OFFICE OF THE PRESIDENT
No. 1527.
4 October 1995
NO. 68 OF 1995: SOUTH AFRICAN POLICE SERVICE ACT, 1995.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
ACT
To provide for the establishment, organisation, regulation and control of the
South African Police Service; and to provide for matters in connection
therewith.
ARRANGEMENT OF SECTIONS
Subject Section
CHAPTER 1
INTERPRETATION
Definitions 1
CHAPTER 2
MINISTERIAL SERVICES
Secretariat 2
Functions of Secretariat 3
Executive Co-ordinating Committee 4
CHAPTER 3
ESTABLISHMENT AND COMPOSITION OF SERVICE
Establishment and Composition of Service 5
CHAPTER 4
COMMISSIONERS
Appointment of National and Provincial Commissioners 6
Terms of Office of National and Provincial Commissioners 7
Loss of Confidence in National or Provincial Commissioner 8
Misconduct by or Incapacity of National or Provincial Commissioner 9
Board of Commissioners 10
CHAPTER 5
POWERS, DUTIES AND FUNCTIONS
National Commissioner 11
Provincial Commissioners 12
Members 13
Employment of Service in Preservation of Life, Health or Property 14
Delegation 15
CHAPTER 6
ORGANISED CRIME AND PUBLIC ORDER POLICING UNIT
National Prevention and Investigation of Crime 16
National Public Order Policing Unit 17
CHAPTER 7
COMMUNITY POLICE FORUMS AND BOARDS
Objects of Community Police Forums and Boards 18
Establishment of Community Police Forums 19
Establishment of Area Community Police Boards 20
Establishment of Provincial Community Police Boards 21
Functions of Community Police Forums and Boards 22
Procedural Matters 23
CHAPTER 8
REGULATIONS
Regulations 24
National Orders and Instructions 25
Provincial Orders and Instructions 26
CHAPTER 9
APPOINTMENTS, TERMS AND CONDITIONS OF SERVICE AND TERMINATION OF SERVICE
Filling of Posts 27
Recruitment and Appointment 28
Designation as Member 29
Proof of Appointment 30
Salary and Benefits 31
Training 32
Commissioned Officers 33
Inquiries 34
Discharge of Members on account of Redundancy, Interest of Service or
Appointment to Public Office 35
Discharge on account of Sentence Imposed 36
Discharge of Members Failing to Complete Basic Training 37
Missing Members and Employees 38
Secondment of Members 39
Disciplinary Proceedings 40
Strikes 41
Conduct Sheets 42
Suspension while in Detention or Imprisoned 43
Rewards and Recognitions 44
Retirement 45
Political Activities of Members 46
Obedience 47
Reserve Police Service 48
Limitation on Right to Resign 49
CHAPTER 10
INDEPENDENT COMPLAINTS DIRECTORATE
Establishment and Independence 50
Appointment of Executive Director 51
Personnel and Expenditure 52
Functions of Directorate 53
Reporting 54
CHAPTER 11
GENERAL PROVISIONS
Non-liability for Acts Under Irregular Warrant 55
Limitation of Liability of State and Members 56
Actions against Service 57
Salary or Allowance not to be Assigned or Attached 58
Prohibition on Certain Dealings 59
Property of Service not Liable to Seizure or Attachment 60
Exemption from Tolls, Fees and Fees of Office 61
Police Clubs Exempt from Licence Duties and Other Fees 62
Payment by Public for Police Services 63
CHAPTER 12
MUNICIPAL AND METROPOLITAN POLICE SERVICES
Municipal and Metropolitan Police Services 64
CHAPTER 13
OFFENCES
Receipt or Possession of Certain Property 65
Wearing and Use of Uniforms, Badges, etc. of Service 66
Interference with Members 67
False Representations 68
Prohibition on Making of Sketches or Taking of Photographs of Certain Persons
and Publication thereof 69
Unauthorised Disclosure of Information 70
Unauthorised Access to or Modification of Computer Material 71
CHAPTER 14
REPEAL AND TRANSITIONAL PROVISIONS
Repeal and Transitional Provisions 72
CHAPTER 15
SHORT TITLE AND COMMENCEMENT
Short Title and Commencement 73
PREAMBLE
WHEREAS section 214 of the Constitution of the Republic of South Africa, 1993
(Act No. 200 of 1993), requires legislation to provide for the establishment
and regulation of a South African Police Service which shall be structured at
both national and provincial levels and shall function under the direction of
the national government as well as the various provincial governments;
AND WHEREAS there is a need to provide a police service throughout the national
territory to-
(a) ensure the safety and security of all persons and property in the
national territory;
(b) uphold and safeguard the fundamental rights of every person as
guaranteed by Chapter 3 of the Constitution;
(c) ensure co-operation between the Service and the communities it serves
in the combating of crime;
(d) reflect respect for victims of crime and an understanding of their
needs; and
(e) ensure effective civilian supervision over the Service;
(Afrikaans text signed by the President.)
(Assented to 28 September 1995.)
BE IT THEREFORE enacted by the Parliament of the Republic of South Africa, as
follows:-
CHAPTER 1
INTERPRETATION
Definitions
1. In this Act, unless the context otherwise indicates-
(i) "board" means the Board of Commissioners established by section 10(1);
(xvi)
(ii) "certificate of appointment" means the document referred to in section
30; (i)
(iii) "commissioned officer" means a commissioned officer appointed under
section 33(1); (v)
(iv) "directorate" means the Independent Complaints Directorate established
by section 50(1); (iii)
(v) "employee organisation" means an organisation consisting inter alia of
members or employees of the Service formally associated together and
organised in a staff association, trade association or trade union, for
the purpose of regulating relations between themselves and the Service;
(xxx)
(vi) "equipment" includes any article supplied by the Service for use by a
member in the performance of his or her duties; (xxiii)
(vii) "executive coordinating committee" means the executive co-ordinating
committee established by section 4(1); (xxv)
(viii) "Executive Director" means the Executive Director appointed in terms
of section 51; (xxiv)
(ix) "fixed establishment" means the posts which have been created for the
normal and regular requirements of the Service; (xxvii) (x) "member"
means any member of the Service referred to in section 5(2), including-
(a) except for the purposes of any provision of this Act in respect of
which the National Commissioner may otherwise prescribe, any member
of the Reserve while such member is on duty in the Service;
(b) any temporary member while employed in the Service;
(c) any person appointed in terms of any other law to serve in the
Service and in respect of whom the Minister has prescribed that he
or she be deemed to be a member of the Service for the purposes of
this Act; and
(d) any person designated under section 29 as a member; (vi)
(xi) "member of the Executive Council" means the member of the Executive
Council referred to in section 217(1) of the Constitution; (vii)
(xii) "metropolitan police service" means a metropolitan police service
established under section 64(1)(b); (viii)
(xiii) "Minister" means the Minister for Safety and Security; (ix)
(xiv) "municipal police service" means a municipal police service
established under section 64(1)(a); (x)
(xv) "National Commissioner" means the National Commissioner referred to in
section 6(1); (xi)
(xvi) "National Orders and Instructions" means National Orders and
Instructions issued under section 25(1) or which continue to apply in
terms of section 72(4)(a); (xii)
(xvii) "national public order policing unit" means the national public
order policing unit established in terms of section 17(1); (xiii)
(xviii) "Parliamentary Committees" means the Standing Committees of the
National Assembly and the Senate responsible for safety and security
affairs; (xiv)
(xix) "prescribe" means prescribe by regulation; (xxix)
(xx) "Provincial Commissioner" means the Provincial Commissioner of a
province referred to in section 6(2); (xv)
(xxi) "Rationalisation Proclamation" means the South African Police Service
Rationalisation Proclamation, 1995, published by Proclamation No. 5,
1995, dated 27 January 1995; (xvii)
(xxii) "regulation" means a regulation made under this Act or which
continues to apply in terms of section 72(4)(a); (xviii)
(xxiii) "Reserve" means the Reserve Police Service referred to in section
48; (xix)
(xxiv) "secretariat" means the Secretariat for Safety and Security
established under section 2(1); (xx)
(xxv) "Secretary" means the Secretary for Safety and Security appointed
under section 2(2); (xxi)
(xxvi) "Service" means the South African Police Service established by
section 5(1); (ii)
(xxvii) "stores" means any movable property of the State which is kept in
stock for distribution in the Service; (xxviii)
(xxviii) "strike" means a strike within the meaning of the Labour Relations
Act, 1956 (Act No. 28 of 1956); (xxii)
(xxix) "this Act" includes the regulations; (iv) and
(xxx) "uniform" means a uniform as prescribed. (xxvi)
CHAPTER 2
MINISTERIAL SERVICES
Secretariat
2.(1)(a) The Minister shall establish a secretariat to be called the
Secretariat for Safety and Security.
(b) A provincial government may establish a provincial secretariat to be
called the Provincial Secretariat for Safety and Security: Provided
that the date on which a provincial secretariat will come into
operation shall be determined by a provincial government in
consultation with the Minister.
(2) The Minister may, subject to the laws governing the public service,
appoint a person to the office of Secretary who shall be responsible for-
(a) the performance of the functions of the secretariat; and
(b) the management and administration thereof.
(3) The Secretary may, in consultation with the Minister, subject to the laws
governing the public service, appoint the necessary personnel to assist the
Secretary to perform, subject to his or her control and directions, any
function of the secretariat.
Functions of secretariat
3. (1) The secretariat shall-
(a) advise the Minister in the exercise of his or her powers and the
performance of his or her duties and functions;
(b) perform such functions as the Minister may consider necessary or
expedient to ensure civilian oversight of the Service;
(c) promote democratic accountability and transparency in the Service;
(d) promote and facilitate participation by the Service in the
Reconstruction and Development Programme;
(e) provide the Minister with legal services and advice on constitutional
matters;
(f) provide the Minister with communication, support and administrative
services;
(g) monitor the implementation of policy and directions issued by the
Minister and report to the Minister thereon;
(h) conduct research into any policing matter in accordance with the
instructions of the Minister and report to the Minister thereon;
(i) perform such functions as may from time to time be assigned to the
secretariat by the Minister; and
(j) evaluate the functioning of the Service and report to the Minister
thereon.
(2) To the extent that it is reasonably necessary for the performance of the
functions of the secretariat, any member of its personnel-
(a) may request and obtain information and documents under the control of
the Service;
(b) may enter any building or premises under the control of the Service;
and
(c) shall be entitled to all reasonable assistance by a member.
(3) The Minister may make regulations regarding the establishing and proper
functioning of secretariats: Provided that regulations with regard to
provincial secretariats shall be made in consultation with the executive
coordinating committee.
(4) A document in the prescribed form, certifying that a person is a member
of the personnel of the secretariat, shall serve as prima facie proof that
such person is such a member.
(5) Subsections (1), (2) and (4) shall apply mutatis mutandis to a Provincial
Secretariat for Safety and Security.
Executive coordinating committee
4. (1) The executive coordinating committee contemplated in section 220(1) of
the Constitution is hereby established.
(2) The Minister shall convene the first meeting of the executive
coordinating committee.
(3) The Minister or his or her nominee shall preside at meetings of the
executive coordinating committee and the executive co-ordinating committee
shall determine its own procedure.
CHAPTER 3
ESTABLISHMENT AND COMPOSITION OF SERVICE
Establishment and composition of Service
5. (1) The South African Police Service contemplated in section 214(1) of the
Constitution is hereby established.
(2) The Service shall consist of-
(a) all persons who immediately before the commencement of this Act were
members-
(i) of a force which, by virtue of section 236(7)(a) of the
Constitution, is deemed to constitute part of the Service;
(ii) appointed under the Rationalisation Proclamation;
(iii) of the Reserve by virtue of section 12(2)(k) of the
Rationalisation Proclamation;
(b) members appointed in terms of section 28(2) of this Act; and
(c) persons who become members of the Reserve under section 48(2) of this
Act.
CHAPTER 4
COMMISSIONERS
Appointment of National and Provincial Commissioners
6. (1) There shall be a National Commissioner of the Service who shall be
appointed in accordance with section 216(2)(a) of the Constitution.
(2) There shall be a Provincial Commissioner of the Service for each province
who shall be appointed by the National Commissioner subject to section
218(1)(b) of the Constitution.
Terms of office of National and Provincial Commissioners
7. (1) Subject to this Act, the person who is appointed as National or
Provincial Commissioner shall occupy that office for a period of five years
from the date of his or her appointment or such shorter period as may be
determined at the time of his or her appointment by-
(a) the President, in relation to the National Commissioner; or
(b) the National Commissioner in consultation with the member of the
Executive Council, in relation to a Provincial Commissioner.
(2) The term of office referred to in subsection (1) may be extended at the
expiry thereof for a period or successive periods not exceeding five years at
a time, as may, subject to subsection (3), be determined by-
(a) the President, in relation to the National Commissioner; or
(b) the National Commissioner in consultation with the member of the
Executive Council concerned, in relation to the Provincial
Commissioner.
(3) The President or the National Commissioner, as the case may be, shall
notify the Commissioner concerned in writing at least two calendar months
before the expiry of the period contemplated in subsection (1), or any
subsequent extended period contemplated in subsection (2), whether he or she
intends extending his or her term of office or not and, if so, for what
period.
(4) When the National or Provincial Commissioner receives notice of the
extension of his or her term of office in accordance with subsection (3), he
or she shall notify the President or the National Commissioner, as the case
may be, in writing within one calendar month from the date of receipt of such
notice of his or her acceptance or not of such extended term of office.
(5) If the National or Provincial Commissioner notifies the President or the
National Commissioner, as the case may be, in accordance with subsection (4)
of his or her acceptance of such extended term of office, his or her term of
office shall be extended accordingly.
Loss of confidence in National or Provincial Commissioner
8. (1) If the National Commissioner has lost the confidence of the Cabinet,
the President may establish a board of inquiry consisting of a judge of the
Supreme Court as chairperson, and two other suitable persons, to-
(a) inquire into the circumstances that led to the loss of confidence;
(b) compile a report; and
(c) make recommendations.
(2)(a) If a Provincial Commissioner has lost the confidence of the
Executive Council, the member of the Executive Council may notify the
Minister of such occurrence and the reasons therefor.
(b) The Minister shall, if he or she deems it necessary and appropriate,
refer the notice contemplated in paragraph (a) to the National
Commissioner.
(c) The National Commissioner shall, upon receipt of the notice, establish
a board of inquiry consisting of not more than three persons, of which
the chairperson shall, subject to paragraph (d), be a person who, for
at least 10 years after having qualified as an advocate or an attorney,
practised as such, to-
(i) inquire into the circumstances that led to the loss of confidence;
(ii) compile a report; and
(iii) make recommendations.
(d) The National Commissioner may appoint any other person suitably
qualified in law as chairperson of the board of inquiry.
(3)(a) The President or National Commissioner, as the case may be, may,
after hearing the Commissioner concerned, pending the outcome of the
inquiry referred to in subsection (1) or (2)(c), suspend him or her
from office.
(b) A Commissioner who is suspended from office under paragraph (a), shall,
during the period of such suspension, be entitled to any salary,
allowance, privilege or benefit to which he or she is otherwise
entitled as a member, unless the President or the National
Commissioner, as the case may be, determines otherwise.
(4) If a board of inquiry is established under subsection (1) or (2)(c), the
Commissioner concerned shall be notified thereof in writing, and thereupon he
or she may-
(a) be assisted or represented by another person or legal representative;
(b) make written representations to the board;
(c) be present at the inquiry;
(d) give evidence thereat;
(e) cross-examine witnesses not called by him or her;
(f) be heard;
(g) call witnesses; and
(h) have access to documents relevant to the inquiry.
(5) The board of inquiry shall determine its own procedure.
(6)(a) At the conclusion of the inquiry, the board shall submit its report
to-
(i) (aa) the President, in the event of an inquiry under subsection
(1); or
(bb) the National Commissioner, the member of the Executive Council
and the standing committee of the provincial legislature
responsible for safety and security affairs, in the event of an
inquiry under subsection (2);
(ii) the Commissioner concerned; and
(iii) the Parliamentary Committees.
(b) The report referred to in paragraph (a) may recommend that-
(i) no action be taken in the matter;
(ii) the Commissioner concerned be transferred to another post or be
employed additional to the fixed establishment;
(iii) his or her salary or rank or both his or her salary and rank be
reduced;
(iv) action be taken against him or her in accordance with subparagraphs
(ii) and (iii);
(v) he or she be removed from office; or
(vi) any other appropriate steps (including the postponement of any
decision by the President or the National Commissioner, as the case
may be, for a period not exceeding 12 calendar months) be taken.
(7) The President or the National Commissioner, as the case may be, may, upon
receipt of a recommendation contemplated in subsection (6), remove the
Commissioner concerned from office, or take any other appropriate action:
Provided that, if the President or the National Commissioner, as the case may
be, postpones his or her decision for a period, he or she shall, at the end of
such period, request the same board of inquiry, or a similar board established
for that purpose, to compile a new report and to make a new recommendation
after having considered the conduct of the Commissioner concerned during such
period.
(8) If a Provincial Commissioner has lost the confidence of the National
Commissioner, the provisions of subsections (2)(c) and (d), (3), (4), (5), (6)
and (7) shall apply mutatis mutandis.
(9) In the event of a Commissioner being removed from office following on an
inquiry in accordance with a finding of a loss of confidence in such a
Commissioner, or in accordance with a finding of a loss of confidence referred
to in section 9(3), his or her term of office shall be deemed to have expired
on the date immediately preceding the date on which such removal from office
takes effect.
Misconduct by or incapacity of National or Provincial Commissioner
9. (1) Subject to this section, subsections (1) to (8) of section 8 shall
apply mutatis mutandis to any inquiry into allegations of misconduct by the
National or Provincial Commissioner, or into his or her fitness for office or
capacity for executing his or her official duties efficiently.
(2) The board of inquiry established by virtue of subsection (1) shall make a
finding in respect of the alleged misconduct or alleged unfitness for office
or incapacity of executing official duties efficiently, as the case may be,
and make recommendations as contemplated in section 8(6)(b).
(3) If the National Commissioner has lost the confidence of the Cabinet or a
Provincial Commissioner has lost the confidence of the Executive Council or
the National Commissioner, as the case may be, following on an inquiry in
terms of this section, the provisions of section 8(7) shall apply mutatis
mutandis.
Board of Commissioners
10. (1) The Board of Commissioners consisting of the National and Provincial
Commissioners is hereby established.
(2) The functions of the board shall be to promote co-operation and
co-ordination in the Service.
(3) The board shall be presided over by the National Commissioner or his or
her nominee and the board shall determine its own procedure.
CHAPTER 5
POWERS, DUTIES AND FUNCTIONS
National Commissioner
11. (1) The National Commissioner may exercise the powers and shall perform
the duties and functions necessary to give effect to section 218(1) of the
Constitution.
(2) Without derogating from the generality of subsection (1), the powers,
duties and functions referred to in that subsection shall include the power,
duty and function to-
(a) develop a plan before the end of each financial year, setting out the
priorities and objectives of policing for the following financial year;
(b) determine the fixed establishment of the Service and the number and
grading of posts;
(c) determine the distribution of the numerical strength of the Service
after consultation with the board;
(d) organise or reorganise the Service at national level into various
components, units or groups;
(e) establish and maintain training institutions or centres for the
training of students and other members;
(f) establish and maintain bureaus, depots, quarters, workshops or any
other institution of any nature whatsoever, which may be expedient for
the general management, control and maintenance of the Service; and
(g) perform any legal act or act in any legal capacity on behalf of the
Service.
Provincial Commissioners
12. (1) Subject to this Act, a Provincial Commissioner shall have command of
and control over the Service under his or her jurisdiction in the province and
may exercise the powers and shall perform the duties and functions necessary
to give effect to section 219 of the Constitution.
(2) A Provincial Commissioner may-
(a) subject to a determination under section 11(2)(a), delimit any area in
the province and determine the boundaries thereof until the province
has been divided into as many areas as may be necessary for the
purposes of the organisation of the Service under his or her
jurisdiction; and
(b) establish and maintain police stations and units in the province and
determine the boundaries of station or unit areas.
(3) A Provincial Commissioner shall determine the distribution of the
strength of the Service under his or her jurisdiction in the province among
the different areas, station areas, offices and units.
Members
13. (1) Subject to the Constitution and with due regard to the fundamental
rights of every person, a member may exercise such powers and shall perform
such duties and functions as are by law conferred on or assigned to a police
official.
(2) Where a member becomes aware that a prescribed offence has been
committed, he or she shall inform his or her commanding officer thereof as
soon as possible.
(3)(a) A member who is obliged to perform an official duty, shall, with
due regard to his or her powers, duties and functions, perform such
duty in a manner that is reasonable in the circumstances.
(b) Where a member who performs an official duty is authorised by law to
use force, he or she may use only the minimum force which is reasonable
in the circumstances.
(4) Every member shall be competent to serve or execute any summons, warrant
or other process whether directed to him or her or to any other member.
(5) Any member may in general or in any particular instance be required to
act as prosecutor, or in any other respect to appear on behalf of the State in
any criminal matter before any magistrate's court, any magistrate holding a
preparatory examination, a court of a special justice of the peace or any
other lower court in the Republic.
(6) Any member may, where it is reasonably necessary for the purposes of
control over the illegal movement of people or goods across the borders of the
Republic, without warrant search any person, premises, other place, vehicle,
vessel or aircraft, or any receptacle of whatever nature, at any place in the
Republic within 10 kilometres or any reasonable distance from any border
between the Republic and any foreign state, or in the territorial waters of
the Republic, or inside the Republic within 10 kilometres or any reasonable
distance from such territorial waters and seize anything found in the
possession of such person or upon or at or in such premises, other place,
vehicle, vessel, aircraft or receptacle and which may lawfully be seized.
(7)(a) The National or Provincial Commissioner may, where it is reasonable
in the circumstances in order to restore public order or to ensure the
safety of the public in a particular area, in writing authorise that
the particular area or any part thereof be cordoned off.
(b) The written authorisation referred to in paragraph (a) shall specify
the period, which shall not exceed 24 hours, during which the said area
may be cordoned off, the area or part thereof to be cordoned off and
the object of the proposed action.
(c) Upon receipt of the written authorisation referred to in paragraph (a),
any member may cordon off the area concerned or part thereof, and may,
where it is reasonably necessary in order to achieve the object
specified in the written authorisation, without warrant, search any
person, premises or vehicle, or any receptacle or object of whatever
nature, in that area or part thereof and seize any article referred to
in section 20 of the Criminal Procedure Act, 1977 (Act No. 51 of
1977), found by him or her in the possession of such person or in that
area or part thereof: Provided that a member executing a search under
this paragraph shall, upon demand of any person whose rights are or
have been affected by the search or seizure, exhibit to him or her a
copy of the written authorisation.
(8)(a) The National or Provincial Commissioner may, where it is reasonable
in the circumstances in order to exercise a power or perform a function
referred to in section 215 of the Constitution, in writing authorise a
member under his or her command, to set up a roadblock or roadblocks on
any public road in a particular area of to set up a checkpoint or
checkpoints at any public place in a particular area.
(b) The written authorisation referred to in paragraph (a) shall specify
the date, approximate duration, place and object of the proposed
action.
(c) Any member authorised under paragraph (a) may set up a roadblock or
roadblocks or cause a roadblock or roadblocks to be set up on any
public road in the area so specified or set up a checkpoint or
checkpoints or cause a checkpoint or checkpoints to be set up at any
public place in the area so specified.
(d) Notwithstanding the provisions of paragraph (a), any member who has
reasonable suspicion to believe that-
(i) an offence mentioned in Schedule I to the Criminal Procedure Act,
1977, has been committed and that a person who has been involved in
the commission thereof is, or is about to be, travelling in a motor
vehicle in a particular area;
(ii) a person who is a witness to such an offence is absconding and is,
or is about to be, travelling in a motor vehicle in a particular
area and that a warrant for his or her arrest has been issued under
section 184 of the Criminal Procedure Act, 1977, or that such a
warrant will be issued if the information at the disposal of the
member is brought to the attention of the magistrate, regional
magistrate or judge referred to in that section, but that the delay
in obtaining such warrant will defeat the object of the roadblock;
(iii) a person who is reasonably suspected of intending to commit an
offence referred to in subparagraph (i) and who may be prevented
from committing such an offence by the setting up of a roadblock is,
or is about to be, travelling in a motor vehicle in a particular
area;
(iv) a person who is a fugitive after having escaped from lawful custody
is, or is about to be, travelling in a motor vehicle in a particular
area; or
(v) any object which-
(aa) is concerned in;
(bb) may afford evidence of; or
(cc) is intended to be used in,
the commission of an offence referred to in subparagraph (i),
whether within the Republic or elsewhere, and which is, or is about
to be, transported in a motor vehicle in a particular area and that
a search warrant will be issued to him or her under section 21(1)(a)
of the Criminal Procedure Act, 1977, if he
or she had reason to believe that the object will be transported in a
specific vehicle and he or she had applied for such warrant, and that
the delay that will be caused by first obtaining an authorisation
referred to in paragraph (a), will defeat the object of the
roadblock, may set up a roadblock on any public road or roads in that
area for the purpose of establishing whether a motor vehicle is
carrying such a person or object.
(e) For the purposes of exercising the powers conferred by paragraph (c) or
(d), a member shall display, set up or erect on or next to the road or
at the public place such sign, barrier or object as is reasonable in
the circumstances to bring the order to stop to the attention of the
driver of a vehicle approaching the roadblock so as to ensure that the
vehicle will come to a stop or to the attention of a person approaching
the checkpoint.
(f) Any driver of a vehicle who approaches a roadblock or any person who
approaches a checkpoint and who refuses or fails to stop in accordance
with an order to stop displayed as contemplated in paragraph (e), shall
be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding six months.
(g) Any member may, without warrant-
(i) in the event of a roadblock or checkpoint that is set up in
accordance with paragraph (c), search any person or vehicle stopped
at such roadblock or checkpoint and any receptacle or object of
whatever nature in the possession of such person or in, on or
attached to such vehicle and seize any article referred to in
section 20 of the Criminal Procedure Act, 1977, found by him or her
in the possession of such person or in, on or attached to such
receptacle or vehicle: Provided that a member executing a search
under this subparagraph shall, upon demand of any person whose
rights are or have been affected by the search or seizure, exhibit
to him or her a copy of the written authorisation by the
Commissioner concerned; and
(ii) in the event of a roadblock that is set up in accordance with
paragraph (d), search any person or vehicle stopped at such
roadblock and any receptacle or object of whatever nature in, on or
attached to such vehicle and seize any article referred to in
section 20 of the Criminal Procedure Act, 1977, found by him or her
in, on or attached to such receptacle or vehicle: Provided that a
member executing a search under this subparagraph shall, upon demand
of any person whose rights are or have been affected by the search
or seizure, inform him or her of the reason for the setting up of
the roadblock.
(h) For the purposes of this subsection "checkpoint" includes any barrier
set up under an authorisation referred to in paragraph (a) in order to
control the movement of persons.
(9) The provisions of sections 29 to 36 of the Criminal Procedure Act, 1977,
shall apply mutatis mutandis in respect of a search conducted under
subsections (6), (7) and (8) and any object seized during such a search.
(10) The National or Provincial Commissioner may, in the exercise of any
power or the performance of any function referred to in section 215 of the
Constitution, publish or cause to be published, or in any other manner display
or cause to be displayed any information, photograph or sketch of any person.
(11)(a) A member may, for the purposes of investigating any offence or
alleged offence, cordon off the scene of such offence or alleged
offence and any adjacent area which is reasonable in the circumstances
to cordon off in order to conduct an effective investigation at the
scene of the offence or alleged offence.
(b) A member may, where it is reasonable in the circumstances in order to
conduct such investigation, prevent any person from entering or leaving
an area so cordoned off.
(12)(a) If the National Commissioner deems it necessary for the purposes of
performing the functions of the Service, he or she may, with the
approval of the Minister, direct any member to perform service at any
place outside the Republic.
(b) A member in respect of whom a direction has been issued under paragraph
(a), shall perform service in accordance with such direction and shall,
while so performing service, remain, unless the Minister in a
particular case otherwise directs, subject to the provisions of this
Act as if performing service within the Republic.
(13) Subject to the Constitution -
(a) this section shall not be construed as derogating from any power
conferred upon a member by or under this Act or any other law,
including the common law; and
(b) the powers conferred upon a member by this section shall not be limited
by any other law, including the common law.
Employment of Service in preservation of life, health or property
14. The National or Provincial Commissioner may employ members for service
in the preservation of life, health or property.
Delegation
15.(1)(a) Subject to section 15 of the Exchequer Act, 1975 (Act No. 66
of 1975), any power conferred on the National or Provincial
Commissioner by this Act or any other law, excluding the power
contemplated in section 13(7)(a), may be delegated in writing by any
such Commissioner to any member or other person in the employment of
the Service, or a board or body established by or under this Act or a
law referred to in section 217(3) of the Constitution, who or which
shall exercise such power subject to the directions of the Commissioner
concerned.
(b) Paragraph (a) shall apply mutatis mutandis in respect of any power
delegated by the National Commissioner to a Provincial Commissioner
under that paragraph.
(2) The delegation of any power by the National or Provincial Commissioner
under subsection (1) may be withdrawn by such a Commissioner and any decision
taken by anyone under such delegated power may be withdrawn or amended by such
Commissioner, and shall, until it is so withdrawn or amended, be deemed to
have been taken by the National or Provincial Commissioner concerned:
Provided that any such withdrawal or amendment shall not affect any right,
privilege, obligation or liability acquired, accrued or incurred as a result
of such decision.
CHAPTER 6
ORGANISED CRIME AND PUBLIC ORDER POLICING UNIT
National prevention and investigation of crime
16. (1) Circumstances amounting to criminal conduct or an endeavour thereto,
as set out in subsection (2), shall be regarded as organised crime, crime
which requires national prevention or investigation, or crime which requires
specialised skills in the prevention and investigation thereof.
(2) Circumstances contemplated in subsection (1) comprise criminal conduct or
endeavour thereto-
(a) by any enterprise or group of persons who have a common goal in
committing crimes in an organised manner;
(b) (i) by a person or persons in positions of trust and making use of
specialised or exclusive knowledge;
(ii) in respect of the revenue or expenditure of the national
government; or
(iii) in respect of the national economy or the integrity of currencies;
(c) which takes on such proportions or is of such a nature that the
prevention or investigation thereof at national level would be in the
national interest;
(d) in respect of unwrought precious metals or unpolished diamonds;
(e) in respect of the hunting, importation, exportation, possession, buying
and selling of endangered species or any products thereof as may be
prescribed;
(f) in more than one province or outside the borders of the Republic by the
same perpetrator or perpetrators, and in respect of which the
prevention or investigation at national level would be in the national
interest;
(g) in respect of which the prevention or investigation requires the
application of specialised skills and where expedience requires that it
be prevented or investigated at national level;
(h) which a Provincial Commissioner requests the National Commissioner to
prevent or investigate by employing expertise and making resources
available at national level and to which request the National
Commissioner accedes;
(i) in respect of which the investigation in the Republic by the Service is
requested by an international police agency or the police of a foreign
country; and
(j) in respect of which the prevention or investigation by members under
the command of a Provincial Commissioner will detrimentally affect or
hamper the prevention or investigation of circumstances referred to in
paragraphs (a) to (i).
(3) In the event of a dispute between the National and Provincial
Commissioner regarding the question whether criminal conduct or endeavour
thereto should be regarded as organised crime, crime which requires national
prevention or investigation or crime which requires specialised skills in the
investigation and prevention thereof, the determination by the National
Commissioner shall prevail.
(4)(a) Notwithstanding the provisions of subsections (1), (2) and (3), the
Provincial Commissioner shall be responsible for the prevention and
investigation of all crimes or alleged crimes committed in the province
concerned.
(b) Where an investigation of a crime or alleged crime reveals that the
circumstances referred to in subsection (2) are present, the Provincial
Commissioner shall report the matter to the National Commissioner as
soon as possible.
(c) The National Commissioner may, in consultation with the Provincial
Commissioner concerned, notwithstanding the presence of the
circumstances referred to in subsection (2), direct that the
investigation or any part thereof, be conducted by the Provincial
Commissioner.
National public order policing unit
17. (1) The National Commissioner shall, subject to section 218(1)(k) of the
Constitution, establish and maintain a national public order policing unit.
(2) The National Commissioner may deploy the national public order policing
unit, or any part thereof, at the request and in support of a Provincial
Commissioner, taking into account-
(a) the reason for the request;
(b) the personnel and equipment available to the unit; and
(c) any other circumstances anywhere in the national territory which may
have an influence on the maintenance of public order and which may
require the deployment of the unit or any part thereof elsewhere.
(3) Where the national public order policing unit or any part thereof is
deployed under subsection (2), the unit shall perform its functions subject to
the directions of the Provincial Commissioner concerned: Provided that the
mere fact of such deployment does not preclude the President from exercising
his or her powers under subsection (5) in relation to the area where the unit
is so deployed.
(4) The National Commissioner may withdraw the national public order policing
unit or any part thereof deployed under subsection (2), taking into account-
(a) the prevailing circumstances where the unit or part thereof is so
deployed;
(b) the personnel and equipment available to the unit; and
(c) any other circumstances anywhere in the national territory which may
have an influence on the maintenance of public order and which may
require the deployment of the unit or any part thereof elsewhere:
Provided that the National Commissioner shall, at the request of the
Provincial Commissioner, withdraw the unit or any part thereof so
deployed.
(5) The President may, in consultation with the Cabinet, direct the National
Commissioner to deploy the national public order policing unit in
circumstances where a Provincial Commissioner is unable to maintain public
order and the deployment of the unit is necessary to restore public order.
(6) The National Commissioner shall, upon receiving a direction under
subsection (5), deploy the national public order policing unit or such part
thereof as may be necessary to restore public order to the area concerned, and
may from time to time if he or she deems it necessary, deploy additional
members of the unit in the area concerned or, subject to subsection (7),
withdraw members of the unit from the area concerned if their continued
presence is no longer required to restore or maintain public order in the area
concerned or in any part thereof.
(7) Where the national public order policing unit or any part thereof is
deployed under subsection (5) and public order has been restored in the area
concerned, the unit or part thereof shall continue to maintain public order in
such area until the President, in consultation with the Cabinet, directs the
National Commissioner to withdraw the unit.
CHAPTER 7
COMMUNITY POLICE FORUMS AND BOARDS
Objects of community police forums and boards
18. (1) The Service shall, in order to achieve the objects contemplated in
section 215 of the Constitution, liaise with the community through community
police forums and area and provincial community police boards, in accordance
with sections 19, 20 and 21, with a view to-
(a) establishing and maintaining a partnership between the community and
the Service;
(b) promoting communication between the Service and the community;
(c) promoting co-operation between the Service and the community in
fulfilling the needs of the community regarding policing;
(d) improving the rendering of police services to the community at
national, provincial, area and local levels;
(e) improving transparency in the Service and accountability of the Service
to the community; and
(f) promoting joint problem identification and problem-solving by the
Service and the community.
(2) This Chapter shall not preclude liaison by the Service with the community
by means other than through community police forums and boards.
Establishment of community police forums
19. (1) A Provincial Commissioner shall, subject to the directions of the
member of the Executive Council, be responsible for establishing community
police forums at police stations in the province which shall, subject to
subsection (3), be broadly representative of the local community.
(2) A community police forum may establish community police sub-forums.
(3) Subject to section 23(1)(b), the station commissioner and the members
designated by him or her from time to time for that purpose, shall be members
of the community police forum and sub-forums established at the police station
concerned.
Establishment of area community police boards
20. (1) A Provincial Commissioner shall, subject to the directions of the
member of the Executive Council, be responsible for establishing area
community police boards in all areas within the province.
(2) An area community police board shall, subject to subsection (3), consist
of representatives of community police forums in the area concerned designated
for that purpose by such community police forums.
(3) Subject to section 23(1)(b), the area commissioner and the members
designated by him or her from time to time for that purpose, shall be members
of the area community police board concerned.
Establishment of provincial community police boards
21. (1) A Provincial Commissioner shall, subject to the directions of the
member of the Executive Council, be responsible for establishing a provincial
community police board.
(2) A provincial community police board shall, subject to subsection (3),
consist of representatives of area community police boards designated for that
purpose by the area community police boards in the province concerned.
(3) Subject to section 23(1)(b), the Provincial Commissioner and the members
designated by him or her from time to time for that purpose, shall be members
of the provincial community police board concerned.
Functions of community police forums and boards
22. (1) A provincial or area community police board or a community police
forum or subforum shall perform the functions it deems necessary and
appropriate to achieve the objects contemplated in section 18, which may
include the functions contemplated in section 221(2) of the Constitution.
(2) The Minister shall, in consultation with the executive coordinating
committee, make regulations to ensure the proper functioning of community
police forums and sub-forums and community police boards.
Procedural matters
23. (1) Every provincial or area community police board and community police
forum or sub-forum shall-
(a) elect one of its members as chairperson and another one as
vice-chairperson;
(b) determine the number of members to be designated by the provincial,
area or station commissioner concerned to serve as members of the
board, forum or subforum concerned: Provided that that number shall
not be less than one in addition to the provincial, area or station
commissioner concerned;
(c) determine its own procedure and cause minutes to be kept of its
proceedings; and
(d) whenever it deems it necessary, co-opt other members or experts or
community leaders to the board or forum in an advisory capacity.
(2) Members of community police forums or boards shall render their services
on a voluntary basis and shall have no claim to compensation solely for
services rendered to such forums and boards.
(3) The majority of the members of the board, forum or sub-forum concerned
shall constitute a quorum at a meeting thereof.
(4) If the chairperson of a board or forum referred to in this section is
absent from a meeting, the vice-chairperson shall act as chairperson, and if
both the chairperson and vice-chairperson are so absent, the members present
shall elect one of their number to preside at that meeting.
CHAPTER 8
REGULATIONS
Regulations
24. (1) The Minister may make regulations regarding-
(a) the exercising of policing powers and the performance by members of
their duties and functions;
(b) the recruitment, appointment, promotion and transfer of members;
(c) the training, conduct and conditions of service of members;
(d) the general management, control and maintenance of the Service;
(e) returns, registers, records, documents, forms and correspondence in the
Service;
(f) labour relations, including matters regarding suspension, dismissal and
grievances;
(g) (i) the institution and conduct of disciplinary proceedings or
inquiries;
(ii) conduct by members that will constitute misconduct;
(iii) the provisions, if any, of the Criminal Procedure Act, 1977 (Act
No. 51 of 1977), that shall apply mutatis mutandis to disciplinary
proceedings or inquiries under this Act;
(iv) the attendance by a member or any witness, of such disciplinary
proceedings or inquiries;
(v) the circumstances under which such disciplinary proceedings or
inquiries may be conducted or proceeded with in the absence of the
member accused of misconduct or affected by such an inquiry;
(vi) the hearing and submission of evidence at such disciplinary
proceedings or inquiries;
(vii) competent findings and sanctions in respect of such disciplinary
proceedings or inquiries; and
(viii) review and appeal in respect of such disciplinary proceedings or
inquiries;
(h) the issue of a code of conduct for the Service and the upholding
thereof;
(i) the establishment of different categories of personnel, components,
ranks, designations and appointments in the Service;
(j) (i) the standards of physical and mental fitness required, and the
medical examination, of members;
(ii) the medical, dental and hospital treatment of members and their
families;
(k) (i) the establishment, management and control of a scheme to provide
for the medical, dental and hospital treatment, the provision of
medicines and other medical requirements and the transportation
during their indisposition of-
(aa) members and members of their families;
(bb) members who have retired or who retire on pension, and members
of their families; and
(cc) the families of deceased members;
(ii) the categories of members, or other persons who shall or may become
members of such a scheme;
(iii) the portion of the costs of such treatment, medicines, medical
requirements and transportation which shall be payable under such a
scheme by any member or category of members of such a scheme;
(iv) the termination of membership of such a scheme;
(v) the rights, privileges and obligations of members of such a scheme;
(vi) the vesting in such a scheme of assets, rights, liabilities or
obligations or the disposal in any way of the assets of such a
scheme; and
(vii) generally, all matters reasonably necessary for the regulation and
operation of such a scheme;
(l) the resignation or reduction in rank of members;
(m) the grading of posts and the remuneration structure, including
allowances or benefits of members;
(n) the establishment and maintenance of training institutions or centres
for members and the instruction, training, discipline and control of
members at such institutions or centres;
(o) the management of and access to laboratories established for the
purposes of the analysis of forensic evidence as well as fees payable
for services rendered in that regard;
(p) the attendance by members of instructional or training courses at
institutions or centres other than those established and maintained in
terms of this Act;
(q) the establishment and control of funds of clubs referred to in section
62(3);
(r) the deductions to be made from the salaries, wages or allowances of
members;
(s) the provisioning of the Service, including the provision of stores and
equipment required for the Service, and the care, safe custody and
maintenance thereof;
(t) the design, award, use, care, loss, forfeiture and restoration of any
decoration or medal instituted, constituted or created under this Act,
and its bar, clasp or ribbon;
(u) the design of an official flag and coat of arms for the Service;
(v) the dress and clothing of members, and the control over or disposal of
a uniform or part thereof;
(w) the utilisation by the Service of property-
(i) forfeited to the State;
(ii) abandoned, lost or taken charge of by a member; or
(iii) unclaimed and found or taken charge of by a member;
(x) the retention of rank on retirement from the Service and the award of
honorary ranks;
(y) the occupation by members of quarters, whether owned or rented by the
State or placed at its disposal;
(z) the participation in sport and recreational activities by members;
(aa) the fair distribution of and access to police services and
resources in respect of all communities;
(w) the utilisation by the Service of property-
(i) forfeited to the State;
(ii) abandoned, lost or taken charge of by a member; or
(iii) unclaimed and found or taken charge of by a member;
(i) the procedure thereof; and
(ii) the attendance by witnesses of the proceedings thereof;
(ee) the development of the plan contemplated in sec
achievement of the objects of this Act.
(2) Different regulations may be made regarding different categories of
members or personnel.
(3) Any regulation under subsection (1)(cc) shall be made in consultation
with the Executive Director.
(4) Any regulation which affects State revenue or expenditure shall be made
with the concurrence of the Minister of Finance.
National orders and instructions
25. (1) The National Commissioner may issue national orders and instructions
regarding all matters which-
(a) fall within his or her responsibility in terms of the Constitution or
this Act;
(b) are necessary or expedient to ensure the maintenance of an impartial,
accountable, transparent and efficient police service; or
(c) are necessary or expedient to provide for the establishment and
maintenance of uniform standards of policing at all levels required by
law.
(2) National orders and instructions issued under subsection (1) shall be
known and issued as National Orders and Instructions and shall be applicable
to all members.
(3) The National Commissioner may issue different National Orders and
Instructions in respect of different categories of members.
Provincial orders and instructions
26. (1) Provincial Commissioners may issue orders and instructions which are
not inconsistent with this Act or the National Orders and Instructions.
(2) Orders and instructions issued under subsection (1) shall be known and
issued as the Provincial Orders and Instructions of the province concerned and
shall be applicable to members under the command of the Provincial
Commissioner concerned only.
(3) If any Provincial Order or Instruction is inconsistent with a National
Order or Instruction, the National Order or Instruction shall prevail.
CHAPTER 9
APPOINTMENTS, TERMS AND CONDITIONS OF SERVICE AND TERMINATION OF SERVICE
Filling of posts
27. (1) Subject to subsection (2), the filling of any post in the Service,
whether by appointment, promotion or transfer, shall be done in accordance
with section 212(4) of the Constitution.
(2) Subsection (1) shall not preclude compliance with measures designed to
achieve the objects contemplated in sections 8(3)(a) and 212(2) of the
Recruitment and appointment
28. (1) The National Commissioner shall determine a uniform recruitment
procedure for the Service.
(2) Subject to section 27, the National Commissioner may appoint a person to
a post in the fixed establishment of the Service.
(3) Any commissioned officer, magistrate, additional magistrate or assistant
magistrate may, if sufficient permanent members are not available at a
particular locality to perform a specific police duty, appoint such fit and
proper persons as may be necessary as temporary members to perform such duty
on such terms and conditions as may be prescribed.
Designation as member
29. (1) The Minister may by notice in the Gazette designate categories of
personnel employed on a permanent basis in the Service and who are not
members, as members.
(2) Personnel designated as members under subsection (1), shall be deemed to
be members appointed to posts in the fixed establishment of the Service under
section 28(2) with effect from a date determined by the Minister in the notice
concerned: Provided that a person who is a member of a category of personnel
so designated who does not, within one month of such designation, consent
thereto and, if applicable, consent as required by section 212(7)(b) of the
Constitution, to having the retirement age applicable to him or her on 1
October 1993 changed as a result of such designation, shall not be affected by
such notice.
Proof of appointment
30. A document in the prescribed form certifying that a person has been
appointed as a member, shall be prima facie proof of such appointment.
Salary and benefits
31. (1) A member shall have the right to the salary and benefits determined
in his or her case by or under this Act or any other law.
(2) The salary or salary scale of a member shall not be reduced without his
or her consent, except in accordance with section 8(7) or following on
disciplinary proceedings under section 40 or an inquiry under section
34(1)(b).
Training
32. The National Commissioner shall determine the training that members
shall undergo.
Commissioned officers
33. (1) The President may from time to time by commission appoint officers
or temporary officers of the Service.
(2) A Deed of Commission, bearing the signatures of the President and the
Minister, or replicas thereof, shall be proof of appointment as commissioned
officer.
(3) The commission of a commissioned officer shall terminate and be deemed to
be cancelled upon-
(a) the discharge of such officer following on disciplinary proceedings
under section 40 or an inquiry under section 34(1)(b), (c) or (d);
(b) the reduction in rank of such officer to a rank of non-commissioned
officer following on disciplinary proceedings under section 40 or an
inquiry under section 34(1)(b);
(c) a direction by the Minister in terms of subsection (5); or
(d) the transfer of such officer to another department under section 14 or
15 of the Public Service Act, 1994 (Proclamation No. R. 103 of 1994).
(4) Subject to section 49, a commissioned officer may at any time in writing
and, with or without prior notice, resign from the Service.
(5) Any commissioned officer who leaves the Service because of his or her
discharge, retirement or resignation, shall retain the commission and rank he
or she held immediately prior to his or her discharge, retirement or
resignation, unless the Minister, on the recommendation of the National
Commissioner, otherwise directs.
Inquiries
34. (1) The National Commissioner may designate a member, a category of
members or any other person or category of persons who may, in general or in a
specific case, inquire into-
(a) the fitness of a member to remain in the Service on account of
indisposition, ill-health, disease or injury;
(b) the fitness or ability of a member to perform his or her duties or to
carry them out efficiently;
(c) the fitness of a member to remain in the Service if his or her
continued employment constitutes a security risk for the State;
(d) the fitness of a member to remain in the Service in the light of a
misrepresentation made by such member regarding a matter in relation to
his or her appointment;
(e) the absence of a member from duty without leave for more than one
calendar month;
(f) an injury alleged to have been sustained by a member or other employee
of the Service in an accident arising out of or in the course of his or
her duty, or a disease or indisposition alleged to have been contracted
in the course of his or her duty, or any subsequent incapacitation
alleged to be due to the same injury, disease or indisposition, or an
indisposition alleged to have resulted from vaccination in accordance
with this Act;
(g) the death of a member or other employee of the Service alleged to have
been caused as a result of circumstances referred to in paragraph (f);
(h) the absence from duty of a member or other employee of the Service
owing to illness, indisposition or injury alleged to have resulted from
misconduct or serious and deliberate failure on his or her part to take
reasonable precautions;
(i) the suitability, value and purchase of any property or equipment
required for use in the Service or the suitability for further service
of any part of property or equipment already in use in the Service;
(j) any deficiency in or damage to or loss of State property or any
property in possession of or under the control of the State or a club
referred to in section 62(3) or for which the State is responsible, or
any property of a member or other employee of the Service which is
alleged to have occurred in connection with the performance of his or
her duties or functions in the Service, as well as the liability of any
person and the desirability to hold any person liable for such
deficiency, damage or loss;
(k) any deficiency, loss, damage or expense occasioned to the State or a
club referred to in section 62(3) as a result of the conduct of a
member or other employee of the Service and any money or unpaid debts
due by such member or employee to the State or such club as well as the
liability of any person and the desirability to hold any person liable
for such deficiency, loss, damage or expense; or
(l) any other matter which the National Commissioner considers to be in the
interest of the Service.
(2) The National Commissioner may designate a member, a category of members
or any other person or category of persons who may, in general or in a
specific case, investigate or lead evidence in an inquiry contemplated in
subsection (1),
(3) The Minister may prescribe-
(a) the procedure applicable to an inquiry contemplated in subsection (1);
and
(b) the circumstances under which such an inquiry may be converted or
deemed to have been converted into disciplinary proceedings.
Discharge of members on account of redundancy, interest of Service or
appointment to public office
35. The National Commissioner may, subject to the provisions of the
Government Service Pension Act, 1973 (Act No. 57 of 1973), discharge a
member-
(a) because of the abolition of his or her post, or the reduction in the
numerical strength, the reorganisation or the readjustment of the
Service;
(b) if, for reasons other than the unfitness or incapacity of such member,
his or her discharge will promote efficiency or economy in the Service,
or will otherwise be in the interest of the Service; or
(c) if the President or a Premier appoints him or her in the public
interest under any law to an office to which this Act or the Public
Service Commission Act, 1984 (Act No. 65 of 1984), does not apply.
Discharge on account of sentence imposed
36. (1) A member who is convicted of an offence and is sentenced to a term
of imprisonment without the option of a fine, shall be deemed to have been
discharged from the Service with effect from the date following the date of
such sentence: Provided that, if such term of imprisonment is wholly
suspended, the member concerned shall not be deemed to have been so
discharged.
(2) A person referred to in subsection (1), whose-
(a) conviction is set aside following an appeal or review and is not
replaced by a conviction for another offence;
(b) conviction is set aside on appeal or review, but is replaced by a
conviction for another offence, whether by the court of appeal or
review or the court of first instance, and a sentence to a term of
imprisonment without the option of a fine is not imposed upon him or
her following on the conviction for such other offence; or
(c) sentence to a term of imprisonment without the option of a fine is set
aside following an appeal or review and is replaced with a sentence
other than a sentence to a term of imprisonment without the option of a
fine,
may, within a period of 30 days after his or her conviction has been set
aside or his or her sentence has been replaced by a sentence other than a
sentence to a term of imprisonment without the option of a fine, apply to the
National Commissioner to be reinstated as a member.
(3) In the event of an application by a person whose conviction has been set
aside as contemplated in subsection (2)(a), the National Commissioner shall
reinstate such person as a member with effect from the date upon which he or
she is deemed to have been so discharged.
(4) In the event of any application by a person whose conviction has been set
aside or whose sentence has been replaced as contemplated in subsection (2)(b)
and (c), the National Commissioner may-
(a) reinstate such person as a member with effect from the date upon which
he or she is deemed to have been so discharged; or
(b) cause an inquiry to be instituted in accordance with section 34 into
the suitability of reinstating such person as a member.
(5) For the purposes of this section, a sentence to imprisonment until the
rising of the court shall not be deemed to be a sentence to imprisonment
without the option of a fine.
(6) This section shall not be construed as precluding -any administrative
action, investigation or inquiry in terms of any other provision of this Act
with respect to the member concerned, and any lawful decision or action taken
in consequence thereof.
Discharge of members failing to complete basic training
37. Notwithstanding the provisions of this Act, but subject to the
Constitution, the National Commissioner may, in the absence of an inquiry,
discharge from the Service a member who fails to complete his or her basic
training successfully within a period of 24 months after his or her
appointment in the Service.
Missing members and employees
38. (1) If a member or other employee of the Service is reported missing,
such member or employee shall for all purposes be deemed to be still employed
by the Service until-
(a) the National or Provincial Commissioner otherwise determines;
(b) he or she again reports for duty; or
(c) a competent court issues an order whereby the death of such member or
employee is presumed.
(2) The salary or wages and allowances accruing to a member or employee
during his or her absence contemplated in subsection (1) shall, subject to
subsection (4), be paid-
(a) to his or her spouse; or
(b) if he or she has no spouse, to his or her dependants; or
(c) to any other person who, in the opinion of the Commissioner concerned,
is competent to receive and administer such salary or wages and
allowances on behalf of the member or employee or his or her spouse or
such other dependants.
(3) Payment of any salary or wages and allowances in terms of subsection (2)
shall for all purposes be deemed to be payment thereof to the member or
employee concerned.
(4) Notwithstanding subsection (2), the National or Provincial Commissioner
may from time to time direct that only a portion of the salary or wages and
allowances of a member or employee be paid in terms of the said subsection or
that no portion thereof be so paid.
Secondment of members
39. (1) The services of a member may be placed at the disposal of any other
department of State or any authority established by or under any law.
(2) If a member is seconded under subsection (1), such member shall be deemed
to be serving in the Service and shall retain all powers and privileges as a
member, subject to such conditions as may be agreed upon by the National
Commissioner and the department of State or authority concerned.
(3) A member seconded under subsection (1) shall, in the performance of his
or her functions, act in terms of the laws applicable to the department of
State or authority to which he or she is seconded, subject to such conditions
as may be agreed upon by the National Commissioner and the department of State
or authority concerned.
(4) The National Commissioner shall determine uniform standards and
procedures regarding the secondment of members.
Disciplinary proceedings
40. Disciplinary proceedings may be instituted in the prescribed manner
against a member on account of misconduct, whether such misconduct was
committed within or outside the borders of the Republic.
Strikes
41. (1) No member shall strike, induce any other member to strike or
conspire with another person to strike.
(2) If the National or Provincial Commissioner has reason to believe that a
member is striking or conspiring with another person to strike, the
Commissioner concerned may, in a manner which is reasonable in the
circumstances, issue an ultimatum to the member concerned to terminate or
desist from carrying out such conduct within the period specified in such
ultimatum.
(3) In the event that the member refuses or fails to comply with the
ultimatum referred to in subsection (2), or if the National or Provincial
Commissioner could not reasonably be expected to issue such an ultimatum to a
member personally, the Commissioner concerned may, without a hearing,
summarily discharge such member from the Service:
Provided that-
(a) such member shall as soon as practicable after the date of such
discharge, be notified in writing of such discharge and the reasons
therefor;
(b) such member may, within 30 days after the date of receipt of such
notice, make written representations to the Minister regarding the
revocation of the discharge; and
(c) the Minister may, after having considered any representations,
reinstate such member from the date of such discharge.
(4) A discharge from the Service under subsection (3) shall not be invalid
solely by reason of such member not receiving notice of the ultimatum referred
to in subsection (2).
Conduct sheets
42. (1) The National or Provincial Commissioner shall cause a conduct sheet
to be maintained in respect of every member under his or her command.
(2) The National Commissioner shall determine the manner and form in which
conduct sheets shall be maintained and when entries recorded thereon may be
deleted.
Suspension while in detention or imprisoned
43. (1) Subject to section 36, a member who is in detention or is serving a
term of imprisonment shall be deemed to be suspended from the Service for the
period during which he or she is so detained or is serving such term of
imprisonment.
(2) A member referred to in subsection (1) shall, unless the National or
Provincial Commissioner otherwise directs, not be entitled for the applicable
period to any salary, wages, allowances, privileges or benefits to which he or
she would otherwise be entitled as a member.
(3) Where a member-
(a) is detained pending the outcome of criminal proceedings against him or
her and such member is subsequently found not guilty on all charges or
is convicted but such conviction is subsequently set aside; or
(b) serves a term of imprisonment which is subsequently set aside, such
member may make representations to the National or Provincial
Commissioner that any salary, wages, allowances, privileges or benefits
forfeited by him or her under subsection (2), be restored to him or
her.
(4) The National or Provincial Commissioner may, in the circumstances
contemplated in subsection (3), mero motu or after consideration of any
representations received from a member, determine that any forfeited salary,
wages, allowances, privileges or benefits be restored to such member,
Rewards and recognitions
44. (1) The National or Provincial Commissioner may, after consultation with
the Minister or member of the Executive Council, make an appropriate award to
any member or other person for meritorious service in the interest of the
Service.
(2) The President may institute, constitute and create decorations and
medals, as well as bars, clasps and ribbons in respect of such decorations and
medals, which may be awarded by the President, the Minister or the member of
the Executive Council, subject to such conditions as the President may
determine, to any member or other person who has rendered exceptional service
to the Service.
Retirement
45.(1)(a) Subject to subsection (7), a member may retire from the
Service, and shall be so retired on the date when he or she attains the
age of 60 years.
(b) If a member attains the age of 60 years after the first day of the
month, he or she shall be deemed to have attained it on the first day
of the following month.
(2) A member who is at least 50 years of age may, at any time before
attaining the age of 60 years, give written notification to the Minister of
his or her wish to retire from the Service, and shall be allowed so to retire
if a sufficient reason therefor exists and the retirement will be to the
advantage of the Service.
(3) (a) Subject to paragraph (b), a member who in terms of section
212(7)(b) of the Constitution or any other law has the right to retire
at an earlier age than that contemplated in subsection (1)(a), shall
give written notification to the National Commissioner of his or her
wish to be so retired and he or she shall-
(i) if that notification is given to the National Commissioner at
least three calendar months prior to the date on which he or she
attains the retirement age applicable to him or her, be so retired
on the date on which he or she attains that age or, if he or she
attains it after the first day of the month, on the first day of the
following month; or
(ii) if that notification is not given to the National Commissioner at
least three calendar months prior to the date on which he or she
attains the said age, be so retired on the first day of the fourth
month after the month in which the notification is received.
(b)(i) Subject to subsection (4), the National or Provincial
Commissioner shall give written notification of his or her wish to
be retired from the Service at least six calendar months prior to
the date on which he or she attains the retirement age applicable to
him or her, and if he or she has so given notification, paragraph
(a)(i) shall apply mutatis mutandis.
(ii) If the National or Provincial Commissioner has not given written
notification at least six calendar months prior to the date on which
he or she attains the said age, he or she shall be so retired on the
first day of the seventh month following the month in which that
notification is received.
(4) Notwithstanding the provisions of this section, the National or
Provincial Commissioner may retire from the Service and he or she shall be so
retired at the expiry of the term contemplated in section 7, or any extended
term contemplated in that section, as the case may be, and he or she shall be
deemed to have been so retired in terms of section 35(a).
(5) Subject to subsections (1) and (3)(b)-
(a) the President may at the request of the National Commissioner allow him
or her to retire from the Service before the expiry of the term
contemplated in section 7 or any extended term contemplated in that
section if a reason exists which the President deems sufficient; and
(b) the National Commissioner may at the request of the Provincial
Commissioner allow him or her to retire from the Service before the
expiry of the term contemplated in section 7 or any extended term
contemplated in that section if a reason exists which the National
Commissioner deems sufficient.
(6) If the National or Provincial Commissioner is allowed to retire under
subsection (5), he or she shall be deemed to have been retired in terms of
subsection (2), and shall be entitled to such pension as he or she would have
been entitled to if he or she had retired from the Service under the latter
subsection.
(7)(a) Notwithstanding the provisions of subsection (1)(a), a member may be
retained, with his or her consent, in his or her post beyond the age of
60 years with the approval of the Minister or member of the Executive
Council for further periods which shall not, except with the approval
by resolution of Parliament, exceed the aggregate of five years.
(b) A member shall only be retained under paragraph (a) if it is-
(i) reasonable; and
(ii) in the interest of the Service; or
(iii) generally in the public interest.
(8) Pension benefits shall be paid to a retired member by the institution
responsible for the administration of the pension fund to which that member
was a contributor, subject to any law regulating the payment of such benefits.
(9) A benefit payable by the Service in terms of any law shall be paid to the
person entitled to such benefit within a period of 90 days after the date on
which the National Commissioner received the written notification of such
member's termination of service, for any reason, in such a form and with such
documents as the National Commissioner may determine for the purposes of this
section or, if he or she receives such notification and documents 90 days
before the date on which a benefit is payable to the person concerned in terms
of such law, on the date on which such benefit is so payable.
(10) Nothing in this section contained shall be construed as derogating from
section 212(7) of the Constitution.
Political activities of members
46. (1) No member shall-
(a) publicly display or express support for or associate himself or herself
with a political party, organisation, movement or body;
(b) hold any post or office in a political party, organisation, movement or
body;
(c) wear any insignia or identification mark in respect of any political
party, organisation, movement or body; or
(d) in any other manner further or prejudice party-political interests.
(2) Subsection (1) shall not be construed as prohibiting a member from-
(a) joining a political party, organisation, movement or body of his or her
choice;
(b) attending a meeting of a political party, organisation, movement or
body:
Provided that no member shall attend such a meeting in uniform; or
(c) exercising his or her right to vote.
Obedience
47. (1) Subject to subsection (2), a member shall obey any order or
instruction given to him or her by a superior or a person who is competent to
do so: Provided that a member shall not obey a patently unlawful order or
instruction.
(2) Where it is reasonable in the circumstances, a member may demand that an
order or instruction referred to in subsection (1) be recorded in writing
before obeying it.
(3) A member may, after having obeyed an order or instruction referred to in
subsection (1), demand that such an order or instruction be recorded in
writing.
Reserve Police Service
48. (1) The National Commissioner may determine the requirements for
recruitment, resignation, training, ranks, promotion, duties and nature of
service, discipline, uniform, equipment and conditions of service of members
of the Reserve Police Service and any other matter which he or she deems
necessary in order to establish and maintain different categories of members
of the Reserve Police Service.
(2) The National Commissioner may appoint a person as a member of the Reserve
in the prescribed manner.
(3) The National or Provincial Commissioner may in the prescribed manner
order any member of the Reserve to report for service, and any such member who
refuses or fails to comply with such order shall be guilty of an offence and
liable on conviction to a fine or to imprisonment for a period not exceeding
six months: Provided that the Minister may by regulation exclude categories
of members of the Reserve from the application of this subsection.
(4) The National or Provincial Commissioner may, subject to the Constitution,
at any time discharge a member of the Reserve from the Service.
(5) During a period contemplated in section 49, the National or Provincial
Commissioner may refuse to accept the resignation of a member of the Reserve,
unless he or she produces evidence that he or she has enlisted for military
service in a recognised unit of the South African National Defence Force.
(6) A member of the Reserve shall be deemed to be in the employ of the
Service while on duty, notwithstanding the fact that such member may not be
remunerated by the Service.
Limitation on right to resign
49. (1) No member may, during a period in which a state of national defence,
declared under section 82(4)(b)(i) of the Constitution, or a state of
emergency, proclaimed in accordance with section 34(1) of the Constitution, is
in force, resign from the Service without the written permission of the
National Commissioner .
(2) The National Commissioner may, in circumstances other than those
mentioned in subsection (1), where the maintenance of public order in the
Republic or any part thereof so requires, order that no member may resign from
the Service without his or her written permission during a period of time
specified in the order, which period may not exceed 30 days.
CHAPTER 10
INDEPENDENT COMPLAINTS DIRECTORATE
Establishment and independence
50.(1)(a) The Independent Complaints Directorate, which shall be
structured at both national and provincial levels, is hereby
established.
(b) The date on which the provincial structures of the directorate will
come into operation, shall be determined by the Executive Director in
consultation with the Minister.
(2) The directorate shall function independently from the Service.
(3)(a) No organ of state and no member or employee of an organ of state
nor any other person shall interfere with the Executive Director or a
member of the personnel of the directorate in the exercise and
performance of his or her powers and functions.
(b) Any person who wilfully interferes with the Executive Director or a
member of the personnel of the directorate in the exercise or
performance of his or her powers or functions, shall be guilty of an
offence and liable on conviction to a fine or to imprisonment for a
period not exceeding two years.
(4) All organs of state shall accord such assistance as may be reasonably
required for the protection of the independence, impartiality, dignity and
effectiveness of the directorate in the exercise and performance of its powers
and functions.
Appointment of Executive Director
51. (1) The Minister shall nominate a suitably qualified person for
appointment to the office of Executive Director to head the directorate in
accordance with a procedure to be determined by the Minister in consultation
with the Parliamentary Committees.
(2) The Parliamentary Committees shall, within a period of 30 parliamentary
working days of the nomination in terms of subsection (1), confirm or reject
such nomination.
(3) In the event of the nomination being confirmed-
(a) such person shall be appointed to the office of Executive Director
subject to the laws governing the public service with effect from a
date agreed upon by such person and the Minister; and
(b) such appointment shall be for a period not exceeding five years:
Provided that such person shall be eligible for consecutive
appointments in accordance with this section.
(4) The Executive Director may be removed from his or her office under the
circumstances and in the manner prescribed by the Minister in consultation
with the Parliamentary Committees.
Personnel and expenditure
52. (1) The personnel of the directorate shall consist of persons appointed
by the Executive Director in consultation with the Minister subject to the
laws governing the public service and such other persons as may be seconded or
transferred to the directorate.
(2) The terms and conditions of service of the personnel of the directorate
shall be determined by the Minister in consultation with the Executive
Director and the Public Service Commission.
(3) The functions of the directorate shall be funded by money appropriated by
Parliament for that purpose.
(4) The Executive Director shall, subject to the Exchequer Act, 1975 (Act No.
66 of 1975)-
(a) be the accounting officer charged with the responsibility of accounting
for all money appropriated by Parliament for the purposes of the
performance of the functions of the directorate and the utilisation
thereof; and
(b) cause the necessary accounting and other related records to be kept.
Functions of directorate
53.(1)(a) The principal function of the directorate shall be the
achievement of the object contemplated in section 222 of the
Constitution.
(b) The Executive Director shall be responsible for-
(i) the performance of the functions of the directorate; and
(ii) the management and administration of the directorate.
(2) In order to achieve its object, the directorate-
(a) may mero motu or upon receipt of a complaint, investigate any
misconduct or offence allegedly committed by any member, and may, where
appropriate, refer such investigation to the Commissioner concerned;
(b) shall mero motu or upon receipt of a complaint, investigate any death
in police custody or as a result of police action; and
(c) may investigate any matter referred to the directorate by the Minister
or the member of the Executive Council.
(3)(a) The Minister may, upon the request of and in consultation with the
Executive Director, authorise those members of the personnel of the
directorate identified by the Executive Director, to exercise those
powers and perform those duties conferred on or assigned to any member
by or under this Act or any other law.
(b) The members of the personnel referred to in paragraph (a) shall have
such immunities and privileges as may be conferred by law on a member
in order to ensure the independent and effective exercise and
performance of their powers and duties.
(4) A document, in the prescribed form, certifying that a person is a member
of the personnel of the directorate and has been authorised to exercise the
powers and perform the duties of a member, shall be prima facie proof that
such member has been authorised as contemplated in subsection (3).
(5) Any member of the personnel of the directorate who wilfully discloses any
information in circumstances in which he or she knows or could reasonably be
expected to know that such disclosure would or may prejudicially affect the
performance by the directorate or the Service of its functions, shall be
guilty of an offence and liable on conviction to a fine or to imprisonment for
a period not exceeding two years.
(6) The Executive Director may-
(a) at any time withdraw any referral made under subsection (2)(a);
(b) request and obtain information from any Commissioner or police official
as may be necessary for conducting any investigation;
(c)(i) monitor the progress of;
(ii) set guidelines regarding; and
(iii) request and obtain information regarding, an investigation
referred to a Commissioner under subsection (2)(a);
(d) request and obtain the co-operation of any member as may be necessary
to achieve the object of the directorate;
(e) commence an investigation on any matter notwithstanding the fact that
an investigation regarding the same matter has been referred under
subsection (2)(a), is pending or has been closed by the Service, or the
docket regarding the matter has been submitted to the attorney-general
for decision: Provided that in the case of a-
(i) referred or pending investigation, the directorate shall act after
consultation with the member heading the investigation; or
(ii) docket regarding a matter having been submitted to the
attorney-general for decision, the directorate shall act in
consultation with the attorney-general;
(f) request and obtain information from the attorney-general's office in so
far as it may be necessary for the directorate to conduct an
investigation: Provided that the attorney-general may on reasonable
grounds refuse to accede to such request;
(g) submit the results of an investigation to the attorney-general for his
or her decision;
(h) in consultation with the Minister and with the concurrence of the
Minister of Finance, obtain the necessary resources and logistical
support or engage the services of experts, or other suitable persons,
to enable the directorate to achieve its object;
(i) make recommendations to the Commissioner concerned;
(j) make any recommendation to the Minister or a member of the Executive
Council which he or she deems necessary regarding any matter
investigated by the directorate or relating to the performance of the
directorate's functions:
Provided that in the event of a recommendation made to a member of the
Executive Council, a copy thereof shall be forwarded to the Minister;
and
(k) subject to the Exchequer Act, 1975 (Act No. 66 of 1975), delegate any
of his or her powers to any member of the personnel of the directorate.
(7) The Executive Director shall, in consultation with the Minister, issue
instructions to be complied with by the directorate which shall inter alia
include instructions regarding-
(a) the lodging, receiving and processing of complaints;
(b) recording and safe-guarding of information and evidence;
(c) disclosure of information;
(d) the making of findings and recommendations; and
(e) all matters incidental to the matters referred to in paragraphs (a) to
(d).
(8) The National or Provincial Commissioner shall notify the directorate of
all cases of death in police custody or as a result of police action.
(9) The Minister may prescribe procedures regarding-
(a) protecting the identity and integrity of complainants; and
(b) witness protection programmes.
Reporting
54. The Executive Director shall-
(a) within three months after the end of each financial year, submit to the
Minister a written report on the activities of the directorate during
that financial year, which report shall be tabled in Parliament by the
Minister within 14 days after receipt thereof or, if Parliament is not
then in session, within 14 days after the commencement of the next
ensuing session; and
(b) at any time when requested to do so by the Minister or either the
Parliamentary Committees, submit a report on the activities of the
directorate to the Minister or that Committee.
CHAPTER 11
GENERAL PROVISIONS
Non-liability for acts under irregular warrant
55. (1) Any member who acts under a warrant or process which is bad in law
on account of a defect in the substance or form thereof shall, if he or she
has no knowledge that such warrant or process is bad in law and whether or not
such defect is apparent on the face of the warrant or process, be exempt from
liability in respect of such act as if the warrant or process were valid in
law.
(2)(a) Any member who is authorised to arrest a person under a warrant of
arrest and who, in the reasonable belief that he or she is arresting
such person arrests another, shall be exempt from liability in respect
of such wrongful arrest.
(b) Any member who is called upon to assist in making an arrest as
contemplated in paragraph (a) or who is required to detain a person so
arrested, and who reasonably believes that the said person is the
person whose arrest has been authorised by the warrant of arrest, shall
likewise be exempt from liability in respect of such assistance or
detention.
Limitation of liability of State and members
56. Whenever any person is conveyed in or makes use of any vehicle, aircraft
or vessel, being the property or under the control of the State in the
Service, the State or any member shall not be liable to such person or his or
her spouse, parent, child or other dependant for any loss or damage resulting
from any bodily injury, loss of life or loss of or damage to property caused
by or arising out of or in any way connected with the conveyance in or the use
of such vehicle, aircraft or vessel, unless such person is so conveyed or
makes use thereof in or in the interest of the performance of the functions of
the State: Provided that the provisions of this section shall not affect the
liability of a member who wilfully causes the said loss or damage.
Actions against Service
57. (1) No legal proceedings shall be instituted against the Service or any
body or person in respect of any alleged act performed under or in terms of
this Act or any other law, or an alleged failure to do anything which should
have been done in terms of this Act or any other law, unless the legal
proceedings are instituted before the expiry of a period of 12 calendar months
after the date upon which the claimant became aware of the alleged act or
omission, or after the date upon which the claimant might be reasonably
expected to have become aware of the alleged act or omission, whichever is the
earlier date.
(2) No legal proceedings contemplated in subsection (1) shall be instituted
before the expiry of at least one calendar month after written notification of
the intention to institute such proceedings, has been served on the defendant,
wherein particulars of the alleged act or omission are contained.
(3) If any notice contemplated in subsection (2) is given to the National
Commissioner or to the Provincial Commissioner of the province in which the
cause of action arose, it shall be deemed to be notification to the defendant
concerned.
(4) Any process by which any proceedings contemplated in subsection (1) is
instituted and in which the Minister is the defendant or respondent, may be
served on the National or Provincial Commissioner referred to in subsection
(3).
(5) Subsections (1) and (2) shall not be construed as precluding a court of
law from dispensing with the requirements or prohibitions contained in those
subsections where the interests of justice so require.
Salary or allowance not to be assigned or attached
58. No member shall, without the approval of the National or Provincial
Commissioner, assign the whole or any part of any salary, wages or allowance
payable to him or her under this Act, nor shall the whole or any part of any
such salary, wages or allowance be capable of being seized or attached under
or in consequence of any judgment or order of any court of law, other than a
garnishee order.
Prohibition on certain dealings
59. (1) No member shall, without the permission of the person under whose
command he or she serves, lend any means of transport or equipment which he or
she is required to keep and possess, or sell, pledge or otherwise dispose of
any such property, irrespective of whether it is the property of the State or
his or her own property.
(2) Every sale, pledge, loan or other disposition of any property contrary to
subsection (1), shall be null and void.
Property of Service not liable to seizure or attachment
60. Property which in terms of this Act may not be sold, pledged, lent or
otherwise disposed of, shall not be capable of being seized or attached, under
or in consequence of any judgment or order of any court of law.
Exemption from tolls, fees and fees of office
61. (1) Subject to subsection (3), any member who, in the exercise of his or
her powers or the performance of his or her duties or functions finds it
necessary to enter, pass through or go over any wharf, landing place, ferry,
bridge, toll-bar, gate or door at or in respect of which any toll, fee or fee
of office may be lawfully demanded, shall be exempted from the payment of such
toll, fee or fee of office in respect of himself or herself, every person
under his or her arrest and any animal, means of transport or property which
he or she may require in the exercise of such powers or the performance of
such duties or functions: Provided that if such member is not in uniform, he
or she shall, upon a request by any person who may demand such toll, fee or
fee of office, disclose his or her identity by exhibiting to such person his
or her certificate of appointment.
(2) Any person who may demand any such toll, fee or fee of office, and who
subjects any such member, person, animal, means of transport or property to
unreasonable delay or detention in respect of the entry to, passage through or
going over any such wharf, landing place, ferry, bridge, toll-bar, gate or
door, shall be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding 12 months.
(3) The National or Provincial Commissioner may, if he or she deems it
necessary, with regard to the nature of the powers, duties or functions of a
member, order that subsection (1) is not applicable to such member, in which
event any toll, fee or fee of office contemplated in subsection (1), shall be
payable.
Police clubs exempt from licence duties and other fees
62. (1) No licence money, tax, duty or fee (other than customs, excise or
value-added tax) shall be payable by any person under any law or by-law in
respect of a certified club of the Service or in respect of any article on
sale at such a club.
(2) The production of an official document bearing the signature of the
Minister or member of the Executive Council or any person authorised by the
Minister or member of the Executive Council to sign such document, and
indicating that he or she has certified the club as a club of the Service,
shall, for the purposes of this section, be conclusive proof that it is such a
club.
(3) For the purposes of this section "club" includes any mess or institution
of the Service or any premises temporarily or permanently used for providing
recreation, refreshment or articles of necessity mainly for members or retired
members or other persons employed by the Service or for the families of such
members, retired members or employees or such other persons employed in any
work in or in connection with any such mess, institution or premises.
Payment by public for police services
63. (1) The National Commissioner shall, with due regard to sections 215,
218 and 219 of the Constitution, determine whether a particular function, duty
or service falls within the scope of the normal and generally accepted
responsibilities of the Service and, if such function, duty or service does
not fall within such scope, it shall, subject to subsection (2), be performed
only on such conditions as may be prescribed in consultation with the
Treasury.
(2) Notwithstanding the provisions of subsection (1), the National
Commissioner may authorise that any function, duty or service be performed
free of charge on behalf of any deserving charity or in any case considered to
be of general, cultural or educational interest.
CHAPTER 12
MUNICIPAL AND METROPOLITAN POLICE SERVICES
Municipal and metropolitan police services
64. (1) Any local government may, subject to the Constitution and this Act,
establish-
(a) a municipal police service; or
(b) a metropolitan police service.
(2)(a) The Minister shall prescribe which provisions of this Act shall
apply mutatis mutandis to any municipal or metropolitan police service.
(b) The Minister may make regulations regarding the establishment of
municipal and metropolitan police services, including which categories
of local governments may establish municipal police services and which
categories of local governments may establish metropolitan police
services.
(3) The National Commissioner shall determine the minimum standards of
training that members of municipal and metropolitan police services shall
undergo.
(4) Legal proceedings in respect of any alleged act performed under or in
terms of this Act or any other law, or an alleged failure to do anything which
should have been done in terms of this Act or any other law, by any member of
a municipal or metropolitan police service, shall be instituted against the
local government concerned and section 57 shall not be applicable to such
legal proceedings.
(5) The establishment of a municipal or metropolitan police service shall not
derogate from the functions of the Service or the powers, duties or functions
of a member in terms of any law.
(6) Where a municipal or metropolitan police service has been established,
such service shall be represented by at least one of its members designated by
such service for that purpose on every community police forum or sub-forum
established in terms of section 19 in its area of jurisdiction.
CHAPTER 13
OFFENCES
Receipt or possession of certain property
65. Any person who receives or has in his or her possession any property
which in terms of this Act may not be sold, pledged, lent or otherwise
disposed of, knowing the same to have been sold, pledged, lent or otherwise
disposed of in contravention of this Act, shall be guilty of an offence and
liable on conviction to a fine or to imprisonment for a period not exceeding
12 months.
Wearing and use of uniforms, badges, etc. of Service
66. (1) Any person who wears any uniform or distinctive badge or button of
the Service or wears anything materially resembling any such uniform, badge or
button or wears anything with the intention that it should be regarded as such
uniform, badge or button, shall, unless-
(a) he or she is a member entitled by reason of his or her appointment,
rank or designation to wear such uniform, badge or button; or
(b) he or she has been granted permission by the National or Provincial
Commissioner to wear such uniform, badge or button,
be guilty of an offence and liable on conviction to a fine or to imprisonment
for a period not exceeding six months.
(2) Any person who wears, or without the written permission of the National
Commissioner, makes use of any decoration or medal instituted, constituted or
created under this Act, or its bar, clasp or ribbon, or anything so closely
resembling any such decoration, medal, bar, clasp or ribbon as to be
calculated to deceive, shall, unless he or she is the person to whom such
decoration or medal was awarded, be guilty of an offence and liable on
conviction to a fine or to imprisonment for a period not exceeding six months.
Interference with members
67. (1) Any person who-
(a) resists or wilfully hinders or obstructs a member in the exercise of
his or her powers or the performance of his or her duties or functions
or, in the exercise of his or her powers or the performance of his or
her duties or functions by a member wilfully interferes with such
member or his or her uniform or equipment or any part thereof; or
(b) in order to compel a member to perform or to abstain from performing
any act in respect of the exercise of his or her powers or the
performance of his or her duties or functions, or on account of such
member having done or abstained from doing such an act, threatens or
suggests the use of violence against, or restraint upon such member or
any of his or her relatives or dependants, or threatens or suggests any
injury to the property of such member or of any of his or her relatives
or dependants,
shall be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding 12 months.
(2) Any person who-
(a) conspires with or induces or attempts to induce any member not to
perform his or her duty or any act in conflict with his or her duty;
or
(b) is a party to, assists or incites the commission of any act whereby any
lawful order given to a member may be evaded,
shall be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding two years.
(3) Any person who induces or attempts to induce a member to commit
misconduct shall be guilty of an offence and liable on conviction to a fine or
to imprisonment for a period not exceeding six months.
(4) In the event of a criminal prosecution of any member or a representative
of an employee organisation on account of a contravention of subsection (2) or
(3), it shall constitute a defence if the sole purpose of such person's
conduct was to-
(a) further or cause a strike by members-, or
(b) further the activities of a bona fide employee organisation.
False representations
68. (1) Any person who pretends that he or she is a member shall be guilty
of an offence and liable on conviction to a fine or to imprisonment for a
period not exceeding two years.
(2) Any person who by means of a false certificate or any false
representation obtains an appointment in the Service, or, having been
dismissed from the Service, receives, by concealing the dismissal, any salary,
wages, allowance, gratuity or pension, shall be guilty of an offence and
liable on conviction to a fine or to imprisonment for a period not exceeding
six months.
(3) Any person who, in connection with any activity carried on by him or her
takes, assumes, uses or in any manner publishes any name, description, title
or symbol indicating or conveying or purporting to indicate or convey or is
calculated or is likely to lead other persons to believe or infer that such
activity is carried on under or in terms of the provisions of this Act or
under the patronage of the Service, or is in any manner associated or
connected with the Service, without the approval of the National Commissioner,
shall be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding six months.
Prohibition on making of sketches or taking of photographs of certain persons
and publication thereof
69. (1) For the purposes of this section-
"photograph" includes any picture, visually perceptible image,
depiction or any other similar representation of the person concerned;
"publish", in relation to a photograph, includes to exhibit, show,
televise, represent or reproduce; and
"take", in relation to a photograph, includes the performance of
any act which by itself or as part of a process or as one of a
sequence of acts renders possible the production of a photograph.
(2)(a) A member who has reason to believe that the taking of a photograph
or the making of a sketch of any person who is, in relation to criminal
proceedings, detained in custody, will prejudicially affect an ongoing
investigation into an offence or alleged offence, may prohibit any
person from taking such photograph or making such sketch.
(b) Any person who takes a photograph or makes a sketch in contravention of
a prohibition under paragraph (a), shall be guilty of an offence and
liable on conviction to a fine or to imprisonment for a period not
exceeding 12 months.
(3)(a) No person may, without the written permission of the National or
Provincial Commissioner, publish a photograph or sketch of a person-
(i) who is suspected of having committed an offence and who is-
(aa) fleeing;
(bb) in custody pending a decision to institute criminal proceedings
against him or her; or
(cc) in custody pending the completion of criminal proceedings in
which such person is an accused; or
(ii) who is or may reasonably be expected to be a witness in criminal
proceedings and who is in custody pending such proceedings.
(b) Any person who publishes a photograph or sketch in contravention of
paragraph (a), shall be guilty of an offence and liable on conviction
to a fine or to imprisonment for a period not exceeding 12 months.
Unauthorised disclosure of information
70. Any member who wilfully discloses information in circumstances in which
he or she knows, or could reasonably be expected to know, that such a
disclosure will or may prejudicially affect the exercise or the performance by
the Service of the powers or the functions referred to in section 215 of the
Constitution, shall be guilty of an offence and liable on conviction to a fine
or to imprisonment for a period not exceeding two years.
Unauthorised access to or modification of computer material
71. (1) Without derogating from the generality of subsection (2)-
"access to a computer" includes access by whatever means to any
program or data contained in the random access memory of a computer or
stored by any computer on any storage medium, whether such storage
medium is physically attached to the computer or not, where such
storage medium belongs to or is under the control of the Service;
"contents of any computer" includes the physical components of any
computer as well as any program or data contained in the random access
memory of a computer or stored by any computer on any storage medium,
whether such storage medium is physically attached to the computer or
not, where such storage medium belongs to or is under the control of
the Service;
"modification" includes both a modification of a temporary or
permanent nature; and
"unauthorised access" includes access by a person who is authorised to
use the computer but is not authorised to gain access to a certain
program or to certain data held in such computer or is unauthorised,
at the time when the access is gained, to gain access to such
computer, program or data.
(2) Any person who wilfully gains unauthorised access to any computer which
belongs to or is under the control of the Service or to any program or data
held in such a computer, or in a computer to which only certain or all members
have restricted or unrestricted access in their capacity as members, shall be
guilty of an offence and liable on conviction to a fine or to imprisonment for
a period not exceeding two years.
(3) Any person who wilfully causes a computer which belongs to or is under
the control of the Service or to which only certain or all members have
restricted or unrestricted access in their capacity as members, to perform a
function while such person is not authorised to cause such computer to perform
such function, shall be guilty of an offence and liable on conviction to a
fine or to imprisonment for a period not exceeding two years.
(4) Any person who wilfully performs an act which causes an unauthorised
modification of the contents of any computer which belongs to or is under the
control of the Service or to which only certain or all members have restricted
or unrestricted access in their capacity as members with the intention to-
(a) impair the operation of any computer or of any program in any computer
or of the operating system of any computer or the reliability of data
held in such computer; or
(b) prevent or hinder access to any program or data held in any computer,
shall be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding five years.
(5) Any act or event for which proof is required for a conviction of an
offence in terms of this section which was committed or took place outside the
Republic shall be deemed to have been committed or have taken place in the
Republic: Provided that-
(a) the accused was in the Republic at the time he or she performed the act
or any part thereof by means of which he or she gained or attempted to
gain unauthorised access to the computer, caused the computer to
perform a function or modified or attempted to modify its contents-,
(b) the computer, by means of or with regard to which the offence was
committed, was in the Republic at the time the accused performed the
act or any part thereof by means of which he or she gained or attempted
to gain unauthorised access to it, caused it to perform a function or
modified or attempted to modify its contents; or
(c) the accused was a South African citizen at the time of the commission
of the offence.
CHAPTER 14
REPEAL AND TRANSITIONAL PROVISIONS
Repeal and transitional provisions
72.(1)(a) Subject to this section, the Rationalisation Proclamation is
hereby repealed, excluding-
(i) sections 8(1), 9(1) to (8) , 10, 12(1) and (2)(a) to (j), 13 and 14
thereof; and
(ii) any other provision of that Proclamation in so far as it relates to
the interpretation or execution of a provision mentioned in
subparagraph (i).
(b) Sections 11, 12 and 15 of this Act shall, where applicable, be subject
to section 9(1) to (8) of the Rationalisation Proclamation until the
National Commissioner has certified that the assignment of the
functions referred to in section 219 of the Constitution by the
National Commissioner to all Provincial Commissioners as contemplated
in section 9(4)(a) of the Rationalisation Proclamation, has been
completed, whereupon sections 11, 12 and 15 of this Act shall be
applicable to the National and Provincial Commissioner in relation to
the Province concerned.
(c) The Minister may make regulations regarding all matters which are
necessary or expedient for the purposes of this subsection.
(d) Any person who, immediately before the commencement of this Act, was a
member of a force contemplated in section 5(2)(a)(i), and who has not
been appointed to a post in or additional to the fixed establishment or
otherwise dealt with in accordance with section 14 of the
Rationalisation Proclamation, shall serve in a pre-rationalised post
until he or she is appointed to a post in or additional to the fixed
establishment or is otherwise dealt with in accordance with that
section.
(e) Any person referred to in paragraph (d) who has been or is appointed to
a post in or additional to the fixed establishment or is otherwise
dealt with in terms of the Rationalisation Proclamation, shall be
deemed to have been so appointed or dealt with under the corresponding
provision of this Act.
(2) In the application of the provisions mentioned in subsection (1)(a), and
unless the context otherwise indicates or if clearly inappropriate, any
reference therein to the Rationalisation Proclamation or to the Police Act,
1958 (Act No. 7 of 1958), or to any repealed provision thereof, shall be
construed as a reference to this Act, or to the corresponding provision
thereof, as the case may be.
(3) Any reference in any law to a Commissioner of a police force shall,
except where such post has not yet been abolished, and unless clearly
inappropriate, be construed as a reference to the National Commissioner or, in
regard to any matter in respect of which a Provincial Commissioner is lawfully
responsible, and subject to section 219 of the Constitution, to the Provincial
Commissioner concerned.
(4)(a) Anything done, including any regulation made or standing order or
instruction issued or other administrative measure taken or any
contract entered into or any obligation incurred under the
Rationalisation Proclamation or any law repealed by this Act or the
Rationalisation Proclamation which could be done under this Act and in
force immediately before the commencement of this Act, shall be deemed
to have been so done, made, issued, taken, entered into or incurred, as
the case may be, under this Act until amended, abolished, withdrawn or
repealed under this Act.
(b) Any reference in any regulation, standing order or administrative
measure to a regional commissioner or a district commissioner shall,
unless clearly inappropriate, be construed as a reference to a
Provincial Commissioner or an area commissioner, respectively.
(5) Every existing statutory institution or other body performing policing
functions of whatever nature under the control of a local government
(hereinafter in this section referred to as a "service") shall cease to exist
six months from the date of the promulgation of the regulations contemplated
in section 64(2) unless-
(a) the local authority concerned has by resolution decided that such
service would continue to exist under its control; and
(b) the member of the Executive Council concerned has approved the
continued existence of such service.
(6) If the provisions of subsection (5)(a) and (b) are complied with, the
service referred to in that subsection shall be deemed to have been
established in terms of section 64(1) on the date upon which the member of the
Executive Council has approved its continued existence: Provided that the
powers of the members of such service shall be limited as contemplated by
section 221(3)(b) and (c) of the Constitution.
CHAPTER 15
SHORT TITLE AND COMMENCEMENT
Short title and commencement
73. This Act shall be called the South African Police Service Act, 1995, and
shall come into operation on a date fixed by the President by proclamation in
the Gazette.