Cape Town, stop waiting on ANC – fight crime with your own hands

Key topics:DA accused of relying on ANC approval for crime-fighting powersHill-Lewis calls for SAPS Act change to let metro police investigateCritics urge Cape Town to act directly, not plead with Pretoria.Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Martin van Staden*.As mothers continue to bury their children on the Cape Flats – perhaps the most violent place on the continent – the local Cape Town government has its finger permanently pointed in the direction of Pretoria.“Do not blame us – this is the responsibility of the South African Police Service.”Almost imperceptibly, this government thereafter whispers, “In the name of public safety, please vote for the Democratic Alliance (DA) in the next local election…”One of my enduring frustrations with the DA and its governments is the opportunistic relationship they have with realpolitik.If one were to take a high-ranking DA official aside and dress them down for abandoning core liberal values, they will launch into a long spiel about how being “pragmatic” is necessary given the realities of South African politics. Take your pick: voters expect some sort of racial redress policy, federalism must be delayed given the collapse of provinces and municipalities, and the world has moved on from fossil fuels so government must enforce a green agenda.“We cannot be idealists,” the DA tells us.On the other hand, when one brings other uncomfortable realities to the DA – in this case, the fact that policing will not be devolved by the African National Congress (ANC)’s police ministers or plurality in Parliament to DA governments – the DA will carry on pleading for legislative and policy change. Realpolitik flies out the window and is replaced with a hopelessly naïve and idealistic optimism about what they can achieve through persuasion and polite letters.Hill-Lewis’ pleaGeordin Hill-Lewis, the Executive Mayor of Cape Town, is the latest manifestation of this.When criticised for his attacks on his ratepayers, the answer he provides approximates this: Well, that’s just the way the cookie crumbles in South Africa.But then he takes to the pages of the Daily Maverick to explain in an amusingly condescending tone that there is a very simple solution to empower local Cape Town police: national legislators just have to tweak a piece of legislation..Read more:.Top cop vs ANC: Crime, power, and betrayal - WSM.Hill-Lewis argues that the barrier to solving out-of-control crime in the Cape is “remarkably, just two missing words in our law.” He argues that currently, “municipal police may ‘prevent’ crime but not ‘investigate’ it.” The solution, therefore, is for Parliament to amend section 644E(c) of the South African Police Service (SAPS) Act to include the words “and investigate,” and Bob’s your uncle: problem solved!“Condescending” because this plea it is worded in a way that makes it appear like ANC legislators do not already know this, and that Hill-Lewis has revealed something new.The reality, of course, is that the ANC is ideologically opposed to political decentralisation in principle. There is no gap in understanding or breakdown in communication here: it is a difference in worldview. That is the way the cookie crumbles in South Africa.For Hill-Lewis and his party to carry on pleading at the doors of Luthuli House, while the corpses pile up on the Cape Flats, is horrifyingly irresponsible.Ian Cameron, the DA Chairperson of Parliament’s Portfolio Committee on Police, recently revealed on X that some 40 people were murdered in August alone. Murder cases more than doubled in Mfuleni, a Cape township. Cape Flats police stations report sharp increases in murder cases compared to last year.Doctrine of implied powersThe ANC will not amend the SAPS Act to include the words “and investigate” crime alongside metro police’s existing power “prevent” crime. Perish the notion and save yourself the worry. The best time for this to have happened was with the formation of the Government of National Unity (GNU), when the DA perhaps for the first time in its history had real leverage. But the party squandered the leverage, and re-installed the ANC in government without a singular precondition.But local Cape Town police do not need the ANC to do anything. They can just get on with it themselves.The doctrine of implied powers is an age-old phenomenon inextricably linked to legislative lawmaking.If a piece of legislation provides, “The regulator must cause a database to be established,” then that necessarily includes doing whatever is necessary to establish the database: procuring equipment, hiring staff for the task, training, and so forth. The legislation need not spell out each necessarily implied thing that must occur before the legislative requirement can be fulfilled.Why, then, has the DA been so eager to read a handicap into the SAPS Act?Hill-Lewis takes the initiative in declaring and announcing that municipal police “may not” investigate crime, and that its “officers [may not] take witness statements, conduct forensic tests, and hand over watertight dockets to prosecutors”.This is not spelled out in the SAPS Act – it is something that the DA and its lawyers have read into the Act. Perhaps some senior ANC-appointed cops told the DA this, but neither the DA nor its governments are legally subservient either to the SAPS or the central government. South Africa is a federation, and Hill-Lewis’ democratic mandate is bestowed by the people of the Cape.It follows that the “prevention” of crime must be read as a general policing power of competence. Indeed, all police, everywhere in the world, are dedicated to the prevention of crime – and this includes the power of investigation and much besides.At every step the DA and its municipal functionaries should have treated investigative power as inherent in the power to prevent crime, and acted in accordance with that understanding.The SAPS might object, and the Minister of Police might object – in fact, they almost certainly would – but then one goes to court and litigates the matter out. To my knowledge, the meaning of the words “prevention of crime” in the SAPS Act has not seen the inside of the Constitutional Court.If Cape Town authorities arrive in the Constitutional Court with a fully-equipped, fully-staffed, highly competent detective bureau – with all the trimmings, like a crime lab – it will be exceedingly unlikely for the Court to order that all this infrastructure be dismantled and that an unreasonably narrow construction of “prevention” be adhered to.Courts and prosecutorsSome have said in the past that if local cops begin unilaterally investigating crime, the National Prosecuting Authority (NPA) will not accept any evidence gathered and refuse to prosecute.Why this statement is made against decentralisation rather than against the integrity of the NPA is anyone’s guess. Of course, if the NPA were to do such a thing, the prosecutor in question must immediately be reported to the Legal Practice Council so they never practice law privately in the future, and a writ of mandamus must be sought from the courts to compel the NPA to prosecute.Such a case would need to include sworn testimony from safety and security experts around the world that the local Cape Town law enforcement institutions are as well-equipped, trained, and staffed as – if not categorically better than – the SAPS. Getting the Institute for Security Studies or any number of internationally acclaimed consulting firms to certify that City’s police have everything in order, would be worth its weight in gold to a good judge.No reasonable court is going to allow the NPA to get away with this..Read more:.Right of reply: Cape Town’s quiet revolution is one of hope for all - Geordin Hill-Lewis.And if the courts, however, do prove unreasonable, a refusal to prosecute by the NPA represents a massive opportunity for even further decentralisation.It effectively allows Cape Town to establish its own citywide private prosecutions unit that gobbles up whatever the NPA does not want. Yes, private prosecutions must be in the name of the victim (not the City) – but that is a question of form, not substance.It has also been pointed out that certain powers, like executing search warrants, need to be legislatively bestowed and cannot be assumed. Courts, it is said, will be reluctant to accept evidence acquired essentially “illegally” by metro cops.I do think an argument can be sustained either way – that any authority bestowed on the police “to prevent crime” must necessarily include the powers therewith associated; and that the police must act within defined legislative boundaries – but that there is only one applicable reality here:The ANC amending the SAPS Act to include the words “and investigate” would not by itself grant the sought after powers.If there is a criminal case before the High Court, and the Cape Town metro police searched, seized, and processed evidence in connection with the case under the law as it stands now, and the judge is moved to reject the seizure because the SAPS Act or Criminal Procedure Act does not explicitly bestow on the metro police the power to do so, then adding the words “and investigate” to the SAPS Act does not change this equation. The explicit grant of power that the SAPS has would still not be expanded to the metro cops.Politics and financesThere are political and financial reasons that lead the DA to point to Pretoria, too, and it seeks to use the cover of a legislative impasse to mask it.Crime is regarded as a tricky subject, and the DA knows well how emotionally voters react to failures to combat this scourge. The DA is likely very worried that if it acknowledges that it has real power to combat crime in the Western Cape – and fails – that it will be viciously punished at the polls.This is a reasonable worry, but overestimates how complex solving crime is.There is a neat trick that anyone in the country can try: take one private armed response firm reaction car, place two well-armed men inside it, and permanently park it right in front of whatever petrol station has a tendency to being periodically robbed. The result will shock you: chances are that the petrol station will not be robbed again, because most criminals care very much about resistance and bank almost entirely on the assumption that there will be none.This is why “visible policing” rightly gets a lot of rhetorical attention – though little follow-through.If Cape Town swarmed the Cape Flats with a veritable army of officers and placed them on every street corner, all crime except for those associated with hardened gangs will disappear virtually overnight. And those aspects that do not disappear will be squashed because of the now-nearby officers ready to react swiftly.Given the scale of violent crime in this small part of the country, this must resemble a military occupation that will no doubt be welcomed by locals similarly to the Allies marching into Nazi-occupied Europe.There is nothing complicated about this, though it will of course cost money. And this brings us to the next DA hangup.The DA believes that it must receive more money from the central government to combat crime in its jurisdictions. This is a correct assumption, but pigs cannot yet fly, and the ANC is not going to willingly let DA jurisdictions outshine the rest of the country in something so important as crime prevention.This means the DA needs to maak ‘n plan.There are likely dozens, if not hundreds, of exceedingly wealthy businesspeople in DA jurisdictions who would be more than happy to directly fund an expanded local criminal justice system – if Hill-Lewis can guarantee this money will not end up in one of his extractive rent-seeking “social” policies. Imagine how pleased a big business would be to count among its corporate social investments “donating the state-of-the-art Cape Town Crime Laboratory to the people of South Africa”!Additionally, there will be hundreds – perhaps thousands – of community members willing to volunteer for a local metro police auxiliary division. They could be told to equip themselves with their own licenced firearms and vehicles, with the City only providing training, uniforms, and badges. This would be a game-changer.I know critics of my position will rush in this respect to point me to the Law Enforcement Advancement Plan (LEAP) that the City and Western Cape have undertaken.This is a very commendable initiative whose notability is regrettably and fatally undermined by the fact that violent crime remains out of control in various Cape areas.If I need to state it bluntly: LEAP officers do not appear to be arresting or killing (yes!) nearly sufficient numbers of gangsters and murderers and rapists. A “steady as she goes” attitude appears to predominate in the minds of all South African politicians – including the DA – quite in spite of the country consistently topping the global rankings in violent crime.Whenever there is a murder or a rape in the Cape Flats, the first question that needs to be posed is “where was the closest LEAP officer and why was he so far away?”At some point the answer to this question must approximate “the LEAP officer was ten metres away,” at which point the question need no longer be asked – because the problem would by that stage be solved.Even if it turns out that investigation per se is something local police may simply not do, it is visible policing where the real solution lies.Violent crime does not, in general, occur in the presence of or nearby to an armed protector.If the DA has received closure that its governments cannot engage in police investigation, it should go whole-hog into blanketing (not sprinkling) the most violent areas in the City with visible and present officers who would always be mere seconds away from an incident.No guarantees except one: failure, if you do nothingAm I saying that Cape Town taking these tangible steps guarantees success? That the courts will necessarily take the City’s side?Of course not.That is not the point. The point is that the City has sought to plead, and pleading with the ANC will not work.Hill-Lewis himself admits that, “Every delay […] comes at a cost measured in lives.” While he is referring to the delay in legislative changes, the locus of control is internal: it is he and his government who are delaying taking meaningful action, and instead waiting for an ideological change of heart to dawn on the ANC. This will never come.Negotiation might have worked during the formation of the GNU, when the Free Market Foundation strongly recommended to the DA that decentralisation should be a precondition to coalition.The DA did no such thing. The DA had leverage then, but the DA has no leverage now. It only has persuasive arguments, and the ANC is not an entity open to persuasion.The party’s continued finger-pointing to Pretoria has never impressed those Cape Town voters who bear the brunt of violent crime. The party really does need to liberate itself from its ANC-dependency and simply roll up its sleeves.Doing rather than asking has the potential of being vetoed and not working, but there is also a chance of it working. Unlike pleading with the ANC, this approach is not guaranteed to failure. Not trying is irresponsible, and an unacceptable betrayal of the party’s constituents.At least if the courts make it clear that DA-controlled governments are not allowed to fight crime, the DA will have firmer ground to stand on when it tells these constituents that fighting crime is Pretoria’s responsibility. It will also provide a measure of closure that could redirect public order energies elsewhere, like the City taking some private-sector steps towards a solution..*Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR). Martin also serves as the Editor of the IRR’s History Project and its Race Law Project, and is an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com..This article was first published by Daily Friend and is republished with permission

Cape Town, stop waiting on ANC – fight crime with your own hands

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