| Report in
terms of section 53(2)(c) of the South African Police Service Act no 68 of 1995
REPORT NO 1
INVESTIGATION OF ALLEGATIONS OF IMPROPER
CONDUCT ON THE PART OF SAPS MEMBERS INVOLVED IN THE INVESTIGATION OF THE RAPE OF NOMBONISO
GASA ON ROBBEN ISLAND ON 20 JANUARY 1997
INDEPENDENT COMPLAINTS DIRECTORATE
REPUBLIC OF SOUTH AFRICA
Index
INFORMATION ON THE
OFFICE OF THE INDEPENDENT COMPLAINTS DIRECTORATE
Definition
The Independent Complaints Directorate
("ICD") is a statutory body having its enabling and founding provisions
contained in Section 50(1)(a) of the South African Police Service Act No 68 of 1995.
In terms of the aforesaid provisions the principal function
of the ICD shall be the achievement of the object contemplated in Section 222 of the
Interim Constitution (Act 200 of 1995).
Section 222 of Act 200 of 1995 states as follows:
"There shall be established and regulated by an Act of
Parliament an independent mechanism under civilian control, with the object of ensuring
that complaints in respect of offences and misconduct allegedly committed by members of
the South African Police Services are investigated in an effective and efficient
manner."
Section 50 of Act 68 of 1995 further provides that the ICD
shall function independently from the South African Police Services ("SAPS") and
that no organ of state and no member or employee of an organ of state nor any other person
shall interfere with any member of the personnel of the ICD in the exercise and
performance of his or her functions (Section 50(2) and (3)(a)).
The ICD is headed by the Executive Director who is a
suitably qualified person nominated by the Minister for Safety and Security and appointed
in accordance with a procedure to be determined by the Minister in consultation with the
Parliamentary Committees (Section 51(1)).
Jurisdiction
Section 53(2) provides that in order to achieve its
object, the ICD:-
- "may mero motu or upon receipt
of a complaint, investigate any misconduct or offence allegedly committed by any member of
the SAPS, and may, where appropriate refer such investigation to the Commissioner
concerned;
- shall mero motu or upon receipt of a
complaint, investigate any death in police custody or as a result of police action; and
- may investigate any matter referred to the
Directorate by the Minister or a member of the Executive Council."
Nature of Complaints
Any person or institution may lodge a complaint with
the Directorate. The ICD also has the power to initiate its own investigations mero
motu.
In terms of Section 53(2)(b), the ICD is obliged to
investigate:
a. the death of any person whilst in police custody;
b. the death of any person as a result of police action.
In terms of Section 53(2)(a) and (c), the ICD may
investigate:
a. any misconduct allegedly committed by any member
of the SAPS;
b. any offence allegedly committed by any member of
the SAPS;
c. any matter referred to it by the Minister or a
member of the Executive Council.
Powers and Functions
Upon the request of and in consultation with the
Executive Director, the Minister may authorise identified personnel of the Directorate to
exercise those powers and perform those duties conferred on or assigned to any member of
the SAPS in terms of Act No. 68 of 1995 or any other law. In such an event, such personnel
of the ICD shall have the same immunities and privileges as may be conferred on a member
of the SAPS in order to ensure the independent and effective exercise and performance of
their powers and duties.
The Executive Director is competent to:
- at any time withdraw any investigation
referred to a Commissioner in terms of section 53(2)(a);
- request and obtain information from any
Commissioner or police official as may be necessary for conducting any investigation;
- monitor the progress of, set guidelines
regarding and request and obtain any information regarding an investigation referred to a
Commissioner in terms of section 53(2)(a);
- request and obtain the co-operation of any
member as may be necessary to achieve the object of the Directorate;
- commence an investigation on any matter
notwithstanding the fact that an investigation regarding the same matter has been referred
under Section 53(2)(a) is pending or has been closed by the SAPS, or the docket regarding
the matter has been submitted to the Attorney-General for decision: Provided that in the
case of a:-
- referred or pending investigation, the ICD
shall act after consultation with the member heading the investigation; or
- docket regarding a matter having been
submitted to the Attorney-General for decision, the ICD shall act in consultation with the Attorney-General
- request and obtain information from the
Attorney-General’s office in so far as it may be necessary for the ICD to conduct an
investigation: Provided that the Attorney-General may on reasonable grounds refuse to
accede to such request;
- submit the results of an investigation to
the Attorney-General for his or her decision;
- in consultation with the Minister and with
the concurrence of the Minister of Finance, obtain the necessary resources and logistical
support or engage the services of experts, or other suitable persons, to enable the ICD to
achieve its object;
- make recommendations to the Commissioner
concerned;
- make any recommendation to the Minister or a
member of the Executive Council which he or she deems necessary regarding any matter
investigated by the ICD or relating to the performance of the ICD’s functions:
Provided that in the event of a recommendation made to a member of the Executive Council,
a copy thereof shall be forwarded to the Minister; and
- subject to the Exchequer Act No. 66 of 1975,
delegate any of his or her powers to any member of the personnel of the ICD;
- issue instructions, in consultation with the
Minister, to the ICD, regarding:-
- the lodging, receiving and processing of
complaints;
- recording and safe-guarding of information
and evidence;
- disclosure of information;
- the making of findings and recommendations;
and
- all matters incidental to the above.
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