The Social Justice Coalition (SJC),Treatment Action Campaign (TAC), Free Gender, Equal Education (EE), Triangle Project and Ndifuna Ukwazi submitted a formal legal complaint demanding a Commission of Inquiry into the Khayelitsha criminal justice system. The complaint against SAPS, the Metro Police and their interface with the prosecuting authority and judiciary was prepared by the organisations with the Women’s Legal Centre.
Members of the Khayelitsha community routinely experience violations of their constitutional rights to: equality, human dignity, life, freedom and security of the person, privacy, movement, property, housing, access to courts as well as the rights given to arrested, detained and accused persons, are violated by the police, including the Cape Town Metro Police Department (CTMPD) and other actors in the criminal justice system, on a daily basis. The police also violate laws founded upon these fundamental rights such as the Children’s Act and PIE.
The systemic failure of the Khayelitsha police, including the CTMPD to prevent, combat and investigate crime, take statements, open cases and apprehend criminals also violates the provisions of section 195 of the Constitution which requires that all public administration be conducted professionally, ethically, impartially and with the effective, economic and efficient use of human, material and financial resources.The Premier and the MEC of Community Safety have the constitutional power to appoint a commission of inquiry into policing in Khayelitsha, and to develop a plan to eliminate the problems identified, based on its recommendations.
The Commission of Inquiry
Section 127(2)(e) of the Constitution and section 37(2)(e) of the Constitution of the Western Cape grant the Premier of the Western Cape (“the Premier”) the power to appoint commissions of inquiry. These provisions should be read in conjunction with section 66(2) of the Constitution of the Western Cape, referred to above, and section 1 of the Western Cape Provincial Commissions Act, 10 of 1998 (“the Provincial Commissions Act”), which deals with the procedure to be followed by the Premier in appointing a commission of inquiry.
The civil society organizations request the Premier to appoint a five person commission of inquiry to investigate and report on the issues raised by this complaint. The commission should be headed by a retired judge and include, as commissioners, a lawyer, a member of the Khayelitsha community and an expert in policing and/or the criminal justice system. The commission would need to have the coercive powers provided for in section 3(1) of the Provincial Commissions Act.
The CTMPD is a fundamental part of the policing problems being experienced by Khayelitsha residents. The general demeanor of its members and their many acts of unlawful evictions and destruction of property in informal settlements are a violation of the constitutional and other legal obligations. They are a source of terror to people living in informal settlements rather than a force for good. It is accordingly imperative that the commission’s terms of reference be broad enough to allow it to investigate the effectiveness of both the SAPS and the municipal police.
· an evaluation of its effectiveness;
· an assessment of the suitability of the priorities, personnel, training, resources, systems, policies and community engagement practices employed;
· the causes of the breakdown in relations between the Khayelitsha community and the police;
· the establishment of the reasons for the inefficiencies at the interface between policing and the broader administration of justice;
· the measures necessary to redress the inefficiencies and other problems identified, including a social crime prevention strategy; and
· the time-frames for the implementation of its recommendations.
The findings of the commission of inquiry will then provide the basis for recommendations to be made, in terms of section 206(5)(b) of the Constitution and section 66(2)(b) of the Constitution of the Western Cape, by the province to the Cabinet member responsible for policing.
It is submitted that although this complaint relates to Khayelitsha specifically, many of the issues are relevant to other poor and working class areas in the city and the province. The civil society organizations thus urge the provincial executive to consider instituting a similar enquiry into an area that also experience disproportionately high levels of crime and where access justice is inadequate, such as Hanover Park, Mitchell’s Plain or Manenberg. This will allow the Commission of Inquiry to generalize experiences from both formal and informal settlements.