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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO:
CCT/23/9
In re: THE APPLICATION TO CERTIFY A NEW CONSTITUTIONAL
TEXT IN TERMS OF SECTION 71 OF THE CONSTITUTION 0F THE REPUBLIC OF SOUTH AFRICA,
1993
NOTICE OF OBJECTION IN TERMS OF RULE 15(4) AND DIRECTION, THE
DIRECTIONS ISSUED BY THE PRESIDENT OF CONSTITUTIONAL COURT ON 13 MAY
1996
BE PLEASED TO TAKE NOTICE THAT, Gerald Norman Morkel,
Minister of the Police Service for the Western Cape, wishes to avail himself of
the invitation by the President
of the Constitutional Court to submit written
objections to the certification of the Constitution adopted by the
Constitutional Assembly
on the 8th of May 1996.
TAKE NOTICE
further that the said Gerald Norman Morkel would welcome the opportunity to
submit oral argument to the Constitutional Court after
consideration of this
written argument.
TAKE NOTICE further that the certification of
the Constitution is objected to on the
following
grounds:
Provincial powers in respect of
police
1. It is submitted that the provisions of the Constitution
relating to police, more in particular clauses 199(4), 205, 206, 207, 208,
Schedule 4 and Scedule 6 Annexure D item 1 and 2 result in the conclusion that
the powers and functions of provinces in relation
to police are substantially
less than or substantially inferior to those provided for in the Interim
Constitution, 1993, and therefore
that Constitutional Principle XVIII.2 of the
Interim Constitution 1993, has been contravened.
2. It is evident from
both the Interim Constitution (sec 214(1)) and the new Constitlition (clauses
199(1) and 205(1)) that there
is a single police service for the Republic of
South Africa structured at both national and provincial levels. The Interim
Constitution
establishes a joint responsibility for police between the national
and provincial levels, and provides for explicit executive and
legislative
powers for both levels. The new Constitution provides that national
legislation must establish the powers and functions of the police service
(sec 205(2)). It is submitted that this provision significantly deminishes the
provincial competences provided for in the Interim
Constitution.
3.1 Provincial executive authority currently includes the
responsibility for the performance by the Service in or in regard to that
province of the functions set out in section 219(1)(sec 217(1)). This
establishes a political responsibility for police at the provincial level and
indeed covers a wide range
of functions.
A provincial minister of police
currently has the obligation to approve or veto appointment of the provincial
commissioner of police
for that province (sec 217(2) of the Interim
Constitution).
3.2 In the new Constitution political responsibility vests
at national level in a member of the Cabinet (clause 206(1)), and the provinces
are basically left with a monitoring liaison function (clause 206(2)). The
involvement of the provincial executive in the appointment
of the provincial
commissioner has been reduced from in consultation, which includes the
obligation to approve or veto, to after consultation (clause 207(3) read
with Schedule 6 Annexure D item l(b)). It is submitted that these provisions
amount to a qualitative
reduction in the powers of
provinces.
4.1 According to the Interim Constitution a provincial
legislature has concur legislative authority with Parliament to pass laws on
police, subject to the provisions Chapter 14 (Schedule 6). This legislative
power is qualified in sec 217(3) where stipulated that
provincial laws must not
be inconsistent with national legislation and it be in regard to the range of
functions contained in sec
219(1).
4.2 No specific provision is made in
Chapter 11 of the new Constitution for legislative authority for provinces. In
fact, sec 199(4)
only provides for national legislation to strutructure and
regulate the security services, which include police. A heavily qualified
provision appears in Schedule 4, where police is indicated as a concurrent
functional area where both national and provincial levels
have legislative
competence, but it is limited to the extent that the provisions of Chapter 11
of the Constitution confer upon the provincial legislature legislative
competence. According to this provision provinces, although they have
concurrent legislative authority, can only legislate in so far as is
provided
for in Chapter 11. It is submitted that this indeed leaves very limited scope,
if any, for a provincial legisiature pass
laws regarding the police service
within that province. It is submitted that this results in a substantive
reduction in the legislative
authority of provinces.
5.1 The functions of
provincial commissioners of police are currently constitutionally provided for
in sec 219 of the Interim Constitution.
A provincial commissioner is accountable
to the responsible member of the Executive Council for the performance cf the
actual policing
functions (sec 219(1)), and to the National Commissioner for
more personnel related functions and those functions assigned to him
or her by
the National Commissioner (sec 219(2)).
5.2 The functions of provincial
commissioners are not enumerated in the new Constitution. On the contrary, sec
207(4)(a) stipulates
that national legislation shall prescribe the
responsibilities of provincial commissioners. There is furthermore no specific
provision
for the provincial executive to give directions to the provincial
commissioner in that province. An amendment to sec 219(1) to omit
provincial
executive control over provinces commissioners is in fact prescribed by Schedule
6 Annexure D item 2. This implies that
there is no requirement of accountability
of the provincial commissioner to the provincial executive. This conclusion is
strengthened
by the fact that it is specifically provided in sec 207(4)(b) that
a provincial commissioner must perform his or her duties subject to the power
of the National Commissioner. It is thus submitted that the provincial
commissioner is only accountable to the National Commissioner for the
performance of his
duties. This weakens the control of a provincial executive
over police in that province.
6. It is submitted that the qualitative and
quantitative reduction of provincial powers functions as indicated above
inevitably leads
to the conclusion that provincial powers and functions in
relation to police are substantially less than and substantially inferior
to the
current position as provided for in the Interim Constitution.
SIGNED: G.
Morkel ON 30 May 1996 AT Cape Town
TAKE NOTICE FURTHER that the address
to which communications can be directed is:
Minister of the Police Service :
Western Cape
PO Box 648
Cape Town 8000
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