Judicial Matters Amendment Bill: Department briefing; with Deputy Minister; Committee Reports: International Treaties; Budgets & Magistrate Suspension

NCOP Security and Justice

29 May 2020
Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

Video: Select Committee on Security and Justice, 29 May 2020
Audio: Judicial Matters Amendment Bill: Department briefing; with Deputy Minister; Committee Reports: International Treaties; Budgets & Magistrate Suspension

Tabled Committee Reports

The Department of Justice and Constitutional Development briefed the Committee on the Judicial Matters Amendment Bill [B13B-2019]. The Deputy Minister was in attendance.

Clause 1 of the Bill dealt with extending the protection and benefits to marriage out of community of property to all former Homelands. Clause 2 of the Bill dealt with the National Prosecuting Authority Act.  The amendments in clause 2 of the Bill were intended to do away with the powers of the President to extend the term of office of the NDPP or a Deputy National Director; and provide that the period of suspension of the NDPP or a DPP may not exceed 12 months; and provide that the NDPP or a DPP who is on suspension be entitled to their full salary during the suspension period.

The Committee considered and adopted several reports:

Report of the Select Committee on Security and Justice on the Treaty and Explanatory Memorandum to the Treaty between the Government of the Republic of South Africa and the Government of the United Mexican States on Extradition, tabled in terms of section 231(2) of the Constitution, 1996

Report of the Select Committee on Security and Justice on the Treaty and Explanatory Memorandum the United Mexican States on Mutual Legal Assistance in Criminal Matters, tabled in terms of section 231(2) of the Constitution, 1996

Report of the Select Committee on Security and Justice on the Provisional Suspension from Office of Mr LT Mkansi, Regional Magistrate, Bloemfontein, tabled in terms of section 13(3)(b) of the Magistrates Act, 1993 (No 90 of 1993)

Report of the Select Committee on Security and Justice on the 2020/21 Budget Vote 28, Annual Performance Plan of the Department of Police

The Report of the Select Committee on Security and Justice on the 2020/21 Budget Vote 21, Annual Performance Plan of the Civilian Secretariat for Police Service

Report of the Select Committee on Security and Justice on the 2020/21 Budget Vote 24, Annual Performance Plan of the Independent Police Investigative Directorate  

Members of the Committee acknowledged that the budget allocation to the Independent Police Investigative Directorate was not sufficient to ensure that IPID was efficient and effective. The Committee agreed that IPID was underfunded with regards to its budget. IPID needed to secure more funding to fulfil its mandate of effective oversight over the South African Police Service.

Meeting report

Briefing on the Judicial Matters Amendment Bill [B13B-2019]

Ms Theresa Rosa, Principle State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), explained that the aim of the Bill was to amend to Acts administered by the Department of Justice and Constitutional development by addressing technical issues and issues that arose in the practical application of the Acts. The Bill amends section 7(3) of the Divorce Act, 1979, and section 12(4) and (6) of the National Prosecuting Authority Act, 1998, in order to give effect to the judgements of the Constitutional Court.

Clause 1 of the Bill is intended to amend section 7(3) of the Divorce Act in order to give effect to the judgement of the Court in Holomisa vs Holomisa and Another in terms of which section 7(3) of the Divorce Act was declared constitutionally invalid. Section 7(3) of the Divorce Act empowers a court granting a decree of divorce in respect of a marriage out of a community of property to order a just and equitable redistribution of assets. The challenge is that section 7(3) excludes persons married out of community of property under the repealed Transkei Marriage Act of 1978. The Constitutional Court found that section 7(3) of the Divorce Act discriminates against women married out of community of property under the Transkei Marriage Act in that it excludes them from the benefits of a possible just and equitable transfer of assets of divorce and therefore fails the test of rationality under section 9(1) of the Constitution, providing for equal protection and benefit of the law. Clause 1 amends section 7(3) by extending its protection and benefits to marriages out of community of property entered into in terms of any law applicable in a former homeland where no ante-nuptial contract or any other agreement entered into in terms of that applicable law.

Clause 2 of the Bill aims to amend section 12(4) of the National Prosecuting Authority Act, 1998 (the NPA Act). Section 12(1) of the NPA Act provides that the National Director of Public Prosecutions (NDPP) and a Deputy National Director (DPP) holds office for a non-renewable term of 10 years and must vacate office at the age of 65 years. Section 12(4) empowers the President to extend the term of office of the NDPP or a DPP beyond the age of 65, by a period of up to two years. In Corruption Watch NPC and Others vs the President of South Africa, the Court declared section 12(4) constitutionally invalid in that it undermines and compromises the independence of the office of the NDPP.  The Constitutional Court also declared section 12(6) of the NPA Act constitutionally invalid to the extent that it permits the President to suspend the NDPP or a DPP for an indefinite period and without pay.

Therefore, the amendments in clause 2 of the Bill are intended to:

  1. do away with the powers of the President to extend the term of office of the NDPP or a Deputy National Director;
  2. provide that the period of suspension of the NDPP or a DPP may not exceed 12 months; and
  3. provide that the NDPP or a DPP who is on suspension be entitled to their full salary during the suspension period.

The Constitutional Court ordered that the amendments in clause 1 must be in operation by 22 October 2020 and the amendments in clause 2 must be in operation by 12 February 2020.

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, said that the Amendment Bill dealt with two separate issues. Clause 1 will make the Divorce Act be applicable in any former Homeland which did not provide for protection of marriages out of community of property. Clause 2 dealt with the NPA Act. In a previous Joint Committee Meeting it was asked whether a suspended magistrate should receive their salary. It was ruled in this matter that the salary of a suspended NDPP or DPP could not withheld. Clause 2 of the Bill was supposed to be applied in February so currently that was behind schedule. The implementation of Clause 1 was still on schedule.

The Committee did not have any questions or remarks for the Department. The Chairperson said that this would not be the last engagement the Committee had with the legislation. The Bill was still going to be processed and other matters the Committee had with the Bill would become clearer. The Chairperson thanked the Department for their presentation.

Report of the Select Committee on Security and Justice on the Treaty and Explanatory Memorandum to the Treaty between the Government of the Republic of South Africa and the Government of the United Mexican States on Extradition, tabled in terms of section 231(2) of the Constitution, 1996

The Chairperson said that the Committee had gone through the report. She asked if the Committee would move towards adopting the report or if they wanted to discuss it further?

Mr E Mthethwa (ANC, KwaZulu Natal) said that the report had been discussed and that the Committee should move for the adoption of the report.

The Chairperson presented the Committee with the report on the Treaty as it relates to Extradition.

Ms Z Ncitha (ANC, Eastern Cape) moved for the adoption of the report.

Mr T Dodovu (ANC, North West) seconded the adoption of the report.

The report was adopted.

Report of the Select Committee on Security and Justice on the Treaty and Explanatory Memorandum the United Mexican States on Mutual Legal Assistance in Criminal Matters, tabled in terms of section 231(2) of the Constitution, 1996

The Chairperson presented the Committee with the report on Mutual Legal Assistance.

Mr Dodovu moved for the adoption of the report.

Ms M Mmola (ANC, Mpumalanga) seconded the adoption of the report. 

The report was adopted.

Report of the Select Committee on Security and Justice on the Provisional Suspension from Office of Mr LT Mkansi, Regional Magistrate, Bloemfontein, tabled in terms of section 13(3)(b) of the Magistrates Act, 1993 (No 90 of 1993)

The Chairperson tabled the report for consideration.

Having considered the Report, tabled on 18 May 2020, by the Minister of Justice and Correctional Services, on the provisional suspension from office of Mr LT Mkansi, pending the outcome of an investigation into his fitness to hold the office of Magistrate, the Committee recommends that the National Council of Provinces confirm Mr LT Mkansi’s provisional suspension from the office of Magistrate.

Ms Mmola moved for the adoption of the report.

Mr Dodovu seconded the adoption of the report.

The report was adopted.

Report of the Select Committee on Security and Justice on the 2020/21 Budget Vote 28, Annual Performance Plan (APP) of the Department of Police (SAPS)

The Chairperson went through the report and then read out the recommendations.

Recommendations:

1. Members recommended that the Interim Steering Committee on GBVF briefs the Committee and provides a comprehensive update on GBVF cases recorded during the lockdown period to ensure that members receive the correct statistics. Members further recommended that the Minister ensures that police officials receive adequate training and that police stations have adequate resources to ensure that Domestic Violence Matters are addressed effectively.  

2. Members welcomed the Department’s plans to increase police visibility with the safer cities programme. Members recommended that SAPS ensures the speedy implementation of the safer cities technology as this will go a long way in contributing to the reduction of crime by 2030.   

3. Members welcomed the multi-disciplinary approach being implemented in respect of the release of the 19000 inmates. Members recommended that SAPS ensures it works closely with DCS to monitor the release of the inmates and to put appropriate mechanisms in place to prevent recidivism.

4. Members recommended that SAPS and the Civilian Secretariat for Police Service (CSP) ensures that it develops an appropriate budget for CPFs to function effectively as this will enhance the collaborative working relationship between SAPS and communities to ensure the reduction of crime. SAPS should provide the Committee with a detailed breakdown per province of police stations that have functional CPF structures. 

5. Members recommended that appropriate training should be conducted with SAPS officials to ensure that their behaviour is ethical and above reproach at all times when dealing with the public. Members recommended that in the event that SAPS officials are found to have contravened the code of conduct, SAPS leadership should act swiftly to implement disciplinary measures.

6. Members recommended that both SAPS and IPID conducts follow up with the Department of Health to address challenges they may be experiencing in issuing post mortem reports timeously.

7. Members recommended that DPCI fast tracks its recruitment and appointment processes to ensure the necessary skills and capacity are in place to address organized crime effectively.

8. Members welcomed the Department’s plans to develop a scientific formula which will include variables to determine the different needs of police stations and to ensure the equitable distribution of the budget to all police stations in all provinces. Members recommended that the Department provide the Committee with a provincial breakdown of the specific resources, including vehicles, bullet resistant vests, firearms and clothing which has been allocated to each province.

9. Members noted their concerns that many police stations, particularly those in rural areas, have insufficient vehicles to conduct their policing effectively. Members recommended that SAPS ensures that sufficient vehicles are provided to all police stations provincially and that the distribution of vehicles takes account of the needs of rural and under-resourced police stations.    

10. Members welcomed the fact that the forensic laboratories are currently under the corporate renewal plan. Members recommended that SAPS ensures that forensic services are extended to all districts as this initiative will enhance crime investigation as a district level.     

11. Members welcomed the Minister’s announcements that crime statistics would be released on a quarterly basis. Members recommended that this be implemented speedily as the quarterly release of crime statistics will be invaluable to the Committee in measuring the work of SAPS towards reducing crime.

12. Members recommended the urgent engagement and training with Designated Firearm Officials (DFOs) to ensure that the renewal of firearm licenses are dealt with effectively. Members further recommended that the Department and the Civilian Secretariat for Police Service undertakes a review of the Firearms Control Amendment Bill to address the concerns related to the renewal of firearm licenses.  

13. Members recommended that SAPS prioritise the establishment of a dedicated unit to address illegal mining.

Ms Ncitha moved for the adoption of the report.

Mr Mthethwa seconded the adoption of the report.

Mr G Michalakis (DA, Free State) said that the Democratic Alliance reserved its right to vote on the report.

The report was adopted.

Report of the Select Committee on Security and Justice on the 2020/21 Budget Vote 21, Annual Performance Plan (APP) of the Civilian Secretariat for Police (CSPS)

The Chairperson went through the report and then read out the recommendations.

Recommendations:

1. Members recommended that in respect for the budgets for provinces, there was a need for further engagement with the Department to engage more deeply with the provincial secretariats on their budgets and activities.

2. Members recommended that the DNA Board hand over report be dealt with expeditiously and that the process of finalising a new Board be sped up to ensure continuity in the work of the Board.

3. Members recommended that the CSP finalises the necessary MOUs with IPID and the DPCI judge to ensure strengthened working relationships which will improve oversight over the police and the DPCI.

4. Members recommended that the CSP conduct virtual consultations with the three spheres of Government and SALGA to speed up and finalise the Crime Prevention Strategy by December 2020.05.29

5. Member recommended that the Department develop a comprehensive strategy which should be implanted at all police stations on a provincial level to enhance and improve the reporting of domestic violence incidents at police stations. Members encouraged the CSP to be more proactive in addressing the challenges at police stations in respect of ensuring compliance with the Domestic Violence Act.

6. Members recommended that the CSP urgently finalised all outstanding MOUs with SALGA and COGTA to ensure that CPFs are functional and operation, particularly during lockdown as their input will be invaluable in assisting the police with the implementation of crime prevention strategies.

7. Members recommended that the Office of the DPCI judge adheres to its mandate and ensures that it initiates and attends community engagements which will in turn increase awareness in communities of the function of the DPCI judge.

8. Members recommended that the CSP develops and implements working protocols with Provincial Secretariats to streamline the roles and functions clearly.

Ms Mmola moved for the adoption of the report.

Mr S Mfayela (IFP, North West) seconded the adoption of the report.

Mr Michalakis said that the Democratic Alliance reserved its right to vote on the report.

The report was adopted.

Report of the Select Committee on Security and Justice on the 2020/21 Budget Vote 24, Annual Performance Plan (APP) of the Independent Police Investigative Directorate (IPID)

The Chairperson went through the report and then read out the recommendations.

Recommendations:

1. Members emphasised the importance of the appointment of a permanent executive director for IPID. Members recommended that the Minister of Police ensure that the appointment of a permanent executive director for IPID is made within three months. Members emphasised the importance of finding a fit and proper person for the position and recommended that the timelines should not compromise the quality of the recommended individual to the post of executive director of IPID.

2. Members recommended that oversight visits should be undertaken to police colleges and detective colleges to understand what types of training they are receiving and to ensure that they are recruiting police officers who are committed to being police officers.

3. Members recommended that IPID develop a strategy to compile information regarding the behaviour of police officers resulting from their investigations and that this information should be shared with SAPS towards improving police officer’s compliance with the code of conduct.

4. Members recommended that continuous awareness training sessions should be held with police officers in police stations to strengthen compliance with applicable legislation and regulations, and reduce the number of cases reported for deaths as a result of police action and/or while in police custody, rape by a police officer and/or while in police custody, and systemic corruption.

5. Members noted that IPID’s communication, particularly with the media in relation to its cases under investigation was very poor. As a result of this, members recommended that IPID improves its communication and response to media reports regarding cases under investigation.

6. Members recommended that the IPID adhere to holding monthly meetings with the CSPS, NPA and the SAPS to review monthly statistics in relation to the implementation of disciplinary recommendations forwarded to the SAPS and cases referred to the National Prosecuting Authority for prosecution.

7. Members recommended that the Committee receives an update and report on the IPID’s implementation of the Khosa court judgement, the Miggels investigation and the investigation into the Ficksburg journalist.

8. Members acknowledged the financial challenges faced by IPID; however, members recommended that despite these challenges, IPID should find pro-active mechanisms to ensure that all cases are investigated effectively. Furthermore, due to the insufficient funding and the proposed expansion strategy, concerted efforts should be made to ensure that the appropriate funds are made available for IPID to function effectively.

Mr Mthethwa said that the timeline, which was three months, to appoint the new Executive Director of IPID needed to take into consideration the lockdown due to the covid-19 pandemic. When would the three months begin? Is it three months after the report is adopted? The Committee needed to be more specific with the three month guideline given to IPID.

Mr Michalakis said he had an issue with the last sentence of the report. When the Committee received the budget briefing from the Department the concern of underfunding of IPID was expressed across political parties. It was expressed by all parties that for IPID to rid the police of criminal elements it needed to be properly funded. This was agreed upon but then at the end of the report it states, contrary to the objections and concerns raised during the deliberations, that the Committee supported the budget. He found it a bit contradictory that the Committee was concerned about the underfunding of IPID but then supported the budget.

Ms Mmola also wanted clarity on three month timeline given for the appointment of the IPID head.

Mr Dodovu said that the three month process begins once Parliament adopted the report. He said that IPID needed to conduct its work within the limited resources it was given. Covid-19 has resulted in budget cuts across the board. The Committee needed to support the work of IPID. The Committee needed to show that it wants to see an effective IPID. Therefore, the budget needed to be adopted. Parliament needed to follow the timeframe given by the Constitutional Court ruling to appoint a head of IPID.

The Chairperson agreed with Mr Dodovu on the issue of the timeframe given to appoint a head of IPID. The three month timeframe was decided on by the Joint Committee. She then responded to the concern raised by Mr Michalakis and said that there was no contradiction. She agreed that the budget was insufficient for IPID to operate effectively and efficiently but the budget did allow IPID to operate to a certain extent. For the Committee to not approve the budget would imply that the Committee was not approving any funds to be directed to IPID. She said the last recommendation dealt looking into making appropriate funds available and that was why an extension strategy was proposed. The issues Mr Dodovu raised were fairly covered in the recommendations. The issue that related to the IPID Amendment Bill was covered in the report but was not reflected in the recommendations. The Committee should add one other recommendation in relation to the IPID Amendment Bill.

Ms Ncitha moved for the adoption of the report.

Ms Mmola seconded the adoption of the report.

Mr Michalakis said that the Democratic Alliance reserved its right to vote on the report.

The report was adopted with one amendment.

The meeting was adjourned.

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