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Mbalula gazettes changes to police regulations

Numerous key decisions which were in the past left to the sole discretion of the national commissioner now require a green light for the political head of the police.

FILE: Police Minister Fikile Mbalula. Picture: Cindy Archillies/EWN

PRETORIA - The new police regulations signed into law by Minister Fikile Mbalula last week has given him a greater say in the top structures of the South African Police Service (SAPS), including who gets appointed and promoted.

At a briefing in Pretoria on Tuesday, the minister confirmed he had gazetted the new regulations on 27 October.

"We amended the SAPS Employment Regulations of 2008 with a view that the minister must concur to certain categories of actions, in particular, those that the Auditor-General has highlighted as problematic causing us the qualified audit," he said.

Numerous key decisions which were in the past left to the sole discretion of the national commissioner now require a green light for the political head of the police.

Eyewitness News studied the amended regulations and compared them to the previous regulations, and found the following changes.

• Section 20: Strategic Planning – The section sets out how the minister must prepare a strategic plan for the service. In the past, the national commissioner would execute that plan. Now, the national commissioner requires concurrence with the minister on the service’s organisation structure, defining posts to perform the various functions, among other matters.

• Section 21: Human Resource Planning – The national commissioner requires concurrence with the minister on human resource functions, such as the number of employees and staffing patterns.

• Section 27: Creation and Filling of Posts - The national commissioner is required to consult with the minister before creating new posts or filling vacant posts.

• Section 32: Leave – The national commissioner is now required to submit a quarterly report to the minister on the annual leave plan for the leave cycle of every member of the service from the level brigadier up to the level of lieutenant.

• Section 38(4): General Conditions for Employment - the national commissioner requires concurrence from the minister before the appointments of senior personnel take effect.

• Section 45: Appointment and Promotion – Relates to SMS appointments – Brigadier to Lieutenant-General - the minister now has a say in the selection of the committee and the chairperson of the committee which makes recommendations on appointments and promotions.

Regulation requires outside public servants to sit on panels for senior posts.

No employee has any right to promotion until it has been approved in writing by the national commissioner, after obtaining concurrence with the minister.

• Section 61: Establishment of SMS – National Commissioner requires concurrence with the minister for the creation of the appropriate number of posts at SMS level.

The Institute for Security Studies' Gareth Newham says that many of the regulations are not out of the ordinary in many other countries.

"However, the level of prescribed detail and frequency of 'minister concurs' is a little unsettling.

"The sections dealing with the establishment of the Senior Management Service and the role the minister seeks to play may be of concern. The risk for cronyism and favouritism is very real if a minister seeks to support and promote individuals because of their political loyalties rather than professionalism," he said.

Newham believes there needs to be greater independent oversight of the exercise of ministerial directives and decision-making. He suggested the tabling of these issues before Parliament so that the public - and police - can be informed of the reasons behind ministerial decisions and assess whether they will improve policing or not.

"In the absence of such gatekeeper oversight, the risk of too much political interference on the police from the side of the minister is increased. There are already allegations that some Cabinet ministers may be involved in criminal activity or at least highly unethical conduct.

"If such a person becomes Minister of Police, the organisation will be seriously compromised. Ministers are not trained police professionals and they may be under the influence of particular interests," he said.

Newham said that ministerial directives must be made in a highly transparent manner.

"Directives should always in writing and should be tabled before parliament within one week of being issued as a matter of course. This is one way to minimise the risk of inappropriate political interference taking place, or at least making sure the public and the police know about it," he said.

Professor Rudolph Zinn from Unisa’s Police Practice Department said that if seen in isolation at a different stage in South Africa’s history, the changes may have been regarded as of a technical nature only.

"The allegations of state capture however forces us to look into any changes regarding managerial control more intensely and possibly through a different lens.

"There appears to be common themes, namely that the minister has the last say in strategic plans which differ from providing strategic direction; and a very much stronger say in selection and appointment of senior personnel.

"The selection and appointment issue appears to be the bigger concern since it creates the powers whether, intentional or unintentional, for this minister, or any following police minister, to select or sanction the appointment of only those persons he/she approves for senior positions,” he said.

Zinn argued that the new regulations leaves the door open for manipulation and raises the question why Mbalula won’t allow the police’s human resources department and the national commissioner to appoint the most suitable persons during a normal HR screening process.

"Why is he also willing to face accusations of political control over senior appointments while this is such a sensitive topic at the moment especially with regard to the criminal justice environment? What is he unhappy about currently with regard to the selection of senior staff in SAPS?" he asked.