Independent police Investigative Directorate (IPID) Bill: deliberations on Chapters 6 to 10

Meeting report

Minutes
The Committee looked at the second half of the Bill to establish what changes needed to be effected in the final draft.

Chapter 6: Appointment, Remuneration, Functions and Powers of Investigators
Clause 22(1)
The clause was accepted without amendments

The question of what qualifications an IPID investigator should have was thoroughly discussed. The point was whether it was appropriate to equate a grade twelve qualification with a higher education qualification.

The Chairperson suggested that the current wording in the Bill, which made provision for a person to have at least a grade 12 certificate or a relevant diploma in addition to other requirements specified in Clause 22(2)(b) was appropriate. Such provision made it possible to hire a good investigator who might not necessarily have a degree or a diploma.

Ms A Van Wyk (ANC) agreed with the Chairperson, saying the Committee wanted to open the door for excellent investigators who did not have higher education qualifications.

The Chairperson added that what the clause said was that in addition to having a grade 12 certificate or a diploma, a candidate MUST have other requirements specified in clause 22(2)(b)(i)-(iv).

Ms D Kohler-Barnard (DA) took issue with the wording in clause 22(2)(b)(i)-(iv), claiming that the word “relevant experience” was too vague and open-ended. Would two weeks experience qualify as relevant experience? 

Rev K Meshoe (ACDP) suggested that since a person needed to first have a grade 12 certificate before they could study further for higher qualification, the requirement for a degree as part of “or” was superfluous and needed to be deleted.

Mr G Schneemann (ANC) disagreed, saying higher learning institutions had an enrolment provision to allow “mature people” to enrol even without a grade 12 certificate.

The Committee agreed to leave the current wording of clause 22(2) as is.

The Committee instructed the state law advisers to re-draft clause 22(3) to bring it in line with clause 7(2)(3) and (4)

Mr G Lekgetho (ANC) raised a concern with clause 22(6). He asked the Independent Complaints Directorate (ICD) to give a brief comment on what the clause meant to serve.

Mr M George (COPE) felt the use of the word “may”, referring to discharging an investigator who would have failed to conform to the security clearance prescripts was very problematic. A person under such circumstances must be released of his/her duties.

The Committee agreed to replace “may be discharged” with “must be discharged”.

Mr Francois Beukman, ICD Executive Director, said that clause 22(6) allowed room for internal conditions of service protocols to be applied. More often than not, such persons would be released from their duties anyway.

Clause 22(7) dealt with the issuing of policing powers to IPID investigators by the Minister of Police.

Ms Kohler-Barnard found it unthinkable that an investigator had to wait for up to three months to be granted policing powers.

Ms Van Wyk replied that the three months’ provision was inserted as a safeguard. What used to happen in the past was investigators could wait up to two years or more before they were granted policing powers.

Mr George remarked that a three months’ delay was a reasonable period for the granting of policing powers.

Mr Beukman replied that the time taken for granting of policing powers depended on the level of secrecy under which a person was to be determined. The higher the level, the longer the duration it took to grant policing powers.

Clause 23
Mr M George said if it were up to him, the entire clause 23 should be deleted. The clause was problematic because it sought, inadequately so, to address an issue that was properly addressed by the Public Service Act.

Ms Van Wyk felt deleting the clause would be a big mistake as it was deliberately inserted in order to ensure that IPID was able to attract highly skilled investigators and keep them. The best that could be done was to find a proper way to re-word the clause in a manner that would make everyone happy. Perhaps saying IPID investigators salaries should “at least” be on par with those of South African Police Service (SAPS) detectives would resolve the concerns of some members.

Mr Schneemann agreed that the clause was included primarily as a recruitment strategy meant to attract skilled investigators. Perhaps it would have helped if the ICD Head explained to the Committee what the initial drafters of the legislation (of which he was part) had in mind when they decided to include that clause.

Mr Lekgetho emphasised that it was important to benchmark the salaries of IPID investigators, for reasons already alluded by some members. Whether benchmarking their salaries against the SAPS detectives was  appropriate or not was debatable.

Rev Meshoe suggested that the word “at least be on par” sounded reasonable but encouraged others to speak if they felt such wording would not be good.

The Chairperson asked the state law advisers to re-look at the matter and report back to the Committee on the best possible way of resolving the clause 23 dilemma. Nevertheless, the objective of the clause was simple: Not to allow IPID investigators to earn less that SAPS detectives.

Clause 24
The Committee agreed to give state law advisers more time to re-work clause 24(1) on the delegation of powers by the Executive Director.

The Committee approved clause 24(2).

Ms Kohler-Barnard asked what would happen if a person refused to comply with clause 24(3) once it was enacted into law. Some members could be scared for their lives and hence fail to comply with the section.

The Committee decided to insert clause 24(4) which would specify the sanction to any person who may have refused to comply with clause 24(3) without any justifiable reason.

Clause 25
The Committee agreed to make clause 26 from the original Bill the new clause 25.

Ms Van Wyk said there should be a provision spelling out the consequences of not complying with clause 25

The Committee instructed the state law advisers to look into what sanction could be applied to a person in violation of the clause and put this in Chapter 9 (Offences and penalties).

Clause 26
Ms D Schafer (DA) raised concern that some of the integrity measures outlined in the clause might not stand constitutional scrutiny.

The Chairperson asked the state law advisers to comment on the point raised by Ms Schafer

Mr Theo Hercules replied that similar provisions in the Hawks legislation had passed constitutional scrutiny.  
 
Clause 27
The old clause 25 in the Bill became clause 27. It detailed the types of matters to be investigated by the IPID.

Ms Van Wyk suggested that clause 27(1)(a) be split into two separate sub-paragraphs. The entire sub-clause clause 27(1)(a) had stipulated that all deaths in police custody, or deaths as a result of police actions “must” be investigated by the IPID. The proposition was to have clause 27(1)(a) dealing with any deaths in police custody and clause 27(1)(b) to cover any deaths as a result of police action.

The Committee agreed to split clause 27(1)(a).

Ms Schafer proposed that clause 27(1)(d) be deleted as it addressed what was already provided for in clause 27(1)(f).

The Committee agreed but asked the state law advisers to re-look at clause 27(1)(f) to see if it could be worded better.

The Chairperson asked the legal advisers if it would be possible to insert an additional sub-section under 27(1) which would mandate the Directorate to investigate any shootings by police officers.

Mr Hercules relied that a separate sub-clause could be inserted and was necessary.

The Committee unanimously agreed to re-word clause 27(1)(e) to mandate the Directorate to investigate “any complaint of torture or assault” regardless of who might have referred such a complaint to the Directorate. 

Mr Beukman agreed with the new proposed wording of clause 27(1)(e), saying it was necessary not to limit the right of anybody from approaching the Directorate with a complaint. The earlier version of clause 27(1)(e) had proposed specific categories of person who could refer complaints of torture to the Directorate. Those were the Station Commissioner, Magistrate, Judge, Legal Representative or the Complainant in the case where the complainant was unrepresented.

A suggestion was made by a Member and accepted by the Committee to delete clause 27(2) in its entirety and that clause 27(3) should become the new clause 27(2).

Ms Van Wyk suggested that the contents in clause 27(2)(b) be moved to the list of matters that “must” be investigated by the Directorate as detailed in clause 27(1)(a) to (f). Clause 27(2)(b) would therefore become clause 27(1)(g).

The suggestion by Ms Van Wyk was unanimously agreed upon by the Committee.

Mr George proposed that the new clause 27(2)(c) should be deleted because it addressed a matter that fell under those matters which was a management issue and did not need to be legislated upon by Parliament.

Mr G Schneemann agreed and the entire Committee resolved to delete clause 27(2)(c).

Mr George felt that clause 27(2)(a) did not belong to the IPID Bill and should rather have been incorporated in the Civilian Secretariat of Police Bill.

Ms Van Wyk disagreed. Her reasoning was that the Secretariat did not have enough capacity to investigate such matters referred to in the sub-clause.

Mr George remarked that he hoped the Committee would, at some stage, discuss the matter of readiness with regard to the implementation of the Bill. One got the feeling that vast human and material resources needed to be made available to get the Bill off the ground.

The Chairperson replied that the Committee’s principle was that no legislation would be adopted unless an implementation plan with detailed costing had been presented. The Rules of Parliament mandated every Committee to have full view of the implementation plan of every programme or legislation of a department before such was approved.

Mr Beukman added that his department was nearing the final stages of completing the implementation plan which would be presented to the Committee in due course. 

New Chapter 7
The Committee had instructed the State Law Advisers to insert a new chapter, now Chapter 7 of the Bill, starting with clause 28.

Ms Van Wyk suggested that the heading of the chapter should be adjusted to read: “Reporting Obligation and Cooperation by SAPS and Municipal Police Service”.

The Chairperson instructed the state law advisers to effect the changes to the title of the chapter as proposed by Ms Van Wyk.

Clause 28
Clause 28(1) read that the Station Commissioner, or a member of the South African Police Service or Municipal Police Service must— 28(1)(a) immediately after becoming aware, notify the Directorate of any matters referred to in section 27. Clause 28(1)(b) would read “within 24 hours thereafter, submit a written report to the Directorate in the prescribed form and manner.

Clause 28(2) provided that the members of the South African Police Service or Municipal Police Service must provide their full cooperation to the Directorate, including but not limited to—
28(2)(a) “the arrangement of an identification parade within 24 hours of the request made by the Directorate; and 28(2)(b) “the availability of members for the taking of an affidavit or an affirmed declaration or to give evidence or produce any document in that member’s possession or under his or her control which has a bearing on the matter being investigated; and 28(2)(c) any other information or document required for investigation purposes.

Mr Schneemann proposed that clause 28(1) should state, “Station Commissioner, or any member.....” instead of “....or a member....” as had been drafted.

The Committee agreed to his suggestion to use the word “or any member”.

Mr George said his concern with the instructing wording of clause 28(1) was that it had the potential of creating problems especially when, in giving cognisance to the Act, the member could find himself or herself violating internal regulations or protocols.

Mr George had a problem with the wording of clause 28(1)(b) where it referred to reporting “within 24 hours”. There could be many valid reasons why a member could be prevented from reporting within 24 hours and if that happened that person might be in violation of the law.

Ms Van Wyk replied that such timeframes were necessary and were part of the teeth that Parliament was trying to give to the IPID so that it did its work swiftly and efficiently without any hindrance from police officials

The Chairperson asked Mr George to say what he would have preferred the clause to say since he had a problem with the “24 hours” provision.

Mr George replied that it would have been better if in addition to a 24 hour reporting requirement, the Bill made further provision to say “...but not later than 48 hours”. Such would allow for genuine situations which may prevent compliance with the 24 hour stipulation.

Ms Van Wyk was adamant that 24 hours was proper and reasonable. The purpose of the clause was not to criminalise any failure to comply with the 24 hour provision, but to put an obligation on the police to report such matters within 24 hours in order to avoid situations where evidence ended up being lost due to unnecessary delays. Besides, the Committee could still put a clause exempting genuine failures.

The Chairperson did not see anything wrong with the 24 hour stipulation.

Mr Lekgetho emphasised that the Bill needed to be abundantly clear about the obligation of the police to report immediately. Hence the design of the forms which needed to be filled in, should be very user-friendly in order to facilitate the process.

Ms van Wyk said it was important not to confuse the reporting of the matter and the investigation thereof. No one had suggested that the investigation needed to be done within 24 hours. Reporting a matter within 24 hours was one of the easiest things a police officer could ever do. There was no need to extend this or make provision to accommodate any possible delays.

Mr Beukman told the Committee that in terms of SAPS internal procedures, there were provisions for SAPS members to report such matters to the Provincial Commissioner on a daily basis. Therefore what the Bill simply said was that they must also report to the IPID.

Clause 29
Ms Van Wyk suggested that clause 29 should be worded in such a manner that it took away the discretionary powers of the Commissioners mentioned in 29(1) and compelled them to initiate disciplinary proceedings against the members concerned. Again the process of submitting reports would need to be followed.

Mr Schneemann agreed with Ms Van Wyk. He further proposed that 29(2) must be deleted so that there was no discretionary power on whether to institute the proceedings. It would be undesirable to give them leeway to decide whether or not they wanted to institute disciplinary proceedings.

Ms Van Wyk claimed that in clause 29(1)(c), the Minister should have been included under the list of people to receive a copy of the report on the outcomes of the disciplinary matters referred to the National or appropriate Provincial Commissioners.

Chapter 8: Finances and Accountability and Annual Report
Clause 30
The Committee agreed to delete the sub-clause that dealt with the Directorate’s funding.

Clause 30(1) would be 30(2) and the word “is” was added to make it read “The Executive Director – is –
30(1)(a) must subject to the Public Finance Management Act
        
Clause 31
No changes were proposed to this clause that dealt with the submission of Annual Report           

Chapter 9: Offences and Penalties
Clause 32
The clause stipulated that any police officer who failed to comply with section 28 would be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

Clause 33
Clause 33(1) provided that a person or a public or private entity, who interfered or obstructed the Executive Director or a member of the Directorate in the exercise or performance of his or her powers or functions, would be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding two years.

Clause 33(2) gave a similar punishment to any members of the directorate who wilfully disclosed information under circumstances in which they knew, or could reasonably be expected to have known, that such a disclosure would or may prejudice the exercise or the performance by the Directorate.

Chapter 10: Regulations, Transitional Arrangements, Repeal and Short Title and Commencement
All the contents under the chapter were accepted.

The Chairperson asked the lCD team together with the State Law Advisers to draft the proposed changes before submitting them the following day, with other matters that had been given to them to research.

Mr Beukman asked if the Committee would consider giving the teams more time since some of the issues needed them to get in touch with other departments in order to find the answers the Committee needed.

The Chairperson objected to granting more time, saying there was no time available as the Bills needed to be processed with speed.

Ms Kohler-Barnard raised a concern over the urgency which had seemed to characterise the Committee in processing the Bills. If the Directorate felt they needed more time, it would be in the Committee’s interest and the country’s in ensuring that quality legislation was produced.

The Committee refused to grant extra time, insisting that the following day’s meeting would rather start an hour later in order to give the legal teams and the ICD officials time to consult and find answers to the matters that had been flagged in preparing the final amended draft of the Bill.

The meeting was adjourned.