The ongoing crime crisis in South Africa, and particularly in Cape Town, has led to a constructive debate about the role and powers of municipal police services. While the South African Police Service (SAPS) is increasingly struggling to combat organized crime and violence effectively, the City of Cape Town has taken steps to establish its own investigative capacity.

This raises an uncomfortable and critical legal question: Does a metropolitan police service actually have the constitutional and legal authority to formally investigate criminal cases? This issue has sparked a sharp disagreement between legal experts and security practitioners, as recently outlined in opinion pieces by Dr Lennit Max and Daniël Eloff.

Dr Lennit Max approaches the matter from a strict legal and constitutional perspective. According to him, good intentions and the need for better policing cannot override the rule of law. Max argues that Section 205(3) of the Constitution specifically assigns the fundamental responsibility for preventing and investigating crime to the national police service. He further points out that Section 64F of the South African Police Service Act limits the functions of municipal police services to only three areas: traffic policing, enforcement of municipal by-laws, and general crime prevention.

There is no explicit reference in these provisions to the formal investigation of crime by metropolitan police departments. Max therefore maintains that crime prevention and criminal investigation are two distinct legal functions. If a metropolitan police service, without the necessary legal authorization, gathers evidence, compiles case dockets, and interviews witnesses, such evidence could be declared unconstitutional and inadmissible by the courts. This could result in serious criminal cases being dismissed on technical legal grounds.

Max concludes that a municipality cannot grant itself powers through a simple council resolution. Only Parliament has the authority to amend the legislative framework.

Daniël Eloff presents a counterargument focused on decentralized policing and the practical realities of modern crime fighting. He contends that Max interprets the relevant legislation too narrowly. According to Eloff, while Section 205(3) outlines the functions of the national police service, it should not be read as granting an exclusive monopoly. Section 205(1) in fact requires that the police service be structured to operate at national, provincial, and local levels.

Eloff points to an important legal mechanism in the SAPS Act that Max appears to overlook. While Max relies primarily on Section 64F, Eloff highlights Section 64F(2). This provision explicitly states that the Minister of Police may confer on members of a municipal police service any statutory powers granted to SAPS members. He also challenges the artificial distinction between “prevention” and “investigation.” Effective crime prevention, he argues, necessarily involves gathering intelligence, analysing crime patterns, and identifying suspects or criminal syndicates. It is therefore impossible to prevent crime proactively without undertaking fundamental investigative activities.

The middle ground in this debate is found in Section 99 of the Constitution. This key provision serves as a mechanism for cooperative government. It allows the national government to delegate executive powers, such as crime investigation, to a province or municipality. Such delegation is not automatic and requires strict procedures, including:

• Delegation can occur only through an official, negotiated agreement between the national Minister of Police and the relevant Municipal Council.
• The municipality must clearly demonstrate that it has the financial resources, budget, infrastructure, and trained investigators necessary to undertake this highly specialized function.
• The transfer of authority becomes legally enforceable only once it has been formally published by the President in the Government Gazette. National authorities also retain the power to exercise oversight and enforce binding norms and standards.

Does the Cape Town Metropolitan Police therefore possess an inherent right to investigate crime independently? No. A local authority cannot simply assume such powers unilaterally.

However, the Constitution does not prohibit specific cities from acquiring such capabilities. By utilizing mechanisms such as Section 99 of the Constitution and Section 64F(2) of the SAPS Act, the national government can formally delegate investigative powers to a competent municipality.

This is not constitutionally impossible. Rather, it is a matter of administrative authority and, above all, political will. If the state’s overarching objective is truly to protect the public, South Africa’s legal framework provides ample room to decentralize effective policing to the most appropriate local levels. Of greater importance though, party politics should be kept out of this issue, because the interests of the people of the Cape Flats, who live under the daily threat of gang violence, must come first.

This article was published on Netwerk24. The Afrikaans version is available at ‘Net dán mag metropolisie sake ondersoek’ | Netwerk24