Independent Complaints Directorate Report: briefing

EXECUTIVE DIRECTOR

INDEPENDENT COMPLAINTS DIRECTORATE

(iv)

COMPLAINTS REGISTRY

The Complaints Registry is responsible for the co-ordination of the receipt, processing and allocation of complaints for further action and the compilation of statistics.

Overview Of Complaints Handled

The number of complaints already received and dealt with by the ICD during the current financial year is considerably higher than was the case for the same period during the 1997/1998 fiscal year. As at 31 January, 1999 the ICD had, in total, received about 2 197 new complaints. The figure for the relevant period of 1997/1998 financial year was 1556. This represents a 39% increase in the number of complaints. If the present trend continues, it is anticipated that by end of the present financial year the number of complaints will probably be twice as high as those of the previous financial year. This will obviously put a strain on ICD personnel and other resources and may eventually necessitate a review of our investigative priorities.

Some of the complaints are class action complaints that, in some instances involve more than 30 individual complainants even though, for statistical purposes, they are recorded as one matter. In such cases, obtaining the relevant information from the people involved and subsequently investigating or mediating such matters could be a time-consuming exercise that could put a further strain on the investigative personnel.

The ICD is also increasingly being called upon to deal with matters falling outside the ambit of its mandate. It will be seen from Anexure "C" that these matters constitute 7% of the complaints received. While these matters are invariably referred by the ICD to other institutions, sight should not be lost of the fact that a great deal of time is spent in listening to the complainants’ stories and directing them to bodies best-suited to deal with their complaints. In those Provinces where the institutions supporting democracy are not present many such cases are received.

The percentage distribution of complaints per category is reflected in Annexure "C". While the ICD has not been able to bring on board the requisite number of investigative personnel, it will be seen from that it has, nonetheless, investigated a sizeable number of the complaints, particularly cases of police-related deaths, i.e. matters falling in the Class I category.

Furthermore it will be noted that since the ICD opened its doors to the public it has been able to finalize about 1688 cases. The fact that the ICD, operating as it did under difficult circumstances, has been able to finalize such a high number of cases, is itself a remarkable achievement.

Out of the 319 cases referred to the various Directors of Public Prosecution 30 were successfully prosecuted, resulting in convictions ranging from murder to common assault.

In 20 cases the accused members were acquitted. However, it should also be borne in mind that a vigorous prosecution of an accused SAPS member, even where it does not result in a conviction, is itself salutary and will serve as a deterrent to other members.

The ICD has also successfully resolved 108 cases through mediation even though few members of the staff have had a formal training in mediation.

A database has been developed to allow an Investigator at the scene of the crime to link up per cellular phone to the system in order to register all information on the case. This will allow the investigator further to immediately provide the member of the public with a case reference number. On the other side of the communication line, staff members may in the meantime continue to determine the classification of the specific case whilst documenting the registration of the case. Once all the offices are linked to the database, it will be possible to generate statistics in various formats.

2. INVESTIGATIONS

Introduction

The Directorate: Investigations, is as its name suggests, responsible for ensuring that all complaints received by the ICD and referred to it for investigation, are indeed investigated efficiently and effectively in terms of its statutory mandate. The Directorate is also responsible for the development of policies pertaining to investigations and the identification of investigator's needs in respect of training and equipment.

The statutory mandate of the ICD is set out in Chapter 10, Section 53(2) of Act 68 of 1995 (the SAPS Act), which provides, inter alia, that:

"The Directorate shall ... investigate any death in police custody or as a result of police action".

In all other cases, the Directorate has a discretion as to whether or not the complaint shall be actively investigated.

Currently, by far the majority of cases being actively investigated by the ICD are the cases referred to in above i.e. deaths in custody or as a result of police action.

Since its inception, the ICD has received 1 292 notification of such deaths and has actively investigated 928 of these notifications.

At present, the ICD has a total of 37 field investigators and 28 supervisory investigators. The larger and more well-established Provincial Offices have up to 7 investigators, whilst the smaller, more recently established Provincial and Regional Offices have only as few as 3 investigators to cover the entire area of their jurisdiction.

The logistical problems facing ICD investigators when attending at the scenes of deaths in custody or as a result of police action and conducting a meaningful, effective and efficient investigation become immediately apparent when talking into account the large areas they have to cover. Although this problem is by no means confined to a specific Province, the Northern Cape is a case in point where the furthest point from the recently established office in Kimberley, where the investigators are based, is 1 500 kms away.

Factors Hampering Effective Investigation

The most immediate and pressing obstacle facing the ICD is the shortage of investigators referred to above.

This is compounded by the vast areas that they have to cover in the course of their investigations. This problem does not, however, cease to exist once an investigation has been finalised. If the particular case proceeds to court, the investigator will, of necessity have to travel great distances to attend at the court hearings that are often postponed.

The net effect of this is that the ICD has had no option but to rely on SAPS members at the scene to conduct a preliminary investigation on their behalf until an ICD investigator can arrive, which could take many hours as is evidenced by the example referred to above. Often, the scene cannot be preserved until an ICD investigator arrives. This not only compromises the independence, effectiveness and efficiency of the ICD, but is also contrary to the intention of the mandatory provision in the founding legislation referred to above.

A further problem is the extent to which the ICD still heavily relies on the SAPS in the fields of Forensic and Ballistic Investigation and the Department of Health in the field of post-mortem examinations. At present, the various Forensic Science Laboratories (FSL) of the SAPS throughout the country are the only recognised facilities where Ballistic and other Forensic examinations may be conducted for court purposes.

The Government Medico-Legal Laboratories (State Mortuaries), which fall under the Department of Health, but which are staffed by members of the SAPS, are also the only facilities where post-mortems are conducted by Sate pathologists.

The reliance in these two areas again not only compromises the independence of the ICD, but also delays the finalisation of many of its cases due to the backlog that currently exists at both facilities.

At our Western Cape Provincial Office in Cape Town, ICD investigators are experiencing delays in the furnishing of Ballistic Reports from the FSL of up to 8 months. In the case of post-mortem reports, delays of up to 6 months are not uncommon. This hampers the efficiency of the ICD as the file cannot be closed until such reports have been furnished

Further, the problem of staff shortages has also been compounded by the fact that the personnel allocation of the ICD budget has now been fixed for the following three years in terms of the MTEF. The ICD is now in the position of not being able to employ any further permanent investigators as it’s full personnel allocation has now been utilised by the current post establishment. Consequently, the ICD has had to prioritise the cases that it will investigate, and its investigative component can only deal with the most serious of cases. The balance is referred to the SAPS for investigation under the close supervision of the ICD.

Highlights and AchievementsDespite the problems facing the ICD referred to above, the ICD has managed to achieve some remarkable successes in the field of investigations.

Most recently, the ICD managed to secure the conviction of a SAPS member on a charge of murder in the Kwa-Zulu Natal (KZN) High Court arising out of the shooting of a person in custody. Also, in the Regional Courts of Chatsworth, Mountain Rise and Stanger in KZN, a total of 9 SAPS members are currently being prosecuted on charges of Murder and Culpable Homicide. All of the abovementioned prosecutions arose as a result of cases that were actively investigated by the ICD.

In Booysens, Gauteng, a member was recently convicted on a charge of culpable homicide. The investigation in this matter was supervised by the ICD.

Moving to cases that enjoyed a high media profile, the ICD has also enjoyed some success as far as its recommendations were concerned. In the case of the notorious Josiah "Fingers" Rabotapi, the ICD's recommendation to the DPP that a formal inquest be held was adopted. In the case of Mr Mabaso, who lost the sight of an eye as a result of an alleged assault by members of the SAPS, Guguletu, Western Cape, 9 members are currently being prosecuted.

The ICD has also achieved similar successes in the area of internal disciplinary hearings, and a number of SAPS members have been charged and convicted on various counts of misconduct, arising out of recommendations made by the ICD.

The most notable of these was the recent case of "Baby Angelinah" Zwane, where disciplinary proceedings have been instituted against the members involved for failing to arrest the suspect following on the recommendations of the ICD. Various other recommendations relating to the training received by members and the correct procedures to be followed by them were also made in this case and were well received by SAPS management. It is anticipated that this case will be finalised during March 1999.

In another case in Mpumalanga, 2 members pleaded guilty at a Disciplinary hearing on various charges of misconduct in terms of the SAPS Disciplinary Regulations after an ICD investigation into the death of a suspect who committed suicide in custody revealed that they had neglected their duties by failing to regularly conduct cell inspections. The ICD recommended that they be charged departmentally.

In the Northern Province, again in a case of death in police custody, following on recommendations made by the ICD, 5 members were charged and convicted in terms of the Disciplinary regulations for failing to furnish the necessary medical treatment to a person detained with injuries.

Despite the staff and logistical shortages facing the ICD, the ICD has managed to institute a system of standby, where there are always at least two ICD investigators on permanent 24 hour standby to attend to scenes of crime and to respond to notifications of deaths in custody or as a result of police action. It needs to be mentioned that the ICD’s effectiveness in the latter area is obviously dependent on it being notified of such incidents by the relevant SAPS authorities.

Lastly, it needs to be mentioned that in spite of the abovementioned obstacles, and taking into account the relatively short period of time for which the ICD has been in operation, it has managed to impact significantly both with regard to the public in general as well as the community of stakeholders which it serves. This is evidenced by the increase in the number of complaints that it has received in the last year. Certainly it can be said that the ICD is now well established in the policing fraternity judging from the complaints that it is now directly receiving from that source.

There have been cases which would have gone unnoticed and uninvestigated had it not been for the presence of the ICD, such as the case in Pretoria involving a SAPS member who shot his neighbour 18 times in cold blood. When the docket was taken over for full investigation by the ICD, it was discovered that virtually no investigation into the matter had been conducted by the SAPS investigating Officer. This case is now with the DPP for his decision.

Policy Formulation and Development

The ICD, and in particular, the Directorate Investigations, has taken great strides in the area of Policy formulation and development.

In the area of operations, the Directorate has supervised and co-ordinated the development of a number of operational policies and procedures, the most important of which are:

ICD Handgun Policy;

Arrest procedures;

Search and Seizure Procedures;

Investigative standards and procedures;

Evidence, processing and storage;

Procedure to be followed when receiving notifications of deaths in custody or as a result of police action;

Investigative Priorities;

The receiving, lodging and processing of complaints.

A further number of policies and procedures are presently being formulated in the area of operations. The ICD sees this as an ongoing process.

It is perhaps important to mention that the ICD has utilised the services of a number of outside experts and consultants to assist with this process due to a shortage of personnel to attend to this on a full-time basis.

Training and Development

As part of its policy of ongoing staff development, the ICD has succeeded in co-ordinating a number of training programmes aimed at bringing ICD investigators up to date with the most modern and latest techniques in investigation.

In this regard it should be mentioned that ICD investigators, both field and supervisory, have received practical investigative training in the investigation of homicide as well as training in core management issues and functions. Much of this training has been provided by the International Criminal Investigation Training Assistance programme, which is sponsored by the United States Department of Justice. This programme afforded ICD investigators the opportunity of being exposed to the knowledge and insight of highly experienced investigators from the United States.

In addition, ICD investigators have also received comprehensive legal training as well as in the field of Medical Forensics.

Experts in the latter field have also assisted the ICD in specific cases, by advising investigators, assisting them where they have encountered problematic and difficult cases and conducting a number of independent post-mortems where the family of the deceased has requested this. All consultants and advisors have entered into confidentiality agreements with the ICD due to the sensitive nature of the information they are dealing with.

The services of an independent forensic ballistic expert have also been utilised during the course of investigations.

Future plans for training and development include the training of investigators in self-defence techniques and Advanced First Aid.

Strategic Plans – The way Forward

The Directorate: Investigations is currently considering a number of plans and strategic initiatives in order to advance the vision, mission and objectives of the ICD.

One of the most important of these plans is to develop the capacity of the ICD to conduct it’s own forensic investigations and examinations. The ICD is currently evaluating the feasibility of a proposal to establish its own Forensic Laboratory independent of that of the SAPS. Should this become a reality, it will greatly enhance the independence and efficiency of the ICD to conduct its own investigations. However, the initial indications are that this will be a long-term project as the cost of establishing and maintaining such a facility run into several million rand. As already indicated, the budget of the ICD does not allow for the implementation of such a proposal in the immediate future.

In this regard, a potential short-term solution will involve a two phase approach, namely the training of existing ICD staff in the field of Forensics, and, where possible, obtaining increased co-operation from the FSL in prioritising cases being investigated by the ICD and the expediting of reports requested by the ICD.

With regard to the problems caused by the delay in the furnishing of post-mortem reports, this Directorate is also studying a proposal to employ its own qualified Medico-Legal assistants whose responsibilities shall include attending at all scenes of deaths in custody or as a result of police action, receiving the body at the scene, transporting the body to the Mortuary, and collecting and preserving all specimens, evidence and exhibits found either at the scene or on the person of the deceased. Once again however, this is a long-term project as there are insufficient funds available for posts on the ICD establishment. Similar to the proposal above, a short-term solution may be found by exploring avenues of better and increased co-operation between the Department of Health and the ICD.

Mechanisms are also currently being looked at to increase the productivity and output of the ICD investigative component. Resolution of the two problem areas mentioned above will go a long way towards achieving this goal. The computerisation of the ICD’s database will also assist in this process. Ultimately, however, the appointment of further investigators and the establishment of additional offices are the most practical solutions to this problem. The budget at present, however, does not permit this. Once again, appropriate training will also play a major role in achieving this objective.

Another major focus area for the immediate future is that of corruption. The number of instances of alleged corruption committed by members of the SAPS and reported to the ICD is continually increasing. At present, the ICD does not have the capacity to properly and thoroughly investigate such matters, although a number of cases have been successfully investigated. The investigation of corruption and related matters is a specialised field, requiring particular expertise as well as sophisticated technology and investigative equipment. Substantial budgets are also a feature of such specialised units. Once again, budgetary constraints have hampered the establishment of this capacity within the ICD to deal with this crucial issue. At this stage it is envisaged that the investigation of the incidence of corruption will occur on the basis of specific projects identified by the Regional Directors of the respective Provincial Offices. Resources, expertise, manpower and equipment will then be pooled to tackle these projects.

In an effort to minimise the reliance of the ICD on the SAPS and other bodies, Provincial and regional Offices of the ICD are developing the capacity to hold Identity Parades at locations other than Police Stations. Already, our office in Cape Town has the capacity to hold an Identity Parade at its premises, and similar initiatives are being implemented at the Head Office and other offices, where the accommodation is suitable for this purpose. It is envisaged that eventually all Identity Parades arranged by ICD investigators will be conducted at their respective Provincial Offices.

3. MONITORING AND DEVELOPMENT

It is the function of this component to process complaints, to monitor those matters referred to the SAPS for investigation and to monitor the post-investigative progress of cases through the justice system.

The component will also focus on determining problematic trends and system dysfunction within the SAPS, conduct research and make recommendations aimed at remedial interventions.

Already, in conjunction with these research institutes, a report entitled "Towards a Strategy for prevention" has been released, it highlights the high rate of police-related deaths possible causes and suggests some appropriate solutions.

Its personnel are contributing to improving the quality of SAPS investigations by giving guidelines and establishing best practices.

The National Director of Public Prosecutions and his Provincial representatives have been approached to discuss strategies for mutual co-operation and the improvement of the success rate of prosecutions of police members.

PART B

ADMINISTRATION

Provincial Offices

With the limited funding that the ICD received during the current financial year, it was possible to extend its service delivery to the following Provinces: Northwest, Northern Cape and Eastern Cape, thus bringing to seven the number of provinces in which the ICD has a physical presence.

With the assistance of the office of the National Commissioner of the South African Police Services (SAPS) it was possible to serve the public of the Free State from a small office situated in Bloemfontein. Two members of the SAPS were seconded to assist the ICD in this region as Investigators.

The Establishment

Although a personnel structure of 535 posts was approved for the ICD by the Department of Public Service and Administration (DPSA), the budget only permitted the appointment of 149 permanent staff members, of which over 60 members undertake the investigation and/or monitoring of complaints received (see Table 1). The majority of ICD personnel was recruited and their appointments made during the 1998/99 financial year.

During the first year of its establishment, the emphasis was on getting trained and experienced investigators. However, this year all Investigators were appointed from the private sector to affirm our independence from the SAPS.

Training

Considerable attention was given to the training of all personnel, but in particular the line function personnel, namely investigators and monitors. These functionaries received more than ten training sessions/workshops conducted by trainers from within the country and abroad.

Various training courses, ranging from an induction programme to the more specialized investigative, forensic, mediation, managerial and sensitivity courses, were offered to most of the staff. Members also attended training at SAMDI and Wits University.

Information Technology

After a thorough investigation, IT personnel co-ordinated the development of a database by outside consultants. Local area networks have been installed in Provincial offices, which will ultimately be linked by a wide area network.

Logistics and Accommodation

As was reported in the previous year, this Department had to transfer funds to the Department of Public Works for the lease rentals of Head Office and Provincial Offices. To date, an amount of R3 560 000.00 was transferred for these purposes. These funds had to be suspended from the Standard Items: Equipment and Professional Services.

No provision was made for this expenditure in the budget estimates. In view of this development, it was necessary to relinquish the lease options negotiated on accommodation in the Free state and Mpumalanga Provinces. Delays by Public Works in acquiring or renovating accommodation in other Provinces delayed the appointment of personnel.

In North West Province permanent accommodation has not yet been obtained. ICD personnel are presently working out of two loaned offices, 15 km apart.

A very positive step was the leasing by ICD of accommodation to house its headquarters in Pretoria. The self-standing building now occupied by ICD has adequate security arrangements. Now that it has a fixed address, the ICD has been able to print promotional material such as posters and brochures for the Department.

Administrative and Investigative equipment was purchased, in order to perform the duties assigned to it, such as evidence collection bags, torches, metal detectors, audio visual equipment, crime scene tape, fingerprint kits, crime scene jackets, etc.

PART C

5. BUDGET

THE 1998/99 BUDGET AND EXPENDITURE

The Department has been allocated a budget of R 27 760 000 for the 1998/99 financial year. However, an amount of R 3 560 000 was transferred (suspended) to the Department of Public Works for the lease rentals of the various buildings occupied by the ICD. A further R 227 000 was transferred to the Department of Public Works in respect of accommodation for the Regional Office, Pietersburg.

An amount of R 1 000 was received for roll-over funds from the 1997/98 financial year. In total, an amount of R 341 000 was allocated to this Department regarding the Improvement of Conditions of Service. The total budget allocated to this Department is R 24 542 000 for the 1998/99 financial year.

Of the 149 posts, which the ICD will be able to finance, currently 123 posts are filled and 26 are still vacant. These should be filled by 31 March, 1999. An amount of approximately R 3 000 000.00 will be saved on the Department’s budget – Standard Item Personnel Expenditure due to the fact that the filling of vacant posts took longer than anticipated. Lack of accommodation played a major role, as did the suggestion by the Budget Committee of the Department of State Expenditure that the filling of posts be delayed. Once those 149 positions are filled the savings will not be repeated in the new financial year as the entire personnel budget will be utilised.

A comparison of expenditure against the budget per standard item (including suspensions, roll-overs and improvement of conditions of service), is listed below:

The Department has been allocated budgets for the 1999/2000, 2000/2001 and 2001/2002 financial years in terms of the Medium Term Expenditure Framework as follows:

1999/2000 R 23 983 000

2000/2001 R 25 242 000

2001/2002 R 26 045 000

* Includes estimated Improvement of Conditions of Service.

The above scenario reveals the fact that the budget is projected to increase by only 4% in the 2000/2001 financial year and 3% in the 2001/2002 financial year. As can be seen from the budget allocation, still no provision was made to extend the phasing in of the total establishment of the ICD beyond the 149 posts. Clearly, it will be impossible to phase in the total planed establishment of 531 posts.

BUDGET 1999/2000 - SUMMARY

The budget forms the foundation in which the aims and objectives of this Department can be realised.

7.1.1 Programme 1

Administration

Aim: To conduct the overall management of the Independent Complaints Directorate

Programme description:

Management: Policy formulation by the Minister, Deputy-Minister, Executive Director and other members of the Department’s management

Corporate Services: Organising the Directorate, rendering centralised administrative, legal and office support services, managing departmental personnel and financial administration, determining working methods and procedures and exercising control, Communication and Information Technology.

Budget highlights