Grondwetlike polisiëring in die Suid-Afrikaanse konteks

Abstract

Maintaining order in the community may be considered one of the fundamental obligations of the contemporary state. It requires the policing of society in accordance with the law and therefore entails one of the most comprehensive manifestations of state power. It is aimed at protecting the state and the community against crime so that the individual member of society is not burdened with self-protection. It is, however, essential that the state engages in legitimate powers and force in order to provide stability within the community it polices. The traditional approach to policing requires that a state authority be appointed to maintain order in the community, to apply and enforce the law and to utilise legitimate procedures to protect the community. However, through the ages it became synonymous with oppressive and politically driven state authority. This created a wedge between the state and society and resulted in a crisis in police legitimacy. Before 1994 South Africa‘s policing system was based on the national security of the state that ensured absolute state authority through oppressive political practices. The democratisation process deviated from this approach by striving for the limitation of state power and the protection of the individual by means of fundamental rights. This democratisation process also had an impact on the policing system, which was required to transform accordingly, in order to reflect the democratic state, as well as the constitutional values, fundamental rights and legitimate state authority. The South African police therefore had to transform on both a structural and material level, but seems to have done so without the juridical basis. This re-established a crisis in legitimacy which caused society to view the police as an oppressive, corrupt and hostile state authority. It created a feeling of contempt and distrust in the police and undermined the police‘s role in society. To counter this lack in legitimacy the community reverted to a form of self-protection and took the law into their own hands, which resulted in the undermining of public order and the law in general. This study investigates the juridical foundation of the contemporary policing system in South Africa. It studies the structural and material composition of South African policing and whether it can really be considered a constitutional policing system. It endeavours to provide juridical answers to the current concerns in the legitimacy of policing, in order to harmonise the traditional policing approach with that of the constitutional era.