5.8 IPID Organisational Strategies to Ensure Police Accountability
5.8.3 Recommendations for disciplinary measures
The main aim of the establishment of the oversight body was to ensure police accountability.
Ward (2000:15) states that the police are accountable for how they attempt to protect the public, for how they respond to reports of crime, and the results they achieve in terms of public safety.
The IPID investigating officers investigate cases of torture and assault that took place when a police officer should have been attempted to protect the public and respond to crime reports in an attempt to ensure public safety. Loader and Walker (2001) indicate that effective police accountability measures are pivotal in achieving the police goals of lawfulness and legitimacy.
To ensure that the police are accountable, the majority of the participants highlighted that they had an obligation to write recommendations to the SAPS and the NPA for disciplinary and for
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criminal prosecutions respectively. However, the IPID has no power to enforce the recommendations made either to the SAPS or the NPA. There is a provision in the Act that stipulates how the recommendations are to be addressed. Act No.1 of 2011 section 30 (a) to (c) (RSA, 2011) indicates that the National Commissioner or the appropriate Provincial Commissioner to whom recommendations regarding disciplinary matters were referred is obligated to initiate disciplinary proceedings in terms of the recommendations within 30 days.
A written report must be submitted to the Minister of the outcome thereof and a copy must be submitted to the Executive Director and the Secretary. In support of this Act, 90% of the participants indicated that it proved to be an effective strategy. With supporting information for their effectiveness, the participants shared their experiences.
P-Inv-46 said:
“…we do departmental steps recommendations, and we submit those recommendations to SAPS stating that you (SAPS) must start with appropriate disciplinary steps immediately against police member so and so... I would say its effective, especially recommendations to SAPS because at SAPS if a member has a case against him, if that case falls under the SAPS regulation, they are obliged to immediately start with the disciplinary hearing against a certain member. So, with regards to recommendations to SAPS and the NPA, it is unlikely that a member will get away with both the criminal case and disciplinary case. They can get away with the criminal case, but they won’t get away with the disciplinary case. It’s always a vice versa.”
P-Inv-47 mentioned the following:
“You know, after the investigating officer has collected all the evidence, then he or she forwards the docket to SPP or DPP, and DPP looks at the evidence and comes up with a decision on whether to prosecute or not and within the time as I was conducting the investigation, I also recommended to SAPS for departmental [discipline]. Sometimes they win the case because of insufficient evidence from my side and sometimes they don’t win the case. They call me and ask me for the copies of the very same docket, the IO (investigating officer) who is dealing with departmental [cases] to continue with his own investigation with regards to the case.”
P-Inv-54 agreed, and further stated:
“We are obliged to write recommendations, whether positive or negative recommendations to SAPS. We will get a subpoena and go and testify at an SAPS departmental trial. So yes, they will be found guilty at times, and at times they will be suspended maybe for a month or so as punishment.”
P-Inv-50 provided detailed information on the importance of the disciplinary and criminal recommendations, emphasising the value of the recommendations:
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“I can investigate but if I did not make recommendations then how will NPA know that there is this case and how will the department know that there is this case? I make recommendations based on what I see on the case, and the person who will be making the decision uses the recommendations as guidelines. They are a reflection of how I as an investigator viewed this case. He may view it differently, so he will provide reasons as to why he will not prosecute this case, even though I stated that the perpetrator must be prosecuted. If I also don’t agree with his reasons as to why he won’t prosecute, I take the case for a second opinion.”
Similarly, P-Inv-49 stated:
“Remember, we do that process after we have finalised our investigation and that’s where you give the prosecutor or the employer, SAPS, a full picture based on what evidence you have gathered, what are you recommending, and if he or she must be charged or not.”
One may look at the recommendations as a strategy that focuses on ensuring that the police are held accountable. However, the participants highlighted that the recommendations are a guideline and an indication that there is a case that was reported and that an investigation has been conducted. This therefore means that the effectiveness of the recommendations relies on one’s understanding of the role of the recommendations.
However, regardless of the requirement for recommendations by IPID investigators and the fact that they do so with integrity, the many cases that were declined – and will evidently continue to be declined − suggests that the NPA is very cautious and selective in deciding which cases to prosecute. This may suggest that, because of a lack of sufficient evidence or the many complainants who withdraw their case, SAPS rogue officers will continue their nefarious practices with impunity. This does not augur well for a democratic and community oriented police structure in South Africa.
Prenzler and Ronken (2001) raise an important point, which is that an oversight body has the ability to penetrate police institutions and ensure the eradication of police brutality in the form of, for example, torture and assault. However, these authors argue that, “given the strength of the police culture and police knowledge of how to evade prosecution”, the effectiveness of the strategy of recommendations seems to be undermined, as was evidenced by the participants’
comments. This view was strengthened by the comments of P-Inv-53 and P-Inv-55, particularly with regards to the functions of the NPA:
“The NPA recommendations I see as paper work for us because all we do is summarise the allegations and then put it in to what evidence is in the docket and then we say make a decision. It’s not saying prosecute this person or not to prosecute this person, we
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don’t tell the prosecutor what to do. In fact, the prosecutor’s job is to read the docket and to make a decision. Why then should we make a recommendation to the NPA, because we are not recommending anything, but we are saying make a decision.” (P- Inv-53).
P-Inv-55 mentioned the following:
“The only problem we have with the NPA is the queries they put forward to us after we have sent them the report. Some of their queries I would say it’s…huh what’s the word, I would say it’s just ridiculous queries.”
P-Inv-53 provided a detailed illustration in respect of the ineffectiveness of recommendations that are issued to the SAPS:
“It is not working, and I will tell you why. SAPS once they know that there is a criminal case against one of their members, they start with the disciplinary hearing. They start with whatever their disciplinary procedure is. So they start with the investigations, they might take just the A1 statement, that is the statement of the complainant and based on that they start working on it separate from us. And then they decide that they are going take action against this member, maybe give him a warning. But during that time we are doing our criminal investigations because we only do our recommendations at the end of our investigations. So, we are busy doing a criminal investigation, and in the meantime they are doing disciplinary investigations. They call it a disciplinary enquiry.
They can find their member guilty or not guilty before we could even finalize our investigation. So sometimes, by the time our report gets to them, they’ve already made a decision or already taken action or decided not to take action against their member.
So, our disciplinary recommendation is basically ineffective because it’s not doing anything. We tell them, they failed to comply with, you know, section what what, which ever code of conduct, their code of conduct, section a, q or whatever according to their regulation 20, you know, this is where you failed to comply. But they’ve already reached a conclusion. We’ve had incidences where some of my cases I’ve had, based on recommendations I’ve made for disciplinary enquiries, the outcomes whether their members will take anything from it I don’t know, because they are very lenient with their discipline.”
These findings are in support of Muntingh and Dereymaeker’ (2013) assertion that the manner in which the NPA tends to deal with human rights violations that are perpetrated by law enforcement officials clearly indicates a reluctance to prosecute. This view was strengthened by the findings of the current study, because IPID investigating officers admitted that their recommendations meant very little, as they were only required to draft their findings and thoughts on the merits of the case, without any prosecutorial mandate. Moreover, their recommendations regarding the progression of cases were often rejected by prosecutors for
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various reasons, such as a lack of evidence. Based on this finding, it can be concluded that the mandate by the IPID to draft recommendations to the SAPS and the NPA is often not worth the paper it is written on for two main reasons: (i) NPA prosecutors seem to have their own set of requirements and motivations whether to prosecute or not; and (ii) by the time the IPID recommendations reach the South African Police Department (SAPD), the matter has already been ‘investigated’ and the ‘ranks have been closed’, which typifies the existence of a police culture where police officers ‘look after their own’. Clearly, the IPID recommendation strategy to bring rogue officers to book is, in its current form, ineffective in ensuring that the police are brought to account for acts of torture and assault.