Constitution of the Republic of South Africa, 1993/1995-09-20/Chapter 14

by ratified by the Multiparty Negotiating Forum and adopted and amended by the Parliament of South Africa

Chapter 14

Police and Defence

South African Police Service

Establishment

214. (1) There shall be established and regulated by an Act of Parliament a South African Police Service, which shall be structured at both national and provincial levels and shall function under the direction of the national government as well as the various provincial governments.

(2) The Act of Parliament referred to in subsection (1) shall—

(a)

subject to sections 216, 217 and 219, provide for the appointment of a Commissioner of the South African Police Service (hereinafter in this Chapter called the “National Commissioner”) and a Commissioner for each province (hereinafter in this Chapter called a “Provincial Commissioner”);

(b)

provide for the establishment and maintenance of uniform standards of policing at all levels regarding—

(i)

the exercise of police powers;

(ii)

the recruitment, appointment, promotion and transfer of members of the Service;

(iii)

suspension, dismissal, disciplinary and grievance procedures;

(iv)

the training, conduct and conditions of service of members of the Service;

(v)

the general management, control, maintenance and provisioning of the Service;

(vi)

returns, registers, records, documents, forms and correspondence; and

(vii)

generally, all matters which are necessary or expedient for the achievement of the purposes of this Constitution.

Powers and functions

215. The powers and functions of the Service shall be—

(a)

the prevention of crime;

(b)

the investigation of any offence or alleged offence;

(c)

the maintenance of law and order; and

(d)

the preservation of the internal security of the Republic.

Minister and National Commissioner

216. (1) The President shall, subject to this Constitution, charge a Minister with responsibility for the Service.

(2) (a) The President shall, subject to section 236(1) and (2), appoint the National Commissioner.

(b) The National Commissioner shall exercise executive command of the Service, subject to section 219(1) and the directions of the Minister referred to in subsection (1).

(3) The President, may, if the National Commissioner has lost the confidence of the Cabinet, institute appropriate proceedings against the Commissioner in accordance with a law.

Powers of provinces

217. (1) The Premier of a province shall charge a member of the Executive Council of the province with responsibility for the performance by the Service in or in regard to that province of the functions set out in section 219(1).

(2) The member of the Executive Council referred to in subsection (1)—

(a)

shall approve or veto the appointment of the relevant Provincial Commissioner in terms of section 218(1)(b); and

(b)

many, if the Provincial Commissioner has lost the confidence of the Executive Council, institute appropriate proceedings against the said Commissioner in accordance with a law.

(3) A provincial legislature may pass laws not inconsistent with national legislation regarding the functions of the Service set out in section 219(1).

(4) No provincial law may—

(a)

permit lower standards of performance of the functions of the Service than those provided for by an Act of Parliament; or

(b)

detract from the rights which citizens have under an Act of Parliament.

Responsibilities of National Commissioner

218. (1) Subject to section 214 and the directions of the Minister referred to in section 216(1), the National Commissioner shall be responsible for—

(a)

the maintenance of an impartial, accountable, transparent and efficient police service;

(b)

the appointment of provincial commissioners, subject to section 217(2)(a);

(c)

the preservation of the internal security in the Republic;

(d)

the investigation and prevention of organised crime or crime which requires national investigation and prevention or specialised skills: Provided that the Act referred to in section 214(1) shall set out the circumstances which shall be regarded as organised crime and the circumstances which require national investigation and prevention or specialised skills;

(e)

international police liaison;

(f)

the keeping and provision of crime intelligence data, criminal records and statistics;

(g)

the training of members of the Service, including any municipal or metropolitan police services to be established;

(h)

the recruitment, appointment, promotion and transfer of all members of the Service;

(i)

the provision of forensic laboratory services;

(j)

such functions relating to border control and the import and export of goods as may be assigned to the Service by law;

(k)

the establishment and maintenance of a national public order policing unit to be deployed in support of and at the request of the Provincial Commissioner: Provided that the Act referred to in section 214(1) shall provide that the President, in consultation with the Cabinet, may direct the National Commissioner to deploy the said unit in circumstances where the Provincial Commissioner is unable to maintain public order and the deployment of the said unit is necessary to restore public order;

(l)

national protection services;

(m)

the establishment of a special task force for high risk operations which require specialised skills; and

(n)

subject to section 219, such other functions as—

(i)

are necessary to achieve the objectives referred to in section 215; and

[Subpara. (i) substituted by s. 6 of Act No. 29 of 1994.]

(ii)

are appropriate for the National Commissioner to take responsibility for.

(2) The National Commissioner may after consultation with the Executive Council of the province concerned assign responsibility for any function set out in this section to a Provincial Commissioner: Provided that the National Commissioner shall ensure that sufficient resources are made available to the Provincial Commissioner for such purpose.

Provincial Commissioners

219. (1) Subject to sections 214 and 218 and the directions of the relevant member of the Executive Council referred to in section 217(1), a Provincial Commissioner shall be responsible for—

(a)

the investigation and prevention of crime;

(b)

the development of community-policing services;

(c)

the maintenance of public order;

(d)

the provision in general of all other visible policing services, including—

(i)

the establishment and maintenance of police stations;

(ii)

crime reaction units; and

(iii)

patrolling services;

(e)

protection services in regard to provincial institutions and personnel;

(f)

transfers within the province of members of the Service performing functions in terms of this section; and

(g)

the promotion, up to the rank of lieutenant-colonel, of members of the Service performing functions in terms of this section.

(2) Subject to sections 214 and 218 and the directions of the National Commissioner, a Provincial Commissioner shall be responsible for—

(a)

the maintenance and discipline of the Service in the province concerned;

(b)

the recruitment of members of the Service responsible for the functions set out in subsection (1);

[Para. (b) substituted by s. 7 of Act No. 29 of 1994.]

(c)

such other functions as may be assigned to him or her by the National Commissioner under section 218(2); and

(d)

subject to such procedures or mechanisms as may be established by the Board of Commissioners referred to in section 220(2), the transfer of members of the Service under his or her command to or from positions outside his or her jurisdiction.

Co-ordination and co-operation

220. (1) A committee consisting of the Minister referred to in section 216(1) and the respective members of the Executive Councils referred to in section 217(1) shall be established to ensure the effective co-ordination of the Service and effective co-operation between the various Commissioners.

(2) The Act referred to in section 214(1) shall provide for the appointment of a Board of Commissioners, consisting of the National Commissioner and the Provincial Commissioners and presided over by the National Commissioner or his or her nominee, in order to promote co-operation and co-ordination in the Service.

Local policing

221. (1) The Act referred to in section 214(1) shall provide for the establishment of community-police forums in respect of police stations.

(2) The functions of community-police forums referred to in subsection (1) may include—

(a)

the promotion of accountability of the Service to local communities and co·operation of communities with the Service;

(b)

the monitoring of the effectiveness and efficiency of the Service;

(c)

advising the Service regarding local policing priorities;

(d)

the evaluation of the provision of visible police services, including—

(i)

the provision, siting and staffing of police stations;

(ii)

the reception and processing of complaints and charges;

(iii)

the provision of protective services at gatherings;

(iv)

the patrolling of residential and business areas; and

(v)

the prosecution of offenders; and

(e)

requesting enquiries into policing matters in the locality concerned.

(3) The Act referred to in section 214(1) shall make provision for the establishment by any local government of a municipal or metropolitan police service: Provided that—

(a)

such a police service may only be established with the consent of the relevant member of the Executive Council of the province referred to in section 217(1);

(b)

the powers of such a police service shall be limited to crime prevention and the enforcement of municipal and metropolitan by-laws;

(c)

the said member of the Executive Council of the province shall, subject

to paragraph (b) and the provisions of the said Act, determine the powers and functions of such a police service; and

(d)

the said Act shall provide that its provisions shall, as far as practicable, apply mutatis mutandis to any such police service.

Independent complaints mechanism

222. There shall be established and regulated by an Act of Parliament an independent mechanism under civilian control, with the object of ensuring that complaints in respect of offences and misconduct allegedly committed by members of the Service are investigated in an effective and efficient manner.

Acts of members outside their territorial jurisdiction

223. (1) No act of a member of the Service shall be invalid solely by reason of the fact that it was committed outside the province in which that member is stationed.

(2) The National Commissioner shall by regulation determine the procedures and the relevant powers of the members of the Service to enable them to perform their functions outside their area of provincial jurisdiction.

South African National Defence Force

Establishment of South African National Defence Force

224. (1) The South African National Defence Force is hereby established as the only defence force for the Republic.

(2) The South African National Defence Force shall at its establishment consist of all members of—

(a)

the South African Defence Force;

(b)

any defence force of any area forming part of the national territory; and

(c)

any armed force as defined in section 1 of the Transitional Executive Council Act, 1993 (Act No. 151 of 1993),

and whose names, at the commencement of this Constitution, are included in a certified personnel register referred to in section 16(3) or (9) of the said Act: Provided that this subsection shall not apply to members of any such defence or armed force if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did not take part in the first election of the National Assembly and the provincial legislatures under this Constitution.

(3) Save for the South African National Defence Force, no other armed force or military force or armed organisation or service may be established in or for the Republic other than—

(a)

as provided for in this Constitution;

(b)

a force established by or under an Act of Parliament for the protection of public property or the environment; or

(c)

a service established by or under law for the protection of persons or property.

[S. 224 amended by s. 13 of Act No. 44 of 1995.]

Chief of South African National Defence Force and Secretary for Defence

225. (1) Subject to section section 236(1) and (2), the President shall appoint a Chief of the South African National Defence Force, who shall exercise military executive command of the South African National Defence Force, subject to the directions of the Minister responsible for defence and, during a state of national defence, of the President.

(2) The Minister responsible for defence may appoint a Secretary for Defence who shall exercise such powers and perform such duties as may be provided for in any law.

[S. 225 substituted by s. 10 of Act No. 44 of 1995.]

Members of South African National Defence Force

226. (1) The South African National Defence Force shall comprise both a permanent force and a part-time reserve component.

(2) The establishment, organisation, training, conditions of service and other matters concerning the permanent force shall be as provided for by an Act of Parliament.

(3) The establishment, organisation, training, state of preparedness, calling up, obligations and conditions of service of the part-time reserve component shall be as provided for by an Act of Parliament.

(4) The South African National Defence Force shall be established in such a manner that it will provide a balanced, modern and technologically advanced military force, capable of executing its functions in terms of this Constitution.

(5) All members of the South African National Defence Force shall be properly trained in order to comply with international standards of competency.

(6) No member of the permanent force shall hold office in any political party or political organisation.

(7) A member of the South African National Defence Force shall be obliged to comply with all lawful orders, but shall be entitled to refuse to execute any order if the execution of such order would constitute an offence or would breach international law on armed conflict binding on the Republic.

(8) Provision shall be made by an Act of Parliament for the payment of adequate compensation to-

(a)

a member of the South African National Defence Force who suffers loss due to physical or mental disability sustained in the execution of his or her duties as such a member; and

(b)

the immediate dependants of a member of the South African National Defence Force who suffer loss due to the death or physical or mental disability of such a member resulting from the execution of his or her duties as such a member.

[S. 226 amended by s. 13 of Act No. 44 of 1995.]

Functions of South African National Defence Force

227. (1) The South African National Defence Force may, subject to this Constitution, be employed—

(a)

for service in the defence of the Republic, for the protection of its sovereignty and territorial integrity;

(b)

for service in compliance with the international obligations of the Republic with regard to international bodies and other states;

(c)

for service in the preservation of life, health or property;

(d)

for service in the provision or maintenance of essential services;

(e)

for service in the upholding of law and order in the Republic in co-operation with the South African Police Service under circumstances set out in a law where the said Police Service is unable to maintain law and order on its own; and

(f)

for service in support of any department of state for the purpose of socio-economic upliftment.

(2) The South African National Defence Force shall—

(a)

exercise its powers and perform its functions solely in the national interest by—

(i)

upholding the Constitution;

(ii)

providing for the defence of the Republic; and

(iii)

ensuring the protection of the inhabitants of the Republic,

in accordance with this Constitution and any law;

(b)

exercise its powers and perform its functions under the directions of the government of the Republic;

(c)

refrain from furthering or prejudicing party-political interests;

(d)

not breach international customary law binding on the Republic relating to aggression;

(e)

in armed conflict comply with its obligations under international customary law and treaties binding on the Republic; and

(f)

be primarily defensive in the exercise or performance of its powers and functions.

(3) The employment for service, training, organisation and deployment of the South African National Defence Force shall be effected in accordance with the requirements of subsection (2).

[S. 227 amended by s. 13 of Act No. 44 of 1995.]

Accountability

228. (1) The Minister responsible for defence shall be accountable to Parliament for the South African National Defence Force.

(2) Parliament shall annually approve a budget for the defence of the Republic.

(3) (a) A joint standing committee of Parliament on defence shall be established, consisting of members of all political parties holding more than 10 seats in the National Assembly and willing to participate in the committee.

(b) The total membership of the committee shall be as determined by or under the rules and orders.

(c) Such a party shall be entitled to designate a member or members on the committee in accordance with the principle of proportional representation and as determined in accordance with the following formula:

(i)

A quota of seats per member of the committee shall be determined by dividing the total number of seats in the National Assembly held jointly by all the parties referred to in paragraph (a) by the total number of members of the committee plus one.

(ii)

The result, disregarding third and subsequent decimals, if any, shall be the quota of seats per member.

(iii)

The number of members that a participating party shall be entitled to designate on the committee, shall be determined by dividing the total number of seats held by such party in the National Assembly by the quota referred to in subparagraph (ii).

(iv)

The result shall, subject to subparagraph (v), indicate the number of members that such party is entitled to designate on the committee.

(v)

Where the application of the above formula yields a surplus not absorbed by the number of members allocated to a party, such surplus shall compete with other similar surpluses accruing to another party or parties, and any member or members which remain unallocated shall be allocated to the party or parties concerned in sequence of the highest surplus.

(d) The committee shall be competent to investigate and make recommendations regarding the budget, functioning, organisation, armaments, policy, morale and state of preparedness of the South African National Defence Force and to perform such other functions relating to parliamentary supervision of the Force as may be prescribed by law.

(4) (a) The President shall, when the South African National Defence Force is employed for service referred to in section 227(1)(a), (b) or (e), forthwith inform Parliament of the reasons for such employment.

(b) If, in the case of such an employment referred to in section 227(1)(a) or (b), Parliament is not sitting, the President shall summon the joint standing committee referred to in subsection (3) to meet expeditiously, but not later than 14 days after the commencement of such employment, and shall inform the committee of the reasons for such employment.

(5) Parliament may by resolution terminate any employment referred to in section 227(1)(a), (b) or (e), but such termination of employment shall not affect the validity of anything done in terms of such employment up to the date of such termination, or any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such employment.

[S. 228 amended by s. 13 of Act No. 44 of 1995.]