1. 11
Amendments made during deliberations by the Portfolio Committee on Police against the Constitutional Court Judgement
SAPS Amendment Bill
[B7-2012]
16 May 2012
RESEARCH UNIT 11
Nicolette van Zyl-Gous

2. Structure of the Presentation22
Introduction
Structure of the Presentation
The presentation will summarise the findings made by the Constitutional Court Judgement and specific requirements identified.
It will then review concerns raised by public submissions and also review the legal basis recommended by the Organisation for Economic Co- operation and Development (OECD) for anti-corruption agencies worldwide.
In conclusion, it will consider the amendments made to the bill against the findings of the Constitutional Court Judgement and the incorporation of recommendations made through public submissions. 22

3. Constitutional Court Judgement33
Constitutional Court Judgement
The Constitutional Court posed two main questions to be determined regarding the constitutional integrity of the 2008 SAPS Amendment Act:
Firstly, whether the Constitution requires the State to establish and maintain an independent institution or unit to combat corruption and organised crime. On which the Court found that the Constitution does impose an obligation on the State to establish and maintain an independent body to combat corruption and organised crime.
Secondly, whether the Directorate for Priority Crime Investigation meet the requirement of independence on which the Court found that the Directorate did not display adequate safeguards to ensure independence. 33

4. Constitutional Court Judgement cont.44
Constitutional Court Judgement cont.
The Constitutional Court focused on three major aspects of the legislation namely:
1) The operational and structural independence of the DPCI and whether this conforms to the requirements set for an anti-corruption agency;
2) Security of tenure and remuneration; and
3) The accountability and oversight by the Ministerial Committee, which was found to undermine the independence of the DPCI. 44

5. Concerns raised 55 Public Submissions
The Portfolio Committee on Police received twenty-one written submissions of which twelve were substantive. During public hearings the committee invited eight organisations and/or individuals to make oral submissions. The specific concerns raised by organisations were based on the following aspects of the bill:
Mandate
Location
Structural and operational independence
Financial independence
Judicial oversight
Appointment and removal of the Head of the DPCI
The lack of security of tenure and remuneration afforded to all members of the Directorate. 55

6. Legal Basis of Anti-Corruption Agencies66
Legal Basis of Anti-Corruption Agencies
OECD Report
The report published by the Organisation for Economic Co-operation and Development (OECD) on a review of specialises anti-corruption institutions, states that an anti-corruption institution should have a clear legal basis governing the following areas:
Mandate
Institutional placement (location)
Appointment and removal of its director
Internal structure, functions, jurisdiction, powers and responsibilities,
Adequate budget allocation
Personnel-related matters, like the selection and recruitment of personnel
Special provisions relating to immunities of the personnel if appropriate,
Relationships with other institutions, in particular with law enforcement and financial control bodies, and
Accountability and reporting. 66

7. 77
Mandate
Concerns were raised during public hearings in that the mandate of the DPCI is not clearly defined and that ‘selected offences’ are too broadly outlined. The Portfolio Committee resolved this concern, by providing for the following:
Clause 3 of the Bill gives effect to the National Head of the Directorate to decide which matters will be investigated on a provincial or national level, in accordance with approved policy guidelines.
Clause 8 of the bill provides that the functions of the Directorate are to prevent, combat and investigate national priority offences and selected offences, not limited to, those offences as contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004).
The National Head of the Directorate is to direct investigations after consultation with the Provincial Commissioner concerned and no longer ‘in’ consultation with that Provincial Commissioner.
New clause inserted to ensure that there is co-operation and no conflict between the provisions of Chapter 6A and the rest of the SAPS Act, ensuring a clear mandate.
Also, In the event of a dispute between the National Head and the National Commissioner or the National Head and a Provincial Commissioner regarding the question whether criminal conduct falls within the mandate of the Directorate, the determination of the National Head of the DPCI shall prevail. 77

8. 88
Location
The placement of the DPCI was identified as a major concern during public hearings as well as committee deliberations.
Paragraph 214 of the Constitutional Court judgement states: “The Constitution requires the creation of an adequately independent anti-corruption unit. It also requires that a member of the Cabinet must be responsible for policing. These constitutional duties can productively co-exist, and will do so, provided only that the anti-corruption unit, whether placed within the police force (as is the DPCI) or in the NPA (as was the DSO), has sufficient attributes of independence to fulfil the functions required of it under the Bill of Rights. The member of Cabinet responsible for policing must fulfil that responsibility under section 206(1) with due regard to the state‘s constitutional obligations under section 7(2) of the Constitution.”
The Constitutional Court thus found that the placement of the DPCI in the South African Police Service did not offend the Constitution provided that the directorate displays adequate structural and operational independence.
During final deliberations, Parliamentary Law Advisors argued that the independence of the DPCI, in terms of amendments made to the bill as it currently stands, is not compromised and thus the location a non-issue. 88

9. Security of Tenure and Remuneration99
Security of Tenure and Remuneration
Appointment of the Head, Deputy Head and Provincial Heads
The appointment of the National Head, Deputy National Head and Provincial Heads received much criticism in public submissions. These were in terms of (1) lack of criteria for appointment, (2) lack of minimum term of appointment, (3) the retention of the Head after the age of 60 years, (4) the power of the Minister of Police to appoint the Head, and (5) the veto right provided to the Minister in the appointment of the Deputy Head. These concerns were addressed in that:
The National Head, Deputy National Head and Provincial Heads of the DPCI are now appointed on a “non-renewable fixed-term of not shorter than seven years and not exceeding ten years”. This provides for a fixed term appointment, clearly stating both the minimum and maximum term of appointment.
The criteria for the appointment of the Head, Deputy Head and Provincial Heads was stipulated in that the Head, Deputy Head and Provincial Heads will be “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities if the office concerned”. 99

10. Security of Tenure and Remuneration
Security of Tenure and Remuneration
Removal from office of the National Head of the Directorate
Most submissions received by the committee indicated the removal of the Head from office as a major concern. It was argued that the wording in itself was based on subjective bases. The committee resolved this concern by changing the section heading (“Loss of Confidence”) to “Removal from Office of the Head of the Directorate”.
This section was further strengthened by the Portfolio Committee, in that:
The Minister may provisionally suspend the National Head of the DPCI pending an enquiry into his/her fitness to hold office.
The reason for the removal of the National Head shall be communicated to Parliament in writing within 14 days of such removal.
The manner in which and by who the enquiry to remove the Head is specified in that the enquiry must be done subject to the provisions made in the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000) and must be led by a judge or retired judge, who shall be appointed by the Minister after consultation with the Minister of Justice and Constitutional Development and the Chief Justice.
In the event of an enquiry against the Head, he or she will be informed of the allegations against him/her and will be afforded an opportunity to make submissions to the enquiry.

11. Security of Tenure and Remuneration
Security of Tenure and Remuneration
Removal from office of the National Head of the Directorate...2/2
The National Head of the Directorate may be removed from office on ground of misconduct, incapacity or incompetence on a finding to that effect by a Committee of the National Assembly.
The adoption of a resolution by the National Assembly calling for the Head’s removal given that the resolution of the National Assembly is adopted by a supporting vote of at least two thirds of the members of the National Assembly.
Provision previously made for the Head of the Directorate to be suspended without salary had been removed and now state that the Head will be entitled to any salary, allowance, privilege or benefit to which he/she is otherwise entitled, unless the Minister determines otherwise.
The National Head of the DPCI may request to vacate his/her office on account of continued ill health or any other reason which the Minister deems sufficient.

12. Security of Tenure and Remuneration
Security of Tenure and Remuneration
Statutory Secured Remuneration for the National Head, Deputy National Head
and Provincial Heads
Provision is made for statutorily secured levels of remuneration in terms of the following:
The salary paid to the Head of the Directorate shall not be less than the highest paid Deputy National Commissioner
The salary paid to the Deputy Head of the Directorate in that the salary of the Deputy Head shall not be less than the highest paid Divisional Commissioner
The salary paid to any of the nine Provincial Heads shall not be less than the most senior Deputy Provincial Commissioner.
The Minister must submit the remuneration scale payable to the National Head, Deputy National Head and Provincial Heads to Parliament for approval, and such remuneration scale may not be reduced except with the concurrence of Parliament.
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13. Security of Tenure and Remuneration
Security of Tenure and Remuneration
Deputy Head, Provincial Heads, members and administrative staff
The lack of security of tenure of all members of the Directorate was also raised during public submissions in that provision is only made for key personnel and not ordinary members of the Directorate.
In providing security of tenure for all members of the Directorate, provision is now made in that “No Deputy Head, Provincial Head of the Directorate, member or administrative staff of the Directorate may be transferred or dismissed from the Directorate, except after the approval of the Head of the Directorate (Section 17CA).
Any disciplinary action against a Head, Provincial Head, member or employee in the service of the Directorate shall be considered and finalised within the Directorate’s structure subject to the relevant prescripts
The Minister may make regulations in respect of the remuneration, allowances and other conditions of service of other members if the Directorate which must be submitted to Parliament for approval.

14.
Independence
The Constitution Court judgement found that the lack of independence was reflected most significantly in the absence of security of tenure protecting the employment of the members of the Directorate and in the provisions for direct political oversight of the entity’s functioning.
It stated that the Constitution requires the creation of an adequately independent anti-corruption unit. And that it also requires that a member of the Cabinet must be responsible for policing. It argued that adequate independence does not require insulation from political accountability and that it would be averse to the South African Constitution. It asserted that these constitutional duties can productively co-exist, and will do so, provided only that the anti-corruption unit, whether placed within the police service (as is the DPCI) or in the NPA (as was the DSO), has sufficient attributes of independence to fulfil the functions required of it under the Bill of Rights.
The Constitutional Court made it clear that adequate independence is assessed on the basis of factors such as security of tenure and remuneration, and mechanisms for accountability and oversight. It remains these three factors which needs to satisfy the requirements as set out by the Constitutional Court Judgement.

15. Perceived Independence
Perceived Independence
The Constitutional Court requires that a reasonable and informed member of the public must perceive the DPCI to be independent. Perceptions are subjective in nature, however the amendments made by the committee to promote perceived independence are:
The National Head of the Directorate shall be accountable to the Minister, thus clearly defining the reporting line for the Head of the Directorate to the Minister of Police and not the National Commissioner, consequently significantly strengthening structural independence of the Directorate.
Provision is made for the Civilian Secretariat for Police, in consultation with the retired judge, to develop and implement a plan to promote awareness of the complaints mechanism to the public as well as members of the Service.
Section 17C(2) provides that the National Head of the Directorate at national level, is no longer appointed in the rank of a Deputy National Commissioner. Several concerns were raised that appointing the Head as a National Deputy Commissioner, the Head will automatically be subordinate to the National Commissioner of Police, which is now removed.
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16. Perceived Independence...cont 2/2
Perceived Independence...cont 2/2
To further strengthen the perceived independence of the Directorate in terms of the concerns raised regarding the subordinate position of the Head of the Directorate to that of the National Commissioner, it was agreed that the Head of the Directorate will have the title of National Head of the DPCI. Similarly, the Deputy Head will be titled Deputy National Head of the DPCI and the Provincial Heads as Provincial Head of the DPCI.
The Committee further strengthens perceived independence in that Section 17C(3), affords the National Head of the Directorate the mandate to manage and control over all members of the Directorate.
Section 17DB affords The National Head of the Directorate the right to determine the fixed establishment of the Directorate and the number and grading of posts, in consultation with the Minister and the Minister for the Public Service and Administration and no longer after consultation with the National Commissioner and also the appoint the staff of the Directorate: Provided that where a member of the Service is appointed to the Directorate, the National Head must do so after consultation with the National Commissioner.
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17. Financial Independence
Financial Independence
The Helen Suzman Foundation, CASAC, Prof de Vos and the Open Society Foundation indicated that the lack of financial independence as a major concern and submitted that the Head of the Directorate should prepare the budget of the Directorate. In this regard:
Provision is made for the Head of the Directorate to prepare the budget of the Directorate in consultation with the National Commissioner. This is opposed to the National Commissioner drafting the budget after consultation with the Head.
In the event that the Head of the Directorate and the National Commissioner are unable to agree on the budget allocations, the Minister of Police will intervene and mediate between the parties.
The National Commissioner must involve the Head of the Directorate in all consultation relating to the budget of the directorate including consultations with National Treasury.
Funding of the Directorate, appropriated by Parliament, must be regarded as specifically and exclusively appropriated for the Directorate and may only be utilised for that purpose.
The Head of the Directorate shall have control over earmarked funds at national and provincial level.

18. Accountability and Oversight
Accountability and Oversight
Parliamentary Oversight
The National Commissioner shall include a report in respect of the performance of the Directorate as a programme of the Service in the annual report to Parliament in terms of section 40(d) of the Public Finance Management Act,1999 (Act No. 1 of 1999).
Provision is also made for the Head of the Directorate, not the National Commissioner, to make the annual presentation on the budget and Annual Report of the Directorate to Parliament.
Parliament maintains the function of scrutiny over Annual Report, Budget Allocation, Annual Performance Plans and Strategic Plans of the Department of Police and that of the Directorate.
The Minster of Police must submit the remuneration scale payable to the Head, Deputy Head and Provincial Heads to Parliament for approval and such remuneration scale may not be reduced except with the concurrence of Parliament.
Similarly, the Minister may make regulations in respect of the remuneration, allowances and other conditions of service of other members of the Directorate which must be submitted to Parliament for approval.

19. Accountability and Oversight
Accountability and Oversight
Parliamentary Oversight cont...2/2
Parliament may also adopt a resolution with at least two-thirds majority of both Houses of Parliament, following an investigation by a Joint Committee of Parliament into the fitness of the Head, for the removal from office of the Head of the Directorate. Pervious concerns were raised in that this section stated that both Houses of Parliament could remove the Head without provisions made for an enquiry.
The Minister shall determine, with the concurrence of Parliament, policy guidelines for the selection of national priority offences by the Head of the Directorate referred to in section 17D(1)(a) of the Act and policy guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate referred to in section 17D(1)(b) of the Act.
The Minister shall report the appointment of the Head of Directorate to Parliament.

20. Accountability and Oversight
Accountability and Oversight
Ministerial Committee
One of the major concerns raised by the Constitutional Court was the threat of undue political influence posed by the Ministerial Committee. It received a great deal of attention and subsequently, the bill, as originally drafted removed almost all power previously given to the Ministerial Committee.
The Ministerial Committee no longer drafts the policy guidelines of the Directorate, it is now determined by the Minister of Police in concurrence of Parliament.
The Ministerial Committee may only determine procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions.
It is further provided that the Ministerial Committee must now provide a report to Parliament on its activities, as part of the Directorate’s Annual Report and also at any time if requested to do so by Parliament.
The National Commissioner and the Head of the Directorate is no longer mandated to provide performance and implementation reports to the Ministerial Committee its request.

21.
Judicial Oversight
The main concern regarding judicial oversight was that of the reactive nature of the complaints mechanism and that not enough is done to safeguard against undue political influence. This was addressed in the following manner:
Judicial oversight is strengthened by the provision made that any interference with the performance of any member of the directorate is a criminal offence and punishable by imprisonment and/or a fine.
It is further provided that the annual operational budget of the Office of the Retired Judge must be prepared by the retired judge, in consultation with the Secretariat, and provided for in the budget of the Civilian Secretariat for Police which constitutes earmarked funds.
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22.
Adoption
The South African Police Service Amendment Bill [B7-2012] was adopted by Portfolio Committee on Police on 16 May 2012.

23.
Thank you
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