REPORT ON THE POLICY ISSUES THAT NEED TO BE DECIDED TO ENABLE THE REVIEW OF THE SOUTH AFRICAN POLICE SERVICE ACT

PROBLEM STATEMENT

- The Secretariat is of the opinion that the name of the current Act does not encompass all other components of safety and security such as the Secretariat for Safety and Security (the Secretariat) and the Independent Complaints Directorate (ICD). The South African Police Service (the Service) and the ICD are of the view that the name of the Act should remain the same since the focus of this legislation is on the police and both the Secretariat and the ICD are focusing on policing issues;

- The South African Police Service (the Service) is commonly but wrongly referred to as a department and not as a component within the Department of Safety and Security (the department);

- The Act still refers to the Interim Constitution and should refer to the Constitution of the Republic of South Africa, 1996 (Act No.108 of 1996) (the Constitution). All parties agree on this. According to the Secretariat the Act is not in line with other pieces of legislation such as the Public Finance Management Act, 1999 (Act No.1 of 1999) (the PFMA) and the Employment Equity Act, 1998 (Act No.52 of 1998). The Service and the ICD are of the opinion that it is in fact in line with the said legislation; and

- All parties agree that the structure and content of the current Act need to be revised.

IDENTIFICATION OF AREAS TO BE REVIEWED

THE PREAMBLE

DELIBERATIONS

- The preamble still refers to the Interim Constitution, 1993 (the Interim Constitution) whilst there is a final constitution in place;

- The preamble makes no mention of the Secretariat and the ICD;

- The preamble is not in line with the contents of other policy papers such as the
National Crime Prevention Strategy (NCPS) and the White Paper on Safety and
Security, 1998 (White Paper).

POSSIBLE SOLUTIONS

- As the preamble serves no interpretative value, it be deleted; and

- If the preamble is retained, it be harmonized with the Constitution and be phrased to reflect an integrated professional approach to matters of safety and security in the country.

RECOMMENDATION BY THE SECRETARIAT

- That the preamble be harmonized with the Constitution and be phrased to reflect all components within the department as well as an integrated and coordinated approach in the delivery of safety and security services to all our people.

RECOMMENDATION BY THE ICD AND THE SERVICE

- That the preamble be left out from the new draft. The preamble played a meaningful role during the transition of the police from a force to a Service. This transformation has now been effected and including a new preamble will create the danger of unnecessarily repeating sections of the Constitution which may lead to problems of interpretation.

CHAPTER ONE (DEFINITIONS)

This chapter deals with definitions.

Definitions will be dealt with after the provisions of the envisaged Act have been finally drafted..

CHAPTER TWO (MINISTERIAL SERVICES)

This chapter deals with Ministerial Services.

DISCUSSIONS BY THE SECRETARIAT

- The Secretariat is expected by the Constitution to function under the direction of the Cabinet member responsible for policing;

- The Public Service Act, 1994 (Proclamation 103 of 1994) identifies the National Commissioner of the Service as the Head of the Department of Safety and Security;

- The PFMA demands that the Head of Department must be the Accounting Officer for the department. This means, therefore, that the Secretariat financially accounts to the National Commissioner of the Service and is financially dependent on the Service for its functioning;

- Whether the mandate of the Secretariat should remain the same or be amended to cover such areas as police transformation, training, quality assurance, police budgeting and social crime prevention;

- The mandate of the Secretariat should not be reduced to a mere Ministerial support service component as in chapter 14 of the Ministerial Handbook;

- The Secretariat should be sufficiently and explicitly empowered to effectively discharge its responsibilities;

- Since policing is a national competency and the Service is structured to function in the national, provincial and local spheres of government and is centrally directed and coordinated, it should be considered whether or not the Secretariat, which is responsible for overseeing the Service, should not be similarly structured to ensure effective oversight of the Service throughout the three spheres of government;

- Consideration should be given to changing the name of the Secretariat to reflect its functions;

- The current Act obliges the Minister to establish the National Secretariat, but it does not itself do so. The envisaged Act must establish the National Secretariat;

- Since the Constitution requires the civilian secretariat for the police service to function under the direction of the Cabinet member responsible for policing, the discretionary powers given to the provincial governments for establishing the Provincial Secretariats must be removed and remain vested in the Cabinet member responsible for policing;

- The envisaged Act must establish a clear and unambiguous relationship between the National Secretariat and Provincial Secretariats for Safety and Security (Provincial Secretariats);

- Consideration should be given to the full implementation of the recommendations of the White Paper; and

- The establishment of the Secretariat as an Organisational Component similar to the ICD should be considered, if the White Paper route is found unfavourable.

RECOMMENDATION BY THE SECRETARIAT

- The powers and functions of the Secretariat should be clearly and unambiguously defined in the envisaged Act;

- The National Secretariat should be established in the same way as the Defence Secretariat, i.e. as recommended in the White Paper; and

- The establishment of the Secretariat as an Organisational Component similar to the ICD should be considered, as an alternative.

RECOMMENDATIONS BY THE ICD AND THE SERVICE

- The power and functions of the Secretariat should be clearly and unambiguously defined in the envisaged Act;

- The Secretariat should NOT be established the same way as the Defence Secretariat. The Defence model is inappropriate for the Service. Should this model be implemented, it will make proper independent civilian oversight of the Service by the Secretariat impossible since they will be viewed as part of the decision making process in the Service. This is contrary to what is intended by the Constitution with the establishment of the Secretariat; and

- The establishment of the Secretariat as the Organisation Component similar to the ICD, but distinctly separate and independent from the ICD.

CHAPTER THREE
(ESTABLISHMENT AND COMPOSITION OF THE SERVICE)

This Chapter deals with the establishment and composition of the Service.

DISCUSSIONS BY THE SECRETARIAT

- The concept of "demilitarization" of the Service has resulted in some unintended confusion within the Service, and

- The culture of command and control, so critical for any police service, has been seriously compromised.

RECOMMENDATION BY THE SECRETARIAT

- The transformation of the Service from a police force that was almost solely responsible for the protection of the apartheid state to a police service that seeks to provide equal protection to all the citizens of the Republic, should not compromise the effective command and control of the Service.

RECOMMENDATION BY THE ICD AND THE SERVICE

- This Chapter only establishes and determines the composition of the Service and should remain basically the same. This chapter should not endeavour to address issues of command and control since they are addressed elsewhere The Service and the CD are of the view that there is no basis for the statement that command and control have been seriously compromised.

CHAPTER FOUR
(APPOINTMENT OF NATIONAL AND PROVINCIAL COMMISSlONERS)

This chapter deals with the appointment of the National Commissioner as well as Provincial Commissioners and the loss of confidence in any of them.

DISCUSSIONS BY THE SECRETARIAT

- The current Act provides for the appointment of the Provincial Commissioners
(PC's) and the role of the Provincial Executives in the appointment of the PC's but
is silent on the role of the Provincial Executives in the appointment of Area and
Station Commissioners;

- The process of appointment of any member of the Service must be seen to be objective and transparent if the image of the Service is to be restored; and

- The role of critical stakeholders such as the Secretariat, both nationally and provincially, must be clarified.

RECOMMENDATION BY THE SECRETARIAT

- Provincial Executives must play a role in the appointment of and loss of confidence in the Area and Station Commissioners as in the case of the PC.

RECOMMENDATIONS BY THE SERVICE

- The Service is of the view that the appointment of area and station commissioners should be the responsibility of the National Commissioner and that the provincial executive should not be involved in the process at all. This is a normal staff function and the filling of posts of area and station commissioners should not be politicised.

- Neither the National nor the Provincial Secretariats should be involved in the appointment process. If they are involved their independence will be compromised.

CHAPTER FIVE
(POWERS, DUTIES AND FUNCTIONS OF BOTH THE NATIONAL AND PROVINCIAL COMMISSIONERS AS WELL AS MEMBERS OF THE SERVICE)

This chapter deals with the powers, duties and functions of both the National and Provincial Commissioners as well as members of the Service.

DISCUSSIONS BY THE SECRETARIAT

- The duties and functions of the Service must be restricted to those outlined in the Constitution;

- There is need for the envisaged Act to clearly provide for the duties and functions of the Area and Station Commissioners;

- The envisaged Act must clearly and unambiguously empower provinces to participate in the determination of policing priorities in keeping with section 206 (2) of the Constitution;

- Consideration should be given to the removal of support services from the operational service to enable the Service to have a focussed attention on core policing; and

- The power to determine the fixed establishment of the Service and the number as well as the grading of posts, currently vested in the National Commissioner should in the envisaged Act, be exercised in consultation and concurrence with the Minister.

RECOMMENDATION BY THE SECRETARIAT

- All the matters deliberated above be addressed in the envisaged Act as such.

RECOMMENDATIONS BY THE SERVICE

- The Service is of the view that this Chapter must be amended to reflect the changes brought about by the new Constitution.

- The duties and functions of area and station commissioners are not matters to be regulated by the Act itself but should rather be regulated in subordinate legislation or instructions.

- The provisions of section 206(2) of the Constitution is self-executing and need not be repeated in the Act itself.

- The structuring of the Department to provide for operational and support services is subject to regular amendment as the needs change and should not be entrenched in legislation.

- The manner in which these powers must be exercised is spelled out in subordinate legislation and should not be dealt with in the Act itself.

CHAPTER SIX
(ORGANISED CRIME AND PUBLIC ORDER POLICING)

This chapter deals with organized crime and public order policing.

DISCUSSIONS BY THE SECRETARIAT

- The problem of organized crime in the country needs to be dealt with in a separate piece of legislation like the Organized Crime Act; and

- Public Order Policing should remain the responsibility of the Service.

RECOMMENDATION BY THE SECRETARIAT

- The power of the President, in consultation with Cabinet. to deploy the Public Order Policing Unit must be extended to the deployment of any unit of the Service or the entire Service to any part of the country in emergency situations, in the event that the National Commissioner is unable or unwilling to do so.

RECOMMENDATIONS BY THE SERVICE

- The present Act sufficiently addresses the deployment of members in an emergency situation. In the event of the National Commissioner not being able to do so the Act provides for other officials to act in his stead. If the National Commissioner is unwilling to act, the Minister may direct the National Commissioner to do so.

CHAPTER SEVEN
(ESTABLISHMENT AND COMPOSITION OF COMMUNITY POLICE FORUMS (CPFs) AND COMMUNITY POLICE BOARDS (BOARDS)

This chapter deals with the establishment and composition of CPFs and Boards.

DISCUSSIONS BY THE SECRETARIAT

- CPFs are community-based structures;

- These structures are meant, among other things,. to ensure democratic accountability of the Service;

- It is a contradiction of this objective to have the responsibility for the establishment of the CPFs located in the Service - a structure they are established by law to oversee; and

- The critical role of local government must be clearly spelt out in the envisaged Act.

RECOMMENDATION BY THE SECRETARIAT

- The establishment and funding of these structures should be a political responsibility at national level to be delegated to the provincial and local spheres of government;

- CPF regulations should clearly guide the process of the establishment, duties and functions of these structures as well as the roles of the different spheres of government; and

- The role and functions of these structures should not be limited only to policing but should also encompass the integrated and coordinated approach to crime prevention as outlined in the NCPS.

RECOMMENDATION BY THE SERVICE

The Service is of the opinion that this is a matter that needs to be consulted upon further before any final position is taken.

CHAPTER EIGHT
(REGULATIONS)

This chapter deals with the powers of the Minister to make regulations.

DISCUSSIONS BY THE SECRETARIAT

As a principle. the Minister must, clearly and in an unambiguous manner, be empowered to make regulations; and

- The flexibility and sustainability of Regulations depend on the extent to which the Minister is empowered to adjust and adapt the Regulations to the changing environment.

RECOMMENDATION BY THE SECRETARIAT

- The envisaged Act should clearly and unequivocally empower the Minister to make regulations.

RECOMMENDATION BY THE SERVICE

- The Act already makes provision for what is recommended by the Secretariat and the present provisions should therefore be retained more or less in its present form.

CHAPTER NINE
(APPOINTMENTS, TERMS AND CONDITIONS OF SERVICE)

This chapter deals with appointments terms and conditions of service.

DISCUSSIONS BY THE SECRETARIAT

- The Service is providing an essential service;

- The civilian members of the Service must be fully regulated by the Public Service Act and be managed by civilians whilst operational members of the Service should remain regulated by a Police Act;

- Within the principle of the rule of law and without limiting the rights of any member of the Service, the Service cannot be regulated like any other public service department - much more stringent but appropriate regulations are needed;

- Policing is a noble profession. The remuneration of members of the Service will never be commensurate with the type of service they are providing. The scale level of remuneration and benefits of members of te Service should reflect the nobility of this profession.

RECOMMENDATION BY THE SECRETARIAT

- The regulations of the Service must enable the Service to function as a professional effective and efficient police service;

- The scale level of remuneration and benefits of members of the Service should reflect the nobility of this profession

RECOMMENDATIONS BY THE SERVICE

- Regulations are separate from the Act and should not be addressed while considering the content of the Act.

- The scale, level of remuneration and benefits of members of the Service cannot be regulated in the Act and should be dealt with separately.

- The civilian staff of the Service should be removed from the Public Service Act and their appointment and conditions of service should be regulated by the new Act.

CHAPTER TEN
(ICD)

This chapter deals with matters relating to the ICD.

DISCUSSIONS BY THE SECRETARIAT

- The ICD is independent from the Service and not the Minister (Executing Authority);

- The ICD provides further assistance and advice to the Minister to enable him to direct the Service;

- It would be inappropriate to have the ICD reporting to any other Minister other than the Cabinet member responsible for policing;

- Role clarification between the CD and the Secretariat is necessary to avoid potential duplication; and

- Consideration should also be given to having the Secretariat and the CD merged and fj notion mg under one accounting officer.

RECOMMENDATION BY THE SECRETARIAT

- A political directive on the above is needed.

RECOMMENDATION BY THE ICD

- The ICD is of the view that the roles and functions of the ICD and those of the Secretariat are clearly distinguished in the Act and should remain distinct. The ICD is further of the view that a merger between the Secretariat and the ICD should not be considered, mainly for the following reasons:
(a) the CD functions separate and independent from the Secretariat:
(b) the CD and the Secretariat is separately dealt with in the Constitution;
(b) the CD has its own accounting officer; and
(c) the mandate and functions of the CD are clearly distinguishable from those
of the Secretariat and a merger will result in putting together conflicting competencies and interests
and should not be considered.

CHAPTER ELEVEN
(GENERAL PROVISIONS)

This chapter deals with general provisions.

DISCUSSIONS BY THE SECRETARIAT

Over and above the general provisions in this chapter, the following need consideration:

- There is need to harmonize the various policing agencies in the country; and

- Remuneration of policing agencies should avoid unnecessary and unhealthy competition between different units in policing;

RECOMMENDATION BY THE SECRETARIAT

- Differences in remuneration between different units in policing should be well considered and appropriate, avoiding the capacitating of one unit at the expense of another.

RECOMMENDATIONS BY THE SERVICE

- This Act cannot prevent persons from joining other policing agencies. Such a provision will be in conflict with. the Constitution.

CHAPTER TWELVE
(MUNICIPAL POLICE)

This chapter deals with municipal policing.

DISCUSSIONS BY THE SECRETARIAT

- There is need to clearly stipulate the role and functions of municipal police services distinctly from those of the Service.

- The harmonization of remuneration and benefits of municipal police services with those of members of the Service is necessary also here to avoid "poaching";

- Civilian oversight over the Service should also be extended to cover all other policing agencies in the country;

- The role of municipal police services should be widened with emphasis on crime prevention at local level;

- The growth of the private security industry and the proliferation of private security companies is an area of concern;

- Restriction of some categories of members of security services joining the private security industry either on retirement or at any other stage must be considered;

- Consideration should be given to the question as to whether the municipal police services as currently structured are in line with section 205 (1) of the Constitution; and

- There is further need to clarify the role and functions of traditional/tribal police services.

RECOMMENDATION BY THE SECRETARIAT

- Political direction is needed on the above.

RECOMMENDATION BY THE SERVICE

- The role and functions of municipal police services are distinct from those of the Service and should remain the same;

- Civilian oversight over municipal police services is already sufficiently covered in the Act and regulations;

- The role of municipal police services already provides for crime prevention at local level and should remain the same;

- The growth of the private security industry and the proliferation of private security companies should be addressed in separate legislation;

- Restriction of some categories of members of security services joining the private security industry should not be addressed in this Act;

- Section 205(1) of the Constitution deals with the National Police Service and not with municipal police services:

CHAPTER THIRTEEN
(OFFENCES AND PENALTIES)

This chapter deals with offences and penalties.

DISCUSSIONS BY THE SECRETARIAT

- Allegations of drunkenness and other elements of ill-discipline within the Service compromise the image of the Service;

- Appropriate and effective sanctions against this misconduct must be clearly spelt out in the envisaged Act;

- Serious attention must be paid to the killing of police officers by imposing a mandatory sanction on the perpetrators of this heinous act of barbarism; and

- Consideration should be given to the correctness or appropriateness of members of the Service investigating allegations of misconduct against fellow members.

RECOMMENDATION BY THE SECRETARIAT

- Appropriate penalties reflecting the nobility of the policing profession should be imposed upon members of the Service making themselves guilty of drunkenness and all other forms of ill-discipline whilst on duty;

- All offences including allegations of misconduct by members of the Service must be investigated by the CD whether the CD exists as pant of the Secretariat or in terms of the present arrangement.

RECOMMENDATIONS BY THE ICD

- It would not be practically possible for the CD to investigate ALL offences and ALL allegations of misconduct. Such a requirement will remove important managerial responsibilities from police management.

RECOMMENDATIONS BY THE SERVICE

- The Act should not prescribe penalties for misconduct. This is a matter to be dealt with in disciplinary regulations;

CHAPTER FOURTEEN
(TRANSITIONAL ARRANGEMENTS)

This chapter deals with transitional arrangements and these can only be addressed after the main provisions of the envisaged Act have been drafted.

CHAPTER FIFTEEN
(SHORT TITLE AND COMMENCEMENT)

This chapter deals with the short title and commencement.

The name of the envisaged Act will be considered after political direction has been given on the structure and functioning of the department.

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