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CIVILIAN SECRETARIAT FOR POLICE

PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS. SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL [B7 -2012] 19 JUNE 2012 CAPE TOWN. CIVILIAN SECRETARIAT FOR POLICE. BACKGROUND.

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CIVILIAN SECRETARIAT FOR POLICE

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  1. PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL [B7 -2012] 19 JUNE 2012 CAPE TOWN CIVILIAN SECRETARIAT FOR POLICE

  2. BACKGROUND • The South African Police Service Amendment Bill was introduced following the Glenister judgment in the Constitutional Court which found Chapter 6A of the South African Police Service Act, 1995, dealing with the Directorate for Priority Crime Investigation (DPCI),to be unconstitutional. • The Court ruled that legislation must provide for an adequate measure of independence for the DPCI, and this must be done before 15 September 2012.

  3. THE GLENISTER JUDGEMENT The Constitutional Court, in its judgment, found that the creation of ‘‘a separate crime fighting unit within the South African Police Service was not in itself unconstitutional’’. The Court posed two questions: (1) whether or not the Constitution requires the State to establish and maintain an independent body to combat corruption and organised crime; and (2) whether or not the DPCI meets the requirement of independence. The Court concluded that the Constitution does impose an obligation on the State to establish and maintain a body with necessary independence to combat corruption and organised crime.

  4. THE GLENISTER JUDGEMENT • The Court considered a number of international conventions regarding the independence of corruption fighting units and held that ‘‘the obligations are clear and unequivocal in that they impose on the Republic a duty to create an anti-corruption unit that has the necessary independence’’. • The Court considered the legislative provisions that establish the DPCI under the following aspects: - whether the DPCI has the operational & structural attributes required for an adequately independent anti-corruption unit; - security of tenure and remuneration; and - the accountability and oversight by the Ministerial Committee.

  5. THE SAPS AMENDMENT BILL, 2012 CLAUSES 1 AND 2 • Clause 1 of the Bill amends section 6 of the South African Police Service Act, 1995 and seeks to align the provisions in the Act (which provide for the appointment of the National Commissioner and Provincial Commissioners) to sections 207(1) and 207(3) of the Constitution of the Republic of South Africa, 1996. • Clause 2 of the Bill seeks to amend section 11 of the South African Police Service Act in order to align the functions of the National Commissioner with section 207(2) of the Constitution.

  6. CLAUSE 3 Clause 3 of the Bill seeks to amend section 16 of the Act by providing for: ● the National Head of the Directorate to decide which matters will be investigated on a provincial or national level, in accordance with the approved policy guidelines. ● the determination of the National Head of the Directorate made in accordance with approved policy guidelines, to prevail in the event of a dispute between the National Head of the Directorate and a Provincial Commissioner regarding the question whether criminal conduct or endeavour thereto falls within the mandate of the Directorate. ● a reflection of the Constitutional imperative for cooperative governance as contemplated in Chapter 3 of the Constitution of the Republic of South Africa, 1996.

  7. CLAUSES 4 AND 5 • Clause 4 of the Bill seeks to ensure that there shall be no conflict between the provisions of Chapter 6A and the rest of the South African Police Service Act, 1995 (Act No. 68 of 1995). • Clause 5 of the Bill seeks to provide for the amendment of section 17B of the Act by providing for the establishment of a Directorate in the South African Police Service to prevent, combat and investigate national priority offences, in particular serious organised crime, serious commercial crime and serious corruption.

  8. CLAUSES 6 AND 7 • Clause 6 seeks to amend section 17C of the Act by providing for the composition and establishment of the Directorate. • Clause 7 of the Bill inserts section 17CA after section 17C of the Act and provides for the appointment, remuneration and conditions of service of the National and Deputy National Head of the Directorate, the Provincial Heads of the Directorate and the employees of the Directorate.

  9. CLAUSE 7 continued • Specific criteria are provided for in this regard, namely that only a person who is a South African citizen and who is a fit and proper person, with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned may be appointed as National Head, Deputy National Head or Provincial Head of the Directorate.

  10. CLAUSE 7 continued • The proposed section 17CA provides for the appointment by the National Head, Deputy National Head and Provincial Head of the Directorate for a non-renewable period of not shorter than seven years and not exceeding 10 years, which period shall be determined at the time of appointment. The proposed section further provides that the National Head of the Directorate shall be accountable to the Minister of Police.

  11. CLAUSE 8 Clause 8 of the Bill seeks to amend section 17D of the Act by providing that the functions of the Directorate are to prevent, combat and investigate national priority offences and selected offences not limited to those contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), which in the opinion of the National Head of the Directorate need to be addressed by the Directorate, subject to any policy guidelines issued by the Minister and approved by Parliament. Clause 8 of the Bill also provides that the National Head of the Directorate shall ensure that the Directorate observes the policy guidelines referred to in section 17D.

  12. CLAUSE 9 Clause 9 inserts sections 17DA and 17DB in the Act and provides that: • the National Head of the Directorate may be suspended or removed from office on the grounds of misconduct, continued ill-health, incapacity to carry out his or her duties of office efficiently or on account that he or she is no longer a fit and proper person to hold the office concerned. The Minister may only suspend or remove the National Head of the Directorate from office if the procedures prescribed in the Act are followed.

  13. CLAUSE 9 continued • These procedures include an inquiry that shall perform its functions subject to the provisions of the Administrative Justice Act, to ensure procedurally fair administrative action and shall be led by a judge or retired judge. • the Minister may provisionally suspend the National Head of the Directorate from his or her office, pending an inquiry into his or her fitness to hold such office on the grounds provided for in the provision.

  14. CLAUSE 9 continued • the reason for the removal of the National Head of the Directorate from office and representations by the National Head of the Directorate shall be referred to Parliament in accordance with the procedure provided for in the Bill. • the Minister may allow the National Head of the Directorate at his or her request to vacate the office based on the grounds stipulated in Clause 9 of the Bill. • Parliament may also adopt a resolution with at least a two thirds majority of the National Assembly, following an investigation by a Committee of Parliament into the fitness of the National Head of the Directorate, for his or her removal from office.

  15. CLAUSE 9 continued • The adoption of such a resolution shall also lead to the removal of the National Head of the Directorate from office. The clause further provides that the National Head of the Directorate must determine the fixed establishment of the Directorate and the number and grading of posts, in consultation with the Minister and the Minister for the Public Service and Administration. • The National Head of the Directorate shall also appoint the staff of the Directorate, and when appointing a member of the South African Police Service , the National Head of the Directorate shall do so after consultation with the National Commissioner of the Service.

  16. CLAUSE 10 Clause 10 of the Bill provides for: • matters relating to the security clearance of members of the Directorate by an Intelligence Structure referred to in the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994). • a requirement to take an oath or affirmation by the National Head of the Directorate, the Deputy National Head of the Directorate or any person seconded to or employed in the Directorate. • Clause 10 also provides for an offence relating to interference with members or resisting, wilfully hindering, influencing or obstructing any member of the Directorate in he exercising of his or her powers.

  17. CLAUSE 11 • Clause 11 of the Bill seeks to amend section 17F of the Act and provides that the National Head of the Directorate may request the secondment of personnel from any other Government department or institution, whenever he or she deems it necessary for the effective performance of the functions of the Directorate. The Director-General of the Government department or Head of the relevant Government institution shall, upon request by the National Head of the Directorate, identify suitable personnel to be seconded to the Directorate upon such terms and conditions as may be agreed upon between the National Head of the Directorate and the Director-General of the Government department or Head of the Government institution concerned.

  18. CLAUSE 11 continued. • The person seconded shall in the performance of his or her functions act in terms of the laws applicable to the Government department or institution from which he or she is seconded. • The clause further provides for crime intelligence capacity to be provided for by the Head of the Crime Intelligence Division if the National Head of the Directorate requests such assistance in a specific investigation.

  19. CLAUSE 12 Clause 12 of the Bill provides that: • The National Head of the Directorate shall prepare and provide the National Commissioner with the necessary estimate of revenue and expenditure of the Directorate for incorporation in the SAPS budget. • the National Commissioner, as the accounting officer in respect of the SAPS, is charged with the responsibility of accounting for State monies received or paid out for or on account of the Directorate and shall involve the National Head in all consultations relating to the estimate of revenue and expenditure of the Directorate including any consultations with the National Treasury relating to the revenue and expenditure of the Directorate.

  20. CLAUSES 12 AND 13 • Clause 12 (Continued...) monies appropriated by Parliament for the Directorate shall constitute funds which are specifically and exclusively appropriated for the purposes of the Directorate and which may only be utilised for the Directorate. • Clause 13 of the Bill provides for the amendment of section 17I and provides that the Ministerial Committee may determine procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions and shall meet as regularly as necessary and shall report to Parliament on its activities as part of the annual report of the Directorate.

  21. CLAUSE 14 • Clause 14 of the Bill provides for the amendment of section 17J of the Act, in order to provide that the National Head of the Directorate shall chair the Operational Committee, that the Deputy National Head of the Directorate shall be the Deputy Chairperson and to provide for representation by the Crime Intelligence Division of the Service as well as a Deputy National Commissioner of the Service.

  22. CLAUSE 15 • Clause 15 of the Bill seeks to amend section 17K of the Act by providing that: • the National Commissioner shall include in the annual report to Parliament in terms of section 40(d) of the Public Finance Management Act, 1999, a report in respect of the performance of the Directorate compiled by the National Head of the Directorate as a separate programme. • the budget report to Parliament shall include a full breakdown of the specific and exclusive budget of the Directorate. • the National Head of the Directorate shall make a presentation to Parliament on the budget of the Directorate.

  23. CLAUSE 15 continued • the Minister shall determine, with the concurrence of Parliament, policy guidelines for the selection of national priority offences by the National Head of the Directorate referred to in section 17D(1)(a) of the Act and policy guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate referred to in section 17D(1)(b) of the Act. • the Minister shall report the appointment of the National Head of Directorate to Parliament.

  24. CLAUSE 16 • Clause 16 of the Bill amends section 17L by providing that the retired judge may request and obtain information from the NDPP in so far as it may be necessary for the judge to conduct an investigation. An offence is also provided for in the Bill for a refusal by members of the Service to provide information to the retired judge, the preparation of an annual operational budget for the specific and exclusive use of the duties and functions of the retired judge by the Secretary in consultation with the retired judge, and the promotion of public awareness both with the public and members of the Directorate regarding the functions and role of the retired judge as well as providing for an offence for interference with the retired judge in the performance of his or her functions.

  25. CLAUSES 17 AND 18 • Clause 17 of the Bill seeks to amend section 27 of the South African Police Service Act, 1995, in order to provide that subject to Chapter 6A of the said Act and subsection (2) of section 27, the filling of any post in the Service, whether by appointment, promotion or transfer, shall be done in accordance with the said Act. • Clause 18 seeks to amend section 28 of the South African Police Service Act, 1995, in order to provide that the National Head of the Directorate shall determine a uniform recruitment procedure for the Directorate.

  26. CLAUSES 19, 20, 21 AND 22 • Clause 19 of the Bill seeks to provide for transitional arrangements. • Clause 20 of the Bill seeks to amend the preamble. • Clause 21 provides for the repeal or amendment of laws. • Clause 22 provides for the short title and commencement of the Amendment Act.

  27. CONCLUSION • During the deliberations of the Portfolio Committee a number of concerns had been expressed about the constitutionality of the Bill, and in particular in relation to section 207(1) and (2) of the Constitution which provides that: (1) The President, as Head of the national executive, must appoint a woman or a man as the National Commissioner of the police service to control and manage the police service; and • (2) The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.

  28. CONCLUSION • The State Law Advisers of Parliament expressed the view in Parliament that the amendments effected to the Bill by the Portfolio Committee on Police, will ensure the constitutionality of the Bill, in line with the requirements of the Glenister judgement in the ConCourt, with regard to “adequate independence” required of the DPCI.

  29. THANK YOU Q & A

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