The Committee met to begin crafting its Draft Report into the contract of the Executive Director of the Independent Police Investigative Directorate (IPID), Mr Robert McBride, following referral of the matter by the Speaker and a High Court order. It was brought to the Committee’s attention that the Helen Suzman Foundation applied for leave to appeal the court order in the Pretoria high Court and the Constitutional Court. The committee has taken a view, after legal advice, to proceed with the processes as the work of the Committee was guided by the formal referral from the Speaker of the National Assembly, Rules of the National Assembly, IPID Act and the court order.
Members jointly contributed to the observations and findings of its Draft Report according to the topics which have guided the work and deliberations of the Committee over the past few days. Topics were the primary submissions of the Minister and Mr McBride, the IPID Act, appointment letter, performance agreements and assessments, Auditor-General reports and notes, briefings to the Committee and Committee Reports, IPID Amendment Act, applications for posts, security clearance, Public Service Commission letter, Public Protector investigation, Executive Authority-Accounting Officer governance framework and trust relationship, independence of IPID and current political context.
The Committee agreed to go through and finalise the Report the following day.
The Chairperson said the Committee would continue with its deliberations into the consideration of the renewal of the contract of the Executive Director of the Independent Police Investigative Directorate, Mr Robert McBride, as referred by the Speaker and in terms of the order of the North Gauteng High Court.
Yesterday, the Committee requested additional responses from Mr McBride on the two applications made to be head of Crime Intelligence and the Directorate for Priority Crime Investigation (DPCI). This information was received last night and was distributed to Members. Also received and distributed was the response of Mr McBride to the Public Service Commission (PSC) report. The Committee also received a letter from the Acting Director-General (DG) of the State Security Agency (SSA) regarding the status of security vetting of Mr McBride.
Helen Suzman Foundation Notice of Appeal
The Chairperson brought to the Committee’s attention a letter received last night from Webber Wentzel, acting on behalf of the Helen Suzman Foundation (Foundation), indicating that their application for leave to appeal against the order, handed down on 12 February 2019, was lodged in the High Court under the case 6175/19 and in the Constitutional Court under the case number CCT48/19 on Monday, 25 February 2019. Copies of these documents have also been served by hand and by email on the State’s Attorney’s Office on 25 February 2019. In terms of the section 18 of the Superior Court Act (2013), the lodging of the leave to appeal applications has the effect of suspending the operation and execution of the order. The notice said that this must be brought to the attention of the Portfolio Committee without delay and prior to any further steps being taken by the Committee.
The Chairperson said the authority of the Committee to proceed with this matter is not only based on the North Gauteng High Court order. There is a proper referral from the Speaker of the National Assembly (NA) in terms of the Rules of the NA and the Constitution to this Committee to deal with the matter. The only matter the Court deals with essentially is the timeline. The IPID Act also says that the Committee is competent to deal with the related matters in section six.
The Senior Parliamentary Legal Advisor said in essence the response to the Helen Suzman Foundation is that as long as section 6 of the IPID Act is still in the statute book, the Committee is working on the basis of this section. This section has not be set aside as being unconstitutional and therefore the Committee is entitled to base its action thereon. The court order regulates the matter of timing by when a decision must be made in terms of section 6 so the court order is not the basis of the Committee’s work.
Mr Z Mbhele (DA) agreed with the assessment that the Committee is competent to deliberate on, call for submissions and process those matters concerning renewal based on the referral from the Speaker and the oversight mandate of the Committee, broadly speaking. As he had expressed from the first day of deliberations, he was still more ambivalent about the concrete certainty of the correctness that the decision or determination around renewal firmly and squarely fell with the Committee only because there is a silence in section 6 of the IPID Act about this specific aspect and this has had to be inferred based on the clear assignment of rejection or approval of the nomination in a selection process. He would not confidently rebut the position outlined by the Chairperson as he was still ambivalent. After listening to the legal input from Parliament’s Constitutional and Legal Services Office to the Committee yesterday and reflecting further on the original submission of the Foundation, he was slowly becoming more persuaded to lean towards its position. His reading on other similar positions in the state architecture, including Chapter Nine institutions, the Public Protector, the Auditor-General and even in the SA Police Service (SAPS) Act, is for the position of the national head of the Hawks to be non-renewable. The Committee has been placed in an anomalous and invidious position which it should never have been placed in akin to a limbo, twilight zone and fumbling around. Until there is some sort of conclusive clarity from a competent and decisive body, he would reserve judgement. The Committee should not be surprised if it at some point, the process of the Committee over the past few days, and the supposed premise for it, is invalidated.
Mr L Ramatlakane (ANC) agreed with the summary of the Chairperson that the Committee had the jurisdiction to deal with the particular matter. It was said from the start of this process that the Rules give the Committee the responsibility and power to deal with this particular matter as referred to it. It is also part of the Constitutional Court judgement in inserting this role of the Committee. The Committee had also been directed by the North Gauteng High Court to deal with the matter and report back to the Court on it. The response of the Chairperson is supported. IPID is not a Chapter Nine institution. The next Parliament would have to deal with any weaknesses or gaps in terms of the IPID Act. Currently the matter before the Committee has been properly referred and the Committee should proceed accordingly.
Ms D Kohler Barnard (DA) agreed that the legislation does seems to be unclear as was revealed to the Committee and because it has been back and forth to court on various matters. As was revealed by the legal advisors yesterday, the leaning of the court comes down to the incumbent being in a position, or should be in a position, to determine whether or not they wish to take up a second term. This would ensure no political pressure is brought to bear in the dying months of the first term. It is all about the independence of the entity – the independence of IPID has been at the very crux of various court matters. The legislation is unclear and it is completely the fault of the Committee and the drafting of the law. The drafters of course must bear some of the blame but in the end the buck stops with the Committee. The legislation should have been crystal clear on the renewal process but it is very blurred and political pressure is being brought to bear – this is what the courts wish to, in any way, shape or form, prevent. She was quite sure the matter would end up in the courts and it is for them to determine. The Committee must now determine what it does and all the Committee was asked to do was report on the procedure and process and how far along it got along with it.
Ms A Molebatsi (ANC) was personally very happy that the Committee is within its mandate and was satisfied with progress made so far.
The Chairperson drew the attention of the Committee to NA Rule 227 (Ninth Edition) “A portfolio committee – must deal with Bills and other matters falling within its portfolio as are referred to in terms of the Constitution, legislation, these rules, the Joint Rules or by Resolution of the Assembly”. The Committee has this authority unless there is any action to the contrary.
In terms of procedure, during the last week, the Committee received a flood of unsolicited emails that it would be taken on review if a certain decision is taken. This shows there is clear indication the decision of the Committee would be taken on review. This is accepted. SA is a constitutional state and any administrative body can be taken on review. The Committee must ensure it adheres to its own Rules, the Constitution and recommended case law. The Committee notes the input from Webber Wentzel but the Committee must fulfil its task in terms of the referral.
The Chairperson asked if all Members received a copy of the letter from the Acting DG of SSA – the letter said the SSA records indicate the security clearance of Mr McBride lapsed at the end of November 2018. At the time of the security clearance lapse, the vetting procedures for Mr McBride were underway. The vetting process has not been completed due to certain delays.
The Committee received a five-page letter from Mr McBride detailing his applications to become head of Crime Intelligence and the Directorate for Priority Crime Investigation (DPCI). The letter also deals with the Public Service Commission (PSC) report with regard to the transfer of duties of a Deputy Director in IPID and withdrawal of her security clearance. There is also an annexure on forensic investigations through interception technologies.
At this stage of the proceedings there are no documents outstanding or complex matters for oral submission to the Committee. The Committee also exhausted the matter of further written submissions.
In terms of the framework of the draft Report, input on the discussions had will be included along with various findings of the Committee. As procedural practice, if there is disagreement with the view there is space to include this in the Report. In the introduction of the draft Report, the Committee would have to indicate the origins of the matter currently before it. In terms of timelines of the documents before the Committee, the process actually kicked off last year with the two letters forwarded to the Minister by Mr McBride. There is then the subsequent letters from the Minister to Mr McBride, the letters sent to the Speaker by the different parties and the directive made by the Speaker. The introduction of the Report sets the scene. The introduction would also have to reference the contract coming to an end and mention section six of the IPID Act with regard to renewal.
The Chairperson said there were excellent deliberations and inputs by Members over the past two days. Members were asked to make maximum contributions today. Members were invited to make broad remarks on the introduction of the draft Report.
Introduction of Draft Report
Mr Ramatlakane said the introduction of the Report is important to properly situate the matter before the Committee and what necessitated the process the Committee undertook – this is specifically the contract of the IPID Executive Director. The introduction should also talk to what activated the matter in a clear summarised way. The introduction would also have to explain the court order which directed the work of the Committee. The introduction should bring clarity and explanation of what is to follow in the Report. The legislative powers of the Committee should be clearly spelt out in the introduction especially given that some have already indicated they would take the Report on review.
Ms Kohler Barnard thought the Report should make it clear why the matter was not raised, put on the table and the process begun some six months ago. To her knowledge, the two letters sent to the Minister never came to the Committee – Members had no sight of the letters from McBride to the Minister asking about the extension of the contract. There should be clarity on the amount of time between the original query and the quite explosive response from the Minister a few weeks ago – it seemed it took months before the response of the Minister came through. The Committee should also explain that it had to hustle through a Committee Bill when it was not given the IPID Act to review in order to strengthen the independence of the entity. These aspects and datelines should be included to clarify and show what the Committee has done. The Committee has taken a lot of flack and blame which she did not think was all warranted. This is why it is important to clearly lay out in the Report why steps were not taken and why certain steps were taken, such as the Committee Bill, so that the reaching of this current point, independence and matters in the court are clear because the Committee is basically the key player throughout the whole show.
The Chairperson clarified that some of these factors would be specifically addressed in the findings of the report such as the IPID Act. It is important that the introduction of the Report make reference to all the relevant documentation which ignited the process and all relevant correspondence between the Executive Director, Committee and Minister in order to give a chronological basis of the process. This would outline what the Committee considered in its processes. This would also include the Rules and relevant references to the Constitution and IPID Act and listing of documents the Committee considered.
Mr Mbhele added that along with the introduction giving a detailed and accurate description and sequence of how the Committee landed up where it is, the introduction should also give sufficient contextualisation i.e. that the current process is one of several other possible scenarios which could have unfolded had the matter been handled otherwise. For example, if the Minister, upon receipt of Mr McBride’s September correspondence, had been of the mind that this matter of renewal is only for the competence of the Committee to handle and decicde, because there is a difference between deliberating on it and deciding on it, then the referral would have come to the Committee at that time. The Minister would not have waited to first inform Mr McBride, have the rebuttal by Mr McBride and threat of legal action, and only then refer the matter to the Speaker followed by the settlement in the court order before arriving at the Committee. There then would have been an earlier and much shorter route to get to where the Committee is now. Alternatively, if the Minister was of the mind not to renew, and stuck clearly within explicit provisions of the IPID Act and his powers, then he would have initiated an appointment or selection process which Mr McBride’s initial correspondence indicates, he was open to and in fact recommended. In this case, the matter would have ended up with the Committee but within its clearly provided for powers of confirming or rejecting the Minister’s nomination. This is the bigger context of where the Committee is and how it got here. It was never a fait accompli that renewal is in the competence of the Committee but it sort of ended up here.
Mr Ramatlakane did not agree with what he called the sponsored contextualisation of the matter. There was no agreement on this in the Committee’s deliberations. Some of the matters raised for inclusion in the introduction of the Report actually fell under background . After the introduction, there should be a section dealing with background. This section could speak to the background to the contract, when it was entered into, its duration etc. This is where the letters from Mr McBride to the Minister can be included – these letters are important because they activated the process the Committee is currently dealing with. These letters were very clear on the contract. The letter of the Minister should also be included in the background section with explanation as to what the letter was about and the reasons provided by the Minister and then the responses to the Minister’s reasons by Mr McBride.
The Chairperson said the background should also include reference to the court application in the North Gauteng High Court where the Committee was the second respondent – this process should be sketched as part of the broad framework as a valuable point of reference explaining the current situation. Also to be included is the matter around oral submissions and the advice the Committee received from senior counsel in this regard to explain the context and decision taken by the Committee on this. Although more process related, the background could also look at the approach the Committee adopted in dealing with the matter in terms of the source documents and using written information as the primary basis for coming to a decision.
Mr Ramatlakane suggested the Report outline, after the background section, the list of specified documents the Committee received. There should then be a separate list of the specific documents relevant to the subject matter which the Committee dealt with, referred to and deliberated on.
Ms Kohler Barnard said one matter which should have been cleared up by way of oral submission were the claims of Mr Nkabinde. There is a document saying the Public Service Commission (PSC) investigated all charges and found the allegations to be unfounded. However the letter the Committee received from Mr Nkabinde yesterday did not refer to these charges but referred to investigation of top cases. She did not know if the Commission investigated this matter and found it to be unfounded. The letter from Mr Nkabinde was unsatisfactory and provided little information. Oral submission would have provided the opportunity for this to be clarified because claims are being repeatedly made of those charges which the PSC has investigated and cleared Mr McBride of. It is very unsatisfactory and the she felt there are so many loose ends but the Committee is not really in the position to make a determination except believe the PSC.
The Chairperson responded that the Committee would go into the main submissions from the Minister and Mr McBride to get the input from Members on their observations and findings. He suggested the matter be parked until this point of discussion.
The Chairperson said the timeline the Committee adopted should also be included in the Report because it was confronted with a very much shortened process and deadline of 28 February 2019. During the process, Members dealt with relevant documents. However over the past two weeks, all Members received unsolicited emails from various individuals, institutions and anonymous sources but this cannot be taken as part of the record because it is not before the Committee. Different members received different requests. Certain individuals said they would take the Committee on review if certain decisions are taken but if the information was not before the Committee it cannot be considered as part of proceedings.
Ms Kohler Barnard asked if the Chairperson could provide a précis of what the court order said the Committee needs to do by the following day. Did the Committee need to determine whether there would be an extension or just to determine the process going forward?
A copy of the court order was provided to Ms Kohler Barnard.
Mr Ramatlakane agreed the Report should contain an explanation of the rules of the proceedings including the legal opinion received which provided direction on the Committee determining its own arrangement. This should be included in the Report with the timeframe in which the Committee would have to complete its work.
The Chairperson suggested the Committee move on to formulating observations beginning with the Minister’s reasons submitted to the Committee and the response by Mr McBride. The observations would be crafted for the approximately 18 substantive matters the Committee deliberated on over the past two days. Findings would follow the observations.
Mr Ramatlakane asked if the background section was followed by a heading dealing with deliberations – the Committee had a lot of deliberation on different matters and different views. The deliberations would be delineated according to the various topics the Committee discussed. Deliberations would then be followed by the section dealing with observations.
The Chairperson thought this would be useful to include all discussions and broad points made.
Ms Kohler Barnard thought each accusation should be coupled with the explanation or reputation of that accusation by Mr McBride. There simply cannot be a list of accusations with no reputation by the accused, as it seems, listed equally and given equal prominence.
The Chairperson reminded Members that the Committee is not dealing with a disciplinary process or formal appointment process. The Committee must, in terms of the referral, consider renewal, or non-renewal, of the contract. The content of the report must be built into the parliamentary framework of reporting. Sacred matters would be included but the process is not a disciplinary hearing per se, dealing with accusations and counteraccusations. The section on deliberations would outline the proceedings for uninformed readers – it would be a broad overview of matters put on the table.
Mr M Buthelezi (IFP) agreed but noted that every time the matter was engaged, it became more compounded. This is not a hearing but he agreed with Ms Kohler Barnard – someone reading the report would come to a certain conclusion therefore it is important to include responses to the accusations. This would allow for a fair and balanced discussion even for the Committee when it came to the conclusion of its consideration on the contract renewal. It is difficult but the Committee must be seen as being as neutral as possible.
Mr Ramatlakane did not disagree with Ms Kohler Barnard and Mr Buthelezi but pointed out the specific structure. For example, the deliberation would not just be listing matters but a summary of discussion. Observations then would start gravitating towards if there was agreement or dispute on specific matters. This would be followed by Committee findings on the list of almost 20 topics of discussion – this would contain some narrative. Recommendations would also be included.
Mr Mbhele questioned if Committee observations were the same as Committee findings i.e. simply a listing of what came before the Committee and commentary.
The Chairperson used the example of one topic of discussion, the contract – the Committee observation would say the Committee saw the contract between Mr McBride and the Minister and the dates contained therein.
Mr Mbhele said the Committee observations are a description statement of the facts while the Committee findings would then be the Committee’s assessment of the meeting of the fact.
Submission of the Minister and Mr McBride
Mr Ramatlakane said it is common cause that there was contract which existed between the Minister and Mr McBride and there has been no dispute of the existence of this particular contract. The observation should be clear on what the Committee was dealing with and what it was not dealing with, for example, the Committee is not dealing with removal or a disciplinary committee. The Committee was really dealing with the contract – the contract did not talk to renewability while the IPID Act does. The Committee observed this discussion was activated last year when the first letter was sent about the intention to renew the contract. This letter was not really responded to. A second letter was sent in November 2018 by Mr McBride which, the Member paraphrased, spoke to speedy advertisement, even if the process did not include Mr McBride. The observation is that even in the mind of Mr McBride when he was writing those two letters he was concerned about concluding the matter even if he was not included. The Committee would also make observations about the performance, and that Mr McBride says he was tops, as a response, and the department did well and therefore the reason the Minster provided is unsustainable. The Committee will have to draw in information from its work over the last four years and its take which will somehow contradict Mr McBride’s 100 percent performance because it was not quite 100 percent. While 100 per cent might be a good thing, it is what one is employed to do. The Department of Public Service and Administration (DPSA) matter would also come into the observations, that at some point Mr McBride was suspended and that there was a waiver – these are all observations. The Committee also observed that not everything advised by DPSA was done or implemented by IPID including pay progression. There is the matter of the trust relationship which was clear in both the Minister’s letter and response by Mr McBride – it shows there is a complete breakdown in relationship. People that are supposed to work together in some way do not at all and this complete break of trust is seen in the submissions. There is a dispute around the abuse of power but in the body of evidence, there is collaboration on the abuse of power by Mr McBride as far as his handling of an IPID employee who requested a transfer and where the matter was investigated by the PSC. These matters should find themselves into the observations section of the Report.
Mr Mbhele, looking at the primary submissions of the Minister and Mr McBride, observed that in the Minister’s adverse reasons mitigating against the renewal of Mr McBride’s submission, there are untested and unproven allegations, as Mr McBride said. The bulk, if not the entirety, of the Minister’s submission, are allegations. The second observation is that where there is a conclusive adverse finding against Mr McBride by the PSC, an investigatory body, it is a case of labour malpractice and procedural irregularities. Without negating the factuality or seriousness of this, it does raise the question of whether the finding is egregious enough to warrant non-renewal as a proportionate sanction. Another observation flowing from Mr McBride’s submission is that IPID under his leadership has taken legal action to redress attempts to undermine IPID’s effectiveness and independence. This is in particular reference to the court papers Mr McBride cites in pages 17 and 18 of his submission. On these three simple and compact observations, they should feed into answering the question of whether there are compelling and substantive reasons to either lean towards the direction of non-renewal and/or whether there are similarly compelling and substantive reasons to motivate for the extension and renewable of the contract.
Ms Kohler Barnard said an observation is that the process should have been started at least six months ago. However it is unconscionable that this matter was not on the diary of the Committee – the Committee does not have to wait to be told of very obvious matters. To her mind, legislation superseded the contract because the one does not speak to the other in terms of extension of the contract. The observation is that possible consideration should be given to the possibility that the incumbent is the person who should be taking the decision – this speaks to the legal input the Committee received yesterday. The job of the Committee, above or else, is to preserve the integrity and independence of IPID – this must be foremost in the minds of Members and must be clearly laid out as the court attempted to ensure. Another observation is the various accusations repeated – repeating something, even when it has been refuted, puts it into the public domain and creates suspicion. The claims have been adequately refuted, investigated and dealt with, to her mind. The findings were adverse but it was not the work of a single, malicious individual – it was an entire process undertaken but one person was being hung out to dry for it.
Mr Ramatlakane thought the observation of the failure of the Committee is not warranted. The work of the Committee is not being evaluated. The Committee did discuss the renewal of the contract in its Legacy Report last year – the conclusion was that the contract of Mr McBride should be attended to in terms of the Act. There cannot be an observation that this is the fault of the Committee – the failure of the Committee has not been discussed so it is not acceptable. When Members raise observations it should not have a conclusion because this would be the purpose of the findings. The process the Committee agreed to earlier should be followed.
Mr J Maake (ANC) asked how the Report would arrive at coherent observations because Members might have observed different things or say something which was never discussed – how would this be dealt with? Would everything be listed? He was confused as to how an observation would be determined.
The Chairperson explained the Committee would make observations on all the topics it has looked at over the past two days before concluding on the matter.
Mr Maake was still not clear – who was ensuring what Members are saying now will get into the Report? Just tabulating Members saying whatever they want will cause confusion. Would the information not come from the Committee’s minutes? He thought there should be structured discussion on the findings and then use this to form the observations. The discussion now seemed haphazard.
Ms P Mmola (ANC) asked if there would be closing remarks from each Member on the observations of each topic.
The Chairperson said the Committee would have to come up with its findings and consensus.
The Committee continued with observations of the Minister’s reasons and Mr McBride’s response.
Mr Ramatlakane observed that the Minister provided a list of reasons including the problem of relationship and trust between the two parties - this was clear in the submission. Another observation is that not all of the matters raised by the Minister have already been canvassed through investigations. On the abuse of power, there is a conclusive finding and collaborative evidence of abuse of power by Mr McBride in his removal and demotion of an official as concluded by the PSC. He observed that on the other allegations, Mr McBride does not dispute their existence but says they are still subject to investigation by the Public Protector. It is fair to say there is general acceptance of some matters but they are subject to investigation. There is also the pay progression and Head of Department (HOD) allowance matter which is contained in the DPSA letter and appears to be part of the investigation of the Public Protector.
From the letter of Mr McBride, Mr Ramatlakane observed he had rated himself as the best in the country but, as he confirmed in the letter the Committee received last night, he was looking beyond IPID to fix other places. His heart was not permanently with IPID and was looking elsewhere.
Mr Ramatlakane further observed that what Mr McBride was saying about Mr Nkabinde was not quite truthful but the letter received from him last night confirms there is a process to deal with the decision of the PSC and there is a process to correct and redo the vetting.
Ms Mmola observed that in Mr Nkabinde’s letter, he pointed out that Mr McBride’s lawyers had written to him asking him why he went to 702 when he said he withdrew the allegations of unethical misconduct against Mr McBride. This shows Mr Nkabinde was under pressure and not working. Mr Nkabinde says he has a recording to prove that he did not withdraw the allegations. It seems as if the withdrawal of allegations against Mr McBride was only an act. These allegations are also being dealt with by the Public Protector even though Mr McBride said the allegations were dealt with by the PSC. This showed Mr McBride is not truthful to himself. The Phahlane matter started a long time ago. Phahlane was charged and it was said he did not have a receipt for the music system, cars and others and that Phahlane would go to court with other Lieutenant Generals – this is what Mr McBride has told the Committee but the court has withdrawn all allegations. Was Mr McBride telling the Committee the truth or misleading it? Mr McBride also named the 16 Generals in the Committee and said they would be arrested. Has Mr McBride been misleading the Committee for the past five years? Mr McBride is not true to himself or the Committee. Mr McBride has told the Committee so many things but at the end of the day there is nothing. Phahlane is like Mdluli. He is sitting at home for two years and there is no disciplinary hearing or judgement – what is happening? Members thought the Minister was wrong to write the letter to Mr McBride to say his contract would not be renewed but the Committee found out there were two letters sent to the Minister by Mr McBride and the Minister was responding. Mr McBride did not tell the Committee this. Mr McBride did not write to the Committee but when the Minister said he would not renew the contract, Mr McBride went to court and agreed the Committee should decide on the renewal of the contract yet he did not write to the Committee on the matter. In its Legacy Report, the Committee discussed the contract and there was debate about the date of the contract ending – the minutes would show this. The Minister employs the Executive Director. With the lapsed security clearance, there was no letter from SSA saying Mr McBride has reapplied for renewal of the security clearance.
The Chairperson said that many points were raised but for the observation, the view is that the Mr Nkabinde matter is not closed and the security clearance of the Executive Director lapsed.
Mr Mbhele said his understanding is that the Committee is dealing with Member’s inputs of their observations of the topics as the Committee goes through it from the documentation. His understanding is that an observation is a descriptive stating of facts on which there would be consensus among the Members.
The Chairperson agreed there would be consensus where possible but the Committee would have to take a decision if there was major disagreement.
Mr Mbhele understood that the Committee is bringing forth the list of topics and making observations on statements of facts that Members agree on. The findings would be the meaning the Committee ascribes to the facts. There would be lots of contestation over the findings. He wanted to be clear when there would be rebuttal of what Members said because he has already heard mixtures of observations and findings but did not want to interrupt Members as it is not the convention of the Committee however he was weary of the final Report not being clean. For example, everyone could agree there is an observation that Mr McBride’s security clearance has lapsed – this is a fact in the letter from SSA. The finding, or meaning ascribed to that, would differ because some Members are of the mind the Executive Director was negligible in reapplying while an alternative finding could have been that Mr McBride did apply because the acting SSA DG said at the time of lapsing, it was underway – this showed something had been initiated but had been delayed on the side of the SSA. The meaning of these two findings is very different and is where the contestation will come in. Will Members be allowed to rebut when another Member made an observation that was technically a finding or rebut later?
The Chairperson said Members should stick to observations before moving onto findings and conclusion.
Ms Molebatsi observed that when Mr McBride took up his post and signed the contract, he knew of the date of the expiry the date of the contract he signed and he knew all the contents of the contract. It is not as if Mr McBride knew about these matters a few months ago – he knew everything from the date he signed.
Ms Maake observed that the letter by Mr Nkabinde contained allegations which should be investigated – they are however allegations. The Committee does note the allegations are very serious.
Ms Kohler Barnard said something which has more or less being ignored in the last couple of days is the list of achievements of IPID. They are detailed from page 13 of Mr McBride’s submission. To balance the various allegations made, the Committee needs to detail the lists of successes as he claims about the various investigations: Marikana, Keith Keating, increases in conviction rates etc – she did not think the Committee can leave this out and should be included somewhere as a counterpoint to the various accusations.
Ms Kohler Barnard said she does not know how many times she must say the allegations were investigated and declared to be absolutely without substance by the PSC. The various accusations and investigations are detailed in Mr McBride’s submission but are now appearing with the Public Protector - it showed that if one did not get an expected outcome, the accusations can just be put to another body. This is being ignored but it should be included and highlighted. The allegations have been investigated and proven to be nonsense but they are being repeated and put into the public domain for people to believe – the allegations are unfounded and untrue and it is very difficult to hear it repeated as if because there is an allegation, it must be true or, to use the phrase yesterday, “there cannot be smoke without fire”. This is nonsense and not a legal term. These complaints have basically been copied and pasted and sent to the Public Protector for a very obvious reason after a particular man was removed from a particular investigative unit and then suspended etc. The Committee has been through this scenario a hundred times.
The Chairperson said the main documents will be referenced in the background section of the Report but asked if there were specific observations the Member wanted to make on the two main submissions.
Ms Kohler Barnard thought she covered some of the observations. Some Members complained they heard nothing about Marikana therefore IPID is a failure – this is equivalent to being in the Scorpions hearing and having someone stand up and say children are being raped in the community so we need to shut the Scorpions down. No one says shut down SAPS. It becomes the same sort of narrative. From the Marikana investigation by IPID, there are people now awaiting trial so to say nothing was done is untrue. There are other investigations where it is said nothing has been done but all the details are in the submissions. She was trying to bring some clarity to accusations being made that are simply not true but are being said for a particular reason – she could not sit and not respond to accusations that are patently untrue.
Mr Buthelezi observed that there was a contract which was expiring. Having said this, the Committee must be mindful that the Act allows for renewal. To his knowledge, everyone that starts a position defined by a term, knows this and would hope to have the contract renewed. This was also the case with Members of Parliament who serve for a certain time but hope to come back. The Minister’s response on non-renewal is based on allegations most of which were nullified, on his observation and as contained in Mr McBride’s response. For example, Mr Nkabinde signed the letter agreeing all allegations would be withdrawn. Despite Mr Nkabinde subsequently writing to the Committee yesterday saying he was forced to withdraw, he nonetheless signed that he withdrew the allegations and he did so in the presence of his lawyers. The evidence is that he signed this agreement. The security clearance of Mr McBride expired but ensuring the renewal is done on time is outside of the jurisdiction of Mr McBride. There is information missing – this information could assist the Committee to make a determination.
The Chairperson said the Committee cannot make findings without it being based on information or validated.
Mr Ramatlakane checked the process of the Committee noting that Ms Kohler Barnard’s observations on the performance of IPID is more a finding. He asked if the Committee would deal with this when the matter of performance is specifically discussed.
The Chairperson said the topic of performance was still to follow. Other Members also raised observations on other specific topics which are still to come up. Members are free to bring forward any observations.
Ms L Mabija (ANC) was comfortable that the Committee is flowing and doing things as expected in line with the court order. The Committee is giving all Members a chance to make input. The Committee is going according to what is expected of it. This shows the competence of the Committee in dealing with the matter.
Mr Ramatlakane said it would be useful to find a balanced view on the observations relating to Mr Nkabinde – there cannot be clear findings on something that was disputed. The letter the Committee received yesterday from Mr Nkabinde prove this dispute and brings up other matters to the fore. The issues involving Mr Nkabinde is unfinished business because he has brought other matters to the fore which may be subjected to another process of investigation. The Committee cannot speak to disputed matters and cannot make a conclusive finding thereon unless there was cross-examination and this is not where the Committee is.
Mr Buthelezi agreed and noted such allegations cannot be used whether in favour or against because they are not conclusive. Some Members have been relying on these allegations as if they contained substance yet they are still not conclusive. Members seem to be relying on the signed document from Mr Nkabinde.
Mr Maake observed there are still some grey areas in the Act itself that does not cover some of the matters the Committee is currently dealing with. Another observation is that there is some process underway to augment the Act.
Mr Mbhele agreed that the IPID Act, as it currently stands, does not have clear provision for the procedure of renewal and particularly the Committee’s role in that as it does for appointment. He also observed that the Committee’s position on a renewable term for the Executive Director is incongruent with provisions for similar leadership positions for institutions that are meant to be as independent as possible to fulfil their mandate e.g. DPCI, Public Protector and the Auditor-General (AG).
Mr Ramatlakane said the observation could speak to the need for some alignment on the review of the Act to provide greater clarity going forward. He was struggling with Mr Mbhele’s characterisation which is probably debatable because it gravitates towards Chapter Nine institutions, which IPID is not. If this is an observation there has to be a consequential finding which would speak to what the Helen Suzman Foundation argues to just allow the renewal to happen because IPID is more or less a Chapter Nine institution; but it is fundamentally not the same. He did not agree the observation was well placed or tested in the Committee’s discussion.
Mr Mbhele was happy to rescind the reference to Chapter Nine and leave just the reference to the DPCI because there is a much clearer parallel in that the Constitutional Court read directly from the SAPS Act in terms of the DPCI Head appointment directly to the IPID Act. The DPCI is the clear and unambiguous parallel to draw but the principle remains the same.
Mr Ramatlakane noted the legal advice the Committee received yesterday regarding the judgements and that the matters raised are for the future – this cannot be done retrospectively as was the signatures on some of the forms, done retrospectively.
Mr Maake said there was a suggestion that some institutions only have one term – would this be included under observations or recommendations?
The Chairperson said Members could decide but perhaps it could fall under the section dealing with case law.
Ms Kohler Barnard said much has been made repeatedly of the alleged breakdown in relationship between the Minister and Executive Director but she had not seen any such paperwork detailing any such breakdown. There is nothing in the Act that says the Minister and Executive Director must have any kind of relationship whatsoever, the head of IPID does not answer to the Minister or rely on the Minister for the IPID budget – it is merely a reporting line. The Minister is not the boss of the head of the IPID at all. This speaks to the independence of IPID. When considering the five year term, the Committee must consider that Mr McBride spent a year of this suspended for pure political reasons – there is no other explanation and he lost a year of his term.
Mr Ramatlakane said it is not correct to say that the Executive Director has nothing to do with the Minister – if this is the case, why did Mr McBride write to the Minister to extend the contract? In reality, he did not think this argument would stick. Sometimes there is a stretching of words in terms of what independence means, even reading the judgement, there is no talk of absolute independence. SA is a unitary state. The fact that the Executive Director does not report to the Minister might well explain why the performance agreements were not signed or counter-signed because there is a belief that they do not have to be signed by anybody – this does not happen in real life. There is an accountability mechanism where the Executive Director has to interact with the Minister of Police – there is no such thing that says the Executive Director does not have to. Maybe this is why the Committee is sitting here. Members have the right to an opinion but it cannot be sponsored in the report.
Ms Molebatsi pointed out Members were not talking of a personal relationship between Executive Director and Minister where they have to be friends – Members were talking about a working relationship for the sake of service delivery.
Mr Ramatlakane observed that the appointment letter was signed and counter-signed. Members have also seen the acceptance letter which spoke directly to the contract. The appointment letter/contract had specific terms and spoke to security clearance and performance agreements as an obligation of the individual in this position. The appointment letter/contract had a beginning and end date.
Mr Ramatlakane observed that a signed performance agreement did not exist and was not there. There was talk of legalities delaying the process. The performance agreement is an obligation and responsibility of the head of department to draft it, outline key performance areas and indicators with a breakdown of it would be achieved. The details are informed by the Strategic Plan of the department and signed by the head of department (Executive Director in this case) and counter-signed by the Minister of Police, in this case. There would then be engagement on the agreement and whether any areas required amendment. This did not happen, does not exist and the Committee did not see such signed document. The Committee observed that in trying to address this, DPSA intervened. The observation is that it seemed there was no performance agreement with measurable objectives entered into.
The Chairperson asked if this was over all the five years.
Mr Ramatlakane saw one performance agreement signed by former Minister Mbalula – this was only one agreement signed over the five years.
Mr Ramatlakane observed that the performance assessment has been a problem and performance assessment of the department has not really subjected itself to real assessment. In the documents, most of the assessments seemed to be signed retrospectively by the Executive Director and were not countersigned by the Minister so as to agree to the performance of that year. This raises challenges and is sometimes referred to as misconduct in the public service regulations. These performance assessments were not necessarily assessed or countersigned so were in the realm of irregular assessment.
Ms Kohler Barnard thought there should be reference to the AG reports and the unqualified audit outcome at the end of last year – she thought his was quite a rare thing for IPID over the years.
The Chairperson explained the AG reports are discussed under a separate heading.
Mr Kohler Barnard understood this but asked if the performance could not be considered wider than the performance assessment itself. She saw the heading of performance assessment as a logical place to observe the achievements of IPID.
The Chairperson said Members were welcome to make the observation now if they wished.
Ms Kohler Barnard agreed the unqualified audit outcome could be mentioned under the section dealing with the AG reports but it would do no harm to, under the current section, to list the successes such as the establishment of a national specialised investigative team, prioritised rapes etc.
Mr Ramatlakane thought that an unqualified outcome did not equal good performance. The problem with the performance assessment is that it must be measured against something predetermined – without this one would list many things which have not been tested against key performance areas. This presents a problem for the assessment going forward because there is no basis against which the performance was assessed. The list of achievements was done as part of the job that is supposed to be done as obligated in the Act – it would be a misnomer if these things were not done. The problem is the base against which the performance assessment is done – this is a gap as recognised by the DPSA Minister. The Minister advises what can be done to rectify the matter but again there seems to be a slippage in reading the documents on the matter.
Ms Mabija said the Committee must be serious in what it is doing as performance assessments are very strong tools in terms of administration. The Committee does need to “spice” these assessments.
Mr Mbhele asked how the Executive Director is supposed to ensure the performance agreements are signed by the Minister. If the observation is made that there is a fractious working relationship between the Minister and Executive Director, it should not be surprising that the Minister has not signed the document. It is important to maintain a sense of context around these matters.
Mr Ramatlakane noted that in four years, to be precise, there has been no performance assessment – this is a fact. Sometimes matters are defensive and other times, indefensible especially when the documents are there. The evidence shows only one of the five performance agreements as contained in a letter from the Executive Director dated 24 January 2019 indicating the need to discuss the performance agreement with the Minister. Why was this not done in prior years? He was not exonerating the executing authority however it is a requirement that the Minister and Executive Director must engage rigorously on the performance assessment.
Mr Maake interjected to note the performance agreements were not signed - this is enough as an observation.
AG reports and notes
Mr Ramatlakane observed that IPID received an unqualified audit outcome with findings. The AG noted concerns of misstatements pointing to mismanagement of finance matters
Portfolio Committee on Police reports on IPID
Mr Ramatlakane confined himself to observations relating to the Budgetary Review and Recommendation Report (BRRR) – the observation is that there have been a number of concerns around misstatements, accruals, irregular expenditure, budgeting process, rate of vacancy etc. It is an observation that is in the BRRRs, there is not a single calendar year where IPID has met all its targets set. It is clear from the Reports that there is concern around IPID not meeting its targets 100 percent. The Committee observed in these Reports that there had also been a reduction in some of the targets year-on-year – there is evidence in the BRRRs.
Ms Kohler Barnard pointed out the inevitable comparison that there has never been a year where SAPS or the Private Security Industry Regulatory Authority (PSIRA) has met all targets – the Committee was not looking for the heads of these entities because they did not reach 100 percent. The Committee needs to look at where there has been a progression, improvement or dealing with matters previously raised.
Ms Mmola observed one of the Committee Reports spoke to the R500 000 which the Committee has complained about for four years when the Executive Director said he was doing the review.
Mr Ramatlakane was happy to do a comparison with the other bodies in the Committee’s oversight mandate but this is not what the Committee is required to do. The Committee has raised hard matters with SAPS in its BRRR but this is not the requirement of the Committee’s work currently.
The Chairperson agreed the Committee confine itself to the matter at hand.
Mr Maake said finding comfort in numbers is not helpful.
Briefings to Portfolio Committee
Mr Maake asked what this heading referred to.
The Chairperson explained it is briefings by the department to the Committee.
Mr Mbhele said this might be the section under which to raise the matters Ms Kohler Barnard was trying to insert earlier on the achievements of IPID under Mr McBride’s leadership such as the national strategic investigative team, focus on high level systemic corruption, prima facie evidence uncovered so far through investigative work. He noted that where there have been instances of withdrawing cases, it is not because the case was conclusively found to be without basis, but to enrich the case and follow up on further leads. The Committee received these briefings from Mr McBride – the Committee should have received an update briefing from IPID last week and had already received a hard copy of the presentation. An observation is that the Committee has received briefings of improvements and strategic enrichment of IPID’s work under Mr McBride’s leadership.
Ms Mmola felt disrespected by Mr McBride during the briefings when Members asked questions. For example, when Mr McBride was asked about the whereabouts of his CFO, he answered sarcastically that the CFO did not disappear like some SAPS members – how could one make an example of a deceased person? This is a disrespectful answer.
Mr Maake thought it would be enough to say IPID gave the Committee briefings.
Ms Mabija agreed.
Mr Ramatlakane observed IPID provided the Committee with briefings from time to time when requested to do so – this is not disputed. The further observation is that all the reports presented with the statistics did not necessarily mean there was delivery at the end of the day. The convictions did not talk to this.
Ms Kohler Barnard, reading through some interactions between the Committee and IPID, said there were certain things Mr McBride did that showed quite strength of character. He made no excuses for certain matters raised by the AG and dealt with them. It was determined that there was mismanagement but also that IPID was underfunded to the extent that it could not fully carry out its mandate – at this point, Mr McBride said the new Minister was very supportive and there was a series of engagements with Treasury hoping for extra money to deal with the Marikana investigation – she did not think this was given so IPID was made to do the investigation on a shoestring so that 10 policeman are now in the dock for this speaks volumes. There was also an instance where Mr McBride determined there should be no performance bonuses because he did not feel IPID performed in one particular earlier year. At the time, she had never heard of such a thing. This was the kind of things done by Mr McBride as the head of a unit and which showed huge character – stopping performance bonuses has the possibility of alienating staff but the staff, at least the ones the Member interacted with to assist on matters, have performed admirably and with the greatest grace. The unit pulled together and pulled through a very difficult time when they were all suspended to run as a very well-oiled machine.
Mr Maake maintained it is enough to say IPID briefed the Committee as it was supposed to do.
IPID Amendment Act
Ms Kohler Barnard said the Committee Report needs to lay out very clearly what happened, why the Civilian Secretariat for Police Services (CSP) did not provide the Committee with the Amendment Bill and the Committee then had to hustle through a Committee Bill to meet the court deadline, leaving a huge amount undone. This leaves the next Committee and new Parliament with the job of reworking the entire IPID Bill – the Committee should have done this but it just was not ready. The Report should lay this out step-by-step and acknowledge that the Committee met the court deadline with the required changes but the Committee understands the Bill needs reworking.
Mr Ramatlakane thought the failure on the IPID Amendment Bill was a huge problem on the part of both IPID and the CSPS. The deadline was made clear in the court judgement but nothing was done even though the deadline was approaching. IPID and the CSPS are the agencies critical on the amendment of the Bill – the Committee should observe this in the Report.
Mr Ramatlakane observed that Mr McBride applied for both the post of SAPS Crime Intelligence and DPCI. As contained in the response letter to these applications by Mr McBride, the Committee observes that he did have his eyes elsewhere and no longer in IPID. Mr McBride confirms that he has done his job and cemented everything. It is observed he did not want to remain in IPID and wanted to leave. When this did not work, Mr McBride stayed put. If there was commitment, this application would not have been made. Mr McBride had knowledge of the expiry of his contract and that the contract would not be automatically renewed. Mr McBride was not in IPID for a permanent stay.
Mr Mbhele refuted the statement made by Mr Ramatlakane that by virtue of applying for the two positions, Mr McBride was indicating he did not want to stay in IPID. This is not stated anywhere in his submission. If anything, Mr McBride’s submission for applying for the aforesaid positions aligns with his current willingness to remain as the Executive Director of IPID and he goes on to explain what this alignment is. If an observation is the restatement of what is in the documents, then the observation is that Mr McBride’s motivation and rationale for applying for the posts is, in light of their not being anxiety at the time about impending threats to IPID’s independence, to put up his hand to serve and make urgent interventions and corrections in institutions which had suffered power abuses. This is an observation from Mr McBride’s statement for the applications and that the perspective and motivation for the applications would have changed given anxiety about impending threats to IPID’s independence.
Ms Kohler Barnard pointed out that Mr McBride said at the time of applying for the aforesaid positions, did not imagine that IPID’s independence would again come under attack by a subsequent Minister especially in light of the Constitutional Court judgement. Mr McBride said his motivation for applying to the aforesaid positions was to serve his country, undo some of the damage done and points to the integral role the institutions ought play in combating corruption and state capture yet both institutions have seriously been compromised by undue political interference seen in the unlawful removal for Gen. Dramat and unlawful appointment of Lt. Ntlemeza as head of the DPCI. Mr McBride’s reasons are there. Applying for a job never means one is less dedicated to the current position – this is a totally fallacious argument.
Mr Ramatlakane said there are many interpretations but if someone wants to move from one position to another, that person’s heart is somewhere else. Mr McBride says he wants to fix damage but this is somewhere else and not in IPID. The Committee could agree Mr McBride did apply to these two positions while he was serving IPID as Executive Director – this is the fact contained in the documents and applications. Everything else is interpretation which Members might not agree on.
Mr Ramatlakane observed Mr McBride indeed does not have security clearance as it had lapsed.
Ms Kohler Barnard said of course Mr McBride does not have this clearance because it lapses after five years. Before it lapsed, he put in an application and it is busy being processed. The suggestion she picked up is that because he does not have a security clearance, he must be unfit, improper and the wrong person. It is a technicality that security clearance lapses after five years but it is being renewed as Members speak. Mr McBride cannot be blamed – the people to blame for the delay is SSA just as it has delayed the security clearance for countless Generals and everybody underneath them. Sorry, you do not score on that one.
Mr Mbhele observed the clearance lapsed but as per the indication of the acting DG of the SSA, a re-vetting process is underway. Things did not disappear into oblivion and there are delays.
Mr Ramatlakane said the point is that security clearance is contained as a prerequisite in the contract and this was agreed to in the signed appointment letter. He agreed the observation could add the process underway by SSA however it is not automatic that security clearance which had lapsed would simply be reinstated – such clearance is subject to evaluation and re-vetting and is not a given. The lapsed clearance is not simply a technical matter but is a serious process matter. The Committee can observe that Mr McBride does not have a valid security clearance and observe that SSA is in the process of re-vetting.
Ms Mabija said the fact of the matter is that the Committee is dealing with the information it has in hand and would not use something it was not certain of, whether positive or not. The Committee is expected to use the information before it - there is no security clearance before the Committee because it has lapsed.
Ms Mmola said the fact remains there is no security clearance and the IPID Executive Director requires security clearance. The Committee was not sure if Mr McBride would get this clearance or not because sometimes people failed to obtain this clearance. Mr McBride does not have his security clearance – case closed.
Mr Ramatlakane observed Mr McBride’s actions were in violation of the transfer policy of IPID. It is observed that the withdrawal of the security clearance of the IPID employee was irregular. It is observed the PSC alludes to this act being in violation of Chapter Three of the Constitution.
Ms Kohler Barnard, looking through the documents which came through overnight as requested yesterday, noted that many statements were made yesterday that Mr McBride acts as a law unto himself, attacks women and other claims made. She carefully read through the documentation about all the entities from the vetting panel that actually ran the process to the correspondence of SSA, always couched in the most polite terms and most collegial manner all the way through, and there seemed to be discussion about section 8 (7) of the IPID Act which IPID believed allowed it to pull the security clearance of a person who was under intense investigation including a digital forensic audit of machinery etc and so IPID felt the need to suspend and then withdraw the security clearance. There is a great deal of discussion whether this section of the IPID Act and National Strategic Act spoke to the allowing of this action and eventually the ruling was made as the Committee read yesterday. These actions were done by the committee, vetting panel and vetting appeals panel – this is not a one-person decision, as has been implied, but was done by the relevant committee according to what it deemed were the correct procedures. These procedures were then deemed incorrect but there was no sanction suggested – it was simply said the process was carried out wrong and the person must be reinstated. Reading the documents, there is not one malicious word in them. It was a procedural matter which was corrected. Tarnishing someone’s name like a loose cannon was totally inappropriate in this case.
Ms Mmola wondered why the documents were not taken to the PSC before the investigation was completed. The PSC recommended that IPID refrain from harassing the IPID employee – this is written. When there was this grievance, why did IPID not provide the PSC with these documents?
Mr Ramatlakane did not understand the defence of Ms Kohler Barnard of a ruling made by the PSC – it is unbelievable. The letter the PSC wrote to the Minister, which all Members have, said the actions are forms of harassment and victimisation. In the letter the PSC refers to the Harassment Act and say there is intimidation by the IPID employee by the Executive Director and this should be stopped with immediate effect. To come to this determination, the PSC would have gone through the process – it did not simply decide to wake up angry and write the letter. If violation of the Constitution by the leader of a state institution is not regarded as serious, if violation of the IPID policy by the head of the institution is not regarded as serious...In the document, the Executive Director says the IPID employee must be removed because “we are at war with Crime Intelligence”, orders that she be removed and stripped. This demonstrated nothing else but a strongman tactic and that people should do as he tells them. The Member did not want any part of the transparent footwork being displayed. He stood by the PSC letter and its conclusion and observation of violation, harassment and intimidation by the Executive Director – this is in black and white and not disputed. Mr McBride says he saw the letter but disagrees with the findings – this spoke volumes for him and could not be covered up.
Mr Mbhele said a relevant observation concerning the PSC letter is a statement made by Mr McBride that the Committee received electronically late last night, where he says the first sight he received of the letter of the PSC addressed to the Minister was yesterday when the Committee asked him to respond to it. Mr McBride also says the matter was not part of the Minister’s initial reasons advanced in his submission so there does seem to have been a degree of broken telephone in dealing with the PSC letter before it came to the Committee i.e. that IPID seemingly did not receive the final feedback and findings of the PSC as contained in the letter to the Minister and that the content is not properly unpacked in terms of the findings and recommendations is noteworthy.
Ms Molebatsi said the way Ms Kohler Barnard behaves today, half the time she forgets she is a Member of Parliament and looked at her as Mr McBride’s lawyer. The moment Ms Kohler Barnard opens her mouth she goes on a defensive spree on every point. For heaven’s sake, the Committee is dealing with facts before it not emotions. This behaviour does not make Ms Kohler Barnard objective.
Ms Kohler Barnard said she has no truck with Mr McBride and is not his lawyer but merely attempting to counteract, with facts and documents sent to the Committee. Every time she attempted to lay the facts on the table she was criticised and told to shut up – she has had enough. She had every right to speak in the Committee without being attacked personally.
Executive Authority/Accounting Officer Governance Framework
Ms Kohler Barnard asked if the exact relationship and the responsibilities of the Minister to the Executive Director, and visa versa, as contained in the Act, should be detailed in this section.
The Chairperson said there was reference to section 3 and 4 of the IPID Act and reference by some Members to the Public Service Act in terms of the roles and duties of the head of department.
Ms Kohler Barnard said it was laid out that the Executive Director must refer criminal offences as a result of an investigation to the National Prosecuting Authority (NPA) and notify the Minister. The NPA must notify the Executive Director of its intention to prosecute and notify the Minister – this keeps each department informed as they move along each particular case and then once a month the Executive Director submits a summary of matters to the Minister and Secretary. This was the nitty-gritty she saw as the Accounting officer/Executive Authority governance framework. This leads into the need, or not, of the trust relationship. The Executive Director does not answer to the Minister but simply informs him of certain achievements – the Minister is there to protect the police and the Executive Director is there to deal with criminality in the police. Their positions are adversarial out of necessity and they each do their own jobs without one leaning on the other.
The Chairperson said for comprehensiveness, it is important to note the relationship between the Executive Director and Accounting Officer is regulated by the Public Service Act and the contract entered into. There are also a host of duties in terms of the budgeting process.
Mr Ramatlakane noted that the IPID Act said the Executive Director must inform the Minister of prosecutions and must submit monthly reports. IPID is not a Chapter Nine institution. The Executive Director is employed based on this Act. What was struck down was a particular section which tried to bring in the Public Service legislation in terms of the disciplinary code in dealing with the Executive Director. There is not some kind of loose relationship. If the Executive Director does not adhere there is bound to be a challenge in terms of trust and accountability. The Executive Director has to account like everybody else. It would be useful for the Committee to observe this particular section of the Act as a responsibility. If this section should be changed, it would be part of the Sixth Parliament’s work in reviewing this Act. This is not a dotted line but a solid line of reporting which must happen.
Mr Ramatlakane observed that in the documents and counter-submissions, there is clearly a problem with the relationship. It is clearly demonstrated, beyond a shadow of the doubt, that the relationship between the Minister and Mr McBride is a problem. It is quite obvious and there to see. This is seen also from the tone of the correspondence. It looks like any talking of the Minister would be characterised as interference or an attack on IPID. There is simply a trust problem. Even the documents that were supposed to be signed were not and this clearly showed the relationship of trust has been injured as demonstrated in the documents received.
Mr Maake quoted the submission from Mr McBride that said: “it appears should I not be reappointed, a vacancy would arise which the Minister, acting under 6 (5) of the IPID Act, would fill with a candidate entirely of his own choosing. The Minister may appoint an individual that is sympathetic to his own political interests and that of his allies” – this says it all. Mr McBride definitely does not trust the Minister.
Public Protector Investigation
Mr Mbhele observed that the Public Protector investigation is a preliminary one to assess the allegations contained in the complaint, serious as they are, so at this stage it is a submission of allegations for the Committee to note.
Mr Ramatlakane observed that serious allegations have been made against the Executive Director which are subject to investigation by the Public Protector. Of the matters under investigation, some, such as what has been confirmed through the PSC investigation, has to do with abuse of power.
Ms Kohler Barnard said Mr McBride lists the complaints made by Mr Nkabinde, who the Magistrate found lied under oath. These charges which have gone through to the Public Protector are virtually the same as what was investigated by the PSC and were shown to be completely unfounded. There is no Public Protector investigation – there is consideration of whether an investigation should be conducted based on the papers before the Public Protector. This is quite different from an investigation. The allegations that are repeatedly mentioned have all been investigated by the PSC and all been found to be utter nonsense – this includes the R100 000 etc. Members cannot go on stating that these are facts or serious – these are all allegations and not proven. These are pie-in-the-sky allegations by a man no longer employed by IPID and sounds as if he is trying to pull the entity, or at least the leader of it, down.
Mr Maake asked what was meant by saying the Public Protector is simply looking at the papers –did this mean there was no investigation?
Mr Ramatlakane said Members cannot trivialise the matter. The Public Protector has summonsed documents in order to start an investigation. Is the thinking that the tons of documents requested would just lie there? No, an investigation would be ensued. There seems to be a view that the Public Protector would throw everything out of the window. The PSC letter confirms the abuse of power allegation before the Public Protector – this is not simply an allegation which does not exist. There are serious allegations levelled against Mr McBride on the desk of the Public Protector and the Public Protector has summoned documents to begin the particular investigation. This is an observation contained in the letter.
Mr Maake added an observation that there is an investigation being done by the Public Protector into the behaviour of the Executive Director and the Committee notes the allegations contained in the complaint to the Public Protector is serious. The fact that the Public Protector is investigating means that there is prima facie evidence and means the matter is not trivial.
Mr Buthelezi said the allegations remained that, serious as they are, but nothing more than that.
Ms Mmola observed that if the allegations were not serious, the Public Protector would not have written to the Minister informing him of the investigation. Members cannot run away of this letter from the Public Protector and the serious allegations.
Ms Mabija agreed that allegations remain allegations however there is one instance where the allegations have already been proven to be true by the PSC.
Mr Mbhele, did not want to flog a dead horse but cautioned against referring to prima facie evidence in relation to the investigation so far because, looking specifically at the letter from the Public Protector to the Minister, it lists the allegations she received in the complaint but then states the purpose of the letter which is that the Minister respond to the above allegations and provide information and documentation to assist the Public Protector in its investigation. So far, a complaint has been laid with a litany of allegations and correspondence from the Public Protector for the Minister to provide documentation to assist the investigation. He did not believe this constitutesprima facie evidence as far as the allegations are concerned. However it sounded as if all Members are in agreement that there allegations which are serious and this should be noted.
The Chairperson noted that fit and proper person was raised by the Minister in his submission but suggested this be kept off the table at this stage.
Independence of IPID
Mr Maake questioned what this topic constituted of apart from discussion on the IPID Act and court judgement.
The Chairperson explained it was said that certain actions of the Executive Authority encroaches on the independence of IPID. This is for the Committee to consider because it was raised in the papers.
Mr Maake asked if the Minister informing Mr McBride that his contract would not be renewed in the letter was part of the discussion. In any case, the contract is signed by the Minister, the Minister appoints and the Committee ratifies – this is recognised. What more can be said?
Mr Ramatlakane recalled that in the original submission and additional responses last night from Mr McBride, there seems to be a view that IPID is Chapter Nine institution but this is in conflict with the Act. The Committee must observe that IPID is what it is in terms of the law, there are accountability mechanisms and IPID is part of a government department. Chapter Nine institutions report directly to Parliament but IPID does not so it is not independent as the Public Protector is and this is supported by the IPID Act as contained in section 7 in terms of the reporting of the Executive Director to the Minister and Parliament. In the appointment letter and letter of renewal, there is recognition from the Executive Director that the Minister plays a role and has a say in the renewal. The court judgements do speak to IPID’s operating procedures being free of interference. The observation is that IPID is a creature of statute. IPID is a government department and not a Chapter Nine so there is a relationship between the Executive Director and the Minister of Police. For example, the Minister of Justice deals with Judges even though they are independent but there is recognition of where the budget comes from and the responsibility of the Minister. Any views towards making IPID a Chapter Nine will have to be considered by the next Parliament.
Mr Mbhele observed that during the course of the current term, the Executive Director has initiated and driven three instances of litigation which have served to strengthen and protect the independence of IPID. This is noteworthy insofar as this topic is concerned. The current Executive Director has clarified, strengthened, buttressed and reinforced during this term.
Ms Kohler Barnard asked if the deliberations over the past two days would be used in the Report.
The Chairperson said Members are welcome to make specific observations and findings now.
Ms Kohler Barnard repeated that in September 2018, the ANC Standing Committee on Public Accounts (SCOPA) study group said it was very pleased with the progress made by IPID and its probes into various areas of corruption and defeating the ends of justice. It is interesting for deliberations to come to some understanding of why it was that a few months ago there was huge praise for the workings of IPID as opposed to what Members heard now. Something has happened in that time period that maybe the Committee should be made aware of or at least look into. IPID has been strengthened, buttressed and protected by legislation now but despite this, the Committee found itself in the current situation where the incumbent is not given the opportunity to choose or not to take up an extra five-year term. There is now a litany of repetitive accusations, none proven in any court. It is very clear the tide has turned. Perhaps one should think back to the successes of the IPID particularly the stopping of the R45 million that perhaps caused this change in the feelings towards this particular head of the IPID.
Mr Ramatlakane fundamentally differed with the point made by Ms Kohler Barnard – the last time he checked, she was a DA Member and has absolute zero authority to speak about or represent an ANC view.
Ms Kohler Barnard raised a point of order that she was quoting from openly available media on the internet – it is not secret information and is open to anyone in the world to read. She was not fabricating anything.
Mr Ramatlakane maintained this Ms Kohler Barnard has absolutely zero authority to speak and represent the views of the ANC. She should not play to the gallery. The ANC Members present would represent the view of the ANC anytime. The unmasking coming through can now be seen. Mr Kohler Barnard mentions the R45 million that was stopped ; the law is clear that if there is any allegation against someone that wanted to steal government money, must be charged, prosecuted, convicted and put to jail. 10 months down the line, this matter resurfaced as a kind of media attraction. If the Executive Director is not charging those involved then he is in violation of this Act and is not suitable for this job. The Act is clear on the responsibilities of the Executive Director. This cheap line should not be used. Sometimes mention is made of facts and in other cases, allegations. The President has clearly said that those who are corrupt should be arrested. The same thing applies to this thing which is made to be a big issue. Evidence should be produced and people taken to court – taking this to the media does not equal prosecution or doing a good job.
Ms Mmola said Ms Kohler Barnard is not a Member of the ANC and must not talk about the study group of the ANC because she is not a Member. Members are not discussing political parties but the renewal of the contract of the IPID Executive Director. Since early this morning, Ms Kohler Barnard has been talking about the success of IPID but there are no convictions – where are the convictions? Phahlane was arrested but the court withdrew all the cases. Which successes was Ms Kohler Barnard referring to? There must be convictions. The Committee is sick and tired of successes that does not have convictions.
Mr Buthelezi said it would be important for the Committee to be objective in its approach – this is not to say that the Committee is not. Members must try and look at the documents and try to interpret it from the context of the writer. In terms of independence, the view of Mr McBride is that it appears should he not be appointed, a vacancy would arise that the Minister would field a candidate entirely of his own choosing or sympathetic to his own political interests and that of his allies. Looking at this point and the political landscape the Committee is referred to, he assumed Mr McBride knew of something more than was going on somewhere and is warning the Committee that from where he is standing, he foresees danger. Hence he is urging the Committee to take these matters into account. Looking at the matters before the State Capture Commission of Inquiry, the member thought this justified the position of Mr McBride. The Committee must decide how much it would take into account of what Mr McBride is saying here
Ms Mabija wondered if the Committee still remembered why it is present today. The Committee is deciding on whether to renew the contract or not. The Committee is responsible for confirming or rejecting the nomination of the Minister. If the situation is like “put a thief to catch a thief” then the way he goes in is the way he goes out – simple as that.
Mr Maake stated Mr McBride is a member of the ANC in good standing – this is not a secret. The matter at hand requires the Committee to be objective. Members do not need to know the angle of Mr McBride but take the facts and decide – the Committee cannot deal with something Mr McBride may know but is not before the attention of the Committee. The impression is created that if Mr McBride’s contract was not renewed, there would be a massacre.
Mr Ramatlakane said the argument of Mr McBride is flawed that if the Committee finds adversely against him, he should be allowed to make an oral representation. From the beginning, the Committee said it is not conducting a disciplinary inquiry or to find someone guilty. The Committee is also not conducting job interviews or removal from office – these processes require a different standard. The Committee is dealing with the contract and whether it should be renewed. In the letter of 13 November 2018, Mr McBride recommends the selection of a suitable candidate commences at the earliest convenience – Mr McBride is saying let us move on and get the show on the road. Mr McBride, in this point, is not asking to address the Committee. Mr McBride is also not talking to the Committee in this letter but to the Minister. The Committee has agreed to take a view on oral submissions and this is still relevant. Mr McBride agreed to the court order which said the Committee would look into the matter of renewal of the contract – this is what the Committee is considering. The Committee would not deal with the topic of fit and proper person because the Committee is not competent to deal with it as it would require testing.
Mr Buthelezi was not arguing that Mr McBride should be given an opportunity to make an oral submission but was referring the Committee to this request in his submission. Members cannot insist on their views – this is problematic. If anything is said which may be considered favourable to Mr McBride, then some Members would accuse the Member making that point of being Mr McBride’s advocate. Mr Buthelezi said he is very objective and neutral and cannot deprive himself of airing his view. Where there was information with no tangible evidence to corroborate what was said, it should not be treated as a finding. For example, some Members are saying Mr McBride is demanding his contract be renewed but Mr Buthelezi did not see where his submission stated this. Mr McBride urges the Committee to consider renewing his contract but this is not a demand – Members will have different ways of interpreting the tone of the submissions.
The Chairperson agreed there will not be one view in the interpretation of the documents – this is the nature of Parliament. It is important that findings deal with the facts before the Committee.
Current political context
Mr Maake said yesterday this matter is not within the ambit of the Committee. The country has many political analysts and they differ on this matter and what the situation is. He suggested this topic be taken off the table. Political parties also see matters differently and if the topic was discussed it would be a given that there would be disagreement.
Ms Kohler Barnard quoted from page 13 of Mr McBride’s submission where he says “I also have a genuine concern that change in the leadership of IPID at this stage, or the Minister’s appointment of an acting Executive Director, would threaten important and politically-sensitive investigations that are ongoing. In fact I have experience of this happening precisely because of what happened at IPID during the period of my unlawful suspension. The affidavit disposed by me in the case McBride vs. Minister of Police and another, 2016, contains numerous examples. I request the Committee consider the affidavits which form part of the accompanying bundles’”. These affidavits would be pertinent to this discussion.
Mr Ramatlakane found this to be the opinion of one individual. He interpreted this point of Mr McBride to be saying he should be left in the position and the contract should be extended because he is the only person that can ensure matters are dealt with. The analysis of this is saying that of the 57 million people in the country, Mr McBride is the only one who has what it takes to lead IPID and its investigations – this is problematic. The responsibility of investigations does not lie with the Executive Director but the Chief Director of Investigations in terms of the Act. It cannot be said that the 57 million people in the country are accomplices or unclean and therefore cannot deal with these matters and only Mr McBride can. Mr McBride raises the Zondo Commission under the topic of political context – his appearing before the Commission should be supported - as the President said, anyone with information on state capture should present it to the Commission but this is not dependent on Mr McBride being the Executive Director of IPID. It says a lot about South Africans if only one person is capable of leading IPID.
Ms Molebatsi said the Executive Director himself does not investigate cases in IPID – there is a chief inspector. Whether Mr McBride stays or goes does not have a bearing on the investigations.
Mr Mbhele was not hung up on the label “current political context” – this is what Mr McBride used in his submission but maybe a better term would be along the lines of “political governance concerns”. He proposed the Report state the Committee observes that revelations of state capture and corruption, having been exposed recently and will continue to be on platforms like the Zondo Commission, have a bearing on administrative decisions concerning IPID as an investigative, corruption-busting body, in particular, decisions regarding leadership transition, and thus takes into account the weight of the matters the Committee is currently deliberating on.
Mr Maake agreed except with “leadership transitions”.
Mr Ramatlakane did not agree that the Zondo Commission has a bearing on IPID’s leadership – this is casting an aspersion on something which is untested. Some of the latter half of the observation of Mr Mbhele gravitated towards making a finding and this is not acceptable in its formulation. The earlier part of the observation can be simplified to say the Committee would be watching what is happening at the Zondo Commission.
The Chairperson suggested the Report note the case law on the one-term contracts of other institutions as presented to Members yesterday.
The Chairperson explained the approach would be for Members to build consensus on the findings on salient points discussed in the observations. Any major points of disagreement would be dealt with tomorrow morning.
Submission of the Minister and Mr McBride
Mr Ramatlakane said the first finding is the common cause that there was a contract lasting for five years. The contract was signed in 2014 and expires on 28 February 2019. The finding is that there is no valid security clearance. Another finding is that serious allegations were submitted to the Public Protector for investigation. The finding is that there is a breakdown of trust n terms of relationship between the Executive Director and the Minister. There is also the finding of the PSC and the abuse of authority and failure by both parties, in this context, both the Minister and Executive Director, to sign the performance agreement and there was equally a failure to undertake the performance assessment. The Committee also found the matter of harassment was confirmed by the PSC investigation that the transfer policy of IPID, including the Act, was violated along with section 33 (1) of the Constitution. The matter of the non-valid security clearance was corroborated by the SSA, Minister and Executive Director. It was found that the DPSA directives on performance evaluation were not adhered to. The allegation by Mr Nkabinde is further subjected to the Public Protector and others, as there may well be investigations by others. These are allegations of which conclusive findings or judgements have not been made at this stage.
Mr Mbhele thought a large chunk of the points made by Mr Ramatlakane were observations that had come up earlier. He objected to the finding of an abuse of power in relation to the PSC letter – there are other terms used such as “absent from consultation”, “unprocedural withdrawal of the clearance of the complainant” and the transfer being irregular but there is no finding of abuse of power so this has no grounds. He suggested the finding flowing from the observation of the Minister for his reasons against the contract renewal, are allegations and these allegations do not help the Committee at this moment to say whether there are compelling and substantive reasons not to renew the contract of the Executive Director. He proposed the finding that the PSC’s report does not detail administrative malpractice egregious enough to warrant grounds for non-renewal as a proportionate sanction. Another finding is that flowing from the observation of the legal action untaken by the Executive Director of IPID as an institution, that Mr McBride has demonstrated commitment to protecting and promoting the effectiveness of IPID during this term.
Mr Ramatlakane thought Mr Mbhele was jumping the gun to say the PSC report findings do not warrant non-renewal of the contract – this is already making a conclusion. The Member did not mind if the language used in the PSC letter was used in the Committee Report however the net effect is exactly the same thing.
The Chairperson said it would be fair to stick to wording used in the relevant documents. He suggested Members be allowed to make their proposals on the findings on the various topics and there could be collective discussion thereafter.
Mr Maake agreed.
Mr Ramatlakane said that if is the route taken, the proposed findings by Mr Mbhele would be kept in abeyance.
Mr Mbhele took the point that the evaluation and weighting to reach a conclusion can be part of the discussion at the end of the tabled findings. He was happy to hold the PSC finding in abeyance until then while the other two proposals still stand.
Mr Ramatlakane said the finding of the Committee is that in the current Act, there is a grey area and, as it stands currently, there is not an explicit provision in the event of the contract being renewed. There is a need for realignment to the current situation taking into account the Constitutional Court judgement around terms of heads of institutions. There is a finding that this judgement be factored into the new law.
Mr Mbhele said the argument was sound but he questioned if there would be a differentiation between findings and recommendations in the Committee Report. For example, amendment of the IPID Act would be a recommendation flowing from the finding of a grey area in the current Act.
Mr Ramatlakane agreed this would be a particular recommendation for the Sixth Parliament.
Mr Ramatlakane said the finding is that there was an appointment letter signed by both the Minister and Mr McBride. The couching of the appointment letter means the performance agreement must be signed and there must be security clearance. There is a finding that the Executive Director did not disagree to this.
Mr Mbhele proposed the finding state that the Executive Director did make the initial approach five months before the expiry of the term. The finding also is that the Minister could have been more responsive to the approach which would have greatly assisted matters had a selection process been able get underway sooner.
Mr Ramatlakane suggested the finding instead speak to the time lapsed between the initial inquiry on the contract and the response from the Minister – this would be fair in not making a judgement call. This is a fact on paper.
Mr Ramatlakane said the finding is that there was a problem with the signed performance which was not in order. Both the Minister and Executive Director did not sign these agreements. DPSA intervened to correct this but the finding is that this was really not done in the period under consideration. The finding is that only one Minister was able to sign the agreement - former Minister Mbalula.
Mr Ramatlakane said the Committee finding was that there was a problem with the performance assessment. The finding is that the performance agreement did not comply with the requirements of the public service regulations. The Committee found that under the four Ministers, the agreement was signed once.
The Chairperson questioned the accuracy of the finding – the performance agreement was only signed by one Minister but was this also the case for the performance assessments?
Mr Ramatlakane agreed with the correction. The finding of the Committee is non-adherence to the regulations in terms of the Public Service Act.
Ms Kohler Barnard asked how many Ministers Mr McBride has served under and for this to perhaps be included in the Report. In the four year period, because Mr McBride was kicked out for one year of his term, there was extreme flux within SAPS. If administrative matters were not dealt with from the side of the Ministry, it is because there was a revolving door Ministry. It should be made clear that the achievements and success rates in the work IPID did was done in the most extreme circumstances which included the illegal removal and a person from Crime Intelligence coming through where the systems were destroyed and almost had to be built from scratch. It cannot be seen to be a negative on the side of Mr McBride when the Ministry itself was in a state of extreme flux.
The Chairperson said the dilemma is that this was not dealt with in the observations.
Mr Maake did not see the point of speaking to the changing of Ministers.
Mr Ramatlakane said the problem is that the Committee did not discuss the individual Ministers. All Ministers are duty-bound by the public service regulations to follow the normal performance assessment. Change of leadership does not exonerate functional areas of the executing authorities.
Ms Kohler Barnard thought it should be noted, under performance assessments, that of the three previous Ministers, there was no lodging of any reference to issues that they at any stage had with Mr McBride as the head of the IPID. It is now only the fourth Minister that has the problem but the previous three had no issues with Mr McBride that the Committee has seen.
The Chairperson pointed out this was not factually correct – there were issues between Mr McBride and former Minister Nhleko. It would be very difficult to make such statements because the Committee does not have such proof before it. Findings must come from the documents or matters Members have discussed these past few days. Speculation is risky in terms of process.
Mr Ramatlakane thought the finding should look at the wording in Minister Dlodlo’s letter in terms of the performance assessments not done.
Ms Kohler Barnard said the finding could say the Executive Director is at fault for not doing assessments or it can be said the Ministers did not sign off on the assessments as they revolved through the doors.
The Chairperson said both suggestions would be noted.
Mr Ramatlakane emphasised the signing of the agreements required both parties’ signatures. It is not legal when only one party signed the agreement. The finding is that there was non-adherence to the signing of the agreements. Here, the letter of Minister Dlodlo becomes important. There is understanding of not meeting deadlines and the matter of suspension. Minister Dlodlo proposed a waiver to ensure there was compliance. Reference to the wording of this letter of Minister Dlodlo would be useful.
AG Notes and Reports
Mr Ramatlakane said the finding is that IPID did receive an unqualified audit with repeat findings i.e. it was not a clean audit report.
Ms Kohler Barnard said the finding needs to highlight that arrest and conviction rates increased along with other performance areas of IPID as detailed to the Committee in a number of AG reports.
The Chairperson said there must be specific findings on these areas that have increased and according to which years because there are five years under review. The Committee Report will be tested in terms of accuracy so findings must be specific.
Ms Kohler Barnard said all the specific information was all detailed in the AG reports along with the outcome comparisons over the years – this showed the clear direction of IPID that successes were going uphill and not down. It is only correct for the Committee Report to reflect this.
Mr Ramatlakane said this speaks to performance assessment which the Committee already dealt with. The agreement was that key performance areas were not signed as part of the performance agreement so the measurement was problematic because it has no basis which was agreed to by the parties. The arrests are part of the work every head of IPID has to do based on the Act – it cannot simply be attributed as a success because it would be based on what? The finding was that the non-adherence to signing the performance agreement was done by both the Executive Director and Minister. If the listing of achievements was insisted on, the Committee Report can refer the reader to the other reports of the Committee including the BRRRs. The difficulty is that there will be no agreement on a finding of achievements.
Ms Kohler Barnard disagreed completely because these successes were repeatedly reported to the Committee. The Committee interrogated these successes during its meetings and the AG is there to audit claims of achievements – these matters are not fabricated. Members cannot now query the AG or the presentations made in the Committee that were perhaps not queried at the time. These successes cannot be questioned now because it said the performance agreements were not signed at the time – this is wrong on every single level. It is very easy and simple to look at the Annual Reports of IPID over the years and the number of arrests made, referrals to the Director of Public Prosecutions (DPP) etc – the least the Committee can do is show that there was an enormous amount of work done as opposed to just chucking it out because some Minister did not sign a form.
The Chairperson asked if Ms Kohler Barnard had a specific proposal to make on performance. This can then be parked along with the others for broad discussion.
Ms Kohler Barnard said the performance must absolutely be highlighted. Looking at the money saved was probably the biggest thing – there were three investigations of procurement fraud involved R106 million – this was R106 million IPID saved from being stolen. On tender fraud, there was arrest of three Generals and a Brigadier for R86 million. There were investigations into high-level corruption involving R5 billion etc. It is very easy to detail that in the four years of Mr McBride’s tenure, this was the amount saved through criminal investigations into SAPS members – the Member thought it would be very fair to state this.
Mr Ramatlakane said the challenge is that this is an exercise which the Committee has not done – it cannot be done now when the Committee is dealing with the findings...
Ms Kohler Barnard said it is in the papers Members were presented with.
Mr Ramatlakane asked for protection from the Chairperson because he was still talking before he was rudely interjected. The Committee is talking about the AG and has made a finding according to the AG reports – the finding is that the audit outcome was unqualified but there were matters of emphasis. The Committee now finds itself in huge discussion on individual views of performance. No one has said IPID did not do work or that the Executive Director was sleeping at work. The Committee recognised Mr McBride was employed to do the job in terms of the Act and this is the job he did. Anything extraordinary should have been informed by the assessment – the Committee found these assessments did not happen but it was not the fault of Mr McBride alone. The formulation proposed by Ms Kohler Barnard was incorrect by all standards because there must be a baseline to determine the success – if there was no baseline then those things cannot be said. The Committee is not claiming IPID did not do work – this must not be understood or quoted wrongly. The finding however is pointing to the challenges and the AG’s findings.
Ms Mmola added the Committee is dealing with the AG reports and not the successes. All the successes were not deliberated on. Yes, it was in the paper but Ms Kohler Barnard is only raising it now. The Committee should refer to the observations made this morning and not new things.
Ms Mabija said the Committee should try and desist from inserting findings which were never discussed because this derails the whole process. The Committee wants the process to proceed very well and not for Members to try to sneak in things to stall the process. Members must concentrate on what it has done and not come up with extras to try – this is mindboggling and not good. Members are honourable Members, not zigzag Members.
The Chairperson suggested the briefings made on high-profile cases to the Committee can be included under the section dealing with “briefings to the Committee” to encapsulate the cases Ms Kohler Barnard referred to.
Mr Ramatlakane said the finding, particularly in reference to the BRRR, is that there were a number of concerns and misstatement specifically around accruals, expenditure rates, vacancy levels and that not all the targets were met.
[Ms Kohler Barnard left the meeting at this time saying that there was obviously no reason for her to be present if she would be insulted]
Briefings to Committee
Mr Ramatlakane said the finding is that IPID briefed the Committee from time-to-time as requested on matters of concern and to report etc.
The Chairperson suggested the matter of briefings on high-profile cases in the public domain, raised by Ms Kohler Barnard, can be brought in at this point.
IPID Amendment Act
Mr Ramatlakane said the Committee observed the failure of both IPID and the CSP. The finding is that there were lapses insofar as the agencies to do the necessary amendment as directed by the Constitutional Court. The result is that the Committee needed to bridge the gap with a Committee Bill.
The Chairperson added there was an earlier finding which spoke to the need for amendment of the IPID Act.
Applications for SAPS posts
Mr Ramatlakane said the finding is that the Executive Director applied for both the posts of head of the DPCI and Crime Intelligence (CI). Mr McBride motivated the reason for the application – the letter detailing this came through to the Committee last night. The Committee found that when the applications were made, Mr McBride was still Executive Director of IPID and the contract was still in place.
Mr Ramatlakane said the finding is that Mr McBride’s security clearance lapsed in November 2018. The finding is that SSA is in the process of revetting. The finding is that the security clearance duration is five years.
Mr Maake suggested the addition of the corroboration by SSA that the security clearance did lapse.
Mr Ramatlakane said the finding is that there was a finding of a violation or breech of the transfer policy – it would be fine if the wording of the PSC letter was used for this finding. Also in the PSC letter was non-adherence of 33 (1) of the Constitution and violation of the Harassment Act. The Committee found the security clearance of the IPID employee was cancelled but there is a process underway for SSA to reinstate this security clearance of the employee.
Mr Mbhele emphasised the point that the finding stick to the wording in the PSA letter.
The Chairperson agreed this is quite critical as the Report cannot refer to anything which did not come before the Committee.
Executive Authority/Accounting Officer governance framework + trust relationship
Mr Ramatlakane said the finding is that IPID, in terms of the IPID Act, is regarded as a government department that submits cases to the NPA and equally must accordingly report to the Minister. The Committee found this reporting to the executing authority was lacking or close to absent. The Committee found that in the relationship between the executing authority and Executive Director there was a loss of trust and the relationship had broken down. As said in the observation, this is demonstrated in the tone of communication between the parties.
The Chairperson suggested different wording because there is no averment before the Committee that there is a lack of reporting from the Executive Director to the Minister. Perhaps the finding could refer to the obligations of the Executive Director to report to the Minister in terms of the IPID Act.
Mr Ramatlakane conceded to the correction. The finding could say the IPID Act requires the Executive Director to report to the Minister in terms of IPID. The Committee finds this must happen in terms of the law without passing judgement on whether this reporting happened or not. The specific references to these obligations in the Act can be inserted into the findings.
Mr Mbhele was not entirely convinced by “relationship has broken down”. The Member agreed with the finding of low trust as it is also referred to in Mr McBride’s submission. The relationship, as least as conveyed in the correspondence of January 2019, is adversarial and combative as seen in the tone – it is important to reflect this because there is no obligation for a lovey-dovey relationship between the Executive Director and Minister. It could at times be a good thing for there to be that adversarial combativeness if a Minister at the time is trying to interfere in IPID and the Executive Director would have to be adversarial to defend the institution’s independence.
Mr Maake thought this is an observation.
Mr Mbhele was happy for it to be an observation but he thought it could add to the finding suggested by Mr Ramatlakane in terms of describing the adversarial and combative dynamic and tone.
Mr Maake did not think this is a finding.
Mr Ramatlakane said it is an observation and a finding because the tone of the correspondence is quite combative. If it is not mentioned in the observations, it can be included in the findings. The Act does prohibit interference with investigations and if there is interference, a case can be opened for defeating the ends of justice – this is a protection mechanism.
Public Protector Investigation
Mr Ramatlakane said the finding is that there are serious allegations presented to the Public Protector and based on the Public Protector’s letter notifying the Minister of these serious allegations, this needs to be investigated. The Public Protector letter does not speak to preliminary investigation but requests documentation.
Independence of IPID
The Chairperson said it is important to note the status given to IPID to conduct independent investigations.
Mr Ramatlakane said the finding is that IPID is, in terms of the ruling of the Constitutional Court, functions independently without interference. No single case of interference has been presented to the Committee in the last four years so IPID does function independently. Neither the police nor the Minister interferes as envisaged under the IPID Act. IPID is not a Chapter Nine institution – this should be stated in the Report for clarity.
Mr Mbhele said it was self-evident that IPID is not a Chapter Nine institution. He contested the statement that the Committee received no reports on interference in IPID from SAPS or the Minister – the Committee definitely has had reports from Mr McBride that the challenge of retaliatory investigations from a SAPS unit, that became known as the Mabula hit squad, was a serious challenge facing IPID. There was also the saga that ensued from March 2015 around whether the Minister’s discretionary power, at the time to suspend the Executive Director, amounted to undue interference. It is not true that there has been no interference in the past. A finding to make, in terms of the independence of IPID, over the past four years, is that operational and structural independence has been strengthened and reinforced through the series of court rulings obtained around amendment of the IPID Act and the invalidation of the Public Service Act and regulations to the Executive Director. There are also the rulings of SAPS investigations into IPID investigators investigating the SAPS. There has also been the upholding of the right of IPID to obtain classified documents. The finding is that IPID’s independence has been reinforced and strengthened over the years.
The Chairperson said the Constitutional Court matter might more be more of an observation – it therefore should be parked there.
Mr Ramatlakane said interference referenced is between the Minister and head of IPID. There is no contestation that there was a problem with the counter-investigations and the Committee did take a resolution on this – the Committee was strong in saying this is wrong and is interference. It might be useful to confine the finding to the current Minister and not open it up. The suspension under the former Minister was another issue concerning other allegations. The reference here is specifically to interference from political officer bearers – this is what the Constitutional Court referred to and the non-renewable one term. This might be a solution going forward by way of recommendation for the Sixth Parliament.
Mr Mbhele was happy for the finding to speak in a precise way to no evidence of political or ministerial interference in IPID investigations. He was objecting to the broader, general statement of there being no interference in IPID.
The Chairperson said the material point raised in the submission was that due to the political situation there should be continuity for the investigations.
Mr Maake maintained it was not in the territory of the Committee to make findings on this topic.
Mr Mbhele proposed the finding state: “the Committee finds there is a vested interest in maintaining the independence and effectiveness of IPID in light of ongoing revelations about past corruption and state capture”.
Mr Ramatlakane thought this is not a finding. For example, there is no evidence of vested interests on the table apart from what Mr McBride suggested in terms of appointment of friends. However, this is untested and is an allegation made. The Committee can conclude with its wish of strengthening IPID going forward as an oversight body rooting out corruption – this would be better than making the point a finding.
Ms Mabija agreed the matter was not within the territory of the Committee. What is the topic looking to achieve? This is irrelevant and has nothing to do with the Committee. The Committee is working on the mandate given to it by the NA Rules.
Mr Mbhele suggested the finding say: “it remains in the public interest for the independence and effectiveness of IPID to be maintained”.
Mr Maake thought this would be a very nice concluding statement to insert in the Report. Exclamation marks could even be added.
Ms Mmola agreed. The Executive Director is not a political position but is an administrator.
Case law on contracts
The Chairperson thought, as under observations, the Report should note the case law on similar institutions in terms of the term limitation.
Mr Mbhele questioned whether the Report would contain recommendations. The Committee deliberations over the last few days have been useful in bringing to the surface gaps and matters that had not been encountered or thought of before. He had a list of recommendations which relate to these matters which he would like to ventilate at some point. Recommendations included:
-IPID Act be amended to extend the Executive Director’s term to a seven, non-renewable, term
-referencing the Civilian Secretariat Act, it should be stipulated the Executive Director not be a member or former member of SAPS. This would assist in ensuring proper separation between those who investigate the police and SAPS itself
-any future appointment letters for the Executive Director must outline a specific process leading up to renewal for mutual understanding and expectations between the two parties on how this should be handled until the amendment for the non-renewable seven-year term is made to the legislation
-future Police Portfolio Committees must require an annual submission of performance agreements and assessments by the Executive Director for oversight purposes – this way, the Committee would not catch this kind of matter four years down the line
-future Executive Directors are to be discouraged from applying for SAPS leadership posts midterm until and unless a prohibition in statute is implemented
-Executive Director must give an annual report to the Police Portfolio Committee about the status of his or her security clearance including impeding expiry and actions undertaken to apply timeously for revetting – this would allow a year-by-year up-to-date picture on the security clearance
-Portfolio Committee should encourage compliant reporting to the Minister on the part of the Executive Director and responsiveness to the Executive Director on the part of the Minister to correspondence and requests for meetings
-Executive Director should report to the Police Portfolio Committee whenever he/she is the subject of a Chapter Nine investigation and encourage that such investigations are speedily concluded in order to preserve the public perception of IPID’s integrity
The Chairperson thanked Mr Mbhele for the valuable input which would be considered during broader discussion tomorrow.
Mr Maake asked if some of the recommendations would require amendment to the enabling legislation such as the submission of performance agreements to the Police Portfolio Committee.
Mr Ramatlakane said the constitutionality of some of the provisions in a couple of the recommendations would probably have to be checked such as the exclusion of SAPS members from applying to be Executive Director of IPID.
The Chairperson said the drafting team would be working overnight to get the Draft Report to Members tomorrow morning to finalise the findings, recommendations and conclusion on the renewal or non-renewal based on discussion and information before the Committee.
The meeting was adjourned.
- Media Statement: deliberations on IPID Executive Director Matter
- Letter on the Issue of Executive Director of IPID
- Independent Police Investigative Directorate (IPID) BRRR 2016
- Independent Police Investigative Directorate (IPID) Annual Report 2017/18
- Independent Police Investigative Directorate (IPID) Annual Report 2016/17
- Independent Police Investigative Directorate (IPID) Annual Report 2015/16
- Independent Police Investigative Directorate (IPID) Annual Report 2014/15
- Independent Police Investigative Directorate (IPID) Annual Report 2013/14
- Independent Police Investigative Directorate (IPID) BRRR 2018
- Independent Police Investigative Directorate (IPID) BRRR 2017
- Independent Police Investigative Directorate (IPID) BRRR 2015
- IPID Act, 2011
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