Long title
To provide for the establishment, organisation, regulation and control
of the South African Police Service; and to provide for matters in
connection therewith.
__________
[Act 1995_068_000 Long title unamended wef 1995/10/15]
ARRANGEMENT OF SECTIONS
CHAPTER 1. INTERPRETATION
1. Definitions
CHAPTER 2. MINISTERIAL SERVICES
2 Secretariat
3 Executive Co-ordinating Committee
4 Functions of Secretariat
CHAPTER 3. ESTABLISHMENT AND COMPOSITION OF SERVICE
5 Establishment and Composition of Service
CHAPTER 4. COMMISSIONERS
6 Appointment of National and Provincial Commissioners
7 Terms of Office of National and Provincial Commissioners
8 Loss of Confidence in National or Provincial Commissioner
9 Misconduct by or Incapacity of National or Provincial Commissioner
10 Board of Commissioners
CHAPTER 5. POWERS, DUTIES AND FUNCTIONS
11 National Commissioner
12 Provincial Commissioners
13 Members
14 Employment of Service in Preservation of Life, Health or Property
15 Delegation
CHAPTER 6. ORGANISED CRIME AND PUBLIC ORDER POLICING UNIT
16 National Prevention and Investigation of Crime
17 National Public Order Policing Unit
CHAPTER 7. COMMUNITY POLICE FORUMS AND BOARDS
18 Objects of Community Police Forums and Boards
19 Establishment of Community Police Forums
20 Establishment of Area Community Police Boards
21 Establishment of Provincial Community Police Boards
22 Functions of Community Police Forums and Boards
23 Procedural Matters
CHAPTER 8. REGULATIONS
24 Regulations
25 National Orders and Instructions
26 Provincial Orders and Instructions
CHAPTER 9. APPOINTMENTS, TERMS AND CONDITIONS OF SERVICE AND
TERMINATION OF SERVICE
27 Filling of Posts
28 Recruitment and Appointment
29 Designation as Member
30 Proof of Appointment
31 Salary and Benefits
32 Training
33 Commissioned Officers
34 Inquiries
35 Discharge of Members on account of Redundancy, Interest of Service
or Appointment to Public Office
36 Discharge on account of Sentence Imposed
37 Discharge of Members Failing to Complete Basic Training
39 Missing Members and Employees 38 Secondment of Members
40 Disciplinary Proceedings
41 Strikes
42 Conduct Sheets
43 Suspension while in Detention or Imprisoned
44 Rewards and Recognitions
45 Retirement
46 Political Activities of Members
47 Obedience
48 Reserve Police Service
49 Limitation on Right to Resign
CHAPTER 10. INDEPENDENT COMPLAINTS DIRECTORATE
50 Establishment and Independence
51 Appointment of Executive Director
52 Personnel and Expenditure
54 Functions of Directorate 53 Reporting
CHAPTER 11. GENERAL PROVISIONS
55 Non-liability for Acts Under Irregular Warrant
56 Limitation of Liability of State and Members
57 Actions against Service
58 Salary or Allowance not to be Assigned or Attached
59 Prohibition on Certain Dealings
60 Property of Service not Liable to Seizure or Attachment
61 Exemption from Tolls, Fees and Fees of Office
62 Police Clubs Exempt from Licence Duties and Other Fees
63 Payment by Public for Police Services
CHAPTER 12. MUNICIPAL AND METROPOLITAN POLICE SERVICES
64 Municipal and Metropolitan Police Services
CHAPTER 13. OFFENCES
65 Receipt or Possession of Certain Property
66 Wearing and Use of Uniforms, Badges, etc. of Service
67 Interference with Members
68 False Representations
69 Prohibition on Making of Sketches or Taking of Photographs of
Certain Persons and Publication thereof
70 Unauthorised Disclosure of Information
71 Unauthorised Access to or Modification of Computer Material
CHAPTER 14. REPEAL AND TRANSITIONAL PROVISIONS
72 Repeal and Transitional Provisions
CHAPTER 15. SHORT TITLE AND COMMENCEMENT
73 Short Title and Commencement
__________
[Act 1995_068_000 Table of contents unamended wef 1995/10/15]
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;
[sic - no text la belled "(b) and "(c)"]
(d) reflect respect for victims of crime and an understanding hf their
needs; and
(e) ensure effective civilian supervision over the Service;
__________
[Act 1995_068_000 Preamble unamended wef 1995/10/15]
CHAPTER 1. INTERPRETATION
1. Definitions
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; and (iv)
(xxx) "uniform" means a uniform as prescribed. (xxvi)
__________
[Act 1995_068_001 unamended wef 1995/10/15]
CHAPTER 2. MINISTERIAL
SERVICES
2. Secretariat
(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.
__________
[Act 1995_068_002 unamended wef 1995/10/15]
3. Functions of
secretariat
(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.
__________
[Act 1995_068_003 unamended wef 1995/10/15]
4. Executive coordinating
committee
(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.
__________
[Act 1995_068_004 unamended wef 1995/10/15]
CHAPTER 3. ESTABLISHMENT
AND COMPOSITION OF SERVICE
5. Establishment and
composition of Service
(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.
__________
[Act 1995_068_005 unamended wef 0000/00/00
CHAPTER 4. COMMISSIONERS
6. Appointment of
National and Provincial Commissioners
(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.
__________
[Act 1995_068_006 unamended wef 1995/10/15]
7. Terms of office of National and Provincial Commissioners
(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.
__________
[Act 1995_068_007 unamended wef 1995/10/15]
8. Loss of confidence in
National or Provincial Commissioner
(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.
__________
[Act 1995_068_008 unamended wef 1995/10/15]
9. Misconduct by or
incapacity of National or Provincial Commissioner
(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.
__________
[Act 1995_068_009 unamended wef 1995/10/15]
10. Board of
Commissioners
(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.
__________
[Act 1995_068_010 unamended wef 1995/10/15]
CHAPTER 5. POWERS, DUTIES
AND FUNCTIONS
11. National Commissioner
(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.
__________
[Act 1995_068_011 unamended wef 1995/10/15]
12. Provincial
Commissioners
(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.
__________
[Act 1995_068_012 unamended wef 1995/10/15]
13. Members
(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.
__________
[Act 1995_068_013 unamended wef 1995/10/15]
14. Employment of Service
in preservation of life, health or property
The National or Provincial Commissioner may employ members for service
in the preservation of life, health or property.
__________
[Act 1995_068_014 unamended wef 1995/10/15]
15. Delegation
(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.
__________
[Act 1995_068_015 unamended wef 1995/10/15]
CHAPTER 6. ORGANISED
CRIME AND PUBLIC ORDER POLICING UNIT
16. National prevention
and investigation of crime
(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 respect of 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; an
(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.
__________
[Act 1995_068_016 unamended wef 1995/10/15]
17. National public order
policing unit
(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.
__________
[Act 1995_068_017 unamended wef 1995/10/15]
CHAPTER 7. COMMUNITY
POLICE FORUMS AND BOARDS
18. Objects of community
police forums and boards
(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.
__________
[Act 1995_068_018 unamended wef 1995/10/15]
19. Establishment of
community police forums
(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.
__________
[Act 1995_068_019 unamended wef 1995/10/15]
20. Establishment of area
community police boards
(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.
__________
[Act 1995_068_020 unamended wef 1995/10/15]
21. Establishment of
provincial community police boards
(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.
__________
[Act 1995_068_021 unamended wef 1995/10/15]
22. Functions of
community police forums and boards
(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.
__________
[Act 1995_068_022 unamended wef 1995/10/15]
23. Procedural matters
(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.
__________
[Act 1995_068_023 unamended wef 1995/10/15]
CHAPTER 8. REGULATIONS
24. Regulations
(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;
(bb) the command, control, powers, duties and functions of persons,
other than members, employed by the Service;
(cc) the proper functioning of the directorate, including the referral
to the directorate of complaints received by the police;
(dd) any board or body established or constituted by or under this Act,
including-
(i) the procedure thereof; and
(ii) the attendance by witnesses of the proceedings thereof;
(ee) the development of the plan contemplated in section 11(2)(a) and
the monitoring of the implementation thereof;
(ff) all matters which may or shall be prescribed in accordance with
this Act; and
(gg) all matters generally which are necessary or expedient for the
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.
__________
[Act 1995_068_024 unamended wef 1995/10/15]
25. National orders and
instructions
(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.
__________
[Act 1995_068_025 unamended wef 1995/10/15]
26. Provincial orders and
instructions
(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.
__________
[Act 1995_068_026 unamended wef 1995/10/15]
CHAPTER 9. APPOINTMENTS,
TERMS AND CONDITIONS OF SERVICE AND TERMINATION OF SERVICE
27. Filling of posts
(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
__________
[Act 1995_068_027 unamended wef 1995/10/15]
28. Recruitment and
appointment
(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.
__________
[Act 1995_068_028 unamended wef 1995/10/15]
29. Designation as member
(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.
__________
[Act 1995_068_029 unamended wef 1995/10/15]
30. Proof of appointment
A document in the prescribed form certifying that a person has been
appointed as a member, shall be prima facie proof of such appointment.
__________
[Act 1995_068_030 unamended wef 1995/10/15]
31. Salary and benefits
(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).
__________
[Act 1995_068_031 unamended wef 1995/10/15]
32. Training
The National Commissioner shall determine the training that members
shall undergo.
__________
[Act 1995_068_032 unamended wef 1995/10/15]
33. Commissioned officers
(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.
__________
[Act 1995_068_033 unamended wef 1995/10/15]
34. Inquiries
(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.
__________
[Act 1995_068_034 unamended wef 1995/10/15]
35. Discharge of members
on account of redundancy, interest of Service or appointment to public
office
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.
__________
[Act 1995_068_035 unamended wef 1995/10/15]
36. Discharge on account
of sentence imposed
(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.
__________
[Act 1995_068_036 unamended wef 1995/10/15]
37. Discharge of members
failing to complete basic training
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.
__________
[Act 1995_068_037 unamended wef 1995/10/15]
38. Missing members and
employees
(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.
__________
[Act 1995_068_038 unamended wef 1995/10/15]
39. Secondment of members
(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.
__________
[Act 1995_068_039 unamended wef 1995/10/15]
40. Disciplinary
proceedings
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.
__________
[Act 1995_068_040 unamended wef 1995/10/15]
41. Strikes
(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).
__________
[Act 1995_068_041 unamended wef 1995/10/15]
42. Conduct sheets
(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.
__________
[Act 1995_068_042 unamended wef 1995/10/15]
43. Suspension while in
detention or imprisoned
(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,
__________
[Act 1995_068_043 unamended wef 1995/10/15]
44. Rewards and
recognitions
(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.
__________
[Act 1995_068_044 unamended wef 1995/10/15]
45. Retirement
(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.
__________
[Act 1995_068_045 unamended wef 1995/10/15]
46. Political activities
of members
(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.
__________
[Act 1995_068_046 unamended wef 1995/10/15]
47. Obedience
(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.
__________
[Act 1995_068_047 unamended wef 1995/10/15]
48. Reserve Police
Service
(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.
__________
[Act 1995_068_048 unamended wef 1995/10/15]
49. Limitation on right
to resign
(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.
__________
[Act 1995_068_049 unamended wef 1995/10/15]
CHAPTER 10. INDEPENDENT
COMPLAINTS DIRECTORATE
50. Establishment and
independence
(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.
__________
[Act 1995_068_050 unamended wef 1995/10/15]
51. Appointment of
Executive Director
(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.
__________
[Act 1995_068_051 unamended wef 1995/10/15]
52. Personnel and
expenditure
(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.
__________
[Act 1995_068_052 unamended wef 1995/10/15]
53. Functions of
directorate
(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.
__________
[Act 1995_068_053 unamended wef 1995/10/15]
54. Reporting
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.
__________
[Act 1995_068_054 unamended wef 1995/10/15]
CHAPTER 11. GENERAL
PROVISIONS
55. Non-liability for
acts under irregular warrant
(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.
__________
[Act 1995_068_055 unamended wef 1995/10/15]
56. Limitation of
liability of State and members
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.
__________
[Act 1995_068_056 unamended wef 1995/10/15]
57. Actions against
Service
(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.
__________
[Act 1995_068_057 unamended wef 1995/10/15]
58. Salary or allowance
not to be assigned or attached
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.
__________
[Act 1995_068_059 unamended wef 1995/10/15]
59. Prohibition on
certain dealings
(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.
__________
[Act 1995_068_059 unamended wef 1995/10/15]
60. Property of Service
not liable to seizure or attachment
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.
__________
[Act 1995_068_060 unamended wef 1995/10/15]
61. Exemption from tolls,
fees and fees of office
(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.
__________
[Act 1995_068_061 unamended wef 1995/10/15]
62. Police clubs exempt
from licence duties and other fees
(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.
__ ________
[Act 1995_068_062 unamended wef 1995/10/15]
63. Payment by public for
police services
(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.
__________
[Act 1995_068_063 unamended wef 1995/10/15]
CHAPTER 12. MUNICIPAL AND
METROPOLITAN POLICE SERVICES
64. Municipal and
metropolitan police services
(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.
__________
[Act 1995_068_064 unamended wef 1995/10/15]
CHAPTER 13. OFFENCES
65. Receipt or possession
of certain property
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.
__________
[Act 1995_068_065 unamended wef 1995/10/15]
66. Wearing and use of
uniforms, badges, etc. of Service
(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.
__________
[Act 1995_068_066 unamended wef 1995/10/15]
67. Interference with
members
(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.
__________
[Act 1995_068_067 unamended wef 1995/10/15]
68. False representations
(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.
__________
[Act 1995_068_068 unamended wef 1995/10/15]
69. Prohibition on making
of sketches or taking of photographs of certain persons and publication
thereof
(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.
__________
[Act 1995_068_069 unamended wef 1995/10/15]
70. Unauthorised
disclosure of information
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.
__________
[Act 1995_068_070 unamended wef 1995/10/15]
71. Unauthorised access
to or modification of computer material
(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.
__________
[Act 1995_068_071 unamended wef 1995/10/15]
CHAPTER 14. REPEAL AND
TRANSITIONAL PROVISIONS
72. Repeal and
transitional provisions
(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.
__________
[Act 1995_068_072 unamended wef 1995/10/15]
CHAPTER 15. SHORT TITLE
AND COMMENCEMENT
73. Short title and
commencement
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.
__________
[Act 1995_068_073 unamended wef 1995/10/15]
