1.Rule 201 Enquiry Report of the Portfolio Committee on Police in Terms of the National

1.Rule 201 Enquiry Report of the Portfolio Committee on Police in terms of the National Assembly Rules (8th edition, February 2014) dated 11November 2015

1. Introduction

The South African Police Services (SAPS) is required by section 205(3) of the Constitution of the Republic of South Africa (Act 108 of 1996) to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

Section 205(1) of the Constitution requires that the police service must be structured to function in the national, provincial and where appropriate, local spheres of government.

Section 207(1) of the Constitution makes provision for the President as head of the national executive to appoint a man or woman as the National Commissioner of the SAPS to control and manage the police service. Section 207 provides that:

(4) Provincial Commissioners are responsible for policing in their respective provinces –

(a) as prescribed by national legislation; and

(b) subject to the power of the National Commissioner to exercise control over and manage the police service in terms of subsection (2)

Section 206 (1) provides that the role of the Minister of Police is to be responsible determining national policing policy after consultation with the provincial governments and after taking the needs and priorities of the provinces into account.

The SAPS is governed by the South African Police Services Act, 68 of 1995 (SAPS Act), regulations and standing orders. Section 10 of the SAPS Act provides for the establishment of a Board of Commissioners (BOC). Section 10(2) states that the functions of the BOC shall be to promote co-operation and co-ordination in the Service. Section 10(3) states that the BOC shall be presided over by the National Commissioner or his or her nominee and shall determine its own procedure.

The SAPS BOC released a media statement on 1 August 2015 entitled: “The SAPS Board of Commissioners fully supports General Riah Phiyega”. The statement pledges support for the National Commissioner subsequent to media reports published on 26 July 2015, in which several senior officers in the SAPS allegedly questioned her leadership of the SAPS and made various damning statements around the overall weakening of the SAPS structures.

The media statement states that the allegations made by media reports that morale in the SAPS was low, breaking ranks and an overall messy state affairs within the SAPS were unfounded. The statement further noted that none of the SAPS management structures have taken a decision not to support the submission made at the Farlam Commission of Inquiry. It then goes on to list the successes achieved under the leadership of General Phiyega.

The media statement issued by the Head of Corporate Communication was supported by all the Provincial Commissioners, the Deputy National Commissioner for Corporate Services, the Deputy National Commissioner for Policing and the Acting Divisional Commissioner for Crime Intelligence and the Head of Corporate Communication.

In addition, individual media statements were also released by individual Provincial Commissioners and at least one Divisional Commissioner. All the media statements pledged support for the National Commissioner. Individual media statements expressing support for the National Commissioner was issued by the Provincial Commissioners for North West, Gauteng and Mpumalanga. All the statements from the Provincial Commissioners were released on 26 July 2015. The statement by the Divisional Commissioner for Human Resources was entitled: “Hands Off General Riah Phiyega” was released on 30 July 2015.

Following the publishing of the statement by the BOC on 1 August 2015 (1st BOC media statement), the Chairperson of the Portfolio Committee on Police issued a statement on 5 August 2015 indicating that the Portfolio Committee on Police (hereafter referred to as ‘the Committee’) viewed the declaration of support to the National Commissioner as inappropriate and unfortunate. The Chairperson noted that it was not up to certain members of the SAPS management to become involved in an overtly public discourse or to indirectly engage in lobbying on behalf of a party or parties who are the subject of an official process. He called on the process initiated by the President to be respected. The statement concluded with the Committee stating it intends calling the BOC to its meeting on 12 August 2015 to explain itself.

On 12 August 2015, the Portfolio Committee on Police considered the first BOC statement (issued on 01 August 2015). The statement was released two weeks after the BOC meeting on 15-16 July 2015 and one day after the National Commissioner’s deadline to respond to the President’s letter in which he asked her for her responses to the Farlam Commission Report. The statement of the BOC pledged support to the National Commissioner from all the Provincial Commissioners, two acting Provincial Commissioners, two of the Deputy National Commissioners and one Acting Divisional Commissioner.

1. Background

The serious constitutional implications of the BOC statements and the subsequent meetings of the Portfolio Committee has its genesis in the Constitution and is based amongst others on the principle of separation of powers. This founding principle remains a fundamental element of the case law and was captured in the Interim Constitution.[1] According to Justice Majapelo[2], Section 8(1) of the final Constitution lists all the elements of the structures that are bound by the Bill of Rights namely, the legislature, the executive, the judiciary and all organs of state. Significantly, Justice Majapelo notes that the purpose of the separation of powers principle as:

The main objective of the doctrine is to prevent the abuse of power within different spheres of government. In our constitutional democracy public power is subject to constitutional control.[3]

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The separation of powers is noted as one of the constitutional principles in the Constitution certification judgement wherein the judgement defines the constitutional principle of separation of powers as:

a separation of powers between the legislature, executive and judiciary with appropriate checks and balances to ensure accountability, responsiveness and openness.[4]

The Committee also noted the SAPS Code of Conduct which places particular obligations on all members of the SAPS. It states:

“I commit myself to creating a safe and secure environment for all people in South Africa by-

•Participating in all endeavours aimed at addressing the root causes of crime;

•Preventing all acts that may threaten the safety or security of any community;

•Investigating criminal conduct that endangers the safety or security of the community;

•Bringing the perpetrators to justice;

In carrying out this commitment, I shall at all times-

•Uphold the Constitution and the law;

•Take into account the needs of the community;

•Recognise the needs of the South African Police Service as my employer, and

•Cooperate with all interested parties in the community and the government at every level.”

The Committee was concerned that in a constitutional democracy, in which the Constitution is supreme, the top leadership of the SAPS which is accountable to Parliament has overstepped that mark of separation of powers. For the purposes of emphasising that separation of powers principle, the Committee deems it necessary to restate the different legislative, executive and judicial authorities of the three branches of State.

2.1.The Legislature (Parliament)

Section 44 of the Constitution provides for the national legislative authority of Parliament:

(1)The national legislative authority as vested in Parliament –

(a)confers on the National Assembly the power –

1. to amend the Constitution;
2. to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and
3. to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and

(b)confers on the National Council of Provinces the power –

1. (i) to participate in amending the Constitution in accordance with section 74;
2. to pass, in accordance with section 76, legislation with regard to any matter within a functional area listed in Schedule 4 and any other matter required by the Constitution to be passed in accordance with section 76; and
3. to consider, in accordance with section 75, any other legislation passed by the National Assembly

(2)Parliament may intervene, by passing legislation in accordance with section 76(1), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary –

(a)to maintain national security;

(b)to maintain economic unity;

(c)to maintain essential national standards;

(d)to establish minimum standards required for the rendering of services; or

(e)to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.

(3)Legislation with regard to a matter that is reasonably necessary for, or incidental to, the effective exercise of a power concerning any matter listed in Schedule 4 is, for all purposes, legislation with regard to a matter listed in Schedule 4.

(4)When exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.

2.2.The Executive

Section 85 of the Constitution provides for the Executive Authority of the Republic as follows:

(1)The executive authority of the Republic is vested in the President.

(2)The President exercises the executive authority, together with the other members of the Cabinet, by –

(a)implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;

(b)developing and implementing national policy;

(c)co-ordinating the functions of state departments and administrations;

(d)preparing and initiating legislation; and

(e)performing any other executive function provided for in the Constitution or in national legislation.

2.3.The Judiciary

Section 165 of the Constitution allows for judicial authority as follows:

(1)The judicial authority of the Republic is vested in the courts.

(2)The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3)No person or organ of state may interfere with the functioning of the courts.

(4)Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

(5)An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

(6)The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.

2.4.Political responsibility and control of the police

In terms of the Constitution, the role of the police is clear. In terms of section 207(1) of the Constitution, it is the responsibility of the President to appoint a man or woman as the National Commissioner of the Police service. The National Commissioner exercises control over and manages the South African Police Services in accordance with the national policing policy and the directions of the Cabinet Member responsible for policing in terms of section 207(2).

The Minister of Police is the Cabinet Member responsible for policing and according to section 206(1) of the Constitution has political authority over the police. In terms of this section, the Minister of Police must determine the national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives.

In terms section 207(2) the National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing. Parliament in turn, has oversight over the Executive Authority of the SAPS in terms of section 55(2)(a) and (b) of the Constitution.

Section 6 of the SAPS Act (Act 68 of 1996) provides for appointment of the National and Provincial Commissioners. In the case of the appointment of Provincial Commissioners, the SAPS Act makes provision in section 7(1)(b) for them to be appointed by the National Commissioner in consultation with the Member of the Executive Council. Section 8 of the SAPS Act provides for procedures and processes to be followed in the event of a loss of confidence in the National or Provincial Commissioners.

3.Mandate of the Portfolio Committee on Police

The mandate of the Portfolio Committee on Police is derived from sections 55 and 56 of the Constitution and the Rules of the National Assembly. Section 57 (1) and (2) makes provision for Parliament to determine its own Rules.

The mandate of the Portfolio Committee on Police is to:

a)Monitor the financial and non-financial performance of government departments and their entities to ensure that national objectives are met;

b)Process and pass legislation;

c)Facilitate public participation in Parliament relating to issues of oversight and legislation;

d)Review the performance of departments and the relevant entities through annual reports;

e)Scrutinise the financial and non-financial performance of departments and entity;

f)Interrogate the annual performance and strategic plans of the departments and entity; and

g)Monitor the implementation of legislation.

3.1The purpose of the Rule 201 Enquiry

On 28 August 2015, the Portfolio Committee resolved to institute a Rule 201 Enquiry in terms of the Rules of the National Assembly (8th Edition, February 2014).

In particular, the Committee wanted to ascertain whether the press statement(s) issued by the BOC was designed to influence the process initiated by the President who had to consider the input of the National Commissioner with respect to the Farlam Commission recommendations.

The Committee wanted to establish whether the Provincial Commissioners were truthful with the Members of the Committee in answering the questions put to them in the meetings conducted with them on 12 and 18 August 2015.

The Committee resolved to find answers to the following questions:

1)Establish and consider whether the relevant officers were truthful with theirtestimony 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 the Standing Order 156.

4)Establish and consider whether the relevant conduct by the officers is 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.

Rule 201(c) of the National Assembly Rules in particular is of relevance to the inquiry in that the Committee was of the opinion that it should determine the facts of the report that was provided by the Board of Commissioners at its meetings held on 12, 18 and 28 August 2015 about how the press statement originated, were crafted and who gave the authority for publication.

3.2Rules of the National Assembly

In terms of Rule 201 the National Assembly Rules (February 2014 edition),

(1)A portfolio committee:

(a)must deal with bills and other matters falling within its portfolio as are referred to it in terms of the Constitution, legislation, these Rules, the Joint Rules or by resolution of the Assembly;

(b)must maintain oversight of –

(i)the exercise within its portfolio of national executive authority; including the implementation of legislation;

(ii)any executive organ of State falling within its portfolio;

(iii)any constitutional institution falling within its portfolio; and

(iv)any other body or institution in respect of which oversight was assigned to it;

(c)may monitor, investigate, enquire into and make recommendations concerning any such executive organ of state, constitutional or other body or institution including the legislative programme, budget, rationalisation, restructuring, functioning, organisation, structure, staff and policies of such organ of State, institution or any other body or institution;

(d)may consult and liaise with any executive organ of State or constitutional institution; and

(e)must perform any other functions, tasks or duties assigned to it in terms of the Constitution, legislation, these Rules, the Joint Rules or by resolution of the Assembly, including functions, tasks, and duties concerning parliamentary oversight or supervision of such executive organs of state, constitutional institutions or other bodies or institutions.

In the process of conducting the Enquiry, the National Assembly or any of its Committee in terms of section 56 of the Constitution, may –

(a) summon any person to appear before it to give evidence on oath or affirmation,or to produce documents;

(b) require any person or institution to report to it;

(c) compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and

(d) receive petitions, representations or submissions from any interested persons or institutions.

The Committee has used the above mentioned Rules to determine answers to the six questions it posed.

4.Events leading up to the decision of the Committee to institute a Rule 201 Enquiry

At its meeting on 12 August 2015, the Portfolio Committee instructed the police to retract the BOC statement issued on 1 August 2015. It also instructed that all the Commissioners who signed the statement apologise to the President for interfering in the process he initiated on the Farlam Recommendations; to apologise to the Committee; and lastly, that they never do the same again.

All the Commissioners and two Deputy National Commissioners who signed the statement apologised, except the Provincial Commissioner for KwaZulu-Natal who was not present in the meeting. The Committee accepted all their individual apologies. The acting Divisional Commissioner for Intelligence attended the Magoebaskloof BOC, signed the BOC statement, but did not attend the Portfolio Committee meeting on 12 August 2015.

4.1SAPS BOC statement on 13 August 2015 (2nd Statement)

The BOC issued a second statement on 13 August 2015 (2nd Statement), which indicated that it apologised for the “misinterpretation” of the original statement, but did not retract the original statement. In addition, at its meeting held on 18 August 2015, the Chairperson of the Portfolio Committee put it to the Commissioners to decide whether they stood by their original apology or whether they stood by their 2nd media statement. Some of the Commissioners indicated that they stood by their original apology on 12 August 2015 and others indicated that they stood by the apology and the second statement issued on 13 August 2015.