ATC240313: Report of the Select Committee on Security and Justice on the Independent Police Investigative Directorate Amendment Bill [B21B-2023] (National Assembly – S75), dated 13 March 2024

RELEVANT CLAUSE IN THE BILL

NAME OF THE ORGANISATION AND THE COMMENTS SUBMITTED

RESPONSE FROM THE DEPARTMENT

Clause 1 - Definitions

APCOF - National Preventive Mechanism (NPM) is an independent mechanism for the prevention of torture, either designated or established in accordance with Article 18 of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

This argument was exhausted in the PC hearings and the department has not changed its views. It was agreed that the issue of OPCAT should be covered in a separate legislation or in the existing Prevention and Combating of Torture of Persons Act, 2013

APCOF - Preventive Monitoring is making announced and unannounced visits to places where there are or may be persons deprived of their liberty to strengthen their protection and includes accessing all relevant documentation and persons and the ability to conduct confidential interviews.

This argument was exhausted in the PC hearings and the department has not changed its views. It was agreed that the issue of OPCAT should be covered in a separate legislation or in the existing Prevention and Combating of Torture of Persons Act, 2013

APCOF - Operational Independence means the ability of the organisation to fulfil its mandate using the legislated powers and means assigned to it, without undue influence from external parties.

The word “operational independence”  is not used in the Bill and therefore including it in the definitions when it is not used in the Bill would be inconsistent with the legislative drafting practice

APCOF - Institutional Independence is the ability of the organisation to insulate its role function and decision making through being able to provide of an independent process for appointment of its leadership, security of tenure, adequate resourcing and financial security.

The word “institutional independence” is not used in the Bill and therefore including it in the definitions when it is not used in the Bill would be inconsistent with the legislative drafting practice.

APCOF - Initiate means the initiation of the disciplinary proceedings based on the investigation report by the Directorate by:

(a) appointing the chairperson and the employer representative;

(b) serving the charge sheet upon the member; and (c) holding the first sitting within 30 days of the receipt of the recommendations from the Directorate;

(d) extend the invitation to IPID to bring evidence before the enquiry.

It is a drafting practice that words that are used only once in the text of the Bill should not be defined.  The definition proposed by APCOF will be considered when drafting the Regulations.

Clause 3 – Independence and Impartiality

APCOF - We submit that Section 4 can be strengthened by the inclusion of the following;

(a) by the substitution of subsection (1) of the following paragraph:

(1) The Directorate functions institutionally and operationally independent from the South African Police Service, the Municipal Police Service, and or any structure associated with the National or Provincial Secretariat of Police Services or Ombudsman where it exists.

(b) by the addition of the following subsection after the proposed subsection (2) -

(3) The Directorate has full legal capacity, is independent and is subject only to the Constitution and the law including this Act

The clause as it stands is sufficient for the intended purpose of the independence of IPID.

Section 2(f) of the principal Act encourages closer cooperation between IPID and the CSPS. Section 4(2) of the Act principal Act provides for cooperation between IPID and the other organs of State and therefore this proposal is not accepted.

WESTERN CAPE GOVERNMENT - It is proposed that subsection (2) of section 4 of the IPID Act be amended as follows:

“(2) Each organ of state must assist the Directorate to maintain its independence and its impartiality and to perform its functions effectively.”

Reference to IPID independence is already inherent in the Act and therefore this proposal is not accepted.

Clause 4 – Appointment of Executive Director

APCOF – Accordingly it is proposed that:

• Guidance is provided regarding the composition of the proposed Panel, and their appointment criteria.
• That the work of the Panel, be guided by the principles of openness, transparency and inclusivity, or and make the proposed recommendation to the Minister after due consideration to the candidate’s qualifications, skill and experience.

This argument was exhausted in the PC hearings and the department has not changed its views. The department is of the view that adequate consideration was provided to the clause.

Furthermore, with the provision proposed , it will be cumbersome and the candidate will not be appointed within the timeframe provided in the legislation, therefore this proposal is not accepted

ACJR - It is submitted that a similar open and transparent selection and appointment process be adopted in the legislation to call for applications, have public engagement and identify suitable candidates.

This argument was exhausted in the PC hearings and the department has not changed its views. The department is of the view that adequate consideration was provided to the clause.

Furthermore, with the provision proposed , it will be cumbersome and the candidate will not be appointed within the timeframe provided in the legislation, therefore this proposal is not accepted

CATHOLIC’S BISHOP CONFERENCE - There is no reason why the Director of IPID should not be appointed by a process similar to that which applies to the majority of heads of Chapter 9 Institutions, such as the Public Protector, the Auditor-General, and others. In other words, a procedure in which a committee of Parliament receives nominations and carries out an open, transparent selection process including public hearings. In such a process it would still be open to the Minister to nominate candidates – he or she would simply do so with no more power or influence over the process than anyone else.

11. We accordingly urge the Select Committee to amend section 6(1) of the principal Act so that it provides for a fully independent nomination and selection process. 

There is no justification to apply the appointment of a head of a Chapter 9 institution to that of a head of IPID. There are different criteria for both as the head of IPID is appointed in terms of Public Service Act and regulatory framework within government. Therefore this proposal is not accepted.

GFSA - We note, however, that the amendment to section 6 could be further strengthened to provide:

1.3.1 More detail on the nomination panel and its responsibility: We recommend that section 6(1) be revised to require that— The Minister appoint a panel of not more than five people with relevant expertise to interview candidates for the position of IPID Executive Director, and that the panel recommend up to three candidates to the Minister.

1.3.2 For how to respond should the relevant parliamentary committee reject the Minister’s nomination: We recommend that should this happen, that the nomination process have to be repeated.

This argument was exhausted in the PC hearings and the department has not changed its views. The department is of the view that adequate consideration was provided to the clause therefore the proposal is not accepted.

WESTERN CAPE GOVERNMENT - It is proposed that the term “the relevant Parliamentary Committee” be amended to “a Committee of the National Assembly”.

The wording in the Bill is specific and there is no confusion as to which committee is being referred to. This reference is consistent throughout the Bill. Changes can be considered to be made to the IPID Amendment Act, 2019 which has only one clause that needs to be amended.

CLAUSE 5 – Responsibilities of the Executive Director

ACJR - RELATIONSHIP WITH THE NPA

An important omission in law appears to require the NPA to make a decision within a reasonable time period and, importantly, to present the reasons why it has declined to prosecute. The decision not to prosecute may indeed be of great value to IPID in respect of its own performance and investigation standards.

It is the current practice that when the NPA refuses to prosecute, it will give reasons and IPID is entitled to apply for a review of NPA’s decision.

In prescribing timeframes will be encroaching on NPA’s legislative mandate. Proposal not accepted

Clause 13 – Remuneration and condition of service of Investigators

ACJR - We propose that this provision provide that salary be set by IPID within the allocated budget voted for by Parliament.

The current Bill addresses this issue sufficiently and elaborations will be provided for in the regulations, therefore proposal not accepted

Clause 14 (c) – Functions and Investigative powers

WESTERN CAPE GOVERNMENT – Subsections (6)and (7) introduce measures to effectively cause persons to be subpoenaed to appear before the investigator, or relevant provincial head. However, no penal provision is made for persons who, without just cause fail to comply with a directive of an investigator, despite proper service of the subpoena.

It is proposed that section 33 of the IPID Act be amended to specifically provide that any person who, without just cause fails to comply with a direction or request under section 24(6) is guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years

This provision is adequately captured in section 33(1) of the principal Act. Proposal not accepted

Clause 15 – Limitation of liability

WESTERN CAPE GOVERNMENT – To retain a measure of accountability on the side of the authors of the reports (members of the Directorate). It is proposed that the words, “in respect of anything” be removed from the subsection.

It is proposed that the subsection be re-worded as follows:

“A member of the Directorate is not liable for a finding, point of view, recommendation or investigation, made in so far as such is made or expressed in good faith and without gross negligence in performing a function in terms of this Act, and submitted to Parliament, the National Prosecuting Authority or any other relevant authority.”

With this in place, it becomes permissible for a determination to be undertaken on whether a report has been made in good faith as there will be a greater measure of accountability in respect of all the content of the report, finding or recommendation.

The drafting team has not accepted the proposal as it is in line with other legislation for example section 5(3) of the Public Protector Act.

Clause 16 – Type of matters to be investigated

WESTERN CAPE GOVERNMENT – It is proposed that section 28(1)(b) be amended as follows:

“deaths as a result of [police] the actions or omissions of a members of the South African Police or a member of a municipal police service, whether such a member was on or off duty

The word “action” includes both commission or omission. Therefore, this issue is adequately dealt with in the principal Act. Proposal not accepted

APCOF - Complaint relating to the discharge of an official firearm by any police officer

We submit that any complaint relating to the discharge of an official firearm by any police officer be retained.

ACJR -  Deleting s 28(1)(c) would have the effect of further entrenching impunity in the police for firearm misuse. The crisis in SAPS discipline was already noted in the submission to the Portfolio Committee on Police. It is therefore submitted that s 28(1)(c) be retained in its current form and that the proposed section 28(1)(gA) not be incorporated. It is submitted that the proposed section 28(1)(gA) be omitted as it is contrary to constitutional obligations international law and domestic legislation. The obligation is to prevent and combat torture and ill treatment under all circumstances and especially when police officials are implicated.

The explanation provided during the PC hearings that this would have a negative impact on IPID resources, still stands. Proposal not accepted.

The position of deleting Section 28(1)(c) remains. Where the discharge of a firearm leads to a situation of torture, attempted murder, murder or assault GBH, it would still be investigated by IPID. Therefore the proposal is not accepted.

GFSA  - As such GFSA urges that clause 28(1)(c) be amended as follows:

“Any offence involving a firearm as defined by the Firearms Control Act, 2000 (Act No. 60 of 2000) by any member of the South African Police Service or a member of a municipal police service, whether such member was on or off duty must be reported to the Directorate, which must investigate any such complaint. Failure to report such an offence to the Directorate constitutes an offence.”

Police officials are in any event allowed to discharge a firearm within the scope of their duties. The intention is therefore to align section 28 of the IPID Act with section 49 of the CPA and to focus only in instances where a police official has exceeded the bounds of “reasonable” use of force.

It is also not practical to investigate all cases of discharge of a firearm, this distracts IPID from focusing on other priority investigations. Furthermore, the success rate of following up all section 28(1)(c) cases is negligible as opposed to investigations of attempted murder. Proposal not accepted.

APCOF: TORTURE - We submit that the investigation of allegations of torture be separated from assault and provided as a standalone provision (f). There is no legal or logical basis to reflect these as two sub points in the legislation.

The two concepts cannot be used interchangeably and therefore the rationale for two subparagraphs remains. Torture is defined in terms of the Prevention and Combating of Torture of Persons Act, 2013. Proposal not accepted

1. - We support the proposed amendments to Section 28(1)(f) in so far as these provide that it should not be mandatory for IPID to investigate all cases of common assault that it is notified about.

Rather than being mandated to investigate all allegations of assault IPID should be provided with the discretion to investigate these cases or refer them to the SAPS for investigation. We therefore propose that Section 28(2) of the IPID Act should be amended to provide that: (2) The Directorate may investigate matters relating to: Systemic corruption involving the police; or

Common assault.

The door is not closed on the types of investigations that IPID can conduct, section 7(9) provides for this discretion and therefore there is no need to affect the proposed change section 28(2). Proposal not accepted.

APCOF:  ASSAULT - We submit that assault be included as the new provision (g). All complaints of assault as currently provided in law should be investigated by IPID. Not only is assault an abuse of power, but the distinction between assault common and assault with intent to cause Grievous Bodily Harm (GBH) is often subjective and only based on visible injury.

Section 7(9) of the IPID Act provides for this discretion upon receipt of a complaint, cause to investigate any offence committed by a member of SAPS or MPS and where appropriate refer such investigation to the National or Provincial Commissioner concerned. Proposal not accepted.

APCOF: PREVENTIVE MONITORING

We submit that the mandate of IPID be extended to include the monitoring of all police custody. This will allow IPID to play its role as assigned to it by its participation on the National Preventive Mechanism established under South Africa’s obligations following the ratification of UN OPCAT.

ACJR - Consideration should consequently be given to IPID as part of the National Preventive Mechanism (NPM) under OPCAT, and its powers and functions in relation to the requirements under OPCAT – to conduct regular monitoring visits to police stations.

Alternatively, serious consideration should be given to a lay-visitor scheme to enhance transparency around police detention.

This argument was exhausted in the PC hearings and the department has not changed its views. IPID does conduct cell inspections and submit reports to NPM and Parliament in their quarterly and annual reports

APCOF: SYSTEMIC RECOMMENDATIONS - Accordingly we submit that IPID mandate include a research component and which can provide greater emphasis on proactive engagements with the SAPS about the problems highlighted.

Noted. IPID has established a policy and research committee that deals with these matters

Clause 18 – Disciplinary recommendations

APCOF: SAPS DISCIPLINARY RECOMMENDATIONS - As the Committee can see the proposed amendment and the use of permissive word “may” as opposed to the peremptory word “must”, could have the unintended consequence that SAPS simply don’t initiate proceedings at all following a recommendation for IPID.

The “may” implies that SAPS does not have to wait for the outcome from IPID before they commence disciplinary proceedings. The discretion does not imply whether or not they may discipline or not. The discretion relates only to the timing of the commencement of the disciplinary proceedings. Proposal not accepted.

ACJR: SAPS DISCIPLINE

Clause 18 seeks to amend section 30 of the IPID Act by the insertion of subsection 30(aA) stating that National Commissioner “may initiate disciplinary proceedings after the investigation of allegations has been finalised by the Directorate and upon receipt of an investigation report from the Directorate’’.

It is submitted that there is nothing preventing the National Commissioner from conducting and concluding a disciplinary investigation against an employee while an IPID investigation focusses on alleged criminal conduct.

Noted and agreed

1. - Section 30(1)(a) of the IPID Act should be amended to provide that:

(1) ‘‘The Station Commander, or any member of the South African Police Service, a municipal manager, an executive head of a municipal police service, or any member of a municipal police service, must—

(a) immediately after becoming aware, notify the Directorate of any matters referred to in section 28(1)(a) to (gA); and Section 28(2)(a) to (b);

Section 7(9) of the IPID Act provides for this discretion upon receipt of a complaint, cause to investigate any offence committed by a member of SAPS or MPS and where appropriate refer such investigation to the National or Provincial Commissioner concerned. Proposal not accepted.

ISS:  Proposal: A new clause should be inserted to the effect that “The IPID Executive Director may request the SAPS or the MPS to temporarily suspend disciplinary steps PENDING the outcome of the IPID investigation in specific cases where the circumstance of the case warrants such suspension.”

This is outside the mandate of IPID, which is to make recommendations regarding disciplinary matters and does not step into the arena of the employer. Proposal not accepted.

GFSA: Ensure new policing groups are accountable

Finally, GFSA urges that the IPID Act be amended to ensure that new policing bodies such as the Western Cape’s Law Enforcement Advancement Programme (LEAP) officers and Gauteng’s Crime Prevention Wardens fall under the Directorate’s authority. While this would increase the responsibility put on IPD and require additional funding, it would mean that all policing structures fall under the same authority, thereby reducing the risk for loopholes and exceptions.

Accountability is most effective when citizens, in addition to the state, play an oversight role. An independent, effective and efficient IPID is critical to ensuring that policing bodies and members at national and municipal levels are truly held accountable. While there are a range of interventions that are needed to address underperformance by the police, having systems in place to stop the current culture of impunity is critical to helping build public trust in the police, which in turn is central to addressing the high and growing levels of crime in South Africa.

This proposal is at odds with the constitutional mandate of IPID