Journal Archive
 October 1999 Volume 80 Number 10 "serving the protectors" |
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Shaun Richter Legal
Officer |
Promotions Appeals - The New System
The transition to the provisions of the Police Act, 1998, and the Police Regulations, 1999, will see a marked change in the way promotion appeals are conducted.
Under the provisions of the “new” act, members do not have a right to go before the Police Review Tribunal unless they have first gone through the grievance process for selection decision, which is laid out in regulation 38. This internal review process was designed to reduce the number of appeals coming from the promotional system. If run fairly and equitably, it will probably achieve that aim and be supported by PASA.
The implementation of the new process has not been smooth. Two areas have caused concern to members. These are:
• The right to view selection documents. A number of members has come forward to complain that they have been denied the right to view selection documents which relate to other applicants. This makes it an impossibility to properly address the issue of merit in the grievance process.
If SAPOL is to decline members the opportunity to review the documents of other applicants, the regulation 38 grievance process will become no more than a “speed hump” on the way to a full-blown appeal before the Police Review Tribunal.
PASA has taken legal advice and will negotiate with the Commissioner on this issue. It is hoped that the transition can be resolved in a way which is fair to all PASA members, and which will alleviate the need for all merit issues to be resolved exclusively by appeal to the Police Review Tribunal.
• Delaying of the process
The following time limits apply in the process:
Gazette notice – grievance lodged=14 days (reg 38)
Grievance processed=?
Grievance result to lodging in the tribunal=7 days (reg 39(3))
Decision to be handed down by the tribunal=28 days (reg 39(1))
Several members have contacted PASA complaining of delays in processing their selection grievances. While there is nothing unlawful about these delays, it is obviously contrary to the spirit of the legislation to delay these matters.
PASA intends to lobby the parliament to have a time constraint placed on the Commissioner for dealing with grievances, in a manner similar to the constraint on the new Police Review Tribunal.
Complaints Against Police
The Attorney General has introduced a bill to amend the Police (Complaints and Disciplinary Proceedings) Act, 1995. This bill has been introduced in response to the findings and recommendations of the review by Justice Iris Stevens. There are two areas of the proposed amending bill which warrant comment:
• The right to make submissions to the PCA
Justice Stevens found that:
From time to time there are comments critical of persons included in reports made by the Authority.
She went on to note that:
(The act) appears to contemplate that, if it is decided to express an opinion critical of a person, that person be given an opportunity to consider whether he or she wishes to appear...to make either oral or written submissions.
Staff of the Police Complaints Authority regularly comment upon the character of PASA members. Recent examples have included comments about the integrity of police officers based on them not answering questions under a criminal caution. In circumstances such as these, it is appropriate that representation be made to the authority prior to an opinion being published.
It was the thrust of Justice Stevens’ finding that it was unfair that some officers were not afforded the opportunity to make submissions. Rather than address that issue, the Attorney-General has approached the issue by proposing legislation which would simply remove the right to make submissions to the PCA.
• Provision of the particulars of the matter under investigation
The Police (Complaints and Disciplinary Proceedings) Act currently contains provisions which oblige the PCA to provide written particulars of the conduct to be provided to police who are directed to attend for an interview.
The amending bill would remove that obligation from the PCA. To change the law in this way clearly disregards the peculiar situation in which police find themselves when they are investigated by the PCA. The requirement that police officers answer questions clearly indicates a need for particulars prior to the commencement of the investigation.
Should an officer be required to answer questions “truthfully”, without any forewarning of the issue to be explored, it might well be a factual impossibility for the officer to “truthfully” answer those questions. It would also be inherently unfair to operate in this manner.
PASA is lobbying all members of parliament with a view to preserving the limited rights which are provided to police officers under investigation by the PCA.
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