Criminal Law (Forensic Procedure) Amendment Bill: Introduction by CSPS; Consideration of underspending by SAPS, with Minister and Deputy Minister

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Police

16 February 2022
Chairperson: Mr A Seabi (ANC) (Acting)
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Meeting Summary

Video

In a virtual meeting, the Committee was briefed on the Criminal Law (Forensic Procedures) Amendment Bill [B25-2021]; and by the South African Police Services (the SAPS) on its underspending.

Members heard that the Criminal Law (Forensic Procedures) Amendment Act, 2013 (Act No. 37 of 2013) (“Act”) provides for among other provisions, the taking of buccal samples from all persons who have been convicted of a sentence of imprisonment in respect of any offence listed in Schedule 8 of the Criminal Procedure Act, 1977, within a period of two years from the date of commencement of the Act. The Act commenced on 27 January 2015 and the period of two years determined in the Act expired on 26 January 2017. The police service was not able to complete the process of taking of buccal samples from all convicted Schedule 8 offenders within the period of two years provided for in the Act. This failure resulted in a large number of persons convicted and sentenced for imprisonment in respect of Schedule 8 offences, upon having served their sentences to be released without DNA samples having been taken from them.

This led to a large number of persons having served their sentences and being released without DNA samples having been taken from them. The Bill – the emendation of the Criminal Law (Forensic Procedures) Act - was aimed at ensuring that DNA samples could be taken from all persons convicted under Schedule 8 offences. Members heard that police encountered a noteworthy obstacle as in the Offenders refusing to provide buccal samples. The Bill proposed to address this obstacle by making it mandatory and including the use of “minimum force” when and where necessary.

Member expressed concern about how “minimum force” would be defined and implemented. “minimum force” was a broad term the understanding of which may differ from person to person. Members asked how does one define ‘minimum force and where does one draw the line; what would happen if a person had his/her buccal sample taken upon arrest but would later be acquitted and found not guilty;. What would happen to those samples if they are acquitted; At what stage would those samples be destroyed; how would one know that those samples were destroyed and what the total number of Schedule 8 convicted offenders were for each year and how many were sampled.

Members were equally concerned about the extent of the backlog of un-sampled convicted Schedule 8 offenders and wanted to know what the implications were for the forensics division. The Committee wanted to know who was going to be held accountable and what consequence management measures would be implemented. The Minister spoke to the concerns of “minimum force” saying that although the Bill did not have an enforcement element within it, implementation would be civilized and humane. A team of police persons would be trained to do this. The SAPS Legal Services said that the National Commissioner could make a National Instruction to specify how ‘minimum force’ should be applied.

The Minister said that the number of un-sampled convicted Schedule 8 Offenders was not available at hand, but this number will be found and forwarded to the Committee. The SAPS will compile a report and submit it with specific detail on the consequent management measures against those who had failed to utilise and monitor the taking of buccal samples. Members were informed that the most concerned person was the President who did emphasise the point ‘that the measure of “minimum” will have to be found and be measurable’.

The Committee was briefed on the underspending by the SAPS. The Minister acknowledged that it was highly unacceptable that this budget that is under-budgeted is also underutilised by the SAPS, especially in the very sensitive areas such as public policing, detective services and intelligence. The Committee heard that the SAPS were making strides to ensure that it placed other measures in place to circumvent the challenges of underspending.  Members asked whether the SAPS vehicles were ordered from local manufacturers or if they were imported, as this had an impact on job creation in the country.

Members were also curious about the underspending for the canine unit and asked about the procurement of dogs. The SAPS was asked to provide the Committee with the details on the administration of the Trust in terms of the number of bursaries given to children of SAPS members who died on duty. The Committee highlighted the fact that the SAPS vehicles that were meant to be allocated to the rural areas were not allocated, instead vehicles such as Land Cruisers were allocated in urban areas. The Committee was informed that currently the SAPS were at the stage where it was accessing the dogs from the suppliers and are looking forward to finalising this process to procure the dogs. Members were informed that the budget will be utilised before the end of this financial year and that the SAPS would definitely look into the issues raised to improve its expenditure.

Meeting report

Election of Acting Chairperson

Mr A Seabi (ANC) was elected as the Acting Chairperson of the Committee.

The Committee Secretary said that she received apologies from the Minister who will join the meeting later due to another meeting that he had to attend. Apologies were noted from Ms S Patrein (ANC). Rev K Meshoe (ACDP) would leave earlier to join another meeting. Dr P Groenewald (FF+) said that he would also need to leave the meeting earlier to attend another meeting.

Mr O Terblanche (DA) said that the Committee would need to be mindful of the late start that the meeting had. There are a lot of important issues that needed to be discussed and he was concerned that the Members needed to leave early to be in time for the President’s response [to the SONA]. The Minister is not currently in the meeting and Parliament was blamed for not keeping the Executive to account. He recommended that if the Minister cannot be present on a Wednesday then the Committee should find another day to have proper meetings to keep him to account.

Mr Cassel Mathale, Deputy Minister of Police, said that the National Commissioner of Police had also sent his apologies as he is outside of the country. He is not part of the delegation for this meeting, but there is a team who represented him.

The Acting Chairperson noted Dr Irvin Kinnes is no longer the Committee Content Advisor as he is now with the University of Cape Town (UCT), and the Committee wished him well. Ms Nicolette van Zyl-Gous, Committee Researcher, would in the meantime be the acting Content Advisor.

Dr M Basopu (ANC) said that he is new to the Committee. He noted that the National Commissioner is not present in the meeting, and in his view that was the head of this Department. Someone else from the Department should be appointed to lead the delegation and that person should take full responsibility for what is going to be presented.

Farewell to staff member

Mr M Shaik Emam (NFP) acknowledged the role that Dr Kinnes has played in this Committee. He is very humble, always willing to assist and the Members could call him at any time of the day. He is certain that Dr Kinnes will be a great asset to UCT. It is a loss for this Committee but certainly a gain for the university. He thanked Dr Kinnes for the wisdom, intellect and knowledge on matters relating to crime and intelligence that he has shared with the Committee.

Mr A Whitfield (DA) said that it is not often in this environment that one would come across a consummate and talented professional like Dr Kinnes, who is a specialist in his field. The Members are not specialists but mere public representatives who rely on people like Dr Kinnes to provide them with specialist insight and advice, which he has done so incredibly well over the years. It has been a unique privilege to work with someone like Dr Kinnes and it is a tremendous loss to this Committee. He knows that the research team and the entire Committee have learnt a lot from Dr Kinnes. The Committee wished him well on his journey and he is sure that they will follow his career with tremendous interest. He knows that Dr Kinnes will make a success of whatever it is that he does, and continue to add value to this environment which is now more important than ever before in this country. He thanked Dr Kinnes for his professionalism, skills and for adding value to this Committee's work over a number of years.

Dr P Groenewald (FF+) agreed that Dr Kinnes was always humble, willing to assist and provide information. Dr Kinnes is a master in his field, and he knows for a fact that Dr Kinnes was involved in many other police seminars and documents. He is not surprised that UCT would make use of his knowledge. It is possible that future Members of Parliament can pass through his hands in some or other way where they will make a tremendous contribution to enhance the police as public representatives. It is a loss for Parliament but a win for UCT. He wished Dr Kinnes well on his way forward and his future.

Ms Z Majozi (IFP) congratulated Dr Kinnes on his new endeavor. She knows that Dr Kinnes will make the Committee proud at UCT, as it is indeed a loss for the Committee. She prayed that God would be with him, protect him and give him the wisdom that he needed. Dr Kinnes has been a good advisor to the Committee and has always been available to provide information to the Committee; he always possessed respect for all the Members. She thanked Dr Kinnes for what he has done for the Committee.

Mr H Shembeni (EFF) thanked Dr Kinnes. Dr Kinnes was a very humble man to the Committee who was available at any given time. This is a loss to the Committee, and UCT has chosen the right man who will be a valuable asset to them.

Ms N Peacock (ANC) wished Dr Kinnes on his next endeavor. She recalled the very first day as being a Member of Parliament when Dr Kinnes considered the inputs of each and every Committee Member and said that they did great; to her, this was a way of motivating and encouraging the Committee to do more. She had learnt a lot from him based on how he conducted himself, he was hard-working, dedicated to his work and humble. With Dr Kinnes’s experience and expertise, the Committee felt empowered because he was available at any time to assist. Dr Kinnes has left a footprint in this Committee and where ever he went, he should know that he is appreciated and that he played a very committed role in this Committee.

Rev K Meshoe (ACDP) reiterated that it is a great loss that Dr Kinnes is leaving the Committee, but at the same time, it is a great day for UCT. He trusts that as Dr Kinnes was helpful and a great blessing to this Committee, he will be the same at the university. He is indeed a man of integrity, who was easy to work with, approachable and always willing to help. He wished Dr Kinnes great success in all of his future endeavors; may the Lord bless him.

Dr Irvin Kinnes thanked the Members for their kind words. He is very sad to leave the Committee because he is very passionate about the police and policing issues. He appreciates having worked with each and every Committee Member over the years, and he has seen that each Member is really committed to wanting to serve their constituencies and change what policing means to people on the ground, all over the country. He does believe and hope that the Committee will continue to hold the Executive to account because there needs to be a change in the police and policing environment so that there is much more professionalism on the part of the police. He thanked the Members, as he had learnt so much from them. He will still be involved with working on policing issues on the University’s side. He does hope to see all of the Members in time to come, especially when legislation is being processed.

Adoption of Minutes

The Committee considered and adopted the minutes of 08 December 2021.

Briefing on the Introduction of the Criminal Law (Forensic Procedures) Amendment Bill [B25-2021] by the Civilian Secretariat for Police Service

Adv Dawn Bell, Chief Director: Legislation, Civilian Secretariat for Police Service (CSPS), presented the Bill to the Committee.

Background and Introduction

The Criminal Law (Forensic Procedures) Amendment Act, 2013 (Act No. 37 of 2013) (“Act”) provides for among other provisions, the taking of buccal samples from all persons who have been convicted of a sentence of imprisonment in respect of any offence listed in Schedule 8 of the Criminal Procedure Act, 1977, within a period of two years from the date of commencement of the Act. The Act commenced on 27 January 2015 and the period of two years determined in the Act expired on 26 January 2017. The police service was not able to complete the process of taking of buccal samples from all convicted Schedule 8 offenders within the period of two years provided for in the Act.

This failure resulted in a large number of persons convicted and sentenced for imprisonment in respect of Schedule 8 offences, upon having served their sentences to be released without DNA samples having been taken from them.

It became necessary to amend the Act in order to empower authorised members of the police service to take buccal samples from convicted Schedule 8 offenders serving sentences of imprisonment.

A significant obstacle encountered by the police in taking buccal samples from such persons serving sentences was the refusal by such persons to have their buccal samples taken. The Bill proposes to address this obstacle.

Summary of the Bill

The proposed Subsection (7) (a) provides for the taking of buccal samples from any person serving a sentence of imprisonment in respect of any offence listed in Schedule 8 of the Criminal Procedure Act 51 of 1977 – (a) before the release of the person, if the buccal sample had not already been taken upon his or her arrest; (b) before the release of a person either on parole or under correctional supervision by a court.

Clause 2(b) of the Bill: Proposes the insertion after Section 7(7) of the Act. The proposed subsections deal with the enforcement of taking buccal samples.

One of the reasons for the delay in taking buccal samples was that some offenders simply refused to submit to the process; however these provisions make it mandatory. This involves the use of “minimum force” when and where necessary. Subsection 7(C) will clearly explain how the use of “minimum force” is to be administered in the event that such “minimum force” does become necessary.

(see presentation for further detail)

Discussion

Mr Whitfield said that this is a very good day for the Committee, as it has relentlessly pursued this issue since 2019 as well as the previous Committee before it. The Committee would have to take the opportunity to express its extreme dissatisfaction with the Executive, there has been no good reason ever presented to this Committee for the inordinate delay in bringing this Bill to Parliament. It is not a controversial piece of legislation and it is effectively an extension of the existing Act, in order to ensure that justice is brought to bear for the victims of the most heinous crimes in our country. This Bill was drafted approximately five years ago and in the interim period since the transitional period expired in 2017, at least 100 000 convicted Schedule 8 offenders were released on parole without their DNA being taken and uploaded onto the DNA database which is a complete miscarriage of justice.

He thanked the Members of the Committee for their incredible work in applying pressure, and civil society for threatening legal action to get this Bill to Parliament to get this going and close all of the gaps that currently exist. The Minister has previously told Parliament that SAPS has continued taking buccal samples of Schedule 8 offenders since the expiry of the transitional provision, but it is not clear in terms of what legislation SAPS has been doing so. He asked which piece of legislation has empowered the SAPS to continue taking buccal samples from convicted Schedule 8 offenders. If the SAPS has been doing this in the absence of any empowering legislation, then that would be a concern.

For every year since the Act came into operation, he would like to know what the total number of Schedule 8 convicted offenders were for each year and how many were sampled. The Committee needs to know the extent of the backlog of un-sampled convicted Schedule 8 offenders, because the Committee knows that the forensics division is facing enormous challenges which they are slowly and steadily overcoming. The fact remains that there is a backlog of existing DNA analysis of case exhibits, if there is now an increase in the number of samples required to be tested and added to the database, then what are the implications for the forensics division. What is the total backlog for convicted Schedule 8 offenders that still need to be sampled? This will give an idea of how long this project will take because it is not clear whether SAPS is in a position to hit the ground running.

Mr Terblanche said that there was quite a delay in doing this work, which had serious implications; the Executive Authority should indicate who is going to be held accountable and what consequence management will be done. His understanding was that the main cause in the delay of the amendment was the Minister of Police’s aspiration to establish a national population DNA database, he would like confirmation on whether this is the main cause in the delay. He asked whether the police are ready to start with the implementation of Section 2 of the Act because this will add to the current backlog that the forensic unit has on a daily basis.

The Committee does support this legislation but he had a concern that in the future the buccal sample would be taken during the arrest of a person, but at this stage, the person was only a suspect. He questioned if it is the correct procedure to take a buccal sample from a suspect, as the person is not charged or guilty of anything at that stage. He was also concerned about the “minimum force”, as it was nowhere defined in the legislation at the moment. He asked if there were any other avenues to tackle something like this in a more humane and civilised way as he was concerned that this would move in the wrong direction.

Mr Shembeni asked what consequent management measures had been implemented against those detectives who had failed to utilise and monitor the taking of buccal samples. SAPS should indicate whether they anticipated a large portion of convicted Schedule 8 offenders to refuse to submit to a buccal sample being taken. What was the experience during the two-year transitional period? What number of convicted Schedule 8 offenders refused to give a buccal sample?

Rev Meshoe said that in terms of “minimum force”, “minimum” is a broad term. How does one accurately define “minimum”? We have seen some police persons punching people or even slapping people when the person refuses to cooperate. How does one define ‘minimum force’ and where does one draw the line? We have also seen how police kneel on people when they are on the ground. There will be challenges in defining minimum force when the suspect or convicted person refuses to have their buccal sample taken. The understanding of “minimum force” would differ from one person to the other. He asked whether police will be given details on what they can and cannot do in the use of minimal force.

In terms of taking buccal samples from people who were not yet convicted, what would happen to those samples if they are acquitted? At what stage will those samples be destroyed, and how would one know that those samples were destroyed? Will those samples be kept on file with the hope that that person would not commit a crime one day? Will the buccal samples of people who were declared innocent be kept? One would not want their buccal samples to be kept if one had not committed a crime or had not been found guilty.

Minister’s Comments

General Bheki Cele, Minister of Police, referred to the question from Mr Whitfield about SAPS continuing to take buccal samples after the transitional provision. He said that the presentation mentioned that the police were not able to continue with this and a significant challenge was the refusal to have buccal samples taken. He wrote to the Department of Home Affairs requesting that this should be generic for South African standards, similar to how fingerprints are taken. Home Affairs said that they will look into it - but this has not yet been developed - which is why the Committee has seen this as a delay; this will be a very difficult process to win in South Africa. Even with the Bill, convicted Schedule 8 offenders could refuse to have their buccal samples taken because the Bill did not have an enforcement element within it.

On the concerns of “minimum force”, he said that it will be civilised and that the team of police persons would be trained to do this, it will be good to work this way and have everyone comply with having the buccal samples taken. There is a judge that is responsible for matters related to the inmates who would establish what would be allowed as the ‘minimum force’, at the end of the day the sample must be taken. This will be done in a civilised and humane manner but the system would also need to authorise the police service to take buccal samples.

On the issue of capacity, he would want to believe that police services were moving in the right direction. The laboratories in the Western Cape and Pretoria were especially capacitated. The Western Cape managed to get back 20 out of their 24 interns, the others found permanent jobs. The maintenance is done and the machines that were out of order have been fixed. The Department was able to find money for employees who worked overtime. The ring-fenced backlog has moved from 188 000 to 57 5800. The teams have been divided to manage the sprinter samples that got finalised once off, as well as the marathon samples that took several stages to be finalised. The laboratories in Durban are very unsatisfactory, to an extent that some of their workers will be moved to further capacitate Cape Town. The laboratories in Durban have serious problems and he is working with the Department of Public Works to sort out those problems. The construction in the laboratories in Eastern Cape has started and is expected to be finalised in two to three years. He believed that in the near future the system will have the capacity to carry the pressure, despite the backlog. 

Deputy Minister’s Comments

Deputy Minister Mathale thanked the Minister for the responses which covered most of the questions. He concurred fully with what was said. He said that the narrative that suggests that the Executives are bringing this Amendment before the Committee because they have been taken to court is not correct; they do acknowledge that this matter should have been processed earlier. The Executives share the same concerns that Members have raised, but they have made the decision to come before the Committee as the other processes would have delayed this.

SAPS response

Dr Phillip Jacobs, SAPS Legal Services, said that the concern of taking buccal samples of persons who have not been convicted has been covered in terms of Section 36 (d) (1) and 36(d) (2) which are both in operation now and which allows for the taking of buccal samples of a person upon arrest. The only change is that from th January 2022, it is obligatory for SAPS to take the DNA samples of all suspects. The issue of “minimum force” has been raised by quite a number of Members, this is duplication in a sense that it is already in the South African Police Service Act, 1995, where in terms of this Act, and police members are expected to use minimum force in whatever actions they are taking. It is very difficult to define an issue such as minimum force in legislation. It is very much the same for private defense and relates to the circumstances under which things take place. It is for the court to decide whether excessive force has been used. There is also opposition by people sometimes when taking fingerprints or blood samples, but it has to be overcome because a person cannot flaw the whole system of criminal justice because of the refusal to be subjected to this type of action.

When it came to ‘minimum force there is also a provision in the Bill that the National Commissioner can make a National Instruction to specify how ‘minimum force’ should be applied. He could imagine that the taking of buccal samples should not be that intricate. If the person is contained and just has a sample taken from the inside of his/her mouth, it is less invasive than taking a blood sample. Although there can be a situation where a person who is arrested would refuse the taking of a buccal sample, but in terms of the Criminal Procedure Act, 1977, it would also be allowed to take a blood sample as a DNA sample can also be derived from a blood sample, so this can be done in respect of persons who are arrested. However, it would be really difficult to take blood samples from everyone who refuses the taking of buccal samples. He did think that most of the concerns that had been raised were addressed in the Act, but in terms of reporting it is possible that there can be supplements to the Bill as it is at the moment.

Follow-up questions

Mr Shembeni said that he has not heard a response on the consequent management measures that have been implemented against those detectives who had failed to utilise and monitor the taking of buccal samples.

Ms Majozi referred to Section 4.4 related to cost as it is estimated that the total for the implementation of the Criminal Law (Forensic Procedures) Amendment Bill once it is enacted will be about R78.4 million. She asked if this is an annual cost oonce-off off cost.

Mr Whitfield referred to the total number of un-sampled convicted Schedule 8 offenders. What is the backlog of un-sampled convicted Schedule 8 Offenders who had not had their DNA taken? This is absolutely important for the Committee's oversight role and there should be someone from SAPS who would be able to answer that question.

Mr Terblanche wondered what the reaction of “minimum force” was during the public participation stage. He is still concerned about this because the word “force” by the police is a dangerous principle as we are already dealing with a police service that is not always well behaved. He asked what the public’s response was.

Rev Meshoe said that since DNA samples are going to be taken from all suspects, will those samples be kept on the database even though the suspect has been acquitted? If the DNA will be kept on the database, will it be because the suspect is expected to commit a crime? What would the reason be to keep the DNA once the suspect has been acquitted?

Minister’s response

Minister Cele said that the question on consequent management will be answered once he finds out from the police management. In response to Mr Whitfield, the number of un-sampled convicted Schedule 8 Offenders is not available at hand, but this number will be found and supplied to the Committee. He agreed that this number is necessary for oversight, so that the Committee and Ministry will be able to monitor how many buccal samples have been retrieved.

Currently the law does allow minimum force to be used by the South African police. He said that one would not know how much resistance the police experience, especially on roadblocks. The law allows the police to continue to do their work. He said that one should imagine what would happen if every offender refused to be arrested, especially if they have committed a crime. Minimum force will be measured and the police will be trained, but there is the oversight of a judge that can be part of the process if needs be.

SAPS response

Dr Jacobs said that one should specifically look at the use of minimum force in attaining the objective that is to be obtained in terms of this Act, which is to get the buccal sample. It is just a matter of subjecting the person to such a degree that the buccal sample can be obtained. There are a lot of mechanisms in the law, as it is in every country. In order to enforce the law, one has to do certain things. Whenever the police use excessive force, then in terms of civil law they would be liable for the actions that they have taken, and there are a number of civil litigations against the SAPS. Within the context of this Act, the minimum force can be quite well defined in terms of the National Instruction. The taking of buccal samples from arrested persons is limited, in the sense that it may only be taken from people who are arrested or suspects in Schedule 8 offences. When deliberating on the Act, the Schedule 8 component was specifically drafted with the view of the type of cases where DNA could play a role, such as housebreak ins, murder, rape etcetera, the taking of buccal samples is limited to those offences only.

The concern of the persons, who have been found not guilty after the buccal samples have been taken, has been dealt with in the initial Act that was adopted by Parliament. There will be a time period set for the head of the forensic laboratory to destroy the buccal samples of persons who have been found not guilty.

Ms Moss said that she wanted to inform the Committee of something terrible that has happened two weeks ago in Klawer, Western Cape that might have been seen on television. She visited the Klawer police station last week Monday, while she arrived there the road was blocked. The community was marching and picketing. She entered the police station and met the police station's Captain who briefed her about the matter. A thirteen-year-old had been murdered and been cut. The Captain interrogated the suspect who did not apply for bail. She wanted to bring this to the attention of the Ministry and Deputy National Commissioner who is present in this meeting because they should really provide resources to that police station as it was under-resourced. The Klawer police station needed people from Cape Town to take DNA samples. She pleaded that they make this case a priority, especially concerning the DNA test, so that the community can be calm and so that the mother and father can get justice for their child.

Minister Cele assured Ms Moss that the police are working with the prosecution and this case had been prioritised.

Lt Gen FN Vuma, Deputy National Commissioner: Asset and Legal Services, said that there will be a National Instruction, the legal services and CSPS will articulate step by step what members of the police service would need to follow as and when the Bill was implemented.

She said that SAPS will compile a report and submit it with specific detail on the consequent management measures against those who have failed to utilise and monitor the taking of buccal samples. The cost for the implementation of the Criminal Law (Forensic Procedures) Amendment Bill will also be provided in a report.

She has noted the concern raised by Ms Moss regarding the specific case; SAPS will obtain the necessary details and make sure that they address what has been requested.

The Acting Chairperson said that Mr Terblanche’s question on the public response to the Bill has not been answered.

Dr Jacobs said that he is not sure if the question referred to the looting that took place regarding the Bill. He said that the Bill resulted from the fact that it was regarded as extremely urgent at this stage and was not published in the Gazette as it could be brought directly to Parliament in view of the involvement of the public as well and the fact that the Committee also published the Bill for comments. He cannot respond to the public comments on the issue of “minimum force”, but he would think that most people who would have a response on this are the inmates in prison and those who might not like the idea in the Bill. However, if the question relates to the response of the public in reaction to the issues that took place during the looting then he is not able to respond.

Minister Cele said that at Cabinet level, the matter of the “minimum force” was discussed and the most concerned person was the President who did emphasise the point that the measure of “minimum” will have to be found and be measurable. Cabinet is very much aware of the concerns and the suggestion of working with a judge is part of it. Indeed, the police cannot go outside the law when using ‘minimum force’, but the bottom line is that the work still needs to be done with extra care. People have human rights, including those who have violated other people’s human rights.

Minister Cele said that the presentation to follow deals with the issue of underspending. Overall, it is a very concerning issue for the Ministry, the management of SAPS and the community at large. There are figures that do not look well, especially since SAPS is under budgeted. It is highly unacceptable that this budget that is under budgeted is also underutilised by SAPS, especially on the very sensitive areas such as public policing, detective services and intelligence.

Briefing on the consideration of underspending by the SAPS

Lt Gen Vuma said that the Minister was correct that the under expenditure is quite a concerning issue. SAPS has experienced some dependencies on some of its expenditures, such as the environment of facility management and in the IT space. There were also challenges with regard to machinery and equipment, where SAPS had placed some orders with vehicle manufacturers but it was cancelled because the entire industry had a challenge with regard to a chip that was not available in the world, but it was needed for the manufacturing of the vehicles. SAPS resorted to looking at other manufacturers who promised that they would be able to assist before the end of the financial year. Over R2 billion was earmarked for the purchase of vehicles. SAPS was making strides to ensure that it put measures in place to circumvent the challenges of underspending. 

Lt Gen Puleng Dimpane, CFO, SAPS, presented the following for the 2021/22 financial year:

● Expenditure analysis

● Total Budget vs. Actual Expenditure – Programmes

At 31 January 2022:

R80 046 598 out of the R100 473 833 that was allocated was spent. This is an overall spending of 79.9%.

Programme 1 Administration: R15 115 978 out of the R20 258 973 that was allocated was spent (74.6% spending).

Programme 2 Visible Policing: R42 726 669 out of the R52 224 222 that was allocated was spent (81.8% spending).

Programme 3 Detective Services: R15 877 285 out of the R20 232 517 allocated was spent (7805% spending).

Programme 4 Crime Intelligence: R3 513 029 out of the R4 296 649 that was allocated was spent (81.8% spending).

Programme 5 Protection & Security Services: R2 813 637 out of the R3 461 472 that allocated was spent (81.3 % spending).

● Reasons for low/under-spending

● Mitigating actions to improve spending performance

See attached for further details

Lt Gen Vuma said that SAPS is redirecting some of the money that has not been earmarked to fund other priorities that were not initially funded. The CFO monitors this on a daily basis and every Monday she meets with the CFO to work on this. If things go as planned then SAPS could possibly underspend by less than R1 billion.

Discussion

Mr Whitfield referred to the comparative analysis of under expenditure for each month over the last four years, and if one looks at July and August for the 2021/22 financial year there has been more underspending than in preceding years. Those months were an incredibly difficult time for the country as it was when the violent unrest took place. It would have been anticipated that there would have been an increase in expenditure to contain any unrest, emergency procurement or any issues of this nature. It seems a bit strange that SAPS would underspend in those months. He asked if there was any reason why SAPS would not spend more money given the emergency that the country faced, such as the unrest in July.

In terms of the Inter-operable Criminal Justice System (ICJS) funding, he asked if the Committee could get clarity on the impact on specific outcomes. He understands that there is an issue with procurement on IT systems or issues with the State Information Technology Agency (SITA) but what were the actual tangible SAPS outcomes that were going to be affected. Which specific divisions are likely to be affected in terms of this underspending? He asked if the Committee could get an indication of SAPS’s percentage compliance with the 30-day payment of suppliers. This would give the Committee an indication of the actual ability to manage current accounts.

Mr Terblanche said that SAPS had a very good track record for spending their budget, but there was an under expenditure last year and it is heading towards an under expenditure again. He is concerned that there is a threat of fiscal dumping because the financial year is just about gone. He noticed that SAPS did not spend the R7.3 million allocated to get dogs for their canine unit which impacts on crime prevention. This was a matter of concern.  

In terms of capital assets, some police stations were started in 2014, which is now eight years. He asked if SAPS was really going to be able to complete those police stations after eight years. Apparently, there is a serious problem with the Department of Public Works. He asked what the Minister intends to do about this. He fully understands what happened with the vehicles and that SAPS placed orders with other manufacturers. He asked if these were local manufacturers or if the vehicles were imported from somewhere else because this has an impact on job creation in this country.

It must be remembered that SAPS did not spend their allocation in the previous financial year, yet it is said that they do not have a sufficient budget; this is obviously not the case.

Mr Shembeni said that the state and capacity of the canine unit should be explained, especially since Mr Terblanche had mentioned that according to the budget, nothing has been spent since the end of January 2022, none of the available funds was spent on the procurement of dogs. This is a very big concern because he no longer sees dogs at the roadblocks, especially considering the issue of drugs and other substances that were transported across borders.

He noticed that the SAPS vehicles that are meant to be allocated to the rural areas are not allocated, instead vehicles such as Land Cruisers are allocated in urban areas. These Land Cruisers are meant to be allocated in mountainous or rural areas rather. One notices these vehicles in urban areas and normally in specialised units. He did not even want to mention the race but he noticed that such vehicles would be owned by certain individuals and not by the state. He thinks that SAPS should look into this. The rural areas should get better vehicles that the police can utilise in those mountainous areas.

Response

Minister Cele said that most of the questions from Members were technical. In response to Mr Whitfield, he said that a lot of money was paid for overtime during July 2021; this would have to be explained. He agreed that the different divisions would have been affected by the underspending, considering the integrated approach, but this is specific to each division.

In terms of the SAPS infrastructure, he reminded Mr Terblanche how long it took to build Inanda Police Station and how much the initial budget for it changed from R15 million to R47 million. The SAPS tried to correct these matters by creating the internal capacity to deal with these matters of infrastructure. It takes about a year just for the site to be cleared, but nothing takes less than a year. By the time the police stations are finished then the communities are already fed up. He has had meetings with the Minister of Public Works to raise these issues on the infrastructure of the SAPS, which does not give much hope moving forward under the present circumstances. Another problem was the issues with leases. The SAPS had buildings that have been condemned and the police have nothing to do with it but the SAPS were told that the lease had already been extended instead of finding a new building. It is not only issues with the Department of Public Works but the issues with SITA are also serious. The SAPS are working on the relationships but there are times when the Departments and entities do not see eye to eye, unfortunately this had an impact on the work of the police.

The Education Trust bursaries were a matter that was recently discussed with the Deputy National Commissioner, and it is a matter that is very close to him personally as the Minister of Police. The SAPS was relooking at this matter to be revamped because it will be a serious criminal offence if the Department allowed this to collapse. The Members would know that the police who die in this environment are not often seniors or have not accumulated wealth in the system, but they are young and as they die young, they leave behind their children who are very young. He recalled one funeral that he attended in Kraaifontein a few years ago, the young member who was buried was 23 years old and his wife was 19 years old and carrying a three-month-old. This is a project that the SAPS cannot allow to collapse, and he was glad that Mr Shembeni raised the concern. There are several graduates that come from this system, and this information will be shared to the Committee.

Lt Gen Vuma referred to the low spending in July and August 2021 and said that the majority of the expenditure during these months was spent on overtime payment. The overtime payment in July would have been processed for the month and paid the following month, which could explain why the expenditure was less in July. Even though the procurement process might have been initiated in July, the payment would only be finalised the following month. This may be the same explanation for the question regarding the payments of overtime for the local government elections, as the processing of those payments only took place in December.

In terms of the ICJS, it is definitely the criminal justice system that gets affected in this regard. However, it is mostly the forensic services and detective services environment that is affected.

With regard to the Educational Trust which is a matter that it very dear in the heart of the Minister, she said that the SAPS had challenges and only got the R1 million from the budget which was not enough to cover the education for the children of the country’s fallen heroes. The SAPS used to have a fundraising exercise every January during the time of the National Police Day, but unfortunately in the past two years, it has not been practically possible to do this because of the Covid-19 pandemic. SAPS will be able to compile a report to inform the Committee on how many bursaries were issued. There are initiatives to revitalise and to make sure that this receives the attention that it deserves.

Maj Gen ED Ndaba, Acting Divisional Commissioner: Visible Policing and Operations, said that the budget does show that the SAPS had not utilised their allocation for the canine unit, but the whole process for the procurement of dogs has been finalised. Currently, SAPS is at the stage where it is accessing the dogs from the suppliers and is looking forward to finalising this process to procure the dogs. The budget will be utilised before the end of this financial year.

Lt Gen Dimpane said that in terms of the R1 million donation to the Educational Trust, the SAPS awaited the adjusted Bill to be signed which was only signed in January. The SAPS had corresponded with the Trust to ensure that there was compliance in terms of Section 38 of the Public Finance Management Act (PFMA). Once this confirmation was received from the Trust, this particular donation would be finalised.

Follow-up questions

Mr Whitfield said that the Minister directed SAPS to respond to the question of the compliance with the 30-day payment of suppliers but the question has not been dealt with. He asked that the Committee get an answer to this question.

Mr Terblanche said that he had not received a response to his question regarding the SAPS vehicles. He would also like the SAPS to explain what the problem with Polmed regarding Covid-19 was and injury on duty.

Response

Lt Gen Dimpane said that the Department is 99.76% complaint with the 30-day payment of suppliers. There are invoices that the SAPS are disputing; SAPS will go back to those service providers to clear those disputes.

There have been cases where members could prove that they had contracted injury on duty, particularly Covid-19. The SAPS is working with the medical aid to validate those particular cases so that the SAPS can ensure that the relevant payments are made within the prescripts that governed the injury on duty payments. This process is unfolding and it is anticipated that by the end of March that the process would be concluded.

Closing Remarks

The Acting Chairperson said that the questions that were not answered would be answered in detail in a written response.

The Deputy Minister said that the SAPS shared the same sentiments that were expressed by Members of the Committee. Every cent that was given should be spent because there is no business in saving. Any amount that is not spent is a serious concern and the Minister has been leading in this regard to ensure that this aspect is dealt with. The SAPS will definitely look into the issues raised to improve its expenditure. The Department was also looking into interacting with the Independent Development Trust (IDT), which is an institution created by the state to assist with social infrastructure delivery. The  SAPS has set up engagements with the IDT to discuss how they could collaborate to assist the SAPS in this regard so that moving forward, the SAPS does not have recurring problems with infrastructure.

The Acting Chairperson said that Dr M Basopu (ANC) is a new Member of the Committee. This was his first meeting with the Committee, he is certain that Dr Basopu will contribute productively to the discussion.

The meeting was adjourned. 

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