President Cyril Ramaphosa has rejected calls by the DA to transfer policing powers to provinces, saying such a move would be inconsistent with the constitution.
In a written reply to DA leader John Steenhuisen published in parliament on Monday, Ramaphosa said the constitution provides that the security services of SA consists of a single police service.
“Furthermore, in terms of Section 205(1) of the constitution, the national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government,” Ramaphosa said.
The DA, which governs the Western Cape, has been pushing for policing powers to be shifted to provinces that have the capacity to do so. The party argues that policing has been failing under the central control of the ANC-led national administration, with high crime levels showing no sign of abating.
Various surveys in recent years show that South Africans are more worried about crime than economic issues, with many citing safety concerns as the reason for leaving the country.
The government also acknowledges that the high level of violent crime in SA has a significantly negative effect on the country’s economy and deters foreign investment. But it contends that the DA’s call to devolve policing is an attempt to create parallel structures to protect a minority in its core constituency.
In his question to Ramaphosa, Steenhuisen highlighted that sections 99 and 206 of the constitution, when read together, allow for the devolution of policing powers to provinces, particularly where provinces can show that they can do a better job of keeping citizens safe.
Two questions
He asked Ramaphosa: (a) would the Western Cape government need to do in order to get more policing powers so that “they can achieve a safer province and (b) [what] is the government’s policy position regarding the devolution of policing?”
Section 99 states that a cabinet member may assign any power or function that is to be exercised or performed in terms of an Act of parliament to a member of a provincial executive council or to a municipal council, and this takes effect upon proclamation by the president.
Section 206 stipulates that a member of the cabinet must be responsible for policing and must determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives. Also, the national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces.
Ramaphosa said the national police commissioner is, in terms of the constitution, responsible for controlling and managing the police service, in accordance with the national policing policy and directions of the police minister.
“Section 207(4) of the constitution, further provides that a provincial commissioner is responsible for policing in his or her province, as prescribed by national legislation and subject to the power of the national commissioner to exercise control over and manage the police service,” Ramaphosa said.
He said the police minister does not have policing powers and therefore cannot assign or transfer the responsibility of the national commissioner to control and manage the single national police service to a member of the provincial executive council or to a municipal council.
“Such transfer will be inconsistent with the provisions as contained in Chapter 11 of the constitution, and accordingly, invalid. The proposed change in the existing legal position will require amendment to the relevant provisions as contained in Chapter 11 of the constitution [which deals with security services],” Ramaphosa said, emphasising that government does not have a policy on devolving policing powers to provinces as this is a national competency.
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