Report of the Portfolio Committee on
Safety and Security on the South African
Police Service Amendment Bill [B 30-2008] (National Assembly – sec 75),
dated 20 October 2008:
The
Portfolio Committee on Safety and Security, having considered the South African
Police Service Amendment Bill [B 30-2008] (National Assembly – sec 75),
referred to it and classified by the Joint Tagging Mechanism as a section 75
Bill, presents a redraft of the Bill [B 30B-2008].
The
Committee further reports as follows:
1.1.
The
South African Police Service (SAPS) Amendment Bill was referred to the
Portfolio Committee on Safety and Security, which was required to confer with
the Portfolio Committee on Justice and Constitutional Development. The National
Prosecuting Authority Amendment Bill [B23-2008] was referred to the Portfolio
Committee on Justice and Constitutional Development, which was required to
confer with the Portfolio Committee on Safety and Security. As the two Bills
are inter-related, the two committees worked together on both Bills.
1.2.
To make fuller sense of this report,
it should be read with the report on the National Prosecuting Authority (NPA) Amendment
Bill.
2.1.
Although
the SAPS Amendment Bill and the NPA Amendment Bill are section 75 Bills, the
Committees decided that, in view of the importance of and public interest in
the Bills, we should organise extensive public
hearings, not just in the National Assembly, but the provinces as well, in
co-operation with the NCOP Security and Constitutional Affairs Select
Committee. The hearings were not just
on the Bills, but the proposed new integrated criminal justice system
(CJS) as well. Over 7200 people participated in the hearings. The Committees
spent at least 190 hours in full committee and sub-committee meetings on the
Bills, not to mention the many hours spent in informal exchanges with a variety
of stakeholders.
2.2.
However,
very few people commented on the proposed new CJS. The Committees propose to
undertake further public hearings before the year is out on the new CJS and
report back to the public on progress regarding what have come to be known as
the “Scorpions Bills”.
3.1 The
Committees also visited the Directorate of Special Operations (DSO) and the
SAPS organised crime-fighting units to report on progress on the Bills, hear
their views, and encourage them to co-operate in implementing the Bills and
ensure that the new organised crime fighting unit to be located within the SAPS
works effectively. The Committees appreciate the concerns of the DSO staff
about moving into the new unit. The Committees feel that the DSO staff should
not prejudge the new unit but give it a chance to develop. We suggested to the
staff who are not keen to move to consider going into
the unit for a year or so before making a final decision.
4.1
The
Parliamentary Research unit and Committee Content Advisor presented a comprehensive report
on every submission received and the Committees went through the report fully.
4.2
The
Committees drew in two representatives each of NPA and SAPS, and two technical
advisors from civil society organisations to assist
in the processing of the Bills. We express our appreciation for their
participation.
4.3
The
Bill is highly contested, and served to polarise the
Portfolio Committees. The Committees decided to more clearly identify the
issues of agreement, if any, and the precise nature of the differences. As part
of this process, the Committees identified the broad principles or characteristics
of an effective crime-fighting unit and the different models that can be based
on these principles. These principles and models were set out in our report of
30 September and are summarised in sections 5 and 6 below.
4.4
The
SAPS Amendment Bill is not elegant or easy to read necessarily. The main reason
for this is that the Bill is an amendment to an existing Act that was drafted
over a decade ago and been written in a particular way that does not easily
allow for a Bill like this to be inserted into it. The Committee, as pointed out in section 7 below, believes that the entire SAPS
Act needs to be overhauled.
4.5
The
Committee sought a balance between providing a firm framework and not being too
prescriptive. The finalisation
of this Bill for now should be seen as part of a process of shaping a new
effective organised crime-fighting unit. The new
model will have to be reviewed in three years to consider what improvements, if
any, are necessary. This is referred to in section 5.15 and is provided for in
the Bill.
5.1
Basically,
the Committees agreed that the principles set out in this section would characterise an effective organised
crime-fighting unit (OCU). However the
Committees disagreed on which model based on these principles would be most
effective.
5.2
MULTI-DISCIPLINARY
APPROACH: For a variety of reasons, including the complex and sophisticated
nature of organised crime, there is clearly a need
for a multi-disciplinary approach. At least, the OCU should include
participants from the SAPS, NPA, SARS, Home Affairs, FIC and the intelligence
agencies. The differences are over what form and structure this should happen.
5.3
ROLE
OF PROSECUTORS: The prosecutor should be involved with the investigators from
the outset of an investigation. The differences are over how this should happen
and the extent and form of its institutionalisation
in legislation.
5.4
NEED
FOR CRIME INTELLIGENCE: Crime intelligence is crucial to pursuing organised crime cases. Crime intelligence should not be
conflated with broader intelligence not directly related to crime. The
differences are over whether this intelligence capacity should be granted to
the OCU or it should be empowered to get the intelligence from the SAPS and
other intelligence agencies.
5.5
DEFINITION
OF ORGANISED CRIME: There is a need to both define organised
crime more specifically and provide a measure of flexibility for the Head of
the OCU and Minister to add to the mandate through regulations/policy frameworks
to be approved by parliament. The OCU should deal with serious organised crimes, serious economic crimes, serious cases of
corruption, and high priority crime.
5.6
POWERS
AND FUNCTIONS: Besides cases referred to the OCU by other agencies, the Head of
the OCU should be able to initiate cases within a policy framework determined
by the Minister and the OCU and approved by parliament. The powers and
functions of the OCU must be spelt out very clearly.
5.7
MINISTER
APPOINTS HEAD: The Minister should appoint the OCU Head, with parliament
playing an appropriate role.
5.8
VETTING
OF EMPLOYEES: Employees of the OCU should be appropriately vetted by the
appropriate agencies, and there should be regular internal “integrity”
monitoring of the staff. Corruption within the OCU structures must be tackled
effectively.
5.9
NEED
FOR EXECUTIVE MONITORING STRUCTURES: There has to be an effective
Inter-Ministerial Committee that monitors the OCU and supports it to play its
role within its legal mandate. There also needs to be a high-powered
Inter-Departmental Committee to ensure necessary day-to-day co-ordination
across departments.
5.10
NO
POLITICAL INTERFERENCE: The OCU should be free from political interference.
5.11
NEED
FOR COMPLAINTS MECHANISM: There needs to be a structure to deal with complaints
from the public and any other source about the behaviour
of the OCU or individuals working for it, partly as a safeguard against any
political bias in the OCU.
5.12
FIGHT
AGAINST POLICE CORRUPTION SHOULD NOT BE UNDERMINED:
Whatever the specific powers and functions allocated to the OCU, the fight
against police corruption should be strengthened.
5.13
NEED
FOR MORE EFFECTIVE PARLIAMENTARY OVERSIGHT OF OCU: There is a vital need to
ensure more effective parliamentary oversight of the OCU. The OCU Annual Report
must be considered in an open sitting of the Portfolio Committee, but the OCU
should also report to the Committee at least 3 other times a year, with these
other briefings being either in open or closed sittings, as decided by the
Committee after consultation with the OCU on the sensitivity of the issues to
be considered at the briefings. Parliament should also play an appropriate role
in, among other issues, the appointment of the OCU Head, additions to the
mandate on organised crime and the policy framework
for cases to be pursued.
5.14
ADEQUATE
BUDGET AND RESOURCES: The OCU must be allocated the necessary budget and other
resources to ensure that it can effectively combat organized crime.
5.15
TWO-PHASED
APPROACH: There should be a two-phased approach to developing an effective OCU
model. The model decided on now should be reviewed 3 years from the date of its
implementation to see how it is working and to consider improvements to it, if
necessary. The aim would obviously not be to overhaul the entire OCU, but to
consider improvements on the model decided on now; in other words, the model
decided on now must serve as a “building-block” for possible further
improvements 3 years from the date of its implementation. Such a review would
be necessary also to consider how the OCU fits into the new integrated criminal
justice system that is being shaped.
6.1
While
there is broad agreement on the above principles, there is no agreement on
which model, based on these principles, would most effectively combat organised crime.
6.2
There
were 5 models proposed:
·
Model
1: Improved DSO
·
Model
2: Separate OCU answerable to the Minister of Safety and Security
·
Model
3: Proposed Directorate of Priority Crime Investigation (DPCI) in SAPS Amendment
Bill
·
Model
4: Improved DPCI
·
Model
5: New Ministerial model
6.3
MODEL
1: Improved DSO: This model is based on the current DSO model, with
improvements based mainly on some of the key recommendations of the Khampepe Commission. It is supported by the Democratic
Alliance and African Christian Democratic Party (ACDP). The Freedom Front Plus
(FF+) also supports it as its first choice, but also offers model 5 as a
“compromise”. Among the key features of this model are:
·
LOCATION
AND BUDGET: The OCU will remain located within the National Prosecuting
Authority, while its budget allocation remains within the Vote of the
Department of Justice and Constitutional Development as a sub-programme in the NPA.
·
POLITICAL
RESPONSIBILITY: The recommendation of the Khampepe
Commission that the Minister of Justice be accountable for prosecutors in the
OCU while the Minister of Safety and Security be
accountable for the OCU’s special investigators is
not workable. The Minister of Justice and Constitutional Development will take
political responsibility for the OCU and Chair the MCC. The Minister of Safety
and Security will be the Deputy Chair of the MCC and receive regular reports on
the investigators in the OCU.
·
·
MULTI-DISCLIPINARY
APPROACH, WITH PROSECUTORS PART OF OCU AND OTHERS SECONDED: Prosecutors will be
part of the OCU, just as with the current DSO, but the other participants (from
SARS etc) will be seconded to the Unit.
·
INTELLIGENCE
FUNCTION: The Unit will have a crime intelligence function and this must be
provided for in the National Strategic Intelligence Act, 1994. In the exercise
of its crime intelligence mandate, the Unit should be accountable to the Joint
Standing Committee on Intelligence and the Inspector General of Intelligence,
in terms of the Intelligence Services Oversight Act, 1994.
·
LEVEL
AND APPOINTMENT OF HEAD: The Head of the DSO will be a Deputy National Director
of Public Prosecutions appointed by the President after consultation with
Minister of Justice and the National Director of Public Prosecutions (NDPP).
·
STRENGTHENED
MINISTERIAL COORDINATING COMMITTEE (MCC): The MCC will consist of the relevant
Ministers, including Justice, Safety and Security, Intelligence, Finance and
Home Affairs. The Minister of Justice will Chair the MCC. It will perform the
functions set out for it in section 31 of the National Prosecuting Authority
Act. The MCC will meet at least 4 times a year and report to Parliament 4 times
a year.
·
OPERATIONAL
COORDINATING COMMITTEE (OCC): There will be an Inter-Departmental Operational Coordinating
Committee (OCC) with an operational mandate that includes drafting the Unit’s
strategic plan for approval by the MCC; overseeing the Unit’s
day-to-day-operations; facilitating secondments;
coordinating joint operations; coordinating crime intelligence; and
facilitating the sharing of information. The OCC will consist of the
Directors-Generals of the relevant departments or senior managers delegated by
them with the authority to make decisions on their behalf. The delegation
should be on a permanent basis to ensure continuity. The Justice Department
representative will chair the OCC.
·
PARLIAMENTARY
OVERSIGHT: Parliament will play a strong oversight role, receiving reports from
the OCU at least four times a year. Its meetings with the OCU may be closed
depending on the nature of the matters being discussed.
6.4
MODEL
2: SEPARATE OCU RESPONSIBLE TO THE MINISTER OF SAFETY AND SECURITY: This model
is supported by the Inkatha Freedom Party (IFP).
Among its key features are:
·
LOCATION
AND BUDGET: The Unit will be located within Ministry of Safety and Security,
not SAPS, and its budget allocation will be within the Vote for Safety and
Security, as a sub-programme in the Ministry.
·
POLITICAL
RESPONSIBILITY: Ministerial responsibility for the Unit will lie with the
Minister of Safety and Security.
·
MULTI-DISCIPLINARY
APPROACH, WITH PROSECUTORS CO-LOCATED AND OTHERS SECONDED: The NPA will
establish a Special Prosecutorial Directorate to work with investigators from
the OCU on organised crime cases. These specialist
prosecutors will be co-located – meaning they will be answerable to the NPA,
even if they work with investigators and others in the OCU. Consideration needs
to be given to the prosecutors who work with the investigators (investigating
prosecutors) not taking the same cases to court; instead this should be done by
other prosecutors (prosecuting prosecutors).
The other participants (from SARS etc) will be seconded to the OCU –
meaning they will be operationally answerable to the OCU, even though they are ultimately
accountable to the institution that seconded them. There will be legal and
policy frameworks to ensure that the secondments are
effectively implemented. Departments and other organisations
will be required to build their capacity for secondments.
Secondments will be compulsory in terms of
legislation and policy frameworks.
·
INTELLIGENCE
FUNCTION: The OCU will not have a separate crime intelligence function, but
will draw on intelligence experts from the SAPS Crime Intelligence Unit and
other intelligence agencies seconded to the OCU.
·
LEVEL
AND APPOINTMENT OF HEAD: The Head of the Unit is to be appointed by the
Minister, while Parliament (or the Board referred to below) plays a role to
ensure that the appointment is transparent and credible.
·
ROLE
OF A BOARD: The Board will include government and non-government stakeholders.
To some extent, the precise composition of the Board will be influenced by
whether it undertakes a governance or integrity assurance role or possibly
both. Should the Board be given an integrity assurance role, its composition
would be largely made up of members from outside of government. The Board will
be headed by a person from outside government, possibly a retired judge. Two
possible roles for the Board are suggested:
o
The
first is that of the normal role of a Board in a non-profit state entity
(Schedule 3 of the PFMA), which includes some governance functions, as well as
certain measures to prevent external interference in the Unit’s investigations.
o
The
second envisages that the Board will play an integrity assurance role and that
non-government board members will be key in this
regard. This would include:
§
Dealing
credibly with complaints against members of the Unit or complaints that the
Unit has abused its powers or is being used for ulterior purposes.
§
Setting
up mechanisms to ensure that sensitive cases have been properly investigated.
·
The
Board will also play a role in ensuring more effective coordination.
6.5
MODEL
3: Proposed Directorate of Priority Crime Investigation (DPCI): This is the
model set out in the SAPS Amendment Bill introduced to Parliament – and so
there is no need to repeat it here. It is the model supported by the executive.
6.6
MODEL
4: Improved DPCI: This model is based on the model in the SAPS Amendment Bill,
but with significant improvements. The original model in the Bill, it is held,
does not provide for an effective OCU. This improved DPCI model is supported by
the ANC. Its key features are set out in the final amended version of the SAPS
Amendment Bill and will not be set out in great detail here. Some of its
features, very briefly, as compared to the original proposals in the introduced
version of the Bill, are:
·
The
new unit will still be located within the SAPS but there is now a balance
between it being independent and being a part of SAPS.
·
The
Head of the Unit is appointed not as a Divisional Commissioner answerable to a
National Deputy Commissioner but as a National Deputy Commissioner. The Head is
appointed by the Minister and subject to Cabinet approval, as is the case with
all senior managers in the public service.
·
The
Head of the Unit can now initiate cases within a policy framework, instead of
seeking the approval of the SAPS National Commissioner for every case (see
section 17D (I) (a) )
·
There
is much greater recognition of the complex and specialised
nature of organised crime and the need therefore for
a unit that is able to tackle such crime in a complex and specialised
way. The definition of national priority offences, including organised crime, is clearer, and the multi-disciplinary
approach and integrated methodology of the new unit is emphasised
much more clearly (sections 17B, 17D and 17F).
·
Provision
is made for effective Cabinet Co-ordination (section 17I) and
Inter-Departmental Co-ordination (section 17J).
·
Provision
is made for effective Parliamentary oversight (section 17K).
·
Security
screening and integrity measures applicable to employees of the new unit have
been strengthened (17E).
·
There
is now an independent complaints mechanism (17L).
·
The
transitional mechanisms have been strengthened, though some of the aspects have
been moved to the NPA Amendment Bill because they relate to the personnel
issues and affect the NPA as the current employer.
·
The
new model will have to be reviewed within 3 years (see section 17K (6) )
6.7
MODEL
5: New Ministerial model: This model, supported by the FF, provides for a
completely separate Ministry. Among its key features are:
·
LOCATION
AND BUDGET: This will be a new Department, located under a separate Ministry
for Priority Crime Investigations, headed by a Minister for Priority Crime
Investigations, with a separate Budget vote.
·
POLITICAL
RESPONSIBILITY: Ministerial responsibility for the new Department will lie with
the proposed new Minister for Priority Crimes Investigations.
·
MANDATE:
The new Department’s mandate will be to focus on priority crime, consistent
with the proposed new integrated criminal justice system.
·
MULTI-DISCIPLINARY
APPROACH, WITH SECONDMENTS AND OUTSOURCING AS NECESSSARY: There will be
prosecution-driven investigations, with prosecutors seconded to the Unit as
needed. There will also be outsourcing to approved
agencies as needed.
·
CRIMINAL
JUSTICE MINISTRY COMMITTEE: The Ministerial Committee will consist of the
Minister of Priority Crime Investigations, Safety and Security, Intelligence,
Correctional Services and Justice and Constitutional Development, and will have
a coordinating role.
·
OPERATIONAL
COORDINATING COMMITTEE: There will be an inter-departmental Operational
Coordinating Committee (OCC), with an operational mandate that includes
drafting the unit’s strategic plan for approval by the Criminal Justice
Ministry Committee; overseeing the unit’s day-to-day-operations; facilitating secondments; coordinating joint operations; coordinating
crime intelligence; and facilitating the sharing of information. The OCC will
consist of the Directors General of the relevant departments or senior managers
delegated by them with the authority to make decisions on their behalf. The
delegation should also be on a permanent basis to ensure continuity.
·
PARLIAMENTARY
OVERSIGHT: Parliamentary oversight will be exercised by a new Joint Standing
Committee for Priority Crime Investigation, similar to the JSC on Intelligence.
7.1
The
Ministry has, for several years now, been promising to overhaul the original
SAPS Act (1995) but has not done so.
7.2
In
processing this Bill, the Committee was once again struck by the urgent need to
revamp the SAPS Act. There were some aspects of the features of the new unit
that the Committee supported that could not be put into legislation without
having to overhaul the entire SAPS Act.
7.3
The
Bill provides for an independent complaints mechanism (section 17L). The
Committee feels that there is a need to consider whether it is necessary to
have an Inspector General for SAPS as a whole. Certainly, the Committee is
clear that the Independent Complaints Directorate (ICD) is ineffective and
needs to be substantially improved. It might well be necessary to have separate
legislation for the ICD instead of including the ICD in the SAPS Act as is the
case at present. In the overhaul of the SAPS Act, consideration also needs to
be given to having a single, effective independent complaints mechanism that
deals with the SAPS as a whole.
7.4
The
Committee urges the Ministry to bring a new version of the SAPS Act to parliament
within 12 months of the new five-year term of parliament.
8.1 Issues of “conflict of interest”
arose in the processing of the Bill. Should MPs who were investigated by the
Scorpions participate in the processing of and voting on these Bills?
Parliament’s legal office found that there was no legal basis to exclude any
MPs. However, on political, not legal, grounds two MPs serving in the
Committees who were either prosecuted by or facing prosecution
following a Scorpions investigation into the use of MPs travel vouchers,
decided not to participate in the processing of the Bills. The majority in the
Committees felt that the Committees do not have the jurisdiction to decide on
this matter and could not set precedents for parliament. We propose that within
2 years of the new term of Parliament the Speaker’s Office and the Rules
Committee provide greater clarity on what precisely constitutes a “conflict of
interest” for MPs beyond financial issues.
9.1
The
Committee is committed to ensuring effective oversight over the new unit as
part of a far more effective oversight over SAPS as whole.
9.2
The
Committee will develop an effective oversight programme
within 3 months of new parliamentary term and upgrade our monitoring tool in
this regard.
9.3
The
Committee will consider reports from the new unit as part of its monitoring of
the SAPS at least 4 meetings per year. The invitation to the Head of the Unit
will be sent through the SAPS National Commissioner, who would also be
encouraged to attend these meetings, but should he or she not be available, the
Committee will continue with the meetings.
9.4
While
recognising that the implementation of aspects of the
transitional provisions in the Bill are the prerogative of the executive, there
are aspects that have to be monitored by parliament, and within the existing
parliamentary rules and norms, the Committee will, in co-operation with the
Justice and Constitutional Development Committee, closely monitor the
implementation of the relevant transitional provisions. Both Committees appeal
to the SAPS and DSO to work co-operatively to implement the provisions as soon
as possible and ensure an effective new organised
crime-fighting unit.
9.5
The
Committee feels that pending applications for security clearances for DSO staff who want to move to
the new unit that are being dealt with in terms of section 2A of the National Strategic
Intelligence Act by the NIA should be completed by the NIA.
9.6
The
Committee is clear that no person, whatever his or her station, is above the
law, and the transfer of cases from the DSO to the new unit must be effected in a way that does not undermine the processing of
cases.
9.7
Consideration
needs to be given to finding a way to give DSO staff a sense of whether they
are likely to be accepted into the new unit before they move into the SAPS. The
Committee feels that as far as possible the selection process should take place
before a member exercises his or her choice to move to the SAPS.
10.1
As
explained, the new organised crime-fighting unit
shaped in this Bill should be seen as part of a process of creating a powerful
and effective model to prevent and combat priority crimes. It can, of course,
if necessary, be improved on over time. Aspects of it can be reviewed in three
contexts: the pending overhaul of the whole SAPS Act; the finalisation
of new proposed integrated CJS; and the review within 3 years provided for in
the Bill.
10.2
When
the reviews referred to above are made, serious consideration should be given
to this report, and in particular sections 5 and 6 above.
10.3
The
majority in the Committee feels that the new unit should be given a chance to
develop and that all of us, even those who do not support the organised crime-fighting unit, should work together to
ensure that the new unit becomes powerful and effective and substantially
reduces the extent of organised crime and corruption
as part of the overall campaign against crime as a whole.
Report to be considered.