Nomination by Minister, and recommendation for appointment of Executive Director for Independent Police Investigative Directorate; Private Security Industry Regulation Amendment Bill: Committee Report adoption

Meeting report

Private Security Industry Regulation Amendment (PSIRA) Bill: Adoption of Committee Report
The Chairperson read out the report of the Committee on the Private Security Industry Regulation Amendment (PSIRA) Bill. She asked that Members pay close attention as this was the report that would appear on the ATC.

Ms D Kohler-Barnard (DA) noted a correction to the Committee Report which said that all parties present supported the Bill except the DA and FF+. She found this misleading; it was in fact only the ANC who supported the Bill. She wanted that section to be reworded.

The Chairperson responded that this was what was recorded in the minutes of the meeting, as only those parties had voted. The report was compiled with the assistance of the table staff of Parliament to ensure it was correct.

Ms Kohler-Barnard said it was not correct because of the implications of the phrasing.

The Chairperson suggested that the wording be amended to:  “the Bill was supported by the majority in the Committee, the ANC, and opposed by the DA and the FF+”.

With that amendment, the report was adopted, moved by Ms M Molebatsi (ANC) and seconded by Ms D Sibiya (ANC).

Nomination of the Executive Director of Independent Police Investigative Directorate (IPID): Briefing by Minister of Police
The Chairperson welcomed Minister of Police, Mr Nathi Mthethwa, who was present to announce his nomination of the candidate for the head of the Independent Police Investigative Directorate (IPID). She appreciated the public interest in the process, noting she had received one unsolicited public submission on Monday and another one last night, but she did not know who it was from as it was not signed. The first submission, while it was appreciated, dealt more with legislative issues. The Committee would try to look at those issues if it could find the time, which was unlikely, but in any event this would be referred, by way of the legacy report, to the next Committee in the Fifth Parliament, for it to look at. She explained the process did not allow for public participation.

Minister Mthethwa extended his best wishes for the New Year to the Chairperson and Committee. He noted his submission to Parliament, for its consideration, of the nomination of Mr Robert McBride to head IPID. He noted the institution of IPID had been without a permanent head for more than a year. The process of filling this position began with a newspaper advert in 2013 with 49 applicants responding to the advert. Out of the 49, six applicants were shortlisted. The requirements for the post required a recognised post-graduate degree or equivalent qualification, extensive management and leadership skills, a sound knowledge of the functioning of South African Police Service (SAPS) and the municipal police services, and strategic capability with a strong service delivery ethos.

The first round of interviews in June 2013 could not come up with a suitable candidate, while the second round of interviews in September 2013 had isolated what was thought to be the best candidate to take IPID forward. The candidate, Mr Robert McBride, demonstrated a clear understanding and insight of the IPID core mandate and had extensive knowledge of policy and was highly skilled and strategically qualified in his managerial approach. The candidate also possessed the qualifications of a BA in International Politics, B. Tech Honours and a Diploma in Foreign Relations. During the interviews the candidate was found to have performed above average.  He highlighted that the rule of law was sacrosanct and when a court of law made a ruling it needed to be abided by. It was important that those charged with “policing the police” really do their job, especially given the recent developments in the country and some loose comments about the culture of impunity in the police. He was confident that the candidate nominated would dispel this and rise to the occasion. 

Discussion
Rev K Meshoe (ACDP) agreed that the head of IPID must be a suitable and qualified person, but he did not agree that Mr McBride was suitable for two reasons. Firstly, he felt the commanding of respect for one’s character and integrity was very important. The police needed to be policed by a person who showed the highest integrity. He submitted that this nominee could not command such respect  because of his carelessness. He agreed with the Minister about abiding by the findings of the court, but said that often people could be acquitted because of a technicality, which did not necessarily mean the person was not guilty in action. Thus, speaking for his party, the ACDP, he did not believe Mr McBride was suitable because of his lack of integrity. He feared he would fail to set a good example to those he would be leading. Secondly, he saw a conflict of interest, which would be problematic, given that Mr McBride served as a policeman himself and had friends in the police which could compromise him against taking a hard line against those who might have broken the law but who might also be his friends and witnesses. It was for these reasons that the ACDP did not support the nomination of Mr McBride.

The Chairperson noted that was a comment- no question was asked.

Ms Kohler-Barnard thought the appointment would be in total contravention of the Constitution because cadre deployment was deemed illegal by the courts in public administration. The person in charge of the watchdog body must be an individual totally independent of political influence. She believed Mr McBride had shown clearly that he was very deeply involved and loyal to the ANC. In addition, the position had to be filled by a fit and proper person of absolute independence. She asked if consideration was given to how credible it would be to have a former policeman and loyal ANC member protect citizens against those who had been his former colleagues. She did not see that Mr McBride had any legal qualifications, which she saw as being the very cornerstone of an IPID leader to have extreme knowledge of the law. She felt the former incumbent certainly had that, which was why she had been satisfied voting for him despite his history of being a former ANC MP. She thought Mr McBride’s qualifications were not adequate for the position.

The Chairperson noted this was another comment.

Mr P Groenewald (FF+) felt public trust in the executive-director of the Directorate was paramount as IPID was policing the police and this was the body whom the public approached if they had complaints, against the misuse of power and other problems,  as far as the police service was concerned. He asked if the Minister had looked at public trust in the candidate as part of the criteria, and submitted that the public could not have trust in a controversial person.  He cited the example of the Simelane case to do with appointment,  where the Constitutional Court determined the criteria of public trust when it came to selecting a suitable person for a position where integrity was essential, and asked again if this specific aspect was looked at in the criteria. He agreed with the comment on the rule of law was true, but said that the candidate, Mr McBride, was friends with Cyril Beeka, well known in the underworld. He was reminded of the position of Jackie Selebi and his friend, Glen Agliotti. He asked if the Minister was aware of these controversial issues? He further thought it was unfair that he, as a Member, was being asked to make judgement on one candidate only and asked why Members did not receive the short list of six candidates to make their own individual suggestions.

The Chairperson reminded Members that they were responsible for drafting the legislation on the process, and that process had been followed to the letter.

Ms A Molebatsi (ANC) congratulated the panel and the Minister on a job well done by bringing a nominee with such a rich CV. The ANC was sure he would rise to the occasion.

Mr G Lekgetho (ANC) welcomed the nomination for appointment of Mr McBride, who was a very independent thinker performing above average. He said the Court, in the matter against Mr McBride, had not said that he had been released on technical issues. On the comments on cadre deployment by Ms Kohler-Barnard, he said this was nothing but a racial statement. The predecessor, who happened to be white, was not questioned by Ms Kohler-Barnard, and he found it strange that the appointment of Mr McBride, who was non-white, was seen as cadre development. He did not agree with this.

Mr S Thobejane (ANC) thought the Minister was acting with full compliance to what was required. He started by outlining the requirements the post required by law, which all Members heard. No one had raised questions around the qualifications but instead had raised their own individual perceptions. It was no surprise that the Minister was following Parliament’s own laws, passed by the Members themselves. South Africa was what it was because of its own history. The Constitution empowered the President, in terms of section 184, to pardon individuals, which meant their evils should not be referred to anymore. The reason for an opposition in Parliament was to oppose, whether good or bad, so their objections were not surprising. He was satisfied with the presentation given by the Minister.

Mr J Moepeng (ANC) reminded Members they were part of a Committee, not a panel of interviewers so they would ordinarily not expect to have CVs of candidates presented to them. None of the arguments against the appointment was based on what the Minister had presented but were instead far-fetched. He was sure the issues of trust, integrity and acquittal on technicalities were taken care of by the interview panel so it was incorrect to argue against the appointment based on whims. He said some people may not have trust in Mr McBride, but others may do, but that candidate had to be judged on the basis of what the Minister presented to the Committee. His ANC past should not be held against the candidate and it was unfair for Members to argue in that way, as it was Mr McBride’s background at a particular time. It was a non-reason used to display the hatred of certain people. He appealed to Members that they were all South Africans with certain backgrounds as individuals, which should not be used to bar people from benefitting from the proceeds of the country.  

Minister Mthethwa stated that human beings would always hold different views. He thought that he was coming before the Committee, and not a panel of judges. He asked Rev Meshoe to look to the good Book and not be the first to cast the first stone in making judgements. On the issue of cadre deployment and the lack of legal qualification of Mr McBride, he noted that the former incumbent, Francois Beukman, was a very loyal member of the ANC and was now a Member of the legislature again, representing the ANC. When he presented Mr Beukman to the Committee last time as a nominee, he heard no complaints by Ms Kohler-Barnard. People were entitled to their opinions but should not be hypocritical. He would not go as far as saying her comment on cadre deployment was a racial statement but he was surprised to hear them. He explained that within IPID there were different sections – investigations, legal unit and others. Responding to Rev Meshoe, he said he had never seen anything technical in the judgment on the acquittal of Mr McBride – so these allegations were coming from Members and not the courts. He asked that the Mr McBride be judged on the execution of the task at hand. He thanked Ms Molebatsi for her comment, noting that the panel definitely looked at everything but they did not accord themselves the power to be looking at individuals from a godly perspective, as they were no gods. Responding to the issue about the CVs, he said that government had a particular way of going through interviews. Nowhere did it say Members of the Committee should form part of an extended panel, long after the process was done. He was resolved to ensure, and nothing would deter him from ensuring that police officers did their job as they were supposed to do, and that the leadership of IPID would be strengthened, as the Committee had requested.  

Ms Kohler-Barnard noted that Mr McBride had still been trying, until May 2013, to be reinstated as the Ekurhuleni police chief, and that effort failed. At his trial on a drunken driving charge he was referred to as the “tyrant equivalent to Idi Amin” over various officers under his command, and during the trial there were references to kidnapping suspects, rigged promotions, driving state guards across borders for personal errands, rigging crime scenes, assaulting witnesses and covering up crimes.  She asked if this information was taken into consideration by the four ANC Ministers and officials when deciding on the head of IPID. She failed to see how that could be acceptable for the head of IPID. She asked the Minister to reveal details of the other candidates. She had heard that one applicant was a doctor who had an extraordinary CV, but her Promotion of Access to Information Act (PAIA) application had not gone through yet. She asked what had tipped the scales for the panel as she thought the advertisement for the post mentioned the necessity for a legal qualification. If this had been excised it seemed to speak to a predetermined or hand crafted outcome, as the advertisement was seemingly tailored to Mr McBride’s CV.

The Chairperson cautioned Members to quote text in context. Ms Kohler-Barnard was quoting what some of the witnesses had said at the trial. However, she cautioned that it was also necessary to consider what the judge had said, for he had characterised the witnesses as liars and a group of people who came together with the intent to damage Mr McBride. She pleaded with Members to act ethically, in line with holding the highest offices in SA. She highlighted that this Committee had taken out the requirement for a legal qualification, for there was section in IPID which dealt with giving legal advice to the investigators in terms of court cases. She understood this was an election year and there was vicious opposition to the appointment but stressed that Members must be ethical in the way the issue was dealt with.

Rev Meshoe reiterated that the qualifications of the nominee were unquestionable, as far as he was concerned, but he questioned his suitability. He asked if there was anything the nominee had done to earn or restore the trust he had lost. He felt there had to be a measure of trust for the public to know they go could go the office of the nominee and be sure that complaints would be dealt with efficiently.   

Mr Groenewald agreed with the Chairperson about using quotations correctly. He quoted the magistrate who had said that Mr McBride was “an evil man”. He was disappointed as he had asked specifically if the controversy of Mr McBride was taken into account during the evaluation. He was “sick and tired” of Members who, when they could not give an answer, sought to blame matters on apartheid or racism. He asked them to move on as the country was now 20 years into democracy. He noted that it was said that Mr McBride held a postgraduate degree, as the nominee had a B. Tech Honours but the certificate in his package of documents only noted a B. Tech degree, not a Honours degree. He thus asked for the postgraduate certificate of Mr McBride. 

Mr Thobejane noted that when former President, F W De Klerk, who was part of the evil core who had brutally murdered, was given the position of Deputy in command, no one questioned it, as it was part of the process of moving forward. He thought Mr McBride and others deserved to be given the very same opportunities. He felt everyone was focusing on the bad part of Mr McBride’s life and the media naturally had an advantage because they had every platform to communicate. He thought that when there was evil there should be good at the same time - everybody had bad sides to their character, himself included. He urged for the nominee to play his role and for him to be judged out of that. On the issue of trust, he did not trust Ms Kohler-Barnard, but equally she did not trust any ANC member and there was nothing wrong with that because it was the nature of politics. He did not mind if she agreed or did not, since he did not have to impress her, because he was expressing the views of the ANC. The ANC had a responsibility to unify the country, which was once “an ugly country”. 

The Chairperson noted that Members kept raising the issue of trust and asked them not to speak on behalf of the country, as she had seen, in many places, the support for Mr McBride.  

An ANC Whip, who was not part of the Committee, thought that Members would speak to the criteria read out by the Minister but instead they had spoken about probabilities, especially when it came to trust. They needed to be mindful that people did not come from the same background but were representing different constituencies and communities and needed guidance, especially by religious leaders, and pointed out that there were verses which spoke of pardon. He thought religious leaders in politics had their hands full. He thought the example of Idi Amin was unfortunate. He had followed the story of Mr McBride and thought he was a very successful leader in his job. What happened outside of his job was a whole other matter.    

Mr Lekgetho did not know about the charges relating to Mr McBride as highlighted by Rev Meshoe. He thought Mr Groenewald was not helping build a non-racial SA but perpetuating it. 

Mr Groenewald pointed out that Mr Lekgetho was presuming he had supported the previous government, but asserted that Mr Lekgetho was incorrect, as he had never in his life supported the previous government.

The Chairperson asked to be allowed to chair the meeting properly. She thought tolerance was needed – there were statements being made by all sides and Members needed to give each other the same opportunity to speak. She asked Mr Lekgetho to stick to the topic and agenda at hand, ask questions of clarity and for Members to refrain from making personal comments about each other.

Mr Lekgetho continued, noting that it was a very big task building a non-racial country and people should help the cause and not do the opposite.

Mr Moepeng thought that the positive aspect about these deliberations in the Committee was that as issues were being discussed the gap could be seen to be narrowing. He thought it was racist that people only spoke up when it was a black person in question, while when it was a white person nothing was said – it could not be correct. He asked why comments about the prosecution of Mr McBride should be entertained in this meeting as the Members were not a panel of judges- it was not correct. The Committee needed to focus on the facts in front of them which included that Mr McBride was a suitable candidate.

The Minister asked Members to suppress the urge to quote magistrates or anybody else, and to not be selective in their texts, pointing out that it was possible to “go to town” when doing so, and to remember that all matters came to a close. He reiterated that 49 applications were received, and it was the right of Ms Kohler-Barnard to apply for access to documents under the PAIA but if she had made her mind up about somebody it should not be masqueraded as something else, as it was a subjective matter. The comment about South Africans who had lost trust in Mr McBride was subjective. Ever since the Minister had decided, with the Cabinet, on nomination of Mr McBride as the preferred candidate, there had been a debate in the national discourse and when the debate was investigated, the view of South Africans losing trust in Mr McBride was not necessarily accurate. He was not worried about what was being said by Members but instead he was more worried about what was not being said. The call by the former Commander-in-Chief of Umkhonto we Sizwe, Nelson Mandela, to take up arms to fight for liberation might mean nothing to some but it might also mean something to others, as South Africa was not a homogenous whole. The people needed to unite in diversity by understanding the painful past and marching on to try and come together. If someone was accused of a serious offence, it did not necessarily mean that person was guilty until proven otherwise – and in fact precisely the opposite applied. There was a healthy judiciary in the country which everyone needed to respect, not selectively, but to abide wholly by the decisions made by the courts of the land. He was sure the Chairperson could provide any additional information to Members. He emphasised that there could not be situation where IPID was leaderless or where there were accusations of weakness. Members needed to acknowledge that for the past year the situation had not been easy, and there had been some accusations from some corners that SA was a police state, despite it being reiterated that under the government of the ANC there could never be a police state. In some instances the image of the police was in tatters because of some few rogue elements, and someone needed to make a resolution to deal with that. The selection panel had taken time to look at everyone who had come before them.

The Chairperson allowed for the last round of questions noting that repetitions would be ruled out of order because Members had heard several comments for the third or fourth time now.

Mr Groenewald reminded the meeting that he had sought an answer to a specific question on the postgraduate degree. 

The Chairperson said the Minister had already stated he would provide that information to the Committee as he did not have it with him. She would, through the Committee secretary, write to the Minister this afternoon to remind him of the issue.

Ms Kohler-Barnard felt the reference made to the activities of the candidate during the liberation struggle should not have been referred to at all today. She asked if the reputational gravitas of the individual was a mere “tick box exercise” deemed irrelevant by the panel. She asked this because Portugal had refused to allow Mr McBride as a South African ambassador. There was a long list of unacceptable appointments to the SAPS – such as Mr Selebi and Mr Cele –and the question had to be - would this appointment fill South Africans with pride in IPID? She asked how the panel had come to this decision since everything that had been raised today was surely discussed.

The Chairperson felt Members should be careful to decide what should or should not be discussed, as the Minister was allowed to put things into context, given that certain allegations about cadre deployment were made. If the Minister was out of order she would not have hesitated to rule him out of order as well. 

Mr Groenewald asked the Minister whether, if he had a daughter in grade 12 who had a boyfriend accused of five crimes who was found not guilty, the Minister would be happy and trust the boyfriend with his daughter?

The Chairperson noted both Members had asked the same questions in different words. It was up to the Minister whether he wished to answer the last question but she did not think it was necessary.  

Mr Thobejane thought predetermined decisions were dangerous. He felt the Committee needed to take a decision because the facts spoke for themselves.  

Minister Mthethwa took the opportunity to thank Members for expressing their views in a democratic SA as this was extremely important. It made those earmarked for public office think carefully about what was being said. It was also important not to generalise as the society was not a homogenous whole, but comprised of people who belonged to different schools of thought. He noted that the media had played a role in the life of Mr McBride, and in some instances he had been unfairly treated and portrayed in certain way but, as one Member had expressed, insufficient attention had been paid to the good in his life. But Mr McBride would not be shaped by allegations against which could not stand the test of courts of law. He would rather stick to constructive than destructive questions such as the last one asked by Mr Groenewald. One the requirements for the Head of IPID post was that the applicant must have a relevant postgraduate degree, or equivalent qualification with extensive management experience and proven leadership skills. He noted that the reason why Mr McBride was nominated was that it was felt that his appointment would help IPID achieve what it wanted to achieve and to see a difference in how members of SAPS conducted themselves. The majority were acting correctly, but any minority who were not doing what they were supposed to be would be stopped. Mr McBride was nominated for the position in order to change things. 

The Chairperson reminded Members that all qualifications for all Deputy Director-General (DDG) were verified by the South African Qualifications Authority (SAQA) before going to Cabinet. 

Mr Thobejane proposed that the Committee take a decision on the matter, by vote, if it was necessary and to agree with the nomination of Mr McBride.

Mr Groenewald said he was opposed to the nomination as he was not sure whether the technical requirements had been fulfilled, in terms of Mr McBride’s postgraduate qualifications. He felt the Committee could not make a decision on something if there was no proof, as this would be technically incorrect.  

Mr Moepeng highlighted the requirements said a “postgraduate qualification or an equivalent”. He felt the latter needed to be taken into consideration. It had already been said that qualifications were verified and as far as this process was concerned, the panel had decided that Mr McBride had met the requirements which had been set for every candidate who had applied. On this basis, it seemed there was no other issue to opposing the appointment of Mr McBride. He seconded Mr Thobejane’s view that the matter should be closed and that Members vote. 

The Chairperson said the Member had made an important point about the verification of qualifications by SAQA which she had already indicated. The requirements had called for a post-graduate qualification or equivalent thereof. She pleaded with Members to recognise that they would receive the verification by SAQA as the Minister had indicated.    

Mr Groenewald thought it was fair that the issue was deliberated on. When the Minister began, he only mentioned a postgraduate degree and now it was being said “or a similar qualification”. He did not question the authentication of the certificate but wanted an indication of what a “similar qualification” was. He needed this for clarity.  

The Chairperson said the Minister made it quite clear at the start that “or equivalent” was accepted. Members should then ask the South African Qualifications Authority what was regarded as an equivalent if they were not happy. The Minister had given the undertaking that the Committee would get the information. She wondered if Members did not trust the Minister – if so, they should put a motion before the House on that.

Mr Groenewald thought it was unfair to ask whether he trusted the Minister- the Minister knew if he trusted him or not. If he had to ask SAQA what an equivalent qualification was, then he asked what the Minister saw or evaluated as an equivalent postgraduate degree to nominate this candidate.

The Chairperson interjected to ask members of the public to respect the Committee. She had observed that public participation had been taking place throughout the meeting. 

Mr Moepeng thought the Committee should check the provisions as to what the Committee could possibly do if members of the public behaved in the manner that they were currently. He felt they were disrupting  the Committee from executing their responsibilities, and Members would never go to any workplace and interfere in the process of anybody doing the work he or she was assigned to do. The issue of qualifications did not stop the Committee from taking a decision. The suggestion of the need to check with SAQA was a delaying tactic to prevent the Committee from executing its responsibility and the Minister from effecting his decision. If the Committee could not agree, than the matter should go to a vote  

Ms Kohler-Barnard thought there was confusion around the “or equivalent” degree. It was said that Mr McBride had an Honours degree, but there was no proof that it existed, as no certificate was presented for Members to deliberate on, as it should have been.

The Chairperson asked for a short recess to consult with the Parliamentary Law Advisors.

After a short recess the Members received a copy of the postgraduate certificate.
 
Minister Mthethwa noted the certificate was a B. Tech Honours in Policy, which was a four-year degree, as he had indicated at the beginning of the meeting.

The Chairperson felt this issue was now put to rest. It was a four-year degree which meant the recipient of the degree could go on to study toward a Masters degree thereafter. The motion on the floor was to put the matter to a vote. She asked if there were any objections to this motion.

Mr Groenewald thanked the Chairperson for the information but asked why the Committee had to wait so long for it. He knew there were four-year courses which were an equivalent to Honours.  

The Chairperson noted the leader of the Member’s party was a lecturer, in fact Head of Department, at a university that provided a four-year degree which was also an equivalent to Honours.

Mr Groenewald did not want to be arrogant, but pointed out that he had his PhD and knew the process.

The Chairperson said the Member had waited for the certificate because he had requested it.

She Chairperson then put the motion for the Committee to endorse the appointment of Mr Robert McBride as the head of IPID.

There were objections to this motion from the FF+, DA and ACDP.

There were seven Members in favour of the motion.

Mr Groenewald raised a point of order that the ANC Whip present was not a Member of the Committee yet he had raised his hand in favour of the motion.

The Chairperson said that she had not counted the Whip’s hand, but she had counted herself, which meant seven in favour of the motion.

Mr Groenewald then felt the Whip should not raise his hand.

The Chairperson said again that the motion stood that the Committee proposed Mr Robert McBride to Parliament for the head of the Independent Police Investigative Directorate (IPID). She asked Members to raise their hands again.

There were seven votes from the ANC recorded in favour of this motion.

There were three votes from opposition parties in objection to this motion.  

The Chairperson announced that the motion was then carried and the Committee would convey its report supporting the nomination of Mr McBride as head of IPID to Parliament.

The Chairperson noted that in the following week, the Committee had an oversight visit to the Eastern Cape.

The meeting was adjourned.