BRIEFING TO THE SELECT COMMITTEE ON SECURITY AND JUSTICE: MUNICIPAL LAW ENFORCEMENT OFFICERS (7 June 2017)

Correspondence of Institute for Municipal Public Safety of South Africa (IMPS-SA) * The IMPS-SA, in a letter to the Select Committee on Security and Justice, requested that the powers of law enforcement officers appointed by municipalities be increased.  * The Select Committee on Security and Justice seeks clarity on the policies that must be considered to allow municipal law enforcement officers to increase their powers and other considerations that must be taken into account when considering the request of IMPS-SA

2. Section 334 of the Criminal Procedure Act, 1977 (Act 51 of 1977) (the CPA)  * Section 334 of the CPA empowers the Minister of Justice and Correctional Services to declare certain persons as peace officers for specific purposes, and also deals with liability for damages.  * In terms of section 334 of the CPA: - The Minister may by notice in the Gazette declare that any person who, by virtue of his office, falls within any category defined in the notice, shall, within an area specified in the notice, be a peace officer for the purpose of exercising, with reference to any provision of the CPA or any offence or any class of offences likewise specified, the powers defined in the notice (section 334(1)(a)).

334(Cont) - The powers referred to in section 334(1)(a) may include any power which is not conferred upon a peace officer by the CPA (section 334(1)(b)).  - No person who is a peace officer by virtue of a notice issued under section 334(1) shall exercise any power conferred upon him or her under that section unless he or she is at the time of exercising such power in possession of a certificate of appointment issued by his or her employer, which certificate shall be produced on demand (section 334(2)(a)).

Sec 334 (cont) - A power exercised contrary to the provisions of paragraph (a) shall have no legal force or effect (section 334(2)(b)).  - The Minister may by notice in the Gazette prescribe: the conditions which shall be complied with before a certificate of appointment may validly be issued under subsection (2)(a)(section 334(3)(a));

Sect 334 (cont)   any matter which shall appear in or on such certificate of appointment in addition to any matter which the employer may include in such certificate (section 334(3)(b)). - Where the employer of any person who becomes a peace officer under the provisions of this section would be liable for damages arising out of any act or omission by such person in the discharge of any power conferred upon him or her under section 334, the State shall not be liable for such damages unless the State is the employer of that person, in which event the department of State, including a provincial administration, in whose service such person is, shall be so liable (section 334(4)).

3. Considerations to be taken into account when declaring persons as peace officers * The following considerations are, among others, taken into account when declaring peace officers: - The South African Police Service has a constitutional mandate to investigate crime (see section 205 to 208 of the Constitution). The primary function of the SAPS is contained in section 205(3) of the Constitution, where it is stipulated that “The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”.

Considerations (cont) - The degree of competency of the prospective category of peace officers to deal with offences in question (See in this regard GN No. R. 210 of 19 February 2002 and GN No. R. 656 of 16 May 2003 – where it is required that the SAPS must certify that a person is competent to exercise the powers entrusted on a specific category of peace officers). - Whether a specific need exists to appoint persons as peace officers to enforce legislation which is specific to a Department/ provincial or local government/ agency appointed in terms of legislation.

Considerations (Cont) - Possible infringement on functions of the SAPS. - Support which the prospective category of peace officers may render to the SAPS in the investigation of specific offences. - Civil liability which the employer of persons appointed as peace officers may incur for wrongful acts.

4. Current powers of law enforcement officers appointed by municipalities * Currently the powers of law enforcement officers appointed by municipalities are prescribed in terms of GN No. R. 209 of 19 February 2002, read with GN No. 210 of 16 February 2002 as amended. These powers can be summarised as follows:

Powers (cont) Jurisdiction In respect of which offences Powers Restricted to area of municipality By-laws and regulations applicable to municipality but also other laws, among others- • Drugs and Drug Trafficking Act • Certain offences ito Arms and Ammunition Act (Firearms Control Act) •Serious offences prescribed ito Schedule 1 of the Criminal Procedure Act (the CPA) • Issue written notices ito sect 341 of CPA • Issue written notices ito section 56 (admission of guilt without appearing in court) of CPA • Execution of warrants ito sections 44 of the CPA(warrant of arrest issued ito any provision of CPA)

Powers (cont) Jurisdiction In respect of which offences Powers •Execution of a warrant ito section 55(2) of CPA (failure to appear ito warrant issued ito section 54 of the CPA) • Request person who the peace officer has power to arrest to furnish particulars to peace officer as contemplated in section 41(1) of CPA • Arrest person without a warrant where there is a contravention of certain legislative provisions (mentioned in previous Column) or where offence falls within Schedule 1 of the CPA