Madam Deputy Chair, members of the NCOP, the Deputy Minister of Police - I acknowledge you - ladies and gentlemen; allow me at the outset to say that although the Western Cape government opposes the Civilian Secretariat for Police Service Bill, we fully subscribe to the need for the secretariat to be empowered.
Viewed through a national lens, the Bill makes provision for proper policing, oversight and monitoring, which is most welcome. However, from a provincial basis, the Bill got its wires crossed and confused the powers and functions of a secretariat with those powers exclusively conferred on the provinces by the Constitution of South Africa.
This is why, as a province, we do not support the Civilian Secretariat for Police Service Bill. This is the primary reason for opposing the Bill. All South Africans must jealously protect our Constitution, and it is our opinion that this Bill is inconsistent with certain provisions of the Constitution. I will highlight only a few examples.
The Constitution confers powers on the provincial executives to monitor police conduct, oversee the effectiveness and efficiency of the SA Police Service and to promote the relationships between communities and the SAPS. The provinces also have legislative competence to regulate these functions.
However, Chapter 4 of the secretariat Bill provides for the very same monitoring and overseeing of the police service by a provincial secretariat. We believe that this is inconsistent with section 206(4) of the Constitution, which provides that the provincial executive is the reasonable body for these policing functions, which include monitoring, assessing and overseeing the police services.
These policing functions are reserved for the provincial executive and may not be assigned by national legislation, even to a provincial organ of state such as the provincial secretariat. From a legal perspective, the Western Cape is of the opinion that the provision regulating the status of the provincial secretariats is ambiguous and that interpretational difficulties may arise. If the intention is for the regionalisation of the secretariat described in section 208 of the Constitution, it must clearly say so; and again it must be stressed that the secretariat cannot encroach on the functions of the provincial executive.
Chapter 3 of the Constitution determines that each sphere of government, and all organs of state within each sphere, must respect the constitutional status, institutions, powers and functions of government in the three spheres; not assume any power or function except those conferred on them in terms of the Constitution; and must exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.
The Bill, therefore, is in disharmony with section 41 of the Constitution as it attempts to assume functions conferred on provinces and thus does not respect the constitutional stature of the provincial government.
I urge the drafters of the Bill to study section 100 of our Constitution. I sometimes think that we don't read the Constitution! This clearly spells out when and how the national executive may intervene in provinces.
The Bill addresses this very important issue in a very cavalier manner. The Constitution clearly states that where the national executive intervenes in a province, a notice of intervention must be tabled in this Council and then it must end unless the NCOP approves it within 30 days of its first sitting.
I want to say that this is an important House and the Constitution confers important powers to this House; and I think sometimes you make a joke of this House. The Bill, however, ignores these constitutional imperatives and refers to interventions for 90 days at a time.
It is important to understand that a civilian secretariat really is a civilian secretariat. The drafters of the Bill erroneously argued for the independence of the secretariat - as if that will solve the problem of a weak and dysfunctional secretariat. And why should the Civilian Secretariat for police Service be any different from that of defence?
I urge members to read sections 204 and 206 of our Constitution. Section 204 reads: A civilian secretariat for defence must be established by national legislation to function under the direction of the Cabinet member responsible for defence.
Section 208 is an exact duplication bar the words "police service" for "defence".
I want to conclude by reiterating that the Western Cape supports the idea of empowering the secretariat. We fully acknowledge that, at present, the SAPS, which should receive its budget and policy directives from the secretariat, treats the secretariat as a nuisance. But the solution is not to create a separate department; the answer is in the White Paper.
The Department of Defence is structured along similar lines. Please let us look at this important piece of legislation again. I thank you, Madam Deputy Chair. [Applause.]