Annual Report 1998 of the ICD
This, the Second Annual Report on the activities of the Independent Complaints Directorate (ICD) might well have been subtitled: "Crisis Management Manual".
The official opening of the ICD to the public on 1 April 1997 was heralded by a battery of adverse comments in the press, under headings such as "Police Watchdog in Crisis".
The Pretoria News was the only newspaper to have carried a positive editorial. I hope that the content of this report serves to confound our critics.
The most serious crisis, which had to be overcomed, was the deadlock in the negotiations for the loan of investigators from the SAPS. This was eventually resolved by the ICD obtaining the consent of the Department of Public Service and Administration (DPSA) to create posts for its own investigators and by the recruitment of investigators. This process brought its own problems.
Once the ICD was operational, it soon became apparent that its budget was not adequate to enable it to fulfil its statutory and constitutional mandates. Accordingly, it was only able to establish a presence in three (later four) of South Africa’s nine Provinces and it was necessary to devise a priority classification of complaints.
The lack of resources was compounded by the fact that the South African Police Service (SAPS), who administered the ICD’s budget prior to 1 April 1997, in effect prevented it from expending R 890 000 of its budget allocation for the 1996 / 97 financial year on the purchase of equipment. This expenditure had to be rolled over to the financial year under review. Various attempts at obtaining a supplementary allocation of funds were unsuccessful. Although a lot of pressure was exerted on the ICD to overspend its budget in order to expand its operation, particularly in those Provinces without an ICD presence, it did not do so.
A fact which had a serious, negative impact on the operations of the ICD was the delay on the part of the Department of Public Works (DPW) to procure permanent accommodation for the ICD’s Head Office in Pretoria. The continued occupation of temporary accommodation caused delays in linking up with the state financial systems, in the production of advertising materials and in creating a computer network and database.
In spite of these and other setbacks, I am pleased to be able to state that the ICD is now up and running and it is, I believe, making an impact in reducing the unacceptably high level of police misconduct. It is essential that such misconduct is curbed in order for the SAPS to be able to succeed in containing the current crime wave.
A number of people who have been involved in or followed the progress of the ICD have commented on how far the ICD has come in a very short time. I attribute this success to the enthusiasm and dedication of most of the members of the ICD and to the assistance which we have received from the outside, including foreign governments and local non-governmental organizations (NGOs).
CHAPTER ONE - THE YEAR UNDER REVIEW
The ICD has expanded from one staff member in 1996 to a staff of 85 by the end of March 1998. The composition of the ICD’s personnel broadly reflects the South African society in terms of population, language group, religion and gender, and brings together a wide diversity of people, including civil servants, lawyers, police officers and human right advocates. Given the history of South Africa, there has been remarkably little internal tension within the ICD.
In terms of qualification and ability, it can be said that the ICD has employed the best people available and prepared to work at the salary levels it was able to offer. There was a very limited pool of people available with appropriate experience, as civilian oversight of policing is comparatively a new concept in South Africa.
Since inception, the ICD has established a Head Office in Pretoria and Regional Offices in Gauteng (Johannesburg), Western Cape (Cape Town), Kwa Zulu-Natal (Durban) and, more recently, Northern Province (Pietersburg). Plans are underway to establish a presence in other provinces, particularly Eastern Cape, during the 1998 / 1999 financial year.
Since opening its doors to the public, the ICD has received 1 999 (as at the end of March1998) complaints or notifications, making it a substantial role player. This is in spite of its low-key publicity profile to date. Despite the delay in appointing investigators in some Regions, the investigation of a substantial number of those matters accepted for investigation has been completed and the matters have been referred to the relevant Attorneys-General for decision.
1.2 The vision and mission of the ICD
ICD held its second strategic planning workshop from 6-8 January 1998 and came out with the new vision and mission.
i. Vision
A transformed South African Police Service consistent with the spirit and purport of the Constitution.
ii. Mission
To promote proper Police conduct.
1.3 Impact of the ICD
As was to be expected, during its first year of operation, much of the ICD’s energies were spent in recruitment, setting up of offices, procuring equipment and in the establishment of operating procedures. This will be an ongoing process, in view of the anticipated expansion of the ICD. However, the main focus of the ICD in the forthcoming year will be on delivery.
Nevertheless, significant achievements have been gained during the year. Perhaps the most significant of these is that, for the first time in South Africa, investigators with no ties to the SAPS have investigated allegations of misconduct against its members. A police force (now referred to as a police service) which was formerly regarded by many as being a law unto itself is now being held accountable for the conduct of its members by a statutory body which is constituted and operates independently of it.
The significance of this development has been lost to some. Although there are examples internationally of independent investigators investigating police misconduct, such as the Special Investigation Unit in Ontario, in countries such as England and Wales an external body merely monitors internal police investigations of such complaints.
Given its limited resources and the wisdom gained from international experience, the ICD has sought to maximize its effectiveness by concentrating on prevention and reform rather than the exclusive pursuit of individual investigations.
An example of this was the report which the ICD produced in respect of its investigation into the alleged misconduct relating to the investigation of the so- called "Robben Island Rape". The report contained various recommendations aimed at improving the handling by police of victims of sexual violence. The recommendations were well received in many quarters and have largely been subsumed into the SAPS operating policy and implemented.
A Director in the SAPS informed the Executive Director that he believed the existence of the ICD has had an effect in deterring misconduct. It was not possible to confirm this empirically as the ICD does not have access to the SAPS statistics regarding misconduct.
The ICD is under a mandatory duty to investigate police related deaths i.e. those occurring while in police custody or as a result of police action. At an early stage, it became evident that the rate of such deaths reported to the ICD (as the SAPS are required to do by law) far exceeded that anticipated based on statistics provided by the SAPS in respect of 1995.
In light of the international condemnation of the high rate of police killings which occurred under the previous regime, the discerned trend was disturbing. In response, the ICD ensured that the statistics were exposed to the public through the media on a monthly basis and urged the National Commissioner of the SAPS and the Minister for Safety and Security to ensure that steps were implemented to prevent abuses.
Although there was a decrease in the number of deaths reported in September, October and November, the figures for the first three months of 1998 reflect an upward trend.
In order to be able to make informed recommendations aimed at addressing the causes of such deaths, the ICD invited various bodies and NGO s to assist it in a joint project. As an interim step in this process researchers from the Human Science Research Council, Centre for Study of Violence and Reconciliation and the Centre for Policy Studies, after having signed appropriate confidentiality agreements, assisted the ICD in conducting a detailed study of the deaths cases dealt with by ICD’s Gauteng office between April and December 1997.
The results of that process should reveal the problems which most urgently need to be addressed. A discussion paper will be prepared and workshopped with relevant role-players.
One observation which can be made without the benefit of research is that many of the deaths occurring in police custody might have been avoided had the SAPS followed their own existing procedures.
A reduction in police related deaths would free up ICD investigators to concentrate on other areas of concern such as the involvement of police officers in crime and corruption.
The ICD adopted a deliberate strategy of keeping a relatively low publicity profile, to avoid being inundated with complaints that it did not have the capacity to deal with. Nevertheless, it has made its existence and role known to the members of the SAPS by means of internal television broadcasts and the publication of information in SAPS and police union publications. The ICD has adopted a policy of seeking the co-operation of SAPS members in fulfilling its mandate, for the mutual benefit of both organisations. It has given out the clear message that the ICD aims to stamp out police misconduct, but not to interfere with the police in the exercise of their legitimate duties, in order to assist in restoring the SAPS to its proper place in society.
Co-operation from the SAPS has, on the whole, been far better that was expected, and than has been experienced by some overseas bodies similar to the ICD. However, there have been "pockets of resistance", where police officers have been downright obstructive.
Operationally, problems were experienced in getting the SAPS to fulfil its legal obligation to notify the ICD of the occurrence of death in police custody or as a result of police action, which the ICD is obliged to investigate. This was in spite of an instruction with accompanying notification form having been jointly devised by the legal departments of the SAPS and the ICD and signed by both Deputy National Commissioner Lavisa and the Executive Director Adv. Melville. A persistent problem is the late notification of the ICD of such deaths, making it impossible for the ICD to ensure that all evidence has been gathered and safeguarded. This could also be to the detriment of SAPS members who have acted justifiably. In one case, the safe custody of an object which was allegedly used to threaten an officer who claimed to have shot in self defence, was dealt with incorrectly.
A further problem area has been the apparent difficulty experienced by SAPS investigating officers in conducting investigations and reporting the progress therein to the ICD, as is contemplated by the ICD’s founding legislation, Chapter 10 of the South African Police Service Act (Act 68 of 1995).
In practice, the ICD has had little or no impact on the manner and duration of the investigation of those matters referred to the SAPS to be investigated under supervision. Due to its very limited budget, the ICD has had to rely far more heavily on the SAPS to undertake investigations than it would like to have done.
In respect of the majority of cases under investigation against members of the SAPS, which are not brought to the attention of the ICD, the ICD has had no impact at all. To overcome this deficiency, the mandate of the ICD should be expanded in line with leading overseas models, to include the power to review or audit the effectiveness of the police internal complaint investigation and disciplinary system as a whole. This would be in line with current thinking overseas. It must be borne in mind that the ICD can only achieve what is possible with the budget allocated to it.
A Work-study conducted by the Department of Public Service and Administration led to the allocation of 535 posts to the ICD, including 339 posts for investigators, in order for the ICD to fulfill it statutory duty. The 1998 / 99 budget will only permit the filling of 160 of these posts. To fill all the posts would cost an additional R 40 million in personnel expenditure alone.
To make matters worse, the Department of Public Works (DPW) informed the ICD in March 1998 that it had not made provision to meet ICD’s accommodation expenditure for 1998/99 financial year.
In the view of David Landa and Colleen Lewis in ‘Making the Police Accountable for their Conduct’ (1997) International Connection 5 " [Government] must give oversight bodies the powers, range of functions and resources necessary to allow them to adequately perform their task. To do otherwise is to hoodwink the public into believing that the police are being held accountable for their actions when they are not."
1.4 Structure
When the ICD opened its doors to the public on 1 April 1997, it was staffed by permanent staff as well as investigators and clerical staff seconded from the SAPS. The establishment of additional posts was delayed pending the outcome of attempts to obtain a larger budget to enable the ICD to establish a presence in all of the Provinces, as envisaged by its founding legislation. Uncertainty also existed as to whether the ICD would, on an ongoing basis, use seconded SAPS investigating officers.
Ultimately it was decided to press ahead and apply to the DPSA for the allocation of posts within the limits of the original, provisional budget. It was also decided to request that posts for investigators be created, to overcome the criticisms that the ICD was using SAPS members to investigate their colleagues and to put an end to the problems encountered in reaching agreement with the SAPS on the terms of secondment of its members.
The structure and posts approved was as follows:
1.5 Regional Offices
By 1 April 1997, Regional Directors had been appointed for three Regional Offices. Their location and jurisdiction is indicated below: -
REGION
LOCATION
ADJACENT PROVINCES
Western Cape Cape Town Eastern Cape, Northern Cape Kwazulu-Natal Durban Free State Gauteng Johannesburg Northern Province, North Western Province, Mpumalanga
The opening of a fourth Regional Office in Pietersburg was phased in during January 1998. It has taken over the responsibility of Northern Province and Mpumalanga from the Gauteng Office, which had a very heavy workload of its own to contend with.
The establishment of additional offices in the Provinces in which there currently is no ICD presence has been prioritized for the 1998 / 99 financial year. Such presence is essential to enable citizens to access the services of the ICD and in order to provide an efficient and cost effective service.
Initially, complaints were received centrally at the Pretoria Head Office and referred to the Regional Offices. However, once sufficient capacity was established in the Regional Offices, this function was delegated to them in respect of complaints emanating from the Provinces in which they are situated.
The Regional Offices suffered varying degrees of difficulty in obtaining premises, procuring equipment and recruiting staff. Another problem which arose was that due to the relatively junior ranking of the Regional Directors, they were not taken sufficiently seriously by the Heads of other Government Departments such as the SAPS and the Offices of the Attorneys General.
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