Khayelitsha policing: among the shambles and turf wars, it’s the residents who suffer
- Pierre de Vos
- 02 Oct 2013 01:16 (South Africa)
South Africa’s complicated quasi-federal system of government bestows a set of concurrent powers on both the national government and on each of the nine provincial governments. These are a general set of shared powers on housing, health care, education, welfare services and public transport exercised by both the national government and by each of the provincial government.
Policing is also a shared competence between national government and provincial governments. However, the constitutional provisions dealing with control over the SAPS differ from this general scheme. The power to control and manage the SAPS resides with the National Commissioner of Police (not with the Minister of Police).
The Minister of Police is politically responsible for policing, and to this end has the duty to determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives. The relationship between the National Commissioner of Police and the Minister of Police therefore mirrors that of the National Director of Public Prosecutions and the Minister of Justice.
This is, however, not the end of the matter. The constitution strikes a delicate balance between the oversight powers of the Minister and that of the provincial government. The provincial commissioner is thus required to account to the provincial legislature on an annual basis on the state of policing in the province.
The provincial executive has further recourse in keeping the provincial commissioner accountable to it, as its concurrence is required when the Commissioner appoints a provincial commissioner. In turn, should the provincial executive lose confidence in her or him, it may seek “the removal or transfer of, or disciplinary action against,” the provincial commissioner.
Furthermore, section 206(3) of the Constitution also empowers each province to monitor police conduct; to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service; to promote good relations between the police and the community; to assess the effectiveness of visible policing; and to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.
In order to perform these functions a province is empowered to appoint a commission of inquiry into any complaints of police inefficiency or a breakdown in relations between the police and any community.
These are unique constitutional arrangements regarding the management of the police specifically, which are not replicated elsewhere in the Constitution. It allows provincial governments to monitor and oversee the police function within their area, but not to exercise control over the day-to-day management of the SAPS in their province. This means the relationship between the national government and provincial governments regarding the police differs from the arrangement relating to other shared competences on housing, health care, education, welfare services and the like.
After Western Cape Premier Helen Zille appointed a commission of inquiry into the alleged failure of policing in Khayelitsha – as she is empowered to do by section 206(5) of the Constitution – and after the Commission issued a subpoena to the Provincial Commissioner to produce certain evidence, followed by subpoenas to three station commanders, the Minister of Police, the National Police Commissioner, the Provincial Police Commissioner and other members of Western Cape SAPS leadership tried to scuttle the commission by challenging its constitutionality as well as the constitutionality of its powers to subpoena members of the SAPS, in court.
In the Constitutional Court they argued (on far narrower grounds that initially in the High Court) that the commission had no legal power to subpoena members of the SAPS. They also argued that the Premier breached her co-operative governance obligations and thus usurped the power of the national government by failing to consult adequately with it before appointing the Commission.
Yesterday the Constitutional Court, in a unanimous judgment written by Deputy Chief Justice Dikgang Moseneke in the case of Minister of Police and Others v Premier of the Western Cape and Others dismissed these arguments and confirmed the constitutionality of the commission as well as its powers to subpoena members of the SAPS.
Khayelitsha is an area with one of the highest crime rates in South Africa. The SAPS in Khayelitsha has long been accused of mismanagement, incapacity and even corruption, and it is alleged that this has contributed to the shockingly high crime rate which has led to a loss of confidence by the community in the ability of the police to protect them from crime, and to investigate crimes once they have occurred.
It is not clear why attempts were made to stop the commission from doing its work. It may be a case of power politics trumping the best interest of citizens. It is not in the interest of the national government and the majority party whose members form the national government to be seen to hamper attempts at improving policing in Khayelitsha, a political stronghold of the governing party.
I can only speculate that the case arose, firstly, out of a fear that the DA government would attempt to use any adverse findings of the commission to embarrass the ANC government and, secondly, out of anxiety that this commission would embolden the DA government to become more robust in its exercise of oversight over the police and (the fear might have been) might have ultimately led to a loss of control by the ANC government over the police in the Western Cape.
Be that as it may, the Constitutional Court rejected the argument that the commission of inquiry could not require members of the SAPS to appear before it under subpoena. As the Constitutional Court explained:
“a commission without coercive powers would indeed be unable to fulfil its mandate. It would be no different from an investigation…. When the target of the investigation is the police and how they fulfil their duties in relation to a particular community, they are obliged to account to a lawfully appointed commission…. If they were to be shielded from the coercive power of subpoena, the effectiveness of the Commission would falter.”
Moreover, the Constitutional Court went further and affirmed that a Premier and the provincial government had the duty to respect, protect and promote the fundamental rights of people within the province. This means that the Western Cape Premier “is obliged to take reasonable steps to shield the residents of Khayelitsha from an unrelenting invasion of their fundamental rights because of continued police inefficiency in combating crime and the breakdown of relations between the police and the community”.
To ensure that the Western Cape government could fulfil this duty, the Constitution required it to hold the SAPS accountable and to ensure transparency in its operation. These oversight mechanisms included the power to appoint a commission of inquiry who could subpoena members of the SAPS. Without it the provincial government would be hamstrung in protecting the constitutional rights of people living within its province, as it would make it very difficult to hold the police accountable as it is empowered to do by the Constitution.
On the issue of co-operative governance, the Constitutional Court found that when the province appointed the Commission, it did not usurp the powers and functions of the Minister or the Commissioner.
Although there is no doubt that the Premier, acting for the province, had the obligation to consult the Minister and the Commissioner before the province appointed a commission into the policing function:
“the undisputed facts show that, over nine months from the time she received the first complaint, the Premier exchanged extensive correspondence with the Provincial Commissioner, which was copied to the Commissioner and the Minister, over the impending appointment of the Commission. On the facts before us, she certainly complied with these obligations.”
The co-operative governance provisions in section 43(3) requires an organ of state involved in an inter-governmental dispute to make every reasonable effort to settle the dispute using the mechanisms and procedures provided for. Also, the organ of state must exhaust all other remedies before it approaches a court to resolve a dispute. Another important provision is that the court has a discretion to refuse to hear a dispute if it is not satisfied that the parties have made every reasonable effort to settle the dispute.
However, the court found that in this case, no dispute was ever declared. The Minister and the Commissioner of Police had no dispute with the provincial government before members of the SAPS were subpoenaed to come and testify before the Commission. Even then, the Minister and the Commissioner did not declare a dispute as required by the Framework Act; instead they approached the High Court.
In other words, the judgment suggests rather diplomatically (without spelling it out) that it was the Minister and the National Commissioner that rushed to court without trying to resolve the dispute – not the other way around, as they alleged before the court. The court thus implicitly criticises the parties who rushed to court instead of trying to resolve the dispute and stated as follows:
“The litigation is always at the expense of the public purse from which all derive their funding. That is true of the present dispute between the province, the Commissioner and the Minister. Often litigation of that order stands in the way or delays sorely needed services to the populace and other activities of government. Here too, effective policing in Khayelitsha and the functioning of the Commission may have to await the outcome of litigation. Courts must be astute to hold organs of state to account for the steps they have actually taken to honour their co-operative governance obligations well before resorting to litigation.”
It was perhaps for this reason that the court ordered the Minister of Police and the National Commissioner of the SAPS to pay the costs of the Social Justice Coalition in the High Court and in this Court, on whose urging the Commission was established and who was a party to these proceedings.
The commission can now proceed. The leadership of the SAPS will have to testify before it. Once a report has been finalised, the Premier would have to decide how the province could use the findings to help the National and Provincial Commissioner to improve policing in Khayelitsha. It is at this stage that civil society – including the Social Justice Coalition – could play a pivotal role. Because no matter what findings the commission might arrive at, without sustained political pressure none of the parties will probably display the political will to improve policing in Khayelitsha to the benefit of its long-suffering residents. DM
- The King of Hate Speech?
- Hofmeyr and the KKNK: Sorry, Steve, context matters
- The Rhodes to introspection
- The World According to Baleka: Making up rules for Parliament
- The Green, Green Card of home
- Freedom of hate speech? No, thanks.
- With Mbete and Modise not protecting the Parliament, who will protect our democracy?
- SONA2015: The legal side of the Moon
- SONA: Can the EFF be prevented from questioning the president?
- De Kock: The blood is not on his hands alone
- Xenophobia and the remnants of Apartheid: The terrible twosome
- The DA’s SMSes: Judgment Day, and its likely impact
- Freedom of Speech, Limited
- Turmoil at the Hawks: A birds eye view of the legalities
- The surrealism of Key Point secrecy
- The fight against corruption: In human hands alone
- Constitution is clear: President must answer questions in Parliament
- Nkandla and the National Assembly: Little more than a sideshow
- Tough luck, Mr Hofmeyr
- Death penalty: It’s not even the beginning of a solution
- The powers of the Public Protector: What the High Court actually found
- When some rights are more equal than others
- Afriforum, jou ma: Who’s likely to win the ‘Larney’ battle?
- Spy tapes: Still no reason to drop charges
- How now, Ad Hoc Nkandla Committee?
- The Speaker's dilemma
- The President’s reply to Public Protector: Why it won’t hold water
- Pistorius and dolus eventualis: do the facts support the finding?
- Affirmative action: It’s simpler than you think
- EFF vs. the National Assembly: Where to now?
- Nkandla: Zuma’s convoluted series of Houdini moves
- Nkandla: That drinking-thinking
- Women’s month, beyond lip service
- The multiplicity of freedom
- Home Affairs vs The Constitution
- Hlaudi weather: The fog is even thicker than it looks
- Wishful thinking: If the public protector were helped to do her job
- White, Afrikaans universities – when will they truly transform?
- NPA crisis: Open warfare was just the beginning
- Censoring Malema: Tempting, perhaps, but not legally valid
- Tlakula: Stark truth, stark choice
- The law vs. religion: Let’s try that again
- Evictions: 0 out of 10, SANRAL – try again
- Gay Cabinet ministers: So what’s the big deal?
- Rights and law: The untold, human stories
- Nkandla report in court: Zuma's interest above the law
- Democracy: let the real work begin
- May the Seventh be with You
- Critical thinking: the vital sign more important to democracy than your vote
- Elections: How can we level the playing field?
- Oscar’s ‘involuntary action’: Thin ice, Mr Pistorius
- That Nkandla SMS: Why the ANC won’t have its way in court
- The unbearable lightness of being a Nkandla Report critic
- Nkandla – unlawful to the last
- The president and Nkandla: No ignorance, no bliss
- The Public Protector’s Report: Who’s got the power and what is at stake?
- Why EFF election challenge would not fly
- Pistorius and that controversial Twitter ruling: questionable at best
- Uganda: why quiet diplomacy is a devastating betrayal of gay men and lesbians on the continent
- All hail independent thought
- Pistorius on TV: The public's interest vs. the public interest
- In the age of consent, the buck stops with Number One
- DA vs. ANC: The importance of political tolerance
- Campaign fever: the ground rules
- Let’s talk about freedom of speech
- DAgang's divorce: The finer sticking points
- Challenging IPID’s appointment: Always a bridesmaid, never a McBride
- Democratic internal party processes? Hmmm, unlikely.
- Why redress measures are not racist
- News flash, folks: discrimination IS illegal
- Water is life, but the struggle for it is deadly
- Changing the Constitution: much ado about nothing
- Mandela legacy: Reconciliation – a process, not a once-off event
- To call Mandela a saint is to dishonour his memory
- Love me tender: Why ‘it’s complicated’ applies to corrupt private tender processes too
- Nkandla report - the incontrovertible facts no smokescreens can cover
- The colonial roots of conferring silk on advocates
- Structural racism: the invisible evil
- E-toll civil disobedience reveals lack of respect for democracy
- We recognise sex and gender as classifications, so why not race?
- Nkandla Report blackout: It is all about PW Botha's law
- Elections are coming: Can we have some substance, please?
- The JSC: It’s not all bad, and here’s why
- The remembrance and forgetting of things past
- Nkandla: Untangling that rather sticky web
- Employment equity: the trick is in how it’s implemented
- Justice: that elusive prize, and how to get it
- Elections: The tightrope of fairness
- Teen sex: The law can’t replace parenting
- The Hlophe conundrum, revisited
- Khayelitsha policing: among the shambles and turf wars, it’s the residents who suffer
- Media freedom is a right that benefits all
- Attempts to discredit Madonsela could backfire
- The Mdluli matter: Nxasana’s first big test
- Sparing the rod: what it really entails
- Secrecy Bill: a touch more confusion, and a glimmer of hope
- Zuma's Secrecy Bill move: The Darker Side
- Hoffman’s complaint: why it was bound to fail
- Freedom of expression – and the quest for living meaningfully
- When a joke is not a joke
- The bad news: Qwelane’s constitutional challenge might just work
- Restoring the Electoral Commission: What happens next?
- A vote of no confidence is not to be taken lightly, by majority or minority
- The murky marriage of money and politics
- FF+ vs. EFF: doomed to fail
- Spy Tapes: A clear and simple case
- Hell is other people (trolling the Internet)
- Colour me irrational
- Women’s day – just another day for men to call the shots
- Arms Deal Commission: It’s the moment to make or break
- Marikana Commission: More questions than answers
- The court of individual identity
- Pius Langa: A man who knew the meaning of change
- Dear Film and Publications Board, please review your own rules
- Animal antics, and the separation of powers doctrine
- Hypocrisy fit for a king
- Take care with those ‘insults’
- ‘Top secret’ Nkandla report: On the highway to embarrassment
- Traditional leadership: Cat can look at a king
- Equal Education: The Minister doth protest too much
- Willing buyer, willing seller works… If you have a lifetime to wait
- Polygyny: Our human rights half-job
- Trial by media? Actually, that’s impossible
- Pistorius: The horror of a broken (white) body
- Oh what a tangled legal quagmire... when first we practise an NDPP to hire?
- Breytenbach: too little fear, favour and prejudice?
- The curious case of the pastor punished for honesty
- What’s that smell? Must be the name droppings.
- KZN University: A storm in a (Zulu) teacup
- Nkandla: The details will, and should, be made public
- Great speech vs. hate speech: how it really works
- Cape Town evictions: Brutal, inhumane, and totally unlawful
- The new, tamer Secrecy Bill: Still not constitutional
- Zuma and the Guptas: the ‘symbiosis’ continues
- Discrimination is illegal. When will we learn this?
- It’s not a democracy if our children aren’t equal
- An upside-down world: What would happen if we cared about the ‘others’?
- JSC: Let’s inject some common sense, shall we?
- Rose-tinted amnesia: The struggle to ‘rebrand’ SA’s Apartheid past
- Cardinal Napier: the plot thickens
- Redefining ‘merit’: first task for a transformed JSC
- The dating race
- Putting the ‘dread’ into ‘dreadlocks’
- Liars, damn liars, and the SA government
- Constitution clear on troops in the CAR: Zuma must talk to Parliament
- SA in CAR: the questions that remain
- Why are South African soldiers dying in CAR?
- Covering up sexual abuse is a crime, Cardinal
- Nkandla: Oh, what a tangled web we weave…
- The education MEC, children's heads, and a knobkerrie
- In black and white: the truth about ‘unconstitutional’ race quotas in universities
- Losing battles: Why the FMF doesn’t stand a chance
- Democracy vs. traditional leadership: the delicate ballet
- Police brutality comes as a surprise? Really?
- Sometimes a Tweeter is just a Twit
- Lady Justice’s scales appear to be faulty
- Pistorius trial: The legal principles that will decide the case
- Oscar Pistorius case: Bail isn’t denied as easily as you think
- Public opinion: Is there really any danger of prejudice against Oscar?
- All we know is that a woman is dead
- The secret history: Unearthing the mysterious Presidential Manual
- Sexwale abuse allegations: Very much our business
- SA’s rape epidemic: The limitations of outrage
- Will the real freedom of expression please stand up?
- But what of the people of Khayelitsha?
- WWE Smackdown: Zille vs. TNA edition
- Nkandla: Everything that's wrong with the Zuma government
- Nkandla: The spinning, mincing, dicing - and the report we're not allowed to read
- Beyond all (t)reason
- Judicial transformation: South Africa's appalling non-commitment
- The criminal stupidity of criminalising teen sex
- Careful, Mr Mthembu: The re-emergence of Apartheid's 'volksvreemdes' mentality
- Unequal education: the problem with providing learning for all
- SA troops in CAR: Why we should all be worried
- Mulholland column: Ignorance squared is still ignorance
- Elective processes: Something is rotten in the kingdom of the ANC
- Outa application: Courts can't fix political processes
- Chaskalson, SACP and the Constitution: Don’t touch me on my liberalism
- Carlisle and car key confiscation: Don't go with the (traffic) flow
- Dear Contralesa, please approach your nearest healer for a diagnosis
- Simelane: You can't end what never truly began
- Playing by the rules: The balancing act of Judge Dennis Davis
- Sunlight is the best disinfectant
- Lenasia: The haunting abandonment of humanity
- Lies, damn lies, and Zuma's 'bond'
- Show us the money, Mr Zuma
- The opposition doth protest too much: Why the ANC is hellbent on crushing debate
- Note to Zuma: Try commanding respect, not demanding it
- Dear Nxesi, your fantasy is damaging South Africa’s reality
- Running the Gauntlett: Why the struggle for appointment?
- Affirmative action: a decidedly middle-class problem
- Hate crime: there is no such thing as an excuse - ever
- Mfeketo and Zuma: You scratch my back, I'll scratch yours?
- Ramaphosa: Where does corruption begin and end?
- The Zuma recordings: SA is the crayfish, corruption the boiling water
- No safety in numbers: Why a bigger opposition isn't a stronger opposition
- Specs, lies and audiotape - the hidden Zuma recordings
- The ANC on school closures: can they win?
- Thuli Madonsela: The difference between 'unpopularity' and 'misconduct'
- Democracy: it starts in Parliament
- The National Key Points Act: not just unconstitutional, but totally invalid
- Simelane and 'rational' thought
- Halt the witch-hunt, Minister
- Home is where the taxpayer's money is
- Will Malema's case stand up in court?
- South Africa's Striking Miners: A Menace to Society? Or just to the middle class?
- E-tolling judgement: Sorry for Gauteng, but it's perfectly lawful
- Silence is golden - if the speakers are criticising the State
- Malema at the SANDF: Inappropriate? Yes. Illegal? No.
- Freedom of religion: not so free after all
- Whites against Woolworths: doth they protest too much?
- From the NPA with fear, favour - and prejudice
- Marikana murder charge withdrawal: the first glimmer of sanity
- Abuse, Inc: The 'miners made us do it' murder charge
- A marriage made in hell
- Lonmin's Farlam Commission: not bad, not bad at all
- Marikana: Avoidable, unconstitutional… and entirely predictable