Independent Police Investigative Directorate Bill & Civilian Secretariat for Police Service Bill Police Secretariat Bill: deliberations

Meeting report

Independent Police Investigate Directorate Bill [B15-2010] (the IPID Bill)
The Chairperson summarised that quite substantive powers were granted to members of the South African Police Service (SAPS) in terms of the legislation, and said that it was important that these should be monitored, prevent abuse. The Independent Police Investigative Directorate Bill (the IPID Bill) aimed to ensure that police conduct was properly investigated, and to prevent abuse of the general public, who may not be aware of their rights nor of the limitations to police power. The Committee would need to ensure that the objectives of the IPID Bill were being met, and that IPID, unlike the Independent Complaints Directorate (ICD) had sufficient teeth.

The Chairperson asked the State Law Advisors (SLAs) to take the Committee through the clauses that the Committee had asked to be changed.

Revised IPID Bill, incorporating changes up to 25 August 2010
Mr Theo Hercules, Principal State Law Advisor, Office of the Chief State Law Advisor, noted that a document detailing the changes requested by the Committee to the A-List had been prepared. He gave a slide presentation on, and later tabled a hard copy of the “combined Bill”, which incorporated all the changes, highlighted in grey shading. He firstly took the Members through the document detailing the latest changes requested by the Committee.

Objects clause
Mr Hercules noted that the Committee had been requested to incorporate phrases dealing with accountability and transparency, which were now contained in Clause 2(g). This clause made reference to the principles of the Constitution.

Clause 17
Mr Hercules said that wording had been qualified to note that this related to management issues within the Directorate.

Clause 13(1)(d): Page 9
Mr Hercules noted that the functions of the forum were now amended in Clause 17(b), by insertion of the words “amongst other issues relating to..” and the addition of the word “such” later in that sentence

Clause 22
Mr Hercules noted that the wording of this clause was now aligned with the wording used in regard to the security clearance required for members of the national office.

Clause 27
Mr Hercules pointed out that the limitation of liability now only related to the investigator.

Ms A van Wyk (ANC) interjected to say that the numbering of the clauses on this document was not in line with the numbering of the clauses in the Bill before the Committee.

Mr Hercules noted that the A-list reflected the numbering in the Bill as introduced, but what he was now presenting reflected the revised numbering in the combined document, which was essentially the revised version of the Bill.

Clause 28
Mr Hercules noted that the types of matters to be investigated had been redrafted, as set out in the new sub-clauses (a) to (f) on Page 13 (see attached presentation for details).

Mr G Schneemann (ANC) said he too was having problems with the numbering. Even the numbering in the A-list did not reflect the numbering in the printed Bill, as Clause 28 in the Bill related to finances and accountability. He was struggling to follow the presentation.

Ms D Kohler-Barnard (DA) asked whether she was correct in her recollection that on the previous day, the Committee had asked that Clause 28(c) should reflect the words “whether on or off duty”.

The Chairperson clarified that the Committee had finally decided, on the previous day, to delete the reference to “on or off duty”.

Mr Hercules noted that the combined document, which incorporated all the changes and revised numbering, would be handed out to Members as soon as it was available.

Long Title
Mr Hercules said that there was now alignment between the long title and the reporting obligations. The phrase “to provide for reporting obligations and cooperation by members of the South African Police Service and Municipal Police Service” would be added.

Discussion
Mr M George (COPE) said that he would have preferred to have the changed version before him when debating the Bill.

The Chairperson agreed that it would be difficult for the Committee to consider this without having a “cleaned” Bill before the Members.

Ms Kohler-Barnard suggested that perhaps the Committee should wait for the hard copies to be made available. She was uncomfortable with attempting to go through this in the absence of these copies.

Mr Hercules noted that his Powerpoint presentation reflected the changes suggested by the Committee to the A-version (or A-List) of the Bill. This list of amendments would be handed to the printers. He asked whether the Committee wanted to debate the list of amendments alone, or the combined document, which would then be adopted as a Committee Bill.

Ms van Wyk thought that there would not be a problem with passing the Bill with changes.

Mr George said that he was wary of describing this as a “Committee Bill”. He suggested that the new version of the Bill produced by the printers should then be the version that the Committee debated.

Mr Hercules noted that the printers would only incorporate changes after the Committee had adopted the Bill formally. He pointed out that the Committee had done something similar with the Bill relating to the DNA legislation.

The Chairperson agreed that the Committee did not want to have a Committee Bill, but would be making changes to the Bill as introduced by the Minister.

At this stage hard copies of the combined version of the Bill were handed out. Mr Hercules pointed out that the changes were marked in grey highlights. Some of these were purely technical amendments, relating to correction of referencing whilst others were more substantive.

Mr Hercules noted that there was no change to the title of the Bill, but the changes to the Long Title appeared on page 2. The heading had been amended, on page 7, to include a reference to the Objects of the Act, and the “accountability” reference had been deleted.

In the definitions clause, definitions were now included for police service, Secretariat, Secretary and security clearance certificates.

On page 9, a new clause had been added detailing the Objects of the Act.

In Clause 3(j), the words “provincial branches” had been substituted with “provincial offices”, and a new sub-clause (3) was added, on page 10, to deal with the financing of the IPID.

Changes were made to Clause 4, including references to independence and impartiality.

Clause 6, on page 11, dealt with the appointment of the Executive Director and role of the Parliamentary Committee. Subclauses (4) and (5) dealt with the vacancies and the situation where the Executive Director might be unable to perform the functions.

There were consequential amendments to Clauses 7(1)(d). Quite substantive changes were detailed in sub-clauses (4), dealing with referral of criminal matters to the National Prosecuting Authority (NPA) and a notification to the Minister, sub-clause (5), which required the NPA to notify the Executive Director of his or her intention to prosecute, and (6) to ensure that the Executive Director must ensure that complaints were referred to the National Commissioner. The Executive Director must also submit a monthly summary. Sub-clause (8) noted that matters not of a criminal or disciplinary nature must be referred to the Minister. Clauses 7(9) set out the matters that the Executive Director “may” refer to the National or Provincial Commissioner, and 7(10) set out that the Executive Director “must” refer criminal matters for investigation.

Clause 8 dealt with the composition of the national office and a new subclause (e) was added to say that the national office could consist of any other unit established..

Clause 8(3) dealt with the security investigations, which were to be done in conjunction with the National Intelligence Agency (NIA). The security clearance certificate was now defined. Consequential changes were made to subclauses (6), (7) and (8).

Clause 9 dealt with the function of the national office, and there was an amendment to the reporting, under subclause (i), and to the obligations set out under (m), requiring recommendations to be made to SAPS, and a report to Parliament.

Ms Kohler-Barnard pointed out a grammatical error on page 17. She said that one of the “and” linking words should be removed. This was done.

Mr Hercules continued with his presentation. Clauses 10 to 12 contained only consequential changes.

Clause 13(b), on page19, now stated that the Committee must identify matters of strategic importance around the functioning of the Directorate in each province. Clause 13(d) contained qualifications to the management issues.

Clause 16(2), on page 20, had been amended to include the phrase “in consultation with one another”

Clause 17 had been amended, as he had outlined earlier, in respect of the functions of the forum.

Clauses 18, 19 and 20 contained consequential numbering changes. However, Clause 20(4) stated that the Executive Director could designate another person to act as provincial head, which aligned with the provisions on the Executive Director.

Clause 21 was amended in subclauses (21(1)(d) and (i), as indicated by the shading. Referencing changes also appeared in Clause 22.

Clause 23 now contained the qualifications discussed by the Committee on the previous day, in relation to security screening by the NIA, with the issuing of a certificate, and changes were also made to subclause(4). Subclause (7) contained the substitution of “must” for the original “may”. The Committee’s proposals in regard to identification of investigators were included in subclause (9).

In Clause 24(1) the wording “or relevant provincial head” had been added.

In Clause 24(4) and (5) clauses relating to the questioning by investigators, and a suspect’s right not to answer questions that were self-incriminating was added.

Ms Kohler-Barnard thought that subclause (5) was too broad. She asked if a confession by a person would be inadmissible.

Mr Hercules noted that this was covered by the Criminal Procedure Act. Any person would be regarded as innocent until proven guilty, even if the confession had been made. There was, however, provision for perjury.

Clause 25 had been amended only in relation to the offences for failure to disclose, and withdrawal.

A new Clause 27 had been added, relating to limitation of liability for investigators. A new Clause 28 detailed the types of matters to be investigated. Clause 29 now dealt with reporting operations and cooperation by members, and Clause 30 dealt with disciplinary recommendations and the time frames.

Mr Hercules pointed out that Clause 32(2)(c) required a detailed report.

Clause 33 now included new subclauses (3) and (4), which covered offences relating to the reporting obligations on SAPS, and the conflict of interest provisions.

Clause 34 contained some cross-referencing changes, and subclauses (i) to (o) contained amendments in regard to the regulations to be made. Clause 34(2) required that the regulations be submitted to Parliament for scrutiny at least one month before promulgation.

Clause 35 now contained transitional arrangements, with subclause (5) containing amendments in relation to the security clearances.

Mr Hercules then drew Members’ attention to the Schedules 1 and 2. The references to the Domestic Violence Act were now deleted, in respect of the IPID, since the Secretariat would be responsible for the functions under Section 18 of the Act. This was noted on page 46.  

Discussion
The Chairperson referred to Clause 9 on page 17, which had already had a comma deleted earlier, and asked whether the meaning of Clause 9(n) was changed by the removal of the comma. She wondered if the detail must relate to the recommendations, or the types of cases.

Mr Hercules said that this sentence could be made even clearer if the word “the” immediately preceding “outcome” was removed, and if the word “thereof” was substituted by the phrase “of the recommendations”.

The Committee agreed.

Ms van Wyk asked for, and received an assurance that the layout would be properly done.

The Chairperson asked Members to confirm that they were happy with each clause of the Bill, as amended, including the new clauses.

Ms Kohler-Barnard noted that she must take the matter to her party’s caucus and she would therefore abstain from voting to adopt the Bill.

Mr Schneemann said that he would have thought that there had been ample time for all Members to interact with their party caucus.

Ms Kohler-Barnard noted that this was a standard procedure in the DA, and she could not approve a Bill without first discussing it in full caucus.

Mr George noted that this Bill had already been discussed by his party’s caucus. Although his party was in favour of the bill, he asked for an assurance from the Independent Complaints Directorate that the new IPID would be able to take on the additional work. 

Mr Francois Beukman, Executive Director, Independent Complaints Directorate, noted that a full plan would be presented to the Committee on the budget and the readiness of the ICD to take on the additional work.

Rev K Meshoe (ACDP) asked for clarification on when a police official would be regarded as “on’” or “off “ duty. He thought that the words “police action” implied a person acting on police duty.

The Chairperson said that on the previous day, Members had distinguished between an action done in the course and scope of employment, and something done during private time, completely separate from a person’s status as a police officer.  A police firearm being used by a policeman in a robbery would be deemed as police action. However, certain types of actions would be reported as ordinary crimes. The type of matter, rather than whether the police officer was uniformed and on duty, would be relevant.

Ms van Wyk indicated that the ANC would be supporting the Bill. This Bill represented a positive step to address issues raised by the ICD over many years, should given the necessary teeth to IPID, and would also place an obligation on the new IPID to make use of its newly legislated powers to the full. She wished IPID well in future.

After a short break, Ms Kohler Barnard reported that she had received a call from Ms D Schafer (DA) who was not able to be present at the meeting, asking for confirmation whether the discussions by Ms Schafer and the Chairperson on the situation where a police officer might inappropriately touch a person in custody had been catered for. She had thought that a reference to “sexual assault” might need to be inserted into Clause 28(f). That clause detailed specific instances, and she was concerned that leaving it out might mean that it was not covered elsewhere.

Mr Hercules noted that the Criminal Law (Sexual Offences) Amendment Act had repealed the common law definitions of indecent assault, and had specified a much wider range of matters that would be deemed to be sexual offences. He asked what exactly the Committee would wish to have included. Alternatively, he noted that this would be included in the matters upon which the Executive Director must decide.

The Chairperson agreed that the Executive Director could “cause” an investigation of “any offence” and this would be covered.

Mr George also asked about the alignment of the salaries of IPID investigators.

The Chairperson pointed out that this would be up to the Minister, not Parliament, to decide.

Adoption of Bill and Committee Report
Members (with the DA abstaining) then adopted each clause of the Bill, as amended. They confirmed the rejection of Clauses 9 and 25 (whose contents were now included as a new Clause) and the insertion of the new clauses as set out earlier in the meeting. Schedules 1 and 2 were also agreed to, as amended.

Members then adopted the Committee Report.

The Chairperson reminded the ICD that on the following Wednesday it must appear before the Portfolio Committee to present the implementation plan on this Bill. She thanked all who had been involved in the drafting and deliberations on the Bill.

Civilian Secretariat for Police Service Bill [B16-2010]
The Chairperson noted that written and oral submissions on the Civilian Secretariat for Police Service Bill (the Bill) and that public hearings had been conducted. She asked the Secretary of Police to take Members through the Bill.

Ms Jenny Irish-Qhobosheane, Secretary of Police, noted that the Civilian Secretariat for Police (the Secretariat) had already explained the rationale for the Bill and would update the draft implementation plan in due course.

She noted that although the Secretariat was currently referred to as “The Police Secretariat” the title of the Bill reflected the way this body was referenced in the Constitution, and the Secretariat was already formally using the correct full title “Civilian Secretariat for Police”.
 
The Long Title, on page 2, set out what the Bill intended to do. The functions of provincial and national offices would need to be aligned, and this would come out later in the clause by clause deliberations.

Ms Irish-Qhobosheane then read out the Preamble, which set out the important role of oversight, to ensure that public rights were not violated. Reference was made to the Bill of Rights. Previously, the Secretariat had operated as a cost centre, but this Bill would separate out the functions of the Secretariat. The Bill also spoke to the White Paper and the need for transparency and independence.

Clause 1
Clause 1 spoke to the definitions. She suggested that the Committee should discuss this last, as new definitions may need to be added. There were cross references in the definitions to the Executive Director of the IPID. Throughout the Bill, the references to “Secretariat” meant the National body of the Secretariat; any references to the provincial offices would be specified.

At this point, the Chairperson said that the Minister of Police had already introduced this Bill and the policy to the Committee, and the Committee should feel free to begin to deliberate on the clauses, as the meeting progressed.

Clause 2
Ms van Wyk noted that this clause included a reference to “any other organs of State in the national and provincial spheres of government”. This was too wide, and did not specify that the Secretariat should only be dealing with civilian oversight of the police. She suggested that the wording “all organs of State relating to civilian oversight of the police service” might be more appropriate.

Mr George asked what other organs of state were contemplated.

Ms Irish-Qhobosheane said that this include the provincial secretariats and municipal police, if they were to be included in a single police service.

Ms van Wyk felt that another subclause should be added, to specify why this was being done, and to note that the organs of State must render assistance to the Secretariat in the performance of its functions. The exact wording should be similar to that of the IPID Bill.

Ms Irish-Qhobosheane agreed that the current wording was too broad, and the drafters would attend to this.

Clause 3
Ms Irish-Qhobosheane noted that Clause 3 reflected the Constitution’s reference to the necessity for a Civilian Secretariat, and its independence and exercise of powers without fear, favour or prejudice were set out. Provincial secretariats were mentioned in Clause 3(3). Historically there had been disjuncture between the national and provincial levels but these were now being aligned, and extensive consultations had been carried out at provincial level.

Mr George said that the reference “provincial sphere” seemed to exclude the local government sphere. He asked why the municipal police service was not included.

Ms Irish-Qhobosheane noted that the Secretariat, as set out in the Constitution, exercised functions over the “South African Police Service” (SAPS). The provincial MECs, not the national Secretariat, had oversight over the Municipal Police Service (MPS).

Ms van Wyk said that this related to the Committee’s earlier discussions on the IPID Bill, but also related to what the Minister had said in the budget speech. The Committee must, at some stage, debate how inclusion of the MPS would impact on the bodies and budget.

Mr Schneemann agreed that the Committee must discuss the issue. Section 208 of the Constitution referred to the “Police Service” but there were now discussions around a single police service.

Ms Irish-Qhobosheane said that ICD had spoken to the budget issue, and this may well also need to be considered in relation to this Bill. This Bill did not specify clearly that the Secretariat’s budget would be derived from Parliament.

Mr Schneemann asked if a new subclause (4) should not be inserted, similar to the IPID Bill, to specify that the Secretariat was financed by money appropriated by Parliament.

The Chairperson asked what the implications of this would be.

Ms van Wyk said that the implications could be dealt with under the transitional arrangements, which might, for instance, say that this would apply with effect from 2011/12. For reasons of independence, the Secretariat was being moved from the SAPS, but this should also apply to the funding.

Mr G Lekgetho (ANC) and Mr George agreed.

Ms Irish-Qhobosheane said that this would not conflict with the current thinking. Although it was not stipulated in the Bill, there were already discussions being held about the separation from SAPS, and if this were to be included in the Bill, it would speed up the process of the Secretariat being declared as a designated department. However, she cautioned that the Secretariat may only be able to implement this from April 2012, as it would wish to have all its financial systems in place.

Mr George felt that if the Bill was to be passed this year, then the financial systems should be ready to run from April 2011.

Ms van Wyk suggested that perhaps the Committee could agree on the principle, and the Secretariat and SLAs should come back to the Committee with details on the process. Whatever date was agreed on should be inserted into the transitional arrangements.

Mr Schneemann suggested that this issue be left aside for the moment. In October this Committee would be dealing with the budget process, and could deal with this aspect at that stage, when Parliament could make recommendations on the budget.

The Chairperson summarised that in principle, the Committee was agreed that a new subclause would be added to specify that the Secretariat would be financed by monies appropriated from Parliament. The logistics would be worked out and included in the transitional arrangements clause.

Clause 4
Ms Irish-Qhobosheane noted that this clause set out the objects of the Secretariat, in eight sub-clauses.

Ms A Molebatsi (ANC) and Mr George questioned the clause relating to “the necessary support and guidance” to the police service.

Mr George thought that “support” might also imply financial support, and this would need to be discussed.

Mr George also thought that the Objects of the Act, rather than the Objects of the Secretariat, should be set out.

Ms Irish-Qhobosheane noted that the Secretariat had wanted its role to be defined up front in this Bill. If the Committee wanted to add another clause setting out the Objects of the Act, then this would be acceptable, but she would ask that the Objects of the Secretariat still be included.

the Chairperson noted that the Objects of the Act were set out on page 17.

Ms van Wyk said that this was also included in the Long Title, and asked whether it would be necessary to have a separate clause.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, noted that the Objects of the Bill on page 17 would not form part of the promulgated Act, as they were in the Explanatory Memorandum. They would thus need to be included in a separate new clause, if the Committee wished.

Mr Hercules added that the Long Title was a brief summary of what was contained in the whole Bill, and the Objects of the Act should be detailed separately if the Committee so wished.

Mr George suggested that the Objects of the Act could be inserted before the Objects of the Secretariat.

Ms Irish-Qhobosheane suggested that a new clause should rather be included under “Application of Act”, to distinguish the two concepts.

Members agreed to a new clause detailing the Objects of the Act.

Mr George was also worried about the obligations in Clause 4(b) to provide administrative support services to the Minister. This was surely the obligation of the National Commissioner, and he asked what exactly was contemplated, and whether there would be any overlap.

Ms Irish-Qhobosheane responded that the National Commissioner would engage operationally. However, the Minister had to sign off on certain international agreements, and would ask the Secretariat to give advice on those, as well as assistance in preparing technical information for engagements with other countries. There was no intention that there be engagement at the level of Interpol. The Secretariat should also advise whether the police were, for instance, fulfilling international obligations. This was part of its overall monitoring.

Mr Lekgetho said, in regard to the comment around “support” that communities must also be included in policing, that community structures were important in the fight against crime and that injections of money and guidance were urgently required.

Ms van Wyk wondered whether financial support would be possible.

Ms Irish-Qhobosheane said that presently SAPS did support Community Police Forums (CPFs), generally through provincial offices, and SAPS also assisted with transport, venues or other logistics. SAPS had funded the CPF National Meeting a few weeks ago. There might be a need to define, in the regulations, exactly what such “support” would entail, so that there were not unrealistic expectations. Much of what SAPS was currently doing around CFP would come to the Secretariat, which would also mean a transfer of the relevant budget for those activities.

Mr Hercules questioned whether this might not be too substantive to include in regulations, as it would involve finances.

Ms van Wyk agreed that there must be more specific wording that indicated whether this should be financial, logistical or administrative support, so that the Secretariat did not run the risk of contravening the Act.

Mr George also cautioned that the support must match the available budget.

Ms Irish-Qhobosheane agreed that the drafters would tighten up the wording.

Clause 5
Ms Irish-Qhobosheane noted that Clause 5(1) set out what the Secretariat must do, in order to achieve its objects. This included, under subclause (d), the assessment and evaluation of the performance of the police service.

Ms van Wyk referred to subclauses (a) and (b). It would be difficult for the Secretariat to “monitor” the conduct of members, and she suggested that perhaps this should be worded along the lines of “assess the capability”. She thought that in (b), the Secretariat should be monitoring that expenditure was in line with policy. She cited that in the past the funding for Visible Policing seemed to have been used as a convenient source of money for all manner of other activities.

Mr George agreed with these comments. He was also not sure that the monitoring of “conduct” of members was the responsibility of the Secretariat. The National Commissioner was the accounting officer for the police service. The same was true of Clause 5(1)(i)(i),  which he thought blurred the lines between the different functionaries.

Ms van Wyk thought that subclause (i) related to something different. The National Commissioner would ultimately assess the performance of the police, but an independent oversight body should also have the right to do so, and should report to the Committee on any areas where it felt that the police were not performing. The Secretariat may well be judging performance on implementation of legislation, but perhaps the wording should be clarified under the main part of Clause (5)(1).

Ms Irish-Qhobosheane noted that the Institute of Security Studies (ISS) had raised this point as well. Monitoring of individuals would remain the responsibility of SAPS. She suggested that the wording proposed by ISS, which referred to the Secretariat monitoring the overall conduct of the police service and monitoring systems, could be usefully substituted for the current Clause 5(1)(a).

She agreed that, in regard to Clause 5(1)(b), the National Commissioner must be the accounting officer. The Department of Defence had experienced difficulties in their civilian oversight mechanism, which should be avoided here. The Secretariat would be monitoring whether spending was in line with policy. The reference to the Public Finance Management Act and Treasury regulations would be taken out.

She reiterated that the monitoring of individual police officials was the responsibility of the National Commissioner. The monitoring of the police service, as a whole, would involve an investigation of whether the performance targets were being met, such as reduction of certain crimes. Individual performance agreements would not be monitored.

Ms van Wyk did not think that the first part of the ISS’s proposed wording was correct as “conduct of the police service” was not a clear term. The Secretariat should really be monitoring the “performance” of the police service.

Mr George confirmed the difficulties that the Department of Defence had experienced. He asked that the State Law Advisors discuss the wording, rather than the Committee attempting to finalise it now.

Ms van Wyk suggested that the revised Clause 5(1)(a) could read along the lines of: ”monitor the performance of the police service and to regularly assess the extent to which the police service has adequate policies and effective systems and is able to apply corrective measures.”

Mr Schneemann agreed that this seemed to be clearer.

Ms Irish-Qhobosheane noted that Clause 5(1)(b) would also be shortened, to end at “instruction of the Minister.”

Mr George noted that this would impact upon Clause 5(1)(c), which might then need to fall away.

Ms Irish-Qhobosheane referred to Clause 5(1)(d). She outlined that a workshop had been held with various domestic violence groups over the past weekend, and the suggestion was made that this Act should repeat what was stipulated in the Domestic Violence Act (with the substitution of the Secretariat for the ICD). This would reinforce what was being put into the Domestic Violence Act.

The Chairperson said that there seemed to be no problem with this. She asked that the drafters prepare revised wording for (d).

Ms van Wyk disagreed; she thought that (d) could remain, but that a separate clause also be drafted to deal with the functions of the Secretariat around the Domestic Violence Act.

Members agreed to Ms van Wyk’s suggestion.

Mr George asked a question on Clause 5(1)(e) and (f). He asked what the difference was between the Secretariat doing research, and getting information from stakeholders.

Ms van Wyk thought that this offered an opportunity to Parliament, who in the past had been frustrated at not knowing what was being done about the recommendations made by the Committee following oversight visits, to ask the Secretariat to follow up.

Ms Irish-Qhobosheane said that the Secretariat was not shying away from responsibility to do its own research itself. In addition, there was already a wide spectrum of outside research being done on various aspects of SAPS work. One academic institution, who had made findings on how SAPS had handled corruption, had firstly presented that research to SAPS, without any response, and had now brought this to the Secretariat. This clause would enable the Secretariat also to make use of the whole spectrum of research. Parliament could instruct the Secretariat, through this clause, to investigate what had happened to Parliamentary recommendations.

Ms van Wyk then said that complaints against the police were to be removed from the ambit of IPID, and referred, where relevant, to the Secretariat. Throughout the public hearings, it was made clear that the Secretariat would not handle the complaints itself, but would rather ensure that the police had systems in place to deal with these complaints properly. She suggested the addition of another clause, specifying that the Secretariat should “assess and monitor the extent to which the police service has adequate policies and effective mechanisms for processing, receiving, analysing and responding to complaints against police members.”

Ms Irish-Qhobosheane confirmed that it would be problematic if the Secretariat were to become a complaints office. The Secretariat was, however, monitoring how, for instance, the Presidential Hotline was being run. This would be a useful addition.

Clause 5(2)
Mr George asked what was being contemplated under Clause 5(2)(a)(iv).

Ms Irish-Qhobosheane said that the Secretariat wanted to become a centre of excellence, as an information resource hub. This would enable the Secretariat to know who was doing research, and on what policing issues, and would help the MECs to access information at a structured resource centre.

Ms van Wyk thought that the sub-clause should be more simply worded as “create an information resource centre”.

Mr George was worried that currently the Secretariat was sharing a building with SAPS, but the resource information centre should be situated separately, to have credibility.  He was not sure whether this would be possible, and whether the costs had been considered.

Ms van Wyk countered that the information comprised open resources, not confidential matters, and she did not think there would be significant expenses.

Ms Irish-Qhobosheane agreed that although the offices of the Secretariat and SAPS were in the same building, there were separate entrances. Ms van Wyk was correct and this was not sensitive information. The resource centre was already budgeted for and staffed, and it was contacting academic institutions.
 
The Chairperson questioned the wording of Clause 5(2)(a)(v).

Ms Irish-Qhobosheane noted that there were many academics doing research into police, and a structured reference group was beginning to sound out policy issues with those who had done extensive work in the area, to ensure that the Secretariat was not operating in isolation.

Ms van Wyk wondered whether simpler wording of: “to develop a civil society reference group” would not suffice. This would also give the group the opportunity to research something broader in future.

Ms van Wyk asked how Clause 5(2)(c)(i) would be implemented.

Ms Irish-Qhobosheane said that the Community Safety Forum (CSF) implementation would be the responsibility of the Secretariat, which included intergovernmental cooperation around crime prevention, which was a very difficult and crucial area. There was an inter-departmental working team, and the Secretariat must align inter-departmental priorities. In the past, models had been developed, but these had been too academic and did not speak to the ability of people on the ground to implement. She agreed that perhaps the wording could be improved, but essentially this clause spoke to developing models that involved people on the ground in a more practical way. She would look again at the wording.

Ms van Wyk also thought that the wording of Clause 5(2)(c)(vi) was too wide. She asked what type of blockages and challenges were being referred to, as these could be very wide-ranging.

The Chairperson added that the Secretariat must give strategic advice on implementing policy to the Minister, and the two clauses together needed to be clarified.

Ms Irish-Qhobosheane agreed that perhaps this wording also should be changed. She cited two concrete examples. The Minister had asked the Secretariat to coordinate an in-depth assessment of the Central Firearms Registry and suggest ways to deal with the problems. In addition the Minister had asked the Secretariat to engage with people internationally in the forensic science arenas to see what could be done to improve the situation locally. Cooperation would need to be established.

Ms van Wyk thought that if the reference to the CPS was to be brought in at the top, it should also be brought in to this subclause.

Clause 6
Deliberations
Ms Irish-Qhobosheane noted that the Minister would appoint the Secretary. She suggested that perhaps this clause should refer to one additional term of office only.

The Chairperson pointed out that no Member had raised any objection to this clause.

Mr George asked at what stage Parliament would be informed of appointments.

Ms van Wyk responded by saying that the Bill imposed no obligation for Parliament to be informed. It was a political appointment.

Mr George asked whether this was the same for the National Commissioner of Police.

Ms van Wyk responded that the Minister would inform Parliament about the National Commissioner.

Mr George thought the same should then apply to the Secretary.

The Chairperson pointed out that this was not a requirement of the SAPS Act.

Ms van Wyk suggested that it be included in this Bill that the Minister should inform Parliament about the appointment of the Secretary.

The Chairperson thought this was not necessary. Parliament would always be informed about the appointment.

Clause 7
Mr George stated that it should be specified that the Provincial Secretariat should have a separate budget, as the Committee had agreed.

Ms van Wyk stated that it should be made explicit, in Clause 7(2), that the Secretary was the accounting officer.

Mr George suggested that this would more appropriately fall under Clause 7(1), whilst 7(2) should expand on it.

Ms van Wyk questioned whether it was necessary to say “achieve maximum operational results”.

Mr Hercules responded that this was not a problem.

Ms van Wyk suggested that Clause 7(3)(c) should be in line with the changes the Committee had proposed to Clause 5(b).

Mr George thought the clause stated explicitly what was to be done, namely to monitor the utilisation of funds, in terms of the instructions of the Minister. He would be reluctant to give the Secretariat any powers that fell outside those stated in the Constitution.

Ms van Wyk said that there was a difference between tabling and presenting legislation.

Mr Hercules stated that the Minister’s role was to introduce legislation.

Ms van Wyk wanted to know the difference between Clauses 7(4) and 7(2)(d).

Mr George felt that the term “employee” was too general, and could even include cleaners. The Secretariat should not be required to consult the Minister on appointment of all employees. This must surely refer to appointment of senior personnel.

Ms van Wyk concurred with Mr George. She thought that the position was adequately covered in Clause 7(2)(d) and that Clause 7(4) was probably unnecessary, unless there was a specific reason to include it. She suggested that perhaps a sub-clause 7(2)(f) may be needed.

Ms Irish-Qhobosheane responded that the Minister would not appoint every employee, but the Minister had to approve a staff structure, on the basis of which employees would be appointed. The appointment of staff would be delegated. It was possible to reword this to obviate any confusion.

The Chairperson agreed that the clause should be reworded, as it did not currently say what had just been explained.

Mr George agreed with the Chairperson.

Ms van Wyk also thought that the clause must be reworded.

Ms van Wyk asked for a response whether a new subclause (f) should cover “any other function as assigned by the Minister from time to time”.

Mr Hercules responded that this was covered under Clause 7(3)(e).

Ms van Wyk differed on this point. She said that Clause 7(3)(e) dealt with civilian oversight. The Secretary was a Chief of Staff in the Ministers office. This had nothing to do with civilian oversight.

Clause 8
Ms Irish-Qhobosheane stated that Clause 8 was taken from the SAPS Act.

Ms van Wyk stated that she was not sure whether that fact was sufficient to allow the clause to go uncontested. She asked for an explanation of Clause 8(e)

Mr George also asked what was meant by ‘any State Department’ in Clause 8(d). This was a very wide phrase.

Ms Irish-Qhobosheane suggested that this clause should be aligned with what the Committee had earlier discussed about the organs of the State, which were to be described under the chapter dealing with the Application of the Act. There were instances where some help would be needed, for instance in establishing Community Safety Forums. Also, the Secretary would get requests from other Departments for assistance with SAPS. She agreed that perhaps this clause needed to be reworded.

Mr George asked what was meant by “services of any Department.

Mr Hercules responded that the intention was to make this clause as broad as possible to enable the Secretariat to perform its function.

The Chairperson concurred that this was necessary. However, she asked what was meant by the phrase “any other person”.

Ms Irish-Qhobosheane pointed out that her earlier explanation about other State departments enlisting the help of the Secretariat referred to this phrase. The help would be given if within the competency of the Secretariat.

Ms van Wyk asked whether that would not covered by using the word “functionary” instead of “any other person”. She further suggested that, in Clause 8(d), the phrase “within its competence” should be inserted. She asked whether this referred to actually obtaining a service or obtaining assistance, as she thought the latter would be more appropriate.

Mr George agreed that the word “assistance” was much better.

Ms van Wyk cited a practical example of why she thought that this would be better.

Clause 9
Mr George questioned whether the title “Assignment of powers and functions” was correct. This clause seemed to be dealing more with the delegation of powers.

Mr Hercules suggested that “Delegation and” should then be added to the heading.

Clause 10
Mr George questioned why the phrase “in consultation” appeared in Clause 10. This seemed to imply that the President must agree.

The Chairperson believed that it was correct to say “in consultation.”

Mr George pointed out that the appointment of Director Generals would be done in consultation with the Cabinet, getting approval from Cabinet, and not in consultation with the President.

Ms van Wyk suggested that the Committee should think why it might wish to include the President.

Ms Irish-Qhobosheane stated that the Committee did not have to go back to Cabinet, but the President had to be informed. She would not have a problem about deleting this phrase.

Mr Hercules stated that that was the manner in which the Bill was certified. For practical purposes the President had to agree to the removal of the Secretary.

Ms Irish-Qhobosheane thought that nonetheless it was not necessary to include that phrase.

Ms van Wyk concurred that it was unnecessary.

Clause 10
Mr George asked where the issue of crime was dealt with in this clause.

Ms Irish-Qhobosheane responded that it was covered by the words “inability to perform the duties of that office”. Part of the requirements included not having a criminal record. This was covered by Clause 10(c).

Clause 11
Ms Irish-Qhobosheane suggested that Clause 11 be aligned with what was said when discussing the IPID Bill.

The Chairperson suggested that it was necessary to say “lost confidence in the Secretary”.

Ms van Wyk agreed with the Chairperson.

Mr G Schneemann (ANC) stated that the phrase “lost confidence” was not used in the IPID Bill.

Ms van Wyk suggested that the whole of Clause 11 should be replaced with the wording used in the IPID Bill.

Ms Irish-Qhobosheane suggested that then the whole of Clause 11 should change.

Mr Hercules responded that it was only Clause 11(2) that should be aligned, not the whole of Clause 11.

Clause 13
Mr George asked whether Clause 13 was not contradictory in regard to the function of the Minister, who was responsible for appointment of State personnel. He asked who appointed the Provincial Secretaries.

Ms Irish-Qhobosheane responded that where there was reference to the “Secretariat”, this generally referred to the national Secretariat, and that any references specifically to the provincial offices would be qualified by using “provincial”.  Constitutionally, there would be a problem appointing for the provinces, since they received their budget from their own provincial legislatures.  When this Bill was proposed, there were two options. The first would be that provincial offices fell under the Members of Executive Council (MEC) offices, who would then perform the same functions, whilst the second option was to align the offices. The latter arrangement was preferable, fell in line with cooperative governance, and would prevent any interference with MECs’ powers, which would happen if the MEC had made the appointment but the Secretariat appointed personnel.

Ms van Wyk asked whether this explanation was reflected in the wording of the Bill. She suggested that it be clarified that “Secretariat” would mean “the National Secretariat”.

Ms van Wyk also asked whether there were provinces who did not have Provincial Secretariats.

Ms Irish-Qhobosheane said that there were only two provinces that currently had Provincial Secretariats. However, people in other provinces had duties similar to those of the Provincial Secretariat.

The Chairperson agreed with Ms van Wyk that this must be clarified.

Mr Hercules stated that an amendment should be put in the interpretation clause.

Ms van Wyk stated that this would not be enough. This clause had to specifically set out these issues, especially in light of Mr George’s question about appointment and deployment of personnel.

Mr Schneemann drew attention to Chapter 2 of the IPID Bill, which was headed ‘’National Officer’’. He suggested that it would be preferable to put the same title into Chapter 3 of this Bill.

Mr George stated that the Committee must look carefully at this point. It worried him that the provinces could choose whether or not to have a Provincial Secretariat. This was giving the provinces more powers.

Ms van Wyk stated that to some extent the issues were addressed under Clause 13. However, she was not entirely happy. She agreed with Mr George’s points. She also thought that a time frame of one year should be included in the Bill.

Ms Nomvula Nzimande, Chief Director, Secretariat of Police, agreed that it would be useful to put in time frames. However, she pointed out that the changes would have financial implications for some of the provinces, although the Secretariat or the Minister could engage the relevant provinces on how they could implement these provisions if a time frame were inserted.

Ms van Wyk suggested that a time frame of “one financial year” instead of one calendar year could be inserted.

Mr George believed that there must be obligations placed on the provinces, linked to time frames. He suggested that two years could be sufficient, but he agreed with Ms van Wyk that the provinces should be forced to have a Secretariat..

Ms van Wyk suggested that the drafters should look at the wording again. She thought that the two years suggested by Mr George would be too long. If a longer time frame was given, the provinces would simply delay. There had been discussions at MinMEC about the issue.
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Mr George conceded that perhaps two years was too long.

Ms Irish-Qhobosheane clarified that the distinction between the “Civilian Secretariat for Police” and the “Provincial Secretariat”. She stated that the Clause would be reworded.

Ms van Wyk thought that perhaps the distinction between them might be the solution to the Bill’s wording.

Ms Irish-Qhobosheane confirmed that there was only one Secretary of Police. Although there would be a Provincial Head, there was no such office as “Provincial Secretary for the Police”. Clause 14 would be changed to reflect what the Committee had discussed.

She also suggested that the issue about police conduct should be in line with what was said earlier when the Committee discussed the change of the Secretariat’s function.

Provincial impact
Mr George asked why the Bill was a Section 76 Bill.

Ms Nzimande said that the Bill had an impact upon the provinces, despite the fact that policing was a national competence.

Mr George stated that issues of the police also had provincial impact.

Ms van Wyk clarified that this Bill would impact on the budgets of provinces. However, she questioned why the IPID Bill was also a Section 76 Bill.

Ms Irish-Qhobosheane responded that this was because that Bill placed obligations on provinces to establish a Provincial Secretary.

The Chairperson asked why there was a short term mentioned. This did not apply with the IPID Bill.

Ms Irish-Qhobosheane said that this was to do with the branch status. The Provincial Head, to some extent, should be able to advise the MEC.

Mr George raised a question about the appointment of the Secretary. He asked why a member or former member of the police service was not allowed to hold this post.

Ms Irish-Qhobosheane responded that this section of the Bill had resulted from lengthy discussions and deliberations with the MECs and Heads of Departments in provinces. If the Committee decided to reword this clause, the provinces would deal with the repercussions.

Mr George stated that the Secretariat should give reasons why this appointment should be opened up.

The Chairperson agreed that this concerned a principle that would apply not to the present, but the future. This principle should apply at all levels.

Mr George asked at what levels the appointments would be made.

Ms Irish-Qhobosheane responded that this was not included. There had been attempts to reach alignment rather than to interfere with provincial matters. This was not the same as a branch office, where it would be possible to determine levels. Provinces had different structures. Some Heads of Departments were Deputy Director Generals, whilst others were Chief Directors, so it was difficult to prescribe a level for the Provincial Head.

The Chairperson stated that this Bill went to the principle of what the Committee wanted to enhance. National Parliament could not interfere in provincial functions, as the provinces must implement the Bill when it was passed. The Committee had agreed that no former police officer could be appointed to this post.

Ms van Wyk asked whether there was a problem in this regard.

The Chairperson responded that in Gauteng a member of the Secretariat was a former SAPS member.

Ms Irish-Qhobosheane stated that when she referred to Deputy Director General levels, she was referring to Heads of Departments, who were also the accounting officers.

Ms van Wyk agreed that the Committee was limited to how far it could prescribe how things should be done, especially since provincial budgets would be at play.

Mr George stated that this would then mean that the Committee had a problem around Clause 13.

Mr Hercules stated that Ms van Wyk was correct about the limitations in relation to provinces. Clause 13 was drafted to give effect to the intention or financial consideration. He stated that the model followed in this Bill was that matters should be dealt with in a cooperative nature, not by interference.

The Chairperson asked whether this meant that the Committee was not supposed to enforce principles.

Ms Irish-Qhobosheane responded that principles were one thing but determining issues around appointment would go too far. Ms Nzimande could explain what processes the Secretariat was engaging in with the National Treasury and with the provinces, to ensure provincial buy-in. This Bill did provide some leeway for the National Secretariat to intervene if the provinces did not comply with Clause 13. 

Ms Nzimande clarified that the discussions basically revolved around two aspects. Firstly, the weaknesses in the current system of oversight had been identified over the past five years. Secondly, the discussion centred on how to move forward and address those weaknesses. The discussions that were held showed clearly that the functions in all nine provinces were not aligned. Where they were not, National Treasury would try to align the sectors so that the National Minister of Police was aware of what was happening in the provinces. Provinces tended to report on those issues that were easy. When all the provincial structures presented their structures, only three had structures more or less aligned to what was envisaged for the Secretariat. There would need to be further engagement. Although the Secretariat had received some substantial support from the provinces, it was reluctant to too far, and run the risk of exceeding the powers and mandates that it had under the Constitution.

Mr George agreed that to some extent the Committee was at the mercy of the provinces. Provinces received money from the National Treasury but did not always utilise it. This Committee must be aware of the limitations.

The Chairperson stated that she understood the limitations that the Committee faced.

Clause 16
Ms Irish-Qhobosheane pointed out that there was a drafting error in Clause 16(1)(d). the words “ “to monitor the implementation” should appear, instead of “implemented”.

Ms van Wyk questioned Clauses 16(1)(d) and (e), and suggested that provision be made for copies of the reports to be sent to the National Secretariat.

Mr George asked how the Secretariat made sure that there was compliance with reporting.

Ms Irish-Qhobosheane responded that Clause 19 dealt with reporting issues.

Mr George was worried about Clause 16(1)(d), but his concern had now been addressed.

Clause 17
The Chairperson stated that she was still concerned about Clause 17.

Ms van Wyk stated that she found contradictions around the five-year term of appointment of Heads in the provinces. She also asked why there was so much detail about transfers and disciplinary action.

The Chairperson suggested that the whole of Clause 17(1) could be omitted.

Ms Irish-Qhobosheane suggest that Clause 17(2) reflect the changes that were made earlier.

Ms van Wyk stated that she did not have a problem with this suggestion, but thought that the appointment time frames did not have to be the same as that of the Executive Director and the Secretariat. She also suggested that the vacancy should be filled within six months and not within one year.

Mr George suggested that if a report was to be submitted to the Head of provincial departments by the Head of Provincial Secretariat, a copy of that report should also be submitted to the Head of the Secretariat.

Ms Irish-Qhobosheane responded that the Committee, when discussing Clause 16, had agreed to enact changes suggested by Mr George.

Clause 19
Mr Schneemann raised a question on Clause 19(1), asking whether a report from the Provincial Secretariat would first go through the Head of the Department, who would then submit it to the MEC.

Ms Irish-Qhobosheane responded that the Head of the Department was an accounting officer, and it was difficult to cut that official out of the process.

Mr George agreed that that was why it was important to submit a copy of the report.

The Chairperson asked that the State Law Advisors should attend to the changes that the Committee had suggested, and that, at the next meeting, the State Law Advisors should present those changes before Members proceeded to a discussion on the re-drafted version of the bill.

The Chairperson asked whether there had been any costing of a model.

Ms Irish-Qhobosheane stated that this had not been done as the Provinces had their budgets. National Treasury would be paying for different offices that would be performing the same functions.

Mr George suggested that the Committee must regard this as a starting point. It was not desirable that this situation continue.

The Chairperson agreed that this aspect should be revisited.

Ms Irish-Qhobosheane stated that it would justify the Committee in establishing provincial branches if the initial plan did not work.

The meeting was adjourned.