During the xenophobic attacks in April 2015, President Jacob Zuma announced the SANDF would operate within the country “to assist the South African Police Service (SAPS) to maintain law and order in KwaZulu-Natal, Gauteng and any other area in the Republic of South Africa as the need arises”. Reports claim this internal deployment of members of the army has been extended until 31 March 2016.

In terms of section 205(3) of the Constitution, the police service (NOT the military) is tasked with preventing, combating and investigating crime. SAPS is charged with maintaining public order, protecting and securing the inhabitants of the Republic and their property, and upholding and enforcing the law. Because we are a constitutional democracy, the military should only assist the SAPS in the most exceptional circumstances and only in accordance with strict procedures set out in section 201 of the Constitution, read with section 18 and 19 of the Defence Act.

Section 201 of the Constitution states that only the president, as head of the national executive, may authorise the employment of the defence force in co-operation with the police service. When the defence force is employed with the SAPS inside South Africa, the President “must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed”.

If you read these sections together – as you must – they need to be understood to prohibit the deployment of the military in South Africa in broad and general terms. When the president deploys soldiers in South Africa he or she can only do so in a specifically designated area or areas, for a specific purpose and a specific period.

To read these provisions differently would render them meaningless and would make a nonsense of the requirements set out in section 201 for the deployment of troops within South Africa. For example, it would allow the president merely to declare once-off that the SANDF is to be deployed in South Africa to help the police to maintain law and order in any area of South Africa for the next 50 or 100 years. If this were to be legally acceptable, section 102(2) would in effect be no more than flummery with no discernible purpose.

I would argue that for this reason section 102(2) of the Constitution requires the specific authorisation by the president to deploy troops inside South Africa to ensure that the president remains accountable for his or her decision. Because a decision of this kind may be politically highly contentious – say if troops are deployed in Marikana or in an EFF stronghold – a president will have to take responsibility for the decision by saying in very specific terms where troops are being deployed, for what reason they are being deployed, how many are being deployed and for how long.

Section 18 of the Defence Act states that “in addition” to the employment of the defence force by the president as authorised by section 201(2), the president or the minister may authorise the employment of the defence force for service inside the Republic or in international waters, in order to: (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socio-economic upliftment; and (d) effect national border control.

I suspect this section may be unconstitutional as it grants the president powers that are specifically curtailed by the Constitution. But this is not of particular importance for present purposes as the SANDF have been deployed in co-operation with the SAPS in terms of section 102 of the Constitution, read with section 19 of the Defence Act.

Section 19(2) requires the minister of defence to give notice of the deployment by notice in the Government Gazette within 24 hours of the commencement of the deployment. This is an additional requirement to the notice the president needs to give to Parliament.

Section 19(3) then sets out strict procedures and criteria that must be met for such a deployment, stating: “Service in co-operation with the South African Police Service: (a) may only be performed in such area or at such place as the president may order at the request of the minister and the minister of safety and security; … (c) must be performed in accordance with: (i) a code of conduct and operational procedures approved by the minister; (ii) such guidelines regarding: (aa) co-operation between the defence force and the South African Police Service; and (bb) co-ordination of command over and control of members of the defence force and the South African Police Service, as the chief of the defence force and the national commissioner of the South African Police Service may determine.”

I have have not been able to determine whether President Zuma indeed informed Parliament of the deployment as required by the Constitution. It is also unclear whether the president has informed Parliament of the reasons for the deployment and the specific places where the soldiers are being deployed. In the absence of such detailed notice to Parliament, the deployment would be invalid as it would not conform to the basic requirements for the deployment set by the Constitution.

I have not been able to determine whether the minister had indeed given notice of the deployment in the Government Gazette. Nor have I been able to ascertain whether the deployment is being performed in accordance with a specific code of conduct and other guidelines for co-operation between the SANDF and the SAPS as required by the Defence Act.

It may be that both the president and the minister of defence complies with their Constitutional and other legal duties every time troops are deployed to a specific area in South Africa for a specific purpose and for a specific period of time.

However, if the president and the minister are relying on a general and vague “catch-all” notice about the deployment of troops “where and as the need arises”, they are almost certainly not complying with their legal obligations which, once again, would render the deployment unlawful. DM