Premier Helen Zille has signed the Western Cape Community Safety Act into law. The national Minister of Police, Nathi Mthethwa has come out strongly against the Act and promised to challenge it in the Constitutional Court. The Minister's spokesperson, Zweli Mnisi is reported as saying that it "seeks to make the South African Police Service a provincial institution where accountability is determined by different structures as and when it is deemed suitable".
This goes to the hard of the division of powers between the national government and the provinces. The issue was hotly debated during the drafting of the Constitution. This was in a time when the violence of the early 90's, which had a distinct regional dimension, was fresh in everyone's memory. The ANC was vehemently opposed to any security powers being exercised at provincial or regional level.
It wanted the state's monopoly over the use of force centralised. Most of the other negotiating partners favoured stronger provincial powers or at least a greater spread of authority across levels of government. In the end, our Constitution established a national police service, based on national legislation, controlled by a national police commissioner and a national police minister.
However, it didn't make policing the exclusive domain of national government. Chapter 11 of the Constitution explicitly brings in provinces, not as governments that control or manage the police but as governments that oversee policing in their jurisdictions and that facilitate relations between the police and communities.
For example, the Constitution says that provinces may "monitor police conduct", "oversee the effectiveness and efficiency of the police service", "promote good relations between the police and the community" and "assess the effectiveness of visible policing". Provincial commissioners must send reports to provincial parliaments and provinces may investigate a breakdown in relations between police and community.
Premier Zille has used this power to establish the O'Regan and Pikoli Commission to investigate the breakdown in relations between the community of Khayelitsha and the policing structures there. Minister Mthethwa challenged this decision in the Western Cape High Court. The Court upheld the decision but the Minister has appealed to the Constitutional Court.