The Civilian Secretariat for Police Service Act 2 of 2011: Implications for the Policing Powers of the Provincial Governments in South Africa

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 1-21
• Author: Phumlani Tyabazayo,Cephas Lumina
• Published date: 01 June 2023
• DOI: 10.25159/2522-6800/12766

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/12766

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online ), ISSN 2219-6412 (Print)

Volume 38 | Number 1 | 2023 | #12766 | 21 pages

© Unisa Press 2023

The Civilian Secretariat for Police Service Act 2 of

2011: Implications for the Policing Powers of the

Provincial Governments in South Africa

Phumlani Tyabazayo

https://orcid.org/0000-0002-8809-8115

University of Fort Hare

phumlani.tyabazayo@gmail.com

Cephas Lumina

https://orcid.org/0009-0001-5030-1461

Visiting Professor of Law

School of Postgraduate Studies

University of Lusaka

Cephas.lumina@unilus.ac.zm

Abstract

The Constitution of the Republic of South Africa provides for the establishment

of a Civilian Secretariat for Police Service. To give effect to this constitutional

imperative, parliament passed the Civilian Secretariat for Police Service Act 2

of 2011 in March 2011. This Act enjoins members of the Executive Councils

(MECs) to establish provincial secretariats for their respective provinces. This

article examines the implications of the Act for the South African provincial

governments’ exercise of their policing powers. The article also explores both

the current legal and institutional challenges encountered in the establishment

of provincial secretariats and those anticipated when the Act is fully

implemented at the provincial level. The article argues that the current

implementation of the Act, which essentially conflates the civilian secretariat

with the provincial departments of community safety, is problematic at many

levels.

Keywords: Civilian secretariat; police service; civilian oversight; democratic

policing; accountability; provincial governments; police powers

Tyabazayo and Lumina

2

Introduction∗

The Constitution of the Republic of South Africa 1996, in envisioning a democratic

state, enshrines values such as the advancement of human rights and freedoms, the rule

of law, transparency and accountability. In this context, the Constitution promotes,

amongst others, the principle of civilian oversight of the police by requiring the

establishment of a civilian secretariat for the police service by national legislation.1

Accordingly, parliament has passed the Civilian Secretariat for Police Service Act,2 to

provide the legal framework for civilian oversight of the police.

This article examines the implications of the Act for the South African provincial

governments’ exercise of their policing powers. A brief overview of the provincial

governments’ policing powers follows this introduction. Next, the role of the Civilian

Secretariat as a mechanism for civilian oversight of the police is discussed, with a

particular focus on both the legal and institutional challenges being experienced and

those likely to be experienced when the Act is fully implemented at the provincial level.

This is followed by discussions of the implications of the Act for the role of the

provincial governments in policing oversight, and measures to enhance the impact of

civilian policing oversight in South Africa. The last section provides a conclusion.

Provincial Governments’ Policing Powers: An Overview

As an institutional practice, policing is organised in local, national and (increasingly)

global dimensions.3 In the South African context, the Constitution provides that the

‘national police service must be structured to function in the national, provincial and,

where appropriate, local spheres of government.’4 This constitutional provision raises

issues concerning the relationship between the various levels of control and the

appropriate division of responsibility between them.5 It is evident from the Constitution

that policing is a national competency.6 Section 206(1) of the Constitution vests political

responsibility for policing in a ‘member of the Cabinet’ (the Police Minister) who is

given the authority to determine a national policing policy after consulting the provincial

governments and taking into account their policing needs and priorities. Control and

management of the police service is vested in the National Commissioner of the Police

∗ This article draws on the first author’s LLD thesis titled: ‘Accountability of the Police to Provincial

Governments in South Africa: A Comparative Analysis of Law and Practice in the Eastern and

Western Cape provinces’ (University of Fort Hare 2022).

1 Constitution of the Republic of South Africa 1996 s 208 (Constitution).

2 Civilian Secretariat for Police Service Act 2 2011.

3 Ian Loader, ‘Democracy, Justice and the Limits of Policing: Rethinking Police Accountability’

(1994) 3 Soc & Legal Stud 528.

4 Constitution s 205(1).

5 Loader (n 3).

6 Minister of Police & Others v Premier of the Western Cape & Others 2013 (12) BCLR 1365 (CC)

para 30.