The Bill is the Committee’s attempt to comply with the Order of the Constitutional Court in the matter of McBride v Minister of Police and Another. The Court declared certain sections of the IPID Act, the Public Service Act and the IPID Regulations to be invalid and set aside the suspension and disciplinary action against IPID Executive Director, Mr. Robert McBride.
The Court further instructed that Parliament ‘cure the defects in the legislation’ within 24 months, the deadline being 6 September 2018.
The HSF’s primary concerns are threefold:
- The HSF was party to key stakeholder engagement workshops with the aim of giving full effect to what the Court envisaged in its Order. Notably, the Court opined “What then does the independence of IPID mean? Does it mean complete or sufficient independence? Admittedly, it is difficult to attempt to define the precise contours of a concept as elastic as this. It requires a careful examination of a wide range of facts to determine this question. Amongst these are the method of appointment, the method of reporting, disciplinary proceedings and method of removal of the Executive Director from office, and security of tenure [our emphasis].”
The HSF was encouraged by these engagements and, in particular, by the creation of a Draft Amendment Bill produced by IPID and the Civilian Secretariat for Police. This Draft Bill considered revision of the IPID Act as a whole in order to fully comply with imbuing the institution with the requisite degree of independence. Unfortunately, the Draft Bill has not informed the current Amendment Bill which is a creation of the Portfolio Committee on Police. - HSF is alive to the time constraints faced by the Committee so that it does not place itself in contempt of the Court Order. Our submission offered a two-stage process as a remedy. Firstly, the HSF supports the enactment of the Bill (having incorporated our substantive suggestions) by the deadline of 6 September 2018. Secondly, we advised that this should not be the final step in reviewing the IPID Act, and urged the Committee to continue its work of amending the IPID Act, beyond the passing of this Bill into law. There is room to improve the IPID Act beyond a mere technical incorporation of the SAPS Act, which effectively forms the entirety of this current Bill.
- Should the Committee decide against a broader consideration of the Bill, we cautioned that the Committee opens up the proposed amendments to judicial review. The inclusion of appointment criteria and the procedural requirements of removal of the Executive Director are necessary additions to the IPID Act in order to ensure that IPID is imbued with a sufficient degree of operational and structural independence, as envisaged by the Constitutional Court.
On 4 July 2018, the Committee adopted the Bill without making any changes or taking into account any suggestions proposed by the submissions received by the Committee. The majority of the submissions presented to Committee were concerned by the narrow interpretation of the Order and recommended that the Committee adopt a broader approach in amending the IPID Act.
The HSF is concerned at what it perceives to be a deficient public consultation process in that the call for public comment and the adoption of the Amendment Bill occurred within 1 month. This despite the 24 month timeframe allocated by the Court.
The HSF will continue to monitor this Bill as it goes before the NCOP.
Download the HSF’s Written Submission here
Listen to the HSF’s oral submissions here
Download the adopted Amendment Bill here
For Media Enquiries
Kimera Chetty
kimera@hsf.org.za
Mira Menell Briel
mira@hsf.org.za
Francis Antonie
francis@hsf.org.za
