PROCLAMATION
BY THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA

No. 5 OF 1995

RATIONALISATION OF THE SOUTH AFRICAN POLICE SERVICE

Under the powers vested in me by section 237 (3) of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), I hereby take the legislative measures as set out in the Schedule hereto.

Given under my Hand and the Seal of the Republic of South Africa at Pretoria this Twenty-fifth day of January, One thousand Nine hundred and Ninety-five.

T. M. MBEKI,
Acting President.

By Order of the President-in-Cabinet:

F. S. MUFAMADI,
Minister of the Cabinet.

SCHEDULE

INDEX

1. Definitions.
2. Appointment of National Commissioner.
3. Term of office of National Commissioner.
4. Appointment of Provincial Commissioners.
5. Term of office of Provincial Commissioners.
6. Loss of confidence in National or Provincial Commissioner.
7. Inefficiency of and misconduct by National or Provincial Commissioner.
8. Terms and conditions of service of National and Provincial Commissioners.
9. Powers, duties and functions of National and Provincial Commissioners.
10. Powers, duties and functions of members of Service.
11. Regulations.
12. Transitional arrangements.
13. Designation as member of the Service.
14. Rationalisation, accommodation and redundancies.
15. Effective date of rationalisation.
16. Police agreements with other states or territories.
17. Limitation of actions, notification of action and cause thereof, and service of certain process.
18. Short title. 

1. DEFINITIONS

In this Proclamation, unless the context otherwise indicates-

"Board of Commissioners" means the National Commissioner and the Provincial Commissioners, or their nominees, acting in a meeting as contemplated in section 237 (2) (aA) (ii) of the Constitution;

"Constitution" means the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993);

"fixed establishment" means the posts which have been created for the normal and regular requirements of the Service but does not include prerationalised posts;

"Force" means a police force or police service established in terms of a law referred to in Annexure A to this Proclamation;

"member of the Executive Council" means the member of an Executive Council referred to in section 217 (1) of the Constitution;

"Minister" means the Minister of Safety and Security;

"National Commissioner" means the National Commissioner of the Service referred to in section 2;

"Police Act" means the Police Act, 1958 (Act No. 7 of 1958), and Regulations thereunder;

"pre-rationalised", in relation to any post, area or boundary, means any post, area or boundary as it existed or applied immediately prior to any rationa- lisation scheme or arrangement effected in respect thereof in terms of a provision of this Proclamation;

"Provincial Commissioner" means a Provincial Commissioner referred to in section 4;

"Public Service Act" means the Public Service Act, 1994 (Proclamation No. 103 of 1994);

"Regulation" means a regulation made or deemed to have been made under this Proclamation;

"Service" means the South African Police Service contemplated in section 214, read with section 236 (7) of the Constitution;

"South African Police" means the South African Police established in terms of the Police Act;

"this Proclamation" includes any Regulation made or National Order or instruction issued thereunder.

2. APPOINTMENT OF NATIONAL COMMISSIONER

There shall be a National Commissioner of the Service who shall be appointed by the President in terms of section 216 (2) (a) of the Constitution.

3. TERM OF OFFICE OF NATIONAL COMMISSIONER

Subject to the provisions of this Proclamation, a per- son who is appointed as National Commissioner shall occupy that office for a period of five years from the date of his or her appointment, or such shorter period as the President may determine.

4. APPOINTMENT OF PROVINCIAL COMMISSIONERS

There shall be a Provincial Commissioner for each province within the Republic who shall be appointed by the National Commissioner in terms of section 218 (1) (b)of the Constitution.

5. TERM OF OFFICE OF PROVINCIAL COMMISSIONERS

Subject to the provisions of this Proclamation a per- son who is appointed as Provincial Commissioner shall occupy that office for a period of five years from the date of his or her appointment or such shorter period as the National Commissioner, in consultation with the relevant member of the Executive Council, may determine.

6. LOSS OF CONFIDENCE IN NATIONAL OR PROVINCIAL COMMISSIONER

(1)If the National Commissioner has lost the confidence of the Cabinet, the President may appoint a board of inquiry consisting of a judge of the Supreme Court, as chairperson, and, such other suitable person or persons, to-

1. inquire into the circumstances that led to the loss of confidence;
2. compile a report; and
3. make recommendations.

(2)(a) If a Provincial Commissioner has lost the confidence of the relevant Executive Council the relevant member of the Executive Council may notify the Minister of the reasons therefore.

(b) The Minister shall, where he or she deems it necessary and appropriate, refer the notice to the National Commissioner.

(c) The National Commissioner shall, upon receipt of the notice, appoint a board of inquiry consisting of not more than three members, of which the chairperson shall be qualified to be admitted as an advocate or attorney and who, for cumulative periods of at least ten years after having so qualified -

(i)practised as an advocate or an attorney; or

(ii)lectured in law at a university, to-

(aa) inquire into the circumstances that led to the loss of confidence; (bb) compile a report; and (cc) make recommendations.

(3)(a) The President or National Commissioner, as the case may be, may suspend the Commissioner concerned after a hearing, pending the outcome of the inquiry referred to in subsection (2) (c).

(b) A Commissioner who is suspended in terms of paragraph (a), shall, during the period of suspension, be entitled to any salary, allowance, privilege or benefit to which he or she is under normal circumstances as a member entitled unless the President or the National Commissioner, as the case may be, determines otherwise.

(4)If a board of inquiry is appointed in terms of subsection (1) or (2), the Commissioner concerned shall be notified in writing thereof, and thereupon he or she has the right to -

1. make written representations to the board;
2. be present at the inquiry;
3. be assisted or represented by another person or legal adviser;
4. give evidence; and
5. either personally or through a representative-
   1. be heard;
   2. call witnesses;
   3. cross-examine any person called as a witness; and
   4. have access to documents relevant to the inquiry.

(5)The board of inquiry shall determine its own procedures

(6) (a) At the conclusion of the inquiry, the board shall submit its report-

(i) (aa) to the President, in the event of an inquiry in terms of subsection (1), or

(bb) to the National Commissioner, in the event of an inquiry in terms of subsection (2), and

(ii) to the Commissioner concerned.

(b) The report referred to in paragraph (a) may recommend-

(i)that no action be taken in the matter;

(ii)that the Commissioner concerned be transferred to another post or be employed additional to the fixed establishment;

(iii)that his or her salary or grade or both his or her salary and grade be reduced to an extent recommended;

(iv)that action be taken against him or her as prescribed in paragraph (b) as well as paragraph (c);

(v)that his or her services be terminated;

(vi)that any other appropriate steps (including the postponement of any decision by the President or the National Commissioner, as the case may be, consequent upon any recommendation in terms of this subsection, for a period not exceeding 12 calendar months), be taken.

(7) The President or National Commissioner, as the case may be, may, upon receipt of such recommendation, terminate the services of the Commissioner con- cerned, or take any other appropriate action.

(8) If a Provincial Commissioner has lost the confidence of the National Commissioner, the provisions of subsections (2) (c), (3), (4), (5), (6) and (7) shall mutatis mutandis apply.

(9) In the event of a commissioner's services being terminated pursuant to an inquiry resulting from a finding of a loss of confidence in such a Commissioner, or pursuant to a finding of a loss of confidence referred to in section 7 (3), his or her term of office shall be deemed to have expired on the day immediately preceding the date on which such termination takes effect.

7. INEFFICIENCY OF AND MISCONDUCT BY NATIONAL OR PROVINCIAL COMMISSIONER

(1)Subject to the provisions of this section, the provisions of subsections (1) to (8) of section 6 shall mutatis mutandis apply to inquiries into allegations of misconduct by a National or Provincial Commissioner respectively, or into his or her fitness for duties or capability of carrying them out efficiently.

(2)The board of inquiry constituted in terms of subsection (1) shall make a finding as to the alleged misconduct, or alleged unfitness for duties or incapability of carrying them out efficiently, as the case may be, and make recommendations as contemplated in subsection 6 (b) of section 6.

(3)Where the Cabinet, the relevant Executive Council or the National Commissioner, as the case may be, loses confidence in the Commissioner con- cerned pursuant to an inquiry in terms of this section, the President or National Commissioner, as the case may be, may take any appropriate action, which may include terminating the services of the Commissioner concerned without appointing a board of inquiry in terms of section 6.

8. TERMS AND CONDITIONS OF SERVICE OF NATIONAL AND PROVINCIAL COMMISSIONERS

(1) The salary, salary scale and allowances in respect of the National and Provincial Commissioners shall be determined by the Minister in consultation with the Public Service Commission.

(2) Medical and leave benefits in respect of the National and Provincial Commissioners shall be in accordance with the corresponding benefits from time to time applicable to members of the South African Police in terms of the Police Act, subject to rationalisation in terms of this Proclamation or any other law.

(3) The provisions of section 12 (2) (e) or section 12 (2)(g) of this Proclamation shall, as the case may be, apply to the National and Provincial Commissioners.

(4) (a) Subject to this Proclamation a National or Provincial Commissioner has the right to retire from the Service, and he or she shall be so retired at the expiry of the term contemplated in sections 3 and 5.

(b) If such a Commissioner retires or is retired in terms of subparagraph (a), he or she shall be deemed to have been so retired in accordance with section 17 (2)(b) of the Public Service Act.

(c) The provisions of section 16 (2) (c) of the Public Service Act, 1994, shall mutatis mutandis apply to such a Commissioner.

9. POWERS, DUTIES AND FUNCTIONS OR NATIONAL AND PROVINCIAL COMMISSIONERS

(1)Subject to the Constitution, this Proclamation, and the directions of the Minister, the National Commissioner shall -

(a)exercise executive command of the Service;

(b)rationalise the forces in accordance with the provisions of section 237 of the Constitution;

(c)be responsible for the functions mentioned in sections 218 and 219 of the Constitution, as may be applicable, and have the corresponding authority and power to perform any such function; and

(d)preside over the Board of Commissioners (or appoint an ad hoc nominee in his or her stead), and convene such Board at such time and place as may be convenient.

(2)Without derogating from the generality of subsection (1), the powers, duties and functions referred to in that subsection, may include the power, duty and function to-

1. determine the fixed establishment of the Service at national and provincial level, and the number and grading of such posts;
2. determine after consultation with the Board of Commissioners the distribution of the numerical strength of the Service;
3. organise or reorganise the Service on a national and provincial level;
4. delimit, change or abolish any pre-rationalised area or boundary applicable to the organisation of the Service; and
5. perform any legal act or act in any legal capacity, on behalf of the Service.

(3) Subject to the Constitution, this Proclamation and the executive command of the National Commissioner, a Provincial Commissioner-

1. shall exercise command of the Service resorting under his or her jurisdiction in the relevant province;
2. shall assist in the rationalisation and amalgamation of the forces in accordance with section 237 of the Constitution, and shall be responsible for executing and overseeing the rationalisation process in the relevant province;
3. may delimit any area in a province as a subprovince and determine the boundaries thereof as he or she may deem necessary for the purposes of the organisation of the Service under his or her jurisdiction, and may at any time alter such boundaries; and
4. shall determine the distribution of the numerical strength of the Service under his or her jurisdiction in a province among the different subprovinces, station areas, offices and units.

(4)(a) The responsibility for any function referred to in section 219 of the Constitution, may, subject to the Constitution, be assigned by Notice in the Gazette to a Provincial Commissioner by the National Commissioner, after consultation with the relevant member of the Executive Council of that Province.

(b) Such an assignment may be effected, notwithstanding the fact that the rationalisation of the Service may not be completed in the relevant province:

Provided that-

1. the National Commissioner is satisfied that the Provincial Commissioner concerned has the necessary administrative and other capacity at his or her disposal to exercise and perform the relevant powers and functions; and
2. that the rationalisation and amalgamation pro- cess with respect to the Service in that province warrants such assignment.

(5) The Provincial Commissioner shall be responsible for the functions assigned to him or her in terms of subsection (4) and have the corresponding authority and power to exercise any such function so assigned, subject to the directions of the relevant member of the Executive Council with respect to any such function mentioned in section 219 (1) of the Constitution, and subject to the directions of the National Commissioner with respect to any such function mentioned in section 219 (2) of the Constitution.

(6) The Provincial Commissioner or his or her nominee shall serve on the Board of Commissioners in accordance with the Constitution.

(7) Any power vested in the National Commissioner in terms of the Constitution, this Proclamation or any other law, may, subject to the Constitution, be delegated in writing by the National Commissioner to any member of the Service or other person in the employment of the Service or a board or body established or deemed to have been established under this Proclamation, who shall exercise that power subject to the direction, reservations or conditions of the National Commissioner: Provided that the powers referred to in sections 4, 5, 6 and 7 of this Proclamation and section 15 of the Exchequer Act, 1975 (Act No. 66 of 1975), may not be delegated.

(8) The provisions of subsection (7) shall, subject to the Constitution, apply mutatis mutandis to the delegation in writing by a Provincial Commissioner, of a power vested in him or her in terms of the Constitution, this Proclamation or any other law, including such power vesting in him or her upon an assignment in terms of subsection (4) or a delegation in terms of sub- section (7), subject to any reservation, direction or condition applicable to such delegation or assignment.

(9) (a) The National Commissioner may issue orders and instructions concerning all matters which -

(i)in terms of the Constitution or this Proclamation shall or may be prescribed by him or her;

(ii)are not inconsistent with the Constitution or this Proclamation and which he or she deems necessary to achieve the objects of this Proclamation, and which are appropriate for him or her to take responsibility for and which are necessary for efficient administration;

(iii)are necessary to ensure the maintenance of an impartial, accountable, transparent and efficient police service; or

(iv)are necessary to provide for the establishment and maintenance of uniform standards of policing at all levels.

(b)Orders referred to in paragraph (a) which are of a permanent nature and applicable to all members of the Service, including members under the command of a Provincial Commissioner, shall be known and issued as "National Orders".

(c) The Provincial Commissioner may also issue orders and instructions which are not inconsistent with this Proclamation or National Orders, which shall be applicable only to members under his or her command.

10. POWERS, DUTIES AND FUNCTIONS OF MEMBERS OF SERVICE

Any law, which confers any power or imposes any duty in a part of the National Territory on a member of any force, shall be deemed to confer such power and impose such duty in that part on every member of the Service.

11.REGULATIONS

(1)Subject to the provisions of this Proclamation, the Minister may make regulations regarding -

(a)the exercise of powers and the performance of duties and functions by members of the Service;

(b)the enrolment, appointment, promotion and transfer of members of the Service;

(c)suspension, dismissal and matters concerning discipline and grievances;

(d)the training, conduct and conditions of service of members of the Service;

(e)the general management, control and maintenance of the Service;

(f)returns, registers, records, documents, forms and correspondence;

(g)matters concerning labour relations;

(h)a code of conduct for the Service;

(i)the establishment and distribution of the numerical strength of the Service and the establishment of different categories of personnel, components, ranks, designations and appointments in the Service: Provided that the Minister shall designate different categories of ranks of corresponding nature in terms of this Proclamation and the Constitution;

(i)the standards of physical and mental fitness and the medical examination of members of the Service;

(ii)the medical, dental and hospital treatment of such members and their fami- lies;

(k) (i) the establishment, management and control of a scheme to provide for medical, dental and hospital treatment of the provision of medicines, other medical requirements and medical aids to, and the transportation during their indisposition of -

(aa) members of the Service and members of their families;

(bb) members of the Service who have retired or retire on pension, and members of their families; and

(cc) the families of members of the Service who have died;

(ii) the class of members of the Service or other persons who shall be or may become members of such a scheme;

(iii)the portion of the costs of the provision of such treatment, medicines, medical requirements, medical aids or transportation which shall be payable under such a scheme by any member or class of members of that scheme;

(iv)the termination of membership of such a scheme;

(v)the rights, privileges and obligations of members of such a scheme;

(vi)the vesting in such a scheme of assets, rights, liabilities or obligations, or the disposal in any other way of the assets, of any fund established by regulations made under this paragraph; and

(vii) generally, all matters reasonably nec- essary for the regulation and operation of such a scheme;

(l)resignation or reduction in rank of members of the Service;

(m)grading of posts and/or the posting, the remuneration structure, including allowances or benefits to which personnel appointed in terms of this Proclamation will be entitled;

(n)the establishment and maintenance of training institutions or centres for members of the Service and the instruction, training, discipline and control of members at such institutions or centres;

(o)the management and accessibility of laboratories established for the purposes of the analysis of forensic evidence as well as fees payable for services rendered in that regard;

(p)the attendance by members of the Service of instructional or training courses at institutions or centres other than those established and maintained in terms of this Proclamation;

(q)the establishment and control of funds of clubs;

(r)the deductions to be made from the salaries, wages or allowances of members of the Service;

(s)the provisioning of the Service including the provision of stores and equipment required for the Service, and the care, safe custody and maintenance thereof;

(t)the requirements for enrolment, training, ranks, promotion, discipline, discharge, uniform and equipment, conditions of service and reporting for service of members of the Reserve Police Service or anything which is deemed necessary to establish and maintain such a Service;

(u)the design, award, use, care, loss, forfeiture and restoration of any decoration or medal instituted, constituted or created under this Proclamation, and its bar, clasp or ribbon;

(v)the design of an official flag and coat of arms for the Service;

(w)the dress and clothing of the Service, and the control or disposal of any article of uniform or equipment by any member of the Service;

(x)the utilisation by the Service of property forfeited to the State, abandoned or lost, or unclaimed property found or taken charge of, or other property taken charge of by a member of the Service;

(y)the retention of rank on retirement from the Service and the award of honorary ranks;

(z)the occupation by members of the Service of quarters, whether owned or rented by the State or placed at its disposal;

(aa)the participation in sport and recreational activities by members;

(bb)the procedures to be applied in the preservation of internal security;

(cc)the prioritisation of investigation or prevention of crime in consultation with the relevant departments or authorities;

(dd) the fair distribution and accessibility of police services and police resources to all communities;

(ee) the management of criminal records, the gathering of crime data and statistics and the reporting thereof to the National Commissioner;

(ff) the circumstances under which the commission of any officer shall be deemed to have been cancelled;

(gg) the necessary consequential adjustments in relation to command, control, powers and duties, by virtue of the appointment or transfer in terms of the Public Service Act or in terms of this Proclamation, of members or employees in or to the South African Police Service;

(hh) the definition of offences against duty and discipline, and generally the control and discipline of the Service;

(ii)the assemblage of boards of enquiry constituted under this Proclamation, the procedure of such boards and the attendance of witnesses thereat; and

(j)all matters generally which are necessary or expendient for the achievement of the purposes of this Proclamation.

(2) Any provision of a law mentioned or referred to in section 12 (2) which remains in operation in terms of that section, containing a provision which is inconsistent with a regulation made under subsection (1), shall, on the date of coming into operation of such regulation, be deemed to be repealed under section 12 (1) to the extent of such inconsistency: Provided that the provisions of paragraph (d) of the said section 12 (2) shall apply mutatis mutandis to any such provision and the provision of any such regulation, respectively, and, provided further, that where any such regulation is dis- approved by resolution contemplated in subsection (3) (a), any such repeal shall, with effect from the date specified in the resolution, be deemed not to have been effected.

(3) (a) A regulation made under this Proclamation shall be in force unless and until Parliament, by resolution, disapproves of the regulation in which event the regulation shall lapse with effect from a date to be specified by the Speaker by Notice in the Gazette as determined by such resolution.

(b) The lapsing of a regulation in terms of this subsection shall not affect the validity of anything done under the regulation prior to the date mentioned in the resolution.

(c) The provisions of this subsection shall not affect the power of the Minister to make a new regulation regarding the subject dealt with by a regulation that has lapsed in terms of paragraph (a).

12. TRANSITIONAL ARRANGEMENTS

(1) Subject to the provisions of subsection (2), the laws mentioned in Annexure A are repealed to the extent indicated in the third column of that Annexure.

(2) Notwithstanding the repeal of the laws referred to in subsection (1), but subject to the provisions of this Proclamation and the Constitution -

(a)any force, Reserve Police Force or any administration, off ice or other institution established by or under or functioning in accordance with any such law, shall continue to so exist and function until abolished by direction of the National Commissioner or otherwise dealt with under this Proclamation;

(b)any person employed immediately before the commencement of this Proclamation by a force or other institution referred to in paragraph (a), shall, with recognition of his or her period of service by virtue of such employment, continue in such employment (which is referred to hereinafter as employment in a prerationiaised post) until he or she is dealt with in terms of this Proclamation, and -

(i)the terms and conditions of service and accrued benefits;

(ii)the powers, duties and functions; and

(iii)the labour relations dispensation including discipline and grievance measures, procedures and proceedings,

applicable to him or her immediately before such commencement shall continue to apply to him or her subject to any alteration thereof in terms of this Proclamation;

(c) (i)any person employed on the day immediately before the commencement of this Proclamation by a force or other institution referred to in paragraph (a), who was a contributor to a pension, superannuation or provident fund or scheme by virtue of such employment on such date, shall remain without a break in his or her service, a member of such a pension, superannuation or provident fund or scheme and shall not be entitled to the payment of any benefits from such fund or scheme merely by virtue of the application of this section; and

(ii)in the application of the laws applicable to a fund or scheme referred to in subparagraph (i), the Service shall be deemed to be the relevant employment institution for any such a person;

(d)anything done, including any regulation made or standing order issued or other administrative measure taken, or any contract entered into or any obligation incurred under any law mentioned in Annexure A, which is capable of being done, made, taken, issued, entered into or incurred under any provision of this Proclamation shall be deemed to have been done, made, taken, issued, entered into or incurred, as the case may be, under such corresponding provision until amended, abolished, withdrawn or repealed under or by virtue of a provision of this Proclamation;

(e)any appointment in the fixed establishment of the Service shall be effected in terms of the provisions of the Police Act and regulations thereunder as applicable on the day before the commencement of this Proclamation, which shall in such event mutatis mutandis be applicable in the whole of the National Territory to the relevant member, as well as this Proclamation, the President, the Minister, the National Commissioner and the Service, respectively, with respect to-

(i)procedures and requirements for appointment;

(ii)appointment and commission;

(iii)terms and conditions of service;

(iv)powers, functions and responsibilities;

(v)labour relations dispensation, including discipline and grievance measures, procedures and proceedings, subject to any alteration, replacement or amendment of such provisions in terms of or by virtue of the provisions of this Proclamation;

(f)a commissioner of a force established in terms of a law referred to in Annexure A, shall exercise the powers and perform the functions conferred upon him or her in terms of subparagraph (b), subject to the control and directions of the National Commissioner, who may reverse any decision arrived at by such Commissioner and may himself or herself, in general or in any specific matter, exercise any part of such power and perform any such function;

(g)a person employed in terms of this Proclamation in a pre-rationalised post in the Service on the day before his or her appointment in a post in the fixed establishment of the Service, shall, with recognition of his or her period of service by virtue of such employment-

(i)be deemed to be appointed in terms of paragraph (e) and if such a person is an officer, shall be deemed upon such appointment to have been appointed by commission in terms of section 3 of the Police Act: Provided that the retirement age and rights applicable to such person shall remain unchanged;

(ii)remain a member of a fund or scheme referred to in paragraph (c) and shall remain a member of such fund or scheme without a break in his or her service, and the provisions of paragraph (c) shall mutatis mutandis be applicable to such membership;

(iii)retain the rank, accrued leave and other accrued benefits, applicable to such person on the day before appointment to such post;

(iv)not be less favourably remunerated in salary and salary scale, applicable to such person on the day before the appointment to such post;

(h)all provisions creating an offence, and providing for penalties or any other matter in connection therewith, in any law referred to in Annexure A and in force immediately prior to the coming into operation of this Proclamation, shall continue to be in force: Provided that the aforegoing provisions shall not apply where an offence is so created in respect of another provision of such law which is not kept in force in terms of this subsection, except where a provision corresponding to such last-mentioned provision is contained in this Proclamation or kept in operation in terms thereof, in which case any reference in the provision creating the offence to such last-mentioned provision shall be construed as a reference to such corresponding provision;

(i)any cause of action that arose against a force established by a law referred to in Annexure A, before the commencement of this Proclamation, will be actionable against the Service, subject also to any limitations or defences that may be applicable prior to the commencement of this Proclamation: Provided that the provisions of section 17 shall be applicable to all such causes of action;

(i)any disciplinary action in connection with alleged misconduct attributed to a member of the Service, serving in a prerationalised post, prior to the date of his or her appointment in a post in the fixed establishment of the Service, may be proceeded with or instituted by a competent member of the Service, as if such alleged misconduct had been committed after such date;

(ii)appeals resulting from disciplinary action instituted against a member of the Service appointed in a pre-rationalised post and not finally disposed of upon his or her appointment in a post in the fixed establishment of the Service, shall be disposed of by a competent member of the Service in terms of the legal provisions applicable to members of the Service appointed in posts in the fixed establishment of the Service; and

(iii)where a member of the Service, serving in a pre-rationalised post, had been convicted on a disciplinary charge and had not as yet exercised his or her right of appeal upon his or her appointment in a post in the fixed establishment of the Service, such member may, within 30 days from such appointment, appeal against his or her conviction and/or sentence to the competent authority in the Service, and such an appeal shall be dealt with in accordance with the legal provisions applicable to members of the Service, ;appointed in posts in the fixed establishment of the Service; and

(k)the following provisions of the Police Act, and of any regulations, standing or other orders, and instructions relating thereto, made or issued under the said Act, as they existed immediately prior to the repeal of that Act, shall, mutatis mutandis continue to apply in the whole of the National Territory, with respect to this Proclamation, the President, the Minister, the National Commissioner, the Service, or any member of the Service, respectively, namely: sections 3 (1), (1A), (2), (3); 4 (3); 6A; 7; 8; 9; 10G; 11; 17; 18; 19; 20; 21; 22; 23; 24; 25; 26; 26A; 27; 27A; 28; 29; 30; 31; 32bis; 34; 34E and 34F.

13. DESIGNATION AS MEMBER OF THE SERVICE

(1)The Minister may by Notice in the Gazette desig- nate categories of personnel employed on a permanent basis in the Service and who are not members of the Service, to be members of the Service, from a date specified in such Notice.

(2)Personnel designated in terms of subsection (1), shall be deemed to be members of the Service from the date specified in the Notice referred to in that subsection and such personnel shall be deemed to be appointed in the fixed establishment of the Service in terms of section 12 (2) (e) with effect from such date, subject to the provisions of section 12 (2) (g), which shall mutatis mutandis be applicable to such personnel: Provided that a person being a member of a category of personnel as referred to in subsection (1) who does not consent to having the retirement age applicable to him or her on 1 October 1993, as required by section 212 (7) (b) of the Constitution, changed as a result of such Notice within one month of the publication of such Notice, shall not be affected by such notice.

14. RATIONALISATION, ACCOMMODATION AND REDUNDANCIES

(1) The Minister shall determine a scheme for the rationalisation, reorganisation and consolidation of the Service at national and provincial level as contemplated in section 237 of the Constitution.

(2) Subject to the Constitution and sections 2 and 4 of this Proclamation such scheme may include- (a)the appointment of the National and Provincial Commissioners;

(b)the determination and filling of specified senior posts in the fixed establishment of the Service at national and provincial level;

(c)the accommodation of members of the Service serving in pre-rationalised posts, in-

(i)posts in the fixed establishment of the Service;

(ii)their pre-rationalised posts on a temporary basis;

(iii)posts additional to the fixed establishment;

(d)the accommodation in the fixed establishment of all the members belonging to a category or class of members of the Service, of equal rank or status, in which case the pre-rationalised posts of such members shall be deemed to be posts in the fixed establishment of the Service and the relevant members shall be deemed to be duly appointed in such posts;

(e)the appointment to certain specified posts of -

(i)persons not being members of the Service; or

(ii)members belonging to a category or class of members of a specified or higher rank or status; and

(f) the termination of service of members of a specified rank or status, serving in pre-rationalised posts, who are not accommodated in posts, or additional to the fixed establishment, on a permanent basis.

(3)A member of the Service serving in a pre-rationalised post, may not have his or her services terminated as a result of such non-accommodation except-

(a)in terms of such rationalisation scheme; or

(b)if such member consents to such termination.

(4)The termination of the service of a member as a result of the implementation of such a rationalisation scheme, shall be on such terms as may be determined by the Minister in concurrence with the Minister of Finance: Provided that such terms shall not be less favourable than those applicable to such member by virtue of such termination of service on account of the abolishment of his or her post, declaration of redundancy or reorganisation of the Service.

(5)Different rationalisation schemes may be applicable to different categories or classes of members of the Service.

(6)Prior to the implementation of such a scheme the Minister shall inform the members, who may be affected by such rationalisation scheme, of the contents thereof.

15. EFFECTIVE DATE OF RATIONALISATION

The National Commissioner shall, for the purposes of the Exchequer Act, 1975, be deemed to be the Head of the Service with effect from 1 April 1995 and the effective date of rationalisation of the Service, as contemplated in section 4A of the said Act, shall be deemed to be the said date.

16. POLICE AGREEMENTS WITH OTHER STATES OR TERRITORIES

(1) The Minister may enter into agreements in regard to co-operation and mutual aid between the Service and the police force or service of a foreign state, the circumstances and conditions in terms of which members of the respective policing agencies may undertake cross-border operations or any other matter of mutual concern.

(2)The provisions of section 34G of the Police Act shall mutatis mutandis apply to such agreements, the effect of publication thereof by Notice in the Gazette, the tabling in Parliament before both Houses of such Notice, and acts by a member of a policing agency of a foreign state in the Republic in accordance with the provisions of such agreement.

17. LIMITATION OF ACTIONS, NOTIFICATION OF ACTION AND CAUSE THEREOF, AND SER- VICE OF CERTAIN PROCESS

(1)No legal proceedings shall be instituted against the State or any body or person in respect of any alleged act performed in terms of this Proclamation, or an alleged failure to do anything which should have been done in terms of this Proclamation, unless the legal proceedings are instituted before the expiry of a period of 12 calendar months after the date upon which the claimant became aware of the alleged act or omission, or after the date upon which the claimant might be reasonably expected to have become aware of the alleged act or omission, whichever is the earliest date.

(2)No such legal proceedings shall be instituted before the expiry of at least one calendar month after written notification of the intention to institute such proceedings has been served on the defendant, wherein particulars of the alleged act or omission are contained.

(3)If any notice contemplated in subsection (1) is given to the National Commissioner or the Provincial Commissioner within whose province the cause of action arose, it shall be deemed to be notification to the defendant concerned.

(4) Any process by which any action contemplated in subsection (1) is instituted and in which the Minister is the defendant or respondent may be served on the National Commissioner, or Provincial Commissioner referred to in subsection (3).

(5) Subsections (1) and (2) shall not be construed as precluding a court of law from dispensing with the requirements or prohibitions of those sections where the interests of justice so require.

18. SHORT TITLE

This Proclamation shall be called the South African Police Service Rationalisation Proclamation, 1995.

ANNEXURE A