BRIEFING TO SELECT COMMITTEE FOR SECURITY AND CONSTITUTIONAL AFFAIRS

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BRIEFING TO SELECT COMMITTEE FOR SECURITY AND
CONSTITUTIONAL AFFAIRS

• SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL
• B 30B 2008

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BACKGROUND

• The Committee was, together with the Portfolio
  Committees on Justice and Constitutional
  Development and for Safety and Security,
  involved in the public hearings on the Bill.
• The Committee is familiar with the public
  hearings and deliberations on the Bill.
• Focus is therefore on the contents of the Bill as
  approved by the National Assembly.
• Some provisions of the Bill as it was introduced
  have been transferred to the National Prosecuting
  Authority Amendment Bill, 2008, which will be
  dealt with by the Department of Justice.

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CLAUSE 1Amendment of s. 5 of the South African
Police Service Act, 1995

• 5. Establishment and composition of Service
• (1) The South African Police Service
  contemplated in section 214 (1) of the
  Constitution is hereby established.
• (2) The Service shall consist of-
• (a) all persons who immediately before the
  commencement of this Act were members-
• (i) of a force which, by virtue of section 236
  (7) (a) of the Constitution, is deemed to
  constitute part of the Service
• (ii) appointed under the Rationalisation
  Proclamation
• (iii) of the Reserve by virtue of section 12
  (2) (k) of the Rationalisation Proclamation
• (b) members appointed in terms of section 28 (2)
  of this Act and
• (c) persons who become members of the Reserve
  under section 48 (2) of this Act and
• (d) members appointed to the Directorate for
  Priority Crime Investigation established by
  section 17C.

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CLAUSE 2Amendment of s. 16 of the South African
Police Service Act, 1995

• Section 16 of the Act provides for organised
  crime, crime which requires national prevention
  or investigation, or crime which requires
  specialised skills in the prevention and
  investigation thereof.
• It represents basically the mandate and type of
  cases from which the Directorate for Priority
  Crime Investigation will select its
  investigations or from which cases will be
  referred to it.
• Section 16 is aligned to the provisions in the
  National Prosecuting Authority Act, 1998,
  relating to organised crime, which provisions are
  repealed.

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CLAUSE 2Amendment of s. 16 of the South African
Police Service Act, 1995

• Section 16(1) of the South African Police Service
  Act provides
• (1) Circumstances amounting to criminal conduct
  or an endeavour thereto, as set out in subsection
  (2), shall be regarded as organised crime, crime
  which requires national prevention or
  investigation, or crime which requires
  specialised skills in the prevention and
  investigation thereof.

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CLAUSE 2Amendment of s. 16 of the SA Police
Service Act, 1995

• Amendment of subsection (2) of section 16
• (2) Circumstances contemplated in subsection (1)
  comprise criminal conduct or endeavour thereto-
• (a) by any enterprise or group of persons who
  have a common goal in committing crimes in an
  organised manner
• by a person, group of persons or syndicate acting
  in-
• (i) an organised fashion
• (ii) a manner which could result in substantial
  financial gain for the person, group or
  syndicate involved.

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CLAUSE 2 Section 16.

• The following subsection is inserted to describe
  organised fashion, referred to above
• (2A) For the purpose of subparagraph (a)(i),
  organised fashion includes the planned,
  ongoing, continuous or repeated participation,
  involvement or engagement in at least two
  incidents of criminal or unlawful conduct that
  has the same or similar intents, results,
  accomplices, victims or methods of commission, or
  otherwise are related by distinguishing
  characteristics.

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CLAUSE 2

• A schedule of offences which are added to the
  offences mentioned in section 16(2) of the SA
  Police Service Act, 1995, is inserted in section
  16(2), as paragraph 16(2)(iA).
• Schedule on following slide

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Clauses 2 5 Schedule of offences (Section
16(2)(iA))

• 1 High treason
• 2 any offence in paragraph (a) of the
  definition of specified offence of the
  Protection of Constitutional Democracy against
  Terrorist and Related Activities Act, 2004
• 3 sedition
• 4 any offence in Schedule 1 to the
  Implementation of the Rome Statute of the
  International Criminal Court Act, 2002
• 5 any offence in Chapters 2, 3 and 4 of the
  Prevention of Organised Crime Act, 1998
• 6 any offence in section 13(f) of the Drugs and
  Drug Trafficking Act, 1992
• 7 any offence in the Non-Proliferation of
  Weapons of Mass Destruction Act, 1993
• 8 any offence relating to the dealing in or
  smuggling of ammunition, firearms, explosives or
  armament and the unlawful possession of such
  firearms, explosives or armament
• 9 any offence in Chapter 2 and section 34 of the
  Prevention and Combating of Corrupt Activities
  Act, 2004
• 10 any offence in the Regulation of Foreign
  Military Assistance Act, 1998 or the Prohibition
  of Mercenary Activities and the Regulation of
  Certain Activities in Country of Armed Conflict
  Act, 2006
• 11 any offence referred to in the National
  Conventional Arms Control Act, 2002
• 12 any offence the punishment wherefor may be
  imprisonment for life.

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CLAUSE 3Inserts Chapter 6A in South African
Police Service Act

• Proposed section 16A, provides for definitions of
  Directorate, national priority offence, and
  Operational Committee.

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CLAUSE 3 Proposed Section 16B

• Proposed section 16B provides for the-
• Application of the Chapter referring to the need
  to establish a Directorate to prevent,
  investigate and combat national priority
  offences.
• The underlying principles to ensure that the
  Directorate-
• implements a multi-disciplinary approach, and
  integrated methodology involving cooperation of
  relevant Govt .depts and institutions,
• has the necessary independence to perform its
  functions
• is equipped with appropriate human and financial
  resources to perform its functions
• is staffed through the transfer, appointment and
  secondment, with personnel whose integrity is
  beyond reproach.

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CLAUSE 3Inserts Chapter 6A in South African
Police Service Act

• Directorate means the Directorate for Priority
  Crime Investigation (DPCI).
• National priority offence means organised
  crime, crime that requires national prevention or
  investigation, or crime which requires
  specialised skills, in the prevention and
  investigation thereof, as referred to in section
  16(1).
• Operational Committee means the Committee (of
  senior officials) established by section 17J.

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CLAUSE 3PROPOSED section 17C

• The Directorate is established as a Division of
  the Service, comprising-
• The Head- A Deputy National Commissioner
  appointed by the Minister in concurrence with
  Cabinet.
• Persons appointed by the National Commissioner on
  recommendation of the Head on the basis of,
  amongst others, experience, training, skills,
  competence or knowledge
• An adequate number of legal officers, persons
  seconded from other Government depts or
  institutions.

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CLAUSE 3 Proposed section 17D.

• DPCIs Functions to prevent, combat and
  investigate
• national priority offences, selected by the Head
  of the Directorate, subject to policy guidelines
  issued by Ministerial Committee
• offences or category of offences referred to it
  by National Commissioner, subject to policy
  guidelines by the Ministerial Committee.
• (2) extension of existing investigation by the
  Head in the interests of justice, or in public
  interest, to include offence suspected to be
  connected with the subject of the investigation.
• (3) Head of the Directorate may request NDPP to
  designate a Director of Public Prosecutions to
  conduct an investigation in terms of section 28
  of the National Prosecuting Authority Act, 1998.

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CLAUSE 3 Proposed section 17E Security screening
and integrity measures

• Any person appointed to Directorate subject to
  security screening in terms of National Strategic
  Intelligence Act.
• Appointment in Directorate subject to security
  clearance.
• Existing valid and required level security
  clearances recognised.
• Temporary security clearances allowed for, but
  appointments subject to issuing of clearance.
• If security clearance is downgraded, withdrawn or
  refused, person may be transferred or discharged
  if redeployment impossible.
• Person may be subjected to re-vetting-
  periodically or if information of security risk
  exists.
• Financial interests of member and immediate
  family members must be disclosed periodically.
• Minister may prescribe further random integrity
  testing including entrapment, or polygraph
  testing and tests for drugs and alcohol abuse.
• Measures must be prescribed for the
  confidentiality of information obtained.
• Provision is made to obtain necessary bodily
  samples by a registered medical practitioner or
  nurse.

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CLAUSE 3 Proposed section 17FMulti-disciplinary
approach

• Govt. depts and institutions to take reasonable
  steps to assist DPCI in achieving its objectives.
• National Commissioner shall request secondment of
  personnel when required.
• Directorate to be assisted by seconded personnel
  inter alia from the FIC, Home Affairs, SARS.
• NDPP to ensure that a dedicated component of
  prosecutors are available to assist and cooperate
  with investigators of DPCI.
• DG of relevant Dept on request shall identify
  personnel to be seconded.
• DPCI to be assisted in crime intelligence
  functions by Crime Intelligence Division of SAPS.
• Nat. Comm. may request that seconded personnel
  may retain their powers of seconding Department.
• Powers to be executed under control of Head of
  DPCI in terms of legislation from seconding
  department or institution, but subject to
  conditions determined by Head of seconding
  department or institution.

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CLAUSE 3 Proposed section 17GConditions of
service

• The remuneration , allowances and other
  conditions of service of members of the
  Directorate shall be regulated in terms of
  section 24 of the SAPS Act, 1995.

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CLAUSE 3 Proposed section 17ICo-ordination by
Cabinet

• President shall designate a Ministerial Committee
  which shall include the Ministers-
• For Safety and Security
• Finance Home Affairs Justice Intelligence
• Committee to determine policy guidelines for
  functioning of Directorate, case selection by
  Head, referral of cases by Nat. Comm and
  procedures for interdepartmental cooperation and
  assistance.
• The Committee shall meet as regularly as
  necessary.
• Nat. Comm and Head of DPCI to provide
  implementation and performance reports to
  Ministerial Committee.

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CLAUSE 3 Proposed section 17J

• Operational Committee established to review,
  monitor and facilitate support and assistance of
  Govt. depts and institutions and secondments
  from them to DPCI and address problems arising.
• Performs functions directed to it by Ministerial
  Committee.
• Reports to the Ministerial Committee.
• Meets as regularly as required.
• Consists of Nat. Comm., Head of Directorate,
  NDPP, DGs of Finance, Justice CD, Home Affairs,
  NIA, Head of FIC, Commissioner of SARS, other
  persons requested on ad hoc and temporary basis.
• Role-players may be represented on permanent
  basis by officers on Chief Directors level.
• Nat. Comm. as Chair, Head of DPCI deputy chair.
• Both the DGs and representatives may attend
  meetings.

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CLAUSE 3 Proposed section 17K

• Parliamentary oversight involves
• Parliament to effectively oversee functioning of
  DPCI and Committees.
• Nat. Comm. to report in his annual report on
  DPCI.
• Head of Directorate to report on request of
  Parliament.
• Minister to submit for approval policy guidelines
  of Ministerial Committee, on selection and
  referral of cases (deemed to be approved, if
  Parliament does not approve in months).
• Minister to submit report in 3 yrs to Parliament
  on legislative amendments to improve functioning
  of DPCI

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CLAUSE 3 Proposed section 17L

• Complaints mechanism
• Retired judge appointed by Minister to
  investigate complaints from public on evidence
  provided of serious and unlawful infringement of
  rights, and
• complaints from member on evidence of improper
  influence or interference regarding the conduct
  of an investigation.
• Judges powers in addition to that of ICD which
  must investigate general complaints of misconduct
  or offences by Members.
• Judge may investigate or refer complaints to
  Secretariat, ICD, Nat. Comm., Prov. Comm., Head
  of DPCI, NDPP, Insp. Gen. Intelligence, or
  Chapter 9 Constitution institution.
• Judge has powers to request information from
  police, NDPP, to enter and search for information
  with SAPS, and entitled to assistance from SAPS.
• Head of DPCI may request retired judge to
  investigate allegations against investigations of
  DPCI.
• Section not to be abused for fishing expedition
  or to delay or stop any investigation.
• Minister must ensure that retired judge has
  sufficient resources and personnel to perform
  functions.
• Retired judge to report outcomes of
  investigations to Minister.
• Retired judge not competent to investigate
  intelligence matters.

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CLAUSE 4 Amendment of section 24 of the SA
Police Service Act,1995

• Expand the empowering provision for Minister to
• make Regulations under the Act to provide for-
• the manner and intervals for disclosure of
  financial and other interests of members and
  immediate family members s.17E(7)(a).
• The measures for integrity testing of members of
  the DPCI s. 17E(8)(a).
• Measures to ensure the confidentiality of
  information obtained through integrity testing
  s. 17E(8)(c).
• The form and manner of complaints to the retired
  judge s. 17L(4)

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CLAUSE 6 Transitional arrangements

• Provides for a fixed date to be determined by
  President.
• From fixed date all powers and functions
  performed by DSO shall be performed by the DPCI.
• Investigations of the DSO shall be conducted as
  if this Act had been in force at all times.
• Allocated budget, assets and liabilities as
  agreed upon between the Nat. Comm. and NDPP be
  transferred to SAPS in accordance with s. 42 of
  PFMA Act.
• Registrar of deeds must transfer any property of
  DSO to SAPS.
• Deeming clause for continuity of employer in
  respect of the Income Tax Act.
• Remuneration of transferred DSO members where
  more favourable than those determined in terms of
  section 24 remains so whilst more favourable.
• Act does not affect the validity of any
  investigation or prosecution conducted, pending,
  or under investigation by the DSO before the
  fixed date.

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CLAUSE 7 Selection of personnel

• Nat. Comm. must appoint a selection panel which
  includes representative of the NDPP to select for
  appointment in the DPCI
• Former special investigators of the DSO.
• Members of SAPS from the Organised Crime and
  Commercial Crime Components.
• Any other member of the Service.
• Administrative and support personnel employed at
  the fixed date at the DSO and SAPS.
• Head of DPCI shall advise the Nat. Comm. on
  selection criteria.
• Criteria shall include experience, training,
  skills, competence and knowledge.
• Selection subject to SA Police Service Act and
  Public Service Act, whatever is applicable.

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CLAUSE 8 JOINT AUDIT AND IMPLEMENTATION TEAMS

• The NDPP and Nat. Comm. Must nominate senior
  officials of the DSO and SA Police Service to
  perform joint audit teams in respect of
  personnel, budget, finances, information
  management and equipment of the DSO.
• The officials involved shall facilitate the
  implementation of the Act as soon as possible.
• The Nat. Comm. and the NDPP must report to
  Parliament on quarterly basis on progress made
  with the implementation of the Act.

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CLAUSE 9

• Short title and commencement.
• Act shall be called the South African Police
  Service Amendment Act, 2008 and shall come into
  operation on a date determined by the President
  by Proclamation in the Gazette.

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OBJECT MEMORANDUM

• See paragraph 4 Financial implications
• The prevention and investigation of organised
  and priority crime are not new services, and are
  presently being performed by SAPS and the DSO
  with existing allocated budgets.
• Concomitant resources such as personnel, budget,
  assets and liabilities are transferred to the
  SAPS from the fixed date.
• There will be financial implications arising from
  the relocation of resources and the allocation of
  additional resources to the Directorate for
  Priority Crime Investigation. These will,
  however, be accommodated within the departments
  allocated budget without any negative effect on
  service delivery.

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Thank you

• Assistant Commissioner PC Jacobs
• Head Legal Support Crime Operations