Annual Report 1998 of the ICD

CHAPTER THREE - INVESTIGATIONS

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3.1 Introduction

1. Since the ICD became operational on 1 April 1997, a number of cases have been investigated both at National and Provincial level. Approximately one third of the complaints received in respect of all classes have been investigated by the ICD and the remaining two thirds were referred to the SAPS for investigation subject to monitoring and / or supervision by the ICD.

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3.2 Investigative Capacity

1. Building the investigative capacity of the ICD has been a difficult exercise from the outset. On the one hand there is a strong argument that the recruiting of members of the SAPS could create a negative perception in the minds of the public regarding the credibility, impartiality and independence of the ICD.

2. Faced with difficult choices the ICD, in an attempt to strike a balance decided to recruit its investigators from the following sectors:

• Former SAPS members who were employed in the private sector:

• Experienced SAPS members who were already involved in units and assignments relating to the investigation of their colleagues and:

• Civilians with some investigative experience.

3. Whilst the ICD recognized the importance of having civilian investigators, it was felt that in the short term, it was better to have a core of experienced investigators who would immediately be able to attend to and investigate complaints from the public rather than having a core of civilian but inexperienced and untrained investigators.

4. During the period under review, the ICD was fortunate to obtain the services of a number of experienced SAPS investigators who were seconded to the ICD from the SAPS. The majority of these investigators were seconded from units already involved in the investigation of their colleagues, such as the Internal Investigation Unit (IIU), the Complaints Investigation Unit (CIU) and the Investigative Task Unit (ITU). The latter was a special unit established to investigate allegations of Third Force and Hit Squad Activities in Natal. As posts became available during the year, many of these seconded personnel applied for and were appointed to such posts within the ICD. As at 31 March 1998, only two seconded members remained with the ICD.

5. The ICD distinguishes between two categories of investigators. The first category most of whom have legal training and backgrounds, assist and give direction in terms of gathering evidence, conduct of investigations and the making of appropriate recommendations to the other category, which in turn specializes in securing and protecting crime scenes, obtaining and preserving evidence and the general aspects of investigations. The categories are referred to as supervisory and field investigators respectively.

6. The extent of the alleged involvement of members of the SAPS in criminal activities and /or misconduct renders the ICD’s current investigative capacity insufficient. Apart from the fact that the ICD is obliged to investigate all cases of deaths in police custody or as a result of police action, there has been an increase in other categories of complaints such as corruption, escape from police cells etc.

7. At the end of the year under review the investigative capacity of the ICD comprised of 25 field investigators. Additional investigators will have to be recruited in the 1998/99 financial year.

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3.3 Completed Investigations

1. A selection of some of the more interesting and successful cases investigated by the ICD be will dealt with in chapter 4 of this report.

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3.4 Investigative Training

1. The Justice Department of the United States, under the auspices of the International Criminal Investigative Training Assistance Program (ICITAP) provided three-months of training for the ICD investigative personnel. The following people lectured for two weeks in February and in March and in between the training sessions each of them was deployed at an ICD office to offer technical advise and attend scenes of crime with investigators. Their names are; Mr. Eugene Rifenburg, Mr. Miles Alban, Mr. Richard Sawain, Ms. Carmen Cristia and Mr. Paul Carroll. This team of trainers was led by Mr. Mike Demott.

2. The training programme was broken into two-week sessions. The first was held from 2^nd February 1998 to 11^th February 1998. The second was held from 16^th March 1998 to 27^th March 1998. Both were held at Alpha Training Centre, Broederstroom. For the one month period between the two sessions and for a period of one month after the second session, the ICITAP delegates were seconded to one or more of the ICD’s Regional Offices and Head Office to act as monitors, observers and technical advisors and to ensure that what was taught at the training was put into practice by the ICD personnel. Their assistance and input has been invaluable.

3. The course content included inter-alia:

• Standard operating procedures;
• Legal training;
• Basic investigations and;
• Basic murder investigations.

4. The training was well received by the ICD personnel and the results are already being noticed in that the skills and knowledge imparted are being applied on a daily basis by the ICD investigators.

5. Those who successfully completed the course received a certificate at a ceremony which was attended by, inter-alia; the Minister for Safety and Security, his Deputy and representatives from ICITAP and the United States Embassy.

6. Further training programmes are planned for the 1998/99 financial year.

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3.5 Problems experience by the Investigative Component

1. The component experienced many problems and difficulties, of these the following ought to be mentioned:

• Lack of investigative capacity
• Lack of legislative powers
• Late notifications
• Resources and equipment
• Financial constrains

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3.6 Investigative Equipment

1. The component procured the following equipment:

• Surgical gloves
• Motor vehicles
• Surgical gowns
• Cell phones
• Crime scene jackets
• Identification car magnetic stickers
• Video camera

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CHAPTER FOUR - SOME OF THE CASES INVESTIGATED

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4.1 Some of the important cases investigasted by ICD are:-

1. WESTERN CAPE CASE NO: CCN 10

• A Senior Superintendent in charge of a police station was over a period of time allegedly sexually harassing female members of colour under his command. One female member tried unsuccessfully to lay departmental charges against him in 1992. This particular officer thereafter found herself being victimized. Subsequent to this event, the other survivors fearing victimization silently endured the harassment and it was only when the ICD was established that the complainant, trusting in an independent oversight structure with investigative capacity, confidently came forward and registered a complaint with us. Upon consultation with her and other members, the other survivors and witnesses soon came forward taking the ICD into their confidence. We investigated this complaint and upon finalization thereof, initially made a recommendation for departmental charges and criminal charges of indecent assault to be preferred against the Senior Superintendent.

• It was then reported to us that the Senior Superintendent was allegedly interfering with potential witnesses. Upon investigation we recommended that a further charge of defeating the ends of justice be brought against him.

• The Senior Superintendent was temporarily relocated, found guilty and fined in terms of the Internal Disciplinary Regulations.

• The Attorney-General decided to prosecute him on charges of:

1. Indecent assault; and
2. Defeating the ends of justice.

 

2. KWA-ZULU NATAL

• On 03 April 1997 a complainant was received from Mr. Philip Mhlongo of the ANC Stanger Constituency Office complaining of torture by members of S.A.P.S Stanger. The deceased and the two survivors were each carrying 5 liters of hot Gavine (homebrewed intoxicating beverage). The members forced them to drink the Gavine. The deceased passed out and was taken to Stanger Hospital where he died.

• An Independent Pathologist was summoned to conduct the post-mortem at Stanger mortuary with the assistance of the State Pathologist.

• The SAPS members were traced and warning statements were taken from them.

• On completion the case was submitted to the Attorney-General for perusal and decision. The Attorney-General instructed that the 4 members be prosecuted on a charge of murder in the Stanger Regional Court. The four- (4) members were charged and appeared in court on 18 November 1997 and remanded for trial until 6/7 April 1998.

3. GAUTENG

• On the 27th May 1997, seven prisoners, three of which are alleged to have murdered PRO KHUMALO escaped for Protea Police Cells. The escape was carried out following a visit to the Protea Police Cells by five persons, three males and two women who allegedly pretended to be officials from the Gauteng Provincial Government.

• It was alleged that one of the prisoners overpowered the Police Officer and pointed a firearm at him. The cell key was taken from him and a total of seven prisoners escaped.

• This incident prompted the ICD to undertake an investigation with a view to establish whether police were guilty of any misconduct whatsoever. The following reasons also led to the ICD to investigate the matter:

• On the 27th May 1997 twelve policemen were on duty, however it transpired that during the escape not all officers were present.

• There were four instead of seven police officers in the charge office during the escape. Three police officers were posted to the Southgate which is the access point to the premises but none of the three policemen were at the said gate during the escape.

• Upon finalizing the investigation, the ICD among other things, recommended that disciplinary steps be instituted against all members who were on duty.

• The South African Police Services indeed instituted disciplinary steps and outcome thereof are as follows:

1. Two members, Constable M. H. Mahabalala and Constable Z.P Nxumalo were found guilty of misconduct in terms of Regulation 18 (21) and both were given a warning.
2. Constable Motholo was also found guilty of misconduct in terms of Regulation 18 (21) and fined R150-00.
3. One policeman was found not guilty while the case against the other on was withdrawn.

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CHAPTER 5 - LEGAL SERVICES

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5.1 Introduction

1. During the year under review the DPSA approved the upgrading of the existing sub directorate Legal Services to that of a full Directorate with effect from 1 April 1998.

5.2 Main Activities

1. Legal services were provided to all components within the ICD. In this regard legal opinions were furnished on the following topics:

• The legal position in regard to the possession of fire arms.
• The statutory offence of contravention of section 50(3)(b) of the South African Police Services Act, Act No 68 of 1995 (interfering with the performance of its functions by ICD staff members).
• The delegation of powers within the meaning of Section 10 of the SAPS Act.

2. Apart from the above, legal advice was, on request, offered informally and orally, on a regular basis to colleagues in regard to legal principles applicable and consequential to various ICD activities. New developments in the law, relevant to the functioning of the ICD, have also been circulated, nationally, to members of the ICD.

3. Legal research was conducted in order to keep abreast with relevant developments pertaining to ICD functions. Although this activity proved to be an ongoing one, which will never reach a stage of finality, it became clear that certain existing statutory shortcomings are seriously and detrimentally affecting some of the major functions of the ICD. (some of these have already been dealt with in paragraph 3.5.1.5 of chapter 3).

4. Legal Services also :

• Negotiated on, assisted in applying for, and obtained the authorization by the Minister for the exercise of policing powers by certain identified members of the personnel of the ICD.
• Compiled and processed the publication of the ICD’s first Regulation, Regulation R912, in Regulation Gazette 5958 (Government Gazette 18099) dated 4 July 1998, which facilitated the Minister’s authorization of the said policing powers.
• Liaised with and instructed the National Intelligence Agency, (NIA) to conduct the personnel security clearance (vetting) of the ICD’s personnel. As part of this a highly successful meeting was arranged during which NIA’s Security Advisors explained to and informed the ICD’s personnel about the need for, value of, as well as the procedure and purpose of vetting of personnel.
• Advised, partook and assisted the Executive Director and Senior Management in regard to the making and formulation of certain decisions which involved the establishment of certain policies such as the delegation of functions, disciplinary procedures, etc.

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5.3 Other Activities

1. Other activities included the following:

• Negotiated with the Department of Public Works (DPW) with the view to acquiring new and permanent office accommodation for the Head Office in Pretoria.
• Served as a member by invitation of the Minister for Safety and Security on a sub-committee which dealt with the theme principle of policing. A submission was drafted and was later included in the final draft of the White Paper on Safety and Security.
• Identified certain shortcomings in Chapter 10 of the SAPS Act in respect of the statutory powers of the ICD, assisted and advised the Executive Director in approaching the Minister regarding proposed amendments to be made to the SAPS Act in order to rectify the identified shortcomings.
• Served as a member, by invitation of the Minister, on a committee tasked with the drafting of the new SAPS Bill, which was to include amendments proposed by the ICD. In this regard the ICD has begun the process of persuading this committee to recommend to the Minister that the existing statutory provisions setting out the establishment, powers and functions of the ICD, as presently contained in Chapter 10 of the SAPS Act, be removed from the said Act and be contained in a new separate Bill for the ICD.
• Lectured ICD personnel on aspects of South African Criminal Law and Criminal Procedure relevant to the investigation of misconduct or offences allegedly committed by SAPS members. In doing so, it became clear that there exists an urgent need for further training of investigators in this regard. Follow-up training are planned for the 1998/99 financial year.
• Established and maintained ICD library and kept existing publications updated. Publications received have been indexed and members of staff of the ICD are making full use of the library.
• Assisted, in reviewing and updating existing Standard Operating Procedures of the ICD as well as developing new ones.

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5.4 Establishment of Working Relationship with other bodies

1. The sub-directorate was instrumental in establishing working relations with:

• The various legal advisory services of the SAPS and its disciplinary division.
• The Secretariat for Safety and Security;
• The Office of the Attorney General in Pretoria;
• The Department of Criminal Law and Procedure of the Faculty of Law at the University of South Africa.
• The Directorate : Labour Relations of the DPSA;
• The DPSA
• The NIA.

2. The sub directorate also presented a paper at a one-day conference between the ICD and the Provincial Heads of Detective Services of the SAPS in which the establishment, functions and powers of the ICD were explained and summarized

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5.5 Problems Experienced

1. The major problem experienced was that of under-staffing. This has led, more frequently than not, to situations of crisis management due to the heavy workload performed by a single person. However, this problem will be alleviated in the forthcoming year with the appointment of additional staff to the newly established Directorate : Legal Services.

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5.6 Goals for the forthcoming year

1. To move towards giving effect to proposed amendments to the SAPS Act,

2. To develop, in collaboration with the Director : Human Resources Management a Workplace Forum for handling of personnel grievances.

3. To assist in the development of a Standard Operating Procedure dealing with the policy on the issuing, use and control of fire arms within the ICD.

4. To develop and finalize a security policy for the ICD.

5. To liaise with NIA for purposes of vetting newly appointed personnel members.

6. To render legal services and advice to the ICD and its members.

7. To finalize the acquisition of new office accommodation for the ICD Head Office.

8. To improve and extend the ICD library.