A jubilant group of activists and Khayelitsha residents celebrating outside the Cape High Court after judgment was delivered brought the focus of this messy saga back to where it should have been all along: the fact that inhabitants of Khayelitsha are being failed on multiple levels by the inefficiencies of the SAPS and the wider criminal justice system. This point was acknowledged by all three presiding judges – Jeanette Traverso, James Yekiso and Vincent Saldanha – although Saldanha dissented from the majority judgment endorsed by Traverso and Yekiso.

The application for an interdict against the commission of inquiry, brought by Mthethwa, sought to prevent the commission from going ahead altogether, but also to restrain it from issuing subpoenas on police officials: a particular sticking-point, with Mthethwa’s legal team arguing that these kinds of coercive powers were unconstitutional. The interdict application was premised on the notion that the establishment of such a commission was irrational, inconsistent with the Constitution, unlawful, and contrary to the principles of “co-operative government and inter-governmental relations”.

In order to have such an interdict granted, Mthethwa’s legal team would have had to establish a prima facie right to it. Although Saldanha’s judgment differed from Traverso and Yekiso’s, no judge found that this prima facie right had been established.

In the 43-page majority judgment, the steps taken by civil society organisations and Zille to communicate their concerns about the Khayelitsha policing situation were meticulously and elaborately laid out. On 28 November 2011, the Women’s Legal Centre, on behalf of NGOs led by the Social Justice Coalition (SJC), delivered a complaint to Zille about the problems within Khayelitsha policing. Just over a week later, Zille forwarded this complaint to the Metro police and the provincial police commissioner, CCing the national police commissioner and the police minister, requesting comment on the matter and a proposal for handling the situation.

What followed appears to have been months of silence or stalemating from the top police officials. Although Mthethwa subsequently met with Khayelitsha leadership on 29 February 2012 to discuss the matter of attacks against foreign nationals, he did not inform Zille of this meeting. Time and again, the correspondence record shows Zille contacting the top police brass to request response on the matter, setting deadlines for such a response, allowing the deadlines to expire, setting new deadlines, forwarding new evidence of Khayelitsha police inefficiencies, and receiving nothing substantive in return.

In court, Mthethwa’s legal team claimed that Zille did not receive satisfactory responses to her letters partly because the recipients were not accountable to her, and partly because they had become overwhelmed by occurrences at Marikana. Both judgments – the majority judgment and Saldanha’s dissenting judgment – failed to be convinced by this argument, though Saldanha noted that in the period during which an acting national police commissioner was presiding, the office was in a “notorious dysfunctional state” which hampered their ability to respond.

Saldanha was referring to the reign of Lieutenant-General Nhlanhla Mkhwanazi, who served as acting top cop from October 2011 to June 2012. It is Saldanha’s assertion, based on the record, that there was a noticeable and instantaneous improvement in engagement between the provincial government and the national police commission once Phiyega came on board in June 2012. Phiyega visited the Western Cape more than once, met with several stakeholders, and communicated her belief that the Khayelitsha policing problems were complex and required an integrated response. Saldanha believes this was a sincere and considered reaction. Whereas both Mthethwa and the provincial police commissioner were “hopelessly unresponsive”, Saldanha wrote, Phiyega had “proactively taken steps”.

This is the basis for Saldanha’s dissenting judgment: the belief that Zille and civil society organisations should have pursued dialogue more closely with Phiyega before going ahead with the commission of inquiry. “I am not satisfied that the parties […] have exhausted their obligations to engage one another to explore appropriate means of avoiding or resolving the dispute between them,” he wrote. Saldanha therefore recommended that the parties involved should have to engage further and report back to the court by 31 January 2013, with the commission suspended pending this report-back.

The majority judgment, however, found Zille’s attempts at engagement adequate, on the basis of the correspondence record, and dismissed the notion that she should have consulted with bodies like the Independent Police Investigative Directorate. The judgment did not find merit in the notion that Zille’s procedure had violated the principles of inter-governmental cooperation. Saldanha, on the other hand, noted that the issue “unfortunately exemplifies a breakdown in the relationship between two spheres of government: national and provincial”, and pointed out “what appears to be deterioration in the relationship between [Mthethwa] and [Zille] from the language used in their affidavits.” 

The major job of the court, however, was to determine whether the premier had the power to establish a commission of inquiry in the way that she did. In deciding this matter, section 206 (5) of the Constitution was found to be critical: that a province “may investigate, or appoint a commission of inquiry into, any complaints of police inefficiency or a breakdown in relations between the police and any community.” 

Section 127(2) of the Constitution also asserts that the premier of a province is responsible for appointing commissions of inquiry. The judges found themselves “in perfect agreement” with the claim by Zille’s legal team that the powers of a premier in terms of this section “are the equivalent, at the provincial sphere of government, of the more extensive powers exercised by the President in terms of section 84(2)”. (Section 84(2) similarly provides for the president to establish commissions of inquiry.)

In dealing with the charge that the establishment of the inquiry was irrational, the judges noted that “news reports, community activists and the Social Justice Coalition all suggested an intuitive link between [the spate of vigilante killings in Khayelitsha] and the loss of faith in the police.” They also pointed out the claim that Khayelitsha’s police force was inefficient was “uncontroverted” by any parties involved. As such, they found a “compelling” need for action to be taken in the form of an inquiry.

Saldanha disagreed about the link between vigilantism and the state of the police force. “The phenomenon of vigilantism is in my view far more complex than a simplistic view of a breakdown of confidence in the police,” he wrote. But he was in accord on the necessity for action: “Nonetheless the growing incidents of vigilantism required the urgent and concerted response by all the relevant role-players.”

The majority judgment also chucked out the assertion by Mthethwa’s legal team that such a commission of inquiry amounted to a witch-hunt against the SAPS, and was driven by a political motive. Among other things, the judges pointed out that the commission “was not investigating specific actions on the part of any particular police officer, but intended to focus on systemic issues.” As for the ulterior political motive, they found “no cogent evidence”.

In summation, the majority judgment found that there was no case to support the idea that Zille violated the principles of cooperative governance; that the premier misconstrued her powers; or violated the constitutional provisions for public administration. As such, Mthethwa’s interdict application was dismissed, and the applicants were ordered to pay the respondents’ costs.

In response to the ruling, the police ministry said that Minister Mthethwa had “noted the judgment”, but they were cagey on the matter of whether they would appeal or not. “Together with [Mthethwa’s] legal team, they are currently studying the full judgment and will determine at a later stage on whether to appeal the ruling or not,” they said.

Ndifuna Ukwazi activist Zackie Achmat told the Daily Maverick that it was the fervent hope of civil society that the police ministry would not appeal the judgment. “It would mean a serious delay for the people facing crime on a daily basis,” Achmat said, calling the ruling “thoughtful and reflective”. The Women’s Legal Centre’s Sanja Bornman said that such an appeal from the police ministry might well not succeed: “The fact that the minister’s application for an urgent interdict has failed, means that he was unable to establish the unconstitutionality of the commission on even a prima facie basis. This hurts the chances of his review application.”

The commission of inquiry, headed by retired judge Kate O’Regan and former NPA boss Vusi Pikoli, can go ahead for the moment, though the SJC’s Axolile Notywala said a date had yet to be set for the resumption of hearings.

A valid point of concern expressed by Saldanha’s ruling was with regards to the future relationship between SAPS, the provincial government and the commission of inquiry in the wake of this legal skirmish. “It could only be in the best interests of all concerned and more importantly the community of Khayelitsha and in particular the victims of crime that there be the fullest possible cooperation between these two spheres of government and in their compliance with their Constitutional obligations,” Saldanha wrote. Notywala said, however, that civil society organisations would give their full cooperation to the police: “At the SJC we’ve been trying to work with them, and will continue working with them.”

As for relations between Zille and Mthethwa, however, this judgment will likely do little to mend bridges. Zille’s spokesperson Zak Mbhele told the Daily Maverick that they were “pleased” with the ruling. “It confirms our position, as backed by the Constitution, about the role and powers of provinces when it comes to oversight of the police,” he said. Let’s see if Mthethwa will take that lying down. DM

Read more:

• Khayelitsha policing inquiry comes to the court, in Daily Maverick

Photo: Activists Zackie Achmat and Axolile Notywala celebrate the Cape High Court ruling that a commission of inquiry into Khayelitsha policing should go ahead.