Western Cape Police Ombudsman appointment, role and responsibilities

Meeting report

Western Cape Police Ombudsman role and responsibilities
Adv Yashina Pillay, Department of Community Safety Head of Department (HoD), said the establishment of the Office of the Western Cape Police Ombudsman (WCPO) and appointment of an Ombudsman is based on various legal and policy frameworks aimed at ensuring the effective and efficient oversight of policing in provinces. It is based on Section 206(3) of the RSA Constitution, Sections 10 to 18 of the Western Cape Community Safety Act of 2013, Independent Police Investigative Directorate Act (No 1 of 2011), and Civilian Secretariat for Police Services Act (No 2 of 2011).

The Western Cape Police Ombudsman (WCPO) seeks to enhance the effectiveness and efficiency of police services and to improve relations between the police and communities by investigating complaints of police inefficiency and/or a breakdown of relations between the police and any community.

Section 206(3) of the Constitution states:
(3) Each province is entitled—
(a) to monitor police conduct;
(b) to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;
(c) to promote good relations between the police and the community;
(d) to assess the effectiveness of visible policing; and
(e) to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.

Sections 10 to 18 of the Western Cape Community Safety Act provide for the establishment of the Western Cape Police Ombudsman (WCPO). Section 14 requires the Ombudsman and staff to serve independently and impartially and must perform their functions in good faith and without fear, favour, bias or prejudice. Section 15 outlines the functions of the Ombudsman: to receive and may investigate complaints submitted on police inefficiency or a breakdown in relations between the police and any community; and perform other functions assigned under the Act.

Section 11 states the premier must appoint a suitably qualified person, with experience in the field of law or policing, as the Ombudsman. The Ombudsman is appointed by the Premier after consultation with the provincial minister, the provincial commissioner and the executive heads of municipal police services; and subject to approval by the provincial parliament’s standing committee responsible for community safety by a resolution adopted in accordance with its rules.

Section 16 which deals with submitting complaints to the Ombudsman for investigation states any person may submit a complaint in the prescribed manner and form to the Ombudsman regarding alleged police inefficiency or a breakdown in relations between the police and any community; and any member of the provincial parliament may, on becoming aware of a complaint regarding alleged police inefficiency or a breakdown in relations between the police and any community, submit it to the Ombudsman for investigation. The Ombudsman must issue guidelines that are publicly accessible in respect of the procedures to submit a complaint and the type of complaints that may be submitted to the Ombudsman.

When it comes to investigations, if a member of the provincial parliament refers a matter to the Ombudsman, s/he must conduct an investigation into that matter. If the Ombudsman is of the opinion that a complaint may more appropriately be dealt with by another competent authority, s/he may refer the complaint to that other authority. If the Ombudsman decides not to initiate an investigation, s/he must inform the complainant of the decision and the reasons. Upon completion of an investigation and if the matter could not be resolved, the Ombudsman must submit a recommendation and findings to the Provincial Minister and inform the complainant.

On investigating powers, section 18 states the Ombudsman may direct any person to submit an affidavit or affirmed declaration or to appear and give evidence or produce any document in that person’s possession which has bearing on the matter investigated, and may question that person. The Ombudsman may request an explanation from any person s/he reasonably suspects of having information on the matter. The Ombudsman may designate staff members or other suitable persons as investigating officers to perform some of these functions.

The Independent Police Investigative Directorate investigates any deaths in police custody, deaths as a result of police actions, complaints about the discharge of an official firearm by a police officer; rape by a police officer, whether on or off duty, and rape of a person while that person is in police custody. The Civilian Secretariat for Police Services must assess and monitor the police service’s ability to receive and deal with complaints against its members.

Discussion
Mr P Marais (FF+) said his biggest problem was the ineffectiveness of police in the Western Cape where children are killed in the townships, especially in areas like Khayelitsha. He wanted to know if there is remedy in place seeing that the National Minister is failing to give the Western Cape sufficient police, and wondered if the inefficiencies of the Western Cape police are a result of insufficient resources.

Adv Pillay acknowledged the Western Cape does not have enough police resources and this matter is still with the courts. The Western Cape requires the right resources where suitable and qualified members need to be appointed and be adequately trained. There is also a shortage of detectives. Provincial Community Safety Minister Fritz has written to the National Commissioner of Police requesting public order police resources. Other big provinces like Gauteng and KZN have more public order police resources than the Western Cape.

Mr M Kama (ANC) wanted to know the kind of complaints the Ombuds would investigate seeing that there has been a breakdown of relations between the police and the community. He also wanted to understand if the recruitment of the Ombudsman is open to all people or if it is targeted to those in the police service already.

Dr Harry Malila, Director-General of the Western Cape Government, explained that the recruitment process does not target people close to retirement. The process is transparent. The call for nominations was advertised and responses were received. The Premier has the power to make a nomination, but he chose to open the process.

Adv Pillay added that it is an open and fair process for people to apply. The Department of Community Safety does not headhunt. The Department has oversight over the police, WCPO and all law enforcement agencies. The Ombuds investigates SAPS as well as municipal police officers, service delivery complaints, and systemic inefficiencies found in communities. The Western Cape Community Safety Act has been reviewed so that the Ombuds is proactive.

Mr Marais remarked the police concerns are very wide. He is very much concerned about where the province is going because SAPS keeps on telling the Committee about vacancies, unfunded posts and shortage of personnel. He asked to what extent the unfilled vacancies in SAPS is due to people having the wrong skin colour.

The Chairperson asked Mr Marais to focus on the topic under discussion and direct his questions about SAPS when the Committee and Department directly tackle such matters.

Mr Kama asked for the timelines for the review of the Western Cape Community Safety Act.

Adv Pillay replied that inputs and amendments have been finalised and the Department still needs to follow regulatory processes and then invite public comments on the Draft Amendment Bill.

Western Cape Police Ombudsman nomination by Office of the Premier
The Committee agreed to deliberate in camera on the Premier's nomination for the appointment of the Western Cape Police Ombudsman.

On reopening the meeting to the public, the Chairperson announced that the Committee resolved to approve the nomination of Major-General Oswald Reddy to be appointed to the Office of the Western Cape Ombudsman. This approval would be relayed to the Office of the Premier. The process of verifying the qualifications of the Major-General Reddy is under way.

Committee Report on SAPS Oversight Visit
The Committee considered the report, page by page.

The Committee then adopted the report. It also adopted the 14 May 2021 minutes.

The meeting was adjourned.