Lt Colonel Kinnear Investigation: IPID, SAPS & DPCI Input; with Minister and Deputy Minister

Meeting report

The Chairperson welcomed the Members, the Minister, Deputy Minister, Head of the Directorate for Priority Criminal Investigation (DPCI), the Executive Director of the Independent Police Investigative Directorate (IPID) and all their teams to the meeting. She asked the Members, as well as the officials from IPID, the South African Police Service (SAPS) and the DPCI, to introduce themselves for record purposes.

The Committee adopted the meeting agenda and the minutes of previous meetings held on 26 October and 2 November.

Investigation into assassination of Lt Col Kinnear

Timeline [find meetings here https://pmg.org.za/committee/86/ ]

The Chairperson said that on 15 September 2020, Lieutenant Colonel Charl Kinnear was killed in the driveway of his home in Bishop Lavis. At the time of his death, he was under the protection of the SAPS attached to the Western Cape Anti-Gang Unit. He was investigating several high-profile cases, including suspected corruption related to firearms. Since his murder, there has been one media report on the circumstances that led to his murder and the subsequent investigation.

On 5 October and 25 November 2020, Members of the Portfolio Committee on Police raised concerns about the murder of Lt Col Kinnear. On the latter date, the Committee considered its 2019/20 Budgetary Review and Recommendations Report (BRRR) of the SAPS. Members had raised concerns about the assassination and questioned who had withdrawn his protection when he was dealing with investigating high-profile criminals. Members had also questioned the motives for withdrawing the protection, and the National Commissioner informed the Committee that only he had the authority to withdraw protection.

According to the National Commissioner, Lt Col Kinnear did not have approved protection and the investigation was in progress, with the threat analysis team has submitted a preliminary report. He also indicated that Crime Intelligence had made a final recommendation after the threat was analysed as high or low risk in October 2020. The Committee's Members were not satisfied with that response from the National Commissioner, as other police officers who faked threats had received protection. The National Commissioner also provided the Committee with a report into the assassination of Lt Col Kinnear and the consequence management steps it would follow if the investigation found that the police had colluded in his death.

On 25 October 2020, Mrs Kinnear petitioned Parliament to address various issues she felt needed to be dealt with by Parliament. On 13 November 2020, the Speaker of the National Assembly referred the petition to the Portfolio Committee on Police, requesting it to deal with the petition from the perspective of its oversight mandate. Mrs Kinnear had specifically requested the Committee to address why the SAPS had not offered official protection to ensure the safety of her late husband.

In February 2021, the Portfolio Committee met with Mrs Kinnear to hear her petition, and on 21 February, it invited the SAPS to report on progress. In September, the National Assembly adopted the report of the Committee. In November, the Committee considered the 2021 annual report, where Members had raised concerns about the leaked investigation report. In December, the Committee adopted the BRRR report, noting that the investigation into the murder of Lt Col Kinnear must be made available to it, as it remained its contention, and the Committee did not request a classified document containing sensitive information in its recommendations.

In March 2022, Mrs Kinnear made a second submission to the Speaker of the National Assembly, and it was referred to the Minister of Police and not to the Portfolio Committee. In response to Mrs Kinnear, the Speaker noted that Parliament, unfortunately, did not have the answers to her concerns. The IPID report was based on Mrs Kinnear’s second submission to the Speaker.

On 1 June, the Portfolio Committee on Police met with the SAPS’s organised crime service and during the meeting, the following was recorded:

• The Chairperson said she had received several complaints from Mrs Kinnear, and it was unfortunate that the perception was created that the Committee was not doing enough to get to the bottom of the case.
• The Chairperson assured Mrs Kinnear that the Committee had been receiving monthly reports, and that the second petition had not been referred to the Committee.
• The Committee had no power to instruct the SAPS to offer Mrs Kinnear and her family security, as that was the responsibility of the SAPS.
• Security was offered to members of the public after risk assessments were done, and Mr Groenewald had agreed with the Chairperson’s comments, noting that people often misunderstood what the Committee could and could not do, and that the Committee should appeal to the SAPS to ensure that there was good communication between them and Mrs Kinnear.

During the meeting, the Committee had also indicated that the monthly reports on the investigation would now be received quarterly. The Committee became aware that IPID’s final report on 22 July was received in Parliament, and that it had been classified as top secret. In September, the Chairperson of the Portfolio Committee had written to the Speaker of the National Assembly to indicate that the Committee was aware of the report, and had requested guidance on the way to process the report.

On 22 September, the Speaker reverted to the Committee to clarify the process. In the same month, Mr Paul O’Sullivan emailed various Members of Parliament, making several allegations against them. An article was published saying that the Committee was not doing its oversight work. On 23 September, Mrs Kinnear wrote a letter to the Portfolio Committee titled "Lack of Transparency in the National Assembly, Kinnear IPID report."

The Chairperson forwarded the email to the Content Advisor, who responded to Mrs Kinnear to inform her that her letter had been received and indicated that the Committee was addressing the matter. Mrs Kinnear responded to the Chairperson on 30 September.

In October, the Committee went through a lengthy period of specific procedures. It referred the classified documents to Members, who complained that they had problems with how the documents were classified. Six of the ten full-time Members perused the report -- the Chairperson, Mr Seabi, Ms Marekwa, Mr Shembeni, Mr Terblanche and Mr Whitfield. One member, Mr Groenewald, indicated that he was uncomfortable reading the classified document, and did not schedule an appointment to read it.

The Parliamentary Constitutional and Legal Services Division submitted a legal opinion on 1 November, and on 2 November, IPID was requested to explain the classification of the document. On 3 November, the Minister sent a letter to the Chairperson titled "Resubmission and replacement of the IPID Kinnear classification," and the report was now classified.

In the last meeting, the IPID Executive Director indicated that the report was not classified according to the risk specification. The Act allowed the Executive Director to appeal to the Minister to classify the report correctly, which was subsequently correctly done. The report was officially classified to allow the criminal investigation to be done without fear or favour.

She said the Committee would be briefed on the implementation of the IPID recommendations relating to the Kinnear investigation, and the findings of the report would not be discussed because the contents remained top secret.

She asked if the Members agreed that this was the correct timeline of events and the Members agreed.

Briefing by Independent Police Investigative Directorate (IPID)

Ms Dikeledi Ntlatseng, Executive Director, IPID, said page four in the physical presentation needed to be moved to the last page, as it was part of the recommendations and there was a mistake made in organising the pages. She handed over to the Chief Investigator of the murder case.

The Chairperson cautioned Members against disclosing any information in the report during the discussion session because it was a classified document. If they did, they would be breaching their Parliamentary privileges and would be in contempt of the law.

Mr A Whitfield (DA) said the report was only recently classified, and the information in the report had already circulated in the public domain for a long time. If a Member of the Committee repeated any information that was already in the public domain prior to the classification of the document, what would be the implications?

Mr O Terblanche (DA) was concerned that the Committee was hamstrung by the fact that it was holding the meeting to discuss the issues that it was not allowed discuss, and this did not make sense to him.

Mr P Groenewald (FF+) said he had not read the report because he had anticipated the Committee would be in this situation, and made a disclaimer that anything that he may reveal during the meeting would have been read from the newspapers or heard from elsewhere.

Rev K Meshoe (ACDP) wanted to know the reason for the classification of the document.

The Chairperson said the decision was taken in last week’s Committee meeting.

Mr A Seabi (ANC) said the Committee should take what the Chairperson said as a caution, and the presentation must proceed.

The Chairperson said the decision was taken in last week’s meeting, and the report was subsequently classified. The matter would not be discussed further until she received legal advice.

Mr Terblanche said he was confused about what the purpose of the meeting was, because the Members could not comment on the recommendations of the report.

The Chairperson said the Committee was allowed to discuss the recommendations because they did not impact the investigation.

Mr Mario September, Deputy Provincial Head Investigator: Western Cape, IPID, presented the executive summary presentation on the Kinnear murder investigation. He said a letter of complaint was received on 3 December 2020 from the former SAPS National Commissioner, General Khehla Sitole. The letter of complaint was accompanied by an internal investigation report, which was classified as "secret."

In addition to the letter, further documentation classified as secret was subsequently received from the Minister of Police on 26 April 2021, for investigation in line with section 28 (1) (h) of the IPID Act 1 of 2011.

A task team was appointed on 21 January 2021 to investigate the matter. The completed investigation report was submitted to the office of the National Director of Public Prosecutions (NDPP), the National Commissioner of Police and the Minister of Police for consideration and implementation. It was standard practice that information related to any investigation conducted by the directorate could not be disclosed to any parties other than those mentioned in Sections 7 and 33 (2) of the IPID Act.

The investigation terms of reference considered possible criminal conduct of defeating or obstructing the course of justice involving the death of the late Lt Col Kinnear, as well as failure or delays by senior members of SAPS to accurately assess and implement threats and risk assessment and to ensure the implementation of personal protection on the life of Lt Col Kinnear during the period 3 September 2020 to 18 September 2020. It also considered an alleged parallel murder investigation by Crime Intelligence head office involving the killing of the late Lt Col Kinnear, and the suspension and abandonment of a threat and risk assessment during 2019 on the life of the late Lt Col Kinnear.

The findings made against SAPS members included the following:

• The former commander of the late Lt Col Kinnear failed to arrange for his and his immediate family's protection from 3 September 2020 to 18 September 2020 as per his responsibilities. He also failed to exercise his duties and responsibilities as per paragraph 11 of the SAPS Security Policy 3 of 2019.
• The inaction of the commander constituted misconduct as per SAPS regulations, and was a serious dereliction of his duty as a police officer.
• Unfortunately, the commander retired at the end of November 2021, before any recommendations could be implemented.
• IPID had recommended that SAPS institute departmental steps in terms of the SAPS Regulation 4 (x)  against the former Staff Officer of the Western Cape Provincial Commissioner for dereliction of duties.
• Failure by the captain to inform the former Provincial Commissioner about the DPCI report on the illegal monitoring of the late Lt Col Kinnear's cell phone had compromised his life.
• The former captain and commander of the Operations Room at the anti-gang unit (AGU) had failed to act on an anonymous tip-off of the threat on the life of the late Lt Col Kinnear.

IPID had recommended to the DPCI that two DPCI members be criminally charged for defeating the ends of justice, and other possible charges concerning the Electronic Communication Transactions Act (ECTA) 25 of 2002. The National Head of the DPCI responded to recommendations against the DPCI members. Based on his response, IPID was in the process of taking the matter on legal review and the outcome of the review would be communicated to the National Commissioner.

IPID also recommended to the National Commissioner of the SAPS to implement the recommendations of the internal disciplinary proceedings on the seven SAPS members, in terms of Sec 30 of the IPID Act. The seven members should also be criminally charged with defeating the course of justice. The IPID strongly recommended a review of the mandate of the Western Cape AGU and its functionality.

The Chairperson asked if the National Commissioner of the SAPS had anything to add.

Gen. Fannie Masemola, National Commissioner, SAPS, said he did not recall receiving a letter from IPID.

Mr Cassel Mathale, Deputy Minister of Police, said the IPID Executive Director had an issue that she needed to comment on.

Ms Ntlatseng said they were investigating the culpable homicide case that Mrs Kinnear had opened with the IPID.

Mr Groenewald wanted to confirm if the National Commissioner had said he had not received any written letters from IPID, when IPID said they had sent a communication to his office.

Gen. Masemola said he was referring to the letter that was said to have been sent to him on 8 July, and he did not recall receiving it and would have to double-check.

The Chairperson asked the Deputy Minister, the National Commissioner, and the Executive Director of IPID to discuss what could have happened to the letter during the tea break, because there seemed to have been a disagreement between them.

Mr Groenewald said the Commissioner must be asked to contact his office to find out, because it was important to find out before the close of the meeting.

The Chairperson asked them to resolve the matter during the tea break and provide a record of the letter to her if it was available. She said the next presentation would be from the DPCI. The DPCI judge had been appointed, and she asked the Minister for the Details.

Mr Bheki Cele, Minister of Police, read the letter of appointment of the DPCI Judge, signed by the Minister on 1 November after the processes had been followed. The process included the Minister writing to the Minister of Justice, the Minister of Justice writing to the Chief Justice, and the Chief Justice writing back to the Minister of Justice, who would inform the Minister of Police to appoint the Judge. He said after he wrote to the Judge, appointing her to the position, he had received a letter from her thanking him for the offer of the position, and advising that she could not take up the position. 

Briefing by Directorate for Priority Crime Investigation

Lt Gen (Adv/Dr) Godfrey Lebeya, National Head, DPCI, said the DPCI received recommendations regarding the late  Lt Col Kinnear directly from IPID on 15 October, and had responded by 26 October, which was within eight working days. The DPCI, which was legislatively insulated, had attended to the recommendations and exercised its discretion in terms of the SAPS Discipline Regulations, 2016. As for the criminal case against the gang that committed the murder, the case against the group had been postponed to 2 December 2022.

Briefing by South African Police Service

Major General Josias Lekalakala, Head: Crime Intelligence, SAPS, presented the status of the IPID recommendations into the murder of the late Lt Col Kinnear and the progress regarding the Anti-Gang Unit, following the recent findings of Judge Daniel Thulare. Pursuant to the complaint received from the former National Commissioner of the SAPS and the Minister of Police into the circumstances that led to the murder of the late Lt Col Kinnear, IPID had initiated an investigation that had culminated in a report with findings and recommendations.

The preliminary IPID report in this regard was submitted to the SAPS in October 2021 for the initiation of disciplinary proceedings in accordance with section 30(a) of IPID Act. Section 30(a) of IPID Act provides that the National Commissioner or Provincial Commissioner to whom the recommendation had been referred, must initiate disciplinary proceedings within 30 days of receipt of the recommendation. The IPID recommendation had implicated seven members of SAPS attached to the Provincial Commissioner: Western Cape and Division: Crime Intelligence, and two members of the DPCI, which would be dealt with in a separate report.

A task team comprising three members under the leadership of a major general was appointed to analyse the outcome of the departmental investigation reports, in consultation with the IPID investigation team, before submitting a final report to the management. The team was directed to complete the investigation and submit a report before 25 November 2022.

On progress regarding the SAPS AGU following the recent finding of Judge Daniel Thulare, he said the SAPS had studied the judgment delivered by Judge Thulare of the Western Cape Division of the High Court of South Africa in the matter of Adams and Another v The State (case number A135/2022 and case number CC47/2021). The SAPS viewed the allegations made in the judgment as serious and concerning. Any member who made him or herself guilty of transgressing the law exposed themselves to investigation, criminal prosecution, and/or disciplinary proceedings if this was warranted on the facts of the matter. A senior official at the level of a lieutenant general had been appointed to investigate the matter.

Gen. Masemola said after receiving the preliminary IPID report, they had initiated an investigation as required by appointing a brigadier, who had done the departmental investigation and had concluded that no evidence suggested a prima facie case against the implicated members. This was the reason for the appointment of the three-member task team under the leadership of a major general to analyse the outcome of the departmental investigation reports, in consultation with IPID.

He said there had been no response to the Executive Director of IPID in terms of section 30, and that could be attributed to the change of command between the Deputy Directors-General (DDGs), as one had retired on 30 June and the appointment of another on 1 July. The failure to respond to the communication from IPID was not because of arrogance from the SAPS, but had been an honest mistake. He reassured the Committee that the work would continue to be done, and he would ensure better communication between the SAPS and IPID.

The Chairperson said the Minister, Deputy Minister, National Commissioner, and the Executive Director of IPID, would need to meet during the tea break to sort out their communication issues.

Discussion

Mr Terblanche asked how many criminal prosecutions were outstanding. Regarding disciplinary issues, he said there was a perception that the police were reluctant to implement recommendations by IPID for disciplinary issues. There had been a court judgment about the rogue unit, and he had heard that a team was appointed to investigate the issue. What more needed to be investigated, because a court judgment had already been issued? He was concerned that the investigations were always ongoing and never concluded, and there were no consequence management actions implemented and no finalisation of investigations.

He said the DPCI had received its recommendation and had responded to it within the required time, but he was concerned about some of the senior management being suspected of wrongdoing and yet the same people were investigating the issue. He was frustrated that he could not speak on the issues pertaining to the classified report, and had to limit his questions. He said there was obviously a lack of cooperation between the Department and the investigative wings.

Mr Seabi wanted to know which report would take precedence if there was a dispute between the three investigative bodies. Was it not a duplication and waste of state resources to have these investigative bodies conducting their own investigations on the same issues? Was the same emphasis afforded to other cases of members of the Police Force who were also murdered? Was Mr Kinnear’s family briefed regularly on the progress and merits of the case? What was the implication for the family now that the report was classified as top secret? What were the implications of the Western Cape Court ruling that spoke to the infiltration of the police force by gangs and drug dealers? Was the ruling going to be investigated, or was the actual infiltration going to be investigated?

In the report, several people were said to be implicated in the IPID report, and some of them were said to have resigned. What were the implications of this? Could they still be investigated, even though they had resigned, or was the matter closed? Why was the legal review referred to the National Commissioner and not to the DPCI? What were the implications of continued investigations when a final report had already been submitted? Was it possible that the continued investigations could produce new and contrary findings, and what would happen in that situation?

The National Commissioner had said there might have been some problems during the change of command, which was difficult to accept because the Department knew that the person would be leaving at the end of the month and who it would appoint, so there should have been a handover process undertaken and all the communications should have been handed over.

Rev Meshoe wanted to know if the failure of a National Commissioner to cooperate with IPID recommendations was not an obstruction of justice, and whether the reasons for the previous National Commissioner’s failure to cooperate were being investigated. He did not think it was fair that members of the Department who were charged with allegations could resign, and then the investigations on them would stop. He wanted to know if the charges were no longer pursued after their resignations, and asked if perhaps this was the reason for the massive exodus of members from the police force.

Mr H Shembeni (EFF) asked how the remaining members were going to be charged if the commander of the late Lt Col Kinnear had also resigned. The Department had a problem of people resigning when they were charged. This was also happening in municipalities across the country, where people would change positions and their cases would be closed. People must face the consequences of their actions, regardless of their resignations. The leaders needed to face the consequences too, because it seemed that the subordinates were the ones who were left to take the fall for them.

He said it was important for the SAPS to take charge where necessary, because there would be another problem of someone being shot and killed, such as the whistle-blower who was reported as being chased by a black car in the Free State. That person needed the protection of the SAPS. He wanted to know how long it took to implement recommendations, because the recommendations in the case of Lt Col Kinnear had not been implemented since 2020. The processes must be sped up, not only for the sake of the investigations, but also for the safety of whistle-blowers.

Mr Groenewald said it was disturbing to sit in the Committee and hear that a communication that was sent may not have been received, or there was confusion around it, because it sent a bad message about the SAPS and IPID. He said Lt Col Kinnear had been under protection because he was investigating sensitive cases, the protection was withdrawn and then he was killed. There was no answer as to why the protection had been withdrawn. Why was the protection withdrawn? The monitoring of his cell phone and the threat to his life were known to his superior, but the protection was still withdrawn.

He said a case was as good as the investigation, and it was very easy to investigate a case in such a manner when one knew the National Prosecuting Authority (NPA) would not follow up. He also wanted to know why the case had been classified as top secret, and added that all the incidents created the impression that there was a cover-up. The Committee asked such questions and demanded reports on such issues because it wanted to protect the integrity of the service, and so that the public could trust that the investigations would be thorough. He said if all those questions were not answered, the case would be to the shame of the investigative bodies of the country.

Mr Whitfield said, on a lighter note, that the information Mr Groenewald had disclosed was from the Daily Maverick.

The Chairperson said although this was on a lighter note, it was a very serious matter. When the Daily Maverick article was published, the report was not classified as top secret and no one had the right to take the Daily Maverick to court. It was unfortunate that Mrs Kinnear had to see the information from the media.

Mr Whitfield said the matter of the classification was still a concern for the Committee, and it still had further investigation to do regarding the classification. The Committee had been lied to in subsequent meetings and been told that the document was classified top secret, and the Members had asked who had classified it, when and why. The response was that the report had been classified incorrectly, which meant it was not classified -- and then the Committee had been told it was classified again.

The whole process was about uncovering the truth, and the Committee needed to investigate why Parliament was not given the truth regarding the nature of the classification from the outset. The preliminary report considered last year was not classified, even though the information from SAPS was classified and the IPID report was not, which explained why the media house was not taken to court.

In the last Committee meeting, the Committee had been told that Mr Mario September had received death threats and even an attempt on his life and his family. Had he and any other investigators in IPID been provided with any protection during the course of the investigation prior or after the threat? IPID investigators were working under very difficult circumstances and conditions, with limited to no cooperation from the SAPS, whose members were implicated in the matter.

The former National Police Commissioner had admitted in Parliament that the disciplinary processes were inadequate and needed to be reviewed in line with the amendment of the IPID Act to ensure that there would not be a challenge of duplication, and of IPID having blunt teeth to do its work without fear or favour and without interference or contribution. There was sufficient evidence of non-compliance and non-enforcement of IPID recommendations in the SAPS, and their relationship was not one that was in the interest of both parties.

He requested the Committee acknowledge the critically important role it played now, given everything it knew and had discovered in the last three years in the Sixth Parliament about areas within IPID, and predominantly the concerns about the SAPS’s non-compliance with recommendations, or contradicting the recommendations, of IPID. The Committee was tasked with providing real and meaningful independence to the police and the investigative directorate.

Once the Amendment Bill was adopted, the Committee could not point fingers at SAPS and IPID, if they failed to do their duty. The Committee must take its job seriously, not only in the case of Lt Col Kinnear, but also all other police officers who were killed, or any member of the public who was assaulted by the police.

He said the former National Police Commissioner had raised the compliance issue because he was required to do so by section 29 (a) of the IPID Act. He was required to bring to the attention of the Executive Director of IPID any matters referred to in section 28 1(a to f). The only effect in that section related to the Lt Col Kinnear matter was under sub-section B, which was death as a result of police action, which demonstrated that from the outset, the former National Police Commissioner was aware that police action or negligence was involved in the murder of Lt Col Kinnear.

The SAPS presentation on page 7 stated that “On 2022-06-13, the IPID final report which confirmed the findings of preliminary report was received by SAPS for consideration with additional two members.” On slide 7, it also stated that “Upon receipt of the recommendation of the IPID preliminary report, a functionary at the level of Brigadier was appointed on 2021-11-29 to investigate the allegations of misconduct in terms of SAPS Discipline Regulations, 2016 and subsequently IPID was informed of the initiation of the disciplinary proceedings and the appointment of the investigating officer.”

There was an omission of the date upon which SAPS had complied with the IPID Act section 30 (a). He still wanted to know what date the letter from the IPID was received by the National Police Commissioner, even though he had confirmed that he had received it, and what date they had replied to it, because it spoke directly to the non-cooperation. Given the seriousness of the matter, the implication of police officers in gangs, and the conclusions made by Judge Thulare in the Western Cape High Court, there was reasonable suspicion that there had been a cover-up.

On IPID slide 12, it stated that SAPS was informed on 26 January 2022 about the non-cooperation by the former National Commissioner, as well as the action the IPID had taken in terms of section 33 (3) of the Act. IPID had also recommended that the Minister of Police consider referring the findings against the former National Commissioner to the President, to enquire about his fitness to hold the office. An inquiry into his fitness to hold office had been initiated, which was welcomed, but it was never concluded, and the entire process was concluded with a golden handshake, and the Presidency never brought forward its details. If this was one of the reasons the former National Police Commissioner was retired and not fired, it must be ascertained whether the President was also responsible for not cooperating with the IPID recommendations.

He said the referral to the NPA and the outcome were disappointing, and Members of the Committee were not legal experts. Investigations could be manipulated to achieve predetermined outcomes and the judgment from Judge Thulare, which implicated not only SAPS, but also the Public Prosecutor, needed to be considered. It was incredibly convenient that the Public Prosecutor had declined to prosecute in a matter that involved gangs and the police in the Western Cape.

Given the information at the Committee’s disposal and the understanding that Lt Col Kinnear was not investigating a minor case, but a high level corruption case in the SAPS related to the firearms registry, there was definitely a high level conspiracy to protect those involved in his assassination. He believed the investigation was essential to save the SAPS from the corrupt and criminal elements within it.

The Chairperson said after consideration of the matter, the Director of Public Prosecutions (DPP) in the Western Cape had concluded in June 2022 that there was no evidence of defeating the ends of justice by any of the officials mentioned in the document. The Western Cape DPP had also declined the institution of criminal proceedings against anyone. Following the IPID report to Parliament, the Committee requested IPID to ask the national DPP to review the decision of the Western Cape DPP.

The Chairperson had written to the national DPP enquiring about the merits of slide 12 of the IPID presentation. The national DPP had informed her that if the Western Cape Provincial DPP had failed to prosecute, IPID had the right to appeal to the national DPP to review the decision. The Minister and the National Police Commissioner must submit a progress report on the findings of Judge Thulare, as well as the findings on the Central Firearms Registry, to the Committee.

There were still outstanding matters relating to the former National Police Commissioner and non-cooperation with IPID, and the Committee needed responses on the matter. She said if the Committee did not receive a report on the matter of the Free State, then it would potentially face a similar investigation to that involving the murder of Lt Col Kinnear, because the policewoman had been crying out for help for a very long time. How was it okay to send the same police to protect the policewoman who accused them of corruption? Why was the protection for Lt Col Kinnear withdrawn and who was responsible for his protection? Could the Committee be assured that Mrs Kinnear could be protected if she requested protection from the police?

Response by DPCI

Lt Gen Lebeya said the disciplinary process and the Police Act section 17 DA-19 directed that when a person in the DPCI contravened the disciplinary code, the National Head must deal with them and conclude the matter within the DPCI. On the question of precedence between the investigative bodies, he said it helped to consider what was being dealt with at the moment -- for example, looking at recommendations, which was a suggestion or proposal for a course of action put forward by an authoritative body.

Recommendations were different to the remedial actions which were included in the law of the Public Protector. The DPCI dealt with the matters as recommendations, which was the reason for the disputes and differences between the recommender and the recommended. For example, IPID may recommend a certain action to the NPA, and the NPA may react differently.  

When the DPCI decided on disciplinary matters, it did not affect criminal matters, but the disciplinary issues affected employees, and when one stopped being an employee of a specific entity, the regulations no longer bound them. In criminal cases, the individuals were still pursued, regardless of their resignation or contract termination. If a person resigned while the disciplinary process was in progress, their resignation certificate would reflect that this was a dishonourable discharge.

Response by IPID

Ms Ntlatseng said a case was open against the former National Police Commissioner and was under investigation by IPID. Regarding the issue of duplication or waste of state resources, she said this had always been their bone of contention, because IPID was not part of disciplinary processes and not invited to participate in the processes. IPID investigated issues, and then the SAPS reinvestigated the same issues, which was indeed a waste of resources and this needed to be considered in the IPID Amendment Bill. She said they were putting the same effort into all other cases related to police murders. Mrs Kinnear had been briefed by IPID twice, but the details were classified.

On the issue of protection for Mr September and other IPID investigators, she said IPID had a protection policy where all investigators were protected. In the case of high profile investigations, they assigned a high tactical response team through their service provider to protect their members. They would take the matter for legal review and were waiting for the certificate to allow them to do so without encountering barriers.

Mr September said the former National Police Commissioner not complying with IPID was an obstruction of justice, and section 33 of the IPID Act dealt with it in the same manner. He said the rogue unit had been identified in 2018 by the late Lt Col Kinnear, and IPID had discovered that it was still the same even after his death. Sometimes cases were investigated with a view to be declined, but their case was not investigated with that intention as it was comprehensive and the evidence was listed. What was decided by the NPA was unfortunate, and IPID believed that they had erred, which was why they would take the matter under legal review.

He said he had been provided protection after the incident, and was grateful to the IPID Executive Director for that. Further assessments were done and the threat did not exist anymore, and if there were to be any other threat, the Department would deal with it.

Section 30 of the IPID Act had three subdivisions (a, b, and c). When a recommendation was referred in terms of section 30 (a), the Police Commissioner or the Provincial Commissioner would have to initiate disciplinary procedures on the recommendations.

He said he had always kept open communications with Mrs Kinnear since the initiation of the investigation, and the team formally briefed her with the Executive Director on two occasions -- when the preliminary report was released, and also after the final report, but between those periods, there was constant communication.

Mr Moribishane Ramafoko, Acting Chief Director: Legal Services, IPID, said the directorate's disciplinary recommendations were informed by the original legislation act of Parliament, whereas the SAPS disciplinary recommendations were a subordinate piece of legislation, and original legislation could not be overridden using subordinate legislation. IPID’s provisions and recommendations should take precedence in terms of the IPID Act. He said a reflection needed to be done on the two separate processes, because they were a waste of time and an abuse of resources and certain authorities, because the two authorities would not move the country forward working in the way they currently did in disciplinary processes.

On the implication of the high court judgment on the investigation by SAPS, he understood what SAPS was trying to do because a court order could not be used to uplift certain comments and views by the Judge in a manner that would change the verdict in another court. Perhaps there was a need to consider all the evidence that had been presented and refocus it for purposes of identifying the elements of a crime that might have been committed, and ensuring that they complied with the criminal panel so that a case could be prosecuted.

Response by National Police Commissioner

Gen. Masemola said the SAPS disciplinary investigations were not done to question the IPID recommendations, and were framed in the form of a process that needed to be followed when a member committed misconduct. Regarding the judgment, he said SAPS also did not intend to undermine the IPID, but wanted to investigate further how deep the issues were, which would allow them to determine the actions to undertake. This had been the reason for the appointment of the three-member task team under the leadership of a major general to analyse the outcome of the departmental investigation reports, in consultation with IPID. The task team was expected to report back by 26 November, and a general had been appointed to look at the judgment, and would also deliver a report in the same month.

Regarding the commanders who retired, he said the disciplinary processes only applied to those members who were still part of the Department, and did not apply to them once they were no longer part of it. The criminal cases were dealt with as any criminal case, and would be pursued by the relevant investigative authorities. Regarding when SAPS had initiated the internal investigation, he said they had received the initial report in October 2021, and the brigadier had been appointed on 29 November 2021. The investigation commenced on the same day.

Lt Gen Thembisile Patekile, Provincial Commissioner: Western Cape Police, said the protection of the late Lt Col Kinnear had been withdrawn by the retired Maj Gen Andre Lincoln after some consideration that would need the proper details, which were available on record. According to the same records, the protection to the Kinnear family was given in good faith after the murder of Lt Col Kinnear, based on no threat risk assessment. It continued until his arrival to his position, when the Provincial Crime Intelligence Unit requested a threat assessment, and it was found that no threat risk assessment had been done. The family disputed that, and the police requested the Divisional Commissioner of Crime Intelligence to do another threat risk assessment, which was done twice with the same result -- no threat risk assessment was found.

During the same period, there were known gang leaders who were arrested. The police had decided to continue protecting the Kinnear family so that another threat risk assessment could be done to ascertain whether there was any threat risk. It came to the same conclusion from the threat independent leaders, that there was no threat risk assessment.

The police were using 12 members of the 144 AGU members dedicated to guarding the Kinnear family every day, and they were reporting to the Portfolio Committee monthly until such a time that they received a letter from the Chairperson saying they were not reporting. Subsequent to that, the Kinnear family had urgently gone to court to get an interdict requiring protection. The police had opposed the interdict in court and the presiding judge removed the interdict on 5 September 2022.

As things stood, the police did not have a threat risk assessment that confirmed any threat to the Kinnear family. He had even gone further, to say the SAPS crime intelligence was not to be trusted. He had asked other colleagues from the Crime Intelligence fraternity to do another threat assessment with the family and had received the same results -- that there was no threat risk to the Kinnear family.

Deputy Minister’s response

Deputy Minister Mathale read a paragraph from Judge Thulare’s judgment, because he felt there was an insinuation that gangs controlled the entire SAPS in the Western Cape. Paragraph 70 of the judgment read as follows:

“The evidence suggests not only a capture of some lower ranking officers in the SAPS. The evidence suggests that the senior management of SAPS in the Province had been penetrated to the extent that the 28 gang had access to the table where the Provincial Commissioner of SAPS in the Western Cape sits with his senior managers and leads them in the study of crime development, crime prevention strategies and decides on tactics and approaches to the safety and security of inhabitants in the Western Cape. This includes the penetration of, and access to the sanctity of, specialised units like the Anti-Gang Unit and Crime Intelligence to the Provincial Commissioner. The evidence shows that the 28 gang and the mobsters in particular were breathing heavily on the necks of public prosecutors who guide the investigation of organised crime and institute criminal proceedings against its members. Such prosecutors were under constant and permanent threat to their lives and that of their close family. The evidence also shows that the mobsters have now moved a gear upwards and were interfering with the decorum of the courts and the independence of Judiciary Officers and testing the Judiciary Oath of Office, especially the words “without fear.”

The Deputy Minister said he had read this because it explained the assessment and conclusion of the judgment, showing that some members of SAPS and the judiciary and prosecution were indebted to criminals, but not the entire system. If it were the entire system, such a judgment would not have existed, because the Judge who made it was part of the judiciary, which showed that not everyone in the system was captured. This was also the case in the SAPS. and the Anti-Gang Unit. Some elements were involved in criminal activities within the SAPS, and when they were found, the SAPS took action against them.

He cautioned the Committee against using sweeping statements that suggested that the entire SAPS was a criminal organisation because they always acted against those members of the SAPS who committed crime, and would continue to do so for as long as some were committing crime. At the parliamentary level, when Members spoke in a manner that they were about the SAPS in general and not about the case they were dealing with in the meeting, it sent a bad picture to the public.

He was generally happy with the responses, and noted that there was work that the SAPS needed to do to strengthen its relationship with IPID and to ensure that the professionalisation of the police became a reality.

The Chairperson said it was important that the Deputy Minister had noted that not every member of SAPS was corrupt, and said for the SAPS name to be cleared and for its integrity to be protected, they must get to the bottom of Judge Thulare’s pronouncement. As long as there was no consequence management, the perception of serious problems within the SAPS Western Cape senior management would continue. It was important for the whole country that the SAPS maintained its integrity, because the entire country would be in serious trouble if the name was tarnished.

She commended Lt Gen Patekile for the work that he had done and noted that he always answered the call from Committee Members with urgency. The Committee had to accept that the Provincial Crime Intelligence had investigated and found no threat risk assessment. The Divisional Head of Crime Intelligence investigated and also found no threat risk assessment. Mrs Kinnear had gone to court and was opposed by the SAPS, and the judge had removed the urgency from the court roll, and until a judgment was made, the Committee could not guide on the matter. Lt Gen Patekile had informed the Committee that there was also an independent assessment, and again, no threat risk assessment was found.

Mrs Kinnear tried to comment, but the Chairperson told her that she, unfortunately, was not allowed to participate in the meeting and she would have to address the Chairperson in writing with her comments. She assured Mrs Kinnear that this was not the last engagement the Committee would have with her, and her response would be circulated in an open document to all the Members of the Committee, including the Minister, SAPS, and IPID. Mrs Kinnear had a right to respond in writing, and whatever communication she sent would be made public.

Further discussion

The Chairperson said there was one outstanding matter, which was the Free State issue, and asked the Minister not to respond to it. Most questions had been responded to in the meeting, and this was not the last opportunity for the public and Committee to engage on the Free State matter.

Mr Seabi said legal advice was needed on the IPID recommendations and how they could be taken as proposals, because it was unclear and this needed to be clarified before the conclusion of the IPID Amendment Bill.

Ms B Marekwa (ANC) commended all the policemen and women who still continued to uphold discipline within the SAPS and ensured that they did what was required of them without putting the service into disrepute. South Africa needed both the SAPS and IPID, as well as the DPCI, to work together to ensure the tasks given to them were executed expertly to ensure good results at the end, because without those components working together, there would be no peace in the country. The review of the Western Cape Anti-Gang Unit and its functionality was very important, to ensure that the young people who wanted to form part of the police in the future remained inspired. All the places within the AGU that were tainted needed to be fixed so that a new generation could be welcomed into a clean running Anti-Gang Unit.

She called to the National Police Commissioner to work with the Provincial Commissioner to look into the gang infiltration within the Western Cape SAPS, because it was undermining the SAPS and putting its name into disrepute. The SAPS could no longer tolerate the lack of follow-up on cases. She asked if the Members of SAPS who retired were on full-time or early retirement.

Ms Z Majozi (IFP) said the Committee would need to sit and look at the policies concerning both IPID and the SAPS and determine if there were no duplications and find a balance between the two. The SAPS must be able to bring hope to the communities as it currently had no positive stories to tell, because people did not trust the police to help them in times of need. The people needed to see the police acting against those who committed crime so that they could have faith in the justice system of the country.

Gen Masemola said the former commander of the Anti-Gang Unit had gone on pension, and another member as well, so they were on full-time retirement.

Minister’s response and concluding remarks

Minister Cele commented that he had signed off about 302 retired police members in one month.

He stood by his word that the people who murdered Lt Col Kinnear needed to be found so they could face the consequences for their actions. He thanked the Deputy Minister for reading the judgment of Judge Thulare, and noted that in the past few weeks, the SAPS had suffered a lot from the murder of Bokgabo Poo at the hands of someone who was out on bail for having raped another nine-year-old. This had happened around the same time as the story of another missing child, Omphile Chauke, that had not been reported. Nobody had picked up the biggest thank you to the detective and general at the Midrand Station for finding Omphile Chauke alive. There were good stories about the work of the SAPS, but they were just not told. The sweeping statements about the police needed to end, and the good police needed to be thanked publicly.

He said the narrative that the police in the Western Cape was bad was not entirely true, because it was not quite as Judge Thulare had stated in his judgment. The judgment had not mentioned only the police, but also the judiciary and the prosecution, yet the fingers were pointed only at the police. The Head of Correctional Services had requested two parole periods, where he had paroled 14 000 inmates and in the second period, he had paroled 19 000 inmates. Prisons were currently 33% overpopulated and those people were not marching to prison by themselves -- the police arrested them. More than 7 000 of those inmates were on life imprisonment based on gender-based violence and femicide (GBVF). For a prisoner to get life imprisonment, the police had to do a good job of investigating to prove beyond reasonable doubt that the perpetrators were guilty.

There were bad people across society, not just in the police departments. There were pregnant children at schools who were impregnated by the people who were supposed to protect them. 11 high profile pastors had also been identified as criminals in the country, including Sheperd Bushiri, Timothy Omotoso, etc. Crime was happening across all elements of society. He called on the public to bash the SAPS when it came to the bad police, but also to remember that some of them were good.

He thanked the Members for their comments and agreed that the follow-ups on cases needed to be done thoroughly so that people could face the consequences of their actions. He was concerned about the SAPS, because receiving 302 retirements in one month of people between the ages of 55 and above meant that it was losing the most experienced people in the force, who were needed for purposes of succession planning. He said the number of serving police were declining by the year, and the existing members were overstretched on duty. Policy and budget were part of the reasons for that.

Chairperson’s concluding remarks

The Chairperson said the Portfolio Committee's duty was to support the Ministers, the SAPS, IPID, the National Commissioner, the DPCI and civilians, but the confidence in SAPS needed to be restored. When the reputation of SAPS was tarnished, it meant that the reputation of the Portfolio Committee was also tarnished because they all failed as a collective. To re-establish the integrity of the SAPS, there must be cooperation between the Portfolio Committee, the Minister, Deputy Minister, the National Commissioner, SAPS, IPID, and the DPCI.

In the Committee’s BRRR report, there were many instances where the Committee had voted as a collective, united in the work of the Minister and Deputy Minister. The Members may be harsh, but they all had a common objective and goal to have peace, security and comfort in their national democratic revolution. The Committee recognised the good work that the SAPS did, but the confidence in the SAPS still needed to be rebuilt in society because if that could be achieved, confidence in the Committee and in Parliament could be achieved. If Mrs Kinnear could not have confidence in SAPS, the Chairperson and the entire Portfolio Committee, it would mean they had not only failed her, but their entire office and the public.

The Committee had noticed the Minister's work in the Kinnear case, as he was dedicated to getting to the bottom of the issue. The Committee was also committed to the issue, as it had always included it in its agenda, asked difficult questions, and was always transparent. “Lt Colonel Charl Kinnear’s death must not have been in vain,” she said. The matter had been referred to law enforcement agencies and the Committee had confidence in those agencies that they would solve the case.

She said the IPID Act needed to be discussed further, and the Committee would deal with the Amendment Bill on Friday in a virtual meeting.

The meeting was adjourned.