Forensic Services backlog & related matters: SAPS briefing; with Deputy Minister

Meeting report

Apologies were tendered from the Minister of Police, Mr A Whitfield (DA) and Mr E Shaik-Emam (NFP). Rev K Meshoe (ACDP) apologised that he would have to leave early.

The Chairperson registered her disappointment that the SA Police Services (SAPS) had sent its presentation late. She reminded SAPS that reports were due a week ahead of Committee meetings. The Chairperson stated that all documents presented by SAPS would undergo legal scrutiny before presentation to the Committee.

The Chinese foreign parliament had requested a hybrid meeting with the Committee, instead of a physical meeting.

The High-Level Panel report on the response to the Farlam Commission of Inquiry would be taken to Cabinet the following week and released by the end of March. This bore relevance to public policing in the context of SAPS’ heavy-handedness in dealing with protests in the past week.

On 13 April 2021, the Committee would meet for interviews of the shortlist of the Critical Infrastructure Council. This would be done during recess, but the Chief Whips had given permission for the meeting.

The Chairperson emphasised that the Committee had asked for monthly reports on the Firearms Amnesty at its last meeting on the matter, and had not been receiving them.

The Committee adopted its minutes of 2 March 2021, 3 March 2021 and 10 March 2021.

The Kinnear Petition Report was adopted.

The Ethics Oversight Board Report was adopted.

The Commission for Gender Equality and Human Rights Commission Reports, including the investigative report on the state of shelters in South Africa; the report of the national investigative hearing into the status of mental health care in South Africa and the lack of safety and security measures in schools for children with disabilities reports, were considered and adopted.  

The Chairperson said she had sought legal opinion on the contents of meetings with SAPS, as it was clear that the matters under discussion surrounding Forensic Services would likely end up in court soon. She advised Members to thus bear this in mind.

The legal opinion argued firstly that the Constitution required each arm of government not to encroach on the mandate of another arm, and to respect the separation of powers. Secondly, the Public Finance Management Act (PFMA) provided for the responsibilities of accounting officers for procurement and contracting of services, and a legislatively prescribed procurement process was described which had to be followed. To the extent that the Committee may have instructed SAPS to enter a contract with Forensic Data Analysts (FDA), it may have overreached its power. A proposal for writing the legal opinion into the meeting minutes was advanced by Mr K Maphatsoe (ANC), seconded by Mr O Terblanche (DA). The Chairperson said this covered the Committee legally.

Briefing by SAPS
The Deputy Minister of Police, Mr Cassel Mathale, said the meeting had to be seen as a continuation of the previous week’s meeting with the SAPS Forensic Service on its Action Plan. The Deputy Minister noted that SAPS was present to brief the Committee on matters concerning FDA.

He handed over to the National Commissioner, Gen Khehla Sitole, to give the presentation.

The Chairperson noted that Adv Siviwe Njikela was present to give the Committee legal advice.

Gen Sitole apologised for the lateness of reports given to the Committee. He handed over to Major General Leon Rabie, Head of Strategic Management, SAPS.

Maj Gen Rabie said the presentation was focused on issues at Forensic Services, including the FDA matter, Forensic Exhibit Management Module development and the backlog of DNA testing in Forensic Services.

Forensic Data Analysts (FDA) matter.

[The matter is complex and readers are referred to the presentation, on the PMG web page, for details provided by SAPS]

FDA had provided services to SAPS including the Property Control and Exhibit Management (PCEM) track and trace module, Firearms Permit System (FPS) and VA-AMIS intelligence system [Visual Analysis Anacapa Matrix Intelligence System]. The Independent Police Investigative Directorate (IPID) had recommended in October 2017 that no further payments be made to FDA until investigations of corruption had been completed. During SAPS’ appearance at the Standing Committee on Public Accounts (SCOPA), it was recommended that all contracts with companies where Mr Keith Keating was a director should be cancelled, including FDA. SAPS thus suspended all payments to FDA.

On 4 April 2018, FDA suspended SAPS’ use and access to software for PCEM, FPS and VA-AMIS due to non-payment. An urgent application was made to the Court to restore access but it was then withdrawn after the State Information Technology Agency (SITA) regained access on 9 April 2018. FDA then brought a counter-application seeking payment for services and interdiction of SAPS’ use of FPS and PCEM. The Court found in favour of FDA in terms of the FPS, and required SAPS and SITA to engage in negotiations over intellectual property (IP) purchase. SAPS continued to pay fees for services rendered while negotiating.

National Treasury submitted its final report on the fair value of the IP in the FDA systems to SAPS in May 2020. SAPS raised several issues with Treasury: Treasury had to advise whether the assessment could be accepted as the true fair value of the systems, and whether the transaction would be regarded as settlement or procurement (which would require a deviation approved by Treasury). Maj Gen Rabie said that no adequate response had been received from Treasury.

A draft assignment agreement was provided to FDA, and responded to with a signed agreement which differed materially to the initial agreement. Crime Intelligence received a third party claim on the PCEM system. SAPS decided to terminate negotiations and not proceed with procurement from FDA. Risks involved included unavailability of architectural design, third party patent claims and value for money propositions.

On 4 December 2020, a meeting was held with SITA to discuss procurement of PCEM or the acquisition of an alternative. SITA indicated it could enhance the Forensic Science Laboratory (FSL) Administration System with a track and trace functionality. SITA advised that any procurement of information, communications and technology (ICT) by government entities had to be done through SITA. SITA also indicated that attempting to procure PCEM [from FDA] while tasking SITA with replacing it would constitute fruitless expenditure.

On 9 February 2021, FDA served a letter of demand claiming R644m as the purchase price of its IP, and R120m for maintenance and support, as per an alleged oral agreement. Any IP rights agreement required a meeting on all essential clauses, and SAPS would defend this requirement if a summons was issued. The FDA related cases were with the NPA Investigative Directorate (ID), and at an advanced stage. The departmental FDA case was in progress.

On 7 December 2020, an e-mail was forwarded to SAPS by National Treasury in which Mr J Xaba of HaReBueng Services argued that the systems in dispute by FDA were already owned by the state through the Industrial Development Corporation (IDC). Correspondence was sent to the Special Investigating Unit (SIU), the Directorate for Priority Crime Investigation (DPCI/Hawks), and NPA ID in this regard.

Forensic Exhibit Management Module

On 30 January 2020, notice was received from FDA to execute the court judgment of 30 January 2019 on the Forensic Pathology Services (FPS), coupled with the PCEM. SAPS used the FDA software PCEM system to track forensic exhibits. An initiative to develop an alternative system was put on hold on 4 February 2020 until the valuation of FDA’s IP was complete. On 15 October 2020, SAPS tasked SITA with enhancing the SAPS Forensic Services Laboratory (FSL) Administration System to accommodate track and trace through a Forensic Exhibit Management (FEM) Module. Total expenditure on phase one of development was R2.98 million to date. Phase one development was concluded and tested on 12 February 2021. Additional functionalities were identified and presented on 25 February 2021. Development of the FEM module was scheduled to be concluded, tested and accepted by 26 March 2021, and be fully functional by 6 April 2021.

Following the deactivation of PCEM, case files and exhibits were managed and controlled by manual processes. A functionality was developed to capture manually recorded files and exhibits.

A search functionality accessing over 10 million records was implemented on 16 March 2021, making provision for a number of functions. Virtual work sessions on the module’s functionality would be held.

Forensic Services Action Plan

SAPS recapped the root causes of the DNA testing backlog, including the high volume of samples, increasing demand, high quality requirement for evidence material, critical vacancies in support and operational positions, restrictions during Covid-19 lockdown, infections of personnel, lack of track and trace capability, lack of consumables and finalisation of Eastern Cape capability.

Maj Gen Rabie noted that capabilities were available in 4 provinces currently. DNA analysis was where the backlog was currently. Only the Western Cape and Head Office Biology units had DNA analysis capacity.

Human resources were not an issue in evidence recovery, and equipment and technology were also sufficiently capacitated. The backlog in evidence recovery on 10 March 2021 was 47 296 cases. Contributing factors to the backlog were inadequate specialised Personal Protective Equipment (PPE) for lab use and inadequate supply of polyester swabs for crime scene evidence collection.

In DNA Analysis, human resources and equipment were not under-capacitated. The backlog on 10 March 2021 was 108 342 cases from the Crime Index (CI) system, and 119 887 cases on the Reference Index (RI) system. Inadequate specialised PPE, lack of maintenance and service contracts for the CI and RI systems and the as-yet incomplete validation and training for quantification kits that was scheduled for completion in 2 months, were the cause of the backlog.

Actions to address the DNA backlog included:
Award of outstanding contracts in maintenance and service, specialised laboratory PPE and waste removal
Anticipated date of conclusion was 30 June 2021 (maintenance), 31 March 2021 (PPE and waste removal).
Bidding process was in progress for the latter two contracts
Conducting validation and training for quantification kits, to be completed on 31 May 2021. The validation plan had been developed
Procurement of quantification kits. This had already taken place on 28 February 2021, and 42 kits were in use.
Procurement of additional quantification kits for operational use during validation and training. A request for deviation from procurement was with Treasury, and as soon as this was approved this could be executed.
Medical surveillance and vaccination for forensic analysts
All forensic analysts had undergone the medical surveillance and vaccination required
Review of basic conditions of employment to allow for a shift system in Forensic Services that would increase the availability of analysts. No progress had been made but the process would be initiated by 30 April 2021.
Procurement of a manual and semi-automatic DNA processing systems for the Eastern Cape was in progress, to be completed by 30 September 2021.

The Presidency had initiated a process to identify potential Public-Private Partnerships (PPPs) to assist in the processing of forensic exhibits. A list of potential PPPs had been made and a steering committee was being established.

General progress on the corporate renewal strategy had already been presented to the Committee.

The Chairperson noted Mr Paul Oxley, from Gun Owners South Africa (GOSA), was in the meeting. She stated that the Committee’s Content Advisor and Committee Secretary had been listed as mail complaint targets for disaffected firearm owners to complain to about firearms licenses. The Chairperson requested that these mail addresses be removed from GOSA’s website as it was interfering with the Committee’s work. The Committee secretariat was perceived to be the Central Firearms Registry. Committee staff were not involved in firearms applications.

The Chief Executive Officer (CEO) of SITA, Mr Luvuyo Keyise, confirmed that an alternative system for track and trace had been developed by SITA and full functionality would be in place by 6 April 2021.

National Treasury input
Mr Dondo Mogajane, Director-General, National Treasury, wanted the meeting to record two issues. The first was that he had thought SAPS would have invited Treasury to engage with SAPS and SITA and participate in the presentation, and was disappointed that this was not the case. The second regarded slide number 8 of the SAPS presentation, which claimed that Treasury had not given an adequate response to SAPS’ concerns on its fair value report on FDA’s IP. Misunderstandings between Treasury and SAPS could have been avoided. It was correct that Treasury had submitted a report on the three systems to SAPS. At any given point along the way, Mr Mogajane was with the Commissioner and Mr Keyise in meetings. The insinuation was that the report was not interacted with, and that the Treasury report was not correct. Treasury was requested to give a signed version of the report with a breakdown of costs of systems, which had been done. Mr Mogajane disputed that no adequate reply had been received from Treasury. The responsibility lay with the Commissioner, not Treasury, to follow up. Treasury had given SAPS and Ministers both the signed report and the breakdown of IP costs, and considered this as the extent of its mandate. The key issue for Mr Mogajane was that Treasury had done what it was supposed to. If there were matters of deviation that fell outside the process, Treasury would fulfil its duties. SAPS and SITA were aware of the process Treasury took. He again disputed that no adequate reply had been given by Treasury. Mr Mogajane said that he had not met with SAPS since the previous Committee meeting, and had not been invited to a meeting with SAPS.

Discussion
The Chairperson requested an explanation on this matter from the National Commissioner. She registered her concern that SAPS had not met with Treasury, which put into doubt the information in the presentation.

Dr P Groenewald (FF+) was disturbed by the fact that Treasury had not been invited to engage with SAPS. He requested this matter to be taken further. Information provided to the Committee had to be accurate. He put on record regarding Slide 5 that, on 29 November 29 2017, SAPS appeared before SCOPA, which recommended that all FDA and Keith Keating-related contracts be cancelled, triggering suspension of payments to FDA. Dr Groenewald, recalling the legal opinion acquired by the Chairperson, asked SAPS why, when SCOPA made a recommendation, SAPS complied immediately; but when the Portfolio Committee made decisions it was questioned whether the Committee had authority. Dr Groenewald reminded SAPS that that SCOPA did not have more power in terms of the National Assembly Rules than the Committee. On Slide 9, he noted that a third party claim on PCEM had been received by Crime Intelligence, and SAPS had decided not to continue procurement from FDA. He asked SAPS why it had not included information on the follow-up on this third party claim, which was found to have no substance. Dr Groenewald argued that the Committee was receiving small snippets of information from SAPS that created specific impressions, rather than the whole truth. Dr Groenewald sought a track and trace system that worked and did not undermine the criminal justice system. At the moment, it was not SAPS, FDA or the Ministry paying the price for incompetence, it was the victims of crime. Dr Groenewald asked why cases against FDA had taken so long to reach completion, given their gravity. Dr Groenewald raised the issue of Mr Xaba’s claim that FDA’s IP had been paid for by the IDC. He asked who Mr Xaba was. In the previous meeting, Dr Groenewald had stated that there were several meetings between FDA, Treasury, SAPS and SITA, and twice there was an agreement, which was not honoured, leading to court cases. He requested an answer on the legal costs associated with the disputes. He also requested an answer on how many samples were in the DNA backlog. He welcomed the commitments from SAPS in its presentations on deadlines, but noted that failure to comply with these would constitute misleading the Committee. Criminals were having a feast in South Africa. He had read of a young rape victim who had been waiting for DNA analysis for two years and was afraid to leave her house as the accused was still in the vicinity.

The Chairperson echoed Dr Groenewald’s frustration.

Rev K Meshoe (ACDP) asked if page 8 of the SAPS presentation (dealing with the lack of adequate response from Treasury) was inaccurate, how the Committee could know if the rest of the document was accurate? SAPS had misled the Committee by shifting blame to Treasury. He asked whether page 8 would remain part of the presentation. He asked why SAPS would include misleading information in the slide. He thought the Committee was not being taken seriously. He proposed that SAPS respond to this question. He thanked Mr Mogajane for pointing out inaccuracies in SAPS’ presentation.

The Chairperson recalled that, on 18 September 2020, National Treasury had sent a letter to the Ministers of Finance, Police and Communication, which gave her serious concerns over the veracity of the SAPS presentation.

Mr Terblanche recalled the previous Committee meeting: it was evident that the Minister and Commissioner had not consulted on the content of the presentation. He remembered that he had asked if SAPS was misleading the Committee. Miraculously, SAPS had begun work on a system this week that it had not mentioned the week before. He recalled two meetings at SCOPA with SAPS. The National Commissioner responded in writing that there were 15 different contracts in place with the same service provider. He asked what the result of weekly meetings on the FDA issue had been. Mr Terblanche accepted that, if SAPS was not lying on its progress on making its own systems, it should be commended. However, he was receiving reports on lack of consumables from people on the ground. He wanted to know whether the Committee was misled, or SAPS was just unprepared. The Minister was conveniently not present in the meeting. The Committee had to keep him responsible. The criminal justice system was incapacitated. He asked whether the management of SAPS was capable of doing its job.

Mr H Shembeni (EFF) raised the issue of separation of powers and SAPS taking instructions from SCOPA, whereas the Portfolio Committee’s recommendations were not taken. The power of procurement lay in the hands of the National Commissioner. Mr Shembeni requested a reply from the Commissioner. He noted the consumables shortfall in forensics. He wanted to know whether this was due to a lack of budget, availability, or simply the failure of those responsible for procurement. He made a point on Public Order Policing, bringing up that 15 members of his community in Mpumalanga had been shot at and arrested, and injured detainees were not being taken for treatment. SAPS would face a lot of claims if Public Order Policing continued to be ill-disciplined.

Mr Maphatsoe argued that the forensics issue had begun during the Fifth Parliament. He remembered asking SAPS to give the Committee the challenges it faced, to which SAPS replied that supply-chain management had serious issues with corruption. SAPS had committed to dealing with this. He welcomed that the presentation was more detailed than others. He recalled that Treasury presented its role and what its mandate in the matter was. He argued that communication between SAPS and SITA had been missing in its presentations. The fair value proposals for FDA fluctuating suggested that corruption had been involved. He suggested that Treasury and SAPS should meet and SAPS should not claim that no reply had been tendered. He agreed with Mr Shembeni that there had to be an adequate explanation for the backlog in consumables. The people of South Africa were suffering due to the lack of performance. He was positive that, if the plan detailed by SAPS in its presentation was executed, the backlog could be eradicated. If SITA was producing the same system for far less, it was welcome. He wanted to hold SAPS to its promise of having a system online by 6 April. He proposed that SAPS had to apologise to the Director-General (DG). He hoped that SITA could fulfil its mandate. He asked SAPS whether it was still intending to pay FDA for its IP, or whether it would just procure the system from SITA. He agreed with Mr Shembeni that the behaviour of the police reminded him of the apartheid era by shooting at protestors. Other systems of crowd control had to be possible. He hoped for a report in the near future on this matter.

Ms M Molekwa (ANC) appreciated that there was an action plan with a time frame, and that all stakeholders were attempting to find one another. She agreed with Mr Maphatsoe that the presentation was better and more detailed than previously. She wanted to know whether the money demanded by FDA constituted a penalty for SAPS or a payment for services. She requested SAPS to present a progress report in the next meeting on the FDA matter.

Ms Z Majozi (IFP) highlighted the issue of SAPS being caught between SCOPA’s recommendations and the loss of the court case to FDA. She asked whether SAPS had received any legal advice on this matter.

Mr Terblanche asked for confirmation that the police was still involved in litigation with FDA. He noted that a number of police officials were arrested in the case, and requested an update from IPID.

The Chairperson stated that the DG of National Treasury had pointed out that page 8 [of the SAPS presentation] was inaccurate. She asked why SAPS had not included the results of any of the court cases it had been involved in with FDA, some of which it had lost. Outcomes given by judges were not being implemented. She enquired as to how many samples were in the DNA backlog. She argued it was mischievous that members of the public, including Mr Paul O’Sullivan, interpreted the Chairperson’s summaries of meetings as her own wishes, which was incorrect. She noted that SAPS had to answer the Committee’s questions, either verbally or in writing. She asked SAPS for monthly reports on its work with SITA. She agreed with SCOPA’s view but asked if SCOPA had the right to halt payments. She asked what was happening with VA-AMIS and FPS. She requested an update on court costs. She asked what chances SAPS stood of winning a court case against FDA if this materialised. She proposed that the presentation was inconsistent in that it talked about staff rotations as well as adequate staff capacity. She asked the Treasury DG if the IDC had already paid for a system including the IP of the PCEM.

Ms L Moss (ANC) registered her disappointment that supply chain and procurement processes had caused such a long backlog. She noted an increase in the Forensic Services budget, and asked for an explanation. She requested an understanding of Forensic Services’ budget and organogram. She asked for a clarification of the issues between Treasury and SAPS. She asked why budgets were being increased but value for money was not being obtained.

The Chairperson asked SITA whether its system was based on FDA’s intellectual property or not, given this might trigger a court case.

Responses
Gen Sitole began by apologising to Mr Mogajane, and indicated that the DG had done everything required by SAPS to dispose of the FDA matter. Where the DG was no longer involved, he had indicated that Treasury’s work had been done and it was up to the accounting officer to execute, which Gen Sitole had done. SAPS had not met with Treasury as the Commissioner had been called into Parliament. He indicated that the presentation was accurate minus what was depicted in slide 8, which would be clarified by Legal Services. Gen Sitole recommended replacement of the slide. He apologised also that the previous week’s presentation was insufficient, as SAPS had been prepared concerning the DNA backlog rather the PCEM track and trace system.

He clarified that SAPS saw all parliamentary structures as important, and did not intend to prioritise recommendations from one committee over another.

He said that IPID’s investigation into the FDA contracts had been delayed by a legal battle in the Constitutional Court which had enforced the suspension of the investigation, which resumed once IPID won its case. SAPS continued to meet weekly with IPID on the investigation, and had been issuing weekly progress reports on its meetings as per SCOPA’s instructions.

SAPS had no intention to mislead Parliament. Full information on the PCEM system would be provided in writing.

There had been sufficient legal advice and recommendations from Treasury for SAPS to proceed with acquiring FDA’s IP. Counsel was appointed to work with SAPS on procurement of FDA’s IP, until there was an IP Code issue, at which point counsel advised cancellation of the contract. At this juncture, SAPS engaged SITA on an alternative solution. At this point, the FDA contract officially expired, and FDA withdrew its system from SAPS. After this was done, SAPS continued with the SITA option. As of 17 March, SAPS had walked out of all dealings with FDA, preferring the SITA alternative.

A separate action plan on the backlog had been designed based on interaction with the private sector. Private sector laboratories had promised to mobilise to deal with the backlog. SAPS would operationalise the action plan during a meeting with the private sector on 18 March.

SAPS would not pay fair value to FDA as it had no contract with it and did not need its IP anymore.

Lt General Sally Khan, Head of Legal Services, SAPS, answered Dr Groenewald on his questions regarding SCOPA. SAPS had sought counsel’s opinion on the FDA contract. SAPS paid FDA for services rendered as per legal advice.

Regarding slide 8, Gen Khan noted that Treasury had sent a fair value report on 26 May, clarification was sought on the 27th and a reply was received on the 29th. Clarification had also been sought on 12 June by the National Commissioner. Lt. Gen. Khan replied that, although a response had been received, it did not answer all questions. The issue of IP cost breakdown and whether the action was a settlement or a procurement had not been answered by Treasury.

Regarding third party claims on PCEM received by Crime Intelligence, the meeting with the National Commissioner on the matter took place on 22 June 2020. Patent documents were sent to attorneys of record for advice. This matter was subject to investigation by Crime Intelligence. In taking a decision not to proceed with procurement from FDA, this was only one of the matters involved. Other than the letter of demand, no other litigation was taking place between SAPS and FDA. FDA’s demands were for the fair value of its IP, based on an existed alleged oral agreement between the two parties. No amounts for services rendered remained outstanding.

SAPS had not known it needed to produce a report for the previous meeting, as its parliamentary liaison officer informed it only that it needed to be available to answer questions.

Regarding the Chairperson’s question on court matters, there had been four court matters involving SAPS and FDA. The first was an urgent application by SAPS, which was abandoned due to SITA being able to switch on the PCEM system. There was then a counterapplication from FDA to interdict SAPS from using the PCEM and FPS, where the court found in favour of FDA, interdicting SAPS from usage of the PCEM and FPS. FDA also brought a contempt application against the National Commissioner in 2020, where the court found the Commissioner in contempt. SITA had led the court process.

The Chairperson proposed that the meeting would have major legal implications for SAPS and SITA, as Lt Gen Khan had effectively admitted that SITA had illegally switched on a system it was not allowed to use.

Dr Groenewald asked why Crime Intelligence had become involved in patent issues.

Lt Gen Khan replied that SITA had been approached by the National Commissioner for the reimplementation of the FDA system after it was switched off due to service delivery imperatives. After taking legal advice, SITA did so as it was within its rights to do so.

Gen Sitole said that slide 8 would continue to be worked on.

Dr Groenewald asked for an answer to his question.

Lt Gen Khan responded that Crime Intelligence had acted when it received the information. Traditionally it was not Crime Intelligence’s mandate, but it had to respond to the allegation received.

Dr Groenewald was worried that Crime Intelligence was involved in private issues. He requested clarity on the matter. Patent rights were between individuals or companies. He asked for a comprehensive answer.

The Chairperson agreed with Dr Groenewald, and requested a detailed report on the Crime Intelligence patent rights issue and a follow-up meeting with SARS.

Gen Sitole answered that SAPS would comply. He brought to the attention of the Committee that immediately after the introduction of the Clean-up Campaign, several officers in Supply Chain Management (SCM) had been arrested.

Lt Gen Riet, Divisional Commissioner: Supply Chain Management (SCM), SAPS said that the situation he found on accession to the SCM environment was one where ring-fenced funds were being used to fund Forensic Services. Cases and departmental processes occurred, and ring-fenced funds were cut off. This meant Forensic Services became dependent on its operational budget. This meant that SCM could not engage in procurement for Forensic Services, as its budget was exhausted. With the assistance of the Chief Financial Officer (CFO), extra funds were given to Forensic Services to assist with contracts. Delays in awarding contracts were also caused by closures due to Covid-19. 15 contracts had thus been put in place for Forensic Services. In terms of slide 25, the dates would be stuck to in terms of Forensic Services. Lt Gen Riet noted that capacity expansion in the Eastern Cape required construction, and Department of Public Works (DPW) engineers had been involved. It was anticipated that plans would be in place by 30 September.

The Chairperson argued that the SAPS budget would have to be monitored seriously. If SAPS was using private sector to address its backlog, how would it be able to preserve the integrity of its chain of evidence?

Lt Gen Riet replied that these issues would be raised in meetings with the private sector on 18 March. Compliance with S212 of the Criminal Procedure Act was essential, regarding forensic statements after analysis. Chain of command of evidence was also a concern that had to be addressed.

[Report interrupted at this point. Missed section due to power cuts – irretrievable. Most of it seems to have been an argument over a microphone issue.]

Lt Gen Sindile Mfazi, Deputy National Commissioner: Crime Detection, SAPS, continued on the issue of the chain of evidence. SAPS would raise the issue with the NPA and Department of Justice, noting reservations they had previously. He proposed that SAPS was attempting to bring in all the partners available to it to address backlogs. He clarified that Forensic Services was not responsible for procurement, and SCM had to procure for it, which had caused issues in contract management. SAPS was attempting to stabilise this.

Gen Sitole clarified that the Public-Private Partnership was subject to agreement from both SITA and Treasury.

Lt Gen Puleng Dimpane, CFO, SAPS said that Forensic Services’ total budget was over R1.3bn, of which R669m was devoted to operational costs including consumables. R1.6m had been spent on legal costs incurred in the FDA matter.

The Chairperson interjected that members of the public should not become involved in the meeting, and should engage the Chairperson in writing if they wished.

The Deputy Minister reiterated the Commissioner’s point on rewriting Slide 8.

The Chairperson requested that the slide be formally removed from the record.

Mr Keyise (SITA) explained that it was on the basis of the imperative of service delivery that SITA had created a system for SAPS. SITA had switched this on in terms of its search function on 16 March. SITA was committed to ensuring all the functionalities SAPS had requested would be online by the 6 April deadline. SITA was not aiming to be in competition with the private sector, but where there was technical capability in the state, SITA would ensure it used its capacity to modernise systems. SITA had a strategic view that any system procured by government departments had to be owned by government, so that it did not have to be paid for multiple times. The track and trace capability came from a system already owned by the state. SITA confirmed that its solution for SAPS used standard development methods, and not FDA’s IP. The system SITA was implementing was not based on reverse engineering.

By the time the Court had resolved in January 2019 that the IP of systems belonged to FDA, no illegal use had occurred. SITA only switched on the system while the matter of IP remained in courts. The switching off of systems was done in the presence of FDA, to ensure no violation of IP ownership. Mr Keyise was not aware of the full value of legal fees in matters with FDA, but would respond in writing.

Mr Keyise welcomed an opportunity to show the Committee the system on an oversight visit. He confirmed that information on SITA included in slides was correct. Costs of just less than R3m were involved in developing the system. SITA expected costs to be far lower than budgeted for by SAPS.

Dr Groenewald asked SITA how the system was searchable, as this was important in terms of system integrity. He also asked for an update on VA-AMIS and FPS.

Mr Keyise answered that SITA had developed an automated solution. He continued that there should be database integrity in line with security measures provided by SITA to SAPS officials handling the database. Part of this was retaining full records of what was done on the system by whom. This was not linked to PCEM, but rather across all systems. SITA was ensuring this through three factor authentication.

The Director-General of Treasury said that Treasury had responded to Mr Xaba from HaReBueng Services that the issue of payment rested with the SAPS accounting officer. Mr Xaba followed up with a detailed history of the issue, which was brought to SAPS’ attention. Treasury advised SAPS that the issue was beyond Treasury’s mandate, and had to be dealt with by SAPS. SAPS confirmed that the accounting officer and Deputy Minister had been made aware.

Mr Mogajane called for a meeting between Treasury, SITA and SAPS, as he feared litigation on various matters relating to FDA. All of the processes taken together, including the fair value assessment, Mr Mogajane imagined that litigation from FDA may be forthcoming. SCOPA could not give instructions not to pay. Accounting officers have the full right to determine payments. Committees could only recommend.

The Chairperson expressed her concern over the possibility of legal challenges.

Mr Mogajane was worried about inconsistencies in dealings with FDA. A deal had been struck and then reneged on. The issue of SCOPA may also entail legal issues. Treasury’s major worry was over the negotiations over a system. He said that not giving FDA a letter of termination may pose problems. On top of this was the service delivery impact caused by manual processes. The negotiations process with FDA had seen parallel processes, in which SAPS was clearly attempting to procure the PCEM system from FDA by seeking a fair value assessment and entering talks, and then simultaneously attempting to replace the system through SITA. There was a lot of communication on this matter between the state and FDA and internally. If this communication was requested, it would prove an intention to pay on behalf of the state. This may cause fruitless and wasteful expenditure and legal costs, and a legal battle for Treasury.

The Chairperson concurred with the DG of Treasury that legal challenges could be anticipated.

Mr Mogajane said that SAPS, SITA and Treasury had interacted with FDA.

The Chairperson asked if it would be illegal to meet with FDA again.

Mr Mogajane was unsure, but was happy to engage with FDA if possible.

The Chairperson requested a report from the DG of Treasury, the Commissioner and the CEO of SITA on the result of their meeting on the matter when the Committee met again after recess.

General Sitole replied that he would facilitate the meeting with the CEO and DG. He would put together a committee of Deputy National Commissioners (DNCs) to check reports for the Committee and failure of response would entail consequence management.

The Deputy Minister confirmed the Commissioner’s commitment to monthly reports. He clarified the interaction with forensic laboratories on the DNA backlog. He agreed that Committees could only recommend and not instruct. A lot of work had clearly been done. Some of the delay in procuring consumables were contingent on a deviation from Treasury to procure up to 4 million consumables to allow securing materials for use for two to three months, which would give time for the long-term consumables contract to be put into place.

Mr Mogajane interjected that the deviation had been approved on the morning of 17 March.

The Deputy Minister thanked Mr Mogajane, and proposed that funding should not be an issue for Forensic Services the following year. He said that the Presidency was interacting with the private sector on their contribution to resolving the DNA backlog. The chain of custody would be maintained as SAPS processes would be applied. The Deputy Minister was certain that the challenges before SAPS would be diminished over the coming months.

The Chairperson thanked presenters. She requested a cursory presentation on the consideration of the Commission of Gender Equality (CGE) and South African Human Rights Commission (SAHRC) reports.

Major General Thokozani Mathonsi, Head of Social Crime Prevention, SAPS, began the presentation on the Mental Health Care Act and Special Schools and SAPS training and guidelines on these matters. The vulnerable groups learning programme (VGLP) learning programme was in place at SAPS, and was aligned with the Mental Health Care Act and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) .

No statistical information was available on Mental Health Care User (MHCU) cases as of yet. Compliance assurance visits were conducted. Key challenges included that health facilities had to be included in responding to calls about MHCUs. Standards were not universal across provinces. There may also be insufficient capacity to receive mental patients at healthcare facilities, which requires the police to retain them. SAPS did not foresee extraordinary costs in delivering support to MHCUs. SAPS was not skilled with identification of MHCUs, as this was a healthcare capacity.

The Chairperson registered her objection to the use of the terminology of mentally ill and disabled people in SAPS presentations.

Maj Gen Mathonsi apologised, and continued that the VGLP members were sensitised in terms of the Mental Health Care Act, as were trainees in basic training. Professional assessment of MHCUs was done. SAPS was pursuing MOUs with civil society organisations to assist its processes for MHCUs.
 
In terms of special schools, SAPS was reviewing its protocol with the Department of Basic Education: the past practice was to establish School Safety Committees, but some of these did not function as intended.

Deputy Minister Mathale thanked the Chairperson.

The Chairperson thanked the National Commissioner for the SAPS delegation’s ability to engage respectfully and thoroughly with Members. She said that solving the FDA issue would be like breaking a record.

The meeting was adjourned.