Hon Deputy Speaker, hon Minister, hon members, in 2005, Parliament adopted a report from the then Portfolio Committee on Safety and Security. The report was a product of interaction over a period of time between the portfolio committee and the national office of the ICD and its provincial offices. Serious concerns were raised in the report and some recommendations were made. Amongst these recommendations were that in order for the ICD to function properly it required legislation separate from that of the SA Police Service Act. Not only would separate legislation enhance the independence of the directorate, but it would also provide an opportunity to deal extensively with the operational and structural challenges facing the directorate.
The Bill before the House today addresses all these issues and more. It provides the framework for a strong, well-empowered and effective police oversight body. The truth is that we require of our men and women in blue to be the custodians of our laws, to execute their duties with honour and dignity and to, at all times, act in such a manner that will enhance public respect and confidence. Any elements within the police whom are bringing dishonour to the police should face the full might of the law.
The Bill determines that the national office will provide for strategic direction and administrative support. It is at provincial offices where the actual work will take place and where we should create capacity.
Chapter 5 of the Bill provides for the establishment of provincial offices. It deals with the appointment of provincial heads by the executive director and requirements regarding their performance agreements. In the past, high vacancy rates within the ICD were a huge problem, especially at provincial offices, and the committee wanted to ensure that we will not have a repeat of that. As a result, section 20(5) determines that the executive director must fill vacancies at the level of a provincial head within a period not exceeding six months.
Section 21 deals with the responsibilities of the provincial heads. These include the normal administrative and financial functions. It further empowers the provincial heads to refer matters investigated at this level to prosecuting authorities for a decision on criminal prosecution. The provincial heads must also provide the executive director with reports on matters investigated and the finalisation and recommendations of cases. They must also report to the relevant MEC on matters that were referred by the MEC to the provincial head.
In chapter 6, the Bill deals with investigators' appointments, their functions and the powers they have. In order to be appointed as an investigator, applicants will have to undergo a security screening. This must be done in conjunction with the National Intelligence Agency, NIA. Investigators can also be subject to further security clearances from time to time. Any investigator who does not comply with security clearance prescripts must be discharged from their position as an investigator. All investigators will be given policing powers, and this chapter obliges the Minister to bestow such powers on an investigator within three months after they have been appointed.
Investigators have powers provided for in the Criminal Procedure Act, Act 51 of 1977, relating to the following: the investigation of offences; the ascertainment of bodily features of an accused; the entry and search of premises; the seizure and disposal of articles; arrests; the execution of warrants; and the attendance of an accused person in court. Investigators will also be able to direct any person to submit an affidavit or affirmed declaration. They can also direct any person to appear before them or to give evidence and hand over documents that have a bearing on a case that is investigated. They may also question persons on such evidence.
Section 25 deals with conflicts of interest and the disclosure of such interests by investigators. Any investigator who has financial or other interests in a case that is being investigated must declare so, and they will have to withdraw from such an investigation if they have a conflict of interest. Like with the legislation that deals with the Hawks, this Bill also makes provision for integrity measures that may be prescribed by the Minister.
Section 28 of the Bill deals with the type of matters that the Independent Police Investigative Directorate will be investigating. This is one of the sections of the Bill that resulted in the most debate. Before I deal with this section, I think it's important to highlight that there are different departure points on this issue. There are those - and we have seen them today in action - who would like to create the impression that the police cannot investigate itself or its own. This is a view that we as the ANC do not share. There are, as we speak, ex-police officers locked up in our jails because of criminal investigations conducted by the police themselves. There are many examples. Over just the last few weeks, the police acted decisively against criminal elements that infiltrated their ranks.
The ANC believes that, ultimately, the police remain responsible to investigate acts of criminality, no matter who committed those acts. We do not subscribe to the hysterical notion that all of the police are corrupt or criminal. We believe that the majority of our police are hardworking, honest men and women who execute their duties with honour. That said, we need to focus Ipid where its action will make the most and a lasting difference. The action that they take should not only address the individual police officer who did wrong, but must also send a clear message to the rest of the Service while influencing, with lasting impact, the way in which things are done and the way police conduct themselves.
Section 28 determines that Ipid must investigate all deaths in police custody and any deaths as a result of police actions. These actions include any deaths that occurs while the police were busy executing their duties. This provision also allows for planned operations by the police. But it also allows for those incidents where a police officer puts himself or herself back on duty to effect an arrest. The debate around this issue was whether we should include any deaths by a police officer while on or off duty. If, for example, a police officer who is not on duty visits a club, gets into an argument and then murders a person, it is our view that this is simply a criminal matter and as such an investigation must be handled accordingly and be investigated by the police.
Furthermore, Ipid must investigate any complaint relating to the discharge of an official firearm by a police officer. The deciding factor here is that there must be a complainant and there does not necessarily have to be an injury as a result of such shooting. An example here would be the inquest conducted by the Human Rights Commission into the shooting by Metro police officers in the City of Cape Town in 2007 during xenophobic attacks, where municipal police officers shot at two young boys playing innocently. While there was no injury, this was clearly an abuse of power and a shockingly inhumane action.
This section also obliges Ipid to investigate all cases of rape where the accused is a police officer, whether that police officer has been on or off duty. Many members have spoken about this point. It was felt that it is important that Ipid investigates such cases as part of government's commitment to address crimes against women and children decisively. Furthermore, Ipid will also investigate any cases of rape while such a person was in the custody of the police. Here it does not matter who the perpetrator is. The fact that the person got raped while in police custody indicates some form of negligence on the part of the police. The investigation in this regard will not only focus on who committed the crime, but also on why it was possible for a rape to be committed while the person was in the custody of the police.
Complaints of torture and assault against a police officer must also be investigated. The executive director can initiate investigations of corruption on his or her own or after the receipt of a complaint by a member of the public or when a case was referred by the Minister. Furthermore, Ipid must investigate any other matter referred to it by the Minister, an MEC or the Secretary of Police.
The issue of systemic corruption may be investigated by the directorate. The concept of systemic corruption was, to some, abstract. Typically, the nature of systemic corruption would be, for instance, where it is reported that a specific police station is involved in the bribing of foreigners. Something within the station - the command and control of the station or the systems used - allows for this to happen. Here the focus would not only be on who was involved in the corruption, but also on how it was possible for them to be involved.
Chapter 7 deals with the reporting obligations and co-operation by members of the SAPS and municipal police services and disciplinary recommendations. This has been one of the biggest complaints by the ICD over the years and one of the greatest criticisms against their effectiveness. Many of the cases they investigate might not result in a criminal procedure, but the recommendation might be that disciplinary action be taken by the SAPS. There was no obligation on the SAPS to implement such recommendations, and they were often just ignored. This section in the Bill changes that completely. Section 29 obliges any member of the SAPS to immediately inform Ipid if they become aware of any matter contemplated in section 28 - the offences. Within 24 hours after that the SAPS must submit a written report to the directorate. Section 29(2) spells out the co-operation that is required from the SAPS and municipal police members during an investigation. This includes assisting Ipid investigators to arrange ID parades within 48 hours after being requested and securing the availability of members for affidavits, statements, necessary documents and to give evidence.
Where Ipid's recommendation is that disciplinary steps be taken against a member or members, the national commissioner or the appropriate provincial commissioner is now obliged to institute disciplinary hearings within 30 days after receiving the recommendation. Clearly, this now takes away the discretionary handling of recommendations by the police or municipal police. On a quarterly basis, a report on the progress of such disciplinary matters must be submitted to the Minister with copies of it to the executive director and the Secretary of Police. Upon finalisation, the national commissioner or relevant provincial commissioner must inform the Minister of the outcome of such hearings and again submit copies to the executive director and the Secretary of Police.
Chapter 9 deals with offences and penalties. Any person or private entity who interferes, hinders or obstructs the directorate is guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years. Members of the directorate who disclose information that can affect a case will face the same sanction. Most important in this section is that the police officers who are in contravention with regard to anything contained in section 29 will also be liable to a fine or a period of imprisonment not exceeding two years. There is no one set of teeth in this Bill, but there are about 10 sets of teeth in this Bill.
Ipid, through the executive director, has the same reporting obligations as any other department to the Minister, the Auditor-General and Parliament.
We have no doubt in our minds that this Bill thoroughly addresses the shortcomings in the previous legislation. We further believe that, if properly implemented and executed with diligence, the Bill will go a long way in further instilling a culture of human rights, an ethos of service and an approach above any suspicion within the SAPS and municipal police services. Our people expect and deserve nothing less. The ball is now in the hands of the leadership of the executive director and his staff to make the difference.
Hon Kohler-Barnard raised a few issues that I just quickly want to respond to. But I am going to do so in basically one sentence. Hon Kohler-Barnard, I think is time to consider retirement and start writing that melodrama that you present to us on a daily basis. The Minister is not responsible for whether the ICD is known or not known out there. That is the responsibility of the leadership of the ICD, and we must make sure, as Parliament, that they actually do that. I thank you. [Applause.]