The South African Police Service Amendment Act No 83 of 1998 outlines the complex and lengthy process required for establishing a municipal police service. The Department of Safety and Security and the SAPS play a central part in this process, not least in terms of approving applications from local governments and co-ordinating operations with new municipal police agencies.

Outline of legislation governing municipal policing

Detail about the establishment of a municipal police service (MPS) is contained in the South African Police Service Amendment Act No 83 of 1998 (hereafter referred to as 'the Act'). Municipal police services exist entirely independently of the SAPS and are funded by, and accountable to, local or city governments.

The Act says that any municipality (urban, rural, large or small) may apply to establish a municipal police service. The provincial Minister of Safety and Security may approve the application after consultation with the National Commissioner of the SAPS and the MECs for local government, finance, transport and traffic if:

• The application submitted by the municipality complies with the requirements laid down in the Act.
  
  

• The municipality has the resources at its disposal to provide for a MPS which complies with national policing standards on a 24-hour basis.
  
  

• The establishment of a MPS will not negatively affect traffic policing.
  
  

• Provision has been made for civilian supervision of the MPS.
  
  

• The MPS will contribute to effective policing in that part of the province.

In the large South African cities, the municipalities are often referred to as 'metropolitan councils', hence in these cities, we refer to 'metro police'. Whether referring to municipal or metro police services, the acronym MPS is used–or MPD for a police department.

The statutory functions of a municipal police service are:

• Traffic policing
  

• Policing of municipal bylaws and regulations
  

• Preventing crime.
  

While the first two functions are fairly clear, there is some debate over the meaning here of 'crime prevention'. Some have taken it to mean that the MPS should engage in (or be responsible for) all types of crime prevention, which could include:

• Primary prevention with potential perpetrators and victims
  

• Secondary prevention with those who are already victims or perpetrators
  

• Tertiary prevention with the general public.
  

This view would see the council's crime prevention functions centralised in the MPS, which would play a role in a variety of crime prevention activities, such as environmental design and victim support. Others believe that the MPS will only engage in traditional police-type crime prevention, which is based on the idea that the mere presence of uniformed police officers will deter crime, and hence emphasises visible policing strategies such as foot or vehicle patrols.

The MPS will not conduct criminal investigations. After arresting any person on suspicion of having committed a criminal offence, the arrested person will be taken to a SAPS police station as soon as possible. This interface between the MPS and the SAPS will be critical.

The MPS will be overseen by a civilian committee made up of elected councillors and other people selected by the council. This committee will:

• Advise the municipality's CEO on matters relating to the MPS
  

• Promote accountability and transparency of the MPS
  

• Monitor the implementation of council policy by the MPS
  

• Evaluate the functioning of the MPS.
  

In the cities which already have a MPS, these committees are made up largely of elected councillors, with some invited representatives of groups such as Business Against Crime.

The Provincial Commissioner of the SAPS must establish various structures to ensure co-ordination between the activities of the SAPS and those of the MPS operating in his province. The MPS will be obliged to participate in such a committee. In some cases, additional means of co-operation and co-ordination between the MPS and the SAPS are being implemented—this will vary between the provinces.

The process of establishing a municipal police service

The process of establishing a municipal police service is complex. The first stage of preparing the business plan can take many months—even as long as a year. Municipalities need to ensure that the capacity is in place to develop the municipal policing business plan—either by devoting dedicated staff to the task or by hiring consultants.

The provincial government needs to prepare to receive and scrutinise business plans from the municipalities. Provinces can therefore be expected to take some time to put in place the procedures for consideration and approval of such applications. Delays in the approval process at provincial government level could also impact on the timelines envisaged by municipalities.

A full costing of the proposed municipal police service is required as part of the business plan. This costing must demonstrate that all the costs of establishing and operating the MPS can be borne by the municipality in perpetuity. No funds will be made available from national government to assist local governments to establish MPS. The Act states clearly that "all expenditure incurred by or in connection with the establishment, functioning and maintenance of a municipal police service shall be for the account of the municipality in question".34

Assistance to municipalities from the national government (the SAPS and the Department of Safety and Security) "will be in the form of guidance and advice in setting up municipal/metropolitan police services. No financial assistance is involved", according to Deputy National Commissioner of the SAPS, Louis Eloff.

One of the most challenging requirements of the legislation, which must be demonstrated in the business plan, is that the MPS will operate on a 24-hour basis. This requires the development of a human resource plan and shift system. If three eight-hour shifts per 24 hours are utilised (as is most common) then the MPS must employ approximately three times as many officers as it wishes to have on duty at any one time. 35

A municipal police service will probably have employees in a range of different categories:

• Full "members" who have training in both traffic enforcement and municipal policing, and are registered as traffic officers in terms of the traffic legislation. They will be able to enforce traffic laws and other bylaws.
  
  

• "Authorised officers" or "law enforcement officers" who are authorised to enforce bylaws only.
  
  

• All other "employees" such as civilian support staff, traffic wardens etc.
  

The shift system will need to be designed to provide the required numbers of each category of staff at all times. The provision of a 24 hour-service will require human resource management systems which can provide the necessary support to employees of the MPS, as well as procedures for resolution of labour disputes. In particular, clarity will be needed on the job descriptions, competencies, and remuneration of the three categories of MPS employees listed above.

There are complex labour relations issues involved in transferring an official from his or her former post in a municipality to a new position with has a new job description. Municipalities will need to navigate these with care.

Framework of policing in South Africa and role of municipal police

The SAPS is a national police service, with every police official reporting to the National Commissioner in Pretoria. The budget of the service is derived entirely from the national budget. Although there are provincial MECs for Safety and Security, political accountability for the SAPS rests largely with the national Minister of Safety and Security.

The SAPS is organised into a head office with a number of national divisions, nine provincial commands, 42 area command structures and 1121 police stations. Each police station is headed by a Station Commissioner who reports to the Area Commissioner, who in turn reports to the Provincial Commissioner. The police station area is generally the smallest organising unit in the SAPS, although some stations have further divided their areas into smaller 'sectors'.

The provincial governments all have civilian departments of Safety and Security (although the formal name of the department varies). These civilian departments have some say in the appointment of the Provincial Commissioner of the SAPS although Provincial Commissioners are appointed by, and report to, the National Commissioner.

If a key challenge facing municipal policing is co-operation between municipal forces and the SAPS, this is made more difficult by the fact that the jurisdictions of the two agencies follow different geographic boundaries. The MPS operate in the municipal area as defined under local government legislation. The national police service operates in the 'area' and 'station' zones defined by the SAPS. Neither of these jurisdictions are necessarily congruent with the boundaries of the magisterial districts used by the Department of Justice and the courts.

Within each municipal area, the municipality can define 'regions' or 'zones'. The MPS may be structured according to these, or may be organised to enable response to high-crime areas. Municipal areas in South Africa (even in the large cities) may include densely populated urban areas and more rural areas, which pose very different policing challenges.

Law enforcement by the municipal police

The SAPS Amendment Act refers to two key law enforcement roles of the MPS:

Enforcement of traffic laws and regulations

The main instruments are the Road Traffic Management Corporation Act (RTMC) and the Administrative Adjudication of Road Traffic Offences Act (AARTO). The RTMC mainly regulates management and human resource practices in the road traffic service while AARTO is concerned with the actual enforcement and adjudication of road traffic rules and the adjudication thereof.

Enforcement of local municipal bylaws

Bylaws are made by the municipality. The bylaws in South African cities are in disarray, for two reasons. Firstly, the new municipalities have new boundaries and jurisdictions and the old (pre local elections held in 2000) bylaws do not apply across the new municipal areas. Secondly, many of the old bylaws are politically and legally inappropriate to new democratic South Africa and subject to challenge in terms of the constitution.

For instance, old bylaws against loitering might be discriminatory in terms of the race classifications used, and bylaws around housing and squatting might contradict the rights to shelter contained in the bill of rights. The role of enforcing bylaws will require the MPS to deal with a wide range of local problems, such as:

• street trading
  

• the keeping of dogs and other animals
  

• control, supervision and inspection of commercial businesses
  

• the licensing of vehicles, public vehicles, public buses and taxis
  

• conduct at public resorts, public places, camping sites, swimming pools and recreation grounds
  

• the keeping of bees
  

• cemeteries and crematoriums
  

• noise control
  

• municipal libraries
  

• streets and buildings
  

• control over outdoor advertising (such as billboards, posters and signs)
  

• licensing of plumbers and sewage constructors
  

• the use of non-approved structures for dwelling and business purposes
  

• health standards in cafes and restaurants
  

• prohibition of smoking in theatres, cinemas, municipal buses and lifts
  

• health standards in childcare facilities
  

• food handling
  

• procedures at fresh produce markets
  

• fire services and fire safety
  

• sewage and cleansing
  

• the municipality's financial procedures.
  

A third enforcement area for the MPS is the enforcement of other legislation. Every member of a municipal police service is a peace officer and may exercise the powers conferred on peace officers.36 Any legislation which gives powers to peace officers is therefore included in defining the powers of members of a municipal police service. A peace officer is defined in the Criminal Procedure Act 51 of 1977 to include:

"any magistrate, justice, police official, correctional official, as defined in section 1 of the Correctional Services Act, 1959 (Act 8 of 1959), and, in relation to any area, offence, class of offence or power referred to in a notice issued under section 334 (1), any person who is a peace officer under that section."

In terms of section 334 of the Criminal Procedure Act, the Minister—by notice in the Gazette—can declare that "any person who, by virtue of his office, falls within any category defined in the notice, shall, within an area specified in the notice, be a peace officer for the purpose of exercising, with reference to any provision of this Act or any offence or any class of offences likewise specified, the powers defined in the notice."37 The provisions of section 64F(3)(a) of the South African Police Service Amendment Act have achieved this by enabling municipal police officers to be peace officers.

Annexure 6 of the Police Service Amendment Act sets out which legislation is applicable to a municipal police service,38 and this includes:

• Section 8(3), section 8(7) and section 9 of the Stock Theft Act No. 57 of 1959
  

• Section 4 of the Teargas Act No. 16 of 1964
  

• Section 14(2)39 and section 70(1) of the Mental Health Act No. 18 of 1973
  

• Sections 21, 22, 26, 27, 37 and 7240 of the Criminal Procedure Act No. 51 of 1977
  

• Section 53 of the Sea Fisheries Act No. 12 of 1988
  

• Section 1141 of the Drugs and Drug Trafficking Act No. 140 of 1992
  

• Section 1342 of the South African Police Services Act No. 68 of 1995.
  

Newer statutes such as the Domestic Violence Act and the draft Firearms Control Act will also have to be enforced by the Municipal Police Services.

Crime prevention by the municipal police

It remains unclear exactly how the 'crime prevention' role of the MPS will be interpreted—whether it will include social crime prevention as envisaged in the 1998 White Paper on Safety and Security, or whether the crime prevention role of the MPS will be derived from the general deterrent effect which ordinary police work and patrol is taken to have.

There is a great deal which municipalities can do to contribute to crime prevention. The White Paper on Safety and Security says that social crime prevention aims to "reduce the social, economic and environmental factors conducive to particular types of crime". It suggests that cities can engage in the following types of activities:

• designing out crime
  

• education
  

• promoting social cohesion
  

• supporting youth, families and groups at risk
  

• breaking cycles of violence
  

• promoting individual responsibility
  

• socio-economic interventions to undercut the causes of crime.

None of the cities discussed here appear to have a coherent plan for implementing these kinds of social prevention strategies. It seems, therefore, that the main approach to crime prevention will be police patrol. Increased deployment of uniformed municipal police in a particular area can increase general police visibility in that area. This is believed to have a deterrent effect on people who are considering committing offences. However, there is some research evidence that disputes this effect.

Nevertheless, increased visibility can contribute positively to the local community's sense of safety because it can be taken to mean that the local government is taking their fears and concerns seriously. There are two key problems with the preventive patrol approach:

• It can be costly and hard to sustain in the long-term. Officers can do routine patrol work while there are no other, more pressing matters to deal with. But when other crises arise, patrol work is often the first to be abandoned.
  
  

• Decision-making about where to do patrolling requires sound information about crime and disorder problems and regular evaluation of impact. Saturation patrolling can displace crime out of one area to another which is not being patrolled, thus simply moving the crime problem, rather than reducing it. Municipal police commanders need to access good crime information systems (those owned by the SAPS as well as those owned by local government) in order to deploy patrol officers and vehicles in a cost-effective manner.