National Assembly Passes SAPS Bill

Department of Police

The national assembly has passed the South African Police Service Amendment Bill and the Criminal Procedure Amendment Bill.

Both bills now go to the national council of provinces for concurrence.

The South African Police Service Amendment Bill is intended to align the Act with the decision handed down in the Glenister case.

The constitutional court (Concourt) found in 2011 that part of the legislation that facilitated the disbanding of the Scorpions and the establishment of the Hawks was constitutionally invalid.

The African National Congress had called for the disbanding of the Scorpions following its Polokwane conference in 2007.

In particular, chapter 6A of the South African Police Service Act as amended was found to be unconstitutional.

The judgement declared that the act did not provide enough protection to political interference by the executive arm of government in the affairs of the Hawks.

Parliament was given 18 months by the Concourt in which to make the necessary changes to the legislation.

The proposed legislation calls for the Directorate for Priority Crime Investigation or Hawks to have the “operational independence to fulfil its mandate without undue interference”.

According to the Concourt in its judgement, the constitution imposes an obligation on the state to put an independent entity in place to fight corruption and organised crime.

The bill calls for the head of the Hawks to be empowered to decide which matters will be investigated at both a national and provincial level.

The decision of the head of the Hawks in terms of the nature of crime will also prevail over a provincial commissioner.

For example, the views of the head of the Hawks on whether criminal conduct should be regarded as organised crime will trump those of a provincial commissioner.

The Criminal Procedure Amendment Bill was drawn up following a request by the police minister to amend section 49 of the Criminal Procedure Amendment Act of 1977.

The amendment was necessary to bring the legislation in line with a constitutional court judgement in the Walters case.

The judgement refers to the use of force during an arrest. The court had ruled that the shooting of a suspect in order to carry out an arrest was permitted in very limited circumstances.

The court stressed, however, that the limitations did not detract from an arrester’s rights to kill a suspect in self-defence or in defence of another person.

Section 49 regulates the use of force during the arrest of a suspect in a criminal matter.

Cabinet approved the bill for tabling in Parliament in September 2010.

At the time cabinet declared that the bill “strives to provide greater legal certainty to arrestors regarding circumstances under which force may be applied when attempting to effect an arrest, and the nature of the force that may lawfully be used in the process”.

The proposed legislation will authorise the police to shoot if the suspect in question is suspected on reasonable grounds of having previously threatened to or caused serious bodily harm to someone.

Following public hearings, a number of changes were introduced to the bill.

Firstly, the definition of deadly force in subsection 1 was changed.

The revised draft now reads “deadly force means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a person with a firearm”.

Secondly, in subsection 2, changes were introduced to the conditions under which deadly force can be used.

An arrestor may use deadly force only if “the suspect offers a threat of serious violence to the arrestor or another person; or the arrestor suspects on reasonable grounds that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later”.

Meanwhile, the police minister, Nathi Mthethwa, has launched the Second-Hand Goods Act at an event in Thohoyandou.

The act came into effect on 1 May 2012.

The act is intended to:

•    regulate the business of dealers in second-hand goods and pawnbrokers in order to combat trade in stolen goods; and to
•    promote ethical standards in the second-hand goods trade.

The minister announced that the training of designated second hand goods police officers was underway.

This would help with enforcement of the act’s provisions.

Sabinet Cape Town Office