3 October 2013
The Constitutional Court dismisses Minister Mthethwa’s application as an “unwarranted overstatement that has no merit”
The Constitutional Court judgment on 1 October 2013 has delivered a small measure of justice for the countless victims of violent crime in Khayelitsha and elsewhere in South Africa. In its judgment the Constitutional Court upheld the complaint by the Social Justice Coalition (SJC), Treatment Action Campaign (TAC), Equal Education (EE), Triangle Project (TP) and Ndifuna Ukwazi (NU) saying:
“The details of incessant crime emerging from the complaint are unsettling. There is much to worry about when the institutions meant to protect vulnerable residents fail or are perceived to be failing.”
This judgment sets the first precedent on the powers and duties of the police; the right of communities to complain and hold police accountable; and the duty and right of a province to protect its residents from violent crime and hold the police to account. This means that local communities anywhere in the country can demand that provinces take the responsibility to ensure effective, efficient and honest policing.
We are expecting the Commission to start its work within the next six weeks and we are preparing to provide evidence for its inquiry. It is hoped that recommendations made by the Commission will be developed into a 5-year plan to increase safety; and to ensure proper detection, investigation and conviction of crimes. Specifically, murder, gender-based violence, hate crimes and assault. Safety means creating safe schools, streets, homes, transport, and public spaces.
Deputy Chief Justice Dikgang Moseneke, writing on behalf of a unanimous court, held that the O’Regan-Pikoli commission of inquiry into SAPS in Khayelitsha had to continue and reiterated its right to call the police to testify. He said:
“The police service has been entrusted with a duty to protect the inhabitants of South Africa and to uphold and enforce the law. The Constitution requires accountability and transparency in governance. It establishes a general framework for oversight as well as specific mechanisms through which a province may exact accountability. The complainants [SJC, TAC, EE, TP and NU] sought to invoke these oversight mechanisms which will be best served by a commission entrusted with powers of subpoena over members of the police service.”
The judgment dismissed SAPS argument that the subpoena amounts to ‘control over the police service’ as an “unwarranted overstatement that has no merit.”
The Constitutional Court further held that:
“A Premier and the province bear the duty to respect, protect and promote the fundamental rights of people within the province. In the case, the Premier is obliged to take reasonable steps to shield the residents of Khayelitsha from an unrelenting invasion of their fundamental rights.”
We welcome the decision of the Constitutional Court and call on the police, and all spheres of government to cooperate fully with the O’Regan–Pikoli Commission in the interests of the people of Khayelitsha, who deserve to be heard.
For enquiries please contact:
Phumeza Mlungwana 074 417 8306
Craig Oosthuizen 071 611 7237
Yoliswa Dwane 076 706 2338
Ingrid Lynch 021 868 1475
Marcus Low 082 962 8309
The Constitutional Court agreed that the “rights and interests of these residents lie at the heart of the dispute.” The latest crime statistics reveal that at least one person is murdered; two people are raped and almost five assaults with intent to inflict grievous bodily harm occur every day in Khayelitsha. Furthermore nationally and within the Western Cape, the police have been found to be committing more crimes than ever before.
The O’Regan–Pikoli Commission is the result of a decade of campaigning by the people of Khayelitsha as well as activists from the Treatment Action Campaign, Equal Education, the Social Justice Coalition and Ndifuna Ukwazi.
Through countless marches, protests, letters of demand and memoranda handed over to the SAPS and to national and provincial governments, the campaign for the O’Regan–Pikoli Commission has sought to draw attention to the widespread inefficiencies, apathy, incompetence and systematic failures of policing routinely experienced by Khayelitsha residents.
In August 2012 Premier Helen Zille relented and appointed a Commission of Inquiry into police inefficiency and a breakdown of relations between the community and the police, after months of trying to engage the Minister of Police on the subject.
In November 2012 the Minister of Police applied to the Western Cape High Court for an urgent interdict to stop the O’Regan–Pikoli Commission from proceeding, claiming that serving subpoenas on members of SAPS would amount to exercising control over the police.
In January 2013 the High Court dismissed the Minister’s application with costs and the Minister subsequently appealed to the Constitutional Court.
The relationship between the community and the police is at an all-time low, and the O’Regan–Pikoli Commission provides a key opportunity to rebuild the community’s trust in the police.
Every day in Khayelitsha, people’s constitutional rights to life, dignity, education, safety and freedom are challenged by crime.
The O’Regan–Pikoli Commission offers the police and the community a chance to reflect on crime and justice in Khayelitsha and how to properly address these issues.
Regrettably the Commission of Inquiry and the people of Khayelitsha have become subjects of an unseemly political squabble. We urge political parties not to make this a party issue, but put the people’s interests first.