Question NW3041 to the Minister of Justice and Correctional Services
26 October 2023 - NW3041
Herron, Mr BN to ask the Minister of Justice and Correctional Services
(1) Whether, with reference to section 199(1) of the Constitution of the Republic of South Africa, 1996 (details furnished), section 334 of the Criminal Procedure Act (CPA), Act 51 of 1977 (details furnished), and Government Notice No 1114 of 19 October 2018 in particular, which provides for the appointment of law enforcement officers appointed by municipalities as peace officers in terms of section 334 of the CPA, municipalities may rely on any other legislation to create law enforcement officers for appointment by municipalities; if not, what (a) is the definition of law enforcement officers as defined by his department and (b) provisions do they rely upon to hold an office that has been declared for peace officers in terms of section 334 of the CPA; if so, what legislation; (2) whether any municipality may rely on any national legislation to establish a security service known as law enforcement officers for appointment by municipalities; if not, (a) what is the definition upon which the municipality relies to declare them peace officers, by virtue of their office as law enforcement officers appointed by municipalities in the specified Government Notice in terms of the CPA, (b) under what authority did the previous Minister of Justice and Correctional Services act to extend peace officer powers to such persons and (c) does he intend to rescind the relevant Government Notice;
Reply:
(a) A municipality is empowered to establish a municipal police service in terms of Chapter 12 of the SAPS Act.
(b) The expression law enforcement officer must be interpreted in the confines of section 334 of the CPA and other applicable legislation, for instance, the SAPS Act, the Constitution of the Republic of South Africa, 1996, and the National Road Traffic Act, 1996 (Act No. 93 of 1996) (the applicable legislation).
(c) In terms of the applicable legislation a municipality cannot establish a criminal investigation unit that is not a municipal police service as contemplated in Chapter 12 of the SAPS Act, and the Notice cannot confer powers on a municipality to establish such a criminal investigation unit.
(d) In terms of the interpretation in paragraph (b), the expression means—
(i) a member of a municipal police service, established as a municipal police service in terms of Chapter 12 of the SAPS Act; and
(ii) a traffic officer, reserve traffic officer, traffic warden and reserve traffic warden contemplated in the NRT Act, appointed by a municipality.
(e) A member of a municipal criminal investigation unit, which has not been established as a municipal police service in terms of Chapter 12 of the SAPS Act, cannot for purposes of the Notice be regarded as a peace officer.
(f) Section 334(2)(a) of the CPA provides that a person who is a peace officer is only authorised to exercise the power of a peace officer if he or she is in possession of a certificate of appointment issued by his or her employer. The Minister has in terms of the Notice, in terms of section 334(3)(a) of the CPA, prescribed that a certificate of appointment referred to in section 334(2)(a) of the CPA can only be issued if the employer of a "law enforcement officer appointed by municipality" has been furnished with a certificate of competency by the National Commissioner of the South African Police Service in which it is stated that such a "law enforcement officer appointed by municipality" is competent to exercise the powers conferred upon a peace officer in terms of the Notice.
I do not intend to withdraw the Notice as issued by the then Minister of Justice.