Question NW1628 to the Minister of Justice and Correctional Services
03 July 2023 - NW1628
Herron, Mr BN to ask the Minister of Justice and Correctional Services
Whether, considering that the Gauteng Provincial Government (GPG) reported that it has recently appointed 4 000 Crime Prevention Wardens (CPWs) who are Peace Officers in terms of section 334 of the Criminal Procedure Act (CPA), Act 51 of 1997, and noting that according to media reports the crime prevention team was also established in terms of the specified section of the specified Act, furthermore noting that with reference to his reply to question 1802 on 3 June 2022, that in terms of Part 5(a) of the Schedule to Government Notice No. R209 of 19 February 2002, law enforcement officers appointed by municipalities were in terms of section 334 of the CPA declared Peace Officers within the area of a local authority to exercise certain law enforcement functions, he has issued a notice in the Government Gazette to declare that any person who is appointed a CPW by the GPG shall be a Peace Officer; if not, (a)(i) in terms of which category of defined in column 1 of Government Notice No. R209 may the CPWs rely in order to qualify to be Peace Officers in accordance with the specified Act and (ii) which powers do they exercise in respect of which offences and (b) considering that CPWs are not persons who hold any office in terms of any existing notice issued in terms of section 334 of the CPA, then how do the CPWs qualify as Peace Officers; (2) Whether the GPG’s establishment of CPWs relies on any provisions of the CPA; if so, what are the relevant details in this regard; if not, (3) Whether he will take any steps in this regard; if not, why not; if so, what steps; (4) With reference to paragraph 4.2 of his reply to question 1802 on 3 June 2022, wherein he indicates that sections 199(1) and 199(3) of the Constitution of the Republic of South Africa, 1996, provide that the security services of the Republic consist of a single police service and that security services, other than those established in terms of the Constitution, may be established only in terms of national legislation, on what legislation has the GPG relied to establish a security service?
Reply:
(1) – (4)
It is important to note that law enforcement in South Africa is primarily the responsibility of the South African Police Service (“the SAPS”). SAPS is responsible for investigating crime and security throughout the country. The police service is crucial for the safety of South Africa's citizens and was established in accordance with the provisions of Section 205 of the Constitution. The Constitution of the Republic of South Africa, 1996, also states that the police’s responsibilities are to prevent, combat and investigate crime; maintain and protect the public, their property and the overall security and safety of the Republic; uphold and enforce the law. Sometimes this function, which is a preserve of the police, is entrusted to other entities in terms of section 334 of the CPA. This is to assist the police in the primary function of keeping law and order.
Such appointment only confers police powers to appointees to enforce police functions where police are assisted in their mandate by additional resources. Appointment does not make appointees police officials as stipulated in the South African Police Service Act, 1995, (Act No. 68 of 1995) (“the Police Act”). An enabling provision in law should guide appointment of law enforcement officers as peace officers. This would be followed by a formal process of appointment requiring a formal request and approval of the Minister of Justice and Correctional Services, in consultation with the Minister of Police before permission can be granted and subsequently published in the Gazette. Only then will the appointees be regarded as peace officers. The Department of Justice is not aware of any formal request or application to declare CPWs as peace officers.
Municipal Police
Metropolitan municipalities can apply to the Member of Executive Council responsible for safety and security to and establish their own municipal police units, which are tasked mainly with traffic policing and the enforcement of municipal bylaws. Municipal police have fewer powers than the South African Police Service, and do not investigate major crimes. They work in co-operation with the South African Police Service to prevent crime and maintain public order.
Section 206 of the Constitution provides that national legislation must provide a framework for the establishment, powers, functions, and control of municipal police services. The procedure for establishing a municipal police service is laid down in the South African Police Service Amendment Act of 1998. This law allows municipalities to apply to the government of the relevant province for permission to establish a municipal police service. The Minister of Police may approve the application, after consultation with the National Commissioner of the South African Police Service.
Do crime prevention wardens qualify as peace officers?
The question whether crime prevention wardens recently appointed by Gauteng Provincial Government qualify as peace officers as stipulated by section 334 of the CPA or not is as follows:
As stated in the foregoing paragraphs, the Department has not received any formal request in this regard and thus it is our submission that for an appointment to be made there must have been compliance with the requirements laid down in section 334 of the CPA. Until that process is adhered to, such personnel would not qualify as peace officers.
It is also worth noting that it falls outside my mandate to state that the appointees form part of the municipality police or are traffic wardens or are appointed as law enforcement officers. I am unaware whether there was consultation of the Member of Executive Council with the Commissioner of Police in terms of section 64A(2)(a) of the Police Act or not, for permission for such appointment. This falls within the mandate of the Minister of Police.