police service who fails to comply with section 29 is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.'; and

 

(b)        by the addition of the following subsection:

'(6) The National Commissioner, or appropriate Provincial Commissioner, national Head or appropriate Provincial Head of the Directorate for Priority Crime Investigation or the Executive Head of the relevant municipal police service who fails to comply with section 30 is guilty of an offence and liable to a fine or to imprisonment for a period not exceeding two years.' ".

 

Clause 20

 

  1. On page 9, in line 25, to omit "20." and to substitute "21.".

  2. On page 9, in line 26, after "deletion" to insert "in subsection (1)".

  3. On page 9, from line 26, to omit "of subsection (1)".

  4. On page 9, in line 31, after "format" to insert "and time-frames".

  5. On page 9, after line 37, to insert the following paragraph:

"(oE) the criteria to be followed in appointing investigators;".

  1. On page 9, in line 38, to omit "(oE)" and to substitute "(oF)".

 

Clause 21

 

  1. On page 9, in line 41, to omit "21." and to substitute "22.".

 

Clause 22

 

  1. On page 9, in line 49, to omit "22." and to substitute "23.".

 

Clause 23

 

  1. On page 10, in line 6, to omit "23." and to substitute "24.".

 

Long Title

 

  1. On page 2, in line 9 of the long title, to omit "complaints" and to substitute "recommendations".

 

 

5.Public participation process and public hearings

 

5.1.Advertisement calling for public comments

 

The call for public submissions was opened on 12 September 2023 and the advertisement was published in all official languages in national and regional newspapers. The deadline for submissions was set for 02 October 2023 and was extended to 06 October 2023 to allow for late submissions.

 

The call for public comment was published in the following newspapers:

  • Cape Times (English/National)

  • Die Burger (Afrikaans)

  • Isoleswe (isiZulu)

  • Isolezwe (isiXhosa)

  • Business Ink (se Tswana)

  • Bushbuckridge News (xiTsonga)

  • Coal City News (siSwati)

  • Ngoho News (tshiVenda)

  • Nthavela News (sePedi)

  • Thembisile Hani News (isiNdebele)

  • Free State Sun (seSotho)

 

The total cost of advertisements amounted to R132,584.33.

 

Additional to the publication of the call for submissions, a social media campaign was launched to create public awareness of the Amendment Bill, several media statements were issued by the Committee’s Chairperson and the Committee directly invited 17 stakeholders in the policing environment to comment on the Bill. 

 

5.2.Public submissions received by the Committee

 

The Portfolio Committee on Police received 22 substantive public submissions on the IPID Amendment Bill, 2023 [B21-2023], including the following (listed in alphabetical order):

 

  1. Africa Criminal Justice Reform (ACJR) (Dullah Omar Institute at the University of the Western Cape)

  2. Action Society

  3. AfriForum

  4. African Policing Civilian Oversight Forum (APCOF)

  5. Association for the Prevention of Torture (APT)

  6. Centre of Criminology (University of Cape Town)

  7. Southern African Catholic Bishop’s Conference Parliamentary Liaison Office (CPLO)

  8. Daneel Knoetze (View Finder)

  9. Mr Emmanuel Chauke

  10. FW de Klerk Foundation

  11. Freedom of Expression Institute (FXI)

  12. Gun Free South Africa (GFSA)

  13. Helen Suzman Foundation

  14. Independent Policing Union of South Africa (IPUSA)

  15. Institute for Security Studies (ISS)

  16. Ms Mary de Haas

  17. Ndifuna Ukwazi

  18. Police and Prisons Civil Rights Union (POPCRU)

  19. South African Human Rights Commission (SAHRC)

  20. South African Policing Union (SAPU)

  21. Western Cape Government (WCG)

  22. Willy Ditlhakel (Mr)

 

The Committee received 37 non-substantive submissions through the organisation Dear South Africa, of which all were not in favour of the Amendment Bill. Based on previous precedents set, non-substantive submissions from Dear South Africa are dealt with as a single submission. 

 

Most submissions highlighted the high crime rate, increase in police criminality and misconduct as well as the effect thereof in eroding public trust, highlighting the importance of an independent police investigative Directorate. Coupled with this is the significant power vested in law enforcement agencies to use deadly force and deprive citizens of liberty. Submissions also raised concern about the fact that the IPID Amendment Act, 2019 (Act No. 27 of 2019), which was assented to by the President, has still not been operationalised by the gazetting of the date into which it comes into operation (insertion of Section 6A). The Committee’s attention was further drawn to South Africa’s obligations under a number of the treaties and protocols that articulate the international human rights framework to which South Africa is a signatory, notably the Optional Protocol to the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (OPCAT), which was ratified by Parliament in 2019 and is yet to be domesticated in national legislation.

 

The majority of submissions were based on clause 4 relating to the appointment, term of office and remuneration of the IPID Executive Director, and clause 16 amending section 28 of the Principal Act related to the categories for IPID investigations. However, submissions were received on all clauses and the diversity of comments and identified areas of concern illustrate the usefulness and value of public participation in Parliament’s legislative process.

 

 

 

5.3.Public hearings held by the Committee 

 

The Portfolio Committee on Police hosted two days of public hearings on the Amendment Bill. In an effort to accommodate stakeholders that requested oral presentation, the Committee had one public hearing on a virtual platform on 18 October 2023 and the other during a physical meeting of the Committee held in Room S12A, NCOP Building on 25 October 2023. In total, the Committee heard 17 oral presentations on the Amendment Bill.

 

5.4.Public participation report

 

The Committee adopted its public participation report on 08 November 2023 and it was published in the ATC for noting on 09 November 2023.

 

6.Preventive Custody Monitoring

 

South Africa ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (OPCAT) in June 2019 and it came into force (for South Africa) on 20 July 2019. Under article 3 of the OPCAT, States Parties must designate, maintain or establish a domestic mechanism to strengthen the protection of persons who are, or may be, deprived of liberty.

 

In the South African context, the National Preventive Mechanism (NPM) includes the following institutions:

  • South African Human Rights Commission (SAHRC or Commission)

  • Judicial Inspectorate for Correctional Services (JICS or Judicial Inspectorate)

  • The Office of the Military Ombud (OMO)

  • The Office of the Health Ombud (OHO)

  • The Independent Police Investigative Directorate (IPID).

 

Although Parliament has ratified the OPCAT in 2019, South Africa does not have legislation governing the NPM and, in lieu thereof, agreements have been concluded with the JICS, IPID and the Military Ombud to provide interim mechanisms for reporting within the framework of the OPCAT.

 

Various public submissions on the Bill proposed that the obligations under the OPCAT in terms of preventive custody monitoring should be included in the IPID Amendment Bill.

 

Based on public comments, the Committee requested a legal opinion from the Parliamentary Legal Services on whether preventive custody monitoring must be included in the Bill. According to the legal opinion provided, the inclusion of OPCAT obligations will extend to scope of the Bill to an extent that necessitates permission from the National Assembly (NA) to do so under NA Rule 286(4)(b). Once permission is granted by the NA to extend the scope of the Bill, the Committee must invite comments on subsequent amendments by means of advertisements calling for public comment for the same period as the original version of the Bill was advertised for, thus four weeks.  

 

During the Committee’s meeting on 01 November 2023, the Parliamentary Legal Advisor made reference to the Constitutional Court Judgement in the case brought against the Speaker of the NA (and others) by Doctors for Life International (CCT 12/05). Specific reference was made to paragraph 128 of the judgement that dealt with the question of whether a legislature has acted reasonably in discharging its duty to facilitate public involvement. The judgement stated that “Reasonableness also requires that appropriate account be paid to practicalities such as time and expense, which relate to the efficiency of the law-making process. Yet the saving of money and time in itself does not justify inadequate opportunities for public involvement.”

 

The Committee resolved not to extend the scope of the Bill to include obligations related to OPCAT:

  1. Time constraints on Parliament’s calendar before it rises in March 2024 was not used as an argument not to include the obligations under the OPCAT. The considerations not to extend the scope of the Bill was based on merits alone.  

  2. IPID's oversight functions are limited to the SAPS and MPS in terms of the Constitution and they cannot investigate other entities under the NPM, such as the Military Ombud, Health Ombud or JICS.

  3. Inclusion of preventive custody monitoring in the Bill will cause a fragmented approach to the implementation of the OPCAT where it is dealt with in different pieces of legislation.

  4. There should be one piece of legislation to give effect to the Convention. If not the Prevention and Combating of Torture of Persons Act, 2013, then a new piece of legislation to give effect to the Convention, which may be more appropriate.

  5. Although IPID does not have the capacity to fully implement preventive custody monitoring, the Directorate is fulfilling this mandate in cooperation with the SAHRC. The Directorate’s station monitoring tool has been adapted to adhere to the NPM/OPCAT standards.

 

The Committee resolved to facilitate a multi-disciplinary Parliamentary approach to consider a way forward to effect the obligations under OPCAT and the NPM, with the relevant Portfolio Committees, including Health, Justice and Correctional Services and Defence.  

 

7.Conclusion

 

Parliament’s Portfolio Committee on Police is satisfied with the positive and detailed discussions that took place during public hearings and deliberations. The Committee expresses its gratitude to the organisations and individuals that made submissions on the IPID Amendment Bill and reiterates the importance of public participation when Parliament deals with legislation.  

 

The Committee thanks the Minister of Police, Deputy Minister of Police, Civilian Secretariat for Police Service, the Independent Police Investigative Directorate, Parliamentary Legal Advisor, and the support staff of the Portfolio Committee on Police, in processing the IPID Amendment Bill. 

 

The Democratic Alliance (DA) reserved their rights on the report and the Amendment Bill. The Inkatha Freedom Party (IFP) did not reserve their rights but indicated that the caucus mandate must still be sought prior to the second reading debate.

 

8.Minority view

 

Clause 4 maintains the status quo in terms of the appointment of the IPID Executive Director as per the Principal Act. The minority view is that the clause insufficiently insulates the IPID from political interference as intended by the Constitutional Court in the McBride Judgement.

 

 

Report to be considered.

 

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