Rule 201 inquiry Committee Report: adoption

Meeting report

Draft Committee Report on the Rule 201 Inquiry
As it was the first time Members were seeing the report, the Chairperson took the Committee through the broad contents of the report.

The Report contained a brief introduction to the relevant constitutional provisions dealing with the SA Police Service (SAPS) and how it was structured, the role of the President and the role of the Minister. Reference was made to the SAPS Act, relevant Standing Orders and the SAPS Code of Conduct. The introduction thus set the constitutional and legislative framework. Reference was made to the structure of government and the principle of the separation of powers.

The Report explained how the Rule 201 process came about as a result of a statement by the SAPS Board of Commissioners (BOC) on 1 August 2015, issued by the SAPS head of corporate communication (Lt. Gen. Solomon Makgale). The Report contained a factual explanation of what happened in terms of the issuing of the statement and other statements by individuals in the Service. Information was provided on the interactions between the BOC and the Committee about these statements. This provided a background to the inquiry and Committee concerns – in the main, the Committee was concerned that in a constitutional democracy in which the Constitution was supreme, the top leadership of SAPS, which was accountable to Parliament, had overstepped the mark in terms of the separation of powers.

The Report set out the different roles of the various role players including that of the National Commissioner, the Minister of Police and Provincial Commissioners. The role and responsibility of the Committee was outlined in terms of its mandate. The Report dealt with the purpose for the Rule 201 Inquiry noting this was the first time since 1994 that a Rule 201 Inquiry was initiated by a Portfolio Committee. The Inquiry was guided by specific terms of reference, namely:
1) Establish and consider whether the respective officers were truthful with their testimony in presenting the facts leading up to the issuing of the said statements.
2) Establish and consider whether the documents and electronic material made available to the Committee verify the statements made during the said Committee meetings.
3) Establish and consider whether the relevant statements were made in compliance with Standing Order 156.
4) Establish and consider whether the relevant conduct by the officers was in line with good governance principles.
5) Establish and consider whether the relevant conduct prejudiced, embarrassed and discredited the SAPS.
6) Establish and consider whether the said statements were aimed at influencing the process by the President in response to the recommendations of the Farlam Commission in relation to the National Police Commissioner.

The Report dealt with the relevant National Assembly rules in considering this matter. Events leading up to the decision to launch the Rule 201 Inquiry were indicated – the Committee initially called the provincial commissioners before it and asked them to retract their statements and apologise to the President and Committee and undertake to not engage in such actions again. The Provincial Commissioner for KZN was not present at this engagement but met with the Committee at a later stage while the acting Divisional Commissioner for Crime Intelligence never attended any of these engagements to apologise.

The Report outlined the BOC second statement on 13 August 2015 after meeting with the Committee the previous day. This statement indicated the BOC apologised for the misinterpretation of the original statement but it did not retract this statement. In addition, at a Committee meeting on 18 August 2015, the Chairperson asked the Commissioners if they stood by this second statement– some Commissioners indicated they stood by the original apology on 12 August 2015 while others indicated they stood by the apology and the second statement issued on 13 August 2015. The Committee indicated this second statement defied the Committee’s instruction at the 12 August meeting and the demeanour of some of the Commissioners was taken as closing ranks and the Committee was of the view that this was done with intent. It was important that the Committee recognise that it was revealed during engagement that some commissioners expressed discomfort with the statement – this included the Free State Provincial Commissioner and the Deputy National Commissioner for Policing. The role of the National Commissioner in the discussion to issue the second statement was acknowledged. This made her role even more concerning, particularly as she was responsible for ensuring SAPS comply with the instructions of the Committee. The Committee then made the decision to go ahead with the Rule 201 Inquiry on 28 August 2015.

The Report contained the terms of reference, objectives of the Inquiry, relevant legislation and documents which were considered. Documents included Committee meeting transcripts and SAPS BOC transcripts and minutes. Importantly, in terms of process, the Committee held several meetings to consider the written, oral and electronic submissions made by SAPS in answering questions posed. The minutes and attendance register of the BOC meeting held in Magoebaskloof, Limpopo on 15 and 16 July 2015 was classified and deemed confidential but the Committee requested the National Commissioner declassify this. She did not respond to this request. The SAPS then made available only parts of the minutes that had a bearing on this Rule 201 investigation – the rest of the minutes which dealt with operational issues was not distributed. The Committee analysed these documents and the oral submissions provided by the officials. Committee deliberations began on 21 October 2015 after an initial analysis was provided on 16 October 2015. The Committee asked SAPS for additional documents and these were furnished. The Committee went through Standing Order 156.

Materially, with the 1 August 2015 statement, the Committee noted that the Deputy National Commissioner for Resource Management did not sign the statement and neither did the majority of Divisional Commissioners. It should be noted that the Deputy Minister of Police, Maggie Sotyu, who attended the Portfolio Committee on behalf of the Minister of Police, made it clear that SAPS did not consult the Ministry before releasing its statement on 1 August 2015. In the 12 August 2015 meeting, she informed the Committee of the following:

As per your indicating in your request, I need to put it to the Committee straight that we as the Ministry were never consulted about the media statements that you read from the newspapers. And not even about the media interviews, radio interviews about who support who. We (were) never consulted with regard to that. (line 17, PCOP transcript 12.08.15)

From the input presented by the Deputy Minister of Police, it was clear that the BOC clearly decided not to utilise the internal remedies and follow the procedures laid out in Standing Order 156 when they released their statements to the media.

The SAPS did not consult with the Executive Authority with respect to the impact that the statements would have on SAPS by discrediting the leadership and embarrassing the Department.

The Committee was of the opinion that if the situation as alleged by the BOC was as serious as they had claimed and there was talk of mutiny in the ranks as had been reported by the media, the BOC and the National Commissioner had a duty of care to report it to the Minister of Police. They did not.

The Committee noted that at its 12 August 2015 meeting, it instructed the SAPS BOC to retract its 1st statement. The Committee however noted that the 2nd media statement released on 13 August 2015 was in direct contravention of the Committee instruction and had the effect of escalating the matter.

The Committee was concerned that the 1st press statement undermined the process initiated by the President to respond to the Farlam Commission. The Committee noted that the 01 August 2015 media statement was only released two weeks after the BOC Magoebaskloof meeting and one day after the National Commissioner had to respond to the President on the Farlam Commission findings.

Timing of the 1st press statement
At the time of releasing the Farlam Commission Report, the President required the National Commissioner to respond no later than 31 July 2015 to the Commission’s recommendations. This meant that a month had lapsed since the release of the Report when the National Commissioner submitted her response to the President on the evening of 31 July 2015.

Although the statements released on 30 July 2015 and 1 August 2015 purport to be responses to newspaper allegations about a “rebellion” or “mutiny” at senior management level within SAPS, the statements coincided with the period when the National Commissioner was being severely criticised in the media as a result of the Commission’s findings and recommendations.

The Committee was of the view that the timing of the 1st statement on 1 August 2015 was timed to place undue pressure on the President in his considering the response of the National Commissioner to the Farlam Commission. The Committee raised a serious concern, given that the Magoebaskloof meeting confirmed the Committee’s view that the statement was issued to undermine the consideration process of the President.

Findings with respect to the 1st Press Statement on 1 August 2015
The Chairperson noted most of the findings came from Members’ inputs during deliberations:
- The Committee found that the press statements were aimed at influencing the public discourse and process by the President in response to the recommendations of the Farlam Commission.
- The Committee found that by releasing the statement on 1 August 2015, the BOC chose to enter the political terrain because that date coincided with the date by which the National Commissioner was to give the President her response to his letter on why he should not constitute a Board to inquire into her fitness to hold office.
- The Committee found that the timing of the release of the statements was designed to place public pressure on the President to sway his decision on the Farlam Recommendations. While the meeting of the BOC took place on 15 and 16 July 2015, the statement was released only on 1 August 2015, a full two weeks after the meeting.
- The Committee found that SAPS Management entered the political terrain by releasing the statements because they were timed to influence the process initiated by the President.
- The Committee found that on 26 June 2015, the SAPS spokesperson, Brig. Vishnu Naidoo issued a statement on the Farlam Commission Report. He stated the following:
“Out of respect for the processes outlined by the President, SAPS Management has taken a decision that no public pronouncements about the report, its findings and recommendations will be made. In the interim, the management of the police would like to reassure the public that policing duties will continue as normal.”

- The Committee found that the statement of 1 August 2015 was issued in disregard of clauses 3(4) and 8(4)(a) of the Standing Order 156 in the following respects:
> The statement had an effect of pre-empting the process that the President had initiated in respect of the Commission’s findings and recommendations.
> The statement had the effect of the BOC expressing support and allegiance to the National Commissioner in circumstances where they had to await the outcome of the process set out above.
> In addition, the statement was issued in total disregard of the 26 June 2015 SAPS statement.

- The Committee found that it was unavoidable to conclude therefore that whether such statements were made before the National Commissioner submitted her response to the President or a few hours thereafter, the aim was to confirm SAPS’s support of, belief in and allegiance to the National Commissioner to the public in general, especially SAPS members, that all the criticisms against her, in general and in particular in relation to her conduct surrounding the Marikana incident, were unfounded. It was the Committee’s considered view therefore that the issuing of the two statements, in particular the 1st statement by the BOC, was aimed at influencing the process by the President to consider the Farlam recommendations about the National Police Commissioner.

In terms of the second statement on 13 August 2015 and the Committee interaction with the BOC on 18 August 2015, the Committee declared that it did not agree that the Committee had a “certain view” as captured in the statement, as it was incorrect. The Committee wanted this perception corrected. Members asked what the procedure and protocol were for the release of SAPS statements and whether these were approved and signed off by the National Commissioner before being released. Members enquired when the meeting took place that mandated Lt. Gen. Makgale to release the second statement.

Given that the BOC Commissioners attended the Portfolio Committee meeting, it was clear that the 2nd statement deliberately misconstrued the remarks of the Deputy Minister. The Committee noted that Free State Provincial Commissioner, Lt. Gen. Mpembe, and Lt. Gen. Sitole, Deputy National Commissioner for Policing, were discomforted by the statement.

The overwhelming view of Committee was that the 2nd BOC statement clearly and deliberately undermined the Committee and that it was disrespectful towards the Committee. The 2nd statement was not in keeping with the Committee instruction to the BOC. It took exception to the fact that the 2nd statement included:

“The BOC would like to engage further on this matter, as we believe there is information which the BOC was unable to share.’ 2nd BOC Statement, 13 August 2015

A concern of the Committee was the fact that Lt. Gen. Makgale could not say who chaired the meeting as he was in and out of the meeting. Members were unhappy about the way he explained who gave him instructions to put out the statement. He acknowledged that the National Commissioner was part of the meeting. He indicated that it was not a formal meeting. He confirmed that the National Commissioner chaired all BOC meetings.

The Committee asked him if the National Commissioner participated in the discussion on the press statement in the Magoebaskloof meeting. He confirmed that she was part of the discussion. Members were in agreement that he was not giving the Committee clear answers.

The Committee asked the Commissioners whether they supported the apology to the Committee or whether they stood by the statement issued by Lt. General Makgale. Some Provincial Commissioners said they stood by the apology and others stated that they stood by the apology and supported the 2nd press statement.

At its 21 October 2015 meeting, the Committee examined the transcripts of its meetings held 12, 18 and 28 August 2015. The Committee found that SAPS governance was compromised as the 2nd statement was issued with the full knowledge of the National Commissioner who was present at the meeting that crafted the statement issued on 13 August 2015. This meeting was described as an informal meeting by General Makgale, but it was clear to the Committee that it intended to defy and undermine the Portfolio Committee.
 
In its 12 August 2015 meeting, the Committee noted that it requested the Gauteng Provincial Commissioner, Lt. Gen. Mothiba to confirm if he had the support of his provincial management team when he issued a statement in support of the National Commissioner and he replied in the affirmative. The Committee asked for the minutes of that meeting and was subsequently informed by the Provincial Commissioner in a letter dated 17 September 2015, that there was no such formal meeting , that the discussion was informal and no minutes were kept.

The Committee heard from Lt. Gen. Mbekela (SAPS Deputy National Commissioner: Corporate Service Management) that there was never an instruction from anyone to issue a statement.

The Committee noted that Lt. Gen. Makgale indicated that the National Commissioner did not sign off on the statement. It was in direct contrast to SAPS Standing Order 156 on SAPS media communication. According to the General Principles (4) of the Standing Order:
Management at all levels must continuously bear in mind the media implications of their decisions and consult with media liaison officials in developing pro-active communication plans.

It was clear that the BOC did not take into account the implications of their statements in line with the media policy encapsulated in Standing Order 156. According to the Committee, the 1st statement issued constituted a threat to the President with respect to the process initiated by him about the Farlam Recommendations. In the words of a Committee Member:
“ The Farlam Commission had international implications for South Africa and SAPS. With this statement they embarrassed and discredited SAPS. With this statement they sort of threatened the President, they were saying to the President (if you act against the National Commissioner) then you should fire us as well… this is a serious aspect of the statement”.

Committee Findings with respect to 2nd Press Statement on 13 August 2015:
- The Committee found that the BOC was not truthful about these events in their interaction with the Committee.
- The Committee found that the BOC acted contrary to Standing Order 156 and in disregard of the 26 June 2015 SAPS statement and to good governance principles by issuing the 13 August 2015 statement.
- The Committee found that in the 18 August 2015 Portfolio Committee meeting, some of the Commissioners saw the error of their judgment and stood by their apology, while others stood by the 2nd press statement which re-enforced their earlier statement on 1 August 2015.
- The Committee found that the fact that the BOC did not consult with the Executive Authority when releasing the statement, clearly prejudiced, embarrassed and discredited the Service.
- The Committee found that the statements embarrassed the Executive Authority and the police as a whole.
- The Committee found the misrepresentation by SAPS leadership prejudiced SAPS to the extent that the trust between SAPS and Parliament had been severely compromised as a result.
- The Committee found that the BOC and senior officers contravened its own Code of Conduct in releasing the statements.

The Committee had spent much time analysing the transcript of the Magoebaskloof meeting. The minutes of the meeting reflected that the National Commissioner was part of the discussion. The minutes noted that Lt. Gen. Mawela (SAPS Divisional Commissioner: Operational Response Services) made a presentation on the subject. The minutes of the meeting of the 15th noted that there was never a plan approved as mentioned in the Marikana Report; noted the increased negative media reports which impact negatively on the morale of members and the need to encourage members to focus on the core business of fighting crime in the country; noted that a situation should not be allowed where the reports results in a state where it appears that police crime business has stopped, policing must continue. After a lengthy deliberation on the negativity of media reports, the Prov Comms indicated a need to support members who were involved as well as to deal with some of the negative media communication that appear in the media; noted that the NatComm’s concern regarding issues of conflict during the discussion of the matter. The Prov Comms agreed to meet during lunch to discuss the matter further as well as to engage Corporate Communication to assist.

It should be noted in the minutes that the National Commissioner raised issues of conflict and at the 12 August 2015 Portfolio Committee meeting, Lt. Gen. Sitole said that the National Commissioner stated that she was conflicted. Lt. Gen. Mbekela indicated that the National Commissioner did not take part in the meeting when the statement was discussed.

However, the transcript of this Magoebaskloof meeting showed that the National Commissioner did in fact take part in the discussion on the Farlam Recommendations. The transcript showed that the National Commissioner asked the Provincial Commissioners why there was silence on the matter. Her comments appear to urge the Provincial Commissioners to respond to the media reports as the transcript showed.

The transcript revealed that the discussion on the Farlam Commission recommendations confirmed that the Provincial Commissioners were aggrieved by the negative press reports and they asked Lt. Gen Makgale to assist in responding to the press reports

Lt. Gen. Mbekela indicated that she had a problem with the Farlam Commission from its start and would never attend the Commission.

It was important to note that the chairperson of the Magoebaskloof meeting was the National Commissioner.

The discussion in the transcript cannot be separated from the official minutes which did not capture the emotion of the Provincial Commissioners. SAPS leadership clearly saw themselves as the line between anarchy and order in this version of the document.

The minutes show that the Provincial Commissioners discussed the matter of the statement over lunch. There is no indication that the National Commissioner attended this discussion at lunchtime.

The transcript of the Portfolio Committee meeting showed that Lt. Gen. Mbekela indicated that the National Commissioner was not part of the discussions on the matter of issuing a statement. However, the Magoebaskloof meeting transcript showed that she participated actively in the discussion on the Farlam Commission recommendations and chaired it, even though she said she was conflicted.

The Portfolio Committee was told by Lt. Gen.Mbekela that the National Commissioner did not issue an instruction for the release of the press statement.

It was quite clear from the Magoebaskloof minutes and the transcript that a disjuncture existed between the two documents. The police commissioners who attended the Magoebaskloof meeting were less than frank when appearing before the Portfolio Committee on 12, 18 and 28 August 2015.

Committee Findings with respect to the BOC and the Magoebaskloof meeting:
- The Committee found that the BOC and senior officials misrepresented what happened at the Board of Commissioners meeting with respect to the role of the National Commissioner.
- The Committee found that the transcript of the meetings did not verify what SAPS told the Committee at its meetings on 12, 18 and 28 August 2015. The transcript of the meetings showed a different version to that of the minutes of the Magoebaskloof meeting produced by the police. The transcript showed that the National Commissioner attended the meeting, chaired the meeting while discussing the Farlam Commission, while the minutes indicated that she was conflicted.
- The Committee found that SAPS Management, made up of the full complement, misrepresented the facts in their interaction with the Committee on 1 August 2015 about the Magoebaskloof Board of Commissioners meeting held on 15 and 16 July 2015
- The Committee found that their conduct was in total disregard of a call to refrain from issuing media statements until the process instituted by the President had been concluded.
- The Committee found that the statements embarrassed the Executive Authority and the police as a whole.
- The Committee noted that the statements were issued to all SAPS members and found the statements were not discussed with the Executive Authority, despite SAPS leadership knowing that they had local and international implications and impact.
- The Committee found that the aim of the statement was to influence the decision of the President. Even if this were not a direct intention of the BOC, since its statement was released after the National Commissioner had submitted her response to the President, the President still had to consider her response and only thereafter decide whether she should be subjected to a section 9 inquiry in terms of the Police Act as recommended by the Commission.
- The Committee found that the BOC’s conduct was therefore inconsistent with the principle that an interested party should not conduct themselves in a manner that may be perceived as trying to influence the outcome of a process before it had been concluded.

Committee observations about role of the National Commissioner:
According to the Deputy National Commissioner for Corporate Services, the National Commissioner was not present at the Magoebaskloof meeting where the 1st statement was discussed. The Committee probed the involvement of the National Commissioner in the issuing of the statement during the meeting. It became clear that when initially questioned about who attended the meeting, Lt. Gen. Makgale omitted to indicate that the National Commissioner attended and chaired the meeting at Magoebaskloof. Only after the Committee probed did he admit that the National Commissioner attended and chaired the meeting.

Lt. Gen. Sitole reported that the National Commissioner stated that she was conflicted during the discussion. The Committee pointed out that while the Farlam Commission was debated, the National Commissioner was present, chaired the meeting and did not recuse herself, despite indicating that she was conflicted. This action on the part of the National Commissioner constituted a conflict of interest because the Farlam Recommendations directly affected the National Commissioner and yet she took part in the response of SAPS. The National Commissioner took part in the meeting where the 2nd press statement was discussed. The Committee pointed out that the BOC members must have known that she was conflicted, but continued with the discussion. This was not in keeping with good governance principles.

Lt. Gen. Sitole informed the Committee that when SAPS realised that a matter escalated to the political level, SAPS asked the National Commissioner to raise it with the Minister. Given that the Farlam Report had international and national implications for SA, Members pointed out that the National Commissioner should have discussed it with the Executive Authority. Committee Members pointed out that the Deputy Minister reported to the Committee that neither she nor the Minister was consulted on the statement that was issued on 1 August 2015.

Committee Findings with respect to the National Commissioner:
- The Committee found that the transcript showed that the National Commissioner actively encouraged the police commissioners to respond to media reports and not to cower under the table. It became clear during the course of the deliberations that the National Commissioner urged the Commissioners to speak out. She lamented the silence of SAPS senior management in the light of the attacks on the police.
- The Committee found the fact that the National Commissioner chaired the BOC meeting that discussed the Farlam Report and recommendations, knowing full well that she was the subject of some of the recommendations, was a conflict of interest.
- The Committee found that the National Commissioner did not recuse herself from that portion of the meeting that discussed the recommendations, was not in keeping with good governance principles.
- The Committee found that the role of the National Commissioner at the Magoebaskloof meeting on 15-16 July 2015 and her role in the 12 August 2015 meeting, was not in keeping with good corporate governance and contributed significantly to the statements being issued by the BOC.
- The Committee found that the National Commissioner knew that she was the subject of recommendations by the Farlam Commission but yet participated in a BOC meeting that had the matter of the Farlam recommendations on the agenda. She did not recuse herself from the meeting, choosing instead to chair the meeting and asked the Commissioners to break their silence on media attacks on the SAPS.
- The Committee found the National Commissioner deviated substantially from the role of an accounting officer who had a duty of care to ensure compliance with directives from the Executive Authority and Parliament. She allowed her own interests to become that of SAPS leadership and did not stop the process when she could have. Instead, she encouraged her Provincial Commissioners to issue a statement.
- The Committee found that she must have known that the statements would have impacted on the public discourse on the Farlam Recommendations and did not confer with the Minister of Police and his deputy. This was unacceptable.
- Lastly, while knowing that the statements would have the effect of entering the political arena, the National Commissioner made no attempt to stop the statements from being released, or discussing it with the Executive Authority.

Other Findings:
The role of Lt. Gen. Makgale:
- The Committee found that Lt. Gen. Makgale was obstructive, not forthcoming and deliberately obfuscated in response to the questions put to him. He was uncooperative with the Committee and attempted not to provide full answers to the Committee.
- The Committee found that his role in the interactions and deliberations had been to deliberately mislead the Committee as to who ordered him to release the statement and it views his actions in a serious light.
The Committee emphasised section 56 of the Constitution on Evidence or information before National Assembly in this respect.
- The Committee found that contrary to the BOC version of a mutiny by SAPS members, there was no unity amongst the top echelons of the BOC. One deputy National Commissioner did not sign the statement issued by Lt. Gen. Makgale, while one Provincial Commissioner expressed his discomfort with the statement.
- The Committee found that the distribution of the statements was aimed at canvassing support for the National Commissioner and that it was not consistent with the governing principles in the police.
- The Committee found his actions inconsistent with the role of a high ranking officer of his rank and status.

Press statements by individual Provincial Commissioners and Divisional Commissioner Ntshiea:
- The Committee found that the individual statements by the Provincial Commissioners of the North West, Gauteng, Mpumalanga and the statement by Divisional Commissioner for Human Resources violated the provisions of the Standing Order 156 because it prejudiced, embarrassed and discredited SAPS.
- The Committee found that these officers did not follow the policy prescripts of SAPS when they released their statements in support of the National Commissioner.  
- The Committee found the Gauteng Provincial Commissioner was not truthful on 12 August 2015 when he informed the Committee that his provincial management committee held a meeting to support the statement.

Civilian control of the Police:
The Committee emphasised the importance of the principle of civilian oversight over SAPS in the Constitution. The Committee confirmed the importance of adherence by SAPS to policy prescripts.
The Committee viewed the adherence to directives of the Minister of Police and Parliament as critical for civilian control over the police. The Committee noted that the conduct of SAPS must take cognisance of this important principle of civilian control and SAPS must take guidance from the Executive Authority when it came to policing policy issues.

The Committee had to make a determination and findings on the matter before it. The Committee findings were tied to the six questions posed in the Terms of Reference in addition to other findings.

Summary of the Findings:
▪ Were the relevant officers truthful with their testimony in presenting the facts leading up to the issuing of the said statements?
The BOC members who interacted with the Committee were not truthful with the Committee in presenting the facts as they unfolded at the Magoebaskloof meeting on 15 and 16 August 2015. In their testimony before the Committee, the Commissioners were at pains to explain that their media intervention was divorced from commentary on the Marikana Commission report but dealt strictly policing matters.

The BOC’s desire to comment on policing issues was in essence the need to respond to all parties that had commented on the Farlam Commission Report. Their decision to release a media statement arose out of their frustration that all and sundry had commented on the Farlam Commission Report except the high echelons of SAPS. The fact that the National Commissioner considered herself conflicted and chose not to be part of the lunch time meeting to formulate the media statement was enough indication that the media statement had all to do with the Farlam Commission Report and little or nothing to do with the policing issues contained in the media statements.

It was the Committee’s considered view therefore, that the transcript of the BOC meeting set out the truth which the Commissioners were not prepared to acknowledge before the Committee. The Committee further noted that there was an attempt to play down the role of the National Commissioner at this meeting. It appeared from the transcript that she was insistent that the BOC broke its “deafening silence” and speak out.

▪ Whether the documents and electronic material made available to the Committee verify the statements made during the said Committee meetings?
The fact that the National Commissioner considered herself conflicted and chose not to be part of the lunch time meeting to formulate the media statement, was enough indication that the media statement had all to do with the Farlam Commission Report and little or nothing to do with the policing issues contained in the media statements.

The transcript of the BOC meeting evinced that the media statement was prompted by a discussion on the Farlam Commission Report whereas in their testimony before the Committee, they sought to divorce the media statement from the discussions at the BOC meeting but was rather a response to media statements about perceived rebellion and mutiny within SAPS.

This contradiction therefore inevitably led to the conclusion that the officers were not candid with the Committee on the question of whether the media statement represented a position taken by the BOC in regard to the Farlam Commission findings and recommendations.

▪ Was the relevant press statements made in compliance with the Standing Order 156?
The statement of 1 August 2015 was issued in disregard of the Standing Order 156 in the following respects:
The statement had the effect of pre-empting the process that the President had initiated on the Farlam Commission’s findings and recommendations. The statement had the effect of the BOC expressing support and allegiance to the National Commissioner in circumstances where they had to await the outcome of the process initiated by the President. In addition, the statement was issued in total disregard of the 26 June 2015 SAPS statement.

▪ Was the relevant conduct by the officers in line with good governance principles?
The BOC acted contrary to Standing Order 156 and in disregard of the 26 June 2015 SAPS statement. They acted contrary to good governance principles by issuing the 1 August 2015 statement. Their conduct was in total disregard of a call to refrain from issuing media statements until the process instituted by the President had been concluded.

▪ Did the conduct by the officers prejudice, embarrass and discredit SAPS?
The Committee was of the opinion that both the statements purport to have been an effort to reassure SAPS members and the public that SAPS was continuing to do what it was required to do in terms of the Constitution and the Police Act despite the findings and recommendations of the Farlam Commission.
Indeed, this intervention may have reassured the SAPS members who were involved in the Marikana incident and those who may have been deployed to act in similar situations. The effect of the conduct was that it was embarrassing to SAPS which had released a statement that there shall be no comment on the Commission until all processes under the command of the executive had been concluded. Therefore, it was the Committee’s considered view that SAPS remained embarrassed by this conduct because it contradicted its earlier statement that there should be no public pronouncements on the Farlam Commission Report.

▪ Was the press statements aimed at influencing the process by the President in response to the recommendations of the Farlam Commission in relation to the National Police Commissioner?
The BOC’s conduct was inconsistent with the principle that an interested party should not conduct itself in a manner that may be perceived as trying to influence the outcome of a process before it had been concluded.
On the reading of the transcript of the BOC meeting of 15 and 16 July 2015 it was clear that the Commissioners were deeply aggrieved that there had been no response to the allegations made in the press and by commentators regarding the ability of SAPS to function and regarding the National Commissioner’s fitness and propriety to continue in the position. The media statement that had been prepared during lunch time was not released immediately but only the day after the National Commissioner had submitted her response to the President. This might be because the BOC was adhering to SAPS 26 June 2015 statement that no public pronouncements about the report, its findings and recommendations will be made. However, this did not address the difficulty that after the National Commissioner had submitted her response, the President still had to consider what cause of action to take in response thereto. The media statement of 1 August 2015 was therefore pre-emptive of a decision still to be taken.

It was the Committee’s considered view therefore that the issuing of the two statements was aimed at influencing the process by the President in response to the Farlam Commission recommendations about the National Police Commissioner.

Recommendations
Making recommendations to the Executive authority was within the mandate of a Portfolio Committee – it was then up to the Executive to accept or not accept these recommendations.
 
- The Committee recommended that the relevant Executive Authorities consider the appointment of a Board of Inquiry to inquire into the conduct of the relevant Provincial Commissioners, and Acting Provincial Commissioners, who declared their support for the suspended National Commissioner in a statement on 1 August 2015 and a second statement on 13 August 2015, or any other appropriate steps.
- The Committee recommended that the relevant Executive Authority consider appropriate steps in relation to the conduct of the two Deputy National Commissioners, one acting Divisional Commissioner and one Divisional Commissioner, who declared their support for the suspended National Commissioner in a press statement dated 1 August 2015 and the second BOC statement dated 13 August 2015.
- The Committee recommended that the relevant Executive Authority consider the appropriate steps to inquire into the conduct of the Divisional Commissioner for Human Resources, who declared her support for the suspended National Commissioner in a statement on 30 July 2015.
- The Committee recommended that the relevant Executive Authority consider the appropriate steps in relation to the conduct of the Head of Corporate Communication, who issued the statement on 1 August 2015 and 13 August 2015; declared his support for the suspended National Commissioner in a statement on 1 August 2015 and attempted to mislead the Committee on 28 August 2015.
- The Committee recommended that the relevant Executive Authority consider the appointment of a Board of Inquiry in relation to the conduct of the suspended National Commissioner in relation to the process of issuing the BOC statement, dated 1 August 2015 and the second statement dated 13 August 2015, or any other appropriate action.
- The Committee recommended that the Executive Authority report back to the Committee by 15 January 2015 on any other steps taken with regard to these recommendations, or any other steps flowing from the Committee Report.
- The Executive Authority was to report back to the Committee on the final outcome and determination with respect to the recommendations contained in this report.

The Report concluded with a timeline of events.

Discussion
Mr Z Mbhele (DA) reflected that the Committee Report was very good and comprehensive and captured the main input from the Committee – he expressed appreciation to the secretariat for this.

Ms L Mabija (ANC) indicated that the ANC fully endorsed the Committee Report – the police should at all times adhere to the principle of civilian control and parliamentary oversight. If anything controversial came up, police management should get guidance from the Minister. Police management should at all times act within the boundaries of the Constitution.

Ms A Molebatsi (ANC) added that the ANC supported the draft report. The party was of the view that civilian control over the police service by the Executive and Parliament was non-negotiable. It was expected that the Executive Authority should study the Report and give necessary consideration to the Committee recommendations. A professional police service was needed with competent leadership that was trusted by the public, Parliament and the Executive. The draft report was a clear indication that the Committee took its work seriously. She thanked the deputy national commissioners, divisional commissioners and other senior officers, who, under huge pressure, did not join those who issued statements. The Committee took note of this and felt they should be commended for their commitment to RSA and SAPS. It was believed the new Acting National Commissioner had the necessary skills and experience to guide SAPS during this challenging time.

Mr A Shaik Emam (NFP) thanked the Committee for the comprehensive report which clearly outlined what had taken place, the challenges faced and the recommendations. On behalf of the NFP, he found there was a clear intention to undermine authority – in fact the situation was worse than the Committee Report depicted and it was as if the country had been held to ransom. It was clear some of SAPS officials were deliberately evasive before the Committee by not answering questions and not giving a clear indication of what transpired. He thought the recommendations were perfectly in order and that the Committee should push forward with them. He was concerned about future trust and confidence which was now at an all time low. Could the Committee still have confidence in that some of these officials still held office?

Mr P Mhlongo (EFF), on the part of the EFF, endorsed the Committee Report hopeful of the fact that SAPS members would at all times be guided by the Constitution which guaranteed the right for South Africans to live under a very peaceful environment which the police had the authority to ensure. He was concerned that even in his province of KZN, one did not get honesty from the side of SAPS with the squashing of wrongful acts and covering up for one another. It was important to send a message that SAPS need not collude over wrong things – they must be able to stand by the laws of the country and ensure that nothing else was defended but the Constitution and democracy. The Report was comprehensive and made a great deal of sense. He hoped the Executive Authority would play its part in stamping its authority as guided and demanded by the Constitution and the oath made to the people of SA.

Mr P Groenewald (FF+) agreed that the draft report was good. One point he questioned however was what happened after recommendations were made. The SAPS Act made reference to the case in which a provincial commissioner lost the confidence of the Executive Council, the Member of the Executive Council may notify the Minister of such occurrence and the reasons therefore. The Act further outlined that the Minister shall, if he or she deems it necessary and appropriate, send notice to the National Commissioner and the National Commissioner then would institute a board of inquiry to investigate the matter. The FF+ supported the Report but what happened now? This was a very important question and it was important to ensure that the Committee was technically correct in terms of process.

The Chairperson clarified that the Report was considered a normal Committee one so it would be published in the Announcements, Tablings and Committee Reports (ATC) before going to the House much like the normal process.

Page by page deliberations of the Committee Report
The Committee then went through the Report page by page, noting minor technical amendments.

The Chairperson noted that since there were no further corrections, the Committee Report would no longer be a draft but the final version

The meeting was then interrupted by striking NEHAWU workers.

[PMG has learnt the Report was formally adopted].

[The Minister of Police briefing on the Farlam Commission Reference Group was not held but he later held a media briefing.]