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MINISTER OF POLICE (WESTERN CAPE)
11 JUNE
1996
THE CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO: CCT/23/96
In re: THE APPLICATION TO
CERTIFY A NEW CONSTITUTIONAL TEXT IN TERMS OF SECTION 71 OF THE CONSTITUTION OF
THE REPUBLIC OF SOUTH AFRICA ,
1993
TO: THE REGISTRAR OF THE
CONSTITUTIONAL COURT BRAAMPARK FORUM 11 JOHANNESBURG
KINDLY TAKE
NOTICE that the written argument on behalf of the Member of
the Executive Council for the Police Service, Western Cape, is filed
herewith.
Dated at CAPE TOWN this 10th day of June 1996.
D J
BRAND
TABLE OF CONTENTS
Explanatory
note
Constitutional Principles
Provincial executive authority re
police
Provincial legislative powers re police
Control of the police
service
Conclusion
Order
List of authorities
WRITTEN
ARGUMENT OF ON BEHALF OF THE MEMBER OF THE
EXECUTIVE COUNCIL FOR
THE POLICE SERVICE, WESTERN CAPE
EXPLANATORY NOTE
-
In these written submissions:
1.1 The Constitution of the Republic Of South Africa 1993 (Act No 200 of
1993), will referred to as “the Interim Constitution:
1.2 The Constitution of the Republic of South Africa, 1996, will be referred
to as “the new Constitution”, and
1.3 Sections of the Interim Constitution and the new Constitution will be
referred to as “sections” and “clauses”
respectively.
- In
this written argument, which is filed at the invitation of the Court objection
is made to the certification of the new Constitution
on the basis that the
provisions relating to provincial powers in respect of police do not comply with
Constitutional Principle XVIII.2.
CONSTITUTIONAL PRINCIPLES
- The
importance of the Constitutional Principles are clearly indicated in the
Preamble to the Interim Constitution where they are
referred to as “a
solemn pact". This priority status is emphasised by the fact that the
Constitutional Principles together
with the provisions regarding the
certification of the new Constitution, are entrenched (section 74(1) of the
Interim Constitution),
or cast in stone, as Basson South Africa's Interim
Constitution (1994) 2 puts it. (See too Basson 100; et al Rights
and Constitutionalism: The New South African Legal Order (1994) 158; De
Villiers
The Constitutional Principles: Content and Significance in De
Villiers (ed) Birth of a Constitution 37).
- The
role and status of the Constitutional Principles are described in the following
fashion be Chaskalson P in Executive Council,
Western Cape Legislature v
President of the RSA [1995] ZACC 8; 1995 (4) SA 877 (CC) on 8931:
"The Constitutional Principles are a set of 34 provisions contained in
Schedule 4 of the Constitution. The represent principles
which were agreed
upon and adopted by the Negotiating Council of the Multi-Party Negotiating
Process to provide definitive guidelines
for the drafting of the final
Constitution. The current Constitution makes a number of references to the
Constitutional Principles.
That they have a significant role to play is
obvious.”
- The
thirty-four Constitutional Principles in Schedule 4 of the Interim Constitution
not only act as a framework for the drafting
of all subsequent Constitutions,
but also the yardstick against which the new constitutional text must be
measured before it can
be certified by this Court in terms of section 71(2) of
the Interim Constitution. All the provisions of the new Constitution
will thus have to be tested against the Constitutional Principles. (See S V
Heita and Another
1992 (1) SA 785 Nm HC at 787D - 788A; Executive Council,
Western Cape Legislature v President of the RSA 1995(4) SA 877 CC at
894A-C. Premier KwaZulu-Natal v President of the Republic of South Africa
[1995] ZACC 10; 1996 (1) SA 769 CC at 7731 - 774A.)
- When
applying the test of' measuring the new Constitution against the Constitutional
Principles, it is submitted that the set of
principles should be read as a
whole and applied to the full text of the new Constitution. However, this does
not preclude the application
of a particular Constitutional Principles. The
remarks made by Kentridge AJ in S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC) on 6521 - 653A are
quite appropriate:
“While we must always be conscious of the values underlying the
Constitution, it is meets nonetheless our task to interpret a written
instrument. I am well aware of the fallacy of supposing that general language
must have
a single ‘objective’ meaning. Nor is it easy to avoid the
influence of one’s personal intellectual and moral preconceptions.
But it
cannot be too strongly stressed that the Constitution does not mean whatever we
might wish to mean.
We must heed Lord Wilberforce’s reminder that even a constitution
is a legal instrument, the language of which must be respected.
If the
language used by the lawgiver is ignored in favour of general resort to
‘values’ the result is not interpretation
but
divination.”
- Since
this written argument is focused at the provincial powers in respect of police,
it is submitted that the Constitutional Principle
that is of particular
relevance in this matter is Constitutional Principle XVIII.2, which reads as
follows:
“The powers and functions of the provinces defined in the
Constitution, including the competence of a provincial legislature
to adopt a
constitution for its province, shall not be substantially less than or
substantially inferior to those provided for in
this
Constitution.”
- As
regards the application of Constitutional Principle XVIII.2, it is submitted
that the Court should weigh individual provisions
of the new Constitution
against the respective provisions in the Interim Constitution and decide
whether the new text requirements.
In addition, the Court should take a global
view of the whole ambit of the particular jurisdictional area and determine,
with reference
to the end result, whether there is a substantial reduction in
the powers and functions of the provinces.
- It
is submitted that the requirement of Constitutional Principle XVIII.2 is a
twofold, viz. (1) that the powers and functions of
the provinces shall not be
substantially less than, or
(2) Substantially inferior to those provided for in the Interim
Constitution. It thus comprises both a quantitative and qualitative
test, the
operative words being “substantially less.” and
“substantially inferior.” Erasmus Provincial government
under the 1993 Constitution. What direction will it take? 1994 SA
Publiekreg/Public Law 407 states in this regard on 418:.
“Principle XVIII now guarantees the present range of provincial
powers and functions as a minimum. They may be increased
in the final
constitution, not diminished. They ‘shall not be substantially less than
or substantially inferior’ to
those provided for in the 1993
Constitution.”
- The
meaning of “substantially” in the context of Constitutional
Principle XIII.2. is aptly described in The Shorter
Oxford English Dictionary
Vol II (3rd ed) (1987) , where the fourth definition of
“substantial” reads as follows:
“That is, constitutes, or involves an essential part, point or
feature; essential material.”
- It
is submitted that the clear wording of Constitutional Principle XVIII.2 requires
an objective analysis to be made of the respective
provisions of both the
Interim Constitution and the new Constitution in order to decide whether the
requirements of the said
Principle have been met.
PROVINCIAL EXECUTIVE AUTHORITY RE: POLICE
- Chapter
14 of the Interim Constitution clearly indicates that police is an area of
jurisdiction that is shared by the national and
provincial levels of government.
Section 214 (1) specifically states that the police service “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.” The detail of this shared responsibility for police
is dealt with in Chapter 14, which leaves the impression that a relationship
in
the nature of a partnership between the national and provincial levels of
government must be established.
- Provincial
executive powers in respect of police must be taken care of by a member of the
Executive Council (MEC) of a province designated
by the Premier of the province.
In terms of section 217 (1) of the Interim Constitution the MEC is charged
“with the responsibility for the performance by the Service in or in
regard to that province of the functions set out in section
219 (1).”
This clearly establishes a political responsibility for police at the provincial
level and indeed covers a wide range of functions.
(See Shubane Provincial
Institutions in De Villers (ed) Birth Of a Constitution
239).
- The
powers of the MEC in a province include the following:
* the obligation to approve or veto the appointment of the provincial
commissioner for police (section 217(2)(a));
* the power to institute appropriate proceedings against the provincial
commissioner if he has lost the confidence of the Executive
Council (section 217
(2) (b); and
* responsibility for the performance of the functions set out in section 219
(1), which reads:
(a) the investigation and prevention of crime ;
(b) the development of community-policing services;
(c) the maintenance of public order;
(d) the provision in general of all other visible policing services,
including-
(i) the establishment and maintenance of police stations;
(ii) crime reaction units; and
(iii) patrolling services;
(e) protection services in regard to provincial institutions and
personnel;
(f) transfers within the province of members of the Service performing
functions in terms of this section; and
(g) the promotion, up to the rank of lieutenant-colonel, of members of the
Service performing functions in terms of this section.”
- Basson
op cit 266 distinguishes between the provincial and national powers
and functions of the police by stating:
"It is clear that the provincial powers and functions of the Service
(listed as responsibilities of the Provincial Commissioner
concerned) are
different from the powers and functions without prejudice to the other powers
and functions which are exercised by
the national Service, and that these
competencies are accordingly not restricted by the national competencies listed
in s 218 (supra).
It is also clear that these are provincial competencies and
as such are to be exercised in a province only.”
- It
is submitted that the range and content of provincial police powers and
functions are of such dimensions that it can be said that
a comprehensive share
of the executive powers and functions re police vests at provincial
level.
- Although
the clause 205 (1) of the new Constitution indicates that “the national
police service must be structured to function in the national, provincial and,
where appropriate, local spheres,”
it is submitted that the shared
responsibility for police is structured in a different fashion than in the
Interim Constitution to
the detriment of provinces.
- According
to clause 206(1) of the new Constitution , political responsibility
for police vests at national level in
a member of the Cabinet. There is
no obligation on a Premier of a province to appoint a member of the
Executive Council of that province to be responsible for police.
This not only
weakens provincial executive powers re police, but it also clearly
indicate a shift of political or executive responsibility for police away from
the provinces to the national
sphere. In fact, as far as executive powers are
concerned, provinces are basically left with a monitoring and liaison function
as
stipulated in clause 206(2):
“Each province is entitled -
(a) to monitor police conduct;
(b) to have oversight of the effectiveness and efficiency of the police
service, including receiving reports on the police service;
(c) to promote good relations between the police and the
community;
(d) to assess the effectiveness of visible policing; and
(e) to liaise with the Cabinet member responsible for policing with
respect to crime and policing in the province.”
- A
substantial chance has occurred in the role of the provincial executive
in the appointment of the provincial commissioner. The obligation of the
responsible member
of the Executive Council to approve or veto the appointment
of the provincial commissioner omitted from the new Constitution. Currently
the
National Commissioner must act in consultation with a MEC to appoint the
provincial commissioner, but in terms of the new Constitution the National
Commissioner
must appoint after consultation with the provincial
executive (clause 207 (3) read with Schedule 6 Annexure D item 1 (b) ). It is
submitted that these
provisions amount to a qualitative reduction in the powers
of provinces.
9
PROVINCIAL LEGISLATIVE POWERS RE POLICE
- A
provincial legislature has, in terms of section 126 read with Schedule 6 of the
Interim Constitution, concurrent legislative authority
with Parliament to pass
laws on police, “subject to the provisions of Chapter 14.”
Limitations are specifically contained in section 217 (3) where it is
stipulated that provincial legislative power is qualified in
section 217 (3)
where it is stipulated provincial laws must not be inconsistent with national
legislation and it must be in regard
to the range of functions contained in
section 219 (1). A further limitation, relating to the standards of performance
of functions
of the police service and the rights of citizens, is found in
section 217 (4).
- No
specific provision is made in Chapter 11 of the new Constitution for legislative
authority of provinces in respect of police.
In fact, clause 199 (4) in Chapter
11 only provides for national legislation to structure and regulate the security
services, which
include police .
- A
heavily qualified provision appears in Schedule where police is indicated as a
concurrent functional area where both national
and provincial spheres have
legislative competence, but is limited “to the extent that the
provisions of Chapter 11 of the Constitution confer upon the provincial
legislature 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 legislature to pass laws
regarding the police service in that
province.
- Contrary
to the position in the Interim Constitution (section 217(3)) read with section
219(1)), Chapter 11 of the new Constitution
does not contain any list of
provincial functions which may form the subject of provincial legislation. .
This is a further indication
of the very limited and substantially reduced
provincial legislative powers.
CONTROL OF THE POLICE
SERVICE
- A
division of functions of the police service between the national and provincial
spheres is made in section 218 and 219 of the Interim
Constitution. The
structure and language of Chapter 14, in particular these two sections, indicate
that certain functions are the
responsibility of the National Commissioner
(section 218) and other functions are the responsibility of the various
provincial
commissioners. Shubane op cit 239 states with regard
to the position of the provincial commissioners:
“ The provincial commissioner is accorded significant powers as set
out in s 219. In executing his her functions he/she is
subject to the person in
the executive council with the relevant executive powers. This implies
significant provincial policing
powers.”
25. In terms of the Interim Constitution a provincial commissioner is
accountable to the responsible member of the Executive Council
of that province
for the performance of the actual policing functions (section 219(1) and to the
National Commissioner for more personnel
related functions as well as those
functions assigned to him or her by the National Commissioner (section
219(2)).
-
Unlike the position in the Interim Constitution, the functions of provincial
commissioners are not enumerated in the new Constitution.
On the
contrary, clause 207(4)(a) of the new Constitution 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
section 219(1 ) of the Interim Constitution to omit provincial executive control
over provincial commissioners
is in fact prescribed by Schedule 6 Annexure D
item 2 of the new Constitution. 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 specific
provision is made in
clause 207(4)(b) of the new Constitution for a provincial commissioner to
perform his or her duties “subject
to the power of the National
Commissioner for the performance of his or her duties, and acts under direction
of the National Commissioner
only.
- It
is submitted that the omission of a detailed list of functions of the provincial
commissioners as well as the omission of provincial
executive control over
provincial commissioners amount to a substantial reduction of provincial powers
and functions.
CONCLUSION
- When
judging the individual provisions of the new Constitution concerning the
province the provincial powers in respect of police,
it is submitted that it do
not meet the standard of not being “ substantially, less than" or
“substantially inferior
to” the position of provinces stipulated in
the Interim Constitution. In fact, it is submitted that it fails on both the
quantitative and qualitative elements of the test.
- If
the Court takes a global view, it is submitted that the nett end result is
the same. The qualitative and quantitative reduction of provincial
powers and functions as argued above inevitably leads to the conclusion
that
provincial powers and functions in relation to police are substantially
inferior to the current position as provided for the Interim
Constitution. The new Constitution thus do not comply with Constitutional
Principle XIII.2.
ORDER
- It
is respectfully submitted that the Court shall not certify the new Constitution
due to the non-compliance of the text with all
the Constitutional Principles, in
particular Constitutional Principle XVIII.2. In the event of such a finding, it
is requested that
the Court shall make an order to refer the new Constitution to
the Constitutional Assembly to amend the text in order to comply with
Constitutional Principle XVIII.2.
D J BRAND
Counsel for the
MEC for the Police Service, Western Cape
List of
authorities
1. Basson,D South Africa's Interim Constitution
(1994)
2. Van Wyk,D et al Rights and Constitutionalism: The New
SouthAfrican Legal Order (1994)
3. De Villiers The Constitutional
Principles: Content and Significance in DeVilliers, B (ed) Birth
of a Constitution (1994)
- Executive
Council, Western Cape Legislature and Others v President of
the Republic of South Africa and Others 1995(4) SA 877
(CC)
5. S v Heita and Another 1992 (1) SA 785 NM
HC
6. Premier, Kwa Zulu Natal v President of the Republic of
South Africa 1996(1) SA 769 (CC)
7. S v Zuma [1995] ZACC 1; 1995
(2) SA 642 (CC)
- Erasmus,G
Provincial Government under the 1993 Constitution. What direction will it take?
1994 SA Publiekreg/Public Law 407
9. The Shorter Oxford
English Dictionary Vol 11 (3 rd ed ) (1987)
10. Shubane,K
Provincial Institutions in De Villiers (ed) op cit
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