scholarly journals The Use of Force in Effecting Arrest in South Africa and the 2010 Bill: a Step in the Right Direction

2017 ◽  
Vol 14 (1) ◽  
pp. 137
Author(s):  
Tharien Van der Walt
Keyword(s):  
South Africa ◽  
South African ◽  
Use Of Force ◽  
Constitutional Court ◽  
The South ◽  
South African Police Service ◽  
International Policies ◽  
The Supreme Court ◽  
South African Police ◽  
The Right

In South Africa the use of force in effecting arrest is statutorily governed by section 49 of the Criminal Procedure Act 51 of 1977.  The inception of the Constitution brought about a dramatic change in South African law in this regard.  During 2001 and 2002 the two highest courts in the country had to decide on the constitutionality of sections 49(1) and 49(2) respectively.  The Supreme Court of Appeal in Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA)  did not declare section 49(1) unconstitutional but found it had to be interpreted restrictively ("read down") to survive constitutional scrutiny.  The Constitutional Court on the other hand confirmed the unconstitutionality of section 49(2) in S v Walters 2002 2 SACR 105 (CC) and the section was declared invalid.  By then (as early as 1998) the legislature had already promulgated an amendment to section 49, but the amendment came into operation only in 2003 after section 49 had undergone intensive constitutional scrutiny.  Legal scholars and others raised serious objections against the amendment – some were even of the opinion that it created a "right to flee" and that the rights of perpetrators were protected to the detriment of law-abiding citizens.  The Department of Justice and Constitutional Development in 2010 drafted an Amendment Bill which was subsequently approved in Parliament.  This paper discusses and concludes on: the developments over the last years in the South African law with regard to the use of force in effecting arrest by the South African Police Service (SAPS); international policies and guidelines of the police in this regard; and the application of the provisions of the Amendment Bill in practice and the possible pitfalls in the application of the latter. 

scholarly journals Countering corruption in South Africa: The rise and fall of the Scorpions and Hawks

2016 ◽  
Author(s):  
Moses Montesh
Keyword(s):  
South Africa ◽  
South African ◽  
African National Congress ◽  
Constitutional Court ◽  
The South ◽  
Police Service ◽  
South African Police Service ◽  
Crime Investigation ◽  
The Government ◽  
South African Police

In 1999 a new directorate of the National Prosecuting Authority was launched to ‘complement and, in some respects, supplement the efforts of existing law enforcement agencies in fighting national priority crimes’.Over the following seven years the Directorate of Special Operations, nicknamed the ‘Scorpions’, gained public favour; however, they were accused of, amongst other things, exceeding their jurisdiction by performing functions that fell outside their mandate. During the African National Congress conference of 2007, delegates took a decision that the Scorpions should be disbanded. In 2008, Parliament passed the South African Police Service Amendment Bill that replaced the Scorpions with the Directorate for Priority Crime Investigation, located within the South African Police Service. In 2010 this move was challenged in Hugh Glenister v President of the Republic of South Africa & Others [CCT 48/10]. The key question in this case was whether the national legislation that created the Directorate for Priority Crime Investigation, known as the Hawks (DPCI), and disbanded the Scorpions, was  constitutionally valid. In March 2011 the Constitutional Court ruled that the legislation establishing the Hawks was unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.’ The Court gave the government 18 months to rectify the situation. This article provides an overview of the decisions that led to the formation and closure of the Scorpions, and the formation of the Hawks.

National Commissioner of the South African Police Service v. Southern African Human Rights Litigation Centre (Sup. Ct. App. S. Afr.)

2015 ◽  
Vol 54 (1) ◽  
pp. 152-174 ◽  
Author(s):  
Dire Tladi
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Crimes Against Humanity ◽  
The South ◽  
Police Service ◽  
South African Police Service ◽  
The Supreme Court ◽  
South African Police ◽  
Court Of Appeal

On November 27, 2013, the Supreme Court of Appeal (SCA) handed down a judgment on an appeal from the South African Police Service and Prosecution Authority in National Commissioner of the South African Police Service v. Southern African Human Rights Litigation Centre (the Decision). The Court decided that the South African Police Service is empowered to initiate investigations into alleged crimes against humanity committed in the territory of another state, irrespective of whether the alleged perpetrators are present in South Africa, and ordered the authorities to initiate such investigations.

Safeguarding the Republic? The South African Police Service, Legitimacy and the Tribulations of Policing a Violent Democracy

2021 ◽  
Vol 56 (1) ◽  
pp. 92-108
Author(s):  
Guy Lamb
Keyword(s):  
South Africa ◽  
South African ◽  
Public Trust ◽  
The South ◽  
Police Service ◽  
South African Police Service ◽  
The Republic ◽  
South African Police ◽  
High Crime ◽  
Excessive Use Of Force

Since 1994 the South African Police Service (SAPS) has undertaken various efforts to build legitimacy in South Africa. Extensive community policing resources have been made available, and a hybrid community-oriented programme (sector policing) has been pursued. Nevertheless, public opinion data has shown that there are low levels of public trust in the police. Using Goldsmith’s framework of trust-diminishing police behaviours, this article suggests that indifference, a lack of professionalism, incompetence and corruption on the part of the police, particularly in high-crime areas, have eroded public trust in the SAPS. Furthermore, in an effort to maintain order, reduce crime and assert the authority of the state, the police have adopted militaristic strategies and practices, which have contributed to numerous cases of excessive use of force, which has consequently weakened police legitimacy in South Africa

The Human Right to Water in South Africa and the Mazibuko Decisions

2011 ◽  
Vol 51 (3-4) ◽  
pp. 521-540 ◽  
Author(s):  
Tracy Humby ◽  
Maryse Grandbois
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
The South ◽  
Human Right ◽  
Lower Courts ◽  
Access To Water ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

The right of access to sufficient water in the South African Constitution has for long been regarded as progressive in a global context where the human right to water is still a subject of contention. In its recent decision handed down in the Mazibuko matter, the South African Constitutional Court interpreted the right of access to sufficient water for the first time and clarified the nature of the State’s obligations which flow from this right. It also commented upon the role of the courts in adjudicating the human right to water. This article describes the passage of the Mazibuko matter and the manner in which the lower courts interpreted the right of access to “sufficient water” as well as outlining the Constitutional Court’s decision in the context of access to water services provision in South Africa.

scholarly journals Enabling the enabler: Using access to information to ensure the right to peaceful protest

2017 ◽  
pp. 51-62 ◽  
Author(s):  
Tsangadzaome Alexander Mukumba ◽  
Imraan Abdullah
Keyword(s):  
South African ◽  
Relevant Information ◽  
Access To Information ◽  
The South ◽  
South African Police Service ◽  
South African Police ◽  
The Right ◽  
Right Of Access ◽  
Responsible Person

The Regulation of Gatherings Act (RGA) places strict guidelines on how to exercise the right to protest, with particular emphasis on the submission of a notice of gathering to the responsible person within a municipality in terms of sections 2(4) and 3 of the Act. However, municipalities do not proactively make the notice of gathering templates available for public use (or may not have these at all), and often do not publicise the details of the designated responsible person. To test municipalities’ compliance with the RGA, the Legal Resources Centre (LRC) enlisted the help of the South African History Archive (SAHA) to submit a series of Promotion of Access to Information Act (PAIA) requests to every municipality in South Africa. PAIA requests were also submitted to the South African Police Service (SAPS) for records relating to public order policing. The initiative aimed to provide these templates and related documents to interested parties as an open source resource on the protestinfo.org.za website. The results of these efforts show that compliance with the RGA is uneven. This article explores the flaws in the regulatory environment that have led to this level of apathy within government, despite the crucial role of the right to protest and the right of access to information as enabling rights in our constitutional democracy. An analysis of the full PAIA request dataset shows the extent of government’s resistance to facilitating these enabling rights, and provides insights into remedial interventions. The article concludes with a series of recommendations, which centre on statutory reforms to the RGA and PAIA to ensure appropriate sanction for non-compliance by government, proactive disclosure of relevant information, and emergency provisions allowing curtailed procedural requirements. The intention of the proposed amendments is to minimise the possibility that these fundamental, enabling rights might be frustrated.

scholarly journals PREVENTION IS BETTER THAN CURE: Addressing violent crime in South Africa

2006 ◽  
Author(s):  
Sibusiso Masuku
Keyword(s):  
Risk Factors ◽  
South Africa ◽  
South African ◽  
Violent Crime ◽  
The South ◽  
Police Service ◽  
Factors Associated ◽  
South African Police Service ◽  
South African Police ◽  
Better Than

South Africa’s high levels of violent crime have a significant effect on people’s lives. A review of the trends and risk factors associated with violent crime begs the question about who should be leading the effort to prevent violence? The South African Police Service currently has this responsibility – but is this appropriate? And which other departments should be playing a greater role?

scholarly journals NEW BLOOD: Implications of en masse recruitment for the South African Police Service

2016 ◽  
Author(s):  
David Bruce
Keyword(s):  
South Africa ◽  
South African ◽  
Civil Service ◽  
Class Formation ◽  
The South ◽  
Police Service ◽  
South Africans ◽  
South African Police Service ◽  
And Gender ◽  
South African Police

This article is concerned with the process of en masse recruitment implemented within the South African Police Service since 2002. As a result of this process the personnel strength of the SAPS has increased dramatically from 120 549 in 2002 to 199 345 in 2012, an increase of over 65%. A large proportion of SAPS personnel are now people who have joined since 1994 and particularly since 2002. En masse recruitment has in part addressed the legacy of apartheid by promoting racial and gender representativeness in the SAPS. In so doing it has facilitated entry into the civil service by a significant number of black, and particularly African,South Africans, thus contributing to ‘class formation’. At the same time the process does not ensure political non-partisanship on the part of the SAPS. It also has not necessarily contributed to ‘better policing’ in South Africa. While it may have increased the potential that the SAPS will enjoy legitimacy, this cannot be achieved by recruitment alone.

A PROPOSED MODEL FOR THE APPOINTMENT AND DISMISSAL OF THE NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE: A COMPARATIVE STUDY

2014 ◽  
Vol 1 (1) ◽  
pp. 68-89
Author(s):  
M Montesh
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Police Service ◽  
Section 8 ◽  
South African Police Service ◽  
South African Police ◽  
Police Commissioner ◽  
National Police ◽  
Made In

When South Africa’s first democratically elected president was inaugurated on 10 May 1994, South Africans were anxious to see who would be leading the police service. Nelson Mandela followed his heart without bowing to political pressure and appointed seasoned police official Commissioner George Fivaz. Although the Interim Constitution Act 200 of 1993 was silent on the powers of the President to appoint the national commissioners, this appointment was made in terms of section 214(1) of that Act. At the time George Fivaz’s term expired, Mandela was also bowing out of the political limelight. When Thabo Mbeki assumed the presidency in 1999, he appointed Jackie Selebi, a former Umkhonto we Sizwe (MK) cadre, who came from the Department of Foreign Affairs without any policing experience. This appointment was made in terms of section 207 of the Constitution of the Republic of South Africa, read with section 7(1)(a) of the South African Police Service Act 68 of 1995. Section 8(1) of the South African Police Service Act stipulates that ‘if the National Commissioner has lost the confidence of the Cabinet, the President may establish a board of inquiry to inquire into the circumstances that led to the loss of confidence, compile a report and make recommendations.’ After serving his first term, reports of Selebi’s involvement in the criminal underworld began to emerge. As a result of these reports, the then Directorate of Special Operations (the Scorpions) investigated Selebi’s involvement in corrupt activities. In 2007, Selebi was charged inter alia with two counts of corruption; in 2010, he was found guilty of corruption and sentenced to 15 years’ imprisonment. Surprisingly, on 2 August 2009, President Jacob Zuma appointed General Bheki Cele, who also came from an MK background without any policing experience, as the third National Police Commissioner. Within a year, reports of Cele’s involvement in illegal lease deals began to emerge and the office of the Public Protector was called in to investigate the allegations. As a result of its findings of improper conduct and maladministration, he was suspended in 2011 and a commission of inquiry was established in terms of section 8(1) of the South African Police Service Act 68 of 1995 to find out whether the Commissioner was fit to hold office. General Cele was fired for maladministration and corruption and was replaced by General Riah Phiyega, who also did not have any policingexperience. A few months after her taking office, the Marikana incident occurred and all the blame for it has been directed at the National Commissioner, although the commission has not yet finalised its mandate. In view of the above-mentioned incidents, it is clear that there is a problem with the way in which the National Commissioner is appointed. This article seeks to unravel the powers of the president in appointing the National Police Commissioner and discuss the cases of the two former incumbents who bowed out of office in disgrace without completing their terms of office. It also includes a comparative study with countries such as Kenya, Northern Ireland, Uganda, Canada and selected countries from the Caribbean islands. As a way forward, a new model for appointing and dismissing the National Commissioner for South Africa is proposed.

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