Maverick Citizen

AMAPANYAZA OP-ED

Despite justice department’s statement, Crime Prevention Wardens still have no policing powers

Despite justice department’s statement, Crime Prevention Wardens still have no policing powers
Gauteng Crime Prevention Wardens at Rooiwal Waste Water Treatment Works on 8 June 2023 following the outbreak of cholera in Hammanskraal. (Photo:Felix Dlangamandla)

Gauteng Premier Panyaza Lesufi’s Crime Prevention Wardens still have no policing powers, and if such powers were to be conferred by the minister of justice and commissioner, this would probably be unconstitutional.

A statement issued by the Department of Justice on 12 December says that the minister of justice has agreed to confer powers on Gauteng’s Crime Prevention Wardens in terms of section 334 of the Criminal Procedure Act and that they “must assume the same legal status as Gauteng provincial traffic officers”.

Perhaps the department has been so denuded by the much-publicised exit of legal professionals that good legal advice for the minister is hard to come by.

The key problem is that provinces have no powers of policing in terms of the Constitution. The Constitution provides for a “single police service” (section 199(1)). It also provides for legislation to provide for municipal policing (section 206(7)), and that municipalities may otherwise enforce their bylaws (an incidental power in terms of section 156(2)).

Provinces are limited to policing oversight-type functions (section 206), such as monitoring police conduct and promoting good police-community relations.

The Constitution envisages the possibility of policing powers being:

  • Assigned to a province in national legislation (section 206(4)(b)); and
  • The allocation of provincial power via national policing policy by the minister of police (section 206(4)(c)).

Neither the legislation nor the minister has made such an assignment or allocation to Gauteng. Consequently, the province employing persons as Crime Prevention Wardens with policing powers has no constitutional basis.

Possibly for this reason, the Expanded Public Works Programme (EPWP) 2018 Manual, makes this focus area not applicable to provincial departments.

The minister is only now in the process of finalising a National Policing Policy, which makes no mention of allocations of provincial policing power. The national legislation (the South African Police Service Act) makes no assignment of functions to provinces. Furthermore, the minister has repeatedly rejected a request from the Western Cape to allocate or delegate policing functions to it.

crime prevention wardens policing powers

Gauteng Crime Prevention Wardens during a raid on a man’s house near Altmont Secondary School in Protea South, Soweto. (Photo: Nhlanhla Phillips)

The designation of a category of person as peace officers and conferral of section 334 powers is related to a competency held by the relevant entity. For example, the Constitution provides for provinces to have powers around the regulation of alcohol. Both KwaZulu-Natal and Western Cape have passed such legislation. Provincial liquor officers were accordingly granted “peace officer powers” to enforce alcohol legislation in their provinces.

These powers are clearly designated and relate to provincial liquor licensing offences only. They include the power to enter, seize, forfeit and dispose of property connected with those offences; arrest; ascertain names and addresses; serve warrants; and issue notices. The powers apply only in respect of designated powers and within the relevant provinces.

There is no underlying provincial competence on which to base the conferral of powers to the Gauteng Crime Prevention Wardens. The reference in the statement to putting Crime Prevention Wardens on the same legal footing as traffic officers is an insult to traffic officers.

Traffic officers used to undergo a rigorous two-year learnership within a traffic enforcement institution. This has been increased to three years due to the relatively complicated nature of traffic enforcement (covering, inter alia, the transportation of dangerous and heavy goods).

The conferral of powers to traffic officers is via the National Road Traffic Act, not the section 334 mechanism. The only empowerment of traffic officers via section 334, referred to in Mark Heywood’s Daily Maverick op-ed of 13 December, is limited to those appointed nationally to the National Road Traffic Intervention Unit, in itself controversial because arguably traffic enforcement is constitutionally the purview of provinces and municipalities.

For any category of persons to be designated as peace officers and allocated powers, a notice has to be published in the Government Gazette, delineating the category of person, the area in which they operate, the offences against which they act and their powers in respect of acting against the offences. This notice has not yet been published — a statement by the minister is insufficient to confer powers.

Certificate of appointment

For any person to exercise these powers, as is usual with the conferral of such powers in terms of section 334, it is required that they receive a certificate of appointment signed by the national commissioner of the South African Police Service, who must be satisfied as to the person’s lack of previous convictions, that they have not been declared unfit to possess a firearm, and their relevant training. This process typically takes months, even for a small number of peace officers. This has not happened.

Apart from their unconstitutional basis, serious concerns include:

  • The fact that Crime Prevention Wardens are deployed without any existing institutional structure to effect command and control;
  • There is no functioning disciplinary system in place to ensure proper discipline;
  • There is no oversight;
  • The inadequacy of the nature and duration of their training;
  • The absence of any employee wellness system for such employees;
  • Lack of clarity about working hours and payment;
  • Lack of driver training; and
  • Recruitment on an explicitly racial basis (initially, only “Africans”, then an intake of “Coloureds and Indians”).

The Western Cape’s Leap programme is often suggested to be the same as the Crime Prevention Wardens. These are the ways it is not the same:

  • Leap officers are not employed by the province, but instead are Law Enforcement (LE) officers employed by the City of Cape Town, with partial funding support by the province.
  • The category of person “law enforcement officer employed by a municipality” already had powers in terms of section 334, based on municipalities’ power to enforce their bylaws.
  • Training was and is carried out by the city’s Training College which usually trains LE officers and covers a clear curriculum.
  • Command and control is through the existing LE Service of approximately 3,000 people with senior officers.
  • The disciplinary system applicable to all three services of the city (LE, metro police and traffic) is in operation.
  • Oversight is via the Civilian Oversight Committee overseeing all three services.
  • Every employee driving a city vehicle is retested and only then given accreditation to drive such a vehicle.
  • Recruitment is on merit and includes basic psychometric testing.
  • Officers have contracts, clear working hours, and access to psychological and other wellness support.

The serious concerns about the Gauteng Crime Prevention Wardens mean that quite apart from the underlying constitutional incompetence, the minister of justice’s apparently forthcoming designation in the Gazette, and any associated certificates of appointments signed by the national commissioner could be attacked on a rationality basis.

Given all these legal problems, surely a legal challenge is inevitable? Litigation is expensive, and it remains to be seen if the political opposition will prefer to let Premier Panyaza Lesufi bear the consequences of his unconstitutional foray into what is likely to yield less safety and many problems — in particular, the likelihood of civil damages claims against the province for unlawful arrest. DM

Dr Jean Redpath is a senior researcher at the Dullah Omar Institute, University of the Western Cape.

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