Briefing to the Standing Committee on Community Safety

Briefing to the Standing Committee on Community Safety on the Role of the Western Cape Police Ombudsman Adv Y Pillay 29 July 2021

Introduction Purpose: To brief the Standing Committee on Community Safety, Cultural Affairs and Sport on the role of the Western Cape Police Ombudsman In doing so, the legal and policy frameworks which makes provision for the appointment of a Police Ombudsman and the function which he/she must act upon, will be presented 2

Western Cape Police Ombudsman The Western Cape Police Ombudsman (WCPO) seeks to enhance the effectiveness and efficiency of police services and to improve relations between the police and communities by investigating complaints of police inefficiency and/or a breakdown of relations between the police and any community. The establishment of the Office of the WCPO and appointment of an Ombudsman is based on various legal and policy frameworks (and gaps within these frameworks) aimed at ensuring the effective and efficient oversight of policing in provinces. 3

Appointment of the Police Ombudsman Western Cape Community Safety Act, 2013 § Section 11 (1) The Premier must appoint a suitably qualified person, with experience in the field of law or policing, as the Western Cape Provincial Police Ombudsman (2) The Ombudsman is appointed by the Premier (a) after consultation with the Provincial Minister, the Provincial Commissioner and the executive heads of municipal police services; and (b) subject to approval by the Provincial Parliament’s Standing Committee responsible for Community Safety by a resolution adopted in accordance with its rules. 4

Constitution of the Republic of South Africa § Section 206 (3) Each province is entitled (a) to monitor police conduct; (b) to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service; (c) to promote good relations between the police and the community; (d) to assess the effectiveness of visible policing; and (e) to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province § Section 206 (5) In order to perform the functions, set out in subsection (3), a province (a) may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and the community; and (b) Must make recommendations to the Cabinet member responsible for policing 5

Independent Police Investigative Directorate Act (1 of 2011) 28. (1) The Directorate must investigate – a) Any deaths in police custody b) Deaths as a result of police actions c) Any complaint relating to the discharge of an official firearm by any police officer d) Rape by a police officer, whether the police is on or off duty e) Rape of any person while that person is in police custody f) Any complaint of torture or assault against a police officer in the execution of his/her duties g) Corruption matters within the police initiated by the Executive Director on his or her own, or after the receipt of a complaint from a member of the public, or referred to the Directorate by the Minister, an MEC or the Secretary, as the case may be; and h) Any other matter referred to it as a result of a decision by the Executive Director, or if so requested by the Minister, an MEC or the Secretary as the case may be, in the prescribed manner 28. (2) The Directorate may investigate matters relating to systemic corruption involving the police 6

Civilian Secretariat for Police Services Act (2 of 2011) § Section 6 Functions of Civilian Secretariat (j) Assess and monitor the police service’s ability to receive and deal with complaints against its members § Section 17 Functions of Provincial Secretariats (a) Provides no legal framework for dealing with complaints from communities 7

Constitutional Court Judgment {Case CCT 13/13 [2013] ZACC 33} § Interpretation of entitlement in terms of S 206 “A premier and the province bear the duty to respect, protect and promote the fundamental rights of people within the province. In this case, the Premier is obliged to take reasonable steps to shield the residents of Khayelitsha from an unrelenting invasion of their fundamental rights because of continued police inefficiency in combating crime and the breakdown of relations between the police and the community. ” § Provincial responsibility versus Civilian Secretariat “Nothing in the scheme of Chapter 11 suggests that the oversight and monitoring role of the province as envisaged in section 206(3) and (5) should be curtailed or supplanted by the role of a civilian secretariat under section 208 of the Constitution. Sections 206 and 208 serve different purposes which may not be unduly conflated. ” 8

Western Cape Community Safety Act (2013) Western Cape Community Safety Act (WCCSA) (3 of 2013) § Sections 10 to 18 of the WCCSA provides for the establishment of the Western Cape Provincial Police Ombudsman (WCPO) § Section 14 requires the Ombudsman and staff to serve independently and impartially and must perform their functions in good faith and without fear, favour, bias or prejudice. § Section 15 Function of the Ombudsman (a) To receive and may investigate complaints submitted in terms of section 16, regarding inefficiency of the police or a breakdown in relations between the police and any community; and (b) To perform the other functions assigned to him or her under the WCCSA 9

Western Cape Community Safety Act (2013) Western Cape Community Safety Act (3 of 2013) § Section 16 Submitting Complaints to the Ombudsman for Investigation (1) Any person may submit a complaint in the prescribed manner and form to the Ombudsman regarding alleged police inefficiency or a breakdown in relations between the police and any community. (2) Any member of the Provincial Parliament may, on becoming aware of a complaint regarding alleged police inefficiency or a breakdown in relations between the police and any community, submit it to the Ombudsman for investigation. (3) The Ombudsman must issue guidelines that are publicly accessible in respect of the procedures to submit a complaint and the type of complaints that may be submitted to the Ombudsman. 10

Western Cape Community Safety Act (2013) Western Cape Community Safety Act (3 of 2013) § Section 17 Investigations by Ombudsman (2) If a member of the Provincial Parliament refers a matter to the Ombudsman, he or she must conduct an investigation into that matter. (4) If the Ombudsman is of the opinion that a complaint may more appropriately be dealt with by another competent authority, he or she may at any time refer a complaint or aspect thereof to that other authority. (7) If the Ombudsman decides not to initiate an investigation, the Ombudsman must inform the complainant of his or her decision and the reasons therefor. (8) Upon completion of an investigation and if the matter could not be resolved, the Ombudsman must submit a recommendation on the investigation and his or her findings to the Provincial Minister and inform the complainant that he or she has done so. (9) The Provincial Minister must make a recommendation to the Minister on any investigated complaint that could not be resolved by the Ombudsman, and must inform the complainant of the recommendation made. (10) In order to avoid unnecessary duplication, the Ombudsman must coordinate his or her functions and activities in terms of this Act with other authorities that have jurisdiction in respect of the investigation of complaints against the police 11

Western Cape Community Safety Act (2013) Western Cape Community Safety Act (3 of 2013) § Section 18 Investigating powers and officers (1) For the purposes of an investigation, the Ombudsman may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in that person’s possession or under his or her control which has a bearing on the matter being investigated, and may question that person thereon. (2) The Ombudsman may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on the matter being investigated or to be investigated. (3) The Ombudsman may designate staff members of the Ombudsman or other suitable persons as investigating officers to perform the functions referred to in subsections (1) and (2). 12

Thank you