INDEPENDENT COMPLAINTS DIRECTORATE
02 May 2000
REPRESENTATIONS ON WHETHER SANDF MEMBERS SHOULD BE GRANTED POLICING POWERS
For starters, section 200(2) of the Republic of South African Constitution Act 106 of 1996 provides that the primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of International law regulating the use of force.
Further to the above provision, section 201(2) provides that only the President, as head of the national executive may authorise the deployment of the defence force
(a) in co-operation with the police service;
Prior to the first democratic elections, in 1994 which preceded a negotiated settlement, members of the Defence were mainly primarily utilised for boarder patrols and related duties although they were also deployed in unrest areas to assist the police. The threat of war has since faded after the first elections and one can boldly state that such a threat is non-existent. Against this background, most members have become redundant. Given the tidal wave of crime, the police found themselves unable to cope especially during major operations. The services of the SANDF was then enlisted to assist the SAPS in for example carrying out of cordoning-off warrant issued in terms of section 13(7) of the South African Police Act, 1995 (Act 68 of 1995).
Today we see many defence force vehicles patrolling the streets especially in townships and one can safely say that they are performing policing duties. Their presence in such crime prone areas does have an impact of pro-active policing. It stands to reason that they play an important role in the prevention of crime.
When evaluating whether it is proper for members of the SANDF to be conferred with policing powers, it is important to approach the subject with a sober mind and also consider the above background information.
There are a number of handicaps that would count against conferring policing powers and I continue to list them not in terms of priority. They are training, lack of discipline, use of force and ability to work independently of the SAPS and logistics.
The kind of training received by members of the SANDF was surely to enable them to carry out functions stated in section 200(2) of the Constitution supra. Although it could be argued that the police's training is suspect especially their methods in the constitutional dispensation, that argument can be countered that further in-service training had been and still is given in human rights to SAPS while the SANDF would pride itself in combat. Whether or not powers to police, finds its way to the members of SANDF, it is vital to provide those members with training to enable them even when only assisting, to do policing duties. Training is a critical aspect to be addressed urgently.
Discipline should also be addressed. Discipline is referred in the context of respect for human life and human rights in general when executing official duties. The conduct of SANDF members should complement and not destroy the already tainted SAPS image.
The use of force is a major handicap. Surely members of the SANDF have received extensive training in the use of firearms and it is understandable because their duties demanded so. Given the proposed amendments to section 49(2)of the Criminal Procedure Act, 1977 (Act 51 of 1977), it would take a serious debriefing to get them out of the habit of use of force.
SAPS has had its fare share of civil claims resulting from bodily injuries inflicted during transportation of suspects to detention areas and considering that SANDF vehicles mostly used during support of SAPS are heavy metal bullet proof vehicles, suspects are likely to be more injured and there will be a sky rocketing of civil claims of that sort. Resort to the use of soft-shell vehicles by SANDF should therefore be considered.
Transformation of their logistics is therefore vital and so should be the replacement of rifles by handguns (pistols). This is important against the back drop of the lethality of rifles compared to handguns, which are less lethal.
Should the Defence Act be amended to allow policing powers to be given to SANDF members, provision must be made to extend ICD's civilian oversight mandate so as to empower the ICD to investigate complaints regarding abuse of such powers by SANDF members. Afterall, this is to give effect to constitutional values such as transparency and, especially, accountability.
SANDF operating then in conjunction with independently from SAPS.
The ICD does not recommend to be empowered to investigate allegations of misconduct against SANDF members. Such allegations of misconduct should be dealt with by the SANDF itself.
In conclusion, it is our opinion that policing powers be conferred on SANDF members but conditional to the issues above being addressed properly beforehand and with a further and main condition that they should be subjected to the police services command structure and cannot perform policing duties on their own but in support of SAPS. The benefits of policing powers cannot be over emphasised for the ICD who would enjoy oversight mandate over them.
MR M M H KEKANA
CHIEF DIRECTOR: MONITORING & DEVELOPMENT
INDEPENDENT COMPLAINTS DIRECTORATE