Jurisdiction over police failures in Khayelitsha, South Africa: the inter-governmental dispute

by | Feb 5, 2013

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Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast

In this post, Sanja Bornman, an Attorney at the Women’s Legal Centre in Cape Town, provides an overview of the current legal dispute surrounding the independent commission of inquiry set up to investigate police failures in the South African township of Khayelitsha.

On 29 November 2011 a group of civil society organisations, represented by the Women’s Legal Centre, lodged a complaintwith the Premier of the Western Cape, South Africa. The complaint detailed the organisations’ concerns regarding the systemic, on-going failures and inefficiencies of the policing system in Khayelitsha, a township approximately seven kilometres outside of Cape Town, and home to some of Cape Town’s poorest and most marginalised residents. The complaint outlined the manner in which the relationship between the police and the Khayelitsha community has broken down. As part of the complaint, the Social Justice Coalition, Ndifuna Ukwazi, Equal Education, the Triangle Project and the Treatment Action Campaign requested the Premier to set up an independent commission of inquiry (CoI) in terms of Section 206(5) of the South African Constitution.

Upon receipt, the Premier made the Provincial Commissioner of Police, the National Commissioner of Police, and the National Minister of Police aware of the complaint and request for an independent CoI, and requested their input. In the course of the following nine months, the Premier received no such input. During this time, the complainant organisations continued to put pressure on the Premier to act, and Khayelitsha continued to experience vigilante attacks and killings – a phenomenon the complainant organisations believed to be symptomatic of the breakdown of the policing system. In July 2012 the newly appointed National Police Commissioner sent a task team to Khayelitsha to investigate the complaint. The organisations were hopeful that the task team’s report would vindicate its complaint, but the Commissioner failed to meet the deadline for this report, and the organisations were again determined to see a commission established. Finally, on 24 August 2012 the Premier established the CoI by gazetting its terms of reference in the provincial government gazette. The CoI comprised former Constitutional Court judge Catherine O’Regan, as Chairperson, and Adv Vusumsi Pikoli.

According to the terms of reference, the CoI was limited to investigating the complaint, and compiling a written report including recommendations. In order to discharge its mandate the CoI was to hold public hearings, allowing the Khayelitsha community to recount their experiences of the South African Police Service (SAPS) in an open forum. The CoI also issued and served several subpoenas duces tecum on members of the SAPS, but stated clearly in its first public notice that it would not be “determining whether anyone should face criminal prosecution, nor whether anyone is civilly liable for any breach of the law.”

Shortly before the first hearing in November 2012 the Minister of Police met with the Premier and proposed an alternative to the CoI, but failed to satisfy the Premier and complainant organisations regarding the alternative’s independence, and the extent to which it would be open to public participation. Then, on 6 November 2012 the Minister filed papers at the Cape High Court for an urgent interdict to prevent the CoI from continuing its public hearings, and enforcing its subpoenas, pending the outcome of a full review of the constitutionality of the CoI. The Minister contended that the Premier, in establishing the CoI in the manner that she did, had violated the constitutional provisions relating to inter-governmental cooperation; had misconstrued her powers in terms of section 206(5) of the Constitution in an unlawful, irrational manner; and had purported to usurp the statutory and constitutional powers of the National Commissioner, Provincial Commissioner, and the Minister of Police.

The interdict application was opposed by all relevant parties, and heard before a full bench of the Cape High Court on 13 December 2012. The court handed down judgment on 14 January 2013, and the majority ruled that the Minister had failed to demonstrate a prima facie right to the interim interdictory relief sought, as he had failed to demonstrate that the Premier acted beyond or in violation of her constitutional powers and duties in establishing the CoI.

On 1 February 2012 the Minister appealed and sought direct access to the Constitutional Court for the same urgent interdictory relief, and hearing of the constitutional review application. The complainant organisations are hopeful that the CoI will, in the interim, continue its investigation and public hearings.

Sanja Bornman is an Attorney at the Women’s Legal Centre in Cape Town

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