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BRIEFING TO SELECT COMMITTEE FOR SECURITY AND CONSTITUTIONAL AFFAIRS

BRIEFING TO SELECT COMMITTEE FOR SECURITY AND CONSTITUTIONAL AFFAIRS. SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL [B 30B 2008]. BACKGROUND.

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BRIEFING TO SELECT COMMITTEE FOR SECURITY AND CONSTITUTIONAL AFFAIRS

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  1. BRIEFING TO SELECT COMMITTEE FOR SECURITY AND CONSTITUTIONAL AFFAIRS SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL [B 30B 2008]

  2. BACKGROUND • The Committee was, together with the Portfolio Committees on Justice and Constitutional Development and for Safety and Security, involved in the public hearings on the Bill. • The Committee is familiar with the public hearings and deliberations on the Bill. • Focus is therefore on the contents of the Bill as approved by the National Assembly. • Some provisions of the Bill as it was introduced have been transferred to the National Prosecuting Authority Amendment Bill, 2008, which will be dealt with by the Department of Justice.

  3. CLAUSE 1Amendment of s. 5 of the South African Police Service Act, 1995 5. Establishment and composition of Service (1) The South African Police Service contemplated in section 214 (1) of the Constitution is hereby established. (2) The Service shall consist of- (a) all persons who immediately before the commencement of this Act were members- (i) of a force which, by virtue of section 236 (7) (a) of the Constitution, is deemed to constitute part of the Service; (ii) appointed under the Rationalisation Proclamation; (iii) of the Reserve by virtue of section 12 (2) (k) of the Rationalisation Proclamation; (b) members appointed in terms of section 28 (2) of this Act; [and] (c) persons who become members of the Reserve under section 48 (2) of this Act; and (d) members appointed to the Directorate for Priority Crime Investigation established by section 17C.

  4. CLAUSE 2Amendment of s. 16 of the South African Police Service Act, 1995 • Section 16 of the Act provides for organised crime, crime which requires national prevention or investigation, or crime which requires specialised skills in the prevention and investigation thereof. • It represents basically the mandate and type of cases from which the Directorate for Priority Crime Investigation will select its investigations or from which cases will be referred to it. • Section 16 is aligned to the provisions in the National Prosecuting Authority Act, 1998, relating to organised crime, which provisions are repealed.

  5. CLAUSE 2Amendment of s. 16 of the South African Police Service Act, 1995 • Section 16(1) of the South African Police Service Act provides: (1) Circumstances amounting to criminal conduct or an endeavour thereto, as set out in subsection (2), shall be regarded as organised crime, crime which requires national prevention or investigation, or crime which requires specialised skills in the prevention and investigation thereof.

  6. CLAUSE 2Amendment of s. 16 of the SA Police Service Act, 1995 Amendment of subsection (2) of section 16: • (2) Circumstances contemplated in subsection (1) comprise criminal conduct or endeavour thereto- (a) [by any enterprise or group of persons who have a common goal in committing crimes in an organised manner] • by a person, group of persons or syndicate acting in- • (i) an organised fashion; • (ii) a manner which could result in substantial financial gain for the person, group or syndicate involved.

  7. CLAUSE 2 Section 16. • The following subsection is inserted to describe “organised fashion”, referred to above: • ‘‘(2A) For the purpose of subparagraph (a)(i), ‘organised fashion’ includes the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that has the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are related by distinguishing characteristics.’’

  8. CLAUSE 2 • A schedule of offences which are added to the offences mentioned in section 16(2) of the SA Police Service Act, 1995, is inserted in section 16(2), as paragraph 16(2)(iA). • Schedule on following slide

  9. Clauses 2; 5: Schedule of offences(Section 16(2)(iA)) • 1 High treason; • 2 any offence in paragraph (a) of the definition of ‘specified offence’ of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004; • 3 sedition; • 4 any offence in Schedule 1 to the Implementation of the Rome Statute of the International Criminal Court Act, 2002; • 5 any offence in Chapters 2, 3 and 4 of the Prevention of Organised Crime Act, 1998; • 6 any offence in section 13(f) of the Drugs and Drug Trafficking Act, 1992; • 7 any offence in the Non-Proliferation of Weapons of Mass Destruction Act, 1993; • 8 any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armament and the unlawful possession of such firearms, explosives or armament; • 9 any offence in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004; • 10 any offence in the Regulation of Foreign Military Assistance Act, 1998 or the Prohibition of Mercenary Activities and the Regulation of Certain Activities in Country of Armed Conflict Act, 2006; • 11 any offence referred to in the National Conventional Arms Control Act, 2002; • 12 any offence the punishment wherefor may be imprisonment for life.

  10. CLAUSE 3Inserts Chapter 6A in South African Police Service Act • Proposed section 16A, provides for definitions of “Directorate, “national priority offence”, and Operational Committee”.

  11. CLAUSE 3 Proposed Section 16B • Proposed section 16B provides for the- • Application of the Chapter referring to the need to establish a Directorate to prevent, investigate and combat national priority offences. • The underlying principles to ensure that the Directorate- • implements a multi-disciplinary approach, and integrated methodology involving cooperation of relevant Govt .depts and institutions, • has the necessary independence to perform its functions; • is equipped with appropriate human and financial resources to perform its functions; • is staffed through the transfer, appointment and secondment, with personnel whose integrity is beyond reproach.

  12. CLAUSE 3Inserts Chapter 6A in South African Police Service Act • “Directorate” means the Directorate for Priority Crime Investigation (DPCI). • “National priority offence” means organised crime, crime that requires national prevention or investigation, or crime which requires specialised skills, in the prevention and investigation thereof, as referred to in section 16(1). • “Operational Committee” means the Committee (of senior officials) established by section 17J.

  13. CLAUSE 3PROPOSED section 17C • The Directorate is established as a Division of the Service, comprising- • The Head- A Deputy National Commissioner appointed by the Minister in concurrence with Cabinet. • Persons appointed by the National Commissioner on recommendation of the Head on the basis of, amongst others, experience, training, skills, competence or knowledge; • An adequate number of legal officers, persons seconded from other Government dept’s or institutions.

  14. CLAUSE 3: Proposed section 17D. • DPCI’s Functions to prevent, combat and investigate— • national priority offences, selected by the Head of the Directorate, subject to policy guidelines issued by Ministerial Committee; • offences or category of offences referred to it by National Commissioner, subject to policy guidelines by the Ministerial Committee. • (2) extension of existing investigation by the Head in the interests of justice, or in public interest, to include offence suspected to be connected with the subject of the investigation. • (3) Head of the Directorate may request NDPP to designate a Director of Public Prosecutions to conduct an investigation in terms of section 28 of the National Prosecuting Authority Act, 1998.

  15. CLAUSE 3: Proposed section 17E Security screening and integrity measures • Any person appointed to Directorate subject to security screening in terms of National Strategic Intelligence Act. • Appointment in Directorate subject to security clearance. • Existing valid and required level security clearances recognised. • Temporary security clearances allowed for, but appointments subject to issuing of clearance. • If security clearance is downgraded, withdrawn or refused, person may be transferred or discharged if redeployment impossible. • Person may be subjected to re-vetting- periodically or if information of security risk exists. • Financial interests of member and immediate family members must be disclosed periodically. • Minister may prescribe further random integrity testing including entrapment, or polygraph testing and tests for drugs and alcohol abuse. • Measures must be prescribed for the confidentiality of information obtained. • Provision is made to obtain necessary bodily samples by a registered medical practitioner or nurse.

  16. CLAUSE 3: Proposed section 17FMulti-disciplinary approach • Govt. dept’s and institutions to take reasonable steps to assist DPCI in achieving its objectives. • National Commissioner shall request secondment of personnel when required. • Directorate to be assisted by seconded personnelinter alia from the FIC, Home Affairs, SARS. • NDPP to ensure that a dedicated component of prosecutors are available to assist and cooperate with investigators of DPCI. • DG of relevant Dept on request shall identify personnel to be seconded. • DPCI to be assisted in crime intelligence functions by Crime Intelligence Division of SAPS. • Nat. Comm. may request that seconded personnel may retain their powers of seconding Department. • Powers to be executed under control of Head of DPCI in terms of legislation from seconding department or institution, but subject to conditions determined by Head of seconding department or institution.

  17. CLAUSE 3: Proposed section 17GConditions of service • The remuneration , allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the SAPS Act, 1995.

  18. CLAUSE 3: Proposed section 17ICo-ordination by Cabinet • President shall designate a Ministerial Committee which shall include the Ministers- • For Safety and Security; • Finance; Home Affairs; Justice; Intelligence; • Committee to determine policy guidelines for functioning of Directorate, case selection by Head, referral of cases by Nat. Comm and procedures for interdepartmental cooperation and assistance. • The Committee shall meet as regularly as necessary. • Nat. Comm and Head of DPCI to provide implementation and performance reports to Ministerial Committee.

  19. CLAUSE 3: Proposed section 17J • Operational Committee established to review, monitor and facilitate support and assistance of Govt. dept’s and institutions and secondments from them to DPCI and address problems arising. • Performs functions directed to it by Ministerial Committee. • Reports to the Ministerial Committee. • Meets as regularly as required. • Consists of Nat. Comm., Head of Directorate, NDPP, DG’s of Finance, Justice &CD, Home Affairs, NIA, Head of FIC, Commissioner of SARS, other persons requested on ad hoc and temporary basis. • Role-players may be represented on permanent basis by officers on Chief Director’s level. • Nat. Comm. as Chair, Head of DPCI deputy chair. • Both the DG’s and representatives may attend meetings.

  20. CLAUSE 3: Proposed section 17K • Parliamentary oversight involves: • Parliament to effectively oversee functioning of DPCI and Committees. • Nat. Comm. to report in his annual report on DPCI. • Head of Directorate to report on request of Parliament. • Minister to submit for approval policy guidelines of Ministerial Committee, on selection and referral of cases (deemed to be approved, if Parliament does not approve in months). • Minister to submit report in 3 yrs to Parliament on legislative amendments to improve functioning of DPCI

  21. CLAUSE 3: Proposed section 17L Complaints mechanism • Retired judge appointed by Minister to investigate complaints from public on evidence provided of serious and unlawful infringement of rights, and • complaints from member on evidence of improper influence or interference regarding the conduct of an investigation. • Judge’s powers in addition to that of ICD which must investigate general complaints of misconduct or offences by Members. • Judge may investigate or refer complaints to Secretariat, ICD, Nat. Comm., Prov. Comm., Head of DPCI, NDPP, Insp. Gen. Intelligence, or Chapter 9 Constitution institution. • Judge has powers to request information from police, NDPP, to enter and search for information with SAPS, and entitled to assistance from SAPS. • Head of DPCI may request retired judge to investigate allegations against investigations of DPCI. • Section not to be abused for fishing expedition or to delay or stop any investigation. • Minister must ensure that retired judge has sufficient resources and personnel to perform functions. • Retired judge to report outcomes of investigations to Minister. • Retired judge not competent to investigate intelligence matters.

  22. CLAUSE 4: Amendment of section 24 of the SA Police Service Act,1995 Expand the empowering provision for Minister to make Regulations under the Act to provide for- • the manner and intervals for disclosure of financial and other interests of members and immediate family members [s.17E(7)(a)]. • The measures for integrity testing of members of the DPCI [s. 17E(8)(a). • Measures to ensure the confidentiality of information obtained through integrity testing [s. 17E(8)(c)]. • The form and manner of complaints to the retired judge [s. 17L(4)]

  23. CLAUSE 6: Transitional arrangements • Provides for a “fixed date” to be determined by President. • From fixed date all powers and functions performed by DSO shall be performed by the DPCI. • Investigations of the DSO shall be conducted as if this Act had been in force at all times. • Allocated budget, assets and liabilities as agreed upon between the Nat. Comm. and NDPP be transferred to SAPS in accordance with s. 42 of PFMA Act. • Registrar of deeds must transfer any property of DSO to SAPS. • Deeming clause for continuity of employer in respect of the Income Tax Act. • Remuneration of transferred DSO members where more favourable than those determined in terms of section 24 remains so whilst more favourable. • Act does not affect the validity of any investigation or prosecution conducted, pending, or under investigation by the DSO before the fixed date.

  24. CLAUSE 7: Selection of personnel • Nat. Comm. must appoint a selection panel which includes representative of the NDPP to select for appointment in the DPCI: • Former special investigators of the DSO. • Members of SAPS from the Organised Crime and Commercial Crime Components. • Any other member of the Service. • Administrative and support personnel employed at the fixed date at the DSO and SAPS. • Head of DPCI shall advise the Nat. Comm. on selection criteria. • Criteria shall include experience, training, skills, competence and knowledge. • Selection subject to SA Police Service Act and Public Service Act, whatever is applicable.

  25. CLAUSE 8: JOINT AUDIT AND IMPLEMENTATION TEAMS • The NDPP and Nat. Comm. Must nominate senior officials of the DSO and SA Police Service to perform joint audit teams in respect of personnel, budget, finances, information management and equipment of the DSO. • The officials involved shall facilitate the implementation of the Act as soon as possible. • The Nat. Comm. and the NDPP must report to Parliament on quarterly basis on progress made with the implementation of the Act.

  26. CLAUSE 9 • Short title and commencement. • Act shall be called the South African Police Service Amendment Act, 2008 and shall come into operation on a date determined by the President by Proclamation in the Gazette.

  27. OBJECT MEMORANDUM • See paragraph 4: Financial implications: • The prevention and investigation of organised and priority crime are not new services, and are presently being performed by SAPS and the DSO with existing allocated budgets. • Concomitant resources such as personnel, budget, assets and liabilities are transferred to the SAPS from the fixed date. • There will be financial implications arising from the relocation of resources and the allocation of additional resources to the Directorate for Priority Crime Investigation. These will, however, be accommodated within the department’s allocated budget without any negative effect on service delivery.

  28. Thank you • Assistant Commissioner PC Jacobs: • Head: Legal Support: Crime Operations

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