Does the Western Cape Have the Legal Right to Police Itself?
There has been a political standoff over the devolution of policing powers since 2019, when, under the leadership of Mmusi Maimane, the DA campaigned on the issue in the Western Cape. They subsequently obtained an outright majority, as they did again in 2024, when under John Steenhuisen they maintained their pursuit of devolved policing. Accordingly, Western Cape Premier Alan Winde has repeatedly requested provincial control of policing. On each occasion that he has done so, he has been emphatically rebuffed.
Since being elected Mayor of Cape Town in 2021, Geordin Hill-Lewis has joined the fight. The City and Province have collaborated on the development of a parallel policing service, the Law Enforcement Advancement Plan (LEAP), and the City has actively pursued permission for its municipal law enforcement officers to investigate crime. The current legislation prevents it from doing so. Hill-Lewis is now threatening legal action to acquire those investigative powers without the national government’s consent.
Hill-Lewis’s argument is that there is a catastrophic failure of law enforcement in Cape Town, that corruption and mismanagement in the South African Police Service (SAPS) are leading causes of this failure, and that the Constitution allows for policing powers to be devolved. Given all these factors, he then argues that the courts should declare the national government negligent in not devolving powers, and that it should be compelled to do so.
Different legal approaches
Winde and Hill-Lewis have contrasting styles. Winde is cautious and, on policing at least, he seeks clear incontrovertible legal authority to proceed - ‘here is what I would like to do, is it legal for me to do it?’. The problem with this approach is that the overwhelming majority of law lies in the realm of contested legal opinion and, therefore, the legal advice Winde habitually receives is ‘Not categorically so, no’.
Hill-Lewis is cut from a different cloth. As we have seen from him, most notably on the procurement of electricity, his departure point is moral authority, or, using the legal parlance, natural law. Where legal grey areas elicit extreme caution from Winde, they present opportunity to Hill-Lewis. His lawyers are not briefed to proffer safe legal opinion, they are tasked with constructing legal justification.
The correct definition for the governance model which the Western Cape is effectively pursuing is asymmetric federalism - significant powers vest by right at the provincial level of government (federalism), and where which specific powers vest at a provincial level varies on a province by province basis (asymmetric federalism). The Western Cape is currently pursuing control of policing, railways, and its ports.
Under Winde, the Western Cape has enjoyed little to no success in its pursuit of additional powers. The reason for this is simple: Winde's legal advisors have convinced him that he needs to ask the national government’s permission, and the national government is unwilling to give it.
Self-determination and policing
Winde is missing a trick that perhaps Hill-Lewis wouldn’t. Were he willing to ask his legal advisors a differently phrased question, and if necessary ask a different set of advisors, he would be told that he doesn’t necessarily need to ask permission for devolved policing powers, because he plausibly has a right to demand them, and a lot more besides. Were he to do so, the South African constitutional order would be turned on its head, and South Africa would become a far safer, prosperous, and efficient place to live.
At the crux of this argument is the legal right of all people to self-determination. It is a jus cogens right of international law meaning that no state may deny it. The South African government has regularly argued that it is a right which must be respected by other countries, it is a right which South Africa has repeatedly sworn to uphold in various international treaties, and it is explicitly recognised in section 235 of the Constitution.
The essence of the right to self-determination is that all ‘peoples’ (where ‘peoples’ refers to ethnic, cultural, linguistic, or geographical communities) have a right to decide for themselves how they are governed, and to be free from the domination of others.
In the context of the Western Cape, the very obvious argument is that as a legally constituted community which has expressed a clear desire to police itself, the people of the Western Cape have a right to do so. Equally, the national government which predominantly derives its mandate from outside of the Western Cape, cannot dominate the people of the Western Cape by forcing a system of policing onto them which they have clearly stated they do not want.
This argument exists in the greyest areas of South African law. Winde’s advisors wouldn’t give this argument the time of day because, unthinkably for them, it intentionally challenges the absolute sanctity of the Constitution. Suitably briefed, Hill-Lewis’s might well declare ‘Eureka’.
Constitutional supremacy vs International law
At the heart of the legal debate is the relationship between the South African Constitution and international law. There is no credible argument that the Western Cape people, a community explicitly created by the Constitution and affirmed by the Western Cape Constitution, do not enjoy the ‘unquestionable and inalienable’ right to self-determination which all people enjoy under international law.
The question which potentially turns the entire South African constitutional order on its head is, what happens when the Constitution comes into conflict with international law?
If, like Winde, you want a safe uncontentious legal answer, you will find it in sections 231 & 232 of the Constitution. International law only applies if it is consistent with legislation and the Constitution. In the context of policing, the Constitution allocates policing powers to the national government, ergo, the people of the Western Cape have no right to police themselves regardless of whether they want to or not.
Venture into the grey, and this question gets much more interesting.
South Africa cannot opt itself out of international law, and it has very publicly argued against the supremacy of other countries' constitutions. Its current case against Israel in the ICJ is a prime example. South Africa is arguing its case on the supremacy of international law.
Legal rulings helpful to Western Cape
Apex courts globally all have to walk this legal tightrope, balancing domestic and international law. Critically, South Africa’s Constitutional Court has already faced this challenge, specifically on the right to self-determination. Whilst certifying section 235 of the Constitution, one petitioner argued that self-determination could not be made subject to the will of parliament. The court clarified that the Constitution had not made it so and that the reference to national legislation in section 235 referred to the mechanism by which the national government should give effect to any agreement reached with a community seeking self-determination.
In its legal opinion on the Western Cape Peoples Bill, the Western Cape Provincial Parliament (WCPP) provided an additional element to the Western Cape’s potential argument. The legal advisor argued that as the Peoples Bill sought to assert a right to self-determination, it should, on the basis of section 235, be tabled in the National Assembly. I was part of the team introducing the Bill and challenged the legal advisor that by definition, the WCPP - the institution specifically established by the Constitution to enable the Western Cape people to express their democratic will - must be the institution where the Western Cape people assert their right to self-determination. In his subsequent written opinion he acknowledged this point, but advised that the Western Cape people could do so by bringing a motion in the WCPP.
So we arrive at a position where the people of the Western Cape enjoy an undeniable right to self-determination, which could be exercised in the form of asymmetric federalism and include control of policing, which they can assert by passing a motion in the WCPP. Should they do so, the national government would then be obliged to negotiate an agreement around asymmetric federalism in good faith, and to pass the legislation required to give effect to it in the NA. Should the national government fail to uphold its obligations, the Western Cape would have recourse to the Constitutional Court, and, were they not to obtain satisfaction there, in the international courts.
This is a world away from repeatedly asking permission and being denied.
Obligation to act
The Western Cape people are currently being murdered at one of the highest rates in the world, and the Western Cape High Court has declared that the upper echelons of SAPS in the Western Cape have been infiltrated and corrupted. As Hill-Lewis rightly points out, this creates an urgency to act, and quite possibly, a legal imperative to do so.
The Referendum Party and Cape Independence Advocacy Group believe that the Western Cape Government has a moral obligation to look beyond safe and unimaginative readings of the law, when with a little more courage they could save thousands of lives and radically improve the circumstances of millions by giving effect to their clearly expressed democratic will.
Why would the Western Cape Government not explore every avenue available to it?
This article was first published in Politicsweb: https://www.politicsweb.co.za/opinion/is-there-a-legal-right-to-devolved-policing
