kwazulu-natal · 2014. 3. 13. · jobname: kwazulu natal−−pocke page: 4 sess: 86 output: thu...

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KwaZulu-NatalCommunity Police Forum

Pocket Guide

Published by JUTA Lawin association with the

KZN COMMUNITY SAFETY & LIAISON

Reflecting the law as at 15 January 2014

Published by Juta Law

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First published 2013Second edition 2013

© Juta & Co. LtdFirst Floor, Sunclare Building, 21 Dreyer Street, Claremont, Cape

Town, 7708www.jutalaw.co.za

This work is protected by copyright under the Berne Convention.In terms of the Copyright Act 98 of 1998, no part of this work maybe reproduced or transmitted in any form or by any means,electronic or mechanical, including photocopying, recording or byany information storage and retrieval system, without permission

in writing from the publisher.

Whilst every effort has been made to ensure that the informationpublished in this work is accurate, the editors, publishers andprinters take no responsibility for any loss or damage suffered byany person as a result of the reliance upon the information

contained therein.

ISBN 978–1-4851-0195-6

Cover design by Drag and DropTypeset by CBT Typesetting & Design

Printed by ????????????????????????

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This book belongs to:

Name: ..........................................................................................

Address: ......................................................................................

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Telephone Number: .....................................................................

Cell Phone Number: ....................................................................

Fax Number: ................................................................................

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Emergency Contact: ....................................................................

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viii

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CONTENTS

PageKey Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viiQuick Finder for Key Topics . . . . . . . . . . . . . . . . . . . . . . . . . . ix1 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Role-players in the Criminal Justice System . . . . . 23 Provincial Framework for Community Engage-

ment on Crime Prevention and Policing . . . . . . . . . 73.1 KwaZulu-Natal Council Against Crime . . . . . . . . 73.2 District Community Safety Forums . . . . . . . . . . . 83.3 Local Safety Teams and Ward Safety Committees 9

4 Recent Developments in Community Policing . . . 154.1 Lack of clarity on the role of Community Police

Forums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154.2 Lack of Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . 154.3 Lack of Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . 154.4 Proper Legal Framework. . . . . . . . . . . . . . . . . . . . 164.5 Re-establishment of the Provincial Community

Police Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Recent Developments in Community Crime Prevention 216 Legal Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

6.1 The South African Constitution: Chapter 2—Billof Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

6.2 The South African Constitution: Chapter 11—Security Services . . . . . . . . . . . . . . . . . . . . . . . . 46

6.3 The Civilian Secretariat for Police Service Act 2of 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

6.4 The South African Police Service Act 68 of 1995 806.5 South African Police Service Interim Regulations

for Community Police Forums and Boards . . 1866.6 Community Safety Forum Policy . . . . . . . . . . . . . 2026.7 The Community Police Forum Constitution . . . . 228

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6.8 The Community Police Sub-Forum Constitution 2626.9 The Youth Desk Constitution . . . . . . . . . . . . . . . . 2936.10 The Community Police Cluster Board Constitution 3216.11 The Provincial Community Police Board Consti-

tution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3556.12 The MOU bewteen the CPF Board and the

DCSL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3856.13 The CCPA Template Constitution . . . . . . . . . . . . 3986.14 The KZNCCPA Constitution . . . . . . . . . . . . . . . . . 4276.15 The MOU between the KZNCCPA and the

DCSL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4546.16 Guidelines on managing incidents of crime. . . . 470

7. Diagrams7.1 Structure: KwaZulu-Natal Holistic Community

Liaison Framework . . . . . . . . . . . . . . . . . . . . . . 4767.2 Structure: Community Policing in KwaZulu-Natal 4787.3 Structure: Community Police Cluster Board . . . 4807.4 Structure: Community Police Forum . . . . . . . . . . 482

vi Contents

© Juta & Co. Ltd and KZN Community Safety & Liaison

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KEY ADDRESSDepartment of Community Safety and Liaison

KwaZulu-Natal Province

Physical Address179 Jabu NdlovuPIETERMARITZBURG3201

Postal AddressPrivate Bag X9143PIETERMARITZBURG3200

Tel: (033) 341 9300 (Switchboard)Fax: (033) 342 6345Email: [email protected]

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QUICK FINDER FOR KEY TOPICS

KWAZULU-NATAL COMMUNITY POLICINGPOCKET GUIDE

Key Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

INTRODUCTION

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Role-Players in the Criminal Justice System . . . . . . . . . . . 2Provincial Framework for Community Engagement on

Crime Prevention and Policing . . . . . . . . . . . . . . . . . . . 7KwaZulu-Natal Council against Crime . . . . . . . . . . . . . . . 7District Community Safety Forums . . . . . . . . . . . . . . . . . . 8Local Safety Teams and Ward Safety Committees . . . . 9

Recent Developments in Community Policing . . . . . . . . . . 15Lack of clarity on the role of Community Police Forums 15Lack of Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Lack of Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Proper Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Re-establishment of the Provincial Community Police

Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Recent Developments in Community Crime Prevention 21

LEGAL DOCUMENTSThe South African Constitution: Chapter 2—Bill of Rights 27The South African Constitution: Chapter 11—Security

Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46The Civilian Secretariat for Police Service Act 2 of 2011 53

Interpretation, application and objects . . . . . . . . . . . . . . . 57Civilian Secretariat for Police Service . . . . . . . . . . . . . . . 59Secretary for Police Service . . . . . . . . . . . . . . . . . . . . . . . 62Provincial Secretariats . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67Co-operative Framework . . . . . . . . . . . . . . . . . . . . . . . . . . 71• Secretary and heads of provincial departments . . . . 71• Senior management forum . . . . . . . . . . . . . . . . . . . . . . 72• Intervention by Civilian Secretariat . . . . . . . . . . . . . . . 73

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• Ministerial Executive Committee . . . . . . . . . . . . . . . . . . 73• Co-operation with Independent Police Investigate

Directorate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74Co-operation with South African Police Service . . . . . . 75Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75Transitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Amendment and Repeal of Laws . . . . . . . . . . . . . . . . . . . 77Short title and commencement . . . . . . . . . . . . . . . . . . . . . 77Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

The South African Police Service Act 68 of 1995 . . . . . . . 80Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88Ministerial Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91Establishment of Composition of Service . . . . . . . . . . . . 93Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Powers, Duties and Functions . . . . . . . . . . . . . . . . . . . . . . 99Storage and use of Fingerprints, Body-Prints and

Photographic Images of Person . . . . . . . . . . . . . . . . . . 107Organised Crime and Public Order Policing Unit . . . . . . 111Directorate for Priority Crime Investigation . . . . . . . . . . . 115Community Police Forums and Boards . . . . . . . . . . . . . . 137Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140Appointments, Terms and Conditions of Service and

Termination of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . 146Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161• Non-Liability for acts under irregular warrant . . . . . . . 161• Limitation of liability of State and members. . . . . . . . . 162• Salary or allowance not to be assigned or attached 162• Prohibition of certain dealings . . . . . . . . . . . . . . . . . . . . 162• Property of Service not liable to seizure or attachment 163• Exemption from tolls, fees and fees of office . . . . . . . 163• Police clubs exempt from licence duties and other

fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164• Payment by public for police services . . . . . . . . . . . . . 164Municipal and Metropolitan Police Services . . . . . . . . . . 165Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177Repeal and Transitional Provisions . . . . . . . . . . . . . . . . . . 182

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Short title and commencement . . . . . . . . . . . . . . . . . . . . . 184Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

South African Police Service Interim Regulations forCommunity Police Forums and Boards . . . . . . . . . . . . 186

Community Safety Forum Policy . . . . . . . . . . . . . . . . . . . . . . 202The Community Police Forum Constitution . . . . . . . . . . . . . 228The Community Police Sub-Forum Constitution . . . . . . . . . 262The Youth Desk Constitution . . . . . . . . . . . . . . . . . . . . . . . . . 293The Community Police Cluster Board Constitution . . . . . . 321The Provincial Community Police Board Constitution . . . . 355The MOU Bewteen The CPF Board and the DCSL . . . . . 385The CCPA Template Constitution . . . . . . . . . . . . . . . . . . . . . 396The KZNCCPA Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 427The MOU betweent KZNCCPA and the DCSL . . . . . . . . . . 454Guidelines on managing incidents of crime. . . . . . . . . . . . . 470

DIAGRAMS

Structure: KwaZulu-Natal Holistic Community LiaisonFramework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476

Structure: Community Policing in KwaZulu-Natal . . . . . . . . 478Structure: Community Police Cluster Board . . . . . . . . . . . . 480Structure: Community Police Forum . . . . . . . . . . . . . . . . . . . 482

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PURPOSE AND ROLE-PLAYERSIN THE

CRIMINAL JUSTICE SYSTEM

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PURPOSE AND ROLE-PLAYERS IN THECRIMINAL JUSTICE SYSTEM

1 PurposeSection 12 of the Constitution of the Republic of South Africa of1996, enshrines the right of freedom and security of the personand in this regard provides that this includes the right—

(a) not to be deprived of freedom arbitrarily or without justcause;

(b) not to be detained without trial;(c) to be free from all forms of violence from either public or

private sources;(d) not to be tortured in any way; and(e) not to be treated or punished in a cruel, inhuman or

degrading way.Section 198 of Chapter 11 of the Constitution further requiresnational security to reflect the resolve of South Africans, asindividuals and as a nation, to live as equals, to live in peace andharmony, to be free from fear and want and to seek a better lifeand that national security must be pursued in compliance with thelaw.The pursuance of national security and the right to freedom andsecurity of the person is a pursuit of the government as well asevery person in South Africa. This publication is an informationresource to assist community police participants in the Provinceof KwaZulu-Natal in understanding their role and scope incommunity policing in the pursuit of national security and thefreedom and security of the person.To this end, it provides an overview of the context within whichthe Community Police Forums and Boards operate in theProvince of KwaZulu-Natal, both from a legal and a practical

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perspective. In this regard, it was firstly important to briefly dealwith the roles of the main participants in the criminal justicesystem. Secondly, the provincial framework for communityengagement is explained and thereafter a synopsis of the recentdevelopments in community policing and community crimeprevention in KwaZulu-Natal is given. Lastly, the publicationcontains the relevant legislation, policies and other legaldocuments pertaining to the establishment and functioning ofCommunity Police Forums and Boards in KwaZulu-Natal.

2 Role-players in the Criminal Justice SystemThe Criminal Justice System in South Africa is made up of anumber of role players and each plays a specific role in theadministration of justice in South Africa. Some of the mostimportant role players are the following:

(a) Police—the role of the police is to prevent, combat andinvestigate crime, to maintain public order, to protectand secure the inhabitants of the Republic and theirproperty, and to uphold and enforce the law;

(b) National Prosecuting Authority (NPA)—the NPA isresponsible for prosecuting accused persons in court;

(c) Courts—The judicial authority of the Republic is vestedin the courts. The courts are vested with the duty tointerpret the law and to decide on the guilt or innocenceof an accused person in an independent and impartialmanner, without fear, favour or prejudice. The courts aresubject only to the Constitution and the law. Chapter 8of the Constitution gives recognition to the followingcourts in South Africa:

(i) the Constitutional Court;(ii) the Supreme Court of Appeal;(iii) the High Courts;(iv) the Magistrates Courts; and(v) various other Courts which are established or

recognised in terms of an Act of Parliament suchas:—

2 Purpose and Role-Players in the Criminal Justice System


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the Small Claims Courts which deal with civilmatters where the claim is less than R12 000;the Electoral Court which deals with electoralissues, for example when there is a disputeamong political parties concerning the elections;the Labour Court which deals with issuespertaining to labour relations;the Land Claims Courts which deal withmatters of land redistribution;Equality Courts which deal with complaintsthat are about unfair discrimination, hatespeech or harassment;Children’s Courts which have been estab-lished to deal with matters related to thewell-being and interests of children; andCourts for Chiefs and Headmen which havejurisdiction to hear certain matters on the levelof magistrate’s courts. They are designed todeal with customary issues in terms of custom-ary law.

In criminal matters, the Courts decide on whether thesuspected criminal must be granted bail pending trial,whether suspected criminal is guilty beyond reasonabledoubt and to sentence a guilty person to a fine orimprisonment;

(d) Correctional Services—after a person has been sen-tenced to imprisonment, the Department of CorrectionalServices takes the person into custody for the periodspecified by the courts and during that period attemptsto correct the behaviour of the person. This departmentalso administers the release of prisoners on parole;

(e) Department of Community Safety and Liaison—provides civilian oversight over the police by monitoringthe police, investigating complaints of poor service,building good relations between the police and the

Purpose and Role-Players in the Criminal Justice System 3


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community, building community safety partnerships,developing safety structures, determining policingneeds and priorities and providing direction on commu-nity police forums and boards;

(f) Community Police Forums (CPFs)—are forums ormeeting places created by legislation for purposes ofliaison between the Police Service and all componentsof society to improve police service delivery by jointproblem identification and solving;

(g) Community Crime Prevention Associations—are volun-tary associations, such as neighbourhood watches.They engage in crime prevention activities within theboundaries of the law, including street, village andhot-spot patrols, receiving reports from their constitu-ents and other community members on suspectedcriminal and criminal incidents, managing criminal orsuspected criminal incidents encountered whilst onstreet, village and hot-spot patrols in accordance withset guidelines, sharing information with the PoliceService and CPFs and report suspected criminal andcriminal incidents to the Police Service;

(h) Community Safety Forums (CSFs)—are multi-agencystructures established at a district level to ensure thecoordination of all community safety efforts, such assafety through environmental design, restorative jus-tice, diversion, rehabilitation and re-integration ofoffenders and the like, by government and civil societyto address the specific needs of each district municipal-ity.

4 Purpose and Role-Players in the Criminal Justice System


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PROVINCIAL FRAMEWORK FORCOMMUNITY ENGAGEMENT ON

CRIME PREVENTIONAND POLICING

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PROVINCIAL FRAMEWORK FORCOMMUNITY ENGAGEMENT ON CRIME

PREVENTION AND POLICING

3 Provincial Framework for Community Engagementon Crime Prevention and Policing

The Civilian Secretariat for Police Service Act, enacted in 2011,requires provinces to develop community safety partnerships,thereby giving legislative life to the ‘Building A United FrontAgainst Crime’ programme, initiated by the KwaZulu-NatalDepartment of Community Safety and Liaison in 2009. Thisprogramme entails the mobilisation of all sectors of society in aconcerted and sustained campaign to significantly reduce crimelevels in the Province.In order to formalise the implementation of this programme, theExecutive Council of the Province of KwaZulu-Natal approved aholistic framework for community engagement on 4 December2012, through which the government can reach partners,develop partnerships, develop safety models and drive safetyinitiatives. The framework was designed to accommodate liaisonwith communities and stakeholders from a provincial level downto a voting district level and, at the same time, promote synergybetween the role-players and structures operating within thecriminal justice system.

3.1 KwaZulu-Natal Council Against CrimeOn a provincial level, there was no existing permanent platformwhich could be used as a structured engagement vehiclebetween the Provincial Government, Civil Society and thenational structures in pursuance of all the mandates of thedepartment and to improve the scope and effectiveness of itsprogrammes.

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A permanent advisory and consultative platform in the form of theKwaZulu-Natal Council Against Crime has been established. TheCouncil comprises of representatives of the Premier, Members ofthe Executive Council, the Justice Crime Prevention and SecurityCluster, the House of Traditional Leaders, Religious Leaders,Business, Youth, Organised Labour, the Provincial CommunityPolice Board, the KZN Community Crime Prevention Associationand the Private Security Industry.The key elements of the terms of reference of the council are:

(a) to provide strategic advice and guidance on, and assistin the development of safety and crime preventionstrategies for the Province of KwaZulu-Natal;

(b) to facilitate, guide and contribute to safety and crimeprevention research and project activities;

(c) to facilitate support to key government and non-government organisations in the pursuance of theirsafety and crime prevention strategies;

(d) initiating and facilitating such working groups as may benecessary to assist in the development, encouragementand promotion of safety and crime prevention pro-grammes and activities; and

(e) facilitating, encouraging and promoting broad societaleducation programmes for people of all ages inKwaZulu-Natal on the prevention of crime in thecommunity, with our initial focus on those who areinvolved in crime fighting structures.

3.2 District Community Safety ForumsOn a district level, the role of the Council is fulfilled by DistrictCommunity Safety Forums (CSFs), which are structures foundedon the principles of the National Crime Prevention Strategy andentrenched in the Policy on the Establishment of CSFs, approvedby the Justice, Crime Prevention and Security Cluster in June2012. CSFs are multi-agency structures established at a districtlevel to ensure the coordination of community safety efforts bygovernment and civil society to address the specific needs ofeach district.

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The composition and terms of reference of the Council arereplicated in respect of District CSFs to ensure that they performthe role of coordination centres of district community safetynetworks and the function of driving the production andimplementation of the safety components of Integrated Develop-ment Plans (IDPs).

3.3 Local Safety Teams and Ward Safety CommitteesOn a local level, the department uses Community Police Forums(CPFs) to liaise with communities. However, these platformshave the following challenges:

(a) the effectiveness of some of these structures have beenless than optimal due to the lack of a holistic communityliaison framework;

(b) some of the representatives do not represent all theconstituents in all communities;

(c) all constituents of communities are therefore notreached through these structures;

(d) there is no direct link between these structures andconstituents at a ward and voting district level; and

(e) planning at local as well as ward level cannot thereforebe done accurately through these structures.

The framework therefore provides for a liaison mechanism whichis directly linked to ward and voting district levels to remedy thesechallenges. In terms of the framework residents in each votingdistrict shall form a safety team of approximately 10 membersand elect from among themselves a coordinator. The terms ofreference of the Safety Team are to—

(a) identify community safety needs in the voting district,including needs relating to infrastructure and environ-mental design to improve safety;

(b) identify policing priorities in the voting district;(c) identify crime trends in the voting district;(d) monitor visible policing on the voting district;(e) forming street committees/community crime prevention

associations in the voting district to undertake—

Provincial Framework for Community Engagement on Crime Prevention and Policing 9


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street, village and hot-spot patrols;receiving reports from residents on suspectedcriminal and criminal incidents; andmanaging criminal or suspected criminal incidentsencountered whilst on street, village and hot-spotpatrols;

(f) keeping the Police Service and CPF informed ofscheduled street, village and hot-spot patrols;

(g) ensuring that reports from residents on suspectedcriminal and criminal incidents are brought to theattention of the Police Service and the CPF;

(h) ensuring that criminal or suspected criminal incidentsare managed in accordance with the guidelinesattached hereto;

(i) for the abovementioned purposes, make available a listof contact details of its members, members of streetcommittees and their areas of operation to the SAPS,CPF and department; and

(j) report on its activities to the ward safety committeethrough the coordinator.

The coordinators of all the safety teams in each ward wouldconstitute a ward safety committee. The safety coordinatordesignated by the ward committee would coordinate the wardsafety committee. The ward safety coordinator would attend theward war room and ensure that the safety issues raised by thesafety teams are tabled at the war room.The ward safety committee coordinators would form part of theCPF within which boundary they fall and provide input in thedecision making processes of the CPF and the development ofthe Community Safety Plan of the CPF. There are 185 CPFs inthe Province.All the ward safety committee coordinators in a local municipalarea would constitute the local municipal safety committee ofwhich the coordinator would be the safety representative of the

10 Provincial Framework for Community Engagement on Crime Prevention and Policing


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Exco of the Municipal Council. The local municipal safetycommittee must contribute to the IDP in respect of communitysafety matters.All the local safety committee coordinators would form part of theCluster Community Police Boards within which area they fall.There are 25 SAPS Clusters in the Province.In turn, all the safety representatives in a district municipalitywould constitute a district safety committee. The district safetycommittee would form part of the district Community SafetyForum where other stakeholders in the criminal justice systemare represented.Similarly all district safety committee coordinators would consti-tute a provincial safety committee, which would be representedat the KZNCAC.

Provincial Framework for Community Engagement on Crime Prevention and Policing 11


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RECENT DEVELOPMENTS INCOMMUNITY POLICING

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RECENT DEVELOPMENTS IN COMMUNITYPOLICING

4 Recent Developments in Community Policing

4.1 Lack of clarity on the role of CPFsThe KwaZulu-Natal Provincial Community Policing Board hasexperienced many challenges over the past few years and to agreat extent, there was a lack of understanding of the role andfunctioning of CPFs in relation to the police.The lack of understanding has on occasion led to CPF membersperforming functions falling outside the ambit of their objectivesand trespassed on the domain of the police. This in turn hasresulted in tensions and a lack of mutual trust and cooperationnecessary for a proper working relationship between the CPFsand the Police.

4.2 Lack of LegitimacyOn the other hand, the CPFs are perceived by some communitymembers as lacking legitimacy and considered to be notinclusive of the all the stakeholders in the community. There arealso perceptions in the community that the CPFs are a steppingstone for political ambitions and this estranges those in thecommunity willing to volunteer their time and efforts.

4.3 Lack of FundingFunding is also an issue that has also consistently hampered theproper functioning of CPFs with the result that most often CPFsare challenged in initiating or sustaining programmes. TheProvince is funding the CPFs as part of the duty placed on it bythe Constitution to promote good relations between the commu-nity and the police.

15

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4.4 Proper Legal FrameworkCPFs are governed by a legislative framework which, as a resultof not being interpreted properly, resulted in the CPFs lackinglegal legitimacy. The legislative framework directs how they areto be formed and their functions. This framework further requiresthe CPFs to have a Constitution that meets certain criteria suchas specifying the executive composition as well as their individualand collective roles. The framework also requires the Constitu-tion to provide the name of the particular forum, sub-forum orboard and indicate the aims and objectives of the board, a codeof conduct for members, the composition and the powers andfunctions of the executive committee.

4.5 Re-establishment of the Provincial Community PoliceBoard

The previous Board was not sufficiently inclusive, lacked thesupport of the community and did not have a proper constitutionthat complied with the legislative framework for the establishmentand proper functioning of CPFs. For this reason, the ProvincialCommissioner dissolved the Board in 2011 and appointed asteering committee to oversee the re-establishment of the Boardunder a new constitution.The Province in its Department of Community Safety and Liaisonassisted the steering committee to revise the constitution to be inline with the legislative requirements that are set out in the SouthAfrican Constitution, South African Police Service Act, 1995 andthe South African Police Service Interim Regulations forCommunity Police Forums and Boards, 2001.The new constitution was adopted and signed by the ProvincialCommissioner and the newly elected chairperson in October2012.Elections in terms thereof took place on 20 October 2012. Theconstitution and the election process have set new nationalbenchmarks. For the first time representation of the Youth Deskon the Provincial Board is provided for in the constitution toensure a direct link to the youth.In addition to the constitution, the Province has a memorandum

16 Recent Developments in Community Policing


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of understanding which binds the Province to render logisticalsupport to the Board which includes facilitating training ofmembers of the Board and meetings and workshops of theBoard. The Province will also assist the Board to source fundingand provide guidance to the Board in respect of their operationand functions.The next phase of the revitalisation of the community policestructures in the Province entailed replicating the abovemen-tioned process in all 25 police clusters under the leadership of thenewly elected Executive Committee and re-established Boardand thereafter doing so in respect of all the Community PoliceForums. In order to ensure that the Board remains stablethroughout this process, it was imperative that a systematic,piecemeal and thoroughly consulted approach be followed. Thisprocess includes re-establishing Youth Desks under each CPFunder a sub-forum constitution.

Recent Developments in Community Policing 17


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RECENT DEVELOPMENTS INCOMMUNITY CRIME PREVENTION

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RECENT DEVELOPMENTS IN COMMUNITYCRIME PREVENTION

5 Recent Developments in Community Crime Preven-tion

When mentioning specific community crime prevention associa-tions, the most notable being isiKebhe, mostly negativeresponses are received, both within and outside government.These responses invariably include statements such as ‘manypeople are against them, they must be shut down’. Whilst onehas appreciation for the underlying reasons for such statements,it has to be said that they are rather unfair, unrealistic andunconstitutional statements. Unfair because there are manycrime prevention associations in almost all parts of the province,which have taken many shapes and forms.Some are called neighbourhood watches, others street commit-tees and yet others go nameless. If we ‘shut them down’ wewould be committing an unforgivable disservice to crimeprevention and our people. The statements are unrealisticbecause the immense frustration with crime would counteractany attempts to disband such organisations. And such state-ments are unconstitutional because the Constitution providesthat everyone has the right to freedom of association andeveryone has the right to protect themselves and their commu-nities.In reality, the emergence of these associations presented both achallenge and an opportunity to government. The governmentwas faced with groupings of people who are largely unregulatedand operating outside CPF structures and, at times, even outsidethe boundaries of the law. It was also faced with many residentswho have taken it upon themselves to protect themselves andothers without any reward other than safety itself.

21

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The government therefore had to recognise the constitutionalright of these organisations to exist as long as they operate withinthe confines of the law. Government also had to recognise thatCPFs are not the only structures in existence which areconcerned with policing and crime prevention and that in factChapter 7 of the South African Police Service Act of 1995provides specifically that the South African Police Service mayliaise with the community by means other than throughcommunity police forums and boards.Section 206 of the Constitution requires provincial governmentsto promote good relations between the police and communities.Building a bridge between the police and these other structuresis therefore a legal obligation for our government. The implemen-tation thereof has become critical for effective policing andpreventing people from taking the law into their own hands, totheir own detriment and that of their communities.Moreover, Section 3 of the Nonprofit Organisations Act of 1997,requires every organ of state, within the limits prescribed by law,to determine and coordinate the implementation of its policiesand measures in a manner designed to promote, support andenhance the capacity of nonprofit organisations to perform theirfunctions.The provincial government has therefore embarked on aprogramme to educate and capacitate voluntary crime preven-tion organisations to better understand the laws of our countryand to organise themselves into legally recognised associations.The education and capacitation programme included the facilita-tion of the formation of an umbrella body called the KwaZulu-Natal Community Crime Prevention Association (hereafter ‘‘theKZNCCPA’’). The KZNCCPA adopted its constitution on 12November 2012 and the salient aims and objectives of theAssociation are to—

(i) encourage social networking in the fight against crimewithin the confines of the law;

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(ii) promote broad public participation in governmentinitiatives to fight crime, including taking part in CPFactivities;

(iii) foster partnerships with the Police Service, civil societyorganisations and business to fight crime; and

(iv) lead the campaign against police killings and policebrutality.

The constitution includes a Code of Conduct, which regulates theconduct of these organisations. Any contravention of which by amember of the KZNCCPA or its representative shall constitutemisconduct and the disciplinary procedure prescribed in theconstitution must be followed.The Honourable Premier of KwaZulu-Natal publicly launched theKZNCCPA on 12 November 2012 to 13 November 2012, whereatthe first election of the Executive Committee was held. Thedepartment subsequently concluded a Memorandum of Under-standing with the Association, which clarified the role of theKZNCCPA.The formation of the KZNCCPA has been met with a measure ofwariness on the part of some CPF members. In order to addressthis challenge, a Memorandum of Understanding was developedto clarify the role of the KZNCCPA as well as the role of the CPFsand to regulate their interaction.

Recent Developments in Community Crime Prevention 23


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LEGAL DOCUMENTS

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THE SOUTH AFRICAN CONSTITUTION:CHAPTER 2—BILL OF RIGHTS

(ss 7–39)

7 Rights(1) This Bill of Rights is a cornerstone of democracy in SouthAfrica. It enshrines the rights of all people in our country andaffirms the democratic values of human dignity, equality andfreedom.(2) The state must respect, protect, promote and fulfil the rights inthe Bill of Rights.(3) The rights in the Bill of Rights are subject to the limitationscontained or referred to in section 36, or elsewhere in the Bill.

8 Application(1) The Bill of Rights applies to all law, and binds the legislature,the executive, the judiciary and all organs of state.(2) A provision of the Bill of Rights binds a natural or a juristicperson if, and to the extent that, it is applicable, taking intoaccount the nature of the right and the nature of any dutyimposed by the right.(3) When applying a provision of the Bill of Rights to a natural orjuristic person in terms of subsection (2), a court—

(a) in order to give effect to a right in the Bill, must apply, orif necessary develop, the common law to the extent thatlegislation does not give effect to that right; and

(b) may develop rules of the common law to limit the right,provided that the limitation is in accordance withsection 36 (1).

(4) A juristic person is entitled to the rights in the Bill of Rights tothe extent required by the nature of the rights and the nature ofthat juristic person.

27

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9 Equality(1) Everyone is equal before the law and has the right to equalprotection and benefit of the law.(2) Equality includes the full and equal enjoyment of all rights andfreedoms. To promote the achievement of equality, legislativeand other measures designed to protect or advance persons, orcategories of persons, disadvantaged by unfair discriminationmay be taken.(3) The state may not unfairly discriminate directly or indirectlyagainst anyone on one or more grounds, including race, gender,sex, pregnancy, marital status, ethnic or social origin, colour,sexual orientation, age, disability, religion, conscience, belief,culture, language and birth.(4) No person may unfairly discriminate directly or indirectlyagainst anyone on one or more grounds in terms of subsection(3). National legislation must be enacted to prevent or prohibitunfair discrimination.(5) Discrimination on one or more of the grounds listed insubsection (3) is unfair unless it is established that thediscrimination is fair.

10 Human dignityEveryone has inherent dignity and the right to have their dignityrespected and protected.

11 LifeEveryone has the right to life.

12 Freedom and security of the person(1) Everyone has the right to freedom and security of the person,which includes the right—

(a) not to be deprived of freedom arbitrarily or without justcause;

(b) not to be detained without trial;

28 The SA Constitution: Chapter 2—Bill of Rights (ss 9–12)


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(c) to be free from all forms of violence from either public orprivate sources;

(d) not to be tortured in any way; and(e) not to be treated or punished in a cruel, inhuman or

degrading way.(2) Everyone has the right to bodily and psychological integrity,which includes the right—

(a) to make decisions concerning reproduction;(b) to security in and control over their body; and(c) not to be subjected to medical or scientific experiments

without their informed consent.

13 Slavery, servitude and forced labourNo one may be subjected to slavery, servitude or forced labour.

14 PrivacyEveryone has the right to privacy, which includes the right not tohave—

(a) their person or home searched;(b) their property searched;(c) their possessions seized; or(d) the privacy of their communications infringed.

15 Freedom of religion, belief and opinion(1) Everyone has the right to freedom of conscience, religion,thought, belief and opinion.(2) Religious observances may be conducted at state orstate-aided institutions, provided that—

(a) those observances follow rules made by the appropriatepublic authorities;

(b) they are conducted on an equitable basis; and(c) attendance at them is free and voluntary.

The SA Constitution: Chapter 2—Bill of Rights (ss 12–15) 29


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(3) (a) This section does not prevent legislation recognising—(i) marriages concluded under any tradition, or a system of

religious, personal or family law; or(ii) systems of personal and family law under any tradition,

or adhered to by persons professing a particularreligion.

(b) Recognition in terms of paragraph (a) must be consistent withthis section and the other provisions of the Constitution.

16 Freedom of expression(1) Everyone has the right to freedom of expression, whichincludes—

(a) freedom of the press and other media;(b) freedom to receive or impart information or ideas;(c) freedom of artistic creativity; and(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to—(a) propaganda for war;(b) incitement of imminent violence; or(c) advocacy of hatred that is based on race, ethnicity,

gender or religion, and that constitutes incitement tocause harm.

17 Assembly, demonstration, picket and petitionEveryone has the right, peacefully and unarmed, to assemble, todemonstrate, to picket and to present petitions.

18 Freedom of associationEveryone has the right to freedom of association.

19 Political rights(1) Every citizen is free to make political choices, which includesthe right—



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(a) to form a political party;(b) to participate in the activities of, or recruit members for,

a political party; and(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections forany legislative body established in terms of the Constitution.(3) Every adult citizen has the right—

(a) to vote in elections for any legislative body establishedin terms of the Constitution, and to do so in secret; and

(b) to stand for public office and, if elected, to hold office.

20 CitizenshipNo citizen may be deprived of citizenship.

21 Freedom of movement and residence(1) Everyone has the right to freedom of movement.(2) Everyone has the right to leave the Republic.(3) Every citizen has the right to enter, to remain in and to resideanywhere in, the Republic.(4) Every citizen has the right to a passport.

22 Freedom of trade, occupation and professionEvery citizen has the right to choose their trade, occupation orprofession freely. The practice of a trade, occupation orprofession may be regulated by law.

23 Labour relations(1) Everyone has the right to fair labour practices.(2) Every worker has the right—

(a) to form and join a trade union;(b) to participate in the activities and programmes of a trade

union; and



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(c) to strike.(3) Every employer has the right—

(a) to form and join an employers’ organisation; and(b) to participate in the activities and programmes of an

employers’ organisation.(4) Every trade union and every employers’ organisation has theright—

(a) to determine its own administration, programmes andactivities;

(b) to organise; and(c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer hasthe right to engage in collective bargaining. National legislationmay be enacted to regulate collective bargaining. To the extentthat the legislation may limit a right in this Chapter, the limitationmust comply with section 36 (1).(6) National legislation may recognise union security arrange-ments contained in collective agreements. To the extent that thelegislation may limit a right in this Chapter the limitation mustcomply with section 36 (1).

24 EnvironmentEveryone has the right—

(a) to an environment that is not harmful to their health orwell-being; and

(b) to have the environment protected, for the benefit ofpresent and future generations, through reasonablelegislative and other measures that—

(i) prevent pollution and ecological degradation;(ii) promote conservation; and(iii) secure ecologically sustainable development and

use of natural resources while promoting justifiableeconomic and social development.



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25 Property(1) No one may be deprived of property except in terms of law ofgeneral application, and no law may permit arbitrary deprivationof property.(2) Property may be expropriated only in terms of law of generalapplication—

(a) for a public purpose or in the public interest; and(b) subject to compensation, the amount of which and the

time and manner of payment of which have either beenagreed to by those affected or decided or approved bya court.

(3) The amount of the compensation and the time and manner ofpayment must be just and equitable, reflecting an equitablebalance between the public interest and the interests of thoseaffected, having regard to all relevant circumstances, including—

(a) the current use of the property;(b) the history of the acquisition and use of the property;(c) the market value of the property;(d) the extent of direct state investment and subsidy in the

acquisition and beneficial capital improvement of theproperty; and

(e) the purpose of the expropriation.(4) For the purposes of this section—

(a) the public interest includes the nation’s commitment toland reform, and to reforms to bring about equitableaccess to all South Africa’s natural resources; and

(b) property is not limited to land.(5) The state must take reasonable legislative and othermeasures, within its available resources, to foster conditionswhich enable citizens to gain access to land on an equitablebasis.(6) A person or community whose tenure of land is legallyinsecure as a result of past racially discriminatory laws or

The SA Constitution: Chapter 2—Bill of Rights (s 25) 33


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practices is entitled, to the extent provided by an Act ofParliament, either to tenure which is legally secure or tocomparable redress.(7) A person or community dispossessed of property after 19June 1913 as a result of past racially discriminatory laws orpractices is entitled, to the extent provided by an Act ofParliament, either to restitution of that property or to equitableredress.(8) No provision of this section may impede the state from takinglegislative and other measures to achieve land, water and relatedreform, in order to redress the results of past racial discrimina-tion, provided that any departure from the provisions of thissection is in accordance with the provisions of section 36 (1).(9) Parliament must enact the legislation referred to in subsection(6).

26 Housing(1) Everyone has the right to have access to adequate housing.(2) The state must take reasonable legislative and othermeasures, within its available resources, to achieve the progres-sive realisation of this right.(3) No one may be evicted from their home, or have their homedemolished, without an order of court made after considering allthe relevant circumstances. No legislation may permit arbitraryevictions.

27 Health care, food, water and social security(1) Everyone has the right to have access to—

(a) health care services, including reproductive health care;(b) sufficient food and water; and(c) social security, including, if they are unable to support

themselves and their dependants, appropriate socialassistance.

(2) The state must take reasonable legislative and othermeasures, within its available resources, to achieve the progres-sive realisation of each of these rights.



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(3) No one may be refused emergency medical treatment.

28 Children(1) Every child has the right—

(a) to a name and a nationality from birth;(b) to family care or parental care, or to appropriate

alternative care when removed from the family environ-ment;

(c) to basic nutrition, shelter, basic health care services andsocial services;

(d) to be protected from maltreatment, neglect, abuse ordegradation;

(e) to be protected from exploitative labour practices;(f) not to be required or permitted to perform work or

provide services that—(i) are inappropriate for a person of that child’s age; or(ii) place at risk the child’s well-being, education,

physical or mental health or spiritual, moral orsocial development;

(g) not to be detained except as a measure of last resort, inwhich case, in addition to the rights a child enjoys undersections 12 and 35, the child may be detained only forthe shortest appropriate period of time, and has the rightto be—

(i) kept separately from detained persons over theage of 18 years; and

(ii) treated in a manner, and kept in conditions, thattake account of the child’s age;

(h) to have a legal practitioner assigned to the child by thestate, and at state expense, in civil proceedingsaffecting the child, if substantial injustice would other-wise result; and

(i) not to be used directly in armed conflict, and to beprotected in times of armed conflict.



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(2) A child’s best interests are of paramount importance in everymatter concerning the child.(3) In this section ‘child’ means a person under the age of 18years.

29 Education(1) Everyone has the right—

(a) to a basic education, including adult basic education;and

(b) to further education, which the state, through reason-able measures, must make progressively available andaccessible.

(2) Everyone has the right to receive education in the officiallanguage or languages of their choice in public educationalinstitutions where that education is reasonably practicable. Inorder to ensure the effective access to, and implementation of,this right, the state must consider all reasonable educationalalternatives, including single medium institutions, taking intoaccount—

(a) equity;(b) practicability; and(c) the need to redress the results of past racially

discriminatory laws and practices.(3) Everyone has the right to establish and maintain, at their ownexpense, independent educational institutions that—

(a) do not discriminate on the basis of race;(b) are registered with the state; and(c) maintain standards that are not inferior to standards at

comparable public educational institutions.(4) Subsection (3) does not preclude state subsidies for indepen-dent educational institutions.



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30 Language and cultureEveryone has the right to use the language and to participate inthe cultural life of their choice, but no one exercising these rightsmay do so in a manner inconsistent with any provision of the Billof Rights.

31 Cultural, religious and linguistic communities(1) Persons belonging to a cultural, religious or linguisticcommunity may not be denied the right, with other members ofthat community—

(a) to enjoy their culture, practise their religion and use theirlanguage; and

(b) to form, join and maintain cultural, religious andlinguistic associations and other organs of civil society.

(2) The rights in subsection (1) may not be exercised in a mannerinconsistent with any provision of the Bill of Rights.

32 Access to information(1) Everyone has the right of access to—

(a) any information held by the state; and(b) any information that is held by another person and that

is required for the exercise or protection of any rights.(2) National legislation must be enacted to give effect to this right,and may provide for reasonable measures to alleviate theadministrative and financial burden on the state.

33 Just administrative action(1) Everyone has the right to administrative action that is lawful,reasonable and procedurally fair.(2) Everyone whose rights have been adversely affected byadministrative action has the right to be given written reasons.(3) National legislation must be enacted to give effect to theserights, and must—



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(a) provide for the review of administrative action by a courtor, where appropriate, an independent and impartialtribunal;

(b) impose a duty on the state to give effect to the rights insubsections (1) and (2); and

(c) promote an efficient administration.

34 Access to courtsEveryone has the right to have any dispute that can be resolvedby the application of law decided in a fair public hearing before acourt or, where appropriate, another independent and impartialtribunal or forum.

35 Arrested, detained and accused persons(1) Everyone who is arrested for allegedly committing an offencehas the right—

(a) to remain silent;(b) to be informed promptly—

(i) of the right to remain silent; and(ii) of the consequences of not remaining silent;

(c) not to be compelled to make any confession oradmission that could be used in evidence against thatperson;

(d) to be brought before a court as soon as reasonablypossible, but not later than—

(i) 48 hours after the arrest; or(ii) the end of the first court day after the expiry of the

48 hours, if the 48 hours expire outside ordinarycourt hours or on a day which is not an ordinarycourt day;

(e) at the first court appearance after being arrested, to becharged or to be informed of the reason for thedetention to continue, or to be released; and

(f) to be released from detention if the interests of justicepermit, subject to reasonable conditions.



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(2) Everyone who is detained, including every sentenced pris-oner, has the right—

(a) to be informed promptly of the reason for beingdetained;

(b) to choose, and to consult with, a legal practitioner, andto be informed of this right promptly;

(c) to have a legal practitioner assigned to the detainedperson by the state and at state expense, if substantialinjustice would otherwise result, and to be informed ofthis right promptly;

(d) to challenge the lawfulness of the detention in personbefore a court and, if the detention is unlawful, to bereleased;

(e) to conditions of detention that are consistent withhuman dignity, including at least exercise and theprovision, at state expense, of adequate accommoda-tion, nutrition, reading material and medical treatment;and

(f) to communicate with, and be visited by, that person’s—(i) spouse or partner;(ii) next of kin;(iii) chosen religious counsellor; and(iv) chosen medical practitioner.

(3) Every accused person has a right to a fair trial, which includesthe right—

(a) to be informed of the charge with sufficient detail toanswer it;

(b) to have adequate time and facilities to prepare adefence;

(c) to a public trial before an ordinary court;(d) to have their trial begin and conclude without unreason-

able delay;(e) to be present when being tried;(f) to choose, and be represented by, a legal practitioner,

and to be informed of this right promptly;



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(g) to have a legal practitioner assigned to the accusedperson by the state and at state expense, if substantialinjustice would otherwise result, and to be informed ofthis right promptly;

(h) to be presumed innocent, to remain silent, and not totestify during the proceedings;

(i) to adduce and challenge evidence;(j) not to be compelled to give self-incriminating evidence;(k) to be tried in a language that the accused person

understands or, if that is not practicable, to have theproceedings interpreted in that language;

(l) not to be convicted for an act or omission that was notan offence under either national or international law atthe time it was committed or omitted;

(m) not to be tried for an offence in respect of an act oromission for which that person has previously beeneither acquitted or convicted;

(n) to the benefit of the least severe of the prescribedpunishments if the prescribed punishment for theoffence has been changed between the time that theoffence was committed and the time of sentencing; and

(o) of appeal to, or review by, a higher court.(4) Whenever this section requires information to be given to aperson, that information must be given in a language that theperson understands.(5) Evidence obtained in a manner that violates any right in theBill of Rights must be excluded if the admission of that evidencewould render the trial unfair or otherwise be detrimental to theadministration of justice.

36 Limitation of rights(1) The rights in the Bill of Rights may be limited only in terms oflaw of general application to the extent that the limitation isreasonable and justifiable in an open and democratic societybased on human dignity, equality and freedom, taking intoaccount all relevant factors, including—



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(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation;(d) the relation between the limitation and its purpose; and(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provisionof the Constitution, no law may limit any right entrenched in theBill of Rights.

37 States of emergency(1) A state of emergency may be declared only in terms of an Actof Parliament, and only when—

(a) the life of the nation is threatened by war, invasion,general insurrection, disorder, natural disaster or otherpublic emergency; and

(b) the declaration is necessary to restore peace and order.(2) A declaration of a state of emergency, and any legislationenacted or other action taken in consequence of that declaration,may be effective only—

(a) prospectively; and(b) for no more than 21 days from the date of the

declaration, unless the National Assembly resolves toextend the declaration. The Assembly may extend adeclaration of a state of emergency for no more thanthree months at a time. The first extension of the stateof emergency must be by a resolution adopted with asupporting vote of a majority of the members of theAssembly. Any subsequent extension must be by aresolution adopted with a supporting vote of at least 60per cent of the members of the Assembly. A resolution interms of this paragraph may be adopted only followinga public debate in the Assembly.

(3) Any competent court may decide on the validity of—(a) a declaration of a state of emergency;



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(b) any extension of a declaration of a state of emergency;or

(c) any legislation enacted, or other action taken, inconsequence of a declaration of a state of emergency.

(4) Any legislation enacted in consequence of a declaration of astate of emergency may derogate from the Bill of Rights only tothe extent that—

(a) the derogation is strictly required by the emergency;and

(b) the legislation—(i) is consistent with the Republic’s obligations under

international law applicable to states of emergency;(ii) conforms to subsection (5); and(iii) is published in the national Government Gazette as

soon as reasonably possible after being enacted.(5) No Act of Parliament that authorises a declaration of a state ofemergency, and no legislation enacted or other action taken inconsequence of a declaration, may permit or authorise—

(a) indemnifying the state, or any person, in respect of anyunlawful act;

(b) any derogation from this section; or(c) any derogation from a section mentioned in column 1 of

the Table of Non-Derogable Rights, to the extentindicated opposite that section in column 3 of the Table.

Table of Non-Derogable Rights

1Sectionnumber

2Section title

3Extent to which the right is

non-derogable9 Equality With respect to unfair discrimi-

nation solely on the grounds ofrace, colour, ethnic or socialorigin, sex, religion or language

10 Human dignity Entirely11 Life Entirely

42 The SA Constitution: Chapter 2—Bill of Rights (s 37)


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1Sectionnumber

2Section title

3Extent to which the right is

non-derogable12 Freedom and secu-

rity of the personWith respect to subsections (1)(d) and (e) and (2) (c)

13 Slavery, servitudeand forced labour

With respect to slavery andservitude

28 Children With respect to:— subsection (1) (d) and (e);— the rights in subparagraphs

(i) and (ii) of subsection (1)(g); and

— subsection (1) (i) in respectof children of 15 years andyounger.

35 Arrested, detainedand accused per-sons

With respect to:— subsections (1) (a), (b) and

(c) and (2) (d);— the rights in paragraphs (a)

to (o) of subsection (3),excluding paragraph (d);

— subsection (4); and— subsection (5) with respect

to the exclusion of evidenceif the admission of that evi-dence would render the trialunfair.

(6) Whenever anyone is detained without trial in consequence ofa derogation of rights resulting from a declaration of a state ofemergency, the following conditions must be observed:

(a) An adult family member or friend of the detainee mustbe contacted as soon as reasonably possible, andinformed that the person has been detained.

(b) A notice must be published in the national GovernmentGazette within five days of the person being detained,stating the detainee’s name and place of detention andreferring to the emergency measure in terms of whichthat person has been detained.

(c) The detainee must be allowed to choose, and be visitedat any reasonable time by, a medical practitioner.



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(d) The detainee must be allowed to choose, and be visitedat any reasonable time by, a legal representative.

(e) A court must review the detention as soon as reason-ably possible, but no later than 10 days after the datethe person was detained, and the court must releasethe detainee unless it is necessary to continue thedetention to restore peace and order.

(f) A detainee who is not released in terms of a reviewunder paragraph (e), or who is not released in terms ofa review under this paragraph, may apply to a court fora further review of the detention at any time after 10days have passed since the previous review, and thecourt must release the detainee unless it is stillnecessary to continue the detention to restore peaceand order.

(g) The detainee must be allowed to appear in personbefore any court considering the detention, to berepresented by a legal practitioner at those hearings,and to make representations against continued deten-tion.

(h) The state must present written reasons to the court tojustify the continued detention of the detainee, and mustgive a copy of those reasons to the detainee at least twodays before the court reviews the detention.

(7) If a court releases a detainee, that person may not bedetained again on the same grounds unless the state first showsa court good cause for re-detaining that person.(8) Subsections (6) and (7) do not apply to persons who are notSouth African citizens and who are detained in consequence ofan international armed conflict. Instead, the state must complywith the standards binding on the Republic under internationalhumanitarian law in respect of the detention of such persons.

38 Enforcement of rightsAnyone listed in this section has the right to approach acompetent court, alleging that a right in the Bill of Rights has



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been infringed or threatened, and the court may grant appropri-ate relief, including a declaration of rights. The persons who mayapproach a court are—

(a) anyone acting in their own interest;(b) anyone acting on behalf of another person who cannot

act in their own name;(c) anyone acting as a member of, or in the interest of, a

group or class of persons;(d) anyone acting in the public interest; and(e) an association acting in the interest of its members.

39 Interpretation of Bill of Rights(1) When interpreting the Bill of Rights, a court, tribunal orforum—

(a) must promote the values that underlie an open anddemocratic society based on human dignity, equalityand freedom;

(b) must consider international law; and(c) may consider foreign law.

(2) When interpreting any legislation, and when developing thecommon law or customary law, every court, tribunal or forummust promote the spirit, purport and objects of the Bill of Rights.(3) The Bill of Rights does not deny the existence of any otherrights or freedoms that are recognised or conferred by commonlaw, customary law or legislation, to the extent that they areconsistent with the Bill.



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THE SOUTH AFRICAN CONSTITUTION:CHAPTER 11—SECURITY SERVICES

(ss 198–210)

198 Governing principlesThe following principles govern national security in the Republic:

(a) National security must reflect the resolve of SouthAfricans, as individuals and as a nation, to live asequals, to live in peace and harmony, to be free fromfear and want and to seek a better life.

(b) The resolve to live in peace and harmony precludes anySouth African citizen from participating in armedconflict, nationally or internationally, except as providedfor in terms of the Constitution or national legislation.

(c) National security must be pursued in compliance withthe law, including international law.

(d) National security is subject to the authority of Parlia-ment and the national executive.

199 Establishment, structuring and conduct of secu-rity services

(1) The security services of the Republic consist of a singledefence force, a single police service and any intelligenceservices established in terms of the Constitution.(2) The defence force is the only lawful military force in theRepublic.(3) Other than the security services established in terms of theConstitution, armed organisations or services may be estab-lished only in terms of national legislation.(4) The security services must be structured and regulated bynational legislation.

46

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(5) The security services must act, and must teach and requiretheir members to act, in accordance with the Constitution and thelaw, including customary international law and internationalagreements binding on the Republic.(6) No member of any security service may obey a manifestlyillegal order.(7) Neither the security services, nor any of their members, may,in the performance of their functions—

(a) prejudice a political party interest that is legitimate interms of the Constitution; or

(b) further, in a partisan manner, any interest of a politicalparty.

(8) To give effect to the principles of transparency and account-ability, multi-party parliamentary committees must have oversightof all security services in a manner determined by nationallegislation or the rules and orders of Parliament.

Defence (ss 200–204)

200 Defence force(1) The defence force must be structured and managed as adisciplined military force.(2) The primary object of the defence force is to defend andprotect the Republic, its territorial integrity and its people inaccordance with the Constitution and the principles of interna-tional law regulating the use of force.

201 Political responsibility(1) A member of the Cabinet must be responsible for defence.(2) Only the President, as head of the national executive, mayauthorise the employment of the defence force—

(a) in co-operation with the police service;(b) in defence of the Republic; or(c) in fulfilment of an international obligation.

The SA Constitution: Chapter 11—Security Services (ss 199–201) 47


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(3) When the defence force is employed for any purposementioned in subsection (2), the President must inform Parlia-ment, promptly and in appropriate detail, of—

(a) the reasons for the employment of the defence force;(b) any place where the force is being employed;(c) the number of people involved; and(d) the period for which the force is expected to be

employed.(4) If Parliament does not sit during the first seven days after thedefence force is employed as envisaged in subsection (2), thePresident must provide the information required in subsection (3)to the appropriate oversight committee.

202 Command of defence force(1) The President as head of the national executive isCommander-in-Chief of the defence force, and must appoint theMilitary Command of the defence force.(2) Command of the defence force must be exercised inaccordance with the directions of the Cabinet member respon-sible for defence, under the authority of the President.

203 State of national defence(1) The President as head of the national executive may declarea state of national defence, and must inform Parliament promptlyand in appropriate detail of—

(a) the reasons for the declaration;(b) any place where the defence force is being employed;

and(c) the number of people involved.

(2) If Parliament is not sitting when a state of national defence isdeclared, the President must summon Parliament to an extraor-dinary sitting within seven days of the declaration.(3) A declaration of a state of national defence lapses unless it isapproved by Parliament within seven days of the declaration.

48 The SA Constitution: Chapter 11—Security Services (ss 201–203)


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204 Defence civilian secretariatA civilian secretariat for defence must be established by nationallegislation to function under the direction of the Cabinet memberresponsible for defence.

Police (ss 205–208)

205 Police service(1) The national police service must be structured to function inthe national, provincial and, where appropriate, local spheres ofgovernment.(2) National legislation must establish the powers and functionsof the police service and must enable the police service todischarge its responsibilities effectively, taking into account therequirements of the provinces.(3) The objects of the police service are to prevent, combat andinvestigate crime, to maintain public order, to protect and securethe inhabitants of the Republic and their property, and to upholdand enforce the law.

206 Political responsibility(1) A member of the Cabinet must be responsible for policing andmust determine national policing policy after consulting theprovincial governments and taking into account the policingneeds and priorities of the provinces as determined by theprovincial executives.(2) The national policing policy may make provision for differentpolicies in respect of different provinces after taking into accountthe policing needs and priorities of these provinces.(3) Each province is entitled—

(a) to monitor police conduct;(b) to oversee the effectiveness and efficiency of the police

service, including receiving reports on the policeservice;

(c) to promote good relations between the police and thecommunity;



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(d) to assess the effectiveness of visible policing; and(e) to liaise with the Cabinet member responsible for

policing with respect to crime and policing in theprovince.

(4) A provincial executive is responsible for policing functions—(a) vested in it by this Chapter;(b) assigned to it in terms of national legislation; and(c) allocated to it in the national policing policy.

(5) In order to perform the functions set out in subsection (3), aprovince—

(a) may investigate, or appoint a commission of inquiry into,any complaints of police inefficiency or a breakdown inrelations between the police and any community; and

(b) must make recommendations to the Cabinet memberresponsible for policing.

(6) On receipt of a complaint lodged by a provincial executive, anindependent police complaints body established by nationallegislation must investigate any alleged misconduct of, or offencecommitted by, a member of the police service in the province.(7) National legislation must provide a framework for theestablishment, powers, functions and control of municipal policeservices.(8) A committee composed of the Cabinet member and themembers of the Executive Councils responsible for policing mustbe established to ensure effective co-ordination of the policeservice and effective co-operation among the spheres ofgovernment.(9) A provincial legislature may require the provincial commis-sioner of the province to appear before it or any of its committeesto answer questions.

207 Control of police service(1) The President as head of the national executive must appointa woman or a man as the National Commissioner of the policeservice, to control and manage the police service.

50 The SA Constitution: Chapter 11—Security Services (ss 206–207)


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(2) The National Commissioner must exercise control over andmanage the police service in accordance with the nationalpolicing policy and the directions of the Cabinet memberresponsible for policing.(3) The National Commissioner, with the concurrence of theprovincial executive, must appoint a woman or a man as theprovincial commissioner for that province, but if the NationalCommissioner and the provincial executive are unable to agreeon the appointment, the Cabinet member responsible for policingmust mediate between the parties.(4) The provincial commissioners are responsible for policing intheir respective provinces—

(a) as prescribed by national legislation; and(b) subject to the power of the National Commissioner to

exercise control over and manage the police service interms of subsection (2).

(5) The provincial commissioner must report to the provinciallegislature annually on policing in the province, and must send acopy of the report to the National Commissioner.(6) If the provincial commissioner has lost the confidence of theprovincial executive, that executive may institute appropriateproceedings for the removal or transfer of, or disciplinary actionagainst, that commissioner, in accordance with national legisla-tion.

208 Police civilian secretariatAcivilian secretariat for the police service must be established bynational legislation to function under the direction of the Cabinetmember responsible for policing.



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Intelligence (ss 209–210)

209 Establishment and control of int