Given South Africa’s history and the use of the military in townships to suppress legitimate protests prior to the advent of democracy in 1994, it is understandable that this latest development may raise some concerns. In addition, the recent spate of xenophobic attacks and the images of these acts, have stirred emotions across the country, and surely serve as reminders of the kind of violence that we never again want to experience in South Africa. Hence, understandably, in this context, possibly the last thing South Africans want to see is a return of soldiers to maintain law and order in our streets.
For that reason, the Constitution and the Defence Act of 2002 – apart from recognising the need to deploy the SANDF within South Africa in certain circumstances – clearly regulates when and how the SANDF may be employed in a law enforcement capacity, and how Parliament must at all times effect oversight in relation to such employment.
The primary objective of the SANDF is to “defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force”. However, section 201(2)(a) of the Constitution provides for the President to authorise the employment of the SANDF in cooperation with the SAPS, over and above employment in defence of the Republic or in fulfilment of an international obligation. In turn, section 19 of the Defence Act gives expression to this constitutional provision by providing that the SANDF “may be employed in co-operation with the [SAPS] in terms of section 201(2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law and order within the Republic.” The President or the Minister may, in terms of section 18 of the Defence Act, also authorise the employment of the SANDF for service inside South Africa, or in international waters, in order to preserve life, health or property in emergency or humanitarian relief operations; to ensure the provision of essential services; to support any department of state, including support for purposes of socio-economic upliftment; and to effect national border control. The SANDF has previously and on many occasions been employed to fulfil all of the aforementioned functions at one time or another and has done so with distinction.
Be that as it may, in our constitutional democracy, national security is subject to the authority of both Parliament, as representatives of the people, and the national executive. Accordingly, when the President employs the SANDF in terms of the aforementioned constitutional provisions, he must in terms of section 201(3) of the Constitution, “inform Parliament, promptly and in appropriate detail” of (a) the reasons for the employment; (b) any place where the SANDF will be employed; (c) the number of people involved; and (d) the period for which the SANDF is expected to be employed. If Parliament does not sit during the first seven days after the employment, the President must provide the information to the appropriate oversight committee. In addition, section 19(2) of the Defence Act, requires the Minister to give notice of such employment in the Gazette “within 24 hours of the commencement of such employment and, upon such employment being discontinued, within 24 hours of such discontinuation give notice of the discontinuation”.
Moreover, when the SANDF is employed in terms of section 201(2) of the Constitution, section 19(3) of the Defence Act determines that service by members of the SANDF in cooperation with the SAPS:
a. may only be performed in such area or at such place as the President may order at the request of the Minister of Defence and Minister of Police;
b. must be discontinued in such area or at such place as the President may order at the request of the Minister of Defence and Minister of Police, or when the President deems it expedient for any other reason; and
c. must be performed in accordance with:
- a code of conduct and operational procedures approved by the Minister;
- such guidelines regarding co-operation between the SANDF and the SAPS; and
- coordination of command over and control of members of the SANDF and the SAPS, as the Chief of the SANDF and the National Commissioner of Police may determine.
Section 20 of the Defence Act provides for the powers and duties of members of the SANDF while being employed in support of the SAPS. This section determines that whenever members of the SANDF are employed for a service contemplated in section 201(2) of the Constitution, such members have the same powers, duties and responsibilities as those conferred or imposed upon a member of the SAPS by virtue of the relevant sections of the South African Police Service Act of 1995, the Criminal Procedure Act of 1977 and other relevant legislation as reflected in the Defence Act.
Such powers, which do not include the investigation of crime, may only be exercised or performed by members of the SANDF for the purposes of successful execution of that employment, prevention of crime, maintenance of law and order, or preservation of the internal security of the Republic. Section 20 also determines that members of the SANDF employed in terms of section 201(2) of the Constitution, must have received the appropriate training prior to such employment, and must be equipped accordingly.
It is clear from the constitutional and legislative framework that when members of the SANDF are deployed in cooperation with the SAPS, these soldiers are deployed within the very strict parameters of the Constitution and the law. As such, they must act in accordance with the Constitution and the law, including customary international law and international agreements binding on South Africa, and may not obey a manifestly illegal order. However, in light of the widespread acts of xenophobic violence, especially in KwaZulu-Natal and Gauteng, this employment, with the overall objective of supporting the SAPS in preventing and suppressing further acts of xenophobic violence – including loss of life and property – should be welcomed. It will hopefully ensure that the rights in the Bill of Rights are realised and protected for all people in South Africa – regardless of nationality. In this context, the SANDF, together with the SAPS, will hopefully “reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.
by Adv Johan Kruger, Director: Centre for Constitutional Rights