The Institute for Security Studies (ISS) says there are legal “grey areas” plaguing the police service.
The ISS made this remark in its submission to parliament’s ad hoc committee probing allegations of corruption and political interference within South Africa’s criminal justice system.
The investigation comes after the media briefing last year by KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi, who accused senior law enforcement officials of meddling in police operations.
After testimonies from implicated witnesses and organisations including Accountability Now and the African Policing Civilian Oversight Forum, the ISS provided a strategic analysis of the legal “grey areas” currently plaguing the police service.
A central point of the ISS submission involved a contentious directive issued on December 31 2024. Suspended police minister Senzo Mchunu sent a letter to national commissioner Gen Fannie Masemola ordering the disbandment of the political killings task team (PKTT) and freezing the filling of vacancies within crime intelligence.
Maj-Gen Petronella van Rooyen of the SAPS legal division previously testified before the Madlanga commission of inquiry that Mchunu lacked the legal mandate to order the task team’s disbandment.
However, David Bruce of the ISS argued that the legal reality is far from being clear.
Bruce outlined several points regarding the scope of political authority in his submission:
- Under section 207(2) of the constitution, the minister is authorised to issue directions to the national commissioner;
- The actual boundaries of this authority remain unclear;
- The current legal distinction between “policy”, “strategy” and “operations” is inadequate for preventing interference; and
- Improper political influence is typically communicated verbally rather than in writing to avoid a paper trail.
Bruce suggested that all political directives should be required in writing and disclosed publicly — a standard used in other countries to curb interference.
He referenced the Marikana commission report to clarify that while the minister determines national policing policy and issues directions, the national commissioner’s authority to “control and manage” the SAPS must be exercised subject to that policy.
There isn’t a clear violation that I’m aware of from the minister. Whether his actions were well considered or exercising authority in a responsible way is another question. I’m not aware that he clearly violated or in breach of his powers.
— David Bruce, Institute for Security Studies
“It indicates that the minister’s powers and duties are threefold. The minister has political responsibility for policing, must determine national policing policy and may issue directions.
“Related to this the national commissioner’s authority to ‘control and manage’ the SAPS (‘the police service’) must be exercised subject to the national policing policy and the directions of the minister’ (constitution, section 207(2)).”
The presentation was met with fierce resistance from some committee members, particularly from MK Party MP Sibonelo Nomvalo who rejected the ISS findings.
“We don’t agree with any point in this presentation,” Nomvalo said. “Our view is that the minister does not have the power under the constitution or the SAPS Act to enter into operational issues. If he does so, he is violating the constitution. Section 11 of the SAPS Act clearly gives those powers to the national commissioner.”
Nomvalo suggested the ISS was acting as a “mouthpiece” for the suspended minister.
“To suggest that more powers must be given to the minister is to want to exacerbate the situation. It appears your submission is defensive and intended to paint a particular picture.”
Bruce rejected the accusation that he was defending Mchunu.
“That is entirely untrue,” Bruce responded.
He clarified his stance, noting that while the minister’s actions might be questioned as being poorly considered or irresponsible, there is no clear legislative framework that renders Mchunu’s directive a definitive breach of the law.
“There isn’t a clear violation that I’m aware of from the minister. Whether his actions were well considered or exercising authority in a responsible way is another question. I’m not aware that he clearly violated or in breach of his powers.”
Earlier on Tuesday, Adv Paul Hoffman, of Accountability Now argued that while various task teams exist, there is no single body outside executive control dedicated solely to fighting corruption.
He urged the committee to consider two private members’ bills introduced by DA MP Glynnis Breytenbach. These bills propose the establishment of a Chapter 9 Anti-Corruption Commission, which would be constitutionally compliant and independent of the executive.
Sean Tait, representing the African Policing Civilian Oversight Forum (Apcof), presented two primary suggestions:
- strengthening parliamentary oversight; and
- insulating SAPS operational command from political interference.
Tait referenced Mkhwanazi’s claim that he had previously submitted statements to parliament regarding interference, yet no action was taken — a failure that eventually led to his public media briefing.
“We think there is certainly pause for thought in terms of parliament’s ability to strengthen its responsiveness to allegations or concerns brought to their attention,” Tait said.
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