Public Protector says Lesufi’s crime wardens are illegal

The Public Protector, Kholeka Gcaleka, has determined that Gauteng Premier Panyaza Lesufi’s establishment of the province’s Crime-Fighting Wardens (CFW), known as Amapanyaza, was irregular.

While stating that it was well-intentioned, the Public Protector said that “it was not in line with the law.”

As a result, Lesufi has announced that the wardens will cease to exist in their current form and will be repurposed as part of the Gauteng Traffic Police.

This will require the wardens to undergo intensive training for 18 to 36 months, with those who do not qualify being assigned to municipalities for by-law enforcement purposes.

The unit was controversially established at the end of 2022, and the first batch of recruits began operations on 1 February 2023.

These CFWs became deeply involved in not only crime-fighting but also in 51,773 South African Police Service (SAPS) operations, including Operation Shanela.

Gcaleka released her findings from an investigation into the legitimacy of Amapanyaza shortly after Lesufi made the announcement on Wednesday.

“The investigation has revealed that the establishment, appointment, and deployment of CPWs by the functionaries of the department were not premised on any supporting legislative framework,” the report reads.

Gcaleka’s report states that the Gauteng Department of Community Safety, headed by Faith Mazibuko, contravened sections 41(1)(f) and (g) of the Constitution when it established the unit.

This means that the department acted outside of the authority and functions granted to it by the Constitution.

“The law neither empowers nor confers upon provincial government any authority to exercise policing powers,” the report added.

“Any conduct that seeks to assume any power or function not granted by law, or to perform functions or powers falling exclusively in another sphere of government, shall be unlawful and unconstitutional.”

The investigation revealed that Mazibuko had previously applied for the CPWs to be designated as peace officers.

However, this was not granted by the Department of Justice and Constitutional Development due to the absence of a supporting legal framework.

As a result, a technical team was appointed to resolve the legal issues, which also concluded that there is no legal authority to support the designation.

In a media briefing, Lesufi said that the rollout of the wardens “followed a meticulous, legally compliant sequence to ensure professionalism and accountability.”

However, that the province would be disbanding the unit “to eliminate areas of deep concern, which is their training, their mandate, and their qualification.”

“As the Gauteng Government, we want to focus on tackling crime rather than spending time squabbling around mandate and legitimacy or getting caught within factional battles of law enforcement agencies in our country.”

The Public Protector’s instructions

The Public Protector, therefore, instructed Lesufi and Mazibuko to ensure that the CPWs are repurposed as traffic wardens within 180 days of receiving the final report and receive the necessary training.

Minister of Justice and Constitutional Development, Mmamoloko Kubayi, and Minister of Police, Firoz Cachalia, have been instructed to ensure this is done lawfully.

“While the Public Protector acknowledges the steps already taken by the relevant state role players in addressing the issues identified, the relevant organs of state are urged to implement the remedial action in full and timeously,” the report said.

Lieutenant General Nhlanhla Mkhwanazi told Parliament in October that the province’s CFWs were illegal and not in line with the Police Act.

Mkhwanazi said he thinks there was competition between Gauteng and the City of Cape Town’s Law Enforcement and Metro Police units.

“The City of Cape Town, by law, can have such a policing structure in terms of law enforcement and metro police, as it is provided for by the Police Act. But the Act does not provide for this at the provincial level.”

“I must state again that it was a good initiative, but it was not in line with the law.”

Opposition party reactions

Opposition parties have welcomed the disbandment.

Democratic Alliance provincial leader Solly Msimanga said that the disbandment shows it was a “political gimmick to enhance the ANC’s chances in the 2024 National and Provincial Elections.”

“The programme was poorly planned, lacked a budget and had no intention to empower these innocent men and women into becoming peace officers, but used them to achieve the end goal of publicity and political mileage.”

“We have consistently raised concerns about this programme being an unfunded mandate likely to deprive service delivery in other departments,” added Msimanga.

The Economic Freedom Fighters (EFF) in Gauteng has long held that the initiative has no legal standing.

Provincial chairperson Nkululeko Dunga said “we have always asked: on what budgetary basis was this unit established, and what is its legal standing?”

“Instead of clear answers, the premier has chosen to hide behind technicalities, misleading the public by claiming these wardens are ‘peace officers’ under the Criminal Procedure Act.”

Freedom Front Plus provincial leader Jaco Mulder said that since its announcement, the party also had maintained its opposition.

“It is illegal, impractical and dangerous to appoint individuals lacking the proper training or mandate as law enforcers, even though the intention may be good.”

Section 205(1) of South Africa’s Constitution stipulates that the South African Police Service (SAPS) is solely responsible for preventing, combating and investigating crime.

“Provincial governments, therefore, have no mandate to establish parallel police forces,” he said.