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Following the publication of its Draft Western Cape Community Safety Bill, 2012 for public comments by the Western Cape Provincial Government, a legal opinion from experts in the field of constitutional law was obtained by the Minister of Police, Nathi Mthethwa.

Having considered the provisions of the Bill against the backdrop of the Constitution of South Africa with particular reference to Chapter 11, we are of the opinion that the Bill in its entirety is not constitutional and falls outside the power of the Western Cape Executive to introduce the type of legislation contemplated in the Bill.

The Minister has communicated this concern to the MEC for Community Safety in the Western Cape, Dan Plato. Should the Bill go ahead the Minister has informed the MEC that the Ministry will challenge the Constitutionality of the Bill.

“As such we will not support the Bill in its current form; and if it proceeds to the Provincial Legislature, I have instructed the Civilian Secretariat for Police to make formal submissions regarding this issue,” stated the Minister.

The legal opinion provided to the Minister considered the powers of the Western Cape Provincial Executive to introduce legislation relating to matters falling within the competency of the Minister of Police under Chapter 11 of the Constitution.

Additionally, the legal opinion looked at the responsibilities or “entitlements” of the provincial executive under section 206 of the Constitution read with Schedules 4 and 5 of the Constitution; the relationship between section 206(3) and section 208 of the Constitution and the mandate and functions contained in the Civilian Secretariat for Police Service Act, 2011.Lastly, whether the provisions of the Bill encroach on the powers and functions contained in the Civilian Secretariat Act.