First published on Daily Maverick
The conflict between the Minister of Police, Bheki Cele, and the National Police Commissioner, Khehla Sithole, over appointments made to senior posts in the South African Police Service raises questions about the role of the Minister in appointments.
On 4 May, in a briefing to the Parliamentary Portfolio Committee on Police, the National Commissioner announced four senior appointments in the police service: Two new provincial commissioners (KwaZulu-Natal and Limpopo) and two new divisional commissioners.
It was reported that after the announcement, on 5 May, the Minister wrote “a strongly worded letter” to the National Commissioner in which the Minister said that he considers the appointments to be in violation of the SAPS Employment Regulations, 2018, because they were made against his instructions and without his concurrence. In addition, the Minister said that he deems the appointments to be “irregular and invalid” and instructed the National Commissioner to “retract the appointments with immediate effect”.
This raises important questions: What is the Minister’s role in appointments in the police service and is that role constitutionally appropriate?
The Constitution envisages that the Minister will have political responsibility over the police service, while the National Commission will exercise control over the police service.
The Constitution provides that a member of Cabinet—the Minister of Police—must be “responsible for policing” and must “determine the national policing policy” in consultation with provincial governments. It is, thus, the Minister who controls the policy and strategic direction of the police service.
The Constitution, however, requires the appointment of a National Commissioner to “control and manage the police service” in accordance with “the national policing policy and the directions” of the Minister. The National Commissioner must implement the policy and strategic direction determined by the Minister, but is responsible for the operational and managerial control of the police service.
The Constitution, thus, removes the operational and managerial control of the police service from the hands of political actors. In doing so, the Constitution seeks to strike a balance between a police service that is democratically accountable to Parliament and the National Executive, on the one hand, and that is insulated from undue political interference, on the other.
The need for an appropriate balance is illuminated by South Africa’s dark past, where the police were deployed by the government for repressive political purposes. In our new constitutional democracy, the police service is intended to act in the public interest. The Constitution expressly prohibits the police service from acting to further any partisan political interest.
Appointments—being an aspect of operational and managerial control—should fall within the scope of the National Commissioner’s constitutionally mandated powers and functions. Indeed, the Constitution itself governs the appointment of provincial commissioners and makes the National Commissioner ultimately responsible therefor.
The Constitution provides that the National Commissioner, with the concurrence of the provincial executive, must appoint provincial commissioners. It is only where the National Commissioner and the provincial executive are unable to agree on appointment that the Constitution contemplates a role to be played by the Minister in the appointment, and that role is to mediate between the parties. This is given effect to in section 6 of the South African Police Service Act, 1995.
The Constitution and the SAPS Act, thus, clearly do not require the concurrence of the Minister for the appointment of a provincial commissioner.
All other appointments to the police service are governed by the SAPS Act and the SAPS Employment Regulations. The SAPS Act, in section 28, empowers the National Commissioner to make appointments in the police service. The Act envisages no role for the Minister in the appointments process (with the exception of the most senior posts in the Hawks and the Independent Complaints Directorate).
However, the SAPS Employment Regulations—made by the Minister—give the Minister a role in appointments and promotions to senior-level posts in the police service (including divisional commissioners).
Regulation 47 governs appointments and promotions to senior-level posts in the police service. It provides that the National Commissioner must, in consultation with the Minister, appoint a selection committee to make recommendations on an appointment or promotion. The selection committee must make recommendations on the suitability of candidates for the post and must submit its report and recommendations to the National Commission and the Minister. The National Commissioner must then make a decision on an appointment or promotion “in consultation with the Minister”.
The Minister appears to understand the SAPS Employment Regulations as requiring his concurrence before an appointment to a senior-level post may be made. However, the Constitutional Court has on numerous occasions pronounced upon the meaning of provisions conferring a power that must be exercised “in consultation with” another person or entity. The decision to appoint or promote must be taken after consultation with the Minister and the Minister’s views must be given serious consideration. But the Minister’s concurrence is not required. The consultation requirement leaves the final decision with the National Commissioner.
The Minister—in making the SAPS Employment Regulations—has assumed for himself a consultative role in appointments to senior-level posts, which is not envisaged in the constitutional scheme delineating responsibilities or in the Act.
Internationally, it is considered best practice to remove decisions concerning appointments and promotions for all but the most senior posts in the police service (i.e. the equivalent of the National Commissioner) from the control of political actors. It is considered necessary that the head of the police service have ultimate responsibility over personnel decisions in order to safeguard the police service from undue political interference.
The constitutional scheme governing the police service clearly requires it to be politically accountable. However, it also seeks to insulate it from direct political control – putting control over the operations and management of the police service out of the hands of political actors.
The Constitutional Court has made it clear that adequate independence does not require “insulation from political accountability”, but rather “insultation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations” of an independent entity. The police service must be safeguarded from undue political interference, particularly in decisions regarding who to investigate and charge in individual cases.
The Minister’s involvement in appointments for senior-level posts in the police service creates a real possibility for political interference in operational decisions or at least the perception that the police service is vulnerable to such political interference. It is, therefore, critical that appointments and promotions in the police service be insulated from political control.
Catherine Kruyer
Legal Researcher
Catherine@hsf.org.za
