Today the Constitutional Court confirmed that the power of the Premier of the Western Cape to appoint the Commission derives from section 206(5) of the Constitution and the powers and functions of the Minister or the Commissioner were not usurped.

The Constitutional Court in Minister of Police v Premier of the Western Cape unanimously refused leave to appeal and disallowed the appeal of the Minister of Police and others and made the following order:

1.        Leave to appeal is refused.

2.        The application for direct access is refused.

3.        The application of the Minister of Police and of the National Commissioner of the South African Police Service, that this Court declare the decision of the Premier of the Western Cape of 24 August 2012 to establish a commission of inquiry is inconsistent with the Constitution and invalid, is dismissed.

4.        The Minister of Police and the National Commissioner of the South African Police Service are directed to pay the costs of the Social Justice Coalition in the High Court and in this Court, including the costs of two counsel, if applicable.

5.        No further order as to costs is made.

Extract from the judgement of the Deputy Chief Justice (without footnotes)  

[30]      The Constitution makes it plain that policing is a national competence.    The political responsibility for policing vests in the Minister who must set the national policing policy after hearing out provincial governments on the policing needs and priorities of provinces.   The President appoints the Commissioner.   In the Commissioner lies the power to “control and manage the police service in accordance with the national policing policy” and the directions of the Minister responsible.

[31]      However, in Part A of Schedule 4, the Constitution provides for concurrent national and provincial legislative competence over the policing function.    The Schedule makes it clear that the provincial legislature has legislative competence over policing only to the extent conferred on it by Chapter 11.   In turn, that chapter explains that a provincial executive is entrusted with the policing function as set out in the chapter or given to the provincial executive in national legislation or the national policing policy.   Chapter 11 carves out the concurrent competence of a province in relation to policing.    For now the important provisions are section 206(3) and (5).

[32]      Section 206(3) provides:

“Each province is entitled—

(a)       to monitor police conduct;

(b)       to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;

(c)        to promote good relations between the police and the community;

(d)       to assess the effectiveness of visible policing; and

(e)       to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.”

[33]      In turn, section 206(5) stipulates:

“In order to perform the functions set out in subsection (3), a province—

(a)       may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community; and

(b)       must make recommendations to the Cabinet member responsible for policing.”

[37]      That however is not the end of the enquiry.    The entitlements in section 206(3) are a recognition that, whilst a province has no control over the policing function, it has a legitimate interest that its residents are shielded from crime and that they enjoy the protection of effective, efficient and visible policing.    That explains why the province has the authority and duty to raise its concerns on policing in the province with the Minister.    Thus the entitlements accord with the province’s duty to respect, protect and promote fundamental rights of its residents.

[38]      The object of section 206(5) is to safeguard these entitlements over policing within a province.    It may undertake an investigation or resort to a commission of inquiry into complaints of police inefficiency or of compromised relations between the police and a community and must make recommendations, in that regard, to the Minister.

[39]      In the words of the Second Certification Case, the power to appoint a commission of inquiry gives “more teeth” to the monitoring and overseeing functions that the province enjoys by virtue of section 206(3).   The Court explained that this was to ensure adherence to the Constitutional Principle that the power and functions of the provinces defined in the Constitution shall not be substantially inferior to those provided in the interim Constitution.

[40]      The functions of a province must also be understood in the light of the role afforded to a province in section 207(5) and (6) of the Constitution.    In plain language, the provincial commissioner is required to account to the provincial legislature on an annual basis on the state of policing in the province.    The provincial executive has further recourse in keeping the provincial commissioner accountable to it.    Its concurrence is required when the Commissioner appoints a provincial commissioner.   In turn, should the provincial executive lose confidence in her or him, it may seek “the removal or transfer of, or disciplinary action against, that commissioner”.

[41]      The pertinent question before us is whether, once constituted, a provincial commission of inquiry may require members of the Police Service to appear before it under subpoena.    In my view, the competence to appoint a provincial commission of inquiry into police inefficiency and its alleged dysfunctional relations with any community is part of a constitutionally- mandated scheme through which provinces are entitled to monitor and oversee the police function within their area of remit.    Section 206(5) targets a commission of inquiry as one of the mechanisms of accountability and oversight available to a province.    A commission brought into being for this purpose must be effective and capable of giving reasonable effect to the entitlements of a province over the policing function.

[42]      As we have seen, the applicants have conceded the authority of the Premier to appoint a commission under section 206(5).    Even so, they make two broad submissions.    The first is that the province may not enact legislation that entitles it to appoint a commission with coercive power over the Police Service.    It follows, they contend, the Premier’s reliance on the WC Commissions Act – provincial legislation enacted under section 127(2)(e) of the Constitution – was misplaced.    Second, the entitlement to oversee and monitor police functions and for that purpose to appoint a commission of inquiry, does not give the province the competence to control and direct the Police Service.    I look at each of these contentions in turn.

. . . .

[49]      Section 206(5) accords a province a clear power to establish a commission of inquiry into policing function.    The provision allows a province, as a first option, to “investigate”.    This would be an inquiry initiated and managed by the provincial executive and without coercive powers.    However, a commission of inquiry may only be set up following “complaints of police inefficiency or a breakdown in relations between the police and any community”.    We must understand a commission to be an inquiry different from and more than a mere investigation.

[50]      In this context, a commission without coercive powers would indeed be unable to fulfil its mandate.    It would be no different from an investigation.    The objects envisaged in section 206(3) would never be achieved if police enjoyed immunity from being called upon to testify or produce documents on their policing functions.    When the target of the investigation is the police and how they fulfil their duties in relation to a particular community, they are obliged to account to a lawfully appointed commission as envisaged by section 206(5).    If they were to be shielded from the coercive power of subpoena, the effectiveness of the Commission would falter.    The entitlements in section 206(3) would be rendered nugatory as they would depend on whether members of the Police Service are willing to cooperate with the Commission.

[51]      A commission under section 206(5) must have coercive powers for another reason.    A premier and the province bear the duty to respect, protect and promote the fundamental rights of people within the province.    In this case, the Premier is obliged to take reasonable steps to shield the residents of Khayelitsha from an unrelenting invasion of their fundamental rights because of continued police inefficiency in combating crime and the breakdown of relations between the police and the community.    The burden of crime in Khayelitsha was confirmed and documented by the Police Services’ own task team.

[52]      The details of incessant crime emerging from the complaint are unsettling.    There is much to worry about when the institutions that are meant to protect vulnerable residents fail, or are perceived to be failing.    The police service has been entrusted with the duty to protect the inhabitants of South Africa and to uphold and enforce the law.   The Constitution requires accountability and transparency in governance.   And it establishes both a general framework for oversight as well as specific mechanisms through which a province may exact accountability.    The complainants sought to invoke these oversight mechanisms, which will be best served by a commission entrusted with powers of subpoena over members of the Police Service.

. . . .

[61]      The applicants seem to advance three bases for contending that the Premier breached her co-operative governance obligations.   The first is that by appointing a commission she usurped the powers and functions of the Minister and the Commissioner, something not permitted by section 41(1)(e) of the Constitution.   There is no merit in this contention.    As we have seen, the Premier, acting for and with the approval of the province, exercised the power given to the province by section 206(5) of the Constitution and in a manner permissible under the Constitution.    Section 41 does not require of the Premier to declare a dispute before she exercises powers properly vested in her.    The failure to declare a dispute affords a dilatory judicial mechanism to encourage inter-agency dialogue and dispute settlement.    It is a basis upon which an application to court can be dismissed.    But it is doubtful that an organ of state’s failure to declare a dispute is a disabling impediment to the subsequent exercise of a constitutional power.   In the present matter it can be safely concluded that, when the province appointed the Commission, it did not usurp the powers and functions of the Minister or the Commissioner.    The power to appoint the Commission, as we have concluded, derives from section 206(5) of the Constitution.