Municipal Law Enforcement Officer powers: IMPS-SA briefing; Criminal Procedure Amendment Bill: briefing, with Deputy Minister of Justice

Meeting report

IMPS-SA: Increasing powers of municipal law enforcement officers

Dr Ntobeko Stemele, President: Institute for Municipal Public Safety Southern Africa (IMPS-SA), said that IMPS-SA had been established in 1983. It was a voluntary association of local governments and had been recognized by the South African Local Government Association (SALGA) as a professional body that represented municipal public safety officers, inclusive of traffic and public safety officers. The partnership between local governments and professional bodies was crucial for supporting transformation in local development, by building capacity of local government practitioners in enhancing service delivery.

IMPS-SA operated according to its constitutions, code of practice, code of conduct and promotional pyramid for all law enforcement officers. It held its elections every two years, in line with its succession plan, where any potential candidate for the presidency of IMPS-SA should have been with the institution for about 8-10 years.

Mr Rudolf Wiltshire, Chief: Law Enforcement Services, City of Cape Town, IMPS-SA, said that the presentation represented all national law enforcement agencies from all the municipalities. The law enforcement department had been established in 1970 in the City of Cape Town, and from 1973/74, other departments in the city had adopted law enforcement officers as part of their staff, with the functional responsibility of enforcing against anti-social behaviour in parks, forests and beaches. With the rapid development of law enforcement around 1975, many departments adopted more functional responsibilities. The functions adopted ranged from access control to responding to break-ins. In 2000, the Metro-Police was formed and the traffic and law enforcement officers went on a bridging course, which turned many of them into city police officers. In 2006, the Metro police was dismantled for fear that it may be incorporated into the SA Police Service (SAPS) in Cape Town.

In 2006, it was observed that the officers could perform functions close to those of the SAPS and traffic departments, so a specialized unit had been established in the law enforcement department to deal with certain problematic areas. Some of the units formed were the vice squad, the liquor unit, the informal training unit and the anti-land invasion unit. In 2010, the departments of law enforcement for the specialized units were amalgamated. The Institute had grown to around 1 000 staff members and 14 specialised units.

The Chairperson expressed his concern that the presentation was too concentrated on the City of Cape Town, and requested that it proceed to highlight what IMPS-SA was, and its request to the Committee.

Mr Wiltshire said Cape Town was only being used as an example, and IMPS-SA was representing law enforcement nationwide.

In the review of law enforcement powers in 2002, section 3(3)(vi) of the General Procedure Act provided for the current powers of law enforcement. They had the power to issue written notices, fines and execute arrest warrants in certain circumstances. However, they did not have powers in respect of dealing with house or car break-ins, or with persons who were suspected of dealing in stolen property. This had stifled their performance in the field. They also did not have powers to deal with animals that were suspected of being stolen, or for checking on gambling licences in business establishments. The law enforcement departments also could not deal with people suspected of being illegal immigrants.

Ms T Mokwele (EFF) said that the presentation should be should be presented to the various metros and not to the Committee, since it dealt with the legislative mandate and did not have to see the operation itself.

Mr Wiltshire apologised and said that the presentation was intended to be a foundation and provide a basis to demonstrate first why IMPS-SA needed the additional powers.

Mr J Mthethwa (ANC) noted that the Committee should have been given the models of other cities as well and not just Cape Town.

Mr Alvin Rapea, Secretary for Police Service, Civilian Secretariat for Police, said that the Minister of Police, in his budget vote for 2012, had noted that one of his priorities was to ensure the finalisation of the discourse on a single police service. There had been a discussion document developed and the local governments had already been engaged on this issue.

Mr Sarel Robbertse, Legal Advisor: Department of Justice and Constitutional Development (DoJ&CD), said that under the Criminal Procedure Act, a peace officer could be a magistrate, police official, correctional service official or any other persons declared as such by the Minister of Justice and Correctional Services under the Act. The presentation to the Committee should have been submitted to the Minister for consideration.

The specific policy considerations regarding the appointment of peace officers were that the SAPS had an overriding constitutional mandate to protect the country against crime. The police service was therefore the first, or default, agency to investigate crime.

The second consideration would relate to the degree of competency of the person being appointed as a peace officer under the Government Notice of 19 February 2002. SAPS had to ensure that such a person had the necessary competence to deal with the offences, as well as the powers to investigate the offences. The third consideration was whether there was a specific need to appoint such persons as peace officers. Another consideration would be whether there would be an infringement on the authority of SAPS, and what service in particular they would be providing to SAPS.

Ms Portia Lisese, Head: Legislation, SAPS, said that the schedule of the Act regarding the powers needed to be amended. The expansion of up to 50 nautical miles was not within reasonable expectations, since SAPS operated up to only 25 nautical miles. The United Nations convention on the Law of the Sea also stated that a country’s territorial waters was up to 12 nautical miles, which was also in line with the South African Maritime Zone Act. IMPS-SA’s request went beyond this.

It was unclear which particular powers IMPS-SA was requesting, since most of the powers requested were investigatory. Also, any further powers, and IMPS-SA would have the same powers as SAPS, and would be keeping exhibits among other wide powers reserved for the police. The proposal of IMPS-SA to extend its powers, in its current form, was not supported.

Discussion

Mr G Michalakis (DA, Free State) said that the police were not capable of dealing with all crime related matters in a sufficiently swift and effective way, and therefore needed assistance. He enquired why officers who had been properly trained could not assist the police, working in parallel to help them.

Mr M Mhlanga (ANC, Mpumanalga) said that there were instances where there was a need for assistance from the municipal police in issues such as riot control or unrest issues, or even for signing affidavits. IMPS-SA’s request for additional powers as law enforcement officers was only to render assistance, and not to take away any powers. Its request should be referred to the Department of Justice so as to determine the propriety of allocating these additional powers.

Ms Mokwele said she was confused about the mandates of the various institutions represented. She was concerned about the manner in which IMPS-SA officers were seen to be evicting residents. Giving additional powers to IMPS-SA without any guiding legislation would be giving them unfettered power. The Committee should take more time to conduct research, as the presentation had not been convincing enough.

Mr M Monakedi (ANC, Limpopo) asked whether IMPS-SA’s area of operation extended outside South Africa to other Southern African Development Community (SADEC) countries, and whether they would be forwarding the same proposals to the other countries. He said that IMPS-SA should have approached the various relevant departments first, and then approached the Committee together afterwards to make their proposal, to enable the Committee deal with the substantive matters. The Department would then have been the one requesting the legislative amendments and the Committee would have invited IMPS-SA as a relevant stakeholder.

The Chairperson clarified that IMPS-SA had made the proposal, which the Committee had thereafter referred to the DoJ&CD. However, the Department of Police had never been invited.

Ms T Wana (ANC) sought clarity on the relationship between IMPS-SA, the SPS and security companies with regard to service level agreements. The Committee should set up a separate day to go through the documentation presented so as to gain a better understanding of what was being requested. IMPS-SA should also refine and update their documents, since they appeared to be outdated.

Mr Mthethwa agreed that the Committee needed further research on the proposals presented.

Mr Michalakis commented that it was not IMPS-SA’s fault that their establishing Act sated back to 1970. He was seeking clarification on the need for additional assistance for the police.

The Chairperson said that the Committee would need more time to deliberate and conduct research on the proposals made. However, there was a misunderstanding of the difference between the municipal police and law enforcement. Municipal police were those found in metros and were employed under the Municipalities Act, whereas law enforcement fell under the Department of Justice’s peace officers.

Mr Neil Arendse, Manager: Transport Enforcement, City of Cape Town, IMPS-SA, said that they were speaking on behalf of law enforcement and not police. There were other divisions -- the metro police, the traffic police and law enforcement -- which were currently under consideration by the secretariat for amalgamation into one single police force. This would affect the metro police service and the municipal police, which operated under the SAPS Act, while law enforcement operated under the Criminal Procedure Act. The challenges facing law enforcement had evolved to meet the demand for service which had been stifled by the legislation not keeping up with the evolution of those challenges.

IMPS-SA was not requesting for any investigative powers. Law enforcement’s primary skills training had also been expanded to six months of theoretical training, which was similar to that of SAPS, and a further 12 months of practical field training before certifying a person as a law enforcement officer. IMPS-SA was requesting powers to assist in the management of anti-social behaviour, among other social vices, in order to be able to intervene in certain situations that confronted its officers in the field. It was also not opposed to reducing its area of operation to 12 nautical miles, if that was the prescribed standard.

Currently, the law enforcement officer was appointed as a traffic warden and as a peace officer. IMPS-SA’s proposal was to consolidate these two appointments into just one appointment, since the officers underwent the same standard training. IMPS-SA was not asking to become SAPS or traffic officers. It sought powers to act only in the event it found drugs or firearms when visiting premises, and also to deal with the demand that was placed on law enforcement officers nationwide.

Mr Wiltshire said that IMPS-SA should meet with the Department of Police and discuss the powers that were being requested.

Mr Lincoln Stander, Chief Executive Officer: IMPS-SA, said that IMPS-SA worked with SADC countries. Security and law enforcement officers were combined in most of the municipalities. There was a dire need for more support for law enforcement to deal with people in the rural areas due to inadequate attention from SAPS, whose presence on the ground was sparse as its attention was divided throughout the country.

Dr Ntobeko Stemele, President, IMPSA, the municipality have the mandate to ensure the safety of the communities within their jurisdictions. The police have been unable to execute some of the legislations and by laws being passed by local governments and that was why IMPS-SA was requesting for powers to assist to this extent.

Mr Rapea said that the Civilian Secretariat for the Police Service had the responsibility to coordinate the White Paper on safety and security. The Department was not opposed to any assistance, since it would be a force multiplier in dealing with crime.  The Department was responsible for the Security Industry Regulatory Authority (SIRA) which was the private security regulatory authority, which regulated how private security did its work.

The Chairperson said that the Committee may call upon the departments in future to be briefed on the resolution of their discussions regarding the proposals.

Mr Robbertse said that the function to declare someone as a police officer was in the domain of the Minister of Justice. The Department would therefore consider the presentation and make a final decision, since the Committee did not have a mandate to review the powers of the Minister.

The Chairperson said that the matter was before the Committee and regardless of the Minister’s powers, the Department should report back to the Committee on this issue.

DoJ&CD on the Criminal Procedure Amendment Bill

Mr Henk du Preez, Senior State Law Advisor: DoJ&CD, said that the presentation was informed by two criminal cases -- the De Vos NO and others v Minister of Justice and Constitutional Development and others [2015] ZACC 21 and the S v Pedro [2014] JOL 32061 (WCC) case. The Criminal Procedure Amendment Bill attempted to amend section 77- 79 of the Criminal Procedure Act. The sections dealt with situations where there was doubt over the mental capacity of the accused person during a trial, or when the offence was committed. Both sections required the mental capacity of the accused to be investigated and reported back to the court in accordance with the respective applicable sections.

Section 77 provided that in the event a court finds that a defendant does not have the proper mental capacity to afford himself a proper defence, the court can only order the person to be detained in a psychiatric hospital or prison. The constitutional court in the De Vos case found this provision unconstitutional, as it affects the dignity of the individual concerned and deprives the court of the opportunity to consider the case in front of it. Section 78 gives the court more options in consideration of the accused personal circumstances.

The Pedro Case went up to the high court, where section 79 was considered with regard to the panel of experts that had to look into the mental capacity of the person concerned. The provision was quite clear for minor offences, and provided that it would be the head of a psychiatric hospital who would investigate the mental capacity and report back to the court. However, for offences such as murder and rape, among others, a panel was established. The Bill tried to provide clarity on the establishment of this panel as well.

The Bill corrected certain terminologies, such as ‘mental defect’ being replaced with ‘mental disability,’ and also addressed certain options the court had in situations where the accused person was not capable of understanding the criminal proceedings. The amendment was also in line with the Mental Health Care Act, after a task team had been established with representatives from the Departments of Justice, Health and Correctional Services, and the National Prosecuting authority.

Discussion

The Committee Content Advisor said that there had been only four submissions on the Bill from private individuals. The first submission had highlighted the need to involve more women and children, as they were affected by the Bill. The second submission recommended an amendment for the protection of witnesses and victims of crime and individuals that took the law into their own hands, specifically whistle blowers. The third submission recommended the return of the death penalty as a deterrent to child rapists. The fourth and final submission enquired about the Bill’s intention to provide more facilities for mental health and the needs of society in general.

Mr Monakedi said that the amendments were necessary in light of the two judgments presented. He enquired whether there had been stakeholder participation, in particular with the Department of Public Service and Administration (DPSA). He also asked for clarity on the circumstance where, if the head of the facility was a psychiatrist, he could still delegate the responsibility of examining and reporting back to the court.

Mr Du Preez said that the wording of the Bill was open, and therefore allowed for delegation. With regard to consultation, the task team had been established because there were many practical questions. There had also been public consultation, but no particular institutions had been approached individually as the opportunity had been provided on the Department’s website. There had been only two submissions from the general public -- from the Commission for Gender Equality and another institution. There had also been submissions to the Committee, but these recommendations had not fallen within the ambit of the Bill.

Mr Mhlanga asked whether the Bill was a section 75 Bill.

The Chairperson confirmed that it was a section 75 Bill

Ms G Manopole (ANC, Northern Cape) asked when the Committee could expect an amendment to the Bill that would cover witness protection. She also asked whether the Committee should take the submission made on the Bill as adequate and proper consultation, or if the Members were at liberty to make their own consultations.

Ms Mokwele said that according to the constitution, the Bill needed to be properly communicated to the provinces. She asked whether the Members still had adequate time to make consultations in order to do the Bill justice. The context in the submissions presented showed that the people were not properly informed on what the Bill sought to amend. Bills were normally advertised in national newspapers, but this limited the awareness of people living in rural areas who depended solely on local newspapers.

Mr Gurshwyn Dixon, Committee Secretary, said that there was a constitutional deadline of 26 June 2017. The Bill had been referred from the National Assembly on 11 May through the approval process, and had been published in both national and rural newspapers in all 11 official languages, on 23 May. However, the Members could decide if the public participation process for the Bill had been sufficient for them. However, there was a financial cost on the provincial legislatures when taking back section 75 Bills to the provinces which would have to be consulted with them before the Committee proceeded with that option.

Ms Mokwele said that despite the constitutional timeframes, it would be an injustice to the people, since the publication of the Bill had been done within a short span of time. The National Assembly should not pressure the Committee to pass the Bill, since it had spent most of the time allocated for the processing of the Bill.

Mr Monakedi proposed that the Committee proceeded with the Bill as planned, considering the time constraints.

Ms Wana said that the people on the ground needed consultation, and there was still ample time before the constitutional deadline.

Mr Mthethwa suggested that the Committee proceed with the Bill, since everything needed to be done had been complied with.

Ms B Engelbrecht (DA, Gauteng) opposed the proposed suggestions, and said that the Committee had a constitutional mandate to perform public consultations. The time constraints were not adequate to set up public hearings within the two weeks left.

The Chairperson said that despite the need for public consultation, due to time constraints the Committee should proceed with the Bill, but should emphasise that in future, it should be allocated more time to conduct public consultation for section 75 Bills.

Mr John Jeffery, Deputy Minister, DoJ&CD, clarified that there was no constitutional mandate for consultation for section 75 Bills, but rather section 76 Bills. The National Council of Provinces (NCOP) also did not amend section 75 Bills, but only suggested amendments which the National Assembly could accept or reject. There was therefore no requirement to take the Bill back to the provinces, as would have been the case with section 76 Bills. The Bill was a technical bill, and mainly proposed a word change from ‘mental defect’ to ‘intellectual disability,’ and gave effect to two judgments relating to the composition of a panel. None of the submissions presented had suggested any amendments relevant to the Bill, and even if the Committee wanted to adopt the amendments, they would have to seek approval from the National Assembly. Most of the suggestions around the Bill were an attempt to frustrate the passing of the Bill.

Ms Monopole said she was in agreement with the amendment, as the explanation had clarified any residual doubts.

Ms Engelbrecht insisted that it was still the Members’ responsibility to conduct public consultations with their provinces

Mr Monakedi agreed that the Deputy Minister had sufficiently clarified the position of the Bill, and proposed that the Committee concluded on this issue.

The Chairperson said that the Committee had considered the report on the draft regulations made in terms of the Legal Aid South Africa Act, and proposed its adoption.

The report was adopted without amendments.

The meeting was adjourned.