CIVILIAN SECRETARIAT FOR POLICE SERVICE BRIEFING BY SOUTH AFRICAN POLICE SERVICE & CIVILIAN SECRETARIAT FOR POLICE SERVICE TO THE SELECT COMMITTEE ON SECURITY & JUSTICE EXPANDING THE POWERS OF MUNICIPAL LAW ENFORCEMENT OFFICERS DATE: 07 JUNE 2017

BACKGROUND The Institute for Municipal Public Safety of Southern Africa (“IMPS-SA”) approached the Parliamentary Select Committee on Security and Justice to discuss expanding the powers of municipal law enforcement officers as peace officers

CONT… ACCORDING TO THE IMPS-SA, ─ THE MOTIVATION FOR THE EXTENSION OF THEIR POWERS IS THAT LAW ENFORCEMENT OFFICERS ARE INTEGRATED IN THE PROTECTION OF PERSONS AND PROPERTY, ESPECIALLY IN THE CONTEXT OF LAND-INVASION AND PROTEST ACTION; AND

CONTINUES CONFERRING OF “FULL POWERS” ON SUCH OFFICERS WILL ENHANCE THE ABILITY OF THE STATE TO DEAL WITH THE CURRENT SPATE OF UNLAWFUL ACTIVITIES (WHICH ARE, ACCORDING TO THEIR LETTER, “GATHERINGS ACT, TRESPASSING ETC.”).

CONT… The IMPS-SA is of the opinion that situations involving potential or imminent danger and threats to persons and property can successfully be addressed by such officers. It is proposed that instances of drunk driving, reckless and negligent driving, the potential threat to infrastructure, second hand goods, impoundment of unauthorised commuter vehicles can summarily be dealt with by law enforcement officers if adequate powers as peace officers are conferred upon such officers.

CONT… The Minister of Justice and Constitutional Development has declared law enforcement officers appointed by a municipality as peace officers in accordance with section 334 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (CPA). This means that persons appointed as law enforcement officers are, by virtue of their appointment, peace officers primarily within the area of the municipality in which they are appointed. Such law enforcement officers are empowered to exercise the specific powers conferred upon them by the Minister of Justice and Constitutional Development in respect of the offences as declared by the said Minister.

THE PROPOSAL OF IMPS-SA (AREA OF JURISDICTION) The area of jurisdiction The proposal as per item (i) of Column 2 of their ‘Annexure 1’, expands the area of jurisdiction to include, in addition to the jurisdiction of the municipality in which they are appointed (as is currently provided), “15 nautical miles offshore, adjacent to the municipality”. The purpose of the expansion of the jurisdiction offshore is unclear. In view of the offences for which law enforcement officers may exercise the powers as peace officers, it is unclear how these relate to offshore activities.

THE PROPOSAL CONT…. The purpose of the expansion of the jurisdiction offshore is unclear. In view of the offences for which law enforcement officers may exercise the powers as peace officers, it is unclear how these relate to offshore activities. In terms of section 13(6) of the South African Police Service Act, 1995 (Act No. 68 of 1995) a member of the SAPS may, inter alia, search any person, premises, other place, vehicle, vessel or aircraft, or any receptacle of whatever nature, in the territorial waters of the Republic, or inside the Republic within 10 kilometres.

THE PROPOSAL CONT…. It is important to note that 15 nautical miles is approximately 27, kilometres. This means that law enforcement officers appointed by a municipality will be empowered to exercise their powers beyond the extent that members of the SAPS are empowered to. It should further be noted that, according to the United Nations Convention on the Law of the Sea (1982), territorial waters of a country extent, at most, 12 nautical miles (22.2 km) from the baseline. If the proposal is accepted, law enforcement officers will exercise their powers in international waters. This proposal can therefore not be supported.

THE PROPOSAL CONT…. It should further be noted that, according to the United Nations Convention on the Law of the Sea (1982), territorial waters of a country extent, at most, 12 nautical miles (22.2 km) from the baseline. If the proposal is accepted, law enforcement officers will exercise their powers in international waters. This proposal can therefore not be supported. The proposal in item (ii) of Column 2 also provides for “an appointment made by a municipality in terms of section 3A of the National Road Traffic Act, 1996, the area of the municipality concerned”.

THE PROPOSAL CONT…. In view of the fact that provision is already made for the area of jurisdiction of the municipality, this proposal is superfluous.

THE PROPOSAL OF IMPS-SA (OFFENCES ENFORCED BY LAW ENFORCEMENT OFFICERS) The proposal, as reflected in Column 3 of ‘Annexure 1’, primarily retains the offences in accordance with the existing declaration. However, the following amendments to the offences are proposed by IMPS-SA: The inclusion of “any offence in terms of any legislation which confers powers, duties and functions on a municipality” (referred to in item (vi) of Column 3 of the proposal). It is unclear what is envisaged by this provision. Offences created by a municipality are addressed by means of by-laws or municipal regulations (which a municipality is empowered to promulgate in terms of the section 12 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000).

OFFENCES ENFORCED BY LAW. CONT… the powers of peace officers in this regard relate to offences and not the powers, duties or functions of a municipality; and the inclusion of any provincial legislation relating to enforcement within a municipality. (This proposal is supported to enable law enforcement officers to enforce offences in accordance with the relevant provincial legislation.). The offences referred to in Schedule 1 to the CPA are the same as in the existing declaration. However, it is important to note that Schedule 1 to the CPA has been amended (the declaration should therefore be aligned).

OFFENCES ENFORCED BY LAW. CONT… The proposal as reflected in item (x) of Column 3 contains a provision which states that a law enforcement officer must be empowered to exercise his or her powers in respect of any offence in terms of “Any sections of the National Road Traffic Act which confers powers upon a Traffic Warden”. The proposal suggests that law enforcement officers should be afforded the same powers as traffic wardens in terms of the National Road Traffic Act. If that is the case, the proposal is not understandable since traffic wardens are also peace officers in terms of section 334 of the Act.

OFFENCES ENFORCED BY LAW. CONT… Currently a traffic warden has more limited powers than a law enforcement officer.

THE PROPOSAL OF IMPS-SA (POWERS) According to the proposal as reflected in Column 4, all powers conferred upon a peace officer or police official in terms of the CPA should be conferred upon law enforcement officers, except for the powers in terms of sections 25 (the power of a police official to enter premises in connection with state security or any offence), 43 (applying for a warrant of arrest), 59 (police bail) and 179(i)(b) (powers relating to the securing of a witness in criminal proceedings).

THE PROPOSAL OF IMPS-SA (POWERS) CONT…. This will mean that law enforcement officers (who currently have no powers conferred upon a “police official” in terms of the CPA), will have the same powers as members of the SAPS in terms of the CPA in respect of the offences listed in column 3, except for the powers excluded as set out above. Police officials have extensive powers in the CPA relating to the search and seizure of articles and the disposing thereof, including the power to execute a search warrant and the taking of fingerprints and other bodily samples. The rationale for these wide powers to be exercised by law enforcement officers is unclear.

THE PROPOSAL OF IMPS-SA (POWERS) CONT…. Even members of the municipal (metropolitan) police service, who have a statutory mandate to prevent crime, have limited powers conferred upon them in terms of the CPA. As a result, a law enforcement officer will have more policing powers than a member of a municipal (metropolitan) police service.

THE PROPOSAL OF IMPS-SA (POWERS) CONT…. This proposal, if accepted, will have far-reaching consequences on policing matters.

RECOMMENDATION The proposal of the IMPS-SA to expand the powers of the law enforcement officers, in its current form, is not supported.

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