Why we reject the Community Safety Bill – ANC WCape

Songezo Mjongile says bill aimed at creating constitutional and inter-governmental conflict

 

ANC WESTERN CAPE ORAL SUBMISSION ON THE PROVINCIAL GOVERNMENT OF THE WESTERN CAPE COMMUNITY SAFETY BILL

1. Executive Summary

On behalf of the African National Congress Western Cape, after careful consideration and thorough analysis of the Western Cape Community Safety Bill we hereby wish to place on record our ( ANC Western Cape) objection to key sections of the Western Cape Community Safety Bill ( hereafter referred to as the Bill). This includes but is not limited to:

That the Bill is unconstitutional in both letter and spirit in many respects in that the bill seeks to undermine Section 203 and 206 of the South African Constitution Act 108 of 1996 ( hereafter referred to as the Constitution) read together with Schedule 4 and 5 of the Constitution which sets out clearly and specifically the powers and functions of the different spheres of government .

Furthermore, that the bill in certain areas is in direct conflict with the Civilan Secretariat For Police Act 2 of 2011 which specifically outlines the powers and functions of the National and Provincial Secretariats for Safety and Security as it relates to civilian oversight as well as the SAPS Act amongst others.

In this regard it is our understanding that the bill in its current form seeks to encroach upon and at times duplicate the powers and functions of the National Secretariat and the IPID as it relates to civilian oversight amongst others.

Furthemore that the intention of the bill is to unconstitutionally,illegally and surreptitiously expand the powers of the Provincial MEC of Community Safety and the Provincial Cabinet.

Section 206 of the Constitution of the RSA is clear that a member of the provincial executive is responsible for policing functions assigned to it ito national legislation and national policy. The Western Cape Community Safety Bill contravenes the Constitution of RSA, since the province intends to assign powers to the MEC for policing functions through provincial legislation.

This encroachment is not only unconstitutional but it will moreover create inherent constitutional, legislative and intergovernmental conflict and tension as well as the possible duplication of functions. In addition it may have by implication ( as a result of the duplication of functions) the unintended consequences of inefficient, fruitless and wasteful expenditure.

In this regard the establishment of the Office of the Provincial Ombudsman as well as the Provincial Advisory Committee to the MEC for Community Safety are some examples of structures to be established that will amount to duplication of functions and a fruitless and wasteful expenditure. As regards the Ombudsmen’s Office there are already numerous existing structures and institutions that have been established many years ago which are already fulfilling these functions including the IPID and the Public Protector.

Furthermore, the bill has the unintended / perhaps intended consequences of curtailling communities democratic participation within community structures such as CPF’s by diluting its electoral process of CPF’ members. For example S5 of the Bill gives the MEC power to appoint CPF members, indicating once again the DA governments disdain for democratic participation of our communities in general and the poorer african and coloured communities in particular.

We have no doubt that this deeply disturbing trend which permeates much of the bill is deliberately designed to curtail the powers of communities who disagree with the policy direction of the department and the DA in particular as it relates to safety and security. It furthemore is evidence of a dangerous pattern that is emerging of a DA government that is intent on politicising the issue of oversight and community safety by bringing in DA deployees to take over the work of both communities and the officials of the Department. Section 25-28 which provides for the establishment of a provincial advisory committee in simpler terms advisors to the MEC is further evidence of this.

The bill also seeks to create a provincial intelligence gathering and analysis structure in violation and conflict with national legislation and policy as it relates to security and information and without taking into account the risks and unintended consequences as it relates to National Security.

Finally, it is our view that many other sections of the Bill as it relates to the broader functions of the Department of Community Safety other than civilian oversight need not be legislated. The current gaps, challenges and weaknesses that the bill is intending to address can be adequately addressed through policy guidelines and / or prescripts and / or standard operating procedure given that the current constitutional and legislative framework is sufficiently clear in respect of the the existing functions of Provincial Departments of Community Safety.

In conclusion having due regard for our above mentioned concerns the ANC is deeply disturbed that the real intention and spirit of this bill may be to create constitutional, legislative and intergovernmental conflict and a crisis to further the DA’s political agenda of opposition for the sake of opposition, rather than to create harmonization between the national, provincial and local spheres of government as it relates to community safety in general and civilian oversight in particular as well as to politicise the issue of safety in our province.

2. Introduction

Section 40 (1) of the Constitution of the Republic of South Africa state that in the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated. The RSA Constitution further states that all spheres of government must adhere to this section of the Constitution and must conduct their activities within parameters of Chapter 3 of the Constitution, which provides 8 principles of co-operative government and intergovernmental relations and they are quoted as follows:

Section 41(1)(a-h):

(I) All spheres of government and all organs of state within each sphere must preserve

(a) the peace, national unity and the indivisibility of the Republic;

(b) secure thew ell-being of the peopleo f the Republic;

(c) provide effective, transparent, accountable and coherent government for the

Republic as a whole;

(d) be loyal to the Constitution, the Republic and its people;

(e) respect the constitutional status, institutions, powers and functions of government in the other spheres;

(f) not assume any power or function except those conferred on them in terms of

the Constitution;

(g) exercise.; their powers and perform their functions in a manner that does not

encroach on the geographical, functional or institutional integrity of government in another sphere; and

(h) co-operate with one another in mutual trust and good faith.

Section 41 (1)(d, e and f) requires spheres of government to be loyal to the Constitution; respect the Constitutional status, restitutions, powers and function of government in the other spheres and not assume any power orfunction except those conferred on them in terms of the Constitution. The Western Cape Provincial Government’s Community Safety Bill goes against the principles of Section 41 (1) of the Constitution of RSA. It does not respect the Constitutional status, powers and functions of government and it assumes powers not conferred upon it in terms of the Constitution of RSA.

Section 206 and Section 208 of the RSA Constitution gives clear powers to the National Minister in terms policing and clearly describe what the National Minister and a Member of the Provincial Executive Council may do in terms of civilian oversight of the police. Both the SAPS Act and a Civilian Secretariat for Police Act was legislated to give effect to the Constitutional principles which clearly spells-out the role and functions of National Government and Provincial Government with regard to policing and the oversight of policing. In this regard the Community Safety Bill is unnecessary, a duplication of current legislations in place and a waste of state resources.

3. Issues in the Western Cape Community Safety Bill

Section 2, Purpose of Act:

This is duplication of the Constitution of the RSA, Section 206(1), (3), (4), (5) and (9) and 207 (5) and (6). For these sections of the Constitution, a SAPS Act and Civilian Secretariat for Police Act was legislated and is in existence, which clearly spell-out the functions of the National Minister, Members of Provincial Executive Councils and the functions of Civilian Secretariats.

Section 3, Functions of Provincial Minister:

S 3(c)

Policing policy is determined by the SAPS and cannot be subjected to the oversight of the Provincial MEC. In any case, the MEC plays a role in shaping the policy in terms of S206

In terms of the provision, the clause may be too wide ranging because the MEC cannot claim powers that is not allocated to them in terms of the Constitution

S3(l)

The MEC should not be recording complaints against the police as one of his functions. The IPID and Secretariat are mandated to do this.

The MEC cannot through this legislation take over the function of a complaints regulating body such as the IPID and Secretariat. It conflicts with established legislation

This section is a duplication of Section 2 as well as conferring extra powers to the Member of the Provincial Executive Council reponsible for policing encroaching on the Constitutional powers of the National Minister.

In addition, the explanation presented in Section 3 of the Western Cape Community Safety Bill is typically defined as a job description for the Provincial Member of the Executive Council responsible for Community Safety and a performance agreement with the Premier of the Western Cape Province.

This Section furthemore contravenes Section 206 (1) of the Constitution of RSA, which clearly state that National policing is the responsibility of the National Minister and only the National Minister can determine national policing policy after consulting with provincial governments.

This Section furthemore contravenes Section 208 of the Constitution of the RSA, which state that a Civilian Secretariat for Police Service must be established by national legislation to function under the direction of the Cabinet Member responsible for policing. However and in contrast, this Section of the Western Cape Community Safety Bill undermines Section 208 of the Constitution of the RSA and confers the Constitutional powers of the Cabinet Member responsible for policing to the Member of the Provincial Executive Council.

The Constitution is clear ito Section 206 and 208 re the powers vested in NAT MIN.

Section 4, Monitoring, oversight and assessment of policing:

In terms of Section 206 (4) of the Constitution of the RSA, a provincial executive is responsible for policing functions assigned to it in terms of national legislation and national policing policy.

The functions of monitoring and oversight of policing is already assigned to the provincial executive in terms of the national legislations namely the SAPS Act and the Civilian Secretariat for Police Act, therefore the Western Cape Community Safety Bill undermines the national legislation and the powers invested to the National Minister and prescribed by the RSA Constitution.

Chapter 2, Section 3 of the SAPS Act prescribes the functions of the secretariat, which is to evaluate the SAPS and in the same chapter, Section 3 (3) says that only the National Minister may make regulations re the establishment and functioning of secretariats and regulations re provincial secretariats in consultation with the executive co-ordinating committee.

Section 4.1 of the Community Safety Bill encroaches and expands the powers of Monitoring and Oversight e of the MEC and therefore is in violation Section 206 and 208 of the Constitution, the SAPS Act and the Civilian Secretariat of Police Service Act. The Civilian Secretariat for Police Service Act, Section 17 (1) (2) prescribes the functions of provincial secretariats. The Community Safety Bill one again undermines and contravenes the SAPS Act and the Civilian Secretariat for Police service Act.

S4(2)& (3)- The provincial Minister should not be allowed to authorise anyone, other than a staff member to perform the functions as proposed in S 4(1) of the Bill

Only employees of the Department should be authorised to interact and work with SAPS for security purposes, otherwise it compromises the security agreements and arrangements with respect to information security.

Section 5, Directives for establishment of community police forums and boards:

S5 (1) Currently clause 18(2) of the SAPS Act notes that the establishment of community police forums do not preclude the police from liaising with any structure other than CPFs

S5(3) places no obligation the Department of Community Safety to make available funding , training and resources. This clause should be reconsidered as CPF’s cannot function without such resources and allows the Department to play politics as to who it supports or not. There should be no discretion and the Department should be obligated to provide such support.

The establishment of Community Police Forums and Community Police Boards are prescribed in the SAPS Act, Chapter 7, (ss 19 – 21). The Community Safety Bill once again duplicates the SAPS Act and undermines the powers of the National Minister in terms creating national regulations and national policy as indicated in Section 206 of the Constitution. More worrying though is that the consequence of this section of the Community Safety Bill is that it will dilute the principles of democratic participation of communities in electing its CPF leadership as CPF members can now also be appointed rather than elected undermining the principles of democracy within CPF’s.

This section is further evidence of the DA lead provincial government’s war on community structures and community participation as the intention is to ensure the withering away of community participation and democratic principles in legislated community structures.

Section 5.2.&3 of the Community Safety Bill re the evaluation and support of CPFs does not need to be legislated (only national can legislate). This is a policy matter that cab be and is already dealt with via Provincial Cabinet Resolution (there is already a Provincial Cabinet Resolution re support and funding to CPFs and other organizations – 1999). Any updates and amendments can be dealt with via an amendment to the resolution.

Section 6, Accreditation of and support to neighbourhood watches:

The section does not need legislation since the provincial executive can only perform policing functions assigned to it by national legislation. The province should rather focus on policy for neighbourhood watches through a provincial cabinet resolution. Having noted the above there remains a number of concerns iro the drafting of this section which includes but is not limited to :

S6(1)(c)-The clause does not define whether people who have the intention to safeguard their property from criminals will work within the framework of the law. In its current form, the clause is too broad and can mean anyone, including vigilantes

It should be a requirement that such neighbourhood watches must work within the framework of the law to prevent vigilante organisations from receiving qualifying for government support.

Accreditation of neighbourhood watches has the effect of creating a reserve private police force that carry firearms and really are able to threaten the safety of citizens without sufficient oversight. Neighbourhood watches are not in the business of oversight, rather, they are armed men (mostly) who are in the business of providing safety to defined members of the community, sometimes at a fee.

While the objects are designed to increase oversight over the provincial police, this section has no business and place in an Act of such a nature.

There should , if that is the intention, be separate legislation which creates neighbourhood watches; stipulates its mandate, structure and what oversight structures should be used to monitor their activities. Ostensibly they perform a policing function and should be subject to the same provisions that members of SAPS and Metro Police are subject to.

S6(2)-Accreditation-The Provincial Minister asks for comment from the police prior to accrediting the neighbourhood watch.

There are defined areas where the police’s role are important:

Firstly identification of members who have criminal records, or is involved in criminality, and secondly, whether the neighbourhood watch is inclined to co-operate with the police.

However, this is not stipulated in the clause as it provides the Provincial Minister with the authority to register and accredit neighbourhood watches

The terms of accreditation are not defined. The role of the police in checking whether criminal elements are part of the neighbourhood watches has been diminished. It is not clear which aspects of they are supposed to comment on.

S6(8)-Accreditation-According to this clause, the Provincial Minister may make available resources, training and funding to accredited watches.

By giving the Provincial Minister the discretion to decide who gets resources, the opportunity arises for political bias and subjective decision making to further the political party objectives of the MEC rather than objective evidence based decisions as to which communities should receive the resources based on actual safety and security threats. It is akin to rewarding political supporters and rather than serve the purpose of supporting communtities to be more secure will inevetibaly increase conflict. This section is designed to further party political purposes rather protecting and securing communtities.

Secondly, neighbourhood watches would also eclipse and de-incentivize CPF’s from working with SAPS in such an arrangement

CPF’s are provided for in the Police Act, not neighbourhood watches. It will create unnecessary tensions and new bureaucracies

There is also no process for members of the public or institutions to object against the inclusion of individuals for accreditation, where such individuals are not fit and proper persons

Section 7, Database and partnerships with community organisations:

S7)Clause 7(1)(c) provides for the Provincial Minister to enter into contracts with entities to develop safety projects.

This section does not indicate how the Department of the Minister will use the partnerships to assist in the objectives of the department. It wide, vague and embarrasing

The provisions of the relevant and applicable national legislation should be taken into account and not just provincial legislation such as the Preferential Procurement Framework Act, the Constitution and the PFMA

There is a potential conflict of interest in the manner in which the clause is phrased as it allows the Minister to provide support (which is not defined), but allows the Minister to enter into a contractual relationship with such organisations for financial gain. This is a conflict of interest

Section 7 (c) the consequence of this section is that it provides the Member of the Provincial Executive Council with possible powers to award financial contracts to organizations. This section has the danger of violating the principles of good governance and in contravention of the PFMA. Tendering processes should not be located with an MEC’s, it is a function to be performed by the administration of the department in line with the PFMA and treasury prescripts. This section again tends to confuse and blur the role of the political office /executive and the administration as well as encroach upon the role of the administration. The intended and/ or unintended consequence of this section is that it will promote party political interests by ensuring the awarding of contracts to organizations supporting the DA’s and MEC’s political agenda.

The section is a also a duplication of Section 17 (b) of the Civilian Secretariat of Police Service Act which already assigns certain functions to the provincial secretariats that includes the promotion of community police relations, establish and promote partnership and manage the enhancement of community safety structures.

The establishment of database on community based organisation does not need legislation in this regard as it is the normal job function of a department to give effect to legislation in promoting community police relations. It should be dealt with via regulations and / or policy i.e. standard operating procedures.

More worrying though is Section 7(2) provides for the Provincial Minister to facilitate the establishment of specialised units in response to specific categories of crime

This is a misnomer because the Provincial Minister does not have the power to determine the structures of the South African Police Services or the Metro Police Services

This is a competency of the National Commissioner of SAPS and it is a national competence. The heading of Section 7 is furthemore misleading referring to “database and partnerships with community organisations”, however, its content (section 7.d) refers to the establishment of specialised units. It seems that this error may be deliberate with the intended purpose of surreptitiously including a clealy unconstitutional section under a different heading. At best it is incompetant drafting.

Section 8, Integrated information System:

Section 8.4 of the Community Safety Bill is unconstitutional encroaching on national governemnts powers functions and competance. It is in conflict with numerous national security legislation as the consequence of this section amounts to provincial legislation of private intelligence gathering. This is not a function of the province and may be in conflict with other security and intelligence legislation and policy. The section is too broad and and vague and illegally and unconstituionally implies that the Department can collect information from any police statioto without defining the information – which may negatively impact on state security and compromising police information that might be used in a court of law.

This section is in violation of Section 209 of the RSA Constitution and relevant regulations on information gathering and intelligence gathering of information.

Section 8 (7 and 8) is also unconstituional as its intention is to encroach upon and duplicate the functions of the national Minister for Policing as it relates to accountability of Private Security Agencies. It is furthmore in conflict with the Private Security Industry Regulation Act of 2001. The PSIRA is a national regulation and report and accounts to the National Minister. The

Section 9, Confidentiality and Disclosure:

This section is at variance with the section on neighbourhood watches as any person can apply for and inspect the register

The register may contain personal information and be in conflict with privacy legislation as well as a myriad of national secuirity legislation

Section 10 – 19, Establishment of Office of Western Cape Provincial Police Ombudsman:

The development of a Police Ombudsperson is in conflict with the provisions of the Constitution (S 205 (6) which makes provision for the Independent police Investigative Directorate (IPID) to investigate complaints against the police.

S205(9) of the Constitution makes provision for the police commissioner to appear before the provincial legislature. Its intention is not to have the Provincial Commissioner report on ongoing basis as the Police Ombudsman provision intends. In its current form, it makes the PC accountable to the provincial Police Ombudsman

This section therefore is an encroachment and duplication of the function of the National Secretariat ito Civilian Secretariat for Police Service Act and it is duplication and violation of the Secretariat functions as well as the IPID. It will therefor if implemented amount to a fruitless and wastefull expenditure by creating another external oversight unit outside the SAPS ( this notwithstanding the oversight units within the SAPS as well) . The IPID is already established and prescribe by national legislation to investigate complaints against the police. Other legal institutions such as the Public Protector amongst others also have the power to investigate complaints against the police. These existing oversight units should rather be strenghthened

The creation of an Ombudsman for the provincial police is recreating the wheel and another level of bureacracy in the name of oversight. As mentioned above currently the Public Protector, IPID, Civilian Secretariat deals with complaints against the police. The creation of this office is superflous and just aimed at extending political control over the police in the Province in the name of oversight.

In addition Section 10.(3) in particular makes the police directly accountable for providing co-operation, access and documents to the Ombudsman. There is currently no provision for the creation of such an office in the Constitution or the Police Act.

S11(7) makes provision for the Ombudsman to be assisted by a person or body whose service the Ombudsman requires ofr the purpose of a particular investigation

This clause is ambigous because it could mean the Ombudsman requires administrative capacity and must then contract such services, or it could mean that the Ombudsman should work in partnership with an individual or body in a particular investigation.

S13-This section makes provision for the Ombudsman to report to the Minister on an annual basis on the activities of the Ombudsman

The reporting of the Ombudsman should be to the Provincial Parliament as it is funded by expenditure appropriated by the Provincial Parliament. Its independence will be compromised and it will be seen as one side if it reports to the Provincial Minister only. This clause contradicts S 14.

S19- Reporting by the Provincial Commissioner

The provisions of this clause provides for the Provincial Commissioner to report and be accountable to the Provincial Minister. This section conflict with the SAPS Act, the Constitution as accountability of the Provincial Commissioner is to the National Commissioner of Police. SAPS is not a private provincial institution that it should report to the Provincial MEC. It has been established nationally and has a national structure. The accountability is to the national commissioner and not a politician.

Furthermore, Section 19 (1) of the Community Safety Bill, which refers to “Mandatory Reporting by the Provincial Commissioner to the Member of the Provincial Executive Council, contravenes and is in conflict with the SAPS Act, which is national legislation already prescribing the reporting by the Provincial Commissioner. This section (19.1) which requires “mandatory” reporting by the Provincial Commissioner to the MEC is also vague and embarrassing as well as illegally and unconstitutionally expanding the powers of the MEC. The RSA Constitution Section 207 (4) and (5) states that the Provincial Commissioner is responsible for policing as prescribed by national legislation (not provincial legislation) and that the Provincial Commissioner must report to the provincial legislature annually.( only)

Furthemore -S19 (2) reporting of deaths by SAPS to MEC by the PC is a duplication of IPID function as the SAPS are required by Law to report deaths in police custody and / as a result of a police officers action to the IPID. In addition Section 19 (6) is furthemore a Constitutional violation of Powers and Functions- The PC is not required to be summoned to answer to the provincial parliament.

Section 20, Loss of confidence in Provincial Commissioner:

Powers of provincial cabinet ito S69(2) of the Provincial Constitution –
provincial Cabinet can require the Provincial Commisioner (PC) to appear before any committees if there is loss of confidence in the PC. According to the Constitution of the RSA, Section 207 (6) action against a provincial commissioner may be implemented in accordance with national legislation, in this case it is the SAPS Act which also clearly state that the matter must be referred by the MEC/ or provincial executive council to the National Minister who may refer the matter to the National Police Commissioner for further investigation.

Section 21, Reporting by executive head of municipal police service:

These functions are already prescribed in the SAPS Act, Chapter 12, 64N and therefore a duplication of legislation. Again in terms of Section 206 of the Constitution, a MEC is responsible for policing assigned to it in terms of national legislation. The Community Safety Bill as a provincial legislation undermines Section 206 of the Constitution.

Section 22, Recording of requests and recommendations:

This section allows the Provincial Minister to keep a record of requests, reports and recommendations to the Provincial Minister, an executive head of a municipal police service and the SAPS Provincial Commissioner

This clause creates a record of accountability from the Provincial Commissioner or the executive head of a municipal police service. The provision of a register to be tabled in the provincial parliament is superfluous because reports of this nature really should go to the national police commissioner. The underlying purpose of this clause is to really build a case against the provincial commissioner when it comes to discipline loosing confidence. It compels the commissioner to send every recommendation and every report to the MEC’s office and such a clause is too wide ranging and will keep the administrative burden on the police very high. In any case, such a clause will not regulate the relationship between the police and the MEC. It will only intensify conflict when certain reports are not received or lost by officials. It is really designed to facilitate structural conflict between the two institutions

Section 23, Policing needs and priorities:

This is a duplication which is already covered in the RSA Constitution Section 206.

This sections allows for the Provincial Minister to report on his /her functions

The title of this section does not reflect the real purpose of this section which really is a report on the performance of the Provincial Minister to the provincial standing committee responsible for community safety. Determining policing needs and priorities is another matter altogether and the SAPS should really have a say in determining the policing needs and priorities together with the communities that they serve. This is principally done through the community police forums that are legislated structures. They have been written out of the equation and should really have the biggest say when it comes to determining what the policing needs for their communities really are.

Section 24, Cooperation in intergovernmental relations:

The MEC can only perform policing functions as prescribed by national legislation and national policy. This is a repetition of Chapter 3 of the RSA Constitution.

Section 25 – 28, Provincial Safety Advisory Committee:

S25- This section which makes provision for the establishment of a Provincial Safety Advisory Committee

The provisions of chapter 11 of the Constitution is meant for the national Minister of Police to be responsible for shaping policing policy and has the political responsibility . The Advisory committee will find itself in a corner because it cannot make and advise on national policing policy which really should be lodged with the Minister. Secondly, at national level there already exists a provision in the Civilian Secretariat for Police Act, a provision for a Reference group of academics and practitioners that advises the National Secretariat.

It is the role of the Civilian Secretariat for Police to function under the direction of the Minister who determines policing policy in terms of S 208 of the Constitution. This is a national competency and the Provincial Safety Advisory Committee is also in conflict with the Secretariat Policy Research Reference Group ito the Civilian Secretariat for Police Act

Chapter 11 of the RSA Constitution refers to the National Minister of police and not to the MEC. The Civilian Secretariat of Police Service makes provision for the appointment of a reference group of academics and practitioners that advises the National Secretariat.

The functions for the Advisory Committee as stipulated in the Provincial Bill is purely an administrative function and a duplication of the work of the department who is responsible for strategies, policies, budgets and annual performance plans. The effect of this provincial advisory committee as per the Bill is that it will duplicate and takeover the functions of the officials in the Department responsible for fulfilling the Secretariat work. This section indicates that the Advisory committee will be responsible for amongst others developing and advising the MEC on strategy of the secretariat as well as the development of APP’s. This is the function of the SMS members in the Provincial Department of Community Safety currently fulfilling the Secretariat Function such as Chief Director and the Director Safety Information and Research, Monitoring and Evaluation etc together with the Director Strategy. This section will make the functions of the officials responsible redundant and a fruitless and wasteful expenditure. It also amounts to a surreptitious and illegal circumvention of the Public Service Act and the Ministerial Handbook for Political Office Bearers which only provides for advisors to Cabinet Ministers and Premiers and not MEC’s

This provision is therefore in conflict with the role of the Civilian Secretariat for Police

Section 29, Awards:

This section which provides for the Provincial Minister to makes awards to community members could create a conflict of interest with the MEC having to issue rewards to community members and could be used politically to marginalise sections of people. This function is therefore not correctly located as it is inappropriate for the MEC to decide the upon the issuing of awards, it creates the space for poliltical biased decision making. Instead it is a function that should be managed by the department of community safety and not the MEC to avoid the political bias and subjectivity in the issuing of awards towards communities or it has the potential to create tension and conflict with an between communities and the department. An awards system must be developed with a proper evidencebased and results driven performance management and assessment process that and is not only unbiased and impartial but is seen to be by communtities as unbiased, objective, non partisan, impartial and integrity based. In its current form the awards system will lose its reputational integrity from the outset as communtities will perceive it to biased and politically motovated.

Section 30, Offences:

This section is unconsitutional as the the provincial MEC cannot regulate offences unless it is prescribe by national legislation.

Section 31, Regulations and Section 32, Delegation:

The functions of the MEC are assigned to it by national legislation – and policy.

4. Conclusion

In conclusion having due regard for our above mentioned concerns the ANC is deeply disturbed that the real intention and spirit of this bill is to create constitutional, legislative and intergovernmental conflict and a crisis to further the DA’s political agenda of opposition for the sake of opposition, rather than to create harmonization between the national, provincial and local spheres of government as it relates to community safety in general and civilian oversight in particular. Secondly that the Bill has been deliberately designed to expand the powers of the MEC to allow the DA to continue its war against community structures and take more centralised control of it by diluting there democratic right to elect members and leaders that will oppose there policy direction-and appoint there own members instead – which is to protect the safety and secuirty interests of the priveleged communtities only and to create conflict within these structures.

5. Reccommendation

That the bill be struck down down as it is:

 

  • ¬†illegal and unconstitutional in numerous repects.
  • Secondly that the bill will amount to copious amount fruitless and wastefull expenditure due to the consistant duplication of functions.
  • Thirdly that the bill will create intentional and consistent intergovernmental conflict and community conflict.
  • That the intention of the bill is not enhance the safety and security of all the communtities of the Western Cape and in particular the historically black ( african and coloured ) working class and poorer communities but rather to advance the politics of the DA.

 

Issued by the ANC Western Cape, January 29 2013

 

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