IMPORTANT CONSTITUTIONAL PRINCIPLES EMANATING FROM THE COLLINS KHOSA CASE

Written by Deone Roos

Please view the original article here by DailyMaverick:

BACKGROUND

On 15 May 2020, the High Court in Pretoria delivered a judgment relating to the brutal assault by members of the SANDF on Mr Collins Khosa at his home in Alexandria township. Members of the SANDF entered Mr Khosa’s home on the 10th of April 2020 and accused him and his immediate neighbour of violating the Lockdown Regulations. The accusations were based on an unattended camping chair and half-cup of alcohol in the yard. The SANDF proceeded to raid Mr Khosa’s home and subsequently took them outside to the street as they [SANDF] wanted to “prove” a point. Both Mr Khosa and Mr Muvhango were assaulted and Mr Khosa later succumbed due to his injuries.

The incident became public news after which announcements were made by the Minister of Defence that the public should refrain from provoking members of the SANDF. It became apparent that the Minister of Defence did not condemn the lock-down brutality.

SOCIAL CONTRACT AND THE CONSTITUTION

In the introductory paragraphs of his judgment, Fabricius J, remarked that the social contract which exists between the South African population and the government is defined and established by the Constitution of the Republic of South Africa which is founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms. It particularly provides for the supremacy of the Constitution and the rule of law. It also contains the Bill of Rights which is the cornerstone of democracy.

The social contracts provides that the population must be able to trust the government to abide by the rule of law and not intrude upon the rights of people or businesses, and if they do, or justifiably must, the least restrictive measures must be sought, applied and communicated to the public. In return, the Government can justifiably expect the citizens to co-operate and take responsibility to ensure their own safety and that of others.   

Focusing on the duty of the government, the court stated that the public administration, which includes all organs of State, must be accountable and transparency must be fostered by providing the public with timely, accessible, accountable, and accurate information.

The court emphasised that although the lock-down was necessary, some of the rights contained in the Bill of Rights, such as the right to equality, human dignity, life, freedom of security of the person and arrested and accused persons may not be derogated from.

Any infringed rights may be enforced by anyone acting in their own interest or acting on behalf of another, by approaching a competent court alleging that a right in the Bill of Rights has been infringed or threatened. The court may then grant appropriate relief, including a declaration of rights.

USE OF FORCE

After reflecting on numerous legislative provisions which governs the use of force by members of the SAPS and SANDF, the court summarised their powers as follows:

  1. In general members of the SAPS and the SANDF may not use force. However, when force is necessary to use, it may only be minimum force.
  2. If it is the intention to secure the arrest of a person, force may only be used where it is reasonable necessary and proportional. Where deadly force may be used this can only occur where there is a threat to life.
  3. Other than in those strict circumstances, there is no general license for the SANDF or the SAPS to use force.

DECLARATION OF RIGHTS

The applicants sought a declaratory order which, the Court remarked, consisted of a  re-affirmation of the law that is applicable in South Africa in the present context, and in particular the law that applies to the security forces either under lock-down conditions or in general. The respondents, however, contended that such a declaration was incompetent and wholly unnecessary as all members of the security forces had received proper training and instructions in both oral and written form. They also furthermore contended that it is not the function of the court to merely restate the law in any given circumstances.

The court stated that declaratory relief is competent in one of four instances:

1)        As appropriate relief in terms of section 38 of the Constitution;

2)        Where the law or conduct is declared unconstitutional under section 172(1)(a) of the Constitution;

3)        As just and equitable in terms of section 172(1)(b) of the Constitution;

4)        As discretionary relief in terms of section 21(1)(c) of the Superior Courts Act 10 of 2013

It was held that declaratory relief would be competent in terms of sections 38 and 172 of the Constitution.

            Section 38 of the Constitution

This section provides that any one listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.

The section contains two substantive requirements:

1)        The applicant must allege that a right has been infringed or is threatened with infringement;

2)        A court is entitled to grant “appropriate relief” which may include a declaration of rights.

Both requirements were satisfied.

With regards to “appropriate relief” reference was made to Hoffman v South African Airways 2001 (1) SA 1 CC (“Hoffman case”) wherein is was held that “appropriate relief must be fair and just in the circumstances of the particular case.” At paragraph 42 of the Hoffman case it was further stated that “the determination of the appropriate relief, therefore, calls for a balancing of various interest that may be effected by the remedy. The balancing process must at least be guided by the objective, first, to address the role occasioned by the infringement of the Constitutional right; second, to deter future infringements; third, to make an order that can be complied with; fourth, fairness of all those that might be effected by the relief, invariably, the nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in the particular case.”

The court held that a declaratory order is justifiable on the facts and on the considerations the Hoffman case refers to.

            Section 172 of the Constitution

Section 172(1) provides that when a court is dealing with a constitutional matter within its powers, it must declare that any law or conduct that is inconsistent with the Constitution as invalid to the extent of its inconsistency and make any order that is just and equitable.

The court agreed with the applicants that according to section 172(1)(B), the court may make any order that is just and equitable. 

It was submitted that the declaratory order should be granted to ultimately vindicate the rule of law, and as the conduct of the security forces threatens or has violated the rights in the Bill of Rights.

PRINCIPLES EMANATING FROM THE ORDER

             Suspension

The applicants requested that the members of the SANDF that was involved should be placed on suspension. The respondents claimed that any accused members of the security forces can only be placed off duty and disarmed after they have been found guilty in a thorough investigation. It was held that this was not the case as precautionary suspensions have been ordered by Courts before where there was a prima facie case of abuse of public authority. The court remarked that it is also often necessary to prevent a culture of impunity which is a State’s duty to prevent.

            Commands and warnings

The applicants requested that security members be warned against the absolute prohibition of torture and cruel and inhuman treatment.

Reference was made to Section 199(5) of the Constitution which states that security services must act, and must teach and require their members, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic. It was the respondent’s position that this legal obligation was already fulfilled. The court emphasised that this is a continuous duty.

It furthermore expressed its dissatisfaction with the Defence Minister who condemned the unlawful conduct on the part of the SANDF while equally condemning conduct that disobeys the lockdown Regulations. This, the court remarked, seems to suggest that there is a moral or legal equivalence between civilians disobeying and soldiers violating constitutional international and statutory provisions on the excessive use of force.

            Code of conduct and operational procedures

It was common cause that section 19 was not complied with. This provides that services in co-operation with the South African Police Service must be performed in accordance with a code of conduct and operational procedures. The question left to be answered by the court was whether this section was applicable.

After studying both the text and purpose of section 19 the court found that it was in fact applicable. The respondents were ordered to develop and publish a code of conduct and operational procedures regulating the conduct of members of the SANDF, SAPS and MPDs.

            Standards set by international law

The court referred to article 12 and 13 of the Torture Convention. Article 12 requires each state party to ensure that its competent authorities proceed to a prompt and impartial investigation whenever there is a reasonable ground to belief that an act of torture has been committed in any territory under its jurisdiction. Article 12 in turn states that each state party shall ensure that any individual who alleges that he has been subjected to torture in any territory under its jurisdiction has a right to complain, and to have his case promptly and impartially examined by its competent authorities.

It was further stated that in several international documents, one aspect stands out, namely that any investigation must be prompt and impartial.

            Inadequacy of existing investigative mechanisms

In this regard the court stated that not one from any State agency medically examined the applicants nor interviewed the surviving victims until after the Court hearing. This shows that the existing investigative bodies are either not competent or not committed to comply with article 12 of the Torture Convention.

The court furthermore also remarked on the inadequacy of the Independent Police Investigative Directorate as well as the Military Ombud.

CONCLUSION

This judgment gives some assurance to citizens of South Africa that crucial human rights contained in the Bill of Rights may not be infringed, despite the stringent lock-down regulations. It furthermore reassures that the SANDF and SAPS are not clothed with power to “punish” South Africans. Organs of state remains accountable for their actions as provided in the Constitution.

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