Independent Complaints Directorate 2008/09 Annual Report; Criminal Law Forensic Procedures Amendment Bill: consideration

Meeting report

Briefing by the Independent Complaints Directorate (ICD)
Mr Francois Beukman, Executive Director: ICD, introduced his team and outlined the key subjects of the presentation and the components of the various departments within the Directorate (see attached documents). He explained the purpose of the ICD, its derivation from Chapter 10 of the South African Police Service Act of 1995 and its advisory relationship with the South African Police Services (SAPS).

Mr Elias Valoyi, Programme Manager: ICD, briefed the Committee on the administrative results, challenges, and future targets of the Directorate. Details of the number of staff employed and the gender and racial composition were provided. The key challenges included staff retention, achieving gender equity and the segregation of functions in the Provincial offices.

Ms Noluthando Sihlezana, Programme Manager: ICD, presented the annual report of the Information Management and Registry department of the Directorate. The programmes consisted of Complaints Registry and Monitoring; Communication and Marketing; Research, Library and Information Technology. The Complaints Registry contained data on the cases referred to the ICD, the circumstances of deaths in police custody and records of misconduct. A summary of the communication and marketing campaigns, the monitoring of the implementation of the Domestic Violence Act (DVA) and the corrective measures applied to assist the SAPS, was provided. The challenges experienced were the inaccessibility of rural areas, the implementation of mechanisms to monitor the DVA and the limited powers and influence of the ICD over SAPS to implement the recommendations made by the ICD.

Mr Tommy Tshabalala, Programme Manager: ICD, briefed the Committee on the investigative processes followed by the Directorate. The basic investigative procedures were explained.  Statistics of the total number of completed cases per Province and the number of successful convictions of SAPS Members were provided.  The cases concerning misconduct and the recommendations of the ICD were summarised. The reasons for the failure to reach all the targets set and the challenges faced by the department included lack of communication between SAPS and the ICD and insufficient resources to cover a large geographical area.

Ms Elise Verster, Chief Financial Officer: ICD, presented the financial report of the Directorate. A breakdown of the budget and expenditure of each programme and component in the National and Provincial offices was provided. An outline of the protocols for debt management and details of the improvements made (based on the findings of research conducted) was included. A large proportion of the budget was allocated for travelling expenses. One of the key challenges faced by the Directorate was substantiating the asset register.

Discussion
Ms D Kohler-Barnard (DA) commented on the number of resignations and asked what the primary reason was for the departure.  She remarked on the distribution of vehicles and suggested that there was a shortage. She asked if the resources available to the Directorate were not spread too thinly. She asked why SAPS officers were allowing prisoners to enter cells with belts and shoelaces and what action was taken against the officers concerned. She suggested that an alternative option was found to avoid the expense of damaged blankets. She commented on the high reported number of deaths from natural causes and questioned the validity or truth of the statistics. She asked what happened to members of SAPS when people died whilst under their responsibility.

Ms D Schäfer (DA) enquired what a ‘sub car’ was.  She wanted to know if the ICD investigated and monitored SAPS stations to ensure that recommendations were complied with. She expressed concern that many SAPS stations simply did not comply with the ICD recommendations and that many of the claims made by SAPS were unsubstantiated.

Ms P Mocumi (ANC) asked how many disabled persons were employed by the ICD. She requested clarity on the statistics provided on the different types of misconduct. She remarked on the number of suicides by moving vehicle and asked for an explanation.

Mr G Lekgetho (ANC) remarked that the contact details and addresses of the ICD were not readily available. He commented on the high number of deaths in Police custody and asked for clarity about the statistic and an explanation of how such deaths occurred.

Rev K Meshoe (ACDP) asked how the ICD retained employees who were provided with bursaries.  He asked how effective the marketing strategies were.  He wanted to know what protocol was followed when SAPS declined to implement the recommendations of the ICD in cases of misconduct.

Ms A Van Wyk (ANC) pointed out some inconsistencies in the statistics provided by the ICD. She asked why so much money had been spent on overtime pay for administrative personnel. She commented on the late submission of DVA reports and the cell inspection reports and pointed out that the Committee had raised concerns over these issues during meetings held during the previous year as well.

Mr M George (COPE) noted that the figures presented by the ICD did not balance. He asked if the high staff turnover was applicable in both the Provincial and National offices. He asked why the number of deaths of innocent bystanders had increased. He asked why Police officers requested exemption.

Mr M Nonkonyama (ANC) asked what the status ‘finalised’ meant in cases of misconduct and whether the officers concerned were still employed. He asked what was meant by ‘outstanding results’. He commented on the fact that there was only one monitor per Province and questioned whether that was sufficient.

Ms M Dube (ANC) asked how long it took to finalise cases and what marketing methodologies were utilised by the IDC in different areas.

The Chairperson asked for an explanation of the ‘personal expenditure’ reported in the financial statements.  He asked why the target for marketing awareness was so low, how many of the areas targeted were rural and the percentage of targets reached. Referring to the research project and the cell inspection policy mentioned on page 41 of the Annual Report, she asked whether the cell inspection policy was part of the research project or a product of the research conducted. She asked for clarification on what was considered to be the successful meeting of targets. Considering the results of the staff retention policy, she asked if it did not need to be reviewed.

Mr Valoyi replied that staff generally left the ICD for promotion to higher positions elsewhere or for better-paid positions in the private sector. Addressing the question of the ICD’s influence with SAPS, he referred to smaller departments where the number of cases concerning misconduct had been reduced. He explained that a ‘sub car’ was a vehicle provided by the Directorate to employees to allow them to fulfil their duties. Half of the cost of the car was paid by the Department and half by the employee.

The Chairperson asked what happened when the car was fully paid for and whether the ICD monitored that the car was used by employees to carry out their duties.

Mr Valoyi explained that the car became the property of the employee when the mileage reached 120 000 km.  The cars were fitted with tracking devices and employees had to complete logbooks, which were used to monitor the use of the cars.

Rev Meshoe asked if the car had to be kept for a specified period of time.

Mr Valoyi confirmed that said that a minimum number of years had to pass before an employee could own the car. If the mileage of 120 000 km was reached early, the contracts were not renewed.

Mr Nonkonyana asked if the employees paid for the car by means of a salary deduction.

Mr Valoyi replied in the affirmative.

Ms Dube asked if there were any guidelines regarding the type of cars that employees were allowed.

Mr Valoyi replied that a maximum price range and a maximum engine size of 1.6 litres were prescribed.

The Chairperson suggested that the Directorate needed to ensure that this system was well managed as there had been instances of abuse by other Departments.  She remarked that an employee would be less willing to travel on bad roads in rural areas if he/she owned the car.

Mr Valoyi agreed that there were risks involved with this type of system. In response to earlier questions from Members, he pointed out that employment equity requirements included the employment of disabled persons. The Directorate did not reach the desired quota as two disabled members of staff had left their employ. The head office of the ICD was in Pretoria and the Directorate had provincial offices in all nine provinces.  The ICD had a programme in place to ensure that persons who had received bursaries served an equivalent number of years.  The students accrued study loan debts and were expected to repay the cost of the bursary to the ICD.  Legal action was taken against students who failed to repay their study loans.

The Chairperson asked if the call centre had been established.

Ms Silhezana replied that the call centre had not yet been established.  A meeting was held with the relevant parties but the establishment of the call centre was delayed because of the cost involved.  The call centre had been put on hold because of budget constraints and the fact that the Directorate planned to relocate the national office. One person had been employed to receive and screen calls made to the ICD.

Mr Nonkonyana asked where the ICD’s head office was situated.

Rev Meshoe asked how accessible the offices of the ICD were. He remarked that the office in Johannesburg was not readily accessible.

Mr George said that, with the exception of Mr Chauke, the Members of the Committee had approved the budget of the Directorate.

Ms Dube asked why more human resources were employed at the Provincial level rather than the National level.

Mr George asked why the ICD had moved their offices in East London away from the Police station.

Mr Valoyi explained that the East London office was moved as the office of the ICD had been accommodated in a house.  It was difficult to find a suitable free standing building in the city centre of Johannesburg that provided good access and the IDC had to continue to use the existing office premises. The high staff turnover occurred at the National office, where a large number of administrative employees had resigned. A case was ‘finalised’ when charges were laid against the officer concerned.  A detailed list of finalised cases could be made available to the Committee. Disciplinary action was taken against employees who misused the vehicles provided by the Directorate and such abuse could result in dismissal.

Ms Van Wyk repeated her request for an explanation of the inconsistencies in the figures and asked for a reply to her question concerning overtime payments.

Mr Valoyi explained that the inconsistencies in the figures resulted from rounding off certain figures.  The overtime payments were made when administrative employees had worked extra hours to complete the financial year-end procedures.

Ms Sihlezana advised that the IDC was conducting an investigation into the high incidence of suicides with belts; shoelaces, etc. and would submit recommendations to the SAPS. 39 Police stations were audited and most were found to be compliant.  The best-performing stations received awards. She pointed out that existing legislation limited the ICD to make recommendations and to give advice to the SAPS. The ICD awarded those stations that implemented the recommendations. She apologised for any unintended calculation errors in the figures presented to the Committee.

Ms Van Wyk asked what SAPS had to do with cell inspection.

Ms Sihlezana said that she would return to Ms Van Wyk’s question after responding to earlier questions asked by the Members. The marketing strategy of the IDC was not working as well as anticipated.  Marketing campaigns were run via the radio but the IDC planned to conduct workshops in future (particularly in rural areas) to raise awareness of the Directorate. Both urban and rural areas were targeted for the awareness campaign. Applications for exemption were made in terms of the provisions of the DVA, which stated that the members of SAPS could ask for exemption if certain complaints were directed at them. She explained that the core mandate of the Directorate (i.e. conducting investigations) involved a great deal of travelling and there were some challenges in reducing the costs incurred. In respect of the implementation of the DVA, she advised that all data and protocols were included in the DVA report. She agreed that more monitors were required in the Provinces but additional funding would be required. Community outreach programmes were influenced by the findings of research projects, for example, if a significant number of cases occurred in one area or the ICD was unknown, then that particular area would be targeted for an outreach programme. She said that the policy of cell inspection was developed from the research findings.

The Chairperson asked why key officials were not available when the IDC was audited by the Auditor-General.

Ms Mocumi insisted on a reply to her earlier question concerning the number of incidents involving suspects jumping out of moving vehicles. She asked for clarity on the information provided on pages 36 and 38 of the Annual Report.  She wanted to know the reason for the delays in finalising cases and whether witnesses against a member of SAPS were protected from intimidation.

Rev Meshoe asked for clarity on the cases taken to court. He requested an explanation of the distribution of resources between the National and Provincial offices. He asked which investigators received danger allowances and what the allowance amounted to.

Mr B Ndlovu (IFP) asked if the ICD had overestimated the feasibility of the targets set. He asked how many crime scenes were not attended and whether members of SAPS had tampered with evidence found at crime scenes. He asked if members of SAPS who had been dismissed were also charged for the crimes committed. He requested explanations of the bizarre sentences meted out for certain serious crimes that were committed and the poor performance of the IDC in the previous audit.

Ms Van Wyk referred to Programme 2 and questioned whether performance monitoring was taking place. She queried the amount spent on travelling at the National level and wanted to know which Provinces were visited. She noted that the difference between expenditure on overtime for the current and previous years was nearly R1 million. She said that the inability to determine the assets of a relatively small organisation like the IDC was a serious problem.

Mr George said that the IDC had not answered any of his questions. He questioned the validity of the number of reported suicides of persons in Police custody.  He recalled that, when the previous Government was in power, prisoners murdered by the Police were reported as suicides.  He asked if the ICD investigated all reports of suicide. It would appear that the ICD had difficulty in meeting the investigative targets. He remarked that the Chief Financial Officer was very experienced but many financial problems remained.

Ms Schäfer commented that SAPS was deliberately ignoring the recommendations made by the ICD. She asked if the applicable legislation allowed the IDC more power than merely making recommendations and providing advice to the SAPS. She asked for clarity on the policy for accommodation of staff and if a maximum cost was applicable. 
 
Mr Lekgetho asked what measures the IDC had taken to deal with the problem of misconduct by Police officers.

Ms M Molebatsi (ANC) asked for an explanation of what was meant by a ‘salary debt’ and how it was incurred.  She wanted to know why there had been expenditure for a call centre that had not been established. She referred to the item listed as ‘disposed assets due to incorrect coding’ and asked for further information. 

Mr Ndlovu asked what action was taken when senior officials were not available during the audit.  He questioned whether the budget was appropriately utilised and whether those in charge of using it were qualified for the job.

Ms Dube asked under which circumstances and for which periods were cars leased and guest houses used by IDC personnel.

The Chairperson asked for clarity on the protocols applicable to the DVA. She remarked that the implementation of the DVA was very difficult.

Mr Tshabalala replied to the questions concerning the high incidence of suicides and said that it was very clear that belts, shoelaces, etc. had to be removed from persons taken into Police custody.  The ICD recommended that disciplinary action was taken against the responsible officers but SAPS officers could not be charged with murder or culpable homicide for negligence. SAPS was obligated to notify the ICD of all incidents involving Police officers but there were often delays before the ICD was notified and the crime scene was found not to be intact when the ICD investigators arrived.  The ICD was taking action on the matter.  The delays in finalisation of cases were usually caused by late reporting, but cases differed and some were delayed by the large number of exhibits and witnesses, while others were delayed because of the backlog at the Forensic Science Laboratory.  SAPS officers were dismissed once they were convicted of a criminal charge. All investigators at the ICD were entitled to receive the danger allowance.

Mr George asked if the payment of a danger allowance was necessary for investigations of the Police.

Mr Tshabalala replied that the IDC was concerned over the suicide statistics, especially instances reported where people had allegedly jumped out of moving vehicles. The investigations conducted by the IDC dealt primarily with post mortem evidence, a great deal of information were drawn from this source and were compared with the Police reports. The IDC did not rely on the Police when conducting investigations and they followed their own initiative. Sentences for misconduct were handed down by SAPS management to the officers concerned and the ICD did not query these sentences.

Mr Tshabalala said that he had visited each Province at least once for the purpose of monitoring performance, but had been to the Provinces on a number of other occasions for investigative purposes. Regarding the failure to meet targets, he explained that the turn-around times that were previously set were not reasonable and the Committee had advised that the turn-around times were reviewed. The IDC planned to improve their outcomes planning in future.

The Chairperson said that performance monitoring was very important and asked why the Provinces were not visited more frequently.

Mr Tshabalala accepted the point made by the Chairperson and mentioned that performance monitoring was also done once per month, therefore the IDC did a fair amount of monitoring.

Ms Verster explained that the Deputy Director of Finance was the key official who was not present during the audit.  She never took vacation leave until the time of the audit.

The Chairperson remarked that the problem was the result of poor planning.

Ms Verster agreed with the Chairperson’s remark. She said that many of the problems with personnel were related to the inability to pay competitive salaries and to employ an adequate number of people.  The financial department of the ICD needed to be restructured, preferably into functional components.  Compiling the asset register was a problem because the auditors were unable to locate the assets. The documented policy on accommodation and vehicles was available to the Committee. Guest houses and hotels were used by investigators, who were required to travel in the course of carrying out their duties. She explained that a salary debt occurred when lower level clerks received a higher post elsewhere and did not complete their employment contract.

Mr Beukman agreed that the ICD should be strengthened.  He advised that he had conducted a complete overview of the efficiency of the ICD at all levels. The poor perception of the ICD had to be addressed. The ICD should be governed by its own legislation to enable them to deal with the issues. The ICD must be an independent body, which was properly costed by the National Treasury and a full investigation of its processes and capabilities needed to be undertaken.  The business of investigation was the primary concern of the IDC and their role was to monitor the Police.  The IDC needed the support of the Portfolio Committee to carry out its mandate. He agreed with the Committee’s advice that the IDC was strengthened at the Provincial level and gained the confidence of the public. He thanked the Committee for their positive criticism, advice and support.

The Chairperson requested that, due to the lack of available time, the IDC submitted written responses to the unanswered questions asked by Members.

Consideration of the Criminal Law Forensic Procedures Amendment Bill
The Chairperson requested that the Committee discuss what action should be taken regarding the Criminal Law Forensic Procedures Amendment Bill. The Committee had to advise Parliament when the Bill would be finalised.  There were many human rights issues affected by the Bill.

Ms Van Wyk suggested that the Bill was split and that the provisions concerning fingerprinting were dealt with first in order for the law enforcement agencies access. The remainder of the amendments could then be addressed in 2010.  She said that the Committee had a responsibility to ensure that the human rights issues were addressed and that SAPS had an implementation plan. She suggested that the Committee mandated itself and proceeded with the Bill without further delay.

Ms Kohler-Barnard agreed with Ms Van Wyk’s suggestion.  The first half of the Bill was relatively easy to deal with as it did not involve the same human rights issues of the second half.

Mr George agreed with the suggestion. He said that the second half of the Bill could have serious implications. He asked whether SAPS was ready to implement the amendments. He asked if it was possible to finalise the Bill before 20^th of November 2009. 

Mr Ndlovu said that he did not have a problem with the fingerprinting aspect of the amendments. The concern was over the second half of the amendments and the Committee should take as much time as needed to finalise the Bill.  The Bill aimed to ensure that all parties involved in the security cluster worked together as a cohesive unit.

Ms Van Wyk remarked that the Committee would be able to determine when the Bill could be finalised after the Chairperson had discussed the matter with the State Law Advisor.

Mr Ndlovu extended the apologies of Reverend Meshoe (who had to leave early) and advised that the Reverend supported the Bill.

The Chairperson advised that public hearings on the Bill would commence on 28 October 2009 and that the Committee would be briefed by the State Law Advisor.

Ms Van Wyk suggested that the public hearings on the Bill were not delayed.  

The meeting was adjourned.