Independent Police Investigative Directorate (IPID) Bill; Civilian Secretariat for Police Service Bill: public hearings Day 4

Meeting report

South African No Torture Consortium (SANTOC) submission on Independent Police Investigative Directorate Bill
Ms Megan Bantjies, SANTOC Coordinator, said her organisation was largely concerned with Chapter 6 of the Bill. Missing from Chapter 6 was the Directorate’s responsibility to the victims of torture in the hands of the police. There was evidence that over 600 deaths had occurred in police custody and one was only left to wonder how many were left needing support after being tortured. It was important to provide support to torture victims, even if a successful prosecution and conviction of the perpetrator had not occurred, or the perpetrator was not identified or apprehended. The actions recommended for dealing with victims needed to be carried out first without having proof of victimisation. South Africa was a signatory to many international protocols, in particular Article 14 of the UN Convention Against Torture, which entrusted states with a responsibility to ensure that in its legal system victims of torture obtained redress and had an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible. The level of training provided for investigators needed to be improved to ensure swift dealing with torture related complaints. Unlimited access to police cells needed to be granted to ensure that incidents of torture were not covered up.

On the effectiveness of the IPID, SANTOC submitted that the public should be allowed access to records of complaints to ensure a strong and effective monitoring. The current set-up of interaction between the Secretariat, IPID and Ministry caused challenges to the independence of the two overseeing bodies. The reporting procedure also needed to be re-looked at as the proposed arrangement of reporting directly to the Minister could create perceptions that the IPID was a lapdog of the Ministry. A suggestion was made to make Parliament play a larger role at least when it came to reporting.

Discussion
Mr M George (COPE) requested clarity about the reported 600 deaths in police custody as a result of police action. It was important not to ascribe every death in police custody to brutal police action or cell conditions. Some suspects went to police cells and died of natural causes and it would be misleading the public to publish such as being caused by the police.

Mr G Schneemann (ANC) said a mention was made by SANTOC that the public should have access to the complaints that had been made. How could the public be given access to complaints lodged with the IPID?

Ms A Van Wyk asked Ms Bantjies to tell the Committee how many centres that dealt with torture victims were present in the country and what was the state of those centres in terms of capacity and functionality.

Ms Bantjies replied that indeed there were very few psycho-treatment centres in the country available for victims of torture. Even at state institutions, resources and support services were limited, and one would have to wait longer to access the services of a specialist.

Rev Meshoe (ACDP) asked SANTOC to repeat its proposition regarding the manner in which the National Commissioner of Police and the Minister should interact with the IPID and the Secretariat.

Mr George wondered if the suggestion to provide advanced investigative training to IPID investigators should not be extended to SAPS investigators as well. Many SAPS investigators, due to inadequate investigative skills, resorted to use of torture to extract information from suspects.

Mr Lekgetho asked Ms Bantjies where SANTOC was located and how the organisation could be contacted by the public. This question was not answered in Ms Bantjies’ response. 

Mr George asked for clarity whether the suggestion to make IPID and the Secretariat report directly to Parliament also meant the structures needed to be elevated to become one of the Chapter 9 institutions.

The Chairperson said such an option would not be considered as it was not what the Constitution intended when making provision for the establishment of the two bodies.

Community Police Forum submissions on the Bills
Mr Mandla Mputhi, Chairperson of the National Community Police Forum (CPF), told the Committee that CPF was being sidelined from playing a pivotal role in exercising oversight over the police. The organisation welcomed the propositions brought by the new Bills and in particular the establishment of the consultative forums and management committees. The Committee was urged to consider involving CPF as one of the stakeholders to be present in the composition of the consultative forum.

Discussion
Mr G Lekgetho (ANC) asked the CPF to say where they were located and how many CPFs were present in the country or province by province.

Mr Mphuthi replied that out of the nine provinces, there were only three police stations in two provinces which did not have functioning CPFs. Northern Cape had two missing and North West had one. The rest of the provinces had CPFs equal to the number of police stations present in the particular province. Those police stations that had problems did not even have communities present for CPFs to be established.

Mr M George remarked that the relationship between the police and the CPF had been painted as frosty. Could anyone explain what the cause of that bad relationship was between the two and how such relations could be improved?

Mr Mphuthi replied that a lot had to do with police officials not giving any recognition to the CPFs in their regions. The status of CPFs as an integral body for facilitating police oversight needed to be legislated. There were some police officials who made it look as if they were doing CPF a favour when they interacted with them. It would have been much better if relations between the Police and CPF were formalised through making a provision in the legislation to ensure that police co-operation was a non-negotiable.

Tshwaranang Legal Advocacy Centre (TLAC) submissions on the Bills
Ms Lisa Vetten, TLAC Senior Researcher and Policy Analyst, addressed issues around compliance with the Domestic Violence Act, in particular Section 18 (Application of the Act by prosecuting authority and members of South African Police Service). The Act imposed two main duties on the police; administration (record keeping) and policing services. The level of record keeping was very poor. Statistics highlighted that only 16% of the 245 stations audited in 2006 met their obligations in full. In 2007, 42.5% of the 395 police stations audited were fully compliant with the Act's provisions. However, in 2008, no more than 14% of the 434 police stations audited fully met their obligations. On complaints about policing services, a total of 1 121 reports were made between 2001 and 2009. More than half related to the police’s failure to arrest abusers (52.5%) and 14.5% were related to failure to open criminal cases. At least 12.3% had to do with failure to assist survivors of domestic violence to find suitable shelter; obtain medical treatment; escort the victim to collect their personal property; and seize any dangerous weapons from the abuser as provided for in the Act. The Independent Complaints Directorate in turn recommended 928 (82.8%) of the 1 121 complaints referred to them for further action, but only 48 (5.1%) of the cases were pursued. In 68.2% of the 48 cases, the police provided either very little or no response. Only 45 of the 1 121 complaints resulted in some form of punishment or corrective action in the form of verbal warning (23 cases), provision of training (7 cases) and suspension (5 cases) ranging from two to twelve months. In light of the information provided, TLAC suggested that the proposed repeal of Section 18 was too wide and the repeal needed to be deferred until proper consultation with relevant organisations had been done.

Discussion
The Chairperson asked TLAC for an honest and objective view as to how implementable some of the provisions of Domestic Violence Act were and if implementable at all, then how.

Ms Vetten replied that indeed the Act was implementable but for that to happen there needed to be clear guidelines on when the police may investigate and arrest in cases involving domestic violence. In many cases, police were simply reluctant to even provide escort services to a victim when they asked to as the Act stipulated.

A comprehensive research had been done and submitted before the Portfolio Committee on Women with details on how the Domestic Violence Act could be better implemented.

The Chairperson asked if a copy of the document could be made available to the Committee for it to have a look at some of the recommendations.

It was agreed that TLAC would submit the report to the committee secretary for the attention of all members of the Committee.

South African Human Rights Commission (SAHRC) submission
Ms Judith Cohen, Head of Programme: Parliament and International Affairs, SAHRC, touched on the issue earlier raised by the parliament research unit about the perception created that the Bill was not giving recognition to what Section 206(6) of the Constitution wanted. The independence of the structure remained critical and was provided for in the Constitution. It was important for every effort to be made that such was provided for in the legislation through measures such as the financial sustainability of the institution, appointment process and security of tenure of the Executive Director. There were many provisions in the Bill which seemed to repeat what was already contained in the Public Finance Management Act (PMFA) and such repetition was unnecessary. The Bill therefore needed to be scanned to ensure consistency with the PFMA. There were other provisions in the Bill which the SAHRC took issue with such as specifying in detail what and how the organisational structure of IPID should look like. The structure of an organisation could change at any time and if that happened it would mean that the legislation would need to be amended. It was not necessary to set out job requirements in the Bill as those could be done using internal processes. The vague provision that salaries of investigators needed to be on a par with salaries of SAPS investigators was bound to create problems in terms of interpretation in courts.

The SAHRC pointed out that there were a number of standard clauses which were missing in the Bill. It was important to have a clause which directed the IPID and its members to conduct itself in an independent manner. There was a need to put in a provision which defined the legal status or locus standi of IPID. It would have been desirable to have a clause which gave immunity to the IPID staff from legal liability for any actions done in good faith and during the course and scope of their employment. The issue of referrals to the NPA needed to be tightened and the use of the word “may” could to be replaced with a much better word.

Discussion
Mr Meshoe asked Ms Cohen to elaborate what she thought could be done to ensure that the institution was independent.

Ms Cohen said there were a number of mechanisms that could be effected in the legislation, for example, on the issue of security of tenure, the Bill was not clear as to how long the Head of IPID could remain in office. There was a suggestion from reading the Bill that it could be two terms but that needed to be made plain. The process for removal from office was not through the application of standard measures used for other independent offices such as the NDPP and Judges.

Ms A van Wyk (ANC) said she had reservations with the SAHRC view that provisions in the Bill needed to guarantee IPID independence not just from the police but from anyone and everything. Since the IPID investigated the police, it was logical that the Constitution would require it to be independent of the very same police which it investigated.

Ms Cohen disagreed with the view put forward. In doing its investigation, the IPID was bound to interact with many players, even outside of the police. The provision guaranteeing the independence of the Judicial Inspectorate of Prisons was one example where such independence was provided for in general and not just from the Department of Correctional Services.

Mr G Schneemann (ANC) said he thought the provision was clear that the head of the IPID could only serve for two terms but nevertheless agreed that the wording needed to be strengthened to remove any possibility of ambiguity.

Mr Lekgetho asked SAHRC to explain what was wrong with the use of the word “may” and which word could better be used instead of the word “may” when it came to referrals to the NPA.

Ms Cohen replied that the use of the word “may” gave an impression that the ICD could decide when to refer matters even if that would have a chilling effect on the dispensation of justice. Imposing a duty to refer matters to the NPA if a prima facie case existed in the view of the IPID officials could have been a better alternative because the concept of prima facie was already used and had been interpreted in the legal world.

South African Policing Union (SAPU)
Mr Mpho Kwinika, SAPU President, said as it was concerned about the tag associated with the ICD of it often being called a ‘toothless watchdog’. The union viewed ICD as lacking necessary capacity, political support and budget to implement its mandate. A proposition was made that the ICD should be given powers to ensure that its recommendations were implemented. As things stood, it appeared as if it was easy for police officers to simply ignore the ICD investigations and recommendations. One other factor that characterised the ICD was the erosion of the trite principle of our law that all were equal before the law. It was evident from many of the ICD investigations that only junior officers seemed to be targeted and yet there were many senior high-ranking officials who were in conflict with the law and nothing was done about them. An example of the recently convicted former police commissioner was cited as one example of the failings of the ICD to investigate high-ranking officials. In 2006, the ICD did a mickey-mouse investigation on the former commissioner and cleared him of any wrongdoing. The very fact that the Executive Director of the ICD held a junior rank to that of the police commissioner made it difficult for the Executive Director to even consider summoning the police commissioner when doing an investigation. SAPU welcomed the fact that the rank of the provincial heads had been clarified. Everyone knew that their rank was same as that of the Chief Director. The union expressed its reservations about the independence of the new body as it appeared from its reading of the Bill that the IPID would be highly dependent on the Secretariat, prompting further questions about the likelihood of interference from the Ministry.

Discussion
Mr George asked if SAPU felt there were any improvements in the Bill that addressed the issue of ICD having sharper teeth. The lack of resources had previously been cited as one of the reasons why the ICD was toothless. With the organisational structure proposed, did SAPU feel something good was going to be realised or it was all about blowing hot and cold.

Mr Kwinika said as SAPU they believed teeth in the ICD would come once the issue of their independence from the police and the Ministry together with the issue of ranks and capacity were addressed.

Mr George agreed with the view that the issue of rank was a cause for the perception that ICD was toothless. Speaking from his experience in the Defence Ministry, a junior person could not initiate an investigation against a high ranking official even if there was a case to be investigated. The environment simply did not permit such to happen.

Ms Van Wyk disagreed with the view that rank could play a role in the investigations of matters. What Parliament needed to do was to spell out the powers of the investigators in the legislation and all would be addressed. There were investigators who were willing to investigate senior high-ranking commanders but Parliament needed to empower such investigators with legislative provisions which clarified their powers.

The Chairperson agreed with Ms Van Wyk, saying it was important to get it right in the legislation before the issue of rank could be considered. That however did not mean that rank did not play any role in hampering investigations but in terms of importance, giving investigators powers through legislations was critical.

The Chairperson thanked all who had made submissions and said the Committee would meet in the upcoming days with the departmental officials to streamline the Bill, taking into account the public submissions and recommendations on how the Bill could be strengthened and loopholes closed.

The meeting was adjourned.