Local government, crime, by-laws, and law enforcement
Discussions of crime, safety and policing in South Africa often focus on the South African Police Service (SAPS). Clearly, though, the SAPS is not the only role-player that is responsible for promoting safety, and preventing crime, in South Africa.
With an interest in exploring questions about the role of local government in promoting safety, the Institute for Security Studies (ISS) and the South African Local Government Association (SALGA) cooperated in producing a report on “The state of local government law enforcement”. The report, published in August 2022 and written by David Bruce and Dr Kelly Stone, focuses on the law enforcement capacities of local governments.
Section 152 of the Constitution provides the objects of local government including the promotion of “a safe and healthy environment”. There are many ways of interpreting and applying this provision. Questions of health and safety clearly do not only link to crime per se but also concern other safety risks varying from issues of water quality to building construction, road traffic, fire, and other possible disasters. Municipalities need to make informed and strategic decisions about what role they should play in protecting and promoting health and safety, to what degree this should focus on addressing the crime problem, and what kind of investment they should make in law enforcement.
There is some controversy currently in South Africa about the type of law enforcement capacities that municipalities may maintain. Any law enforcement capability needs to be established in accordance with applicable laws. However, there are complexities in understanding the relevant laws and regulations.
Section 156(2) of the Constitution authorises municipalities to “make and administer” by-laws regarding certain matters. If municipalities do not enforce by-laws, there may simply be no one enforcing them. Though members of the SAPS may take action against by-law infringements, they do not necessarily do so. A 2018 Government Gazette, issued in terms of Section 334 of the Criminal Procedure Act (Act 51 of 1977), authorises municipalities to appoint law enforcement officers (peace officers) to enforce by-laws and other stipulated laws. The municipalities are responsible for ensuring that these officers are appointed in accordance with the law and that they meet the necessary qualifications and requirements.
Some metropolitan municipalities have established municipal police services (often referred to as ‘metro police’) in line with the provisions of Chapter 12 of the South African Police Service Act (68 of 1995). The mandates of metro police include the by-law enforcement function that is performed by municipal law enforcement officers (some other metros have maintained a law enforcement capability alongside their metro police department, others do not have metro police departments).
Along with by-law and traffic enforcement, the SAPS Act authorises municipal police to perform crime prevention activities. Crime prevention can be implemented in various ways. Within metro police departments it is generally understood that this means that metro police departments can police activities that do not involve crime investigation. However, it is also clear that there are some investigation activities that municipalities can and do perform. This is notable in respect of alleged crimes or by-law violations that involve municipal property, assets, or personnel. These may include acts of alleged corruption, theft, or maladministration.
There are also other possibilities for how local governments may address crime. Government policy documents such as the White Paper on Safety and Security (2016) and the 2022 Integrated Crime and Violence Prevention Strategy (ICVPS) motivate local government to implement “social” crime and violence prevention measures. Some of these, notably parenting programmes and other early intervention initiatives focused on children and young people, are not necessarily linked to law enforcement. However, municipal politicians generally prioritise a law enforcement-orientated response, though there is also a major interest in strengthening the use of technology to deter and prevent crime, including crime impacting on municipal infrastructure. Sometimes this involves poorly considered decisions to rapidly expand the number of law enforcement personnel without considering the requirements for effectively recruiting, training, equipping and managing them, or the long-term financial implications of such expansion.
The ISS and SALGA report identifies and explores various critical local safety challenges that face local governments. Many municipalities struggle to establish governance arrangements and processes that ensure effective responses to violence and crime at the metropolitan level. As a result, municipal government engagements with planning and managing responses to crime, and for coordination with other role players, are often inadequate.
The report argues that metropolitan governments should emphasise “understanding and addressing the overall crime and safety challenges and policing needs within the metropolitan area itself”. It highlights the fact that Section 205(1) of the Constitution provides for the SAPS to be structured to function “where appropriate” in the local sphere of government and recommends “consolidated coordination of SAPS law enforcement and crime prevention activities in metropolitan areas”. This should enable strategic metropolitan-wide cooperation and collaboration between the SAPS and municipal police or law enforcement.
The report also discusses the challenges facing municipalities in developing and administering by-laws. A complicating factor is the wide variety of by-laws that have been passed by many municipalities. The SA Cities Urban Safety Reference Group has recommended that consideration be given to the need for standard draft by-laws, as provided for in Section 14 of the Local Government Municipal Systems Act (No. 32 of 2000). Similar recommendations are made in the 2022 ICVPS. The diversity of by-laws also raises challenges for municipalities in recruiting, training and retaining inspectors and law enforcement personnel with the appropriate skills to assess compliance with some of the more technical by-laws. There is also a tendency for the SAPS and prosecutors not to take by-law infringements seriously. This has been one of the reasons why some municipalities have established municipal courts to adjudicate cases involving alleged by-law infringements. These courts may be costly for municipalities to maintain. Another concern is that by-law enforcement may reinforce economic exclusion. By-law enforcement should preferably be integrated with measures to support economic inclusion and ameliorate the impacts of poverty.
Over recent years asset and infrastructure protection has become a burning issue for many municipalities. Copper cable theft has been a major focus due to its impact on the provision of critical services, including electricity and water. Cable theft has also impacted other essential service providers. Municipalities are also affected by the theft of other metal fixtures and equipment. The abuse or misuse of municipal vehicles and facilities may also be a serious problem.
The report emphasizes questions to do with the protection of these assets. These need to be linked to a system that also ensures adequate provision for maintenance and repairs. One of the issues highlighted by the report is the potential for the use of ICT and other technology to protect municipal infrastructure. This in turn also requires that appropriately skilled or trained personnel are appointed, and systems maintained, to ensure that security equipment is maintained, protected and upgraded.
Violent protests also sometimes lead to the destruction of municipal fixed infrastructure such as offices, community halls, and clinics as well as non-municipal infrastructure such as school buildings. However, municipal officials interviewed for the report said that cable theft and other crimes were a greater problem. Protests do sometimes result in substantial damage to infrastructure, but not the major cause of loss to metropolitan municipalities.
The report also highlights the potential for confusion regarding the legal terminology to be applied regarding infrastructure. The Criminal Matters Amendment Act (Act 18 of 2015) refers to “essential infrastructure” linked to the provision of “basic services” to the public. The Minister of Police may also classify specific municipal infrastructure as “critical infrastructure” following an application by the municipality under the Critical Infrastructure Protection Act (Act 8 of 2019).
The report acknowledges that there is a wide diversity of local governments in South Africa. Approaches to local government involvement in law enforcement need to take these differences into account, notably the difference between metropolitan and other municipal jurisdictions.
Of course, effective promotion of health and safety by local government is only a real possibility in a context in which municipalities themselves maintain high standards of governance. This includes ensuring effective strategic leadership, addressing issues of integrity, and ensuring that consistent human resource standards are applied in recruitment and promotions. Local government law enforcement personnel can play an important role in promoting public safety, order, and security. However, local government law enforcement is a high-risk environment for corruption. Management of law enforcement capacities must include focused attention on ensuring the integrity of law enforcement personnel.
By David Bruce
David Bruce is a researcher on policing and public safety and an Institute for Security Studies consultant. Thanks to Ugeshni Naidoo at SALGA and Lizette Lancaster for comments on this article.