Should municipal police have the same investigative powers as the SAPS?

Municipalities such as the City of Cape Town (CoCT) have for many years attempted to circumvent the rule of law in order to criminalise and police those who are vulnerable and economically disenfranchised. The rule of law restricts the arbitrary use of excessive power and mandates that laws be clear, concise and accessible. Does the mandate of a metro police service extend to conducting criminal investigations similar to that of the South African Police Services (SAPS)? 

The City of Cape Town is in the process of amending its Streets, Public Places and the Prevention of Noise Nuisances By-law. The new proposed amendment, in Section 22(4) and (5), raises pressing concerns around the powers and functions afforded to metro police and law enforcement in general. There are some serious concerns, in particular regarding the mandate of Cape Town’s Metropolitan Police powers to conduct criminal investigations. 

Section 22(5) of the new proposed amendment deals with the investigative powers and function of Cape Town’s Metro Police service. The section would allow for the authorised official to inspect any article which may be relevant to an investigation, examine, analyse, measure or make a copy of an article and remove it for examination, analysis, measurement, copying or extraction, take a photograph or make an audio-visual recording of any person or anything for his or her investigation.

The proposed amendment further allows an authorised officer to direct a person to appear before him or her at such a time and place as may be determined by the officer and question such person either alone or in the presence of any other person on a matter to which this by-law relates.

The mandate and powers of municipal police services are outlined in the SAPS Act, 68 of 1995 (the SAPS Act). The legislative functions of a municipal police service are traffic policing, policing of municipal by-laws and regulations and preventing crime. The act is silent on whether a metro police service can conduct criminal investigations as outlined in the new proposed amendments in the City of Cape Town’s proposed by-law. In terms of the SAPS Act, after an arrest is made by a member of a municipal police service, with or without a warrant, a person must be brought to a police station under the control of the SAPS. 

The Minister of Police can also, in terms of the SAPS Act, prescribe which part of the SAPS Act would apply to municipal police services and could make regulations regarding their creation. The SAPS Act does not provide clear detail of what powers the minister can afford metro police services. In terms of section 64F (2) of the SAPS Act, the Minister of Police may afford metro police services the same power as the police. The section provides that where the power includes the power to seize an article, the member of the municipal police service shall forthwith deliver the article to a member of SAPS. This clearly indicates that the metro police should have minimal investigative powers and functions in conducting criminal investigations.  

The extension of the metro police service’s mandate to conduct criminal investigation should not be supported and the City’s new proposed by-law that includes criminal investigation should not be encouraged for a number of reasons which we outline below: 

In 2017, the Portfolio Committee on Police (PCoP) in Parliament was briefed by the Institute for Municipal Public Safety of Southern Africa (IMPS-SA) on increasing the powers of municipal law enforcement officers, and by the Civilian Secretariat for Police, on the policy considerations to increasing the powers of law enforcement officers. At this briefing there was a lot of uncertainty regarding the powers and functions of law enforcement officers and whether it should have the same functions and powers as the SAPS.

The PCoP concluded that it would need more time to deliberate and conduct research on the proposals made. It was noted, however, that the function to declare someone as a police officer was in the domain of the Minister of Justice. The proposal of IMPS-SA to extend its powers was not supported.

Second, in the recent judgment of City of Cape Town v JB and others [2020] in the Western Cape High Court, the, concerning removal of refugees and asylum seekers from Greenmarket Square by the City of Cape Town (CoCT), Acting Judge Thulare questioned the role of municipal police and law enforcement officers and their powers and functions when implementing sections 22 and 23 of the by-law. In particular, the court dealt at length with the powers and function of metro police. The court pointed out the City of Cape Town’s reluctance to work with the SAPS, but instead wanting to usurp the powers and functions of SAPS.

“Any person who contravenes or fails to comply with any provision of the by-law or disobeys any instruction by a peace officer or a member of the Cape Town Metropolitan Police Department, enforcing this By-Law, is guilty of a punishable offence.

“This means that if and when a complaint is lodged with the SAPS, which relates to the contravention or failure to comply with the By-Law or disobeying a member of the municipal police, the SAPS has a duty to act in accordance with its mandate. The SAPS have a residual duty in the enforcement of the By Law.

“According to its papers, the City attempted to co-ordinate an appropriate intervention to deal with the issue of the respondents. In perusing the papers, I have been unable to find any evidence that the City or any of its officials at any stage attended to a member of the SAPS to file a complainant in respect of an offence as envisaged in clause 23 of the By-Law.”

Third, there is or has been a political agenda in the Western Cape to establish a provincial police force and this was part of the Democratic Alliance’s national election campaign in 2019. The new proposed law by the City of Cape Town to extend the powers of its metro police to conduct criminal investigations is nothing but to further the DA’s agenda to establish a separate police service in the Western Cape and Cape Town. The scope and function of policing has, since the induction of our democratic dispensation, been a national competency. Those that were responsible for making this decision did so after much deliberation and consideration and so it should remain. 

Last, while the entirety of this by-law is problematic, special attention should be given to how this amendment will impact on the lives of ordinary citizens going to work, going to the beach and anyone who is visible in public spaces. If CoCT was serious about addressing concerns around safety within the city, they would be supporting civil society’s call for a reallocation of police services.

Those living in areas with high levels of violent crime require the detectives and resources that only the SAPS has the power to provide. An increase in the numbers of metro police and law enforcement, even with constitutionally questionable authority, does very little for the investigations, rape kits and protection orders that are needed to root out violent crime. 

Join the Social Justice Coalition in calling for a postponement of this amendment until such a time where rigorous public participation can be held on this issue. Sign the petition before 17 May. DM/MC

Justin Jaftha and Khadija Bawa are with the Social Justice Coalition.