South Africa

Khayelitsha policing: Rule of Law 1, Minister of Police 0; but at what cost to the public purse?

By Rebecca Davis 2 October 2013

On Tuesday, the Constitutional Court issued a conclusive smackdown to police attempts to halt a commission of inquiry into Khayelitsha policing. It’s a vindication of the autonomous powers vested in the Western Cape Premier, and it’s good news for the civil society organisations who have been lobbying for this commission for several years. It’s to be hoped that the people of Khayelitsha will emerge the real victors, if the commission results in a better standard of policing. But as seems often the case these days, the immediate winners are lawyers - all paid for out of the public purse. By REBECCA DAVIS.

Police Minister Nathi Mthethwa’s attempts to stop a commission of inquiry (CoI) into Khayelitsha policing were rejected by the Constitutional Court on Tuesday. Mthethwa’s lawyers had sought to argue, following a defeat in the Western Cape High Court, that Western Cape Premier Helen Zille did not have the power to appoint such a commission, and that its appointment should be declared inconsistent with the Constitution and invalid.

Not so, decided the Constitional Court. In a judgment handed down by Deputy Chief Justice Dikgang Moseneke, the judges ruled that the Constitution did allow for the appointment of such a commission by the Premier. The judgment noted, indeed, that “the 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”.

This was music to the ears of the civil society organisations mobilized by the Social Justice Coalition (SJC) who initially had to convince Zille of the need for such a CoI after collecting a formidable dossier of evidence from Khayelitsha residents pointing to the fact that the police force and the criminal justice system were failing to uphold their basic rights.

“We are very happy, this is a huge victory,” SJC General Secretary, Phumeza Mlungwana, told the Daily Maverick after the verdict had been delivered. “We have campaigned for the commission because it means so much to people’s lives. Personally, as a person from Khayelitsha, I know how people feel about actions taken to address high levels of crime. This, for me, means that people can trust in the courts to promote their safety without taking the law into their own hands.”

Mlungwana said the wider implications of the Khayelitsha CoI were that the resolutions to emerge from the commission could hopefully be adopted in communities facing similar crime problems. “This is not about powers between organs of state but about people’s lives,” Mlungwana said.

It’s a point that often seemed to be lost in the drawn-out saga leading up to Tuesday’s ruling. After the Women’s Legal Centre presented Zille with the proposal for a CoI, on behalf of groups like the SJC, in November 2011, Zille spent the next eight months fruitlessly trying to elicit a response from top police officials. Frustrated by their inaction, she received the approval of her provincial cabinet to go ahead and set up such a commission in August last year – which finally prompted a flurry of legal action from SAPS top brass aimed at halting the inquiry.

Why were Police Minister Nathi Mthethwa and Police Commissioner Riah Piyega so opposed to the idea of an inquiry which had the potential to result in making life a lot easier and safer for the residents of Khayelitsha? This is the million dollar question. Were they concerned about the reputational risk to SAPS, based on what ugly truths might emerge? That’s the really dark view. Was it more a case of being affronted by the idea that a provincial commission would have the power to issue subpoenas over a national body (SAPS)? Was it genuine concern about the potential overreach of powers by a provincial Premier, or were they offended by the idea of the leader of the opposition being able to sidestep their authority?

None of these options – or any conceivable others, actually – exactly cover Mthethwa and Piyega in glory, given the very real daily dangers faced by Khayelitsha residents. While the police continued to stubbornly explore legal avenues to stop the inquiry going ahead, the policing situation has remained dire. In July, GroundUp reported that at least seven new cases had been added by the SJC to the dossier for police investigation, all involving rape.

And yet again, what is fundamentally a political dispute has ended up in the in-box of judges to settle. Last November, when opposition parties approached the courts to ask them to order the Speaker of the National Assembly to urgently schedule a vote of no confidence in President Jacob Zuma, Judge Dennis Davis warned: “There is a danger in South Africa…of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy, or disputes which clearly carry polycentric consequences beyond the scope of adjudication.”

In the case of the Khayelitsha CoI, the Constitutional Court ruling made it clear that the Constitutional Court was the appropriate forum for the resolution of the dispute because the issue fell within the “exclusive jurisdiction” of the Constitutional Court. But the judgment nonetheless made the point that the people paying for all this litigation are the public.

“More and more disputes between or amongst spheres of government or organs of state end up in courts and in this Court, in particular,” the judgment noted. “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.” In this case, the legal costs of Premier Zille, Minister Mthethwa and Commissioner Phiyega are “ultimately sourced from the same public purse”. The court ruled that it would be unfair for civil society organization the SJC to end up out of pocket, so it ordered the Police Ministry to pay the SJC’s legal costs too – out of that same public purse.

The judgment also noted that the cost of such litigation is not just financial. “Often litigation of that order stands in the way or delays sorely needed services to the populace and other activities of government,” it said. “Here too, effective policing in Khayelitsha and the functioning of the Commission may have to await the outcome of litigation.”

In this case, the outcome of the case will hopefully have tangible, real-life benefits for Khayelitsha residents. But it should never have come to this. The police ministry’s wasting of time and public money in fighting this battle through the courts further sullies its reputation. The party led by Zille is sometimes painted by opponents as blind and deaf to the plight of the poor, but in this instance it is the ANC who has been left looking as if they care more about petty politicking than protecting the vulnerable.

In November last year, human rights lawyer Fatima Hassan wrote an op-ed piece comparing the Marikana Commission to the Khayelitsha Commission. In both commissions, Hassan wrote, “the unprecedented, recorded public scrutiny of the SAPS is potentially possible”. But even at that time, it was becoming clear that this might be a pipe dream.

“In both Commissions, we have seen the sinister tentacles of the security apparatus and the SAPS at work, effectively trying to shut down scrutiny and dissent about its role and functions in various communities through intimidation and interference with key witnesses, a disregard for the spirit of the Constitution, and an indefensible deference to business or party political interests,” Hassan wrote. And in both cases, the public pays. DM

Read more:

  • Understanding the two Commissions of Inquiry into the police, on GroundUp
  • Constitutional Court Judgment in matter of Khayelitsha CoI

Photo:Head-to-head. Police Minister, Nathi Mthethwa has lost his battle to stop a commission of inquiry into Khayelitsha policing appointed by Western Cape Premier, Helen Zille.

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