A PROPOSED MODEL FOR THE APPOINTMENT AND DISMISSAL OF THE NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE: A COMPARATIVE STUDY

When South Africa’s first democratically elected president was inaugurated on 10 May 1994, South Africans were anxious to see who would be leading the police service. Nelson Mandela followed his heart without bowing to political pressure and appointed seasoned police official Commissioner George Fivaz. Although the Interim Constitution Act 200 of 1993 was silent on the powers of the President to appoint the national commissioners, this appointment was made in terms of section 214(1) of that Act. At the time George Fivaz’s term expired, Mandela was also bowing out of the political limelight. When Thabo Mbeki assumed the presidency in 1999, he appointed Jackie Selebi, a former Umkhonto we Sizwe (MK) cadre, who came from the Department of Foreign Affairs without any policing experience. This appointment was made in terms of section 207 of the Constitution of the Republic of South Africa, read with section 7(1)(a) of the South African Police Service Act 68 of 1995. Section 8(1) of the South African Police Service Act stipulates that ‘if the National Commissioner has lost the confidence of the Cabinet, the President may establish a board of inquiry to inquire into the circumstances that led to the loss of confidence, compile a report and make recommendations.’ After serving his first term, reports of Selebi’s involvement in the criminal underworld began to emerge. As a result of these reports, the then Directorate of Special Operations (the Scorpions) investigated Selebi’s involvement in corrupt activities. In 2007, Selebi was charged inter alia with two counts of corruption; in 2010, he was found guilty of corruption and sentenced to 15 years’ imprisonment. Surprisingly, on 2 August 2009, President Jacob Zuma appointed General Bheki Cele, who also came from an MK background without any policing experience, as the third National Police Commissioner. Within a year, reports of Cele’s involvement in illegal lease deals began to emerge and the office of the Public Protector was called in to investigate the allegations. As a result of its findings of improper conduct and maladministration, he was suspended in 2011 and a commission of inquiry was established in terms of section 8(1) of the South African Police Service Act 68 of 1995 to find out whether the Commissioner was fit to hold office. General Cele was fired for maladministration and corruption and was replaced by General Riah Phiyega, who also did not have any policingexperience. A few months after her taking office, the Marikana incident occurred and all the blame for it has been directed at the National Commissioner, although the commission has not yet finalised its mandate. In view of the above-mentioned incidents, it is clear that there is a problem with the way in which the National Commissioner is appointed. This article seeks to unravel the powers of the president in appointing the National Police Commissioner and discuss the cases of the two former incumbents who bowed out of office in disgrace without completing their terms of office. It also includes a comparative study with countries such as Kenya, Northern Ireland, Uganda, Canada and selected countries from the Caribbean islands. As a way forward, a new model for appointing and dismissing the National Commissioner for South Africa is proposed

Single public service versus single police service : a case for South African police service

Uppermost on government’s agenda for the ongoing social and economic upliftment and transformation of our society is improvement in the delivery of basic and other services to the people of South Africa. Currently service delivery is hampered by weaknesses in numerous areas, including amongst others, national frameworks and policies that do not extend to local government in the areas of service delivery and public administration and management and marked differences in remuneration, conditions of service and local government which make mobility and transfer of functions difficult

Countering corruption in South Africa: The rise and fall of the Scorpions and Hawks

In 1999 a new directorate of the National Prosecuting Authority was launched to ‘complement and, in some respects, supplement the efforts of existing law enforcement agencies in fighting national priority crimes’.1 Over the following seven years the Directorate of Special Operations, nicknamed the ‘Scorpions’, gained public favour; however, they were accused of, amongst other things, exceeding their jurisdiction by performing functions that fell outside their mandate. During the African National Congress conference of 2007, delegates took a decision that the Scorpions should be disbanded. In 2008, Parliament passed the South African Police Service Amendment Bill that replaced the Scorpions with the Directorate for Priority Crime Investigation, located within the South African Police Service. In 2010 this move was challenged in Hugh Glenister v President of the Republic of South Africa & Others [CCT 48/10]. The key question in this case was whether the national legislation that created the Directorate for Priority Crime Investigation, known as the Hawks (DPCI), and disbanded the Scorpions, was constitutionally valid. In March 2011 the Constitutional Court ruled that the legislation establishing the Hawks was unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.’ The Court gave the government 18 months to rectify the situation. This article provides an overview of the decisions that led to the formation and closure of the Scorpions, and the formation of the Hawks

SEARCH FOR AND SEIZURE OF EVIDENCE IN CYBER ENVIRONMENTS: A LAW-ENFORCEMENT DILEMMA IN SOUTH AFRICAN CRIMINAL PROCEDURE

Investigating, deterring and imposing legal sanctions on cyber-criminals warrants an international legal framework for the investigation and prosecution of cybercrime. The real-world limits of local, state and national sovereignty and jurisdiction cannot be ignored by law-enforcement officials. It can be a strenuous task to obtain information from foreign countries, especially on an expedited basis – more specifically when the other country is in a different time zone, has a different legal system, does not have trained experts and uses different languages. In South Africa existing laws appear to be inadequate for policing the cyber realm. The effects and impact of information technology on the legal system have not yet received the attention they warrant. The challenges presented by the electronic realm cannot be solved merely by imposing existing criminal and criminal procedural laws which govern the physical world on cyberspace. The electronic realm does not necessarily demand new laws, but it does require that criminal actions be conceptualised differently and not from a purely traditional perspective. Sovereignty and the principle of non-interference in the domestic affairs of another state are fundamental principles grounding the relations between states; they constitute an important mechanism in the armoury of criminals. The harmonisation and enactment of adequate and appropriate transborder coercive procedural measures consequently play a pivotal role in facilitating effective international cooperation. This article examines the efficacy of South African laws in dealing with the challenges presented by police powers to search for and seize evidence in cyber environments. It analyses the rudimentary powers that exist in South African criminal procedure regarding the search for and seizure of evidence in cyber environments, and compares them against the backdrop of the more systemic and integrated approach proposed by the Cybercrime Convention