Empowering provinces to fight crime: Invoking the doctrine of necessity for policing devolution - Joan Swart

Key topics:

• Western Cape urged to unilaterally devolve policing powers

• Doctrine of Necessity cited to justify urgent local intervention

• SAPS failures spark calls for metro police to handle investigations

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By Dr Joan Swart*

In the shadow of South Africa's unrelenting crime wave, the Western Cape stands as a tragic emblem of systemic failure. In August 2025 alone, 40 people were murdered in Mfuleni, a township gripped by escalating violence that has doubled murder cases compared to the previous year. Mothers bury their children on the Cape Flats, often described as one of the most violent places on the continent, while gang syndicates operate with impunity.  

Yet, the Democratic Alliance (DA)-led provincial and Cape Town governments continue to point fingers at Pretoria, pleading for legislative tweaks to empower metro police. As legal expert Martin van Staden argued in his recent BizNews article, this “hopelessly naïve” approach must end - provinces like the Western Cape should invoke the Doctrine of Necessity and implied powers under the South African Police Service (SAPS) Act to devolve policing unilaterally, acting decisively to save lives rather than waiting for ANC approval. 

This is not just a policy shift; it's a moral imperative for capable provinces to reclaim control in the face of a national policing collapse.

The crisis is undeniable and demands urgent intervention. 

The Western Cape's murder rate is alarmingly high at 59.7 per 100,000 (2024/2025), surpassing the national average and global hotspots and accounting for 83% of South Africa's gang-related killings. In the fourth quarter of 2024/2025 (January to March 2025), contact crimes like murder decreased nationally by 5.8%, but the Western Cape saw persistent spikes in violent offenses, with Cape Town ranking among the deadliest cities. Gang violence, compounded by organised crime syndicates infiltrating even high levels of the state, has led to incidents like 58 shootings in five days earlier in 2025, 32 of them fatal.  

SAPS inefficiencies exacerbate this: a staggering 140,000 DNA case backlog, a 61% drop in gang detection rates since 2011/12, and 77% of precincts understaffed, with officers in areas like Grassy Park serving 1,800 residents each: six times the UN-recommended ratio. Judge Daniel Thulare's 2022 ruling exposed SAPS's capture by criminals, from low-level officers to senior management, eroding public trust and effectiveness. 

This failure isn't confined to the Western Cape; provinces like Gauteng face hijacking epidemics, and KwaZulu-Natal grapples with political violence. Centralised policing, under Section 207 of the Constitution, has proven inadequate, with national structures bloated by cadre deployment and corruption. Van Staden rightly criticises the DA's opportunistic “realpolitik” - pragmatic on issues like racial redress but naively optimistic about persuading the ANC to decentralize. Mayor Geordin Hill-Lewis's calls to amend the SAPS Act by adding “and investigate” to Section 64E(c)—allowing metro police to go beyond "prevention" to handle dockets and forensics—are well-intentioned but futile, as the ANC opposes decentralisation ideologically. Recent X posts from DA councillors in Mitchells Plain echo this frustration, demanding devolution to reduce gang terror and bloodshed.

Enter the legal foundation: implied powers and the Doctrine of Necessity. Van Staden advocates interpreting “prevention of crime” in Section 64E(c) broadly, implying authority for investigations, witness statements, and evidence processing—without needing explicit amendments. This “act first, litigate later” approach leverages the doctrine's age-old principle: extraordinary actions are justified to avert grave harm when no alternatives exist. In South African law, the doctrine has been invoked in cases like Memani and Another v S (2015), where necessity defences were examined in criminal contexts, emphasising that force is permissible if reasonably necessary to repel threats. Globally influential precedents, such as Pakistan's 1954 Federation v Maulvi Tamizuddin Khan, validate it for restoring order, but South African courts apply it narrowly to uphold the rule of law.

For the Western Cape, unchecked violence qualifies as “imminent peril,” justifying unilateral devolution. 

Provinces could expand metro police under Section 99 (ministerial assignments) or Section 206(3) (provincial legislation), interpreting powers impliedly to include crime intelligence and ballistics. If challenged, defend with necessity: dismantling effective local infrastructure would cause greater harm. Critics like Dan Mafora argue explicit legislation is required, but van Staden counters that courts won't uphold narrow interpretations amid a crisis. The Law Enforcement Advancement Plan (LEAP) proves potential: it reduced murders by 14.9% in targeted hotspots from 2023-2024, yet lacks investigative teeth and charge rights of the SAPS. Extending LEAP could significantly increase the Anti-Gang Unit’s R17 million budget, as seen with R46 million for school anti-gang programs, enhancing forensic capabilities to reduce backlogs (per ISS analyses) and boosting community forums to disrupt gang operations through local intelligence.

Implementation requires bold steps. 

First, swarm hotspots with visible policing - van Staden's "military occupation" analogy - using auxiliaries and private funding from businesses eager to donate "state-of-the-art crime labs." If the National Prosecuting Authority (NPA) refuses dockets, establish private prosecutions under the Criminal Procedure Act, seeking mandamus orders: a court order compelling a public authority or official to perform a public or statutory duty they have failed or neglected to perform. Litigate challenges, presenting audits from the ISS to certify metro readiness. For other provinces, adapt: Gauteng could pilot in hijacking-prone areas. Hold non-binding referendums to build mandates, as 63% of Western Cape voters support greater autonomy (2025 Victory Research poll). Risks include interdicts or GNU tensions, but inaction guarantees failure, as van Staden warns.

Premier Alan Winde and Hill-Lewis must act now - roll up sleeves, as van Staden urges, or face electoral reckoning. 

Devolution via necessity isn't rebellion; it's reclaiming federalism's promise under the Constitution. 

How many more lives must be lost before provinces seize their rightful powers? The Western Cape can lead, proving capable governments can rescue South Africa from its crime abyss.

*Dr. Swart has a PsyD in Forensic Psychology and an MA in Military Studies. She is an exco member of the Cape Independence Advocacy Group.