South Africa: Numbered Acts

^{OFFICE OF THE PRESIDENT}

No. 1527.

4 October 1995

NO. 68 OF 1995: SOUTH AFRICAN POLICE SERVICE ACT, 1995.

It is hereby notified that the President has assented to the following Act which is hereby published for general information:-

ACT

To provide for the establishment, organisation, regulation and control of the South African Police Service; and to provide for matters in connection therewith.

ARRANGEMENT OF SECTIONS

Subject Section

CHAPTER 1

INTERPRETATION

Definitions 1

CHAPTER 2

MINISTERIAL SERVICES

Secretariat 2

Functions of Secretariat 3

^{Executive Co-ordinating Committee 4}

CHAPTER 3

ESTABLISHMENT AND COMPOSITION OF SERVICE

Establishment and Composition of Service 5

CHAPTER 4

COMMISSIONERS

Appointment of National and Provincial Commissioners 6

Terms of Office of National and Provincial Commissioners 7

Loss of Confidence in National or Provincial Commissioner 8

^{Misconduct by or Incapacity of National or Provincial Commissioner 9}

Board of Commissioners 10

CHAPTER 5

POWERS, DUTIES AND FUNCTIONS

National Commissioner 11

Provincial Commissioners 12

Members 13

Employment of Service in Preservation of Life, Health or Property 14

^{Delegation 15}

CHAPTER 6

ORGANISED CRIME AND PUBLIC ORDER POLICING UNIT

National Prevention and Investigation of Crime 16

National Public Order Policing Unit 17

CHAPTER 7

COMMUNITY POLICE FORUMS AND BOARDS

Objects of Community Police Forums and Boards 18

^{Establishment of Community Police Forums 19}

Establishment of Area Community Police Boards 20

Establishment of Provincial Community Police Boards 21

Functions of Community Police Forums and Boards 22

Procedural Matters 23

CHAPTER 8

REGULATIONS

Regulations 24

National Orders and Instructions 25

Provincial Orders and Instructions 26

CHAPTER 9

^{APPOINTMENTS, TERMS AND CONDITIONS OF SERVICE AND TERMINATION OF SERVICE}

^{Commissioned Officers 33}

^{Inquiries 34}

Discharge of Members on account of Redundancy, Interest of Service or

Appointment to Public Office 35

Discharge on account of Sentence Imposed 36

Discharge of Members Failing to Complete Basic Training 37

^{Missing Members and Employees 38}

Secondment of Members 39

Disciplinary Proceedings 40

Strikes 41

Conduct Sheets 42

^{Suspension while in Detention or Imprisoned 43}

Rewards and Recognitions 44

Retirement 45

Political Activities of Members 46

Obedience 47

^{Reserve Police Service 48}

Limitation on Right to Resign 49

CHAPTER 10

INDEPENDENT COMPLAINTS DIRECTORATE

Establishment and Independence 50

Appointment of Executive Director 51

Personnel and Expenditure 52

Functions of Directorate 53

^{Reporting 54}

CHAPTER 11

GENERAL PROVISIONS

Non-liability for Acts Under Irregular Warrant 55

Limitation of Liability of State and Members 56

^{Actions against Service 57}

^{Salary or Allowance not to be Assigned or Attached 58}

CHAPTER 12

MUNICIPAL AND METROPOLITAN POLICE SERVICES

Municipal and Metropolitan Police Services 64

CHAPTER 13

OFFENCES

Receipt or Possession of Certain Property 65

Wearing and Use of Uniforms, Badges, etc. of Service 66

^{Interference with Members 67}

False Representations 68

^{Prohibition on Making of Sketches or Taking of Photographs of Certain Persons}

and Publication thereof		69
Unauthorised Disclosure of Information		70
Unauthorised Access to or Modification	of Computer Material	71

CHAPTER 14

REPEAL AND TRANSITIONAL PROVISIONS

Repeal and Transitional Provisions 72

CHAPTER 15

SHORT TITLE AND COMMENCEMENT

Short Title and Commencement 73

PREAMBLE

WHEREAS section 214 of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), requires legislation to provide for the establishment and regulation of 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;

AND WHEREAS there is a need to provide a police service throughout the national territory to-

(a) ensure the safety and security of all persons and property in the national territory;

(b) uphold and safeguard the fundamental rights of every person as guaranteed by Chapter 3 of the Constitution;

(c) ensure co-operation between the Service and the communities it serves in the combating of crime;

(d) reflect respect for victims of crime and an understanding of their needs; and

(e) ensure effective civilian supervision over the Service;

(Afrikaans text signed by the President.) (Assented to 28 September 1995.)

BE IT THEREFORE enacted by the Parliament of the Republic of South Africa, as follows:-

CHAPTER 1

INTERPRETATION Definitions

1. In this Act, unless the context otherwise indicates-

(i) "board" means the Board of Commissioners established by section 10(1); (xvi)

(ii) "certificate of appointment" means the document referred to in section

30; (i)

(iii) "commissioned officer" means a commissioned officer appointed under section 33(1); (v)

(iv) "directorate" means the Independent Complaints Directorate established by section 50(1); (iii)

(v) "employee organisation" means an organisation consisting inter alia of members or employees of the Service formally associated together and organised in a staff association, trade association or trade union, for the purpose of regulating relations between themselves and the Service; (xxx)

(vi) "equipment" includes any article supplied by the Service for use by a member in the performance of his or her duties; (xxiii)

(vii) "executive coordinating committee" means the executive co-ordinating committee established by section 4(1); (xxv)

(viii) "Executive Director" means the Executive Director appointed in terms of section 51; (xxiv)

(ix) "fixed establishment" means the posts which have been created for the normal and regular requirements of the Service; (xxvii) (x) "member" means any member of the Service referred to in section 5(2), including-

(a) except for the purposes of any provision of this Act in respect of which the National Commissioner may otherwise prescribe, any member of the Reserve while such member is on duty in the Service;

(b) any temporary member while employed in the Service;

(c) any person appointed in terms of any other law to serve in the Service and in respect of whom the Minister has prescribed that he or she be deemed to be a member of the Service for the purposes of this Act; and

(d) any person designated under section 29 as a member; (vi)

(xi) "member of the Executive Council" means the member of the Executive

Council referred to in section 217(1) of the Constitution; (vii)

(xii) "metropolitan police service" means a metropolitan police service established under section 64(1)(b); (viii)

(xiii) "Minister" means the Minister for Safety and Security; (ix) (xiv) "municipal police service" means a municipal police service

^{established under section 64(1)(a); (x)}

(xv) "National Commissioner" means the National Commissioner referred to in section 6(1); (xi)

(xvi) "National Orders and Instructions" means National Orders and Instructions issued under section 25(1) or which continue to apply in terms of section 72(4)(a); (xii)

(xvii) "national public order policing unit" means the national public order policing unit established in terms of section 17(1); (xiii)

(xviii) "Parliamentary Committees" means the Standing Committees of the National Assembly and the Senate responsible for safety and security affairs; (xiv)

(xix) "prescribe" means prescribe by regulation; (xxix)

(xx) "Provincial Commissioner" means the Provincial Commissioner of a province referred to in section 6(2); (xv)

(xxi) "Rationalisation Proclamation" means the South African Police Service

^{Rationalisation Proclamation, 1995, published by Proclamation No. 5,}

1995, dated 27 January 1995; (xvii)

(xxii) "regulation" means a regulation made under this Act or which continues to apply in terms of section 72(4)(a); (xviii)

(xxiii) "Reserve" means the Reserve Police Service referred to in section

48; (xix)

(xxiv) "secretariat" means the Secretariat for Safety and Security established under section 2(1); (xx)

(xxv) "Secretary" means the Secretary for Safety and Security appointed under section 2(2); (xxi)

(xxvi) "Service" means the South African Police Service established by section 5(1); (ii)

(xxvii) "stores" means any movable property of the State which is kept in stock for distribution in the Service; (xxviii)

(xxviii) "strike" means a strike within the meaning of the Labour Relations

Act, 1956 (Act No. 28 of 1956); (xxii)

(xxix) "this Act" includes the regulations; (iv) and

(xxx) "uniform" means a uniform as prescribed. (xxvi) CHAPTER 2

MINISTERIAL SERVICES Secretariat

2.(1)(a) The Minister shall establish a secretariat to be called the

Secretariat for Safety and Security.

(b) A provincial government may establish a provincial secretariat to be called the Provincial Secretariat for Safety and Security: Provided that the date on which a provincial secretariat will come into operation shall be determined by a provincial government in consultation with the Minister.

(2) The Minister may, subject to the laws governing the public service, appoint a person to the office of Secretary who shall be responsible for-

(a) the performance of the functions of the secretariat; and

(b) the management and administration thereof.

(3) The Secretary may, in consultation with the Minister, subject to the laws governing the public service, appoint the necessary personnel to assist the Secretary to perform, subject to his or her control and directions, any function of the secretariat.

Functions of secretariat

3. (1) The secretariat shall-

(a) advise the Minister in the exercise of his or her powers and the performance of his or her duties and functions;

(b) perform such functions as the Minister may consider necessary or expedient to ensure civilian oversight of the Service;

(c) promote democratic accountability and transparency in the Service; (d) promote and facilitate participation by the Service in the

^{Reconstruction and Development Programme;}

(e) provide the Minister with legal services and advice on constitutional matters;

(f) provide the Minister with communication, support and administrative services;

(g) monitor the implementation of policy and directions issued by the

Minister and report to the Minister thereon;

(h) conduct research into any policing matter in accordance with the instructions of the Minister and report to the Minister thereon;

(i) perform such functions as may from time to time be assigned to the secretariat by the Minister; and

(j) evaluate the functioning of the Service and report to the Minister thereon.

(2) To the extent that it is reasonably necessary for the performance of the functions of the secretariat, any member of its personnel-

(a) may request and obtain information and documents under the control of the Service;

(b) may enter any building or premises under the control of the Service;

^and

(c) shall be entitled to all reasonable assistance by a member.

(3) The Minister may make regulations regarding the establishing and proper

functioning of secretariats: Provided that regulations with regard to provincial secretariats shall be made in consultation with the executive coordinating committee.

(4) A document in the prescribed form, certifying that a person is a member of the personnel of the secretariat, shall serve as prima facie proof that such person is such a member.

(5) Subsections (1), (2) and (4) shall apply mutatis mutandis to a Provincial

Secretariat for Safety and Security. Executive coordinating committee

^{4. (1) The executive coordinating committee contemplated in section 220(1) of}

the Constitution is hereby established.

(2) The Minister shall convene the first meeting of the executive coordinating committee.

(3) The Minister or his or her nominee shall preside at meetings of the executive coordinating committee and the executive co-ordinating committee shall determine its own procedure.

CHAPTER 3

ESTABLISHMENT AND COMPOSITION OF SERVICE Establishment and composition of Service

^{5. (1) The South African Police Service contemplated in section 214(1) of the}

Constitution is hereby established. (2) The Service shall consist of-

^{(a) all persons who immediately before the commencement of this Act were}

members-

(i) of a force which, by virtue of section 236(7)(a) of the

^{Constitution, is deemed to constitute part of the Service;}

(ii) appointed under the Rationalisation Proclamation; (iii) of the Reserve by virtue of section 12(2)(k) of the

^{Rationalisation Proclamation;}

(b) members appointed in terms of section 28(2) of this Act; and

(c) persons who become members of the Reserve under section 48(2) of this

^Act.

CHAPTER 4

COMMISSIONERS Appointment of National and Provincial Commissioners

6. (1) There shall be a National Commissioner of the Service who shall be appointed in accordance with section 216(2)(a) of the Constitution.

(2) There shall be a Provincial Commissioner of the Service for each province who shall be appointed by the National Commissioner subject to section

218(1)(b) of the Constitution.

Terms of office of National and Provincial Commissioners

7. (1) Subject to this Act, the person who is appointed as National or Provincial Commissioner shall occupy that office for a period of five years from the date of his or her appointment or such shorter period as may be determined at the time of his or her appointment by-

(a) the President, in relation to the National Commissioner; or

(b) the National Commissioner in consultation with the member of the

Executive Council, in relation to a Provincial Commissioner.

(2) The term of office referred to in subsection (1) may be extended at the expiry thereof for a period or successive periods not exceeding five years at a time, as may, subject to subsection (3), be determined by-

(a) the President, in relation to the National Commissioner; or

(b) the National Commissioner in consultation with the member of the Executive Council concerned, in relation to the Provincial Commissioner.

(3) The President or the National Commissioner, as the case may be, shall notify the Commissioner concerned in writing at least two calendar months before the expiry of the period contemplated in subsection (1), or any subsequent extended period contemplated in subsection (2), whether he or she intends extending his or her term of office or not and, if so, for what period.

(4) When the National or Provincial Commissioner receives notice of the extension of his or her term of office in accordance with subsection (3), he or she shall notify the President or the National Commissioner, as the case may be, in writing within one calendar month from the date of receipt of such notice of his or her acceptance or not of such extended term of office.

(5) If the National or Provincial Commissioner notifies the President or the National Commissioner, as the case may be, in accordance with subsection (4) of his or her acceptance of such extended term of office, his or her term of office shall be extended accordingly.

Loss of confidence in National or Provincial Commissioner

8. (1) If the National Commissioner has lost the confidence of the Cabinet, the President may establish a board of inquiry consisting of a judge of the Supreme Court as chairperson, and two other suitable persons, to-

(a) inquire into the circumstances that led to the loss of confidence; (b) compile a report; and

^{(c) make recommendations.}

(2)(a) If a Provincial Commissioner has lost the confidence of the

Executive Council, the member of the Executive Council may notify the

Minister of such occurrence and the reasons therefor.

(b) The Minister shall, if he or she deems it necessary and appropriate, refer the notice contemplated in paragraph (a) to the National Commissioner.

(c) The National Commissioner shall, upon receipt of the notice, establish a board of inquiry consisting of not more than three persons, of which the chairperson shall, subject to paragraph (d), be a person who, for

at least 10 years after having qualified as an advocate or an attorney, practised as such, to-

(i) inquire into the circumstances that led to the loss of confidence; (ii) compile a report; and

(iii) make recommendations.

(d) The National Commissioner may appoint any other person suitably qualified in law as chairperson of the board of inquiry.

(3)(a) The President or National Commissioner, as the case may be, may, after hearing the Commissioner concerned, pending the outcome of the inquiry referred to in subsection (1) or (2)(c), suspend him or her from office.

(b) A Commissioner who is suspended from office under paragraph (a), shall, during the period of such suspension, be entitled to any salary, allowance, privilege or benefit to which he or she is otherwise

^{entitled as a member, unless the President or the National}

Commissioner, as the case may be, determines otherwise.

(4) If a board of inquiry is established under subsection (1) or (2)(c), the Commissioner concerned shall be notified thereof in writing, and thereupon he or she may-

(a) be assisted or represented by another person or legal representative; (b) make written representations to the board;

^{(c) be present at the inquiry;}

(d) give evidence thereat;

(e) cross-examine witnesses not called by him or her; (f) be heard;

(g) call witnesses; and

(h) have access to documents relevant to the inquiry.

(5) The board of inquiry shall determine its own procedure.

(6)(a) At the conclusion of the inquiry, the board shall submit its report to-

(i) (aa) the President, in the event of an inquiry under subsection

(1); or

(bb) the National Commissioner, the member of the Executive Council and the standing committee of the provincial legislature responsible for safety and security affairs, in the event of an inquiry under subsection (2);

(ii) the Commissioner concerned; and

(iii) the Parliamentary Committees.

(b) The report referred to in paragraph (a) may recommend that- (i) no action be taken in the matter;

(ii) the Commissioner concerned be transferred to another post or be employed additional to the fixed establishment;

(iii) his or her salary or rank or both his or her salary and rank be reduced;

(iv) action be taken against him or her in accordance with subparagraphs

(ii) and (iii);

(v) he or she be removed from office; or

(vi) any other appropriate steps (including the postponement of any decision by the President or the National Commissioner, as the case may be, for a period not exceeding 12 calendar months) be taken.

(7) The President or the National Commissioner, as the case may be, may, upon receipt of a recommendation contemplated in subsection (6), remove the Commissioner concerned from office, or take any other appropriate action: Provided that, if the President or the National Commissioner, as the case may be, postpones his or her decision for a period, he or she shall, at the end of such period, request the same board of inquiry, or a similar board established for that purpose, to compile a new report and to make a new recommendation after having considered the conduct of the Commissioner concerned during such period.

(8) If a Provincial Commissioner has lost the confidence of the National Commissioner, the provisions of subsections (2)(c) and (d), (3), (4), (5), (6) and (7) shall apply mutatis mutandis.

(9) In the event of a Commissioner being removed from office following on an inquiry in accordance with a finding of a loss of confidence in such a Commissioner, or in accordance with a finding of a loss of confidence referred to in section 9(3), his or her term of office shall be deemed to have expired on the date immediately preceding the date on which such removal from office takes effect.

Misconduct by or incapacity of National or Provincial Commissioner

9. (1) Subject to this section, subsections (1) to (8) of section 8 shall apply mutatis mutandis to any inquiry into allegations of misconduct by the National or Provincial Commissioner, or into his or her fitness for office or capacity for executing his or her official duties efficiently.

(2) The board of inquiry established by virtue of subsection (1) shall make a finding in respect of the alleged misconduct or alleged unfitness for office

^{or incapacity of executing official duties efficiently, as the case may be,}

and make recommendations as contemplated in section 8(6)(b).

(3) If the National Commissioner has lost the confidence of the Cabinet or a Provincial Commissioner has lost the confidence of the Executive Council or the National Commissioner, as the case may be, following on an inquiry in terms of this section, the provisions of section 8(7) shall apply mutatis mutandis.

Board of Commissioners

10. (1) The Board of Commissioners consisting of the National and Provincial

Commissioners is hereby established.

(2) The functions of the board shall be to promote co-operation and co-ordination in the Service.

(3) The board shall be presided over by the National Commissioner or his or her nominee and the board shall determine its own procedure.

CHAPTER 5

^{POWERS, DUTIES AND FUNCTIONS}

National Commissioner

11. (1) The National Commissioner may exercise the powers and shall perform the duties and functions necessary to give effect to section 218(1) of the Constitution.

(2) Without derogating from the generality of subsection (1), the powers, duties and functions referred to in that subsection shall include the power, duty and function to-

(a) develop a plan before the end of each financial year, setting out the priorities and objectives of policing for the following financial year;

(b) determine the fixed establishment of the Service and the number and grading of posts;

(c) determine the distribution of the numerical strength of the Service after consultation with the board;

(d) organise or reorganise the Service at national level into various components, units or groups;

(e) establish and maintain training institutions or centres for the training of students and other members;

(f) establish and maintain bureaus, depots, quarters, workshops or any other institution of any nature whatsoever, which may be expedient for the general management, control and maintenance of the Service; and

(g) perform any legal act or act in any legal capacity on behalf of the

^Service.

Provincial Commissioners

12. (1) Subject to this Act, a Provincial Commissioner shall have command of and control over the Service under his or her jurisdiction in the province and may exercise the powers and shall perform the duties and functions necessary

to give effect to section 219 of the Constitution. (2) A Provincial Commissioner may-

^{(a) subject to a determination under section 11(2)(a), delimit any area in}

the province and determine the boundaries thereof until the province has been divided into as many areas as may be necessary for the purposes of the organisation of the Service under his or her jurisdiction; and

(b) establish and maintain police stations and units in the province and determine the boundaries of station or unit areas.

(3) A Provincial Commissioner shall determine the distribution of the strength of the Service under his or her jurisdiction in the province among the different areas, station areas, offices and units.

Members

13. (1) Subject to the Constitution and with due regard to the fundamental rights of every person, a member may exercise such powers and shall perform such duties and functions as are by law conferred on or assigned to a police official.

(2) Where a member becomes aware that a prescribed offence has been committed, he or she shall inform his or her commanding officer thereof as soon as possible.

(3)(a) A member who is obliged to perform an official duty, shall, with

due regard to his or her powers, duties and functions, perform such duty in a manner that is reasonable in the circumstances.

(b) Where a member who performs an official duty is authorised by law to

use force, he or she may use only the minimum force which is reasonable in the circumstances.

(4) Every member shall be competent to serve or execute any summons, warrant or other process whether directed to him or her or to any other member.

(5) Any member may in general or in any particular instance be required to

act as prosecutor, or in any other respect to appear on behalf of the State in any criminal matter before any magistrate's court, any magistrate holding a preparatory examination, a court of a special justice of the peace or any

other lower court in the Republic.

(6) Any member may, where it is reasonably necessary for the purposes of control over the illegal movement of people or goods across the borders of the Republic, without warrant search any person, premises, other place, vehicle, vessel or aircraft, or any receptacle of whatever nature, at any place in the Republic within 10 kilometres or any reasonable distance from any border between the Republic and any foreign state, or in the territorial waters of

the Republic, or inside the Republic within 10 kilometres or any reasonable distance from such territorial waters and seize anything found in the possession of such person or upon or at or in such premises, other place, vehicle, vessel, aircraft or receptacle and which may lawfully be seized.

(7)(a) The National or Provincial Commissioner may, where it is reasonable

^{in the circumstances in order to restore public order or to ensure the}

safety of the public in a particular area, in writing authorise that the particular area or any part thereof be cordoned off.

(b) The written authorisation referred to in paragraph (a) shall specify

^{the period, which shall not exceed 24 hours, during which the said area}

may be cordoned off, the area or part thereof to be cordoned off and the object of the proposed action.

(c) Upon receipt of the written authorisation referred to in paragraph (a), any member may cordon off the area concerned or part thereof, and may, where it is reasonably necessary in order to achieve the object specified in the written authorisation, without warrant, search any person, premises or vehicle, or any receptacle or object of whatever nature, in that area or part thereof and seize any article referred to in section 20 of the Criminal Procedure Act, 1977 (Act No. 51 of

1977), found by him or her in the possession of such person or in that area or part thereof: Provided that a member executing a search under this paragraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation.

(8)(a) The National or Provincial Commissioner may, where it is reasonable

in the circumstances in order to exercise a power or perform a function referred to in section 215 of the Constitution, in writing authorise a member under his or her command, to set up a roadblock or roadblocks on any public road in a particular area of to set up a checkpoint or checkpoints at any public place in a particular area.

(b) The written authorisation referred to in paragraph (a) shall specify the date, approximate duration, place and object of the proposed

action.

(c) Any member authorised under paragraph (a) may set up a roadblock or roadblocks or cause a roadblock or roadblocks to be set up on any public road in the area so specified or set up a checkpoint or checkpoints or cause a checkpoint or checkpoints to be set up at any public place in the area so specified.

(d) Notwithstanding the provisions of paragraph (a), any member who has reasonable suspicion to believe that-

(i) an offence mentioned in Schedule I to the Criminal Procedure Act,

1977, has been committed and that a person who has been involved in the commission thereof is, or is about to be, travelling in a motor vehicle in a particular area;

(ii) a person who is a witness to such an offence is absconding and is, or is about to be, travelling in a motor vehicle in a particular area and that a warrant for his or her arrest has been issued under section 184 of the Criminal Procedure Act, 1977, or that such a warrant will be issued if the information at the disposal of the member is brought to the attention of the magistrate, regional magistrate or judge referred to in that section, but that the delay in obtaining such warrant will defeat the object of the roadblock;

(iii) a person who is reasonably suspected of intending to commit an offence referred to in subparagraph (i) and who may be prevented

from committing such an offence by the setting up of a roadblock is, or is about to be, travelling in a motor vehicle in a particular area;

(iv) a person who is a fugitive after having escaped from lawful custody is, or is about to be, travelling in a motor vehicle in a particular area; or

(v) any object which-

(aa) is concerned in;

(bb) may afford evidence of; or

(cc) is intended to be used in,

the commission of an offence referred to in subparagraph (i), whether within the Republic or elsewhere, and which is, or is about to be, transported in a motor vehicle in a particular area and that

a search warrant will be issued to him or her under section 21(1)(a)

of the Criminal Procedure Act, 1977, if he

or she had reason to believe that the object will be transported in a specific vehicle and he or she had applied for such warrant, and that the delay that will be caused by first obtaining an authorisation referred to in paragraph (a), will defeat the object of the

roadblock, may set up a roadblock on any public road or roads in that area for the purpose of establishing whether a motor vehicle is carrying such a person or object.

(e) For the purposes of exercising the powers conferred by paragraph (c) or (d), a member shall display, set up or erect on or next to the road or at the public place such sign, barrier or object as is reasonable in

the circumstances to bring the order to stop to the attention of the driver of a vehicle approaching the roadblock so as to ensure that the vehicle will come to a stop or to the attention of a person approaching the checkpoint.

(f) Any driver of a vehicle who approaches a roadblock or any person who approaches a checkpoint and who refuses or fails to stop in accordance with an order to stop displayed as contemplated in paragraph (e), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.

(g) Any member may, without warrant-

(i) in the event of a roadblock or checkpoint that is set up in accordance with paragraph (c), search any person or vehicle stopped at such roadblock or checkpoint and any receptacle or object of whatever nature in the possession of such person or in, on or attached to such vehicle and seize any article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her in the possession of such person or in, on or attached to such receptacle or vehicle: Provided that a member executing a search under this subparagraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by the Commissioner concerned; and

(ii) in the event of a roadblock that is set up in accordance with paragraph (d), search any person or vehicle stopped at such roadblock and any receptacle or object of whatever nature in, on or attached to such vehicle and seize any article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her in, on or attached to such receptacle or vehicle: Provided that a

^{member executing a search under this subparagraph shall, upon demand}

of any person whose rights are or have been affected by the search or seizure, inform him or her of the reason for the setting up of the roadblock.

(h) For the purposes of this subsection "checkpoint" includes any barrier set up under an authorisation referred to in paragraph (a) in order to control the movement of persons.

(9) The provisions of sections 29 to 36 of the Criminal Procedure Act, 1977, shall apply mutatis mutandis in respect of a search conducted under subsections (6), (7) and (8) and any object seized during such a search.

(10) The National or Provincial Commissioner may, in the exercise of any power or the performance of any function referred to in section 215 of the Constitution, publish or cause to be published, or in any other manner display or cause to be displayed any information, photograph or sketch of any person.

(11)(a) A member may, for the purposes of investigating any offence or alleged offence, cordon off the scene of such offence or alleged offence and any adjacent area which is reasonable in the circumstances to cordon off in order to conduct an effective investigation at the scene of the offence or alleged offence.

(b) A member may, where it is reasonable in the circumstances in order to conduct such investigation, prevent any person from entering or leaving an area so cordoned off.

(12)(a) If the National Commissioner deems it necessary for the purposes of performing the functions of the Service, he or she may, with the approval of the Minister, direct any member to perform service at any place outside the Republic.

(b) A member in respect of whom a direction has been issued under paragraph (a), shall perform service in accordance with such direction and shall, while so performing service, remain, unless the Minister in a

particular case otherwise directs, subject to the provisions of this

Act as if performing service within the Republic. (13) Subject to the Constitution -

(a) this section shall not be construed as derogating from any power conferred upon a member by or under this Act or any other law, including the common law; and

(b) the powers conferred upon a member by this section shall not be limited by any other law, including the common law.

Employment of Service in preservation of life, health or property

14. The National or Provincial Commissioner may employ members for service in the preservation of life, health or property.

Delegation

15.(1)(a) Subject to section 15 of the Exchequer Act, 1975 (Act No. 66 of 1975), any power conferred on the National or Provincial Commissioner by this Act or any other law, excluding the power contemplated in section 13(7)(a), may be delegated in writing by any such Commissioner to any member or other person in the employment of the Service, or a board or body established by or under this Act or a law referred to in section 217(3) of the Constitution, who or which

shall exercise such power subject to the directions of the Commissioner concerned.

(b) Paragraph (a) shall apply mutatis mutandis in respect of any power delegated by the National Commissioner to a Provincial Commissioner under that paragraph.

(2) The delegation of any power by the National or Provincial Commissioner under subsection (1) may be withdrawn by such a Commissioner and any decision taken by anyone under such delegated power may be withdrawn or amended by such Commissioner, and shall, until it is so withdrawn or amended, be deemed to

have been taken by the National or Provincial Commissioner concerned: Provided that any such withdrawal or amendment shall not affect any right, privilege, obligation or liability acquired, accrued or incurred as a result of such decision.

CHAPTER 6

ORGANISED CRIME AND PUBLIC ORDER POLICING UNIT National prevention and investigation of crime

^{16. (1) Circumstances amounting to criminal conduct or an endeavour thereto,}

as set out in subsection (2), shall be regarded as organised crime, crime which requires national prevention or investigation, or crime which requires specialised skills in the prevention and investigation thereof.

(2) Circumstances contemplated in subsection (1) comprise criminal conduct or endeavour thereto-

(a) by any enterprise or group of persons who have a common goal in committing crimes in an organised manner;

(b) (i) by a person or persons in positions of trust and making use of specialised or exclusive knowledge;

(ii) in respect of the revenue or expenditure of the national government; or

(iii) in respect of the national economy or the integrity of currencies;

(c) which takes on such proportions or is of such a nature that the prevention or investigation thereof at national level would be in the national interest;

(d) in respect of unwrought precious metals or unpolished diamonds;

(e) in respect of the hunting, importation, exportation, possession, buying and selling of endangered species or any products thereof as may be prescribed;

(f) in more than one province or outside the borders of the Republic by the same perpetrator or perpetrators, and in respect of which the

prevention or investigation at national level would be in the national interest;

(g) in respect of which the prevention or investigation requires the application of specialised skills and where expedience requires that it be prevented or investigated at national level;

(h) which a Provincial Commissioner requests the National Commissioner to prevent or investigate by employing expertise and making resources available at national level and to which request the National Commissioner accedes;

(i) in respect of which the investigation in the Republic by the Service is requested by an international police agency or the police of a foreign country; and

(j) in respect of which the prevention or investigation by members under the command of a Provincial Commissioner will detrimentally affect or hamper the prevention or investigation of circumstances referred to in paragraphs (a) to (i).

(3) In the event of a dispute between the National and Provincial Commissioner regarding the question whether criminal conduct or endeavour thereto should be regarded as organised crime, crime which requires national prevention or investigation or crime which requires specialised skills in the investigation and prevention thereof, the determination by the National Commissioner shall prevail.

(4)(a) Notwithstanding the provisions of subsections (1), (2) and (3), the Provincial Commissioner shall be responsible for the prevention and investigation of all crimes or alleged crimes committed in the province concerned.

(b) Where an investigation of a crime or alleged crime reveals that the circumstances referred to in subsection (2) are present, the Provincial Commissioner shall report the matter to the National Commissioner as soon as possible.

(c) The National Commissioner may, in consultation with the Provincial Commissioner concerned, notwithstanding the presence of the circumstances referred to in subsection (2), direct that the investigation or any part thereof, be conducted by the Provincial Commissioner.

National public order policing unit

17. (1) The National Commissioner shall, subject to section 218(1)(k) of the

Constitution, establish and maintain a national public order policing unit.

(2) The National Commissioner may deploy the national public order policing unit, or any part thereof, at the request and in support of a Provincial Commissioner, taking into account-

(a) the reason for the request;

(b) the personnel and equipment available to the unit; and

(c) any other circumstances anywhere in the national territory which may have an influence on the maintenance of public order and which may require the deployment of the unit or any part thereof elsewhere.

(3) Where the national public order policing unit or any part thereof is deployed under subsection (2), the unit shall perform its functions subject to the directions of the Provincial Commissioner concerned: Provided that the

mere fact of such deployment does not preclude the President from exercising his or her powers under subsection (5) in relation to the area where the unit is so deployed.

(4) The National Commissioner may withdraw the national public order policing unit or any part thereof deployed under subsection (2), taking into account-

(a) the prevailing circumstances where the unit or part thereof is so deployed;

(b) the personnel and equipment available to the unit; and

(c) any other circumstances anywhere in the national territory which may have an influence on the maintenance of public order and which may require the deployment of the unit or any part thereof elsewhere:

Provided that the National Commissioner shall, at the request of the Provincial Commissioner, withdraw the unit or any part thereof so deployed.

(5) The President may, in consultation with the Cabinet, direct the National Commissioner to deploy the national public order policing unit in circumstances where a Provincial Commissioner is unable to maintain public order and the deployment of the unit is necessary to restore public order.

(6) The National Commissioner shall, upon receiving a direction under subsection (5), deploy the national public order policing unit or such part thereof as may be necessary to restore public order to the area concerned, and may from time to time if he or she deems it necessary, deploy additional members of the unit in the area concerned or, subject to subsection (7), withdraw members of the unit from the area concerned if their continued presence is no longer required to restore or maintain public order in the area concerned or in any part thereof.

(7) Where the national public order policing unit or any part thereof is deployed under subsection (5) and public order has been restored in the area concerned, the unit or part thereof shall continue to maintain public order in such area until the President, in consultation with the Cabinet, directs the National Commissioner to withdraw the unit.

CHAPTER 7

COMMUNITY POLICE FORUMS AND BOARDS Objects of community police forums and boards

18. (1) The Service shall, in order to achieve the objects contemplated in section 215 of the Constitution, liaise with the community through community police forums and area and provincial community police boards, in accordance

with sections 19, 20 and 21, with a view to-

(a) establishing and maintaining a partnership between the community and the Service;

(b) promoting communication between the Service and the community; (c) promoting co-operation between the Service and the community in

^{fulfilling the needs of the community regarding policing;}

(d) improving the rendering of police services to the community at national, provincial, area and local levels;

(e) improving transparency in the Service and accountability of the Service to the community; and

(f) promoting joint problem identification and problem-solving by the

Service and the community.

(2) This Chapter shall not preclude liaison by the Service with the community by means other than through community police forums and boards.

Establishment of community police forums

19. (1) A Provincial Commissioner shall, subject to the directions of the member of the Executive Council, be responsible for establishing community police forums at police stations in the province which shall, subject to subsection (3), be broadly representative of the local community.

(2) A community police forum may establish community police sub-forums. (3) Subject to section 23(1)(b), the station commissioner and the members

^{designated by him or her from time to time for that purpose, shall be members}

^{of the community police forum and sub-forums established at the police station}

concerned.

Establishment of area community police boards

20. (1) A Provincial Commissioner shall, subject to the directions of the member of the Executive Council, be responsible for establishing area community police boards in all areas within the province.

(2) An area community police board shall, subject to subsection (3), consist of representatives of community police forums in the area concerned designated for that purpose by such community police forums.

(3) Subject to section 23(1)(b), the area commissioner and the members designated by him or her from time to time for that purpose, shall be members of the area community police board concerned.

Establishment of provincial community police boards

21. (1) A Provincial Commissioner shall, subject to the directions of the member of the Executive Council, be responsible for establishing a provincial community police board.

(2) A provincial community police board shall, subject to subsection (3), consist of representatives of area community police boards designated for that purpose by the area community police boards in the province concerned.

(3) Subject to section 23(1)(b), the Provincial Commissioner and the members designated by him or her from time to time for that purpose, shall be members of the provincial community police board concerned.

Functions of community police forums and boards

22. (1) A provincial or area community police board or a community police forum or subforum shall perform the functions it deems necessary and appropriate to achieve the objects contemplated in section 18, which may include the functions contemplated in section 221(2) of the Constitution.

(2) The Minister shall, in consultation with the executive coordinating committee, make regulations to ensure the proper functioning of community police forums and sub-forums and community police boards.

Procedural matters

23. (1) Every provincial or area community police board and community police forum or sub-forum shall-

(a) elect one of its members as chairperson and another one as vice-chairperson;

(b) determine the number of members to be designated by the provincial, area or station commissioner concerned to serve as members of the board, forum or subforum concerned: Provided that that number shall not be less than one in addition to the provincial, area or station commissioner concerned;

(c) determine its own procedure and cause minutes to be kept of its proceedings; and

(d) whenever it deems it necessary, co-opt other members or experts or community leaders to the board or forum in an advisory capacity.

(2) Members of community police forums or boards shall render their services on a voluntary basis and shall have no claim to compensation solely for services rendered to such forums and boards.

(3) The majority of the members of the board, forum or sub-forum concerned shall constitute a quorum at a meeting thereof.

(4) If the chairperson of a board or forum referred to in this section is absent from a meeting, the vice-chairperson shall act as chairperson, and if both the chairperson and vice-chairperson are so absent, the members present shall elect one of their number to preside at that meeting.

CHAPTER 8

REGULATIONS Regulations

^{24. (1) The Minister may make regulations regarding-}

(a) the exercising of policing powers and the performance by members of their duties and functions;

(b) the recruitment, appointment, promotion and transfer of members; (c) the training, conduct and conditions of service of members;

(d) the general management, control and maintenance of the Service;

(e) returns, registers, records, documents, forms and correspondence in the

Service;

(f) labour relations, including matters regarding suspension, dismissal and

grievances;

(g) (i) the institution and conduct of disciplinary proceedings or inquiries;

(ii) conduct by members that will constitute misconduct;

(iii) the provisions, if any, of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), that shall apply mutatis mutandis to disciplinary proceedings or inquiries under this Act;

(iv) the attendance by a member or any witness, of such disciplinary proceedings or inquiries;

(v) the circumstances under which such disciplinary proceedings or inquiries may be conducted or proceeded with in the absence of the member accused of misconduct or affected by such an inquiry;

(vi) the hearing and submission of evidence at such disciplinary proceedings or inquiries;

(vii) competent findings and sanctions in respect of such disciplinary proceedings or inquiries; and

(viii) review and appeal in respect of such disciplinary proceedings or inquiries;

(h) the issue of a code of conduct for the Service and the upholding thereof;

(i) the establishment of different categories of personnel, components, ranks, designations and appointments in the Service;

(j) (i) the standards of physical and mental fitness required, and the medical examination, of members;

(ii) the medical, dental and hospital treatment of members and their families;

(k) (i) the establishment, management and control of a scheme to provide for the medical, dental and hospital treatment, the provision of medicines and other medical requirements and the transportation during their indisposition of-

(aa) members and members of their families;

(bb) members who have retired or who retire on pension, and members of their families; and

(cc) the families of deceased members;

(ii) the categories of members, or other persons who shall or may become members of such a scheme;

(iii) the portion of the costs of such treatment, medicines, medical requirements and transportation which shall be payable under such a scheme by any member or category of members of such a scheme;

(iv) the termination of membership of such a scheme;

(v) the rights, privileges and obligations of members of such a scheme; (vi) the vesting in such a scheme of assets, rights, liabilities or

^{obligations or the disposal in any way of the assets of such a}

scheme; and

(vii) generally, all matters reasonably necessary for the regulation and operation of such a scheme;

(l) the resignation or reduction in rank of members;

(m) the grading of posts and the remuneration structure, including allowances or benefits of members;

(n) the establishment and maintenance of training institutions or centres for members and the instruction, training, discipline and control of members at such institutions or centres;

(o) the management of and access to laboratories established for the purposes of the analysis of forensic evidence as well as fees payable for services rendered in that regard;

(p) the attendance by members of instructional or training courses at institutions or centres other than those established and maintained in terms of this Act;

(q) the establishment and control of funds of clubs referred to in section

^62(3);

(r) the deductions to be made from the salaries, wages or allowances of members;

(s) the provisioning of the Service, including the provision of stores and equipment required for the Service, and the care, safe custody and maintenance thereof;

(t) the design, award, use, care, loss, forfeiture and restoration of any decoration or medal instituted, constituted or created under this Act, and its bar, clasp or ribbon;

(u) the design of an official flag and coat of arms for the Service;

(v) the dress and clothing of members, and the control over or disposal of a uniform or part thereof;

(w) the utilisation by the Service of property- (i) forfeited to the State;

(ii) abandoned, lost or taken charge of by a member; or

(iii) unclaimed and found or taken charge of by a member;

(x) the retention of rank on retirement from the Service and the award of honorary ranks;

(y) the occupation by members of quarters, whether owned or rented by the

State or placed at its disposal;

(z) the participation in sport and recreational activities by members; (aa) the fair distribution of and access to police services and

^{resources in respect of all communities;}

(w) the utilisation by the Service of property- (i) forfeited to the State;

(ii) abandoned, lost or taken charge of by a member; or

(iii) unclaimed and found or taken charge of by a member; (i) the procedure thereof; and

(ii) the attendance by witnesses of the proceedings thereof; (ee) the development of the plan contemplated in sec

achievement of the objects of this Act.

(2) Different regulations may be made regarding different categories of members or personnel.

(3) Any regulation under subsection (1)(cc) shall be made in consultation with the Executive Director.

(4) Any regulation which affects State revenue or expenditure shall be made with the concurrence of the Minister of Finance.

National orders and instructions

25. (1) The National Commissioner may issue national orders and instructions regarding all matters which-

(a) fall within his or her responsibility in terms of the Constitution or this Act;

(b) are necessary or expedient to ensure the maintenance of an impartial, accountable, transparent and efficient police service; or

(c) are necessary or expedient to provide for the establishment and maintenance of uniform standards of policing at all levels required by law.

(2) National orders and instructions issued under subsection (1) shall be known and issued as National Orders and Instructions and shall be applicable to all members.

(3) The National Commissioner may issue different National Orders and

Instructions in respect of different categories of members. Provincial orders and instructions

26. (1) Provincial Commissioners may issue orders and instructions which are not inconsistent with this Act or the National Orders and Instructions.

(2) Orders and instructions issued under subsection (1) shall be known and issued as the Provincial Orders and Instructions of the province concerned and shall be applicable to members under the command of the Provincial

Commissioner concerned only.

(3) If any Provincial Order or Instruction is inconsistent with a National

Order or Instruction, the National Order or Instruction shall prevail.

CHAPTER 9

APPOINTMENTS, TERMS AND CONDITIONS OF SERVICE AND TERMINATION OF SERVICE Filling of posts

^{27. (1) Subject to subsection (2), the filling of any post in the Service,}

whether by appointment, promotion or transfer, shall be done in accordance with section 212(4) of the Constitution.

(2) Subsection (1) shall not preclude compliance with measures designed to achieve the objects contemplated in sections 8(3)(a) and 212(2) of the

Recruitment and appointment

28. (1) The National Commissioner shall determine a uniform recruitment procedure for the Service.

(2) Subject to section 27, the National Commissioner may appoint a person to a post in the fixed establishment of the Service.

(3) Any commissioned officer, magistrate, additional magistrate or assistant magistrate may, if sufficient permanent members are not available at a particular locality to perform a specific police duty, appoint such fit and proper persons as may be necessary as temporary members to perform such duty on such terms and conditions as may be prescribed.

Designation as member

29. (1) The Minister may by notice in the Gazette designate categories of personnel employed on a permanent basis in the Service and who are not members, as members.

(2) Personnel designated as members under subsection (1), shall be deemed to be members appointed to posts in the fixed establishment of the Service under section 28(2) with effect from a date determined by the Minister in the notice concerned: Provided that a person who is a member of a category of personnel

so designated who does not, within one month of such designation, consent thereto and, if applicable, consent as required by section 212(7)(b) of the Constitution, to having the retirement age applicable to him or her on 1

^{October 1993 changed as a result of such designation, shall not be affected by}

such notice.

Proof of appointment

30. A document in the prescribed form certifying that a person has been appointed as a member, shall be prima facie proof of such appointment.

Salary and benefits

31. (1) A member shall have the right to the salary and benefits determined in his or her case by or under this Act or any other law.

(2) The salary or salary scale of a member shall not be reduced without his or her consent, except in accordance with section 8(7) or following on disciplinary proceedings under section 40 or an inquiry under section

^34(1)(b).

Training

32. The National Commissioner shall determine the training that members shall undergo.

Commissioned officers

33. (1) The President may from time to time by commission appoint officers

or temporary officers of the Service.

(2) A Deed of Commission, bearing the signatures of the President and the Minister, or replicas thereof, shall be proof of appointment as commissioned officer.

(3) The commission of a commissioned officer shall terminate and be deemed to be cancelled upon-

(a) the discharge of such officer following on disciplinary proceedings under section 40 or an inquiry under section 34(1)(b), (c) or (d);

(b) the reduction in rank of such officer to a rank of non-commissioned officer following on disciplinary proceedings under section 40 or an inquiry under section 34(1)(b);

(c) a direction by the Minister in terms of subsection (5); or

(d) the transfer of such officer to another department under section 14 or

15 of the Public Service Act, 1994 (Proclamation No. R. 103 of 1994).

(4) Subject to section 49, a commissioned officer may at any time in writing and, with or without prior notice, resign from the Service.

(5) Any commissioned officer who leaves the Service because of his or her discharge, retirement or resignation, shall retain the commission and rank he or she held immediately prior to his or her discharge, retirement or resignation, unless the Minister, on the recommendation of the National Commissioner, otherwise directs.

Inquiries

34. (1) The National Commissioner may designate a member, a category of members or any other person or category of persons who may, in general or in a specific case, inquire into-

(a) the fitness of a member to remain in the Service on account of indisposition, ill-health, disease or injury;

(b) the fitness or ability of a member to perform his or her duties or to carry them out efficiently;

(c) the fitness of a member to remain in the Service if his or her continued employment constitutes a security risk for the State;

(d) the fitness of a member to remain in the Service in the light of a misrepresentation made by such member regarding a matter in relation to his or her appointment;

(e) the absence of a member from duty without leave for more than one calendar month;

(f) an injury alleged to have been sustained by a member or other employee of the Service in an accident arising out of or in the course of his or her duty, or a disease or indisposition alleged to have been contracted in the course of his or her duty, or any subsequent incapacitation alleged to be due to the same injury, disease or indisposition, or an indisposition alleged to have resulted from vaccination in accordance with this Act;

(g) the death of a member or other employee of the Service alleged to have been caused as a result of circumstances referred to in paragraph (f);

(h) the absence from duty of a member or other employee of the Service

owing to illness, indisposition or injury alleged to have resulted from misconduct or serious and deliberate failure on his or her part to take reasonable precautions;

(i) the suitability, value and purchase of any property or equipment required for use in the Service or the suitability for further service of any part of property or equipment already in use in the Service;

(j) any deficiency in or damage to or loss of State property or any property in possession of or under the control of the State or a club referred to in section 62(3) or for which the State is responsible, or any property of a member or other employee of the Service which is alleged to have occurred in connection with the performance of his or her duties or functions in the Service, as well as the liability of any person and the desirability to hold any person liable for such deficiency, damage or loss;

(k) any deficiency, loss, damage or expense occasioned to the State or a club referred to in section 62(3) as a result of the conduct of a member or other employee of the Service and any money or unpaid debts

due by such member or employee to the State or such club as well as the liability of any person and the desirability to hold any person liable for such deficiency, loss, damage or expense; or

(l) any other matter which the National Commissioner considers to be in the interest of the Service.

(2) The National Commissioner may designate a member, a category of members or any other person or category of persons who may, in general or in a specific case, investigate or lead evidence in an inquiry contemplated in subsection (1),

(3) The Minister may prescribe-

(a) the procedure applicable to an inquiry contemplated in subsection (1);

and

(b) the circumstances under which such an inquiry may be converted or deemed to have been converted into disciplinary proceedings.

Discharge of members on account of redundancy, interest of Service or appointment to public office

35. The National Commissioner may, subject to the provisions of the Government Service Pension Act, 1973 (Act No. 57 of 1973), discharge a member-

(a) because of the abolition of his or her post, or the reduction in the numerical strength, the reorganisation or the readjustment of the Service;

(b) if, for reasons other than the unfitness or incapacity of such member, his or her discharge will promote efficiency or economy in the Service, or will otherwise be in the interest of the Service; or

(c) if the President or a Premier appoints him or her in the public interest under any law to an office to which this Act or the Public Service Commission Act, 1984 (Act No. 65 of 1984), does not apply.

Discharge on account of sentence imposed

36. (1) A member who is convicted of an offence and is sentenced to a term of imprisonment without the option of a fine, shall be deemed to have been discharged from the Service with effect from the date following the date of

such sentence: Provided that, if such term of imprisonment is wholly suspended, the member concerned shall not be deemed to have been so discharged.

(2) A person referred to in subsection (1), whose-

(a) conviction is set aside following an appeal or review and is not replaced by a conviction for another offence;

(b) conviction is set aside on appeal or review, but is replaced by a conviction for another offence, whether by the court of appeal or review or the court of first instance, and a sentence to a term of imprisonment without the option of a fine is not imposed upon him or her following on the conviction for such other offence; or

(c) sentence to a term of imprisonment without the option of a fine is set aside following an appeal or review and is replaced with a sentence other than a sentence to a term of imprisonment without the option of a fine,

may, within a period of 30 days after his or her conviction has been set aside or his or her sentence has been replaced by a sentence other than a sentence to a term of imprisonment without the option of a fine, apply to the National Commissioner to be reinstated as a member.

(3) In the event of an application by a person whose conviction has been set aside as contemplated in subsection (2)(a), the National Commissioner shall reinstate such person as a member with effect from the date upon which he or she is deemed to have been so discharged.

(4) In the event of any application by a person whose conviction has been set aside or whose sentence has been replaced as contemplated in subsection (2)(b) and (c), the National Commissioner may-

(a) reinstate such person as a member with effect from the date upon which he or she is deemed to have been so discharged; or

(b) cause an inquiry to be instituted in accordance with section 34 into the suitability of reinstating such person as a member.

(5) For the purposes of this section, a sentence to imprisonment until the rising of the court shall not be deemed to be a sentence to imprisonment without the option of a fine.

(6) This section shall not be construed as precluding -any administrative action, investigation or inquiry in terms of any other provision of this Act with respect to the member concerned, and any lawful decision or action taken in consequence thereof.

Discharge of members failing to complete basic training

37. Notwithstanding the provisions of this Act, but subject to the Constitution, the National Commissioner may, in the absence of an inquiry, discharge from the Service a member who fails to complete his or her basic training successfully within a period of 24 months after his or her appointment in the Service.

Missing members and employees

38. (1) If a member or other employee of the Service is reported missing, such member or employee shall for all purposes be deemed to be still employed by the Service until-

(a) the National or Provincial Commissioner otherwise determines;

(b) he or she again reports for duty; or

(c) a competent court issues an order whereby the death of such member or employee is presumed.

(2) The salary or wages and allowances accruing to a member or employee during his or her absence contemplated in subsection (1) shall, subject to subsection (4), be paid-

(a) to his or her spouse; or

(b) if he or she has no spouse, to his or her dependants; or

(c) to any other person who, in the opinion of the Commissioner concerned, is competent to receive and administer such salary or wages and allowances on behalf of the member or employee or his or her spouse or such other dependants.

(3) Payment of any salary or wages and allowances in terms of subsection (2) shall for all purposes be deemed to be payment thereof to the member or employee concerned.

(4) Notwithstanding subsection (2), the National or Provincial Commissioner may from time to time direct that only a portion of the salary or wages and allowances of a member or employee be paid in terms of the said subsection or that no portion thereof be so paid.

Secondment of members

39. (1) The services of a member may be placed at the disposal of any other department of State or any authority established by or under any law.

(2) If a member is seconded under subsection (1), such member shall be deemed to be serving in the Service and shall retain all powers and privileges as a member, subject to such conditions as may be agreed upon by the National Commissioner and the department of State or authority concerned.

(3) A member seconded under subsection (1) shall, in the performance of his or her functions, act in terms of the laws applicable to the department of State or authority to which he or she is seconded, subject to such conditions as may be agreed upon by the National Commissioner and the department of State or authority concerned.

(4) The National Commissioner shall determine uniform standards and procedures regarding the secondment of members.

Disciplinary proceedings

40. Disciplinary proceedings may be instituted in the prescribed manner against a member on account of misconduct, whether such misconduct was committed within or outside the borders of the Republic.

Strikes

41. (1) No member shall strike, induce any other member to strike or conspire with another person to strike.

(2) If the National or Provincial Commissioner has reason to believe that a member is striking or conspiring with another person to strike, the Commissioner concerned may, in a manner which is reasonable in the circumstances, issue an ultimatum to the member concerned to terminate or desist from carrying out such conduct within the period specified in such ultimatum.

(3) In the event that the member refuses or fails to comply with the ultimatum referred to in subsection (2), or if the National or Provincial Commissioner could not reasonably be expected to issue such an ultimatum to a member personally, the Commissioner concerned may, without a hearing, summarily discharge such member from the Service:

Provided that-

(a) such member shall as soon as practicable after the date of such discharge, be notified in writing of such discharge and the reasons therefor;

(b) such member may, within 30 days after the date of receipt of such notice, make written representations to the Minister regarding the revocation of the discharge; and

(c) the Minister may, after having considered any representations, reinstate such member from the date of such discharge.

(4) A discharge from the Service under subsection (3) shall not be invalid solely by reason of such member not receiving notice of the ultimatum referred to in subsection (2).

Conduct sheets

42. (1) The National or Provincial Commissioner shall cause a conduct sheet to be maintained in respect of every member under his or her command.

(2) The National Commissioner shall determine the manner and form in which conduct sheets shall be maintained and when entries recorded thereon may be deleted.

Suspension while in detention or imprisoned

43. (1) Subject to section 36, a member who is in detention or is serving a term of imprisonment shall be deemed to be suspended from the Service for the period during which he or she is so detained or is serving such term of imprisonment.

(2) A member referred to in subsection (1) shall, unless the National or Provincial Commissioner otherwise directs, not be entitled for the applicable period to any salary, wages, allowances, privileges or benefits to which he or she would otherwise be entitled as a member.

(3) Where a member-

(a) is detained pending the outcome of criminal proceedings against him or her and such member is subsequently found not guilty on all charges or is convicted but such conviction is subsequently set aside; or

(b) serves a term of imprisonment which is subsequently set aside, such member may make representations to the National or Provincial Commissioner that any salary, wages, allowances, privileges or benefits forfeited by him or her under subsection (2), be restored to him or

her.

(4) The National or Provincial Commissioner may, in the circumstances contemplated in subsection (3), mero motu or after consideration of any representations received from a member, determine that any forfeited salary, wages, allowances, privileges or benefits be restored to such member,

Rewards and recognitions

44. (1) The National or Provincial Commissioner may, after consultation with the Minister or member of the Executive Council, make an appropriate award to any member or other person for meritorious service in the interest of the Service.

(2) The President may institute, constitute and create decorations and

medals, as well as bars, clasps and ribbons in respect of such decorations and medals, which may be awarded by the President, the Minister or the member of the Executive Council, subject to such conditions as the President may determine, to any member or other person who has rendered exceptional service to the Service.

Retirement

45.(1)(a) Subject to subsection (7), a member may retire from the

Service, and shall be so retired on the date when he or she attains the age of 60 years.

(b) If a member attains the age of 60 years after the first day of the month, he or she shall be deemed to have attained it on the first day of the following month.

(2) A member who is at least 50 years of age may, at any time before attaining the age of 60 years, give written notification to the Minister of his or her wish to retire from the Service, and shall be allowed so to retire if a sufficient reason therefor exists and the retirement will be to the advantage of the Service.

(3) (a) Subject to paragraph (b), a member who in terms of section

212(7)(b) of the Constitution or any other law has the right to retire at an earlier age than that contemplated in subsection (1)(a), shall give written notification to the National Commissioner of his or her wish to be so retired and he or she shall-

(i) if that notification is given to the National Commissioner at least three calendar months prior to the date on which he or she attains the retirement age applicable to him or her, be so retired on the date on which he or she attains that age or, if he or she

^{attains it after the first day of the month, on the first day of the}

following month; or

(ii) if that notification is not given to the National Commissioner at least three calendar months prior to the date on which he or she attains the said age, be so retired on the first day of the fourth month after the month in which the notification is received.

(b)(i) Subject to subsection (4), the National or Provincial

Commissioner shall give written notification of his or her wish to be retired from the Service at least six calendar months prior to

the date on which he or she attains the retirement age applicable to him or her, and if he or she has so given notification, paragraph (a)(i) shall apply mutatis mutandis.

(ii) If the National or Provincial Commissioner has not given written notification at least six calendar months prior to the date on which he or she attains the said age, he or she shall be so retired on the first day of the seventh month following the month in which that notification is received.

(4) Notwithstanding the provisions of this section, the National or Provincial Commissioner may retire from the Service and he or she shall be so retired at the expiry of the term contemplated in section 7, or any extended term contemplated in that section, as the case may be, and he or she shall be deemed to have been so retired in terms of section 35(a).

(5) Subject to subsections (1) and (3)(b)-

(a) the President may at the request of the National Commissioner allow him or her to retire from the Service before the expiry of the term contemplated in section 7 or any extended term contemplated in that section if a reason exists which the President deems sufficient; and

(b) the National Commissioner may at the request of the Provincial Commissioner allow him or her to retire from the Service before the expiry of the term contemplated in section 7 or any extended term contemplated in that section if a reason exists which the National Commissioner deems sufficient.

(6) If the National or Provincial Commissioner is allowed to retire under subsection (5), he or she shall be deemed to have been retired in terms of subsection (2), and shall be entitled to such pension as he or she would have been entitled to if he or she had retired from the Service under the latter subsection.

(7)(a) Notwithstanding the provisions of subsection (1)(a), a member may be retained, with his or her consent, in his or her post beyond the age of

60 years with the approval of the Minister or member of the Executive Council for further periods which shall not, except with the approval by resolution of Parliament, exceed the aggregate of five years.

(b) A member shall only be retained under paragraph (a) if it is- (i) reasonable; and

(ii) in the interest of the Service; or

(iii) generally in the public interest.

(8) Pension benefits shall be paid to a retired member by the institution responsible for the administration of the pension fund to which that member

was a contributor, subject to any law regulating the payment of such benefits.

(9) A benefit payable by the Service in terms of any law shall be paid to the person entitled to such benefit within a period of 90 days after the date on which the National Commissioner received the written notification of such member's termination of service, for any reason, in such a form and with such documents as the National Commissioner may determine for the purposes of this section or, if he or she receives such notification and documents 90 days before the date on which a benefit is payable to the person concerned in terms of such law, on the date on which such benefit is so payable.

(10) Nothing in this section contained shall be construed as derogating from section 212(7) of the Constitution.

Political activities of members

46. (1) No member shall-

(a) publicly display or express support for or associate himself or herself with a political party, organisation, movement or body;

(b) hold any post or office in a political party, organisation, movement or body;

(c) wear any insignia or identification mark in respect of any political party, organisation, movement or body; or

(d) in any other manner further or prejudice party-political interests.

(2) Subsection (1) shall not be construed as prohibiting a member from-

(a) joining a political party, organisation, movement or body of his or her choice;

(b) attending a meeting of a political party, organisation, movement or body:

Provided that no member shall attend such a meeting in uniform; or

(c) exercising his or her right to vote. Obedience

47. (1) Subject to subsection (2), a member shall obey any order or instruction given to him or her by a superior or a person who is competent to do so: Provided that a member shall not obey a patently unlawful order or instruction.

(2) Where it is reasonable in the circumstances, a member may demand that an order or instruction referred to in subsection (1) be recorded in writing before obeying it.

(3) A member may, after having obeyed an order or instruction referred to in subsection (1), demand that such an order or instruction be recorded in writing.

Reserve Police Service

48. (1) The National Commissioner may determine the requirements for recruitment, resignation, training, ranks, promotion, duties and nature of service, discipline, uniform, equipment and conditions of service of members of the Reserve Police Service and any other matter which he or she deems necessary in order to establish and maintain different categories of members of the Reserve Police Service.

(2) The National Commissioner may appoint a person as a member of the Reserve in the prescribed manner.

(3) The National or Provincial Commissioner may in the prescribed manner

order any member of the Reserve to report for service, and any such member who refuses or fails to comply with such order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months: Provided that the Minister may by regulation exclude categories

of members of the Reserve from the application of this subsection.

(4) The National or Provincial Commissioner may, subject to the Constitution, at any time discharge a member of the Reserve from the Service.

(5) During a period contemplated in section 49, the National or Provincial Commissioner may refuse to accept the resignation of a member of the Reserve, unless he or she produces evidence that he or she has enlisted for military service in a recognised unit of the South African National Defence Force.

(6) A member of the Reserve shall be deemed to be in the employ of the Service while on duty, notwithstanding the fact that such member may not be remunerated by the Service.

Limitation on right to resign

49. (1) No member may, during a period in which a state of national defence, declared under section 82(4)(b)(i) of the Constitution, or a state of emergency, proclaimed in accordance with section 34(1) of the Constitution, is

in force, resign from the Service without the written permission of the

National Commissioner .

(2) The National Commissioner may, in circumstances other than those mentioned in subsection (1), where the maintenance of public order in the Republic or any part thereof so requires, order that no member may resign from the Service without his or her written permission during a period of time specified in the order, which period may not exceed 30 days.

CHAPTER 10

INDEPENDENT COMPLAINTS DIRECTORATE Establishment and independence

50.(1)(a) The Independent Complaints Directorate, which shall be structured at both national and provincial levels, is hereby established.

(b) The date on which the provincial structures of the directorate will come into operation, shall be determined by the Executive Director in consultation with the Minister.

(2) The directorate shall function independently from the Service. (3)(a) No organ of state and no member or employee of an organ of state

^{nor any other person shall interfere with the Executive Director or a}

member of the personnel of the directorate in the exercise and performance of his or her powers and functions.

(b) Any person who wilfully interferes with the Executive Director or a member of the personnel of the directorate in the exercise or performance of his or her powers or functions, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(4) All organs of state shall accord such assistance as may be reasonably required for the protection of the independence, impartiality, dignity and effectiveness of the directorate in the exercise and performance of its powers and functions.

Appointment of Executive Director

51. (1) The Minister shall nominate a suitably qualified person for appointment to the office of Executive Director to head the directorate in accordance with a procedure to be determined by the Minister in consultation with the Parliamentary Committees.

(2) The Parliamentary Committees shall, within a period of 30 parliamentary working days of the nomination in terms of subsection (1), confirm or reject such nomination.

(3) In the event of the nomination being confirmed-

(a) such person shall be appointed to the office of Executive Director subject to the laws governing the public service with effect from a date agreed upon by such person and the Minister; and

(b) such appointment shall be for a period not exceeding five years: Provided that such person shall be eligible for consecutive appointments in accordance with this section.

(4) The Executive Director may be removed from his or her office under the circumstances and in the manner prescribed by the Minister in consultation

with the Parliamentary Committees. Personnel and expenditure

^{52. (1) The personnel of the directorate shall consist of persons appointed}

by the Executive Director in consultation with the Minister subject to the

laws governing the public service and such other persons as may be seconded or transferred to the directorate.

(2) The terms and conditions of service of the personnel of the directorate shall be determined by the Minister in consultation with the Executive Director and the Public Service Commission.

(3) The functions of the directorate shall be funded by money appropriated by

Parliament for that purpose.

(4) The Executive Director shall, subject to the Exchequer Act, 1975 (Act No.

66 of 1975)-

(a) be the accounting officer charged with the responsibility of accounting for all money appropriated by Parliament for the purposes of the performance of the functions of the directorate and the utilisation thereof; and

(b) cause the necessary accounting and other related records to be kept. Functions of directorate

^{53.(1)(a) The principal function of the directorate shall be the}

achievement of the object contemplated in section 222 of the

Constitution.

(b) The Executive Director shall be responsible for-

(i) the performance of the functions of the directorate; and

(ii) the management and administration of the directorate. (2) In order to achieve its object, the directorate-

(a) may mero motu or upon receipt of a complaint, investigate any

misconduct or offence allegedly committed by any member, and may, where appropriate, refer such investigation to the Commissioner concerned;

(b) shall mero motu or upon receipt of a complaint, investigate any death in police custody or as a result of police action; and

(c) may investigate any matter referred to the directorate by the Minister or the member of the Executive Council.

(3)(a) The Minister may, upon the request of and in consultation with the Executive Director, authorise those members of the personnel of the directorate identified by the Executive Director, to exercise those powers and perform those duties conferred on or assigned to any member by or under this Act or any other law.

(b) The members of the personnel referred to in paragraph (a) shall have such immunities and privileges as may be conferred by law on a member in order to ensure the independent and effective exercise and performance of their powers and duties.

(4) A document, in the prescribed form, certifying that a person is a member of the personnel of the directorate and has been authorised to exercise the powers and perform the duties of a member, shall be prima facie proof that

such member has been authorised as contemplated in subsection (3).

(5) Any member of the personnel of the directorate who wilfully discloses any information in circumstances in which he or she knows or could reasonably be expected to know that such disclosure would or may prejudicially affect the performance by the directorate or the Service of its functions, shall be

guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(6) The Executive Director may-

(a) at any time withdraw any referral made under subsection (2)(a);

(b) request and obtain information from any Commissioner or police official as may be necessary for conducting any investigation;

(c)(i) monitor the progress of;

(ii) set guidelines regarding; and

(iii) request and obtain information regarding, an investigation referred to a Commissioner under subsection (2)(a);

(d) request and obtain the co-operation of any member as may be necessary to achieve the object of the directorate;

(e) commence an investigation on any matter notwithstanding the fact that an investigation regarding the same matter has been referred under subsection (2)(a), is pending or has been closed by the Service, or the docket regarding the matter has been submitted to the attorney-general for decision: Provided that in the case of a-

(i) referred or pending investigation, the directorate shall act after consultation with the member heading the investigation; or

(ii) docket regarding a matter having been submitted to the attorney-general for decision, the directorate shall act in consultation with the attorney-general;

(f) request and obtain information from the attorney-general's office in so far as it may be necessary for the directorate to conduct an investigation: Provided that the attorney-general may on reasonable grounds refuse to accede to such request;

(g) submit the results of an investigation to the attorney-general for his or her decision;

(h) in consultation with the Minister and with the concurrence of the Minister of Finance, obtain the necessary resources and logistical support or engage the services of experts, or other suitable persons, to enable the directorate to achieve its object;

(i) make recommendations to the Commissioner concerned;

(j) make any recommendation to the Minister or a member of the Executive Council which he or she deems necessary regarding any matter investigated by the directorate or relating to the performance of the directorate's functions:

Provided that in the event of a recommendation made to a member of the Executive Council, a copy thereof shall be forwarded to the Minister; and

(k) subject to the Exchequer Act, 1975 (Act No. 66 of 1975), delegate any

of his or her powers to any member of the personnel of the directorate.

(7) The Executive Director shall, in consultation with the Minister, issue instructions to be complied with by the directorate which shall inter alia include instructions regarding-

(a) the lodging, receiving and processing of complaints;

(b) recording and safe-guarding of information and evidence; (c) disclosure of information;

(d) the making of findings and recommendations; and

(e) all matters incidental to the matters referred to in paragraphs (a) to

(d).

(8) The National or Provincial Commissioner shall notify the directorate of all cases of death in police custody or as a result of police action.

(9) The Minister may prescribe procedures regarding-

(a) protecting the identity and integrity of complainants; and

(b) witness protection programmes. Reporting

^{54. The Executive Director shall-}

(a) within three months after the end of each financial year, submit to the Minister a written report on the activities of the directorate during that financial year, which report shall be tabled in Parliament by the Minister within 14 days after receipt thereof or, if Parliament is not then in session, within 14 days after the commencement of the next ensuing session; and

(b) at any time when requested to do so by the Minister or either the Parliamentary Committees, submit a report on the activities of the directorate to the Minister or that Committee.

CHAPTER 11

GENERAL PROVISIONS Non-liability for acts under irregular warrant

55. (1) Any member who acts under a warrant or process which is bad in law on account of a defect in the substance or form thereof shall, if he or she

has no knowledge that such warrant or process is bad in law and whether or not such defect is apparent on the face of the warrant or process, be exempt from liability in respect of such act as if the warrant or process were valid in law.

(2)(a) Any member who is authorised to arrest a person under a warrant of arrest and who, in the reasonable belief that he or she is arresting such person arrests another, shall be exempt from liability in respect of such wrongful arrest.

(b) Any member who is called upon to assist in making an arrest as contemplated in paragraph (a) or who is required to detain a person so arrested, and who reasonably believes that the said person is the

person whose arrest has been authorised by the warrant of arrest, shall likewise be exempt from liability in respect of such assistance or

detention.

Limitation of liability of State and members

56. Whenever any person is conveyed in or makes use of any vehicle, aircraft or vessel, being the property or under the control of the State in the Service, the State or any member shall not be liable to such person or his or her spouse, parent, child or other dependant for any loss or damage resulting from any bodily injury, loss of life or loss of or damage to property caused

by or arising out of or in any way connected with the conveyance in or the use of such vehicle, aircraft or vessel, unless such person is so conveyed or

makes use thereof in or in the interest of the performance of the functions of the State: Provided that the provisions of this section shall not affect the liability of a member who wilfully causes the said loss or damage.

Actions against Service

57. (1) No legal proceedings shall be instituted against the Service or any body or person in respect of any alleged act performed under or in terms of this Act or any other law, or an alleged failure to do anything which should have been done in terms of this Act or any other law, unless the legal proceedings are instituted before the expiry of a period of 12 calendar months after the date upon which the claimant became aware of the alleged act or omission, or after the date upon which the claimant might be reasonably expected to have become aware of the alleged act or omission, whichever is the earlier date.

(2) No legal proceedings contemplated in subsection (1) shall be instituted before the expiry of at least one calendar month after written notification of the intention to institute such proceedings, has been served on the defendant, wherein particulars of the alleged act or omission are contained.

(3) If any notice contemplated in subsection (2) is given to the National Commissioner or to the Provincial Commissioner of the province in which the cause of action arose, it shall be deemed to be notification to the defendant concerned.

(4) Any process by which any proceedings contemplated in subsection (1) is instituted and in which the Minister is the defendant or respondent, may be served on the National or Provincial Commissioner referred to in subsection (3).

(5) Subsections (1) and (2) shall not be construed as precluding a court of law from dispensing with the requirements or prohibitions contained in those subsections where the interests of justice so require.

Salary or allowance not to be assigned or attached

58. No member shall, without the approval of the National or Provincial Commissioner, assign the whole or any part of any salary, wages or allowance payable to him or her under this Act, nor shall the whole or any part of any such salary, wages or allowance be capable of being seized or attached under or in consequence of any judgment or order of any court of law, other than a garnishee order.

Prohibition on certain dealings

59. (1) No member shall, without the permission of the person under whose command he or she serves, lend any means of transport or equipment which he or she is required to keep and possess, or sell, pledge or otherwise dispose of any such property, irrespective of whether it is the property of the State or his or her own property.

(2) Every sale, pledge, loan or other disposition of any property contrary to

subsection (1), shall be null and void.

Property of Service not liable to seizure or attachment

60. Property which in terms of this Act may not be sold, pledged, lent or otherwise disposed of, shall not be capable of being seized or attached, under or in consequence of any judgment or order of any court of law.

Exemption from tolls, fees and fees of office

61. (1) Subject to subsection (3), any member who, in the exercise of his or her powers or the performance of his or her duties or functions finds it necessary to enter, pass through or go over any wharf, landing place, ferry, bridge, toll-bar, gate or door at or in respect of which any toll, fee or fee of office may be lawfully demanded, shall be exempted from the payment of such toll, fee or fee of office in respect of himself or herself, every person

under his or her arrest and any animal, means of transport or property which he or she may require in the exercise of such powers or the performance of such duties or functions: Provided that if such member is not in uniform, he or she shall, upon a request by any person who may demand such toll, fee or fee of office, disclose his or her identity by exhibiting to such person his or her certificate of appointment.

(2) Any person who may demand any such toll, fee or fee of office, and who subjects any such member, person, animal, means of transport or property to unreasonable delay or detention in respect of the entry to, passage through or going over any such wharf, landing place, ferry, bridge, toll-bar, gate or door, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.

(3) The National or Provincial Commissioner may, if he or she deems it necessary, with regard to the nature of the powers, duties or functions of a member, order that subsection (1) is not applicable to such member, in which event any toll, fee or fee of office contemplated in subsection (1), shall be payable.

Police clubs exempt from licence duties and other fees

62. (1) No licence money, tax, duty or fee (other than customs, excise or value-added tax) shall be payable by any person under any law or by-law in respect of a certified club of the Service or in respect of any article on sale at such a club.

(2) The production of an official document bearing the signature of the Minister or member of the Executive Council or any person authorised by the Minister or member of the Executive Council to sign such document, and indicating that he or she has certified the club as a club of the Service, shall, for the purposes of this section, be conclusive proof that it is such a club.

(3) For the purposes of this section "club" includes any mess or institution of the Service or any premises temporarily or permanently used for providing recreation, refreshment or articles of necessity mainly for members or retired members or other persons employed by the Service or for the families of such members, retired members or employees or such other persons employed in any work in or in connection with any such mess, institution or premises.

Payment by public for police services

63. (1) The National Commissioner shall, with due regard to sections 215,

218 and 219 of the Constitution, determine whether a particular function, duty or service falls within the scope of the normal and generally accepted responsibilities of the Service and, if such function, duty or service does

not fall within such scope, it shall, subject to subsection (2), be performed

only on such conditions as may be prescribed in consultation with the

Treasury.

(2) Notwithstanding the provisions of subsection (1), the National

Commissioner may authorise that any function, duty or service be performed

free of charge on behalf of any deserving charity or in any case considered to be of general, cultural or educational interest.

CHAPTER 12

MUNICIPAL AND METROPOLITAN POLICE SERVICES Municipal and metropolitan police services

^{64. (1) Any local government may, subject to the Constitution and this Act,}

establish-

(a) a municipal police service; or

(b) a metropolitan police service.

(2)(a) The Minister shall prescribe which provisions of this Act shall

apply mutatis mutandis to any municipal or metropolitan police service.

(b) The Minister may make regulations regarding the establishment of municipal and metropolitan police services, including which categories of local governments may establish municipal police services and which categories of local governments may establish metropolitan police services.

(3) The National Commissioner shall determine the minimum standards of training that members of municipal and metropolitan police services shall undergo.

(4) Legal proceedings in respect of any alleged act performed under or in terms of this Act or any other law, or an alleged failure to do anything which should have been done in terms of this Act or any other law, by any member of

a municipal or metropolitan police service, shall be instituted against the local government concerned and section 57 shall not be applicable to such legal proceedings.

(5) The establishment of a municipal or metropolitan police service shall not derogate from the functions of the Service or the powers, duties or functions of a member in terms of any law.

(6) Where a municipal or metropolitan police service has been established, such service shall be represented by at least one of its members designated by such service for that purpose on every community police forum or sub-forum established in terms of section 19 in its area of jurisdiction.

CHAPTER 13

OFFENCES Receipt or possession of certain property

65. Any person who receives or has in his or her possession any property which in terms of this Act may not be sold, pledged, lent or otherwise disposed of, knowing the same to have been sold, pledged, lent or otherwise disposed of in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding

12 months.

Wearing and use of uniforms, badges, etc. of Service

66. (1) Any person who wears any uniform or distinctive badge or button of

the Service or wears anything materially resembling any such uniform, badge or button or wears anything with the intention that it should be regarded as such uniform, badge or button, shall, unless-

(a) he or she is a member entitled by reason of his or her appointment, rank or designation to wear such uniform, badge or button; or

(b) he or she has been granted permission by the National or Provincial

Commissioner to wear such uniform, badge or button,

be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.

(2) Any person who wears, or without the written permission of the National Commissioner, makes use of any decoration or medal instituted, constituted or created under this Act, or its bar, clasp or ribbon, or anything so closely resembling any such decoration, medal, bar, clasp or ribbon as to be calculated to deceive, shall, unless he or she is the person to whom such decoration or medal was awarded, be guilty of an offence and liable on

conviction to a fine or to imprisonment for a period not exceeding six months. Interference with members

67. (1) Any person who-

(a) resists or wilfully hinders or obstructs a member in the exercise of his or her powers or the performance of his or her duties or functions or, in the exercise of his or her powers or the performance of his or her duties or functions by a member wilfully interferes with such member or his or her uniform or equipment or any part thereof; or

(b) in order to compel a member to perform or to abstain from performing any act in respect of the exercise of his or her powers or the performance of his or her duties or functions, or on account of such member having done or abstained from doing such an act, threatens or suggests the use of violence against, or restraint upon such member or any of his or her relatives or dependants, or threatens or suggests any injury to the property of such member or of any of his or her relatives or dependants,

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.

(2) Any person who-

(a) conspires with or induces or attempts to induce any member not to perform his or her duty or any act in conflict with his or her duty; or

(b) is a party to, assists or incites the commission of any act whereby any lawful order given to a member may be evaded,

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(3) Any person who induces or attempts to induce a member to commit

misconduct shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.

(4) In the event of a criminal prosecution of any member or a representative of an employee organisation on account of a contravention of subsection (2) or (3), it shall constitute a defence if the sole purpose of such person's

conduct was to-

(a) further or cause a strike by members-, or

(b) further the activities of a bona fide employee organisation. False representations

^{68. (1) Any person who pretends that he or she is a member shall be guilty}

of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(2) Any person who by means of a false certificate or any false representation obtains an appointment in the Service, or, having been

dismissed from the Service, receives, by concealing the dismissal, any salary, wages, allowance, gratuity or pension, shall be guilty of an offence and

liable on conviction to a fine or to imprisonment for a period not exceeding six months.

(3) Any person who, in connection with any activity carried on by him or her takes, assumes, uses or in any manner publishes any name, description, title or symbol indicating or conveying or purporting to indicate or convey or is calculated or is likely to lead other persons to believe or infer that such activity is carried on under or in terms of the provisions of this Act or under the patronage of the Service, or is in any manner associated or

connected with the Service, without the approval of the National Commissioner, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.

Prohibition on making of sketches or taking of photographs of certain persons and publication thereof

69. (1) For the purposes of this section-

"photograph" includes any picture, visually perceptible image, depiction or any other similar representation of the person concerned;

"publish", in relation to a photograph, includes to exhibit, show, televise, represent or reproduce; and

"take", in relation to a photograph, includes the performance of any act which by itself or as part of a process or as one of a sequence of acts renders possible the production of a photograph.

(2)(a) A member who has reason to believe that the taking of a photograph

or the making of a sketch of any person who is, in relation to criminal proceedings, detained in custody, will prejudicially affect an ongoing investigation into an offence or alleged offence, may prohibit any person from taking such photograph or making such sketch.

(b) Any person who takes a photograph or makes a sketch in contravention of a prohibition under paragraph (a), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.

(3)(a) No person may, without the written permission of the National or

Provincial Commissioner, publish a photograph or sketch of a person- (i) who is suspected of having committed an offence and who is-

^{(aa) fleeing;}

(bb) in custody pending a decision to institute criminal proceedings against him or her; or

(cc) in custody pending the completion of criminal proceedings in which such person is an accused; or

(ii) who is or may reasonably be expected to be a witness in criminal proceedings and who is in custody pending such proceedings.

(b) Any person who publishes a photograph or sketch in contravention of paragraph (a), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.

Unauthorised disclosure of information

70. Any member who wilfully discloses information in circumstances in which he or she knows, or could reasonably be expected to know, that such a disclosure will or may prejudicially affect the exercise or the performance by the Service of the powers or the functions referred to in section 215 of the Constitution, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

Unauthorised access to or modification of computer material

71. (1) Without derogating from the generality of subsection (2)- "access to a computer" includes access by whatever means to any

program or data contained in the random access memory of a computer or stored by any computer on any storage medium, whether such storage medium is physically attached to the computer or not, where such storage medium belongs to or is under the control of the Service;

"contents of any computer" includes the physical components of any computer as well as any program or data contained in the random access memory of a computer or stored by any computer on any storage medium, whether such storage medium is physically attached to the computer or not, where such storage medium belongs to or is under the control of the Service;

"modification" includes both a modification of a temporary or permanent nature; and

"unauthorised access" includes access by a person who is authorised to use the computer but is not authorised to gain access to a certain program or to certain data held in such computer or is unauthorised,

^{at the time when the access is gained, to gain access to such}

computer, program or data.

(2) Any person who wilfully gains unauthorised access to any computer which belongs to or is under the control of the Service or to any program or data held in such a computer, or in a computer to which only certain or all members have restricted or unrestricted access in their capacity as members, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

(3) Any person who wilfully causes a computer which belongs to or is under the control of the Service or to which only certain or all members have restricted or unrestricted access in their capacity as members, to perform a function while such person is not authorised to cause such computer to perform such function, shall be guilty of an offence and liable on conviction to a

fine or to imprisonment for a period not exceeding two years.

(4) Any person who wilfully performs an act which causes an unauthorised modification of the contents of any computer which belongs to or is under the control of the Service or to which only certain or all members have restricted or unrestricted access in their capacity as members with the intention to-

(a) impair the operation of any computer or of any program in any computer or of the operating system of any computer or the reliability of data held in such computer; or

(b) prevent or hinder access to any program or data held in any computer, shall be guilty of an offence and liable on conviction to a fine or to

^{imprisonment for a period not exceeding five years.}

(5) Any act or event for which proof is required for a conviction of an offence in terms of this section which was committed or took place outside the Republic shall be deemed to have been committed or have taken place in the Republic: Provided that-

(a) the accused was in the Republic at the time he or she performed the act or any part thereof by means of which he or she gained or attempted to gain unauthorised access to the computer, caused the computer to

^{perform a function or modified or attempted to modify its contents-,}

(b) the computer, by means of or with regard to which the offence was committed, was in the Republic at the time the accused performed the

act or any part thereof by means of which he or she gained or attempted to gain unauthorised access to it, caused it to perform a function or modified or attempted to modify its contents; or

(c) the accused was a South African citizen at the time of the commission of the offence.

CHAPTER 14

REPEAL AND TRANSITIONAL PROVISIONS Repeal and transitional provisions

72.(1)(a) Subject to this section, the Rationalisation Proclamation is hereby repealed, excluding-

(i) sections 8(1), 9(1) to (8) , 10, 12(1) and (2)(a) to (j), 13 and 14 thereof; and

(ii) any other provision of that Proclamation in so far as it relates to the interpretation or execution of a provision mentioned in subparagraph (i).

(b) Sections 11, 12 and 15 of this Act shall, where applicable, be subject to section 9(1) to (8) of the Rationalisation Proclamation until the National Commissioner has certified that the assignment of the functions referred to in section 219 of the Constitution by the National Commissioner to all Provincial Commissioners as contemplated in section 9(4)(a) of the Rationalisation Proclamation, has been completed, whereupon sections 11, 12 and 15 of this Act shall be applicable to the National and Provincial Commissioner in relation to the Province concerned.

(c) The Minister may make regulations regarding all matters which are necessary or expedient for the purposes of this subsection.

(d) Any person who, immediately before the commencement of this Act, was a member of a force contemplated in section 5(2)(a)(i), and who has not been appointed to a post in or additional to the fixed establishment or otherwise dealt with in accordance with section 14 of the Rationalisation Proclamation, shall serve in a pre-rationalised post until he or she is appointed to a post in or additional to the fixed

establishment or is otherwise dealt with in accordance with that section.

(e) Any person referred to in paragraph (d) who has been or is appointed to a post in or additional to the fixed establishment or is otherwise

dealt with in terms of the Rationalisation Proclamation, shall be deemed to have been so appointed or dealt with under the corresponding provision of this Act.

(2) In the application of the provisions mentioned in subsection (1)(a), and unless the context otherwise indicates or if clearly inappropriate, any reference therein to the Rationalisation Proclamation or to the Police Act,

1958 (Act No. 7 of 1958), or to any repealed provision thereof, shall be construed as a reference to this Act, or to the corresponding provision thereof, as the case may be.

(3) Any reference in any law to a Commissioner of a police force shall, except where such post has not yet been abolished, and unless clearly inappropriate, be construed as a reference to the National Commissioner or, in regard to any matter in respect of which a Provincial Commissioner is lawfully responsible, and subject to section 219 of the Constitution, to the Provincial Commissioner concerned.

(4)(a) Anything done, including any regulation made or standing order or instruction issued or other administrative measure taken or any contract entered into or any obligation incurred under the Rationalisation Proclamation or any law repealed by this Act or the Rationalisation Proclamation which could be done under this Act and in force immediately before the commencement of this Act, shall be deemed

to have been so done, made, issued, taken, entered into or incurred, as the case may be, under this Act until amended, abolished, withdrawn or repealed under this Act.

(b) Any reference in any regulation, standing order or administrative measure to a regional commissioner or a district commissioner shall, unless clearly inappropriate, be construed as a reference to a Provincial Commissioner or an area commissioner, respectively.

(5) Every existing statutory institution or other body performing policing functions of whatever nature under the control of a local government (hereinafter in this section referred to as a "service") shall cease to exist six months from the date of the promulgation of the regulations contemplated in section 64(2) unless-

(a) the local authority concerned has by resolution decided that such service would continue to exist under its control; and

(b) the member of the Executive Council concerned has approved the continued existence of such service.

(6) If the provisions of subsection (5)(a) and (b) are complied with, the service referred to in that subsection shall be deemed to have been

established in terms of section 64(1) on the date upon which the member of the Executive Council has approved its continued existence: Provided that the powers of the members of such service shall be limited as contemplated by section 221(3)(b) and (c) of the Constitution.

CHAPTER 15

SHORT TITLE AND COMMENCEMENT Short title and commencement

73. This Act shall be called the South African Police Service Act, 1995, and

shall come into operation on a date fixed by the President by proclamation in the Gazette.