Author: Gary Moore

Date: 26 October 2018

The Constitution[1] states[2] that national security must[3] be pursued in compliance with the law,[4] and is subject to the authority of Parliament and the national executive.[5]

Security services must act[6] i.a.w. the Constitution and the law,[7] and be overseen[8] by multi-party parliamentary committees.[9]

Security services include a police service[10] to uphold and enforce the law.[11] A Cabinet member must[12] be responsible for policing.[13] Provinces may monitor police conduct.[14]

The Constitution states that[15] an “independent” police complaints body established by national legislation must investigate alleged misconduct of[16] a member of the police.[17]

Hence, the Independent Police Investigative Directorate Act, 2011[18] provided for establishment of an Independent Police Investigative Directorate,[19] declaring[20] that there is a need to ensure effective “independent oversight” of the police and citing the Bill of Rights.[21]

The Act’s objects are[22] to ensure “independent oversight” of the Service, provide for independent and impartial investigation of offences allegedly committed by members, make disciplinary recommendations resulting from investigations by the Directorate, and enhance accountability and transparency by the Service i.a.w. principles of the Constitution.[23]

The Act established the Directorate,[24] and stipulates that it “functions independently” from the Police[25] and that each organ of state must assist it to “maintain its impartiality”.[26]

The Directorate is headed by an Executive Director.[27] The Executive Director[28] is responsible for appointment of provincial police heads,[29] and must appoint staff necessary for the Directorate to perform its functions.[30] He must give guidelines w.r.t. case investigation and management, and office administration and staff training.[31]

Matters which the Directorate must investigate include: Deaths as a result of police action, rape by an officer on duty or not; rape in police custody; complaints of torture or assault against an officer in execution of his duties; corruption matters in the police initiated by the Director or after a complaint from a member of the public or referred by the Minister[32] to the Directorate; and any other matter referred to it as result of a decision by the Director.[33] The Directorate may investigate matters relating to systemic corruption involving police.[34]

The Executive Director must refer criminal offences revealed by investigation to the National Prosecuting Authority,[35] and ensure that complaints about disciplinary matters are referred to the National Commissioner.[36]

The Executive Director may, on receipt of complaints, cause to investigate alleged offences by Service members.[37] He must refer criminal matters outside the Directorate’s scope to the appropriate authority.[38] He must provide strategic leadership to the Directorate.[39]

Empowering Minister to nominate Executive Director violates Rule of Law:

The Act says that “the Minister”[40] must nominate a suitably qualified person for appointment to the office of Executive Director i.a.w. “a procedure to be determined by the Minister”.[41] The relevant Parliamentary committee must then[42] confirm or reject the nomination.[43] If it is confirmed, the successful candidate is appointed to the office of Executive Director.[44]

It is submitted that the Act, in authorising the Minister to nominate a candidate for appointment as Executive Director[45] violates the Rule of Law, for the following reasons:[46]

The Executive Director’s duties i.r.t. the Directorate are extensive.[47] The Directorate’s oversight of police functions[48] is of cardinal importance, and it should be free to investigate complaints against the police without undue external influence. Authorising the Minister to nominate an appointee to the office gives the Minister undue control over the Director.[49]

The perception of independence is also important when evaluating if independence in fact exists. Public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. If Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet an objective benchmark for independence, because public confidence that an institution is independent is a component of, or constitutive of, its independence.[50]

It is concluded that the Act’s provision that the Minister nominates a candidate for appointment as Executive Director[51] gives the Minister undue control over the Director.

The provision thus breaches the Constitution’s requirement that police misconduct must be investigated by an independent body.[52]

It is submitted that the provision, by diluting the independence of the body set up to investigate alleged offences and misconduct by police members, indirectly facilitates the undermining of the principles of the Rule of Law that the law should afford adequate protection of fundamental rights,[53] and that[54] ministers and public officers (which would include the Minister and Director) should exercise their powers only for the purpose for which they were conferred on them.[55]

Empowering Minister to discipline or dismiss Director also violates Rule of Law:

As mentioned, the Minister nominates a candidate for appointment as Executive Director.[56] A Parliamentary committee must then[57] confirm or reject the nomination.[58]

If it is confirmed, states the Independent Police Investigative Directorate Act, the candidate is appointed “subject to the laws governing the public service”.[59]

That quoted phrase imports the provisions of the Public Service Act, 1994[60] which empower the Minister[61] to discipline the Executive Director for failure to comply with that Act,[62] or to dismiss him for incapacity due to poor work performance, or for misconduct.[63]

The Independent Police Investigative Directorate Act also authorises the Minister to remove the Director from office for misconduct or inability to perform his duties.[64]

It is submitted that these provisions too, by diluting the independence of the Directorate, indirectly facilitate the undermining of the Rule of Law principles that the law should afford adequate protection of fundamental rights, and that ministers and officials (including the Minister and Director) should exercise their powers only for the purpose for which they were conferred on them.

The Constitutional Court has held that—

these provisions (of the Independent Police Investigative Directorate Act, that the Director is appointed “subject to the laws governing the public service” and the Minister may remove him for misconduct or inability to perform his duties,[65] and of the Public Service Act, 1994[66]) give the Minister great political power and control over the Director and enable him to remove the Director without parliamentary oversight;

this is antithetical to the Directorate’s independence envisaged by the Constitution and is tantamount to political management of the Directorate, by creating room to appoint someone who is likely to pander to the Minister’s whims or be sympathetic to his political orientation, which might lead to the Directorate’s becoming politicised and manipulated, which is incompatible with the independence demanded by the Constitution;

subjecting the Director to the laws governing the public service, thereby enabling the Minister to interfere with his tenure, subverts the Directorate’s independence by turning the Director into a public servant subject to the Minister’s political control;

the cumulative effect of the provisions has the potential to diminish the confidence the public should have in the Directorate and disincline them to report cases to it, rendering it unable to function; and

the provisions do not pass constitutional muster, insofar as they enable the Minister to suspend, discipline or remove the Director.[67]

Parliament’s failure to cure defects in stipulated period violates Rule of Law:

The Constitutional Court directed Parliament to cure the legislative defects, that enable the Minister to suspend, discipline or remove the Director, “within 24 months from the date of this order”.[68] The Court issued its order on 6 Sep 2016.[69]

Parliament was slow to react. Only in Jun 2018, nearly 21 months after the Court order, did it publish a draft amending Bill[70] for public comment.[71]

A Bill[72] was introduced in the National Assembly, which passed the Bill on 4 Sep[73] and referred it to the National Council of Provinces,[74] which to date[75] has not yet passed it, more than 25 months after the Court order.

It is submitted that Parliament’s tardiness and consequent failure to comply with the Court’s two-year deadline violates the Rule of Law:

Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the Rule of Law. The Rule of Law is a foundational value of our society.[76] The Constitution vests judicial authority in the courts and requires other organs of state to assist and protect the courts.[77] Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the Rule of Law.[78]

 

[1] Constitution of the Republic of South Africa, 1996.

[2] Constitution Chap 11 (Security services).

[3] Inter alia. Constitution s 198 (Governing principles).

[4] Constitution s 198(c).

[5] Constitution s 198(d).

[6] And teach and require their members to act.

[7] Constitution s 199(5).

[8] To give effect to the principles of transparency and accountability.

[9] In a manner determined by national legislation or the rules and orders of Parliament. Constitution s 199(8).

[10] Constitution s 199(1).

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

[11] And prevent, combat and investigate crime; maintain public order; and protect and secure the inhabitants of the Republic and their property. Constitution s 205(1).

[12] Constitution s 206 (Political responsibility).

[13] Constitution s 206(1).

[14] Inter alia. Constitution s 206(3)(a).

[15] On receipt of a complaint lodged by a provincial executive.

[16] Or offence committed by.

[17] In the province. Constitution s 206(6).

[18] Independent Police Investigative Directorate Act 1 of 2011.

The Act came into operation on 1 Apr 2012. Independent Police Investigative Directorate Act s 37 read with Proc 3 of 10 Feb 2012.

[19] Independent Police Investigative Directorate Act, Long title.

[20] Independent Police Investigative Directorate Act, Preamble.

[21] Constitution Chap 2 (Bill of Rights).

[22] Inter alia.

[23] Independent Police Investigative Directorate Act s 2(b), (d), (e), (g).

[24] Independent Police Investigative Directorate Act s 3(1).

[25] Independent Police Investigative Directorate Act s 4(1).

[26] Independent Police Investigative Directorate Act s 4(2).

[27] Independent Police Investigative Directorate Act s 6(1).

[28] Also referred to as “the Director”.

[29] Independent Police Investigative Directorate Act s 7(2).

[30] Independent Police Investigative Directorate Act s 7(3)(a).

[31] Independent Police Investigative Directorate Act s 7(3)(e)(i)–(iii).

[32] Or a provincial Member of the Executive Council for policing, or the Secretary for the Police Service.

[33] Independent Police Investigative Directorate Act s 28(1)(b) and (d)–(h).

[34] Independent Police Investigative Directorate Act s 28(2).

[35] And notify the Minister of such referral. Independent Police Investigative Directorate Act s 7(4).

[36] And, where appropriate, a Provincial Commissioner. Independent Police Investigative Directorate Act s 7(6).

[37] And, where appropriate, refer the investigation to the National Commissioner or Provincial Commissioner concerned. Independent Police Investigative Directorate Act s 7(9).

[38] For further investigation i.t.o. applicable legislation. Independent Police Investigative Directorate Act s 7(10).

[39] Independent Police Investigative Directorate Act s 7(11).

[40] Of Police.

[41] Independent Police Investigative Directorate Act s 6(1).

[42] Within 30 parliamentary working days of the nomination.

[43] Independent Police Investigative Directorate Act s 6(2).

[44] Independent Police Investigative Directorate Act s 6(3)(a).

[45] I.a.w. a procedure determined by the Minister, moreover!

[46] Independent Police Investigative Directorate Act s 6(1).

[47] See above at fnn 29–39.

[48] I.e., of the functions of preventing, combating and investigating crime.

[49] Such observations have been made, i.c.w. the Minister’s power to dismiss the Director: McBride v Minister of Police and ano (Helen Suzman Foundation amicus curiae) 2016 (11) BCLR 1398 (CC) pars [24], [26], [38].

The observations apply also to the Minister’s power to nominate a candidate for appointment as Director.

[50] Glenister v President and others (Helen Suzman Foundation amicus curiae) 2011 (7) BCLR 651 (CC) [207];

Helen Suzman Foundation v President, Glenister v President 2015 (1) BCLR 1 (CC) [31].

[51] I.a.w. a procedure determined by the Minister. Independent Police Investigative Directorate Act s 6(1).

[52] Constitution s 206(6).

[53] Lord Bingham, “The Rule of Law” (Sixth Sir David Williams Lecture, 2006, Centre for Public Law, Univ of Cambridge), fourth sub-rule.

[54] The core principle of the Rule of Law.

[55] And reasonably, in good faith, and without exceeding the limits of such powers. Bingham, “The Rule of Law” (ibid), sixth sub-rule.

[56] Independent Police Investigative Directorate Act s 6(1).

[57] Within 30 parliamentary working days of the nomination.

[58] Independent Police Investigative Directorate Act s 6(2).

[59] Independent Police Investigative Directorate Act s 6(3)(a).

[60] Public Service Act, 1994 (Proc 103 of 1994).

[61] As the relevant executive authority.

[62] Designated a head of department in Schedule 1 of the Public Service Act.

[63] Public Service Act ss 16A(1)(a), 16B(2)(c) and (d), and 17(1) and (2)(c) and (d).

[64] Independent Police Investigative Directorate Act s 6(6)(a) and (c).

[65] Independent Police Investigative Directorate Act s 6(3)(a) and 6(6).

[66] Public Service Act ss 16A(1)(a), 16B(2)(c) and (d), and 17(1) and (2)(c) and (d).

[67] McBride v Minister of Police and ano (Helen Suzman Foundation amicus curiae) 2016 (supra) (CC) pars [38], [39], [43], [44].

[68] McBride v Minister of Police and ano (Helen Suzman Foundation amicus curiae) 2016 (supra) (CC) par [58].

[69] See: https://collections.concourt.org.za/bitstream/handle/20.500.12144/3834/Full%20judgment%20Official%20version%20(220%20Kb)-24945.pdf?sequence=13&isAllowed=y .

[70] Draft Independent Police Investigative Directorate Amendment Bill, 2018.

[71] By 22 Jun 2018. Gen Notice 300 of 2018 (Gazette 41667 of 1 Jun 2018).

[72] Independent Police Investigative Directorate Amendment Bill 25 of 2018.

[73] TimesLive 5 Sep 2018, “Parliament amends bill aimed at curbing political meddling with police watchdog”.

[74] SABC News 5 Sep 2018, “Parly approves Ipid Amendment Bill”.

[75] As at 26 Oct 2018.

[76] Constitution s 1(c).

[77] 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. Constitution s 165(4).

[78] Burchell v Burchell [2005] ZAECHC 35 par [10].

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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