CHAPTER 3 CONSIDERING THE METROPOLITAN POLICE MANDATE IN SOUTH AFRICA’S DEMOCRACY
The purpose of this chapter is to conceptualise the metropolitan police mandate within the paradigm of a South Africa’s democratic ideal, by identifying and isolating various key characteristics of the metropolitan police mandate. These key characteristics will be isolated and contextualised by firstly examining the regulatory framework applicable to MPDs. This examination will reveal various mechanisms and structures sanctioned by legislation, that MPDs should employ to enhance democratic policing, as well as possible shortcomings that may constrain the engagement of MPDs in democratic policing. This will be followed by a consideration of the metropolitan police mandate within the context of South Africa’s democracy, based on the unique features of objective professionalism, individual and situational responsiveness and a preventive and proactive focus as well as the fundamental underpinnings, principles and organisational structures normally associated with the democratic policing epitome. From this consideration a qualitative model for democratic policing, applicable to MPDs, will emerge.
A REGULATORY FRAMEWORK FOR METROPOLITAN POLICING IN SOUTH AFRICA
Although MPDs have been operational in South Africa for approximately 18 years, it appears that there is still some confusion as to what the core business of these departments is. To this extent, it is contended by Rauch, Shaw and Louw (2001) and Newham and Masuku (2004) that the metropolitan police mandate is dubiously ill-defined, subsequently providing these departments with an unprecedented freedom to interpret and apply this mandate as they see appropriate. A scan of the literature suggests that this might indeed still be the case. In contrast to the SAPS, which has been vigorously researched, MPDs appear to be of less significance to researchers than the South African Police Service (SAPS). The literature creates the impression that MPDs have been a major research interest only for a limited period. This period ranges from approximately 1998, when the creation of MPDs was fiercely debated, till about 2007, when the bulk of these departments had been operational for approximately 5 years (Besdziek, 1996; Newham, 2006). Since 2007, very little research that dynamically describes the philosophical approaches, operational methodologies and cultural consequences of these departments has surfaced. Considering the importance of these departments in the criminal justice system, the lack of research interest in these departments becomes an alarming phenomenon.
When considering this interpretational freedom of metropolitan police against the backdrop of democracy, this absence of empirical research becomes even more distressing. If MPDs are free to interpret and apply the metropolitan police mandate as they see appropriate, the question should be asked if these various interpretations promote the fundamental democratic values of accountability, service orientation and the protection of human rights (Fichtelberg, 2013). The Civilian Secretariat for Police considered MPDs as a serious risk to South Africa’s democracy (South Africa, 2016). Their distrust in these departments is largely based on the postulation that MPDs are not subjected to the same extent of control mechanisms as their national counterpart, the SAPS. Their argument seems valid, as national legislation is vague and unforthcoming when describing the type and functioning of control mechanisms which must be employed by these departments. Considering the lack of empirical research in this regard, very little is known on how these structures operate, if any other form of control measures has been implemented, or if these departments are in fact contributing towards South Africa’s democracy. On the other hand, it can be argued that this interpretational freedom allows MPDs to employ a more delicate and customised approach towards local problems. This will however only be true if this customised application of the metropolitan police mandate promotes the relevant democratic principles.
The most appropriate departure point to understanding the metropolitan police mandate and the democratic application thereof, will be with an analysis of the regulatory framework applicable to MPDs. Previous research (van Biljon, 2014a) presented a comprehensive overview of this regulatory framework. Subsequently, this section is not intended to reanalyse this regulatory framework, but instead to highlighting significant obligations, duties, and characteristics revealed by this previous analysis. In addition, this section will point out proposed changes to this framework, as it applies to the philosophical and operational environments of MPDs.
THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA (1996)
The Constitution of the Republic of South Africa (1996), is the supreme law of the Republic and any law, conduct or policy that conflicts with it, is unenforceable and invalid. Remarkably, the role of the MPD is not described by the Constitution, as is the case of the SAPS which mandate is comprehensively described in Section 205 (3) of the said Act (1996). Only one reference of MPDs is found in Section 206 (7), which state that national legislation must provide a framework for the powers and functioning of these departments. Subsequently, the Constitution provides for the creation of legislation that regulate the functioning of MPDs. Such legislation has been created and is found in Chapter 12 of the South African Police Service Act (Act 68 of 1995).
Chapter 2 of the Constitution (1996), also known as the Bill of Rights, is of particular importance for police organisations. Although Chapter 2 does not describe the role or responsibilities of police organisations, it outlines the fundamental rights that all people within South Africa enjoy. As police organisations are entrusted to protect these rights, all members of these organisations should be well acquainted with its content, and it must form the foundation of all police activities and conduct.
THE SOUTH AFRICAN POLICE SERVICE ACT (ACT 68 OF 1995)
The South African Police Act (Act 68 of 1995) hereinafter referred to as (the SAPS Act) which came into effect after South Africa’s transition to democracy, mainly describes the philosophical, operational and administrative functioning of the SAPS. Chapter 12 of this Act however, is specifically concerned with the establishment, functioning and control of MPDs. The table below provides a concise summary of Chapter 12 of the SAPS Act.
For the purposes of this study, Subsections 64F, 64J, 64K, 64L and 64M are of particular importance. Subsection 64F is critical to understanding the mandate of MPDs, while the other highlighted Subsections are critical to the notion of democratic policing. These subsections will receive attention throughout this chapter, as various concepts associated with democratic policing are investigated.
THE NATIONAL ROAD TRAFFIC ACT (ACT 93 OF 1996)
The National Road Traffic Act (NRTA) (Act 93 of 1996) constitutes a vital element of the regulatory framework applicable to MPDs. As any individual who wishes to be appointed as a member of a MPD must be appointed and registered as a Traffic Officer before such an appointment can be made, it is critical that cognisance is taken of all provisions relevant to traffic officers. Section 3D of this Act describes the minimum requirements that must be met for registration as a Traffic Officer, while Section 3E describes the circumstances under which such a registration can be revoked. Section 3I of the National Road Traffic Act (Act 93 of 1996) describes the powers and duties of traffic officers, which shall naturally apply to members of a MPD. Furthermore, the NRTA (Act 93 of 1996) provides a comprehensive national framework for the regulation of road traffic, while providing for consistent enforcement and application of this framework.
In addition to the National Road Traffic Act, MPDs are expected to police other legislation relating to road traffic. This legislation includes the Cross-Border Transport Act (Act 4 of 1998), The National Land Transport Act (Act 5 of 2009) and various bylaws relating to road traffic. The Criminal Procedure Act (Act 51 of 1977) and the Administrative Adjudication of Road Traffic Offences (AARTO) Act, (Act 46 of 1998) are the primary tools used to enforce road traffic legislation. Legislation is however unforthcoming when mentioning or describing any other structures or mechanisms that can be used to engage in other related policing functions.
THE CRIMINAL PROCEDURE ACT (ACT 51 OF 1977)
The Criminal Procedure Act (Act 51 of 1977) prescribes the exact processes and procedures that should be followed when an alleged offence has been committed. Subsequently, this Act provides members of police organisations and other peace officers with the authority and power to inter alia conduct various searches, seize a variety of objects and property, affect arrests, issue summonses and other administrative notices and assess bodily features, all of which are to occur under very specific conditions.
Annexure 6 of the Regulations for Metropolitan Police Services (Republic of South Africa, 1999) extended the powers of members of a MPDto include a range of additional powers under various statutes. Only specified Sections and Subsections of these statutes shall apply to members of a metropolitan police department, as is indicated below (van Biljon, 2014a):
The Stock Theft Act (Act 57 of 1959): only Sections 3, 7 and 8;
The Teargas Act (Act 16 of 1964): only Section 4;
The Mental Health Act (Act 18 of 1973): only Sections 2 and 14;
The Drugs and Drug Trafficking Act (Act 140 of 1992): only Subsections 1(a), 1 (b), 1 (d), 1 (g) and Section 11 (2) a; and
The Domestic Violence Act (Act 116 of 1998): Only Sections 2, 4 and 8.
Members of any MPD should take note of the limited nature of their powers in relation to these statutes. Any action that surpasses the limitation of these powers, may lead to civil or even criminal proceeding against the members and the MPD concerned.
THE 1998 WHITEPAPER ON SAFETY AND SECURITY AND THE 2016 WHITEPAPER ON POLICING
The Whitepaper on Safety and Security (South Africa, 1998), published during September 1998 by the former Department of Safety and Security, represents a time when MPDs were a matter of sensationalised political debate, rather than a real-life phenomenon. As no MPDs, except for the Durban City Police, existed at the time this document was drafted, the Whitepaper on Safety and Security did not provide much detail on the role MPDs are expected to play within the criminal justice system. Instead, the 1998 Whitepaper on Safety and Security offered a comprehensive outline of the role municipalities must play in the prevention of crime. In terms of MPDs, the Whitepaper on Safety and Security did however contend that the role of MPDs lay primarily within visible policing, brought about by extensive law enforcement (van Biljon, 2014a).
The Civilian Secretariat for Police published the Whitepaper on Policing (South Africa, 2016), which did not view MPDs in a particularly positive light. The Civilian Secretariat for Police considered MPDs as a serious risk to South Africa’s democracy. Their wariness of these departments was largely based on the belief that MPDs were not subjected to the same extent of control mechanisms as their national counterpart, the SAPS. Their argument seems valid, as national legislation is vague and unforthcoming when describing the types and functioning of control mechanisms which must be employed by these departments, as will be demonstrated later in this chapter (Republic of South Africa, 1995).
The 2016 Whitepaper on Policing also petitioned for the creation of a ‘single police service’ within South Africa. A general misconception shared amongst the public and members of the various MPDs alike, was that this call for a ‘single police service’ would usher in the integration of the various MPDs into the SAPS. This was however not the case. Instead, the Whitepaper on Policing suggested a partnership and coordination approach between the SAPS and MPDs, which would see the creation of national structures to facilitate closer cooperation, coordination and consistent standard setting throughout South Africa. To accommodate this framework, the Whitepaper suggested that a Division for Municipal and Traffic Police be created within the SAPS, under the leadership of a Divisional Commissioner. Furthermore, the Whitepaper proposed the creation of a National Standards and Legislative Compliance Board, which would consist of the National Commissioner of Police, the SAPS Divisional Commissioner for Municipal and Traffic Police, the Secretary of Police, the Chiefs of the various MPDs, the Executive Director of the Independent Police Investigation Directorate (IPID), representatives of the National Department of Transport, the CEO (Chief Executive Officer) of the Road Traffic Management Cooperation (RTMC), as well as representatives of the South African Local Government Association. The duties of the National Standards and Legislative Compliance Board would include:
To review, evaluate, improve and generate National Standards in cooperation with the Secretary of Police;
Establish uniform standards for the approval of the establishment of MPDs;
Provide for a collective organisational structure to be implemented by all MPDs;
Establish consistent training standards and a uniform disciplinary framework;
Homogeneous uniform and ranking insignia;
Ensure compliance and review the performance of MPDs in national policing priorities and efforts.
It should be noted that this recommendation was made in addition to the various police coordination committees MPDs are required to participate in, as was indicated in Section 64K of the SAPS Act (1995). The Whitepaper on Policing also proposed an extension of the metropolitan police mandate, by introducing limited investigative competencies within the MPDs. This investigative mandate would be limited to traffic related matters, municipal bylaws, and crimes committed on, and related to municipal assets and property. MPDs would however not be granted the authority to keep suspects in custody. The custody of suspects would remain the responsibility of the SAPS.
The Whitepaper on Policing was strikingly clear on the role that MPDs are expected to play within the local policing context. It stated that:
‘By ensuring that traffic laws and bylaws are observed, MPS [sic] will contribute to instilling a culture of lawfulness. In this way MPS [sic] can effectively contribute to visible policing and are in a position to observe violations of bylaws and petty and [sic] other crimes.’ (South Africa, 2016, p 31)
It is important to note that till 31 December 2017, none of these changes have been implemented. Although these changes might potentially have a significant impact on the manner in which MPDs operate, it is anticipated that it would have no significant impact on how the core functions of road traffic policing, bylaw policing and crime prevention. This belief is generated by a statement within the Whitepaper on Policing, which specifically states that traffic law policing may not be compromised in favour of the other two mandates. As a preventive measure however, the potential extension of the metropolitan police mandate with limited investigative powers and these possible structural changes, would be imbedded within the envisioned interview strategy that would be used during this study.
PROCESSES AND STRUCTURES SANCTIONED BY LEGISLATION TO ENHANCE DEMOCRATIC POLICING
As was mentioned in section 2.3, it is essential that police organisations operating within a democracy should display certain key organisational characteristics to participate in, and facilitate democratic policing. Based on national legislation and available literature, this section aims to provide an overview of the minimum required structures and mechanisms that MPDs should employ to enhance democratic policing. This information will be crucial in determining current legislative limitations and inadequacies experienced in relation to democratic policing, and the subsequent improvement thereof.
THE RULE OF LAW
The Constitution of the Republic of South Africa (1996) is the supreme law of South Africa and is the first and most significant statute MPDs must submit to. Section 1 of the Constitution (South Africa, 1996), states that the Constitution is founded on the fundamental values of human dignity, equality, the expansion of individual and collective rights and freedoms, non-racism, non-sexism, supremacy of the constitution, the rule of law and a free, multiparty political system. Subsequently, as this democratic paradigm offers a deep appreciation of democratic principles, these central values, in addition to the rights and freedoms declared in Chapter 2 of the Constitution, should be the focus point of any legislative, policy or operational framework associated with these MPDs.
Bayley (2009), Lemieux (2014) and Marx (1995) contends that police organisations must only be allowed to impede on individual and collective freedoms, under very specifically limited circumstances, in a manner as is prescribed by legislation. These limitations and circumstances are primarily described in the Criminal Procedure Act (Act 51 of 1977), The SAPS Act (Act 68 of 1995), The National Road Traffic Act (Act 93 of 1996), The Administrative Adjudication of Road Traffic Offences Act (Act 46 of 1998) and various other Acts, as was mentioned earlier in this chapter. Consequently, organisationally and individually, members of a MPD must submit to this legislation, and act in accordance with the limitations and circumstances imposed by it. The fact that MPDs must submit to the rule of law, is emphasised by Section 64F of the SAPS (68 of 1995) that states that:
‘Subject to the Constitution of the Republic of South Africa, 1996 (1996), and with due regard to the fundamental rights of every person, a member of a municipal police service may exercise such powers and shall perform such duties as are by law conferred upon or assigned to a member of a municipal police service.’
This Section highlights various significant features of the constitutional democratic paradigm. When this Section highlights that metropolitan policing is subjected to the Constitution, the notion of submitting to, and promoting democratic principles is reinforced. When maintaining that metropolitan police conduct must be accompanied with due regard for the fundamental rights of every person, the significance of an utmost admiration for human life and human dignity is emphasised. Lastly, this Section implies that MPDs should submit to the limitations and adhere to the specific conditions indicated by national legislation.
Legitimacy and accountability would be greatly enhanced if MPDs unconditionally submitted to the rule of law. In addition, submitting to the rule of law would ensure that democratic principles were adhered to at all times, while ensuring that a culture that is protective of human rights and focused on the individual would emerge from these MPDs. Furthermore, specifically the critical features of objective professionalism and individual and situational responsiveness, promoting solidarity, freedom and equality would be realised if MPDs truly submitted themselves to the rule of law.
In section 2.3.2, legitimacy and specifically police legitimacy were comprehensively analysed. Based on this analysis, it was contended that both normative and descriptive legitimacy should be displayed and promoted, specifically if it related to democratic principles and the features of objective professionalism, individual and situational responsiveness and a preventive and proactive focus. Legislation, however, does not provide MPDs with any framework or guidelines on how normative and descriptive legitimacy should be created and maintained. Thus, ensuring legitimacy is the responsibility of the Executive Head of the MPD concerned. As a result of this vague legislative description and extremely limited empirical research that investigates legitimacy strategies of MPDs, very little is known on how MPDs in actual fact facilitate legitimacy.
Section 64D of the South African Police Act (Act 68 of 1995), states that the Executive Head of a MPD shall be responsible for creating and maintaining a MPD that is impartial, accountable, efficient and transparent. However, neither the SAPS (Act 68 of 1995) nor the Municipal Systems Act (Act 32 of 2000) provide any indication on how such impartiality, accountability, efficiency and transparency should be achieved. Subsequently, it can be maintained that each MPD would be responsible for the development and implementation of its own transparency strategy. Such a strategy should encompass the elements of government openness, publicity, and the protection for whistle-blowers. As was the case with legitimacy, very limited empirical research examining metropolitan police transparency has been conducted.
Within South Africa’s democratic paradigm, accountability should be realised through a system that consists of various mechanisms of internal, state and social control, reflecting upward, downward, vertical, horizontal, outward and social accountability. As was mentioned in Section 3.2.6 as a result of perceived insufficient control mechanisms, the Civilian Secretariat for Police considered MPDs to be a significant threat to South Africa’s democracy. Once more it was a case where legislation stipulated that MPDs should maintain accountability, but failed to describe how this accountability could be achieved. As was the case with transparency, the Executive Head of the MPD was given the responsibility to ensure accountability, without providing guidelines on how to do so. Legislation did not provide any indication on what type and the manner in which internal control mechanisms should be created and maintained. Subsequently, Executive Heads of MPDs are free to create internal control mechanisms that they deem appropriate. Consequently, one must wonder if these mechanisms, should they exist, would truly be appropriate in relation to the department concerned. As there is no notable empirical research relating to the internal control of MPDs, this question, for now at least remains unanswered. Considering that each MPD is an independent entity, one can conclude that internal control measures and the quality thereof would vary significantly across the various departments. Subsequently, it is at this stage unknown how upward and downward accountability is promoted and maintained within MPDs.
When it comes to state control, The Minister of Police may, in terms of Section 64M of the SAPS Act (1995), in the case of non-compliance with any national standard, intervene in relation to this non-compliance as is contemplated in Section 100 of the South African Constitution (1996). In terms of Section 64L of the SAPS Act (Act 68 of 1995), the National Commissioner of the SAPS should report any non-compliance to the Minister of Police. Section 64N of the same Act, grants the applicable Member of the Executive Council (MEC) or a member of the provincial secretariat designated as such, the authority to investigate any failure to comply with national standards, and to demand for the MPD in question to rectify such a failure. Should the MPD concerned fail to correct such non-compliance, the MEC may place the MPD in question under provincial administration. This legislation thus implies that MPDs are at least accountable to the National Commissioner of the SAPS, the MEC of the province concerned and the Minister of Police. As MPDs are accountable to the Minister, it can be argued that this represents a measure of parliamentary control over these departments. In addition, state institutions like the Public Protector, IPID and the Human Rights Commission are responsible for investigating allegations of metropolitan police misconduct. Members of MPDs are also held accountable through civil and criminal proceedings by the judiciary when and if needed. Within the context of the municipality, Section 64J states that a municipality shall appoint a committee to ensure civilian oversight over the MPD concerned. This civilian oversight committee shall comprehensively be discussed in section 220.127.116.11. These structures subsequently represent both vertical and horizontal accountability.
Legislation does not prescribe any structures to ensure social accountability. However, scanning through newspapers and social media platforms such as Facebook and Twitter, it becomes evident that these platforms are critical instruments to ensure social accountability of the MPDs. Various videos, pictures and reports of alleged misconduct by metropolitan police members regularly surface on these platforms. In annexure F, various links to online videos and articles relating to unprofessional behaviour of MPDs can be found.
SUBSERVIENCE TO CIVIL AUTHORITY
Section 64J of the SAPS Act (Act 68 of 1995) prescribes that a municipality shall appoint a committee to ensure civilian oversight over the MPD concerned. This committee shall consist of members of the council, and any other person or persons deemed necessary by the municipality to ensure civilian oversight over the metropolitan police department. The responsibilities of this committee shall include:
advise the council on matters relating to the municipal police service;
direct the CEO of the municipality and the executive head of the MPD in relation to the performance of his or her functions in respect of the metropolitan police department;
perform such functions as the MEC, the municipal council or the CEO may consider necessary to ensure proper civilian oversight over the MPD;
promote and maintain accountability and transparency of the MPD;
monitor the implementation of policy and directives issued by the CEO and report to the municipal council or CEO thereon;
perform various ad hoc duties that may be assigned to the committee by the municipal council or CEO; and evaluate the functioning of the MPD and report to the municipal council or CEO thereon.
As was mentioned in the introduction of section 3.2, very little empirical research that describe and examine the procedures and subsequent effectiveness of these oversight committees are in existence. Taking into consideration that each municipality is an entity on its own, it seems reasonable to assume that the function of these committees will vary across the various departments.
TABLE OF CONTENTS
Chapter 1 Introduction and General Orientation
1.2 Background to the study
1.3 Problem statement
1.4 Research aim and objectives
1.5 Research questions
1.6 Research significance
1.8 Limitations of the research
1.9 Problems experienced in relation to this research
1.10 Key terms
1.11 Organisation of the thesis
Chapter 2: Policing a Democracy: Theoretical Outline and International Experiences
2.2 Principles of democratic policing
2.3 Institutional requirements for democratic policing
2.4 International perspective on democratic policing
2.5 A South African consideration of democratic policing
Chapter 3: Considering the metropolitan police mandate in South Africa’s Democracy
3.2 A Regulatory Framework for Metropolitan Policing in South Africa
3.3 The metropolitan police mandate: a democratically relevant interpretation
Chapter 4: Research Approach and Methodology
4.2 Research Design
4.3 Methods to ensure trustworthiness
4.4 Ethical considerations
Chapter 5 Presentation of the Research Findings
5.2 Level 1: Democracy in South Africa
5.3 Level 2: Democratic Policing
5.4 Level 3: The metropolitan police department and its mandate
Chapter 6 Interpretation of the Research Findings
6.2 Democracy in South Africa
6.3 Democratic policing
6.4 The metropolitan police department and its mandate
Chapter 7 Summary, Recommendations and Conclusion
7.2 Brief chapter overview
7.3 Conclusions and recommendations
7.4 A proposed model for the democratising of Gauteng’s metropolitan police departments
Chapter 7 Summary, Recommendations and Conclusion
7.5 Recommendations for future research
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