Section 19 of Western Cape Community Safety Act implementation: progress report

Meeting report

SAPS and MPS Reporting Obligations: Overview

Mr Gideon Morris, Head of Department (HOD): Community Safety, briefed the Standing Committee on Community Safety on the reporting obligations of the South African Police Service (SAPS) and the City of Cape Town’s (CoCT’s) Municipal Police Service (MPS) to assess their efficiency, effectiveness and conduct. The Community Safety Act (CSA) and regulations required the SAPS and the MPS report to the Member of the Executive Committee (MEC) on a quarterly basis to oversee their effectiveness and efficiency, as well as monitor their conduct.

The Provincial Commissioner and Executive Head had reported on their obligations in the following areas:

Lost or Stolen Firearms:

SAPS reported 46 lost or stolen firearms, with 12 recovered. 43% had gone missing, and had been discovered during safe inspections at police stations. At police stations,16 were lost at Mitchells Plain, five went missing in Nyanga, three went missing in Khayelitsha and three went missing in Delft.        

MPS reported four lost or stolen firearms, with one recovered. Three were stolen during an armed robbery, one during a hijacking, and one was recovered.                                                                                                                                                                                                    

Arrests, Court Referrals, Prosecutions, Convictions:

The Provincial Commissioner had partially fulfilled his reporting obligations under this sub-section, and the Executive Head fulfilled his. The Provincial Commissioner’s compliance was regarded “partial” because the SAPS had not provided information on how many MPS arrests had led to court referrals, prosecutions and convictions. However, its systems could not make that distinction.

Statistics indicated SAPS had made 195 928 arrests, with 344 624 court referrals and 103 817 (30%) convictions. The MPS had made 3 320 arrests, with 3 644 charges brought by the SAPS.

Allocation of funds, resources and methods used to achieve safety objectives and measurable outcomes:

Both the Provincial Commissioner and the Executive Head partially fulfilled their reporting obligations under the sub-section. This compliance was regarded as “partial” because of missing information on the allocation of resources and methods used to achieve objectives (CoCT only) and measurable outcomes. The Department of Community Safety (DoCS) would rely on this provision to request specific thematic information in future.

Details of the operating budgets and expenditure for October to December 2017 were:

SAPS operating budget: R 766.6 million; actual expenditure: R578.4 million (75%). 

MPS operating budget: R136 000 million; actual expenditure: R129 million (94.8%)

MPS capital budget: R8.6 million; actual expenditure: R6.3 million (73.2%)

Service delivery and misconduct complaints:

The Provincial Commissioner had complied with his reporting obligation under this subsection. The Executive Head had not provided information under this subsection. The information missing by the Executive Head would be provided in future.

Total service delivery complaints received by SAPS: 1 273; total finalised: 1 016, with disciplinary action taken in 341 founded cases, none taken in 69 cases, and 606 cases unfounded.

Disciplinary and criminal cases against SAPS officials:

Both the Provincial Commissioner and the Executive Head partially fulfilled their reporting obligations under subsection. “Partial compliance” in this regard was because the CSA required SAPS and the CoCT to provide the Department with the names of officials against whom charges had been brought. Issues of privacy had been raised by both institutions.

239 criminal charges had been laid, 175 were under investigation, and seven had been referred to the NPA. 768 disciplinary charges had been laid, with 410 pending and 97 finalised.

Disciplinary and criminal cases against MPS officials:

13 criminal charges had been laid, with 10 under investigation. Three had been withdrawn. 34 disciplinary charges had been laid, of which 16 were pending and 18 finalised.

IPID Referrals- s29 of the IPID Act:   

Both the Provincial Commissioner and the Executive Head had fulfilled their reporting obligations under this subsection. 

SAPS had reported 90 s29 cases under investigation to the Independent Police Investigative Directorate (IPIS). No steps had been taken with a further 176 cases, and the total number of cases referred to the Provincial Commissioner’s office for a hearing was 317. At the CoCT, investigations were ongoing with cases involving murder and assault.

Crime Statistics:

Neither the Provincial Commissioner nor the Executive Head complied with their reporting obligations under this subsection. The Provincial Commissioner had provided crime statistics for the 2016/17 financial year, which fells outside the reporting periods examined in this report. His office had indicated that they were bound by instructions from the SAPS National Commissioner and the Minister of Police not to release crime statistics to the Department on a quarterly basis until such time as they had been officially released to the public. The Executive Head had not provided crime statistics, as they did not produce them.

Circumstances around the use of firearms:

The Provincial Commissioner had provided information for the month of December 2017, but the Executive Head had not.

The first SAPS report had read as follows: “Shooting incidents reports are completed at station level where incidents occurred with regard to the firing of a weapon/ allowing a weapon to be fired/ order the firing of a weapon. An instruction was sent to SAPS Provincial Operational Command Centre (POCC) to coordinate this information as from 1 December 2017.” SAPS reported 11 shooting incidents for December 2017. The information for CoCT would be provided going forward.

Deaths of SAPS and MPS officials: Deaths caused by officials, Deaths caused in custody:

The Provincial Commissioner had fulfilled his reporting obligations under this sub-section. The Executive Head indicated that there were no cases to be reported during the period under review.

SAPS had reported the death of four police officials, six deaths while in police detention, and two deaths due to police action.

Mr Morris said key issues emerging from the reports were:

• A high and worrying number of firearms stolen from SAPS officials (46 for this reporting period).

• Information provided by the SAPS under the CSA indicated a high number of arrests and court referrals by the SAPS, but a low number of convictions by the courts -- only 30% of court referrals had resulted in a conviction. This raised the question of the efficiency of the criminal justice system as a whole.
• Disciplinary and criminal cases brought against SAPS and MPS officials were mostly stalled.
• The information on IPID referrals, crime statistics, deaths and shooting incidents were either absent of insufficient to make findings.

Discussion

The Chairperson sought clarity from the HOD regarding the section in the presentation which stated that there was an instruction from the Commissioner and the Minister of Police not to give the Department information on all crime statistics.

The HOD clarified that this ruling had been discovered when engaging with the police at the general and brigadier level, where they had stated that they were bound by instructions from the National Police Management. This was later found to have been a national Cabinet resolution on the release of crime statistics. The Minister had confirmed that the ministry would work with the Department on the release of statistics, but that they needed to first go back to the national Cabinet where the resolution had first been made.

Mr D Mitchell (DA) asked whether the Department had officially requested the statistics from the Provincial Commissioner, as per the Act.

The HOD explained that the regulations of the Act were very clear, and that they had asked the Provincial Commissioner to provide the information. While the Provincial Commissioner was aware that they were legally compelled to provide the information, when the Department had engaged with them, these were the responses they had received.

Mr Mitchell said he did not want to get into a dialogue. Nonetheless, he did wish to find out what the next step from the Department’s side was.

The HOD said the next step would be to get a mandate from the Department’s executive in order to declare a dispute in terms of the Intergovernmental Relations Act, which dealt with legal processes between the different spheres of government.

Mr M Wiley (DA) appreciated the cross-referencing attached between the watching briefs, as this was one way of monitoring whether reliable statistics were being released, because the reliability of the statistics was absolutely critical. On the issue of the stolen firearms, he asked whether the Department enquired about the types of protocols followed by the reporting party for the safekeeping of firearms when it received that type of information. For example, in the case of Mitchells Plain, where the criminals had broken into the safe and stolen weapons, where exactly were the firearms taken from? Were they stolen from racks? The protocols related to state firearms were very strict. Did the Department test whether those protocols were followed?

He asked whether the Department asked questions about the protocols related to the handling of firearms by the individual. For example, in the military, one was not allowed to carry an automatic firearm in operational circumstances unless it was fixed to the body with a high-tensile steel cable. Did the police have a protocol of that nature? If not, why did they not have it? These were the types of questions which the Department should be asking, to minimise the number of people trying to get set their firearms off.

On the point which stated that firearms in the SAP 13 store did not fall under thie discussed compliance issue, Mr Wiley remarked that this has to be a tricky sidestep, because when prisoners who were awaiting trial were conveyed from prisons to courts, they remained the property of the SAPS and their escorting, as well as guarding, was done within the confinements of the court. Surely the same applied to inanimate objects such as drugs, stolen goods as well as firearms handed in for destruction? Surely one could not say that, because it was on their physical property and on their physical guard, it was in an SAP 13 store which had certain safeguarding compliances? Did the Department ask for a legal opinion on the ownership of such weapons? Surely it could not be such a vague area or subject.

On the matter of the budget, he said that it is difficult to compare apples and pears. In the city, for instance, did the budget include all the other aspects of that directorate? Did Disaster Management, Traffic Law Enforcement as well as Fire and Rescue, all fall under that same budget expenditure, or was it solely the metro police? Similarly, with the SAPS budget, there were a number of inclusions and exclusions which made it almost impossible to make a proper comparison.

The Chairperson asked whether the MPS operating budget included salaries or not. The Committee knew that with the SAPS, the budget did not include the cost of employment. On the information regarding the number of cases reported, as well as the progress thereof, this was important to know because the metro police could only go as far as making an arrest, and then they handed the dockets over to the SAPS to complete the investigation and get it through the criminal justice system. Therefore, it was important to know whether those cases were succeeding or not. Was there an intention to try and obtain this information in the longer term, or was there a need to explore other avenues to track those cases which came from the municipal police?

Mr B Kivedo (DA) referred to the issue of service delivery and misconduct complaints, and said the presentation had made a comment that the offences were less serious than criminal cases against SAPS officials. However, when looking at service delivery complaints, he had found that this was a major issue, and often executed with extreme intentions. He was not being judgemental, but a look at the current situation showed that SAPS was delivering services so poorly that they could not even contain a normal protest or civil unrest. Earlier that morning, he had just passed an area where there was a protest taking place, and SAPS officials were merely standing around as spectators and not moving a finger. He saw this as a breach of their mandate. Service delivery issues needed to be looked at critically and where there were issues, the relevant officers should be held to account. Even in criminal activities, where some SAPS members found it convenient to turn a blind eye, officials should be held accountable. There were also cases where SAPS officials were involved with gangsters and were on their payrolls -- these were real cases which compromised the trust relationship between civilians and police officers, as people became scared to divulge sensitive information to the officials as these same officials may turn against them. Even safe houses were no longer safe houses as there were leaks within the civil service. Therefore, although he was not criticising the police, he was convinced --  especially with the ongoing service delivery protests -- that there should be a major shake-up.  

On the same topic of service delivery complaints, the Chairperson wanted to know who dealt with the cases within the SAPS. Was it still the inspectorate? Did some of these complaints include those sent to the Provincial Ombudsman?

Department’s response

Adv Yashina Pillay, Chief Director: Community Safety, addressed the question on whether the Department monitored the firearms kept, and confirmed that they did. The Department’s Police Monitoring and Evaluation Unit -- during their police inspections and the implementation of the National Monitoring Tool -- did monitor the firearms handed in during the amnesty period, as well as those which were confiscated and were exhibits.

Mr Morris said that the comment by Mr Wiley about focusing on those stations which were systemically losing firearms was a valid comment, and that the Department would go back and check on this issue. Of course, there would be the matter being investigated by the police, but there were also the standards against which they were supposed to manage their own firearms.

On the sidestepping of the police on firearms under their custody, he indicated that the Department would go back to seek legal opinion. Due to the fact that the law was state issued, the matter of whether it was an honest attempt or not would be clarified in the next reporting period. The Department had now made it clear that they were asking for all firearms lost, so they would see the response by the police. If needs be, the Department would have the regulations amended to make it clear that they were asking for any firearms that may have been lost in their custody.

On the matter of the MPS operating budget, he said that to the best of his knowledge, the budget did not include the dost of employment, and that it was simply an operational budget. The Department would have to confirm this fact.

The Department fully agreed on the severity of service delivery complaints. The distinction between the serious and non-serious offences was set in terms of the IPID Act, which stated that any acts of criminality must go to the IPID, whereas service delivery offences were dealt with by the inspectorate of the police.

On the investment made by the province in an ombudsman, he said there had been significant progress in making sure that service delivery matters were dealt with.

Mr Morris emphasised that he was not defending the SAPS, but maintained that service delivery protests were a bit more complicated in terms of the tactical response. One often saw a police van standing at these protests, but one would find that the officials on the site immediately or soonest were 99% of the time not tactical staff and did not have the equipment for public order policing. In these cases, it would be more dangerous for these officials to move in than to stand by and contain the protest, while waiting for the tactical response.

On the positive side, the data provided showed that the number of arrests by the police had gone up by almost 30% in the last quarter. Sadly, when looking at the value chain, one found the challenge of overcrowded prisons, which would even worsen as the country approached the festive season. Therefore, real steps were being taken, but the complexity of the criminal justice system was such that one must look at these issues as holistically as possible.

On the question of who dealt with service delivery complaints, he said that the strengthening of the ombudsman remained a priority. The Department did not have the details of each complaint, as they were just provided with the numbers. However, the Department now had a chance to develop its own systems to be more responsive to the information received. The Members should also remember that in turn, this information would help with the identification of trends and exceptions which could be focused on as an early warning to mitigate the risk identified.

Ms Amanda Dissel, Chief Director: Policy and Research, Community Safety, added that the provision would allow the Department to identify thematic issues which they could ask the police for specific information about. The Department would not be able to track and analyse on a quarterly basis, but would do so thematically on an annual basis or on any chosen theme. The feedback which the Members had given the Department was useful in compelling them to think about what issues they should go back and investigate.

Mr Morris addressed the question about the cases by the city handed to police, and indicated that the city had started a “Watching Brief” programme, and that it would be best for the Committee to get that information from them and through the Department, should they prefer.

Mr Wiley said that in 2015 there had been a significant uprising which had lasted for about six weeks in the area of Masiphumelele. Within that investigation, arrests had been made and footage taken of an individual who had destroyed a police vehicle, amongst other things. The case had still not been finalised. He urged the Department, because of the up-welling of these so-called “service delivery protests,” to make it a part of their Watching Brief project to find out why these public unrest cases were not seeing a conclusion. He could not think of a single case whereby a person who had been witnessed destroying public property in a so-called “service delivery” riot had come to a conclusion.

On the issue of stolen weapons, he said that it was incomprehensible that automatic assault rifles were being stolen from police stations when there had been no documented case, other than Marikana, where the police had discharged those automatic weapons. Why were there automatic assault rifles at police stations when the government had withdrawn the one weapon which they should constantly issue at police stations -- a shotgun which fired rubber bullets?

The government had capacitated, at station level, the ability to carry out an initial anti-riot response. Earlier that morning, in the protest which had also been witnessed by Mr Kivedo, the sum total of the people who had blocked the N2 had been about five or six individuals. These people had burned a tyre and, as Mr Kivedo had indicated, the police had stood and watched because the protocol stated that until the riot police -- who were dwindling in number in this province -- arrived in their armoured vehicle, there could be no response. Furthermore, these days the riot police invariably responded with four to six people, and they could take up to an hour to pitch up. In the meantime, there was economic dislocation to this province as major arterial roads and highways were closed off because a bunch of protesters had dragged a tyre onto the road, put oil, petrol and diesel on to it, set it alight and thereby dislocated the whole place. He believed that this all happened because the government had taken away the power of the local police station to carry out the initial response and fire a couple of rubber bullets to keep people away from dislocating the economic arteries -- yet they kept automatic weapons at the police station. Why was it that they kept automatic weapons? It was because part of the survival training which every police officer had to do annually was to fire the three  main weapons -- the handgun, the shotgun (which was brought in), and the automatic weapon. That was the only reason why they kept automatic rifles at police stations, and they used them for that. The Department must take the incentive to move these automatic weapons away from local police stations.

Resolutions arising from the meeting

The Chairperson asked the Members whether they had any resolutions based on the presentation.

Mr Mitchell said that it would be interesting to get a report on the Watching Brief project.

The Chairperson confirmed that Mr Mitchell’s suggestion would be added to the Committee Programme. She suggested that the IPID Western Cape report should also be added to the programme sooner rather than later. The Committee should also make a recommendation that the Department endeavour to get the statistics as required by the legislation, and indicate that the Members would like the MEC to report back to the Committee on a monthly basis regarding progress on this issue.

Mr Kivedo said that Mr Wiley had touched on a very serious point regarding the stolen firearms in Bellville. The Director from the Department had responded, and indicated that these firearms were not regarded as state-owned weapons, but as exhibits. However, Mr Wiley had taken the discussion further in terms of his own critical analysis, and indicated that once the weapons ended up at a police station they came under the watch of the state and thus became state-owned. He agreed with Mr Wiley’s point and asked that the Committee get clarity on the status quo regarding stolen firearms, illegal firearms, state-owned firearms and exhibits etc. Were they seen as the same?  As far as he was concerned, they were all illegal.

The Chairperson asked Mr Kivedo what his recommendation was.

Mr Kivedo said that the SAPS should provide the classification of illegal firearms.

The Chairperson suggested that Mr Kivedo’s recommendation could also include a question requiring the number of non-state firearms stolen in each of the last three financial years.

Mr Wiley suggested that the Department should get a legal opinion regarding the definition of state custody.

Mr Kivedo asked the Committee to request reasons for the long delays and also the average time of completion when it came to the disciplinary and misconduct hearings of SAPS officials, because the public should know this information. When these individuals who were supposed to safeguard and protect civilians were guilty of misconduct and their hearings were being drawn out, stalled or in some of the cases, just vanish, it was a matter of concern.

Chairperson’s leave of absence

The Chairperson announced that she would be taking a leave of absence for maternity purposes. She said that the Standing Rule 77(1) allowed the Committee, in the absence of a Chairperson and a Deputy Chairperson, to elect from among its members. However, she noted that no Deputy Chairperson had ever been appointed in the Committee. Standing Rule 77(1) allowed the Committee, in the absence of a Chairperson and a Deputy Chairperson, to elect an Acting Chairperson for that particular meeting. Given that she would be away for several months, she proposed -- for the purposes of establishing continuity and easing the logistical burden of possibly having a different Acting Chairperson each time -- that the Committee resolve to elect an Acting Chairperson for the duration of her absence.

The Committee Members accepted the proposal.

Mr Mitchell nominated Mr Wiley as the Acting Chairperson.

Mr Kivedo seconded the proposal.

Mr Wiley accepted the nomination.

Mr F Christians (ACDP) invited all the Members to wish the Chairperson good health for the duration of her leave.

The Chairperson thanked the Members for their well wishes.

Adoption of minutes

The Chairperson said that the Committee had draft points from the meeting of 9 May, and one Amendment. Mr Christians’ name had previously not been included in the attendance register, but now was listed with the apologies of the Members.

The Members adopted the minutes, with the inclusion of Mr Christians’ name.

The Chairperson announced that the next meeting would be on Wednesday, 13t June.

The meeting was adjourned.