South African Police Service Amendment Act

28 October 1998 No. 1387.

28 Oktober 1998 It is hereby notified that the President has assented to the following Act which is hereby published for general information:— Hierby word bekend gemaak dat die President Sy goed- keuring geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:— No. 83 of 1998: South African Police Service Amendment Act, 1998. No. 83 van 1998: Wysigingswet opdie Suid-Afrikaanse Polisie- diens, 1998. 2 No. 19407 GOVERNMENT GWE~, 28 OCTOBER 1998 Act No. 83, 1998 SO~H AFRICAN POLICE SERVICE AMENDMENT ACT, 1998 .-. ----- --- [ ,,. GENERAL EXPLANATORY NOTE: 1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. .- .- . .- --- ... . . . ACT To amend the South Afrimn Police Service Act, 1995, so as to provide a framework for the establishment, functions and control of municipal police services; and to provide for matters connected therewith. (English te.~t signed b~ the President.) (Assented to 20 October 1998. ) B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of section 1 of Act 68 of 1995, as amended by section 1 of Act 41 of 1997

1. Section 1 of the South African Police Service Act. 1995 (hereinafter referred to as the principal Act). is hereby amended by— 5 (a) the deletion of the definition of ‘metropolitan police service’.: (b) the substitution for the definition of .-municipal police service’. of the following definition: “ ‘municipal police service’ means a municipal police service estab- lished under [section 64( l)(a)] section 64A; ’.; and 10 (c) the insertion after the definition of ‘national public order policing unit’. of the following definition: ‘. national standards’ means national standards determined under section 64L( 1 );”. Substitution of section 64 of Act 68 of 1995

2. The following section is hereby substituted for section 64 of the principal Act: “Interpretation

64. This Chapter shall not be interpreted so as to derogate from the powers of the Minister of Transport or the member of the Executive Council responsible for transport and traffic matters. nor shall it be interpreted as conferring any power on any functionary to intefiere with the exercise of their powers by the Minister of Transport or the member of the Executive Council responsible for transpon and traffic matters . . . . 15 ~o 4 No. 19407 GOVERNMENT GAzEm, 28 ~OBER 1998 Act No. 83, 1998 SOUTH A~lCAN POLICE SERVICE AMENDMENT ACT, 1998 Insertion of sections @A to 64Q in Act 68 of 1995

3. The following sections are hereby inserted in the principal Act after section 64: “Establishment of municipal police service 64A. (1) Any municipality may in the prescribed manner apply to the member of the Executive Council for the establishment of a municipal police service for its area of jurisdiction. . (2) The member of the Executive Council may, subject to subsection (3) and such conditions as he or she may determine, approve an application for the establishment of a municipal police service if— (a) (b) . the application complies with the prescribed requirements; the municipality has the resources at its disposal to provide for a municipal police semice which complies with national standards on a 24-hour basis; traffic policing services by the municipality will not be prejudicially affected by the establishment of a municipal police service; proper provision has been made by the municipality to ensure civilian supervision of the municipal police semice; and the establishment of the municipal police service will improve effective policing in that part of the province. (c) (d) (e) (3) The member of the Executive Council may approve the application only— (a) after consultation with the National Commissioner; (b) after consultation with the metropolitan council if the municipality falls in the area of jurisdiction of a metropolitan council; and (c) with the approval of the member or members of the Executive Council responsible for local government. finance, transport’ and traffic matters. or where no such member or members have been appointed, the Premier or the member or members of the Executive Council to whom those responsibilities have been assigned by the Premier. (4) If the application for the establishment of a municipal police service is approved by the member of the Executive Council, the member shall establish the municipal pol;ce service by notice in the Ga:efte. (5) The establishment of a municipal police service shall not derogate from the functions of the Service or the powers and duties of a member in terms of any law. (6) All expenditure incurred by or in connection with the establishment. maintenance and functioning of a municipal police service shall be for the account of the municipality in question. Chief Executive Officer of municipality 5 10 15 20 25 30 35

64B. The chief executive officer of a municipality shall be responsible 40 to the municipal council for the functioning of the municipal police service. Executive head of municipal police service 64C. (1) Subiect to section 64D. a municipal council shall appoint a member of the municipal police service as the executive head thereof. 4j (2) The executive head shall, subject to this Act, national standards and the directives of the chief executive officer of the municipality. exercise control over the municipal police service, and shali— (a) be responsible for ‘maintaining an impartial. accountable. transparent and efficient municipal police service: subject to the applicable laws. be responsible for the recruitment, appointment, promotion and transfer of members of the municipal police service: ensure that traffic policing services b)’ the municipality are not prejudicially affected by the establishment of the municipal police service: be responsible for the discipline of the municipal police service: (c) (d) 50 55 6 No, 19@7 Act No. 83, 1998 GOVERNMEW GAZE~, 28 ~OBER 1998 SO~H A~ICAN POLICE SERVICE AMENDME~ Am, 1998 (e) (g) (h) either personally or through a member or members of the municipal police service designated by him or her for that purpose, represent the municipal police service on every local policing co-ordinating committee established in terms of section 64K within the area of jurisdiction of the municipality; either personally or through a member or members of the municipal police service designated by him or her for that pu~ose, represent the municipal police service on every community police forum or subforum established in terms of section 19 within the area of jurisdiction of the municipality; before the end of each financial year, develop a plan which sets out the priorities and objectives of the municiprd police service for the following financial yew Provided that such plan in so far as it relates to the prevention of crime, shall be developed in co-operation with the Service; and perform such duties as may from time to time be imposed upon him or her by the chief executive-officer of the municipality. 5 10 15 First executive head of municipal police service MD. When a municipal police service is established under section 64A, the municipal council in question shall appoint a fit and proper person as first executive head of the municipal police service. Functions of municipal police service

64E. The functions of a municipal police service are— (a) traffic policing, subject to any legislation relating to road traffic; (b) the policing of municipal by-laws and regulations which are the responsibility of the municipality in question; and (c} the prevention of crime. Powers of member of municipal police service 64F. ( 1 ) Subject to the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and with due regard to the fundamental rights of] 30 every person, a member of a municipal police service may exercise such powers and shall perform such duties as are by law conferred upon or assigned to a member of a municipal police service. (2) The Minister may from time to time prescribe that any power conferred upon a member of the Service by this Act or any other law, may be exercised by a member of a municipal police service: Provided that where the power includes the power to seize an article, the member of the municipal police service shall forthwith deliver the article to a member. (3) Every member of a municipal police service is a peace officer and may exercise the powers conferred upon a peace officer by law within the area of jurisdiction of the municipality in question: Provided that a member may exercise such powers outside the area of jurisdiction if it is done— (a) in pursuit of a person whom the member reasonably suspects of having committed an offence, and if the pursuit commenced within the area of jurisdiction of the municipality; or (b) in terms of an agreement between the municipal council and another munici~al council in terms of section 10C(7) of the Local Government Transi~on Act, 1993 (Act No. 209 of 1993). 35 40 45 Proof of appointment

64G. A document in the prescribed form certifying that a person has been 50 appointed as a member of the municipal police service. shall be prima facie proof of such appointment. 8 No. 19407 GOVERNMENT GMEmE, 28 O~OBER 1998 Act No. ~, 1998 SOUTH A~lCAN POLICE SERVICE AMENDMENT ACT. 1998 Procedure after arrest by member of municipal police service

64H. A person arrested with or without warrant by a member of a municipal police service shall as soon as possible be brought to a police station under the control of the Service or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant, to be dealt with in terms of section 50 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). Legal proceedings against municipal police service 641. (1) Any legal proceedings against a municipal police service or member of a municipal police service 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, shall be instituted against the municipal council in question. (2) For the purposes of this section— (a) section 57 shall not be applicable: and (b) the Limitation of Legal Proceedings (Provincial and Local Authori- ties) Act. 1970 (Act No. 94 of 1970). shall be applicable. Civilian oversight of municipal police services 64J. ( 1 ) A municipal council shall appoint a committee consisting of members of the council and such other persons as maybe determined by the municipal council to ensure civilian oversight of the municipal police service. (2) The committee contemplated in subsection (1) shall— (0) (/)) (c) (d) (e) (f) (g) at the request of the mu~icipal council in question, advise the council on matters relating to the municipal police service; advise the chief executive officer with regard to the performance of his or her functions in respect of the municipal police semice: perform such functions as the member of the Executive Council, the municipal council or the chief executive officer may consider necessary or expedient to ensure civilian oversight of the municipal police service: promote accountability and transparency in the municipal police service: monitor the implementation of policy and directives issued by the chief executive oficer and report to the municipal council or chief executive officer thereon; perform such functions as may from time to time be assigned to the committee by the municipal council or the chief executive oficer: and evaluate the functioning of the municipal police service and report to the municipal council or chief executive officer thereon. 5 10 15 20 25 30 35 40 Policing co-ordinating committees 64K. ( 1 ) in order to co-ordinate policing in the province, the Provincial Commissioner shall, after consultation with the member of the Executive Council. establish at least one of the following committees: (a) local policing co-ordinating committees: (b) area policing co-ordinating committees: (c) provincial policin& coordinating committees. (2) The Provincial Commissioner. or a person designated by him or her for that purpose, shall act as chairperson at a meeting of a policing co-ordinating committee. (3) Every policing co-ordinating committee shall determine its own 1 4s jO procedure and cause minutes to be kept of its proceedings. (4) The Minister may. with the concurrence of the Minister of Transport. make regulations to ensure the proper functioning: of policin: co-ordinating committees. I 55 10 No. 19407 Act No. 83, 1998 GOVERNMENT G~, 28 O~OBER 1998 SO~H A~ICAN POLICE SERVICE AMENDMENT Am, 1998 Powers and duties of National Commissioner in respect of municipal police service 64L. (1) The National Commissioner may determine national standards of policing for municipal police services and, in addition to the training prescribed for traffic officers in terms of the Road Traffic Act, 1989 (Act No. 29 of 1989), determine national standards with regard to the training of members of municipal police services. (2) (u) A draft of the national standards contemplated in subsection (1) shall be published in the Gazefte, together with a notice inviting all interested persons to submit comments regarding the proposed national standards in writing, within a period stated in the notice and which shall not be less than 60 days from the date of publication. (b) If the Nationrd Commissioner decides to amend the national standards as a result of comments received, it shall not be necessary to publish the national standards again before promulgation. (3) In order to ensure that national standards are maintained, the National Commissioner— (a) may request and obtain information and documents under the control 5 10 15 of the municipal police service or municipality in question; (b) may enter any building or premises under the control of the municipal 20 police service or municipality in question; and (c) shall be entitled to dl reasonable assistance by any member of the municipal police service and any employee of the municipality in question. (4) If a municipal police service has failed to maintain national standards, the National Co&~ssioner shall report the failure to the Minister. Minister’s power in respect of municipal police service 64M. (1) Upon receipt of a report contemplated in section 64L, the Minister may request the member of the Executive Council concerned to intervene as contemplated in section 139 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and shall provide the member with a copy of that report. (2) (a) If the member of the Executive Council fails to intervene as requested, the Minister may intervene as contemplated in section 100 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), in which case section 64N(4) to (7) shall apply with the necessary changes. (b) For the purposes of this subsection, any reference in section 64N(4) to (7) t~ (a) (b) (c) (d) (e) m the member of the Executive Council, shall be deemed to be a reference to the Minister; the member of the Executive Council responsible for local gover- nment, shall be deemed to be a reference to the Minister for Provincial Affairs and Constitutional Development; the member of the Executive Council responsible for transport and &affic matters, shall be deemed to be a reference to the Minister of Transport; the Premier, shall be deemed to be a reference to the President; an official of the provincial government, shall be deemed to be a reference to an official of the national government; and to section 139(2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), shall be deemed to be a reference to section 100(2). 25 30 35 40 45 50 12 No. 19407 Act No. M, 1998 GOVERNMENT G~~, 28 ~OBER 1998 SOW A~ICAN POLICE SERVICE AMENDMENT Am, 1998 Member of Executive Council’s power in respect of municipal police service @N. (1) In order to ensure that the conditions, if any, subiect to which a municipal police service was established, are complied with and that national standards are maintained, the member of the Executive Council or a member of the provincial secretariat designated in writing for that purpose by the member— (a) may request and obtain information and documents under the control of the municipal police service or municipality in question; 5 (b) may enter any building or premises under the control of the municipal 10 police service or municipality in question; and (c) shall be entitled to all reasonable assistance by arty member of the municipal police service and any employee of the municipality in question. (2) If the member of the Executive Council is satisfied that a municipal police service has failed to comply with the conditions or national standards, he or she may, by notice in writing, inform the municipal council in question of such failure and request the council to ensure that the municipal police service complies with the conditions or national standards within a period specified in the notice. (3) The member of the Executive Council may, from time to time, upon the request of the municipal council extend the period contemplated in subsection (2). (4) If the municipal council fails to comply with the notice contemplated in subsection (2) within the period specified in the notice or within the extended period contemplated in subsection (3), the member of the Executive Council may, after consultation with the member or members of the Executive Council responsible for local government, transport and traffic matters or where no such member or members have been appointed, the Premier or such member or members of the Executive Council to whom the responsibilities have been assigned by the Premier— (a) appoint an official of the provincial government as administrator of the municipal police service in question and charge such official with the responsibility to ensure that the municipal police service complies with the conditions and national standards; and (b) t~e such other steps as he or she may deem necessary to ensure compliance with the conditions and national standards. (5) The administrator appointed under subsection (4)(a) may, subject to section 139(2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and subject to the directions of the member of the Executive Council, exercise dl the powers and perform all the duties of the executive head of the municipal police service. (6) If the member of the Executive Council is satisfied that the municipal police service complies with the conditions and national standards, he or she may terminate the appointment of the administrator. (7) All expenditure incurred by or in connection with the intervention by the member of the Executive Council shall be for the account of the municipality in question. Certain other sections of this Act to apply to municipal police service 15 20 25 30 35 40 45 MO. The Minister may prescribe which other provisions of this Act shall apply to a municipal police service and the extent to which they shall apply. 50 14 No, 19407 GOVERNME~ G=m, 28 O~OBER 1998 Act No. =, 1998 SO~H A~ICAN POLICE SERVICE AMENDME~ Am, 1998 Regulations in respect of municipal police service 64P. (1) The Minister may, subiect to subsection (2), make regulations regarding the effective functioning of municipal police services. (2) (a) A draft of the regulations contemplated in subsection (1) shall be published in the Gazette, together with a notice inviting dl interested persons to submit comments regarding the proposed regulations in writing, within a period stated in the notice and which shall not be less than 60 days from the date of publication. (b) If the Minister decides to amend the regulations as a result of comments received, it shall not be necessary to publish the regulations again before promulgation. Saving and transitional arrangements in respect of existing municipal police service 64Q. (1) (a) When tie South African Police Service Amendment Act, 1998, takes effect, the Durban City Police, established under section 83 of the Durban Extended Powers Consolidated Ordinance, 1976 (Natal Ordinance No. 18 of 1976), shall be deemed to have been established under section 64A, and shall continue to so exist until 30 September 1999. (b) If an application for its establishment under section 64A is lodged on or before 30 September 1999, tie Durban City Police shall continue to so exist until the application is either approved or disapproved. (c) Any person who was a member of the Durban City Police immediately before the South African Police Service Amendment Act, 1998, took effec~ shall continue to be a member of the Durban City Police and become a member of the municipal police service if the establishment thereof is approved as contemplated in paragraph (b), even if that person does not comply with the training requirements for appointment as a member of a municipal police service established under this Act: Provided that the person shall cease to be a member with effect from 1 October 2003, unless he or she complies with the training requirements for appointment. (2) (a) Every person whQ, on the date of the establishment of a municipal police service under section 64A for a particular municipality, is registered as a traffic officer in terms of any law and who is employed by that municipality may be appointed as a member of the municipal police service even though the person may not comply with the training requirements for appointment as a member of the municipal police service. (b) A person appointed as contemplated in paragraph (a) shall cease to be a member of the municipal police service with effect from 1 October 2003, unless he or she has successfully completed a training course which complies with the requirements determined by the National Commissioner. (3) (a) After the South African Police Service Amendment Act, 1998, has taken effect, no municipal service may include the word “police” in its name unless the service has been established as a municipal police service under section 64A. (b) Before 1 January 1999, a municipal council shall change the name of any service other than a municipal police service which is in existence when the South African Police Service Amendment Act, 1998, takes effect and which includes the word “police” in its name: Provided that the National Commissioner may from time to time, upon good cause shown, extend that date for a total period of 24 months.”. 5 10 15 20 25 30 35 40 45 50 Amendment of section 72 of Act 68 of 1995

4. Section 72 of the principal Act is hereby amended by the deletion of subsections (5) and (6). 16 No. 19407 GOVERNMENT GAZE~, 28 OCTOBER 1998 Act No. 83,1998 SO~H A~CAN POLICE SERVICE AMENDMENT ACT. 1998 Repeal of law

5. Section 83 of the Durban Extended Powers Consolidated Ordinance, 1976 (Natal Ordinance No. 19 of 1976), is hereby repealed. Short title and commencement

6. This Act is called the South African Police Semite Amendment Act, 1998, and 5 t&es effect on a date determined by the President by proclamation in the Gazette.