Western Cape Police Commissioner advised to combat gender-based violence and restore public trust

Lieutenant General Sizakhele William Dyanti has been appointed as the new Commissioner of Police for the Western Cape. He takes up this position after more than thirty years in law enforcement and fulfilling numerous leadership roles.

Appointment Announcement

The appointment was announced by the incumbent National Commissioner, Lieutenant General Puleng Dimpanne, at the SAPS headquarters in Cape Town on Wednesday morning. This move followed the retirement of Lieutenant General Thembisile Patekele at the end of June.

Leadership Refreshment Program

Prior to Dyanti's appointment, Major General Loyanda Damoyi served as the interim Provincial Commissioner starting July 1st. This appointment is part of SAPS' program to introduce new provincial commissioners in four provinces this week, which is part of the organization's leadership refreshment program. Appointments for the North West, Limpopo, and Mpumalanga provinces are expected to be announced in the coming days.

SAPS stated that these appointments are part of an organizational renewal program aimed at strengthening leadership within the police service and affirming commitment to professional, ethical, accountable, and effective policing under the SAPS Reset Agenda.

A recent statement by the City of Cape Town regarding its intention to create investigative capabilities within its Municipal Police has been positively received by many residents who are dissatisfied with the high level of violent crime and perceived shortcomings of the South African Police Service (SAPS).

At first glance, this proposal seems both practical and necessary, as more investigators mean more convicted criminals. However, good intentions cannot override constitutional principles. The central question is not whether the City should assist in combating crime, but whether it can legally establish a criminal investigative unit without the necessary constitutional or legislative authorization.

The Role of Police in the Constitution

In the author's view, the answer to this question is negative. The Constitution of South Africa clearly defines the functions of the police. Section 205(3) stipulates that the duties of SAPS include preventing, combating, and investigating crimes, maintaining public order, protecting the residents of the Republic, and upholding the law. Thus, the Constitution directly assigns crime investigation to SAPS as part of its constitutional mandate.

Municipal police services occupy a different legal position. They are not constitutional police services with the same powers as SAPS. Their existence is solely due to Parliament creating them through the South African Police Service Act, and they possess only the powers specifically granted to them by legislation. This distinction is crucial.

Limitations of Authority

Section 64F of the SAPS Act limits the functions of municipal police services to three areas: traffic patrolling, enforcing municipal bylaws, and crime prevention. Notably, there is no mention of crime investigation. This omission was likely not accidental. Parliament intentionally separated crime prevention from crime investigation.

While municipal police officers may patrol areas, enforce traffic rules, conduct roadblocks, and monitor municipal bylaws, gathering evidence, interviewing witnesses, preparing criminal cases, crime scene analysis, and formulating indictments remain functions traditionally assigned to SAPS detectives. The constitutional principle of legality reinforces this position: any state organ can only exercise powers granted to it by the Constitution or legislation.

Possibilities for Expanding Powers

Municipalities cannot simply assume additional powers based on the belief that they are necessary or desirable. Furthermore, the municipal council cannot expand its authority through political decisions, council resolutions, or executive declarations. Some argue that Section 99 of the Constitution offers a solution allowing a Cabinet Minister to delegate certain statutory powers to the municipal council. However, Section 99 does not grant municipalities the right to unilaterally assume powers. Any delegation must be formal, lawful, and carried out by a responsible Cabinet member in accordance with Parliamentary Act.

Consequences of Illegal Actions

Currently, there is no indication that the Minister of Police has delegated investigative powers from SAPS to the City of Cape Town under Section 99. Without such a delegation, the constitutional barrier remains closed. Proponents of the City's proposal may argue that effective crime prevention inevitably requires investigative capabilities. The practical concern is well-founded given the rising violence, organized crime syndicates, and limited investigative capacity of SAPS.

Nevertheless, constitutional democracies are built on the principle that state power must be exercised according to the law, especially when confronting serious social problems. Operational necessity cannot justify exercising powers that the law has deliberately restricted. If municipal police were to commence criminal investigations without proper legal basis, various consequences could arise.

Criminal investigations could become vulnerable to litigation. Questions would arise regarding the admissibility of evidence, institutional accountability, and the prosecution's dependence on investigations conducted outside the established legal framework. Such uncertainty risks undermining public trust in the criminal justice system rather than strengthening it.

Ways to Solve the Problem

This should not be interpreted as an opposition to strengthening urban policing. On the contrary, there may be compelling political reasons to expand the role of municipal police in large cities, as organized crime has evolved significantly. But if the government believes that municipal police services should investigate criminal offenses, the proper course of action is legislative reform, not executive innovation.

Parliament could amend the South African Police Service Act to define investigative jurisdiction, establish oversight mechanisms, prescribe specialized training, regulate accountability, and determine the relationship between municipal police investigators, SAPS detectives, and the National Prosecuting Authority. Alternatively, where appropriate, investigative functions could be legally transferred in accordance with Section 99 of the Constitution.

Both approaches would maintain constitutional legality while allowing police policy to adapt to changing realities. Combating crime must remain uncompromising, but so too is our commitment to the rule of law. South Africa's constitutional democracy demands both. The desire of the City of Cape Town to enhance public safety is understandable and commendable; however, unless Parliament amends the legislative framework or investigative powers are legally transferred in accordance with the Constitution, the creation of a general criminal investigative capacity within the Municipal Police will, in my opinion, be subject to successful constitutional challenge. The Constitution is not an obstacle to effective policing; it is the framework within which effective policing must lawfully occur.