CFCR WELCOMES WESTERN CAPE HIGH COURT DECISION ON COMMISSION OF INQUIRY
The Centre for Constitutional Rights welcomes the Western Cape High Court's decision to dismiss an application by Minister of Police, Nathi Mthethwa, for an urgent interdict against the establishment of a provincial commission of inquiry into the effectiveness of policing in Khayelitsha.
This ruling is important for two reasons: firstly, it gives guidance in understanding concurrent national and provincial competences as provided for in Schedule 4 (Functional Areas of Concurrent National and Provincial Legislative Competence) of the Constitution. Secondly, functions such as effective policing, education and provision of health services necessitate the need to revisit the constitutional principle of amicable and effective co-operative government - especially between the national and provincial spheres of government.
Section 40 of the Constitution provides for co-operative government constituted as national, provincial and local spheres of government - each sphere being distinctive, interdependent and interrelated. The Constitution also provides for specific, concurrent and exclusive competences for each sphere of government. Certain functions of government, such as aspects of policing, are by their nature implemented in the respective provinces and communities.
It is not merely about policy formulation resulting in implementation in a national theoretical continuum, but actions or inactions affecting the lives of ordinary people in a very real manner. Strategic policy formulation and management may well be a higher national function, but operational implementation is inherently reflected in the success or failure of the national police service - the South African Police Service (SAPS) - to protect life and limb of those living in the respective provinces. Ineffective policing also negatively affects the ability of a provincial executive to govern a province and to provide effective services to people living in that province, as required by the Constitution.
Schedule 4 lists policing as one such concurrent competence "to the extent that the provisions of Chapter 11 of the Constitution confer upon the provincial legislature legislative competence". Policing and especially performance of the SAPS in relation to provinces is a concurrent national and provincial competence. The Constitution in this regard gives provinces specific powers to determine whether the SAPS is indeed fulfilling its responsibilities in each of their respective provinces.
Moreover, the Constitution provides provinces with specific powers to investigate or appoint a commission of inquiry to investigate any complaint regarding police inefficiency in the province, or a breakdown of relations between the police and communities in the province and to make recommendations to the Minster regarding its findings.
Section 206(1) determines that a member of the Cabinet must be responsible for policing - at first glance an exclusive national competence. However, section 206(1) also states that such minister must determine national policing policy "after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by provincial executives". Although section 206(1) read with sections 207(1) and (2), in principle, provide for the police "management" function to be a national competence, police "governance" - oversight and performance in so far it relates to police conduct and efficiency in the respective provinces - is unmistakably a concurrent national and provincial competence. This is evident from the provisions of section 206(3) which provides, in relation to the national police service as defined in section 205, that:
"Each province is entitled -
a. to monitor police conduct;
b. to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;
c. to promote good relations between the police and the community;
d. to assess the effectiveness of visible policing; and policing with respect to crime and policing in the province."
Furthermore, section 206(4) determines that a provincial executive is responsible for policing functions vested in it by Chapter 11 of the Constitution, assigned to it by national legislation and allocated to it in terms of the national policing policy. Nevertheless, regardless of whether certain policing "functions" or active policing fall outside of the responsibility of provinces, section 206(5) emphasises the competence of a province to monitor police conduct, oversee effectiveness of the police, promote good relations between the police and community and assess effectiveness of visible policing and policing in the province. This section accordingly provides that in order for a province to "perform the functions set out in subsection (3) [section 206(3)], a province -
a. may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and
b. must make recommendations to the Cabinet member responsible for policing."
These constitutional provisions allow for provinces, in context of effective co-operative government, to influence national policy and to oversee the implementation of certain national functions that will impact on the governance of each province and the lives of the people who live in those provinces. It could be argued that if a provincial executive fails to monitor, oversee and assess the effectiveness of the SAPS and promote good relations between the SAPS and communities in that province, such provincial executive is failing its constitutional responsibility.
Thus, even though a provincial executive does not need to consult the Minister of Police, nor needs the Minister's permission in deciding whether or not to investigate or create a commission of inquiry into the performance of the SAPS in that province, the principle of co-operative government requires pragmatic considerations rather than ideological or party political turf wars.
It requires the national and provincial executives to co-operate with each other in order to secure the well-being of the people of South Africa instead of seeking to gain political high ground whilst ordinary South Africans - particularly those most vulnerable - must pay with their lives for such political gain.
Statement issued by Adv Johan Kruger, Director: Centre for Constitutional Rights, January 14 2013
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