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IPID REGULATIONS

Good Hope Chamber, Ground FloorGood Hope Building, Parliament5 June 2012, 09:30 – 13:00

INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE

BRIEFING TO THE PORTFOLIO COMMITTEE ON POLICE

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INDEX

Subject IPID Regulation number Slide

Principles for the drafting of Regulations n/a 4 – 6

Process followed in development of IPID Regulations n/a 7

Reporting of matters to be investigated 2 9 – 10

Receiving, registering, processing, referral and disposing of complaints 3 11 – 12

Investigation of deaths in police custody or as a result of police action 4 13 – 14

Investigation of criminal matters 5 15 – 17

Investigation of a complaint of discharge of official firearm 6 18

Investigation of referred matters 7 19

Securing of a crime scene 8 20

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Briefing to the Portfolio Committee

on Police 5 June 2012



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INDEX

Subject IPID Regulation number Slide

Identification parades, taking of affidavits, giving of evidence, production of documents and submission of information and cooperation by police 9 21

Access and control of confidential information and records 10 22

Integrity testing and confidentiality of information relating to integrity testing 11 23 – 24

Disciplinary referrals 12 25

Disciplinary measures in relation to IPID members 13 26

Security screening investigations 14 27

Reporting 15 28

General 16 29

Closure n/a 30

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PRINCIPLES FOR THE DRAFTING OF REGULATIONS

The following principles for the drafting of regulations are based on case law and accepted practice:

• The regulations must be authorised by the enabling Act.• Regulations may not increase the ambit, scope or purpose of the enabling Act.• Generally regulations cannot give officials powers or functions not provided for in the

Act – such powers and duties should rather be specified in the Act.• Regulations must be intra vires the enabling Act.• Regulations may not be vague or uncertain and must contain adequate information as

to the duties of those who are being regulated and it must be reasonable.• Regulations may not contradict the Constitution, and must also meet the requirements

of constitutionally mandated Legislation.• Regulations must follow the language and style of the enabling Act and may not be- in conflict with the principal Act; used to remedy a defect in the Act; or used to interpret the Act.

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PRINCIPLES FOR THE DRAFTING OF REGULATIONS (cont)

• No provision of the Act, including the definitions section, can be repeated in Regulations.

• Unless the Act expressly and specifically grants the power to do so, the Regulations should not create offences or impose penalties.

• Need to interpret the enabling Act to see what powers it confers, or is deemed to confer by necessary implication. Regulations may provide for ancillary matters which are reasonably necessary to be dealt with in the exercise of the delegated power.

• Regulations cannot confer jurisdiction or impose duties on courts of law unless given such power by an Act of Parliament.

• Regulations may not amount to an unreasonable exercise of the delegated power.

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PRINCIPLES FOR THE DRAFTING OF REGULATIONS (cont)

• The Regulations may not widen the purpose of the Act, add new or different means of carrying it out or depart from or vary the plan which intended by the Act.

• A Regulation will fall within the scope of the general empowering provision if – It is required for, or contributing to, the implementation of the Act It is of an administrative or procedural nature It is a subsidiary means of implementing the provisions of the Act It is incidental to carrying out the Act’s specific provisions It does not widen the purpose of the Act It does not add new and different means to achieve the Act’s purpose It does not add to the substantive matter and scheme of the Act• An Act requiring Regulations should not be put into operation before the Regulations

have been promulgated.

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PROCESS FOLLOWED IN DEVELOPMENT OF IPID REGULATIONS

• A workshop was held on 28 July 2010 with Provincial Heads, Deputy Heads and Programme Managers to review existing Standard Operating Procedures (SOP) and analyse the proposed content of the new operating procedures to be contained in the Regulations to the new Legislation.

• A follow-up workshop was held on 25 August 2010 to debate and analyse the proposed content of the Regulations to the IPID Bill.

• Distribution of first draft of the Regulations to staff members for input: November 2010. • Three consultative workshops were thereafter held on 21 January 2011, 28 January

2011 and 01 March 2011 with relevant key stakeholders regarding the proposed content of the Regulations. The aforementioned stakeholders included ICD staff, other Government Departments and Civil Society organisations. The input and contributions received during the consultative workshops were taken into consideration and incorporated into the draft Regulations before the publication thereof. The legal and operational implications of the draft Regulations were in addition taken into consideration and amendments were effected where necessary.

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PROCESS FOLLOWED IN DEVELOPMENT OF IPID REGULATIONS

• Publication of draft Regulations for public comment in the Government Gazette No 34139 of 2011 on 23 March 2011.

• Submission of copy of Government Gazette with draft Regulations to the Portfolio Committee on Police for information purposes: 24 March 2011.

• Publication of draft Regulations on ICD’s website for public comment. Communication to staff: 25 March 2011.

• Submission of draft Regulations for scrutiny to the State Law Adviser: June 2011.• Approval of draft Regulations by State Law Adviser: September 2011. • Approval of draft Regulations by the Minister of Police: 6 December 2011.• Submission of draft Regulations to the Portfolio Committee on Police: 8 December

2011.• Publication of approved Regulations in Government Gazette: 10 February 2012.• Tabling of published Regulations in Parliament: 23 February 2012.• Publication of IPID Regulations on Department’s website: March 2012.• Date of implementation: 1 April 2012 (simultaneously with IPID Act).• Review and amendment of Standard Operating Procedures (SOP): September 2011 to

March 2012 . • Approval of final Standard Operating Procedures (SOP): 30 March 2012.

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REPORTING OF MATTERS TO BE INVESTIGATED

Section 29 of the IPID Act provides for reporting obligations and cooperation by members of SAPS and MPS.

Who should report:• Station Commander• Any member of SAPS• Any member of MPS

What should be reported: All section 28(1)(a) – (f) cases, i.e:• deaths in police custody• deaths as a result of police action• any complaint relating to the discharge of an official fire arm by any police officer• rape by a police officer, whether the police officer is on or off duty• rape of any person in police custody• any complaint of torture or assault against a police officer in the execution

of his/her duties.99

REGULATION 2



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REPORTING OF MATTERS TO BE INVESTIGATED

When: Immediately. How: telephonically. To whom: To the relevant IPID Provincial Office. (Provincial Head must

inform the Executive Director.) When: within 24 hours. How: written report, in terms of form 1. Does not preclude any member of the public to lodge a complaint with IPID. Not a requirement that members of the public report to IPID via SAPS. Members of the public can report section 28(1)(a) - (g) matters (that is, all

the above, including corruption). Use form 2. Reporting mode: in person / fax / e-mail / telephonically. Not a requirement that you have all information required in the form for the

matter to be investigated.

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REGULATION 2



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RECEIVING, REGISTERING, PROCESSING, REFERRAL AND DISPOSING OF COMPLAINTS

Who may receive? Any member of IPID or designated member.

What to do?Determine whether or not it falls within the ambit of the provisions of section

28(1)(a) – (g) of IPID Act. If the complaint falls outside section 28(1)(a) – (g): Refer it to an appropriate

institution. If the complaint falls within the above provisions: Register it on IPID database.

Within 7 days: Inform the complainant in writing about the registration and who will be

investigating the case; or Inform the complainant if the complaint has been referred to another institution.

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REGULATION 3



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RECEIVING, REGISTERING, PROCESSING, REFERRAL AND DISPOSING OF COMPLAINTS

IPID SOP (Standard Operating Procedures) makes provision for the detailed process with regard to the registration and processing of complaints.

Clause 5.8 of SOP provides for a case intake committee: to review, determine and allocate cases; and to give directives on what is to be done in respect of each case.

Clause 7.2 of SOP provides for the procedure for registration of cases.

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REGULATION 3



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INVESTIGATION OF DEATHS IN POLICE CUSTODY OR AS A RESULT OF POLICE ACTION

How? Attend the scene where the death occurred. Record details of the deceased. Identify and record details of potential witnesses. Authorize the removal of corpse. Collect exhibits and other evidentiary material. Where necessary, refer to Forensic Laboratory. Visit the deceased’s next of kin to inform them of the death. Visit and interview witnesses and obtain statements. Attend post mortem. After collecting all evidence and statements:

submit a report to the Provincial Head or Executive Director; and make a determination as to whether such member must be arrested or not. Arrest to be done in compliance with section 39 of the Criminal Procedure Act.

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REGULATION 4



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INVESTIGATION OF DEATHS IN POLICE CUSTODY OR AS A RESULT OF POLICE ACTION

When? The investigation must be finalised within 90 days, failing which the Investigator must

give reasons for such failure. Feedback to complaint / next of kin must be provided in writing once every month.

In case of late notification of a death in police custody or as result of police action: Investigator must within 30 days of designation (by Provincial Head / Executive Director) - Conduct a preliminary investigation / full investigation; Attend post mortem (if not yet been conducted); Interview witnesses; Consider desirably of reconstructing the scene of death; Take police docket over for further investigation; and Make recommendations to NPA / SAPS for disciplinary action.

Clause 7.3 of the SOP make provision for a procedure to be followed when investigating such cases. 14

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REGULATION 4



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INVESTIGATION OF CRIMINAL MATTERS

Categories of criminal matters: RAPE: Rape of person in police custody; and

Rape of person by member of SAPS or MPS whether on duty or off duty TORTURE or ASSAULT by member of SAPS or MPS in the execution of his/her

duties. CORRUPTION by a member of SAPS or MPS.

How: If a police docket has been opened: Take over the docket and conduct all outstanding

investigations. If docket has not been opened: Open docket for purposes of investigation. Interview victim and record his/her details. Identify and record particulars of witnesses. Interview witnesses and take statements. Collect exhibits and other evidence. If necessary refer exhibits to Forensic Laboratory. 15

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REGULATION 5



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In cases of rape: Ensure that the victim is examined by medical practitioner; Ensure that sexual assault crime kit is obtained, sealed and sent to Forensic

Laboratory; and Observe procedures provided for in sections 28, 31, 32, 33, 34, 36 and 37 of the

Criminal Law (Sexual Offences and Related Matters) Amendment Act (no. 32 of 2007).

In cases of corruption: Observe the provisions of section 34 of the Prevention and Combating of Corrupt

Activities Act (no. 12 of 2004); and If necessary, refer exhibits to Forensic Laboratory.

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REGULATION 5



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In cases of torture or assault: Ensure that the victim is examined by a medical practitioner; Attend and secure the scene where the alleged torture occurred; Visit all identified witnesses to obtain statements; After collecting statements and exhibits submit report to Provincial Head and the

Executive Director; and Make recommendations for disciplinary action / prosecution / both.

When? Investigation must be finalised within 90 days, failing which the Investigator must give

written reasons for such failure. Feedback to complaint / next of kin in writing once every month.

Clause 7.4 of the SOP make provision for procedures to be followed when investigating criminal matters.

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REGULATION 5



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INVESTIGATION OF DISCHARGE OF OFFICIAL FIREARM

What: A complaint of discharge of an official firearm by a member of SAPS / MPS, whether on or off

duty, whether any injury was sustained or not as a result thereof.

How: If a police docket has been opened: Take over the docket and conduct all outstanding

investigations; If docket not yet opened: Open docket and conduct investigation; Interview and take statements of witnesses; Collect relevant evidence and exhibits; Send exhibits to Forensic Laboratory / Ballistic Testing; Submit report to Provincial Head / Executive Director; and Make recommendations for disciplinary action or criminal prosecution.

When? Investigation must be finalised within 90 days, failing which the Investigator must give

written reasons for such failure. Feedback to complainant in writing once every month.

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REGULATION 6



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INVESTIGATION OF REFERRED MATTERS

Purpose: Makes it possible for IPID to investigate 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 (see section 28(1)(h) of the IPID Act).

Ensures full compliance with Section 206 of the Constitution.

What: Executive Director / Provincial Head must designate an investigator to investigate the

matter. Executive Director / Provincial Head will give directions with regard to the investigation

and the time frame within which the investigation must be finalised and the manner of disposal.

How? Investigate and make recommendations to Provincial Head / Executive Director. Provide feedback in writing once every month. 19

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REGULATION 7



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SECURING OF A CRIME SCENE

What: Procedure on securing the crime scene e.g. Cordoning of crime scene Collection of evidence and exhibits Handling of corpse and other evidentiary material Control access to crime scene

Clause 7.3 of the SOP make provision for a procedure to be followed when securing a crime scene.

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REGULATION 8



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IDENTIFICATION PARADES, TAKING OF AFFIDAVITS, GIVING OF EVIDENCE, PRODUCTION OF DOCUMENTS

AND SUBMISSION OF INFORMATION AND COOPERATION BY POLICE

How: Must be done in accordance with the relevant procedures applicable to members of

SAPS. SAPS/MPS members are obliged to cooperate with IPID, as provided in section 29(2)

of the IPID Act. A member of IPID may require written reasons for failure by a member of SAPS/MPS

to cooperate with the IPID and may make recommendations to the Executive Director or Provincial Head regarding disciplinary measures to be taken against such member.

When: Co-operation within 48 hours of request.

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ACCESS AND CONTROL OF CONFIDENTIAL INFORMATION AND RECORDS

What: Secure all information, documentation and records pertaining to an investigation;

and Prevent access to such information by an unauthorised person.

A member of IPID who divulges information in contravention of this regulation is guilty of misconduct and a criminal offence.

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INTEGRITY TESTING AND CONFIDENTIALITY OF INFORMATION RELATING TO INTEGRITY

TESTING

Who may conduct or authorise an integrity testing procedure: Executive Director / an authorised member of IPID / any other authorised person.

Integrity testing may involve: Entrapment; Testing for the abuse of alcohol or drugs; or The use of a polygraph or any similar instrument.

Approval / Authorisation Entrapment can only be performed after approval by the DPP and in accordance with the

Criminal Procedure Act and NDPP instructions or guidelines. Testing for the abuse of alcohol or drugs / the use of a polygraph or any similar

instrument can only be performed with written approval by the Executive Director.

A member of IPID must submit to integrity testing. Integrity measures must be applied with due regard to decency and the right of a member to

dignity and privacy. Information obtained through this process may not be disclosed, except in circumstances

provided for in sub-regulation 13.2323

REGULATION 11



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INTEGRITY TESTING AND CONFIDENTIALITY OF INFORMATION RELATING TO INTEGRITY

TESTING

Consequences of integrity testing Entrapment:If the results impact negatively on the integrity of member, the Executive Director may

- require such member to undergo counselling, rehabilitation or retraining; require such member to subject himself or herself to a security screening i.t.o section 2 of

the National Strategic Intelligence Act (no. 39 of 1994); or Take disciplinary or other action against such member. Testing for alcohol / drugs:If finding that a member has evidence of alcohol or drugs in breath / blood / urine, the

Executive Director may – suspend such member; require such member to undergo counselling or rehabilitation; send member for medical examination and report on the member’s fitness to proceed with

his duties; re-assign duties; or take disciplinary action where appropriate.

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DISCIPLINARY REFERRALS

By whom? Executive Director / Provincial Head

Refer to National - or relevant Provincial Commissioner.

How? Form 3

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DISCIPLINARY MEASURES IN RELATION TO IPID MEMBERS

When? In cases of alleged misconduct or failure to comply with a lawful command,

order or instruction.

How? Disciplinary proceedings in line with the Public Service Disciplinary Code.

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REGULATION 13



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SECURITY SCREENING INVESTIGATIONS

How? Must be done in accordance with section 2A of the National Strategic

Intelligence Act (no. 39 of 1994).

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REPORTING

What / to whom Annual report: to the Minister and Parliament; and At any time when requested to do so by the Minister and Parliament, report

on the activities of the directorate.

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GENERAL

Regulations may be supplemented by: Executive Director guidelines; and Protocol on cooperation entered into by and between IPID, SAPS and MPS.

Standard Operating Procedures (SOP) Clause 8 of the SOP provide that the SOP must be read in conjunction with

the Regulations and the IPID Act.

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REGULATION 16

closure

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