DPCI Judge 2018/19 Annual Report

Meeting report

The Chairperson was absent from the meeting and Mr K Maphatsoe (ANC) was nominated as acting Chairperson. He accepted apologies from Dr P Groenewald (FF+), the Chairperson of the Committee, the Minister and Deputy Minister of Police.

Ms J Mofokeng (ANC) took offence to the Directorate of Priority Crime Investigation (DPCI) Judge’s lateness. He was wasting the Committee’s time. It was unprofessional.

Mr O Terblanche (DA) was concerned about the absence of the Minister and Deputy Minister, as this was an important meeting.

Judge Frans Kgomo, DPCI Judge, apologised for his lateness. He had been told the meeting would start at 9:30.

The Committee Secretary apologised for the miscommunication.

Judge Kgomo asked Mr Edward Rasiwela, Deputy Director: Investigations, Office of the DPCI Judge, to deliver the presentation.

Presentation of the DPCI Judge Annual Report 2018/19
Mr Rasiwela explained the function of the Office of the DPCI Judge and gave a breakdown of the Office’s budget (R5 148 000) and expenditure (R3 855 754). He discussed the work of the Office in terms of three performance indicators: the case management system, public awareness campaigns and the investigation of complaints.

- 88 complaints had been received, of which 32 had fallen within the mandate of the office. 100% (target: 80%) of the 32 complaints had been allocated to investigators within the prescribed 72 hour period.

- The Office had conducted two public awareness campaigns (target: two)

- 24 out of the 32 complaints had been investigated, though some still needed to be signed off by the Judge. All eight cases carried over from the previous year had been finalised.

Mr Rasiwela said most complaints received were about the slow pace of DPCI investigations. There were some instances where dockets implicating politicians were removed from investigators. Some DPCI officers had reported victimisation by superiors and were sceptical of the Office’s ability to protect them if they made complaints.

Mr Rasiwela presented the Office’s recommendations to the Portfolio Committee. The Committee was urgently requested to assist the Office to address its capacity challenges, in particular the appointment of a Chief Executive Officer (CEO),Chief Financial Officer (CFO) and a Director of Investigations. The Office’s operational budget needed to be properly ring-fenced and increased. The Committee was asked to enquire with the Minister why the establishment of a Kwazulu-Natal regional office should not be expedited. The Committee was urged to see that Section 17L of the SAPS Act was amended, and to ask the Minister why the lease agreement for the Office’s premises was not being processed diligently.

Remarks by the DPCI Judge
Judge Kgomo briefly outlined some of the history of the Office. Since its inception in 2013 it had never been given the personnel or resources it needed. The first DPCI Judge had elected not to renew his appointment and it had taken 27 months to appoint a replacement. When he had been appointed in October 2017, he had requested of the Minister that a CEO and a Personal Assistant (PA) be appointed, but the request had gone unanswered. The Office had a critical lack of capacity.

Ms Mofokeng said that the Judge was pre-empting the Committee’s questions.

The Chairperson agreed.

Discussion
Ms Mofokeng said that the Annual Report seemed to consist mostly of complaints about the Civilian Secretariat for Police Service. This was a problem. Matters raised seemed to be exactly the same matters that were raised in the Fifth Parliament, according to the legacy report. The offices of the DPCI Judge and the Civilian Secretariat did not seem to be working together. Why should it fall to the Portfolio Committee to approach the Minister with the Office’s problems? The Annual Report was a complaint document, and it was very unfortunate that neither the Minister nor the Deputy Minister were attending this meeting.

Mr Terblanche agreed the Minister needed to be at the meeting. Commitments had been made by the Ministry and the Civilian Secretariat, but apparently nothing was done.

Judge Kgomo was adamant that the Office of the DPCI Judge did not resolve under the Civilian Secretariat. The judgement in Sonke Gender Justice NPC v President of the Republic of South Africa and Others, in September 2019, made this clear. He would rather go to court than take instructions from the Civilian Secretariat. The Office absolutely had to be structurally and operationally independent.

Ms Mofokeng asked why the logo of the Office did not incorporate the coat of arms.

Judge Kgomo replied that the coat of arms had been used in the past but he had been told that it should not be used as the Office was not a department. If it was required, the coat of arms would be included in future.

Mr A Whitfield (DA) asked why it had taken so long for the Committee to receive the Annual Report.

Mr Whitfield was unhappy with the way the Annual Report had been compiled and presented. It lacked uniformity in its reporting and contained too many addendums. The presentation itself had not inspired confidence. He agreed with Ms Mofokeng that it read like a complaint, though he acknowledged that the Committee should take the Office’s frustrations seriously.

Mr Whitfield wondered if a CEO was necessary for such a small office. Would it not be better to increase the number of investigators to allow it to investigate more complaints, rather than adding more bureaucratic positions?

Judge Kgomo replied that a CEO was a requirement even for such a small office. As things stood, he himself was effectively the CEO and CFO.

Mr Whitfield was concerned about the lack of public awareness about the Office. Could it not have conducted more than two campaigns? He thought that the number of complaints received would be higher if more people knew about the Office.

Mr Terblanche added that the Office needed to do more to advertise its existence to the general public.

Judge Kgomo replied that he would have liked to do more awareness campaigns but due to a lack of capacity, the majority of his time was taken up by administrative work, which should be done by a CEO. If the Office was not provided with a CEO, he would have to go to court.. No reason had been given for why the Office could not have a CEO.

Mr Whitfield asked how the Office dealt with complaints it received that fell outside of its mandate. Did it have to investigate them or simply refer them on?

Mr Terblanche imagined that dealing with complaints outside of the Office’s mandate was a simple administrative exercise.

Judge Kgomo explained that it was not as simple as it sounded. A preliminary investigation had to be conducted and a report had to be compiled before a report could be referred.

Mr Rasiwela added the Minister of Police had to be informed before an investigation could be referred.

Mr Whitfield observed the Committee was not given any information on the outcome of the Office’s investigations.

Mr Whitfield said the removal of dockets implicating politicians needed to be unpacked. What was done? Which cases were affected? Was any disciplinary action taken?

Ms N Peacock (ANC) also wanted more detail about these dockets. How many were there?

Mr Rasiwela replied there was one complaint implicating a politician. A docket had been investigated by a junior police officer before the officer’s superiors had intervened, saying that it should be investigated by a national task team.

Mr Terblanche asked why the Office was asking for a larger budget when it was unable to spend a significant portion of its existing budget.

Mr Rasiwela explained it was inevitable that there would be under spending if the Office was understaffed.

Mr Terblanche asked why a regional office in Kwazulu-Natal was necessary. Only 11 complaints were received in the province, of which only three were within the mandate of the Office.

Judge Kgomo replied that people in Kwazulu-Natal had requested a regional office.

Mr Terblanche observed the Office seemed to be driving for more independence. However, legislation did not provide for the Office to be completely independent from the Civilian Secretariat.

Judge Kgomo replied that the Constitutional Court had affirmed the independence of the DPCI. If the Office of the DPCI Judge, who was supposed to be an ombud of the DPCI, was not independent, what kind of perception would be created?

Mr Terblanche said that it was clear that the relationship between the Office, Ministry and Civilian Secretariat needed to be clarified, but that was not the job of the Portfolio Committee.

Ms Peacock agreed. The complaints should be dealt with internally. Was the Office bringing its complaints to the Portfolio Committee because it had exhausted all other options?

Judge Kgomo was amazed at the question. He repeatedly requested meetings with the Minister of Police. He would print out written records of more than ten meetings that were postponed by the Minister. Only one meeting took place, on 6 August. At that meeting, it seemed as if the Minister had not even read the memos sent. The Minister did not listen to the Office - he only listened to the Civilian Secretariat. It was also on record that the Portfolio Committee would engage the Minister, but he had heard nothing about this.  The Act itself was flawed - it directed the Minister to provide the Office with sufficient personnel and resources, but the Minister referred requests to the Secretariat, which distorted them. The Secretary was a stumbling block. The legal opinion was that the only option was to go to court, but he wanted to co-operate.

Mr Terblanche did not think it was the job of the Portfolio Committee to sort out the Office’s lease agreement. The amount of money being spent to lease offices across government was very high.

Judge Kgomo clarified that he was not unsatisfied with the current premises. The Civilian Secretariat asked it to share premises, but he had refused, as it would have given the wrong impression. He asked for offices adjacent to the current offices to be secured so that the Office could expand, but that was not done. Internal processes had been exhausted, which is why he was raising it with the Portfolio Committee. Now the Office might even be facing eviction from its current premises if the matter was not resolved.

Mr H Shembeni (EFF) asked why there was an office in Cape Town for just the Judge and his PA.

Judge Kgomo explained that the Cape Town office was used by his predecessor, late Judge Essa Moosa. The Pretoria office was the head office. An investigator was going to be assigned to the Cape Town office.

Mr Shembeni asked what had happened to the unspent budget. Had it been sent back to Treasury?

Mr W Mafanya (EFF) sympathised with the Judge’s frustrations, and said that the complaints sounded like a cry for help. It seemed as if the Office was not able to fulfil its duties due to interference by political principals. Previous Portfolio Committees had heard the same complaints but had not done anything to help. He said the Committee could not do justice to the complaints in the absence of the Minister.

Response to the DPCI Judge from the Civilian Secretariat for Police Service
Mr Alvin Rapea, Secretary, Civilian Secretariat for Police Service, said Judge Kgomo asked him to transfer the Judge’s secretary from the Northern Cape when he started to work as the DPCI Judge, and also raise her salary level. The Public Finance Management Act (PFMA) did not allow for this, and the Secretary had refused, in accordance with the law. Since then, it had seemed like Judge Kgomo was building a case against him, he said, and his integrity was being questioned.

Mr Rapea said there was extensive discussions about the Office’s logo, but Judge Kgomo had simply refused to include the coat of arms. Judge Kgomo had also wanted the hiring of officials to be completely independent of the Civilian Secretariat. The Secretariat had no problem with the work of the Office being independent, but human resources matters were the responsibility of the Secretariat. Judge Kgomo did not want to follow normal processes. When the Secretariat insisted on following procedure, this was interpreted as interference. Judge Kgomo was treating him like a criminal, he said. Any matter that he raised was construed as questioning his authority, which was not the case. A memorandum of agreement had been drafted and sent to Judge Kgomo to manage their working relationship, but no response had been given. It was unfortunate that these internal challenges were being aired in front of the Portfolio Committee.

Mr Rapea said that Mr Rasiwela had been part of a meeting that had sent a memorandum to the Minister of Police to the effect that the Office of the DPCI Judge was not a public entity, nor was it a department or a government component, so according the PFMA, it could not have a CEO. Moreover, the PFMA directed the Civilian Secretariat to provide the Office with administrative support. He had no choice but to abide by it. Judge Kgomo was asking him to break the law.

Conclusion
The Chairperson said there appeared to be no working relationship between the Civilian Secretariat and the Office of the DPCI Judge. It could not be resolved in the absence of the Minister and Deputy Minister. Judge Kgomo could not threaten to go court without listening to the Portfolio Committee. Allegations made in the meeting were serious. Both parties needed to meet with the Minister and then come back to the Portfolio Committee. The work of the Committee was oversight, not mediation.

Mr Whitfield said this was one of the most unprofessional displays he had seen. Some questions had not even been answered. How could two senior civil servants behave like this before Parliament? It reflected the poor leadership of the Executive. The Minister had hardly attended any Portfolio Committee meetings. The Minister and Deputy Minister needed to appear before the Committee, and take responsibility for resolving the conflict. The key issue seemed to be a misinterpretation of independence.

Mr Terblanche agreed that the problem should be resolved internally, and the Portfolio Committee should be informed of the resolution. The situation was unacceptable and conduct had been shameful.