A Small Measure of Justice for People Affected by Crime in Khayelitsha

Joint press statement from the Campaign for Safe Communities, Social Justice Coalition, Treatment Action Campaign, Equal Education, Ndifuna Ukwazi, Triangle Project and the Western Cape Religious Leaders Forum (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.

The outcome of this judgment was the work of many SJC, TAC, EE, NU and Triangle Project activists supported by the Campaign for Safe Communities. Thank you to our legal team: Peter Hathorn, Ncumisa Mayosi, Thembeka Ngcukaitobi and Michael Bishop. We also thank the Legal Resources Centre, in particular Sheldon Magardie, and the Women’s Legal Centre.

For enquiries please contact:

Phumeza Mlungwana
(Mobile)        074 417 8306
(Email)         phumeza@sjc.org.za

Craig Oosthuizen
(Mobile)        071 611 7237
(Email)         craig@nu.org.za

Yoliswa Dwane
(Mobile)        076 706 2338
(Email)         Yoliswa.dwane@equaleducation.org.za

Ingrid Lynch
(Tel.)             021 868 1475
(Email)          advocacy@triangle.org.za

Marcus Low
(Mobile)         082 962 8309
(Email)          marcus.low@tac.org.za

Background

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.

Going Forward

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.

[ENDS]

SJC to hold events in run up to the constitutional court case that will decide the future of the commission

Press statement from the SJC (1 August 2013)

SUPPORT THE COMMISSION OF INQUIRY
INTO POLICING IN KHAYELITSHA!

On 6 August 2013 the Constitutional Court will hear the case that will determine the future of the O’Regan/Pikoli Commission of Inquiry into Khayelitsha policing. The SJC is a respondent in this matter. Established in August 2012, following sustained advocacy by the SJC and other Khayelitsha civil society organisations, the Commission was tasked with investigating the breakdown in relations between the police and the Khayelitsha community as well as ineffective policing in the area.

Khayelitsha’s police and criminal justice systems remain overburdened and under-resourced. Residents of Khayelitsha continue to experience extremely high levels of crime and violence. When people seek justice through the courts they are very often left with no closure. The three SAPS stations serving the area consistently record some of the highest incidences of murder and sexual assault in the country; last year there were 360 murders in Khayelitsha – an average of one every day.

There is a wealth of evidence supporting the need for an independent investigation into the systemic problems in the Khayelitsha area – including the police’s own data. We have made it clear that such a process would assist the police rather than hinder their work. However, in November 2012, with the Commission well underway in its investigative phase, public hearings scheduled and a report with recommendations due in February 2013, Police Minister Nathi Mthethwa and the SAPS instituted legal action to stop the Commission continuing its work. The police also sought a review of the Commission itself, arguing that it had been unlawfully established.

The Western Cape High Court heard the application and dismissed it in its January 2013 decision. The Minister of Police appealed the High Court ruling and the Constitutional Court will be the final arbiter on the matter. The SJC is confident that the Court will order that the Commission must continue with its crucial work.

The SJC notes with serious concern the increased politicisation of issues of policing, safety and justice in the Western Cape. This dilutes resources and takes time away from the critical task of increasing safety and access to justice. All responsible for the provision of safety and justice must deter from such wasteful actions and focus on the priorities.

PUBLIC ACTION 

Leading up to the Constitutional Court date on 6 August 2013, the SJC and partner organisations will hold events in Khayelitsha to raise awareness about the court case and in support of the Commission.

These are our plans going forward: 

Saturday, 3 August 

We will assemble at Enkanini at 10h00 by the traffic circle and then proceed down Walter Sisulu Road into the informal settlement itself. We will march via Zwezwe area and past Siphamandla High School on Lindela Street to the open area where we will hold our event. The programme will include community members speaking about their experiences of crime and violence in the area.

On the day of the Constitutional Court hearing, we will be hosting simultaneous events in Cape Town and in Johannesburg.

Tuesday, 6 August – Cape Town

We will be holding an event at Oliver Tambo Tambo Hall, located on Lansdowne Road. The event will begin at 10h00 and the programme will include speakers from a number of organisations. We also so plan to connect with the proceedings at the Constitutional Court via a video link.

Tuesday, 6 August – Johannesburg 

Members from the SJC and partner organisations from Khayelitsha and Johannesburg, including the Treatment Action Campaign, Equal Education, Right2Know and Ndifuna Ukwazi, will be marching from Joubert Park at 9h30 to the Constitutional Court where we will be attending the court case. We will also be holding a public gathering outside the Court where speakers will address participants and court updates will be provided.

Members of the press are welcome and encouraged to attend these events.

[ENDS]

For more information please contact:

Cape Town:                                              Johannesburg:

Nomlungisi Qezo     (0716426203)           Phumeza Mlungwana        (0744178306)

Ntuthuzelo Vika       (0730977082)           Welcome Makele                 (0748521118)

 

Minister Mthethwa announces conclusion of Audit on active SAPS members with criminal records

Media Statement from SAPS (28July 2013)

PRETORIA – The Minister of Police, Nathi Mthethwa today announced that an audit on members of the South African Police Service (SAPS) with criminal offences but are still within the employ of the department, has been completed. He revealed that the audit established that 1448 members have criminal offences.

“Reaching this milestone was critical for us as this was a very complex and painstaking exercise which entailed the assessment of individual members’ records. The process began two years ago and included auditing of all SAPS employees, those employed under SAPS Act and Public Service Act.”

“It entailed thorough processing of statistical data, cross checking against the Crime Information System, personnel human resource files and finger printing. The audit process was protracted and took longer than anticipated because part of our approach on this matter was to ensure we exhaust all the avenues, be they legal, operational as well as labour relations aspects.”

“The next step is for the National Commissioner of Police, General Riah Phiyega, to act on the outcome of the audit. I have now instructed her and the management team that feedback on action should be provided to me by the end of October this year,” the Minister said.

Minister Mthethwa indicated that the audit process revealed serious challenges with regard to management of discipline within the department. It was against this backdrop that he instructed the officials to develop a long term strategy on matters of discipline and related matters, which they are busy with.

“I wish to sincerely thank the team (SAPS as well as the Civilian Secretariat for Police) which worked very hard and meticulously to ensure that this audit was completed. The process going forward will require even more dedication.”

“This is a legal process where everyone will be given an opportunity to state his or her side of the story. That said, our resolve to root out any unwanted elements within the police will never be deterred by anything, no matter how long and what it takes,” the Minister concluded.

Ends/

For enquiries, please contact:

Zweli Mnisi, Spokesperson to the Minister of Police 082 045 4024

Issued by the Ministry of Police

Statements on police criminality from the IPID website

WARRANT OFFICER TO APPEAR IN COURT FOR RAPING A 13 YEAR OLD GIRL IN MAMELODI EAST, PRETORIA

Media Statement
14 May 2013
A 48 year old Warrant Officer, stationed at Mamelodi East SAPS will appear at the Mamelodi West Magistrate’s Court on 14 May 2013 following his arrest for raping a 13 year old minor.
It is alleged by the complainant (13 year old girl) that on 28 April 2013 at about 17:00 she was at her place of residence when the suspect, who is a sector manager at SAPS Mamelodi East, arrived at her place to collect her. Earlier that day the victim’s guardian had called the CPF members to talk to the complainant for refusing to do any chores in the house. The girl did not respond positively to the CPF members, so they called the sector manager for assistance. The sector manager (suspect) arrived at 17:00 and took the girl in a police vehicle – he gave the victim’s family the impression that the victim was going to be handed over to a female officer. He took her to a KFC and bought her a meal and then he took her to his house where he kept her for the night and raped her. He dropped the victim off at home the next morning.
The victim did not tell anyone due to having been threatened by the suspect. The next evening after 17:00 the suspect again took the girl to his house. As he was preparing to rape the girl, she managed to escape after asking to go to the toilet. The victim reported a case of rape with the assistance of other police officials who had picked her up on the road. The case was reported to the IPID which took over the investigation.
After absconding for about a week, the suspect handed himself in at Brooklyn SAPS. He appeared in court on 07 May 2013 facing a charge of rape and was remanded to 14 May 2013 at Mamelodi Court B at 12:00 for a formal bail application. The IPID will oppose bail.
Upon conducting further investigations it was established that this suspect has two child rape cases pending at Kwamhlanga and Mamelodi East. The victims in the two pending were also minors aged 12 and 8 respectively and he was given bail on both matters.
Issued by the Independent Police Investigative Directorate
For enquiries:
IPID National Spokesman
Moses Dlamini
082 809 1927

WARRANT OFFICER MARATSHANE TO BE PROSECUTED FOR ASSAULTING A FEMALE AT A FILLING STATION IN SMITHFIELD, FREE STATE

Media Statement
PRETORIA – 13 June 2013
The Director of Public Prosecutions (DPP) in the Free State has agreed with the recommendations of the Independent Police Investigative Directorate (IPID) that Warrant Officer Ernest Maratshane should be prosecuted for assault. The DPP has decided that the suspect be prosecuted for two (2) counts of assault with intent to cause grievous bodily harm (GBH).
Video footage of the assault emerged early in April 2013 from the media. The IPID conducted an investigation and recommended that the suspect be charged for the offences which took place at the filling station and at the police station.
Since the victim refused to co-operate with the investigation, the DPP has decided that she is a compellable witness.
Warrant Officer Maratshane will be summoned to appear at the Smithfield Magistrate’s Court on 04 July 2013 to answer to the aforesaid charges.
Issued by the Independent Police Investigative Directorate

IPID ARREST MAITLAND FLYING SQUAD CONSTABLE FOR MURDER, WESTERN CAPE – MFULENI CAS 298/06/2013

Media Statement
PRETORIA – 10 June 2013
The Independent Police Investigative Directorate (IPID) has arrested a 30 year old male constable for the murder of a 26 year old Zimbabwean national. The suspect constable who is attached to the Maitland Flying Squad Unit is alleged to have shot and killed the deceased with his official firearm in the early hours of Sunday, 09 June 2013.
It is alleged that at about 02h00 on 09 June 2013, the suspect constable was outside Zizi’s Tavern in Mfuleni Extention 6, where he wanted to buy alcohol, but was told that the tavern had already closed. An argument between him and the deceased, who was working as a security officer (guard) at the tavern ensued. The policeman alleges that the deceased pulled a knife and threatened to stab the policeman who then fired shots with his official firearm hitting the security guard on the shoulder. The security guard died on the scene.
Upon being notified of the incident, the IPID attended the scene and started with the investigation. Preliminary investigation and witnesses statements obtained by the IPID does not corroborate with the version of the policeman, hence the arrest of the suspect constable for murder on 09 June 2013. He will appear in the Bluedowns Magistrate Court on Tuesday, 11 June 2013. The Post Mortem is scheduled for today, 10 June 2013 at Tygerberg Forensic Pathology Services.
The investigation continues.
Issued by the Independent Police Investigative Directorate
For enquiries:
IPID National Spokesman
Moses Dlamini
082 809 1927

CONSTABLE ARRESTED FOR MURDER IN RANDFONTEIN, GAUTENG

Media Statement
PRETORIA – 27 May 2013
A 30 year old Constable has been arrested by the Independent Police Investigative Directorate (IPID) for shooting and killing a 22 year old Tshwane University of Technology (TUT) student, Gopolang Ngobeni. The shooting occurred at a Caltex Garage on Randfontein Road in Randfontein.
It is alleged that on 25 May 2013 five students from TUT were on their way to the funeral of the father of their friend in Mohlakeng in the West Rand. The students had travelled from the TUT Soshanguve Campus. Apparently the students did not know the direction and they got lost. They then followed a security vehicle which had come in front of them. After the security vehicle made a U-turn at a cul-de-sac, the students also made a U-turn. While driving towards a Caltex Garage with the intention of asking for directions, another security vehicle from the same company cut in front of them. Both security vehicles stopped next to a marked SAPS vehicle. The students drove on to the filling station. It is alleged that within a short space of time, the police vehicle (with its blue light on), as well as the security vehicles, followed the students to the filling station, which is near where they were.
The students were ordered to get out of their vehicle by the police. While trying to get out of the vehicle, Gopolang Ngobeni was shot by a policeman with an R5 rifle. The victim was declared dead at the scene. The vehicle in which the students were travelling was searched and nothing illegal was found.
The suspect was arrested by the IPID. He appeared on 27 May 2013 at the Randfontein Magistrate’s Court on a charge of murder. The case has been postponed to 3 June 2013 for a formal bail application.
The investigation continues.
Issued by the Independent Police Investigative Directorate.
For enquiries:
IPID National Spokesman
Moses Dlamini
082 809 1927

Press Alert: CAMPAIGN FOR SAFE COMMUNITIES TO DELIVER MEMORANDUM AGAINST POLICE BRUTALITY AND CORRUPTION

Download the press release here.

 

The Campaign for Safe Communities is a broad-based coalition advocating for improved safety and access to justice for all. The Campaign condemns in the strongest terms any instance of police brutality and corruption.

The horrific visuals of Mozambican taxi driver Mido Macia being hand cuffed to a police vehicle and dragged through the streets of Daveyton have outraged people across South Africa and the world. SAPS officers were so brazen as to commit these acts in front of hundreds of members of the public.

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It is alleged that Macia, who had a wife and young son, was then taken to the police station and savagely beaten by SAPS officers. Hours later he died from horrific injuries having received no medical attention.

 Sadly, instances of police brutality have become commonplace in South Africa. The images of Andries Tatane and Marikana have been burned into our national consciousness while there are daily reports of criminal behaviour perpetrated by the police. Shockingly, in 2011/12 more than 900 people died as a result of police action or in police custody.

It is recognised that the police and the criminal justice system are overburdened and under-resourced and that this has an enormous impact on the ability to provide safety and justice. However, instances of police brutality and corruption are unacceptable. Officers who stand by while their colleagues break the law are equally complicit.

The police maintain that because the service has approximately 200,000 members there will always be some ‘rotten applies’. But it is the responsibility of police leadership and management to ensure that officers are properly vetted, receive adequate training, are continuously assessed, and that tough action is taken against police who themselves are criminals. Officers who commit crimes very often go unpunished – of the 217 people who died at the hands of the police in Gauteng last year, there has only been one conviction.

On Monday 11 March, the Campaign for Safe Communities will be delivering a memorandum to the Portfolio Committee for Police at Parliament calling for strong action to be taken against police who break the law. For trust and faith to be restored in the police this is imperative.

We will be leaving Ndifuna Ukwazi’s offices (47 on Strand) at 12:00, walk via St. George’s Mall and arrive at Parliament at 13:00 to meet Annelize van Wyk and hand over the memorandum.

Members of the public and the media are invited to attend.

For inquiries please contact:

Axolile Notywala   (mobile) 0742895220

(email) axolile@sjc.org.za

For documents related to the Campaign for Safe Communities please visit safecommunities.sjc.org.za

MINISTER OF POLICE AND SAPS APPEAL TO CONSTITUTIONAL COURT TO STOP O’REGAN/PIKOLI INQUIRY – WASTEFUL ABUSE OF PUBLIC MONEY

On 14 January 2013, the Western Cape High Court dismissed with costs an urgent interdict by Minister of Police Nathi Mthethwa and SAPS to stop the O’Regan/Pikoli Commission of Inquiry (CoI). The Court accepted that the Social Justice Coalition (SJC), the Treatment Action Campaign, Equal Education, Triangle Project and many other partners campaigned for “ten years against the ever deteriorating and despairing conditions of criminal activity and impunity in the greater Khayelitsha area”.

On 28 January 2013, Minister Mthethwa and SAPS decided to appeal to the Constitutional Court. As the court battles continue lives are lost, women continue to be raped and school gangs terrorise the people of Khayelitsha. On 1 February 2013, the Minister of Police and SAPS released a statement that illustrates an arrogant contempt for the public and victims of crime. The SJC unequivocally condemns the waste of public money by the Minister of Police and SAPS represented in this case by four advocates including two senior counsel.

Background

Over an entire decade the national SAPS Ministers and Commissioners have ignored the pleas of people and organisations in Khayelitsha. After almost two years of pressure Premier Helen Zille agreed to establish the O’Regan/Pikoli CoI on 22 August 2012. The CoI is investigating allegations of police inefficiency and a breakdown in relations between the SAPS and the Khayelitsha community.
Premier Zille attempted for about six months to get a decent response from the SAPS. Commissioner Mangwashi Riyah Phiyega was the first person to attempt to deal with the issues but after a good start basically failed to report on progress of her internal investigation. As the CoI was about to commence its public hearings where people would speak about their experiences of crime and safety, the police stopped the hearing with a court application. They failed.

On 28 January 2013 the SAPS lodged an application with the Constitutional Court requesting leave to appeal against the High Court decision. In court papers, SAPS again argue that the CoI was unlawfully established and that its operation will undermine the ability of the police perform their job.
The Minister and SAPS have placed much weight on the fact that the Court was divided. In a majority decision Justice James Yekiso found that a province had the constitutionally mandated power to establish a commission of inquiry into policing and that Premier Zille acted rationally based on the information available to her at the time. Justice Vincent Saldahna dissented and suggested that the Premier, Minister and Commissioner of Police attempt to negotiate a settlement in the interest of the people of Khayelitsha.

Everyone has the right to appeal to a higher court to resolve a matter but SAPS knows that the Western Cape High Court has not finally decided the matter. Regrettably, Minister of Police Nathi Mthethwa has decided to deliberately delay the CoI and to waste public money.

SAPS statement on appeal to Constitutional Court misleads the public

A statement issued by SAPS on 1 February 2013, disingenuously states that, “The Minister (Mthethwa) believes that it would not be coherent or useful to have two enquiries functioning at the same time to consider the same complaints”.

The two investigations referred to here are the O’Regan/Pikoli CoI and an investigation proposed by the SAPS that was only tabled after the O’Regan/Pikoli CoI had been set up. When the SJC requested clarity on the terms of reference of the police’s proposal, they failed to respond. The press release suggests that police were ready and willing to establish an independent body that would essentially perform the task of the O’Regan/Pikoli CoI. This is not the case.

Rather, the Minister has done his utmost to see that independent investigation does not take place. It must be remembered that they ignored requests for substantive responses to this process for more than half a year after we lodged our formal complaint in November 2011. We learnt from the Court papers for the first time that Commissioner Phiyega wanted to establish an independent panel. However, this was not communicated by Minister Mthethwa who proposed an “internal investigation” and then if necessary an independent review.

It is time that the police stop wasting public money to challenge this process – one that was established with the key objective of improving levels of and access to safety and justice for people living in Khayelitsha and at the same time, assisting police to perform their jobs more effectively. The SJC is a respondent in this matter and we will be opposing the Constitutional Court application. It is imperative that the CoI be allowed to continue its work – with the cooperation of the SAPS, all government departments responsible for the provision of safety and justice, as well as the City of Cape Town.

The crux of the matter must not be forgotten. The O’Regan/Pikoli CoI is about the rights to life, safety, freedom from harm and access to justice. The police’s application to the Constitutional Court only further delays the vital contribution that the CoI will make to improve lives in Khayelitsha and beyond.

[ENDS]

For enquiries please contact:

Axolile Notywala

(mobile) 0742895220
(twitter) xila_notywala
(email) axolile@sjc.org.za

Phumeza Mlungwana

(mobile) 0744178306
(email) phumeza@sjc.org.za

The police application to the CC is available online at http://safecommunities.sjc.org.za/resources/. Other documents relating to the CoI and the High Court case are available online at http://www.nu.org.za/coi.

University of Cape Town and University of Stellenbosch support Khayelitsha Commission of Inquiry

Statement from the University of Cape Town and Stellenbosch University on the breakdown in relations between the police and the Khayelitsha community

It is deeply troubling that residents of Khayelitsha fear leaving their homes at night as a result of on-going violence and intimidation. Of concern too, is that despite the Khayelitsha community having campaigned for the improvement of the quality of policing services over several years, very little has been done to assuage their concerns. As universities, we are committed to the development of individuals, through knowledge, to their fullest potential. Violence, its effects and the fear of violence are an enormous hindrance to human development. It is for these reasons that we have decided to issue this statement.

Khayelitsha has one of the highest levels of violent crime in the country, particularly murder and attempted murder. And, uncontroversially, crime is a far more pervasive threat for those living in crowded, impoverished, poorly serviced informal settlements of which Khayelitsha is typical compared to more affluent areas. Without adequate roads, lighting or safe transport, the residents of Khayelitsha are more vulnerable to social contact crime than those South Africans who enjoy such amenities. Moreover, the residents of this community are largely unemployed and thus dependent almost entirely on the provision of government protection, welfare and services.

The South African government has an obligation to protect members of the public from violations of their constitutional rights. In respect of policing, there is a specific constitutional duty on the South African Police Service (SAPS) to “prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.” Notably, in S v Walters, the Constitutional Court stated:

“Police officers do not have a discretion to fulfill these obligations if theywish – it is their duty to do so. They are always entitled and often obliged to take all reasonable steps…to carry out their duties.”

In addition, section 12(1)(c) of the South African Constitution states that everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. South African courts have recognized that freedom from violence is fundamental to the equal enjoyment of human rights and fundamental freedoms. There is thus a duty on the state and all of its organs not to perform any act that infringes these rights and, in certain circumstances, also a positive component, which requires the state to provide appropriate protection to everyone through legislation and policing structures.

Given the acknowledged level of dysfunction at the Khayelitsha police stations by both the SAPS and the Auditor-General, the unabating levels of violence, and the obvious dissatisfaction amongst residents with the standards of policing, the government’s failure to deliver any form of integrated solution to the policing problem is cause for deep concern. For as long as Khayelitsha continues to be affected by extreme violence and an ineffective responses from government, community members will continue to have their rights to life, security and bodily and psychological integrity violated on a daily basis.

Therefore, given the fundamental nature of the rights and duties of the South African government enumerated above, we urgently call for measures and processes that will improve police effectiveness, reduce violence and restore the breakdown in relations between the community and the police in Khayelitsha. As a first step, it is imperative that the state of policing in Khayelitsha be impartially and independently investigated, and that recommendations of this investigation be promptly implemented. It is essential that this investigation be supported by all levels of government, and be based on sound constitutional principles and that it aspires, ultimately to:

- help build a community free from violence and crime,
- ensure that the police service acts in accordance with the constitution and the law and
- ensure an open, accountable, ethical and efficient government that eradicates, condemns and punishes corruption.

 

POLICE MINISTER NATHI MTHETHWA “HOPELESSLY UNRESPONSIVE” TO SERIOUS CRIME IN KHAYELITSHA

15 January 2013

STATEMENT:

POLICE MINISTER NATHI MTHETHWA “HOPELESSLY UNRESPONSIVE” TO SERIOUS CRIME IN KHAYELITSHA

Judges say O’Regan Commission of Inquiry into SAPS must go ahead

On Monday 14 January 2013, the Western Cape High Court dismissed Minister of Police Nathi Mthethwa and the South African Police Service’s (SAPS) urgent attempt to stop the O’Regan Commission of Inquiry (CoI) from continuing its work. The order was made with costs and SAPS has to pay the respondent’s legal fees.

Both the majority and minority judgments of the Court vindicate the rights of people living and working in Khayelitsha under threat of extreme violence and crime. The High Court judgments also vindicate the work of the Social Justice Coalition (SJC), Treatment Action Campaign (TAC), Equal Education (EE), Triangle Project (TP) and Ndifuna Ukwazi (NU) over a ten year period.

The CoI is free to continue its investigations and hearings until the second part of Minister Mthethwa’s case is heard. The Court will have to see more evidence and hear more argument from the SAPS and our organisations before making a final judgment.

Minister Mthethwa and SAPS are studying the judgments and deciding whether they will appeal. They have until 28 January 2013 to do so. Our organisations urge SAPS to accept the findings of the Court and to co-operate with the CoI. Similarly, we urge Minister Mthethwa not to pursue the second leg of the case to have the entire CoI set aside because it is unlikely that the police will win. It will also further delay the work of the CoI and waste more money in legal fees.

We further demand that the Minister of Police secures Cabinet approval for the Departments of Justice and Constitutional Development and Correctional Services to work with the CoI.

We also urge Premier Helen Zille and Mayor Patricia de Lille to ensure the fullest co-operation of the City of Cape Town and all other provincial departments with the CoI.

We want a plan to make Khayelitsha safe – to ensure that it has a functional and professional police service and a prosecutorial and court system that punishes crime and delivers justice. By learning from the work of this Commission government can work with all communities to make South Africa safe for all the people who live in our country.

Our organisations are naturally pleased with the outcome of this case and the CoI is now legally permitted to continue. However, this is a matter that should never have ended up in court. The decision taken by the SAPS in November 2012 to challenge the legality of the CoI has cost taxpayers millions or rands. It has also delayed the CoI’s work. Khayelitsha continues to experience extremely high levels of crime and violence and its police and criminal justice system remain overburdened and under-resourced. Any delay of a process aimed to address these issues is extremely problematic and worrying – especially when the cause of the delay is government itself.

The Social Justice Coalition, Treatment Action Campaign, Equal Education, Triangle Project and Ndifuna Ukwazi express our immense gratitude to our legal team. In particular, we express our thanks to Advocates Peter Hathorn and Ncumisa Mayosi for providing sound legal advice, leadership, and meticulous attention to detail to ensure that people in Khayelitsha continue taking steps to ensure safety in their community as a precursor to safety and justice for all people across South Africa. We also wish to thank the Women’s Legal Centre, our attorneys who were slandered by the Minister of Police and his legal team. In particular, we wish to thank Sanja Bornman our attorney.

A range of people, organisations, and institutions in Khayelitsha and across the country made this small but significant victory for the O’Regan/Pikoli Commission and to achieve safety and justice for all possible.

Last, the court recognised that our members and staff together with Khayelitsha residents have now struggled against murder, rape, hate crimes, assaults, and robbery for more than a decade. Their dedication and courage brought the O’Regan/Pikoli Commission into SAPS in to existence and successfully defended it.

A brief analysis of the judgments is included below.
[ENDS]

For enquiries please contact:
,
Phumeza Mlungwana (mobile) 0744178306 (email) phumeza@sjc.org.za

Axolile Notywala (mobile) 0742895220 (twitter) xila_notywala (email) axolile@sjc.org.za

“The ever deteriorating and despairing conditions of criminal activity and impunity” – Minister of Police and Others v Premier of Western Cape and Others Western Cape High Court, Cape Town — Case No: 21600/12 14/01/2013

Justice James Yekiso’s majority judgment accepts that the CoI’s work must study the “alleged systemic failure of the police in Khayelitsha to prevent, combat, and investigate crime, take statements open cases and apprehend criminals”. He accepted the fact that the SJC, TAC, EE, TP and NU complained about “the widespread inefficiency, apathy, incompetence and systemic failures of policing routinely experienced by Khayelitsha residents”. Deputy Judge-President Jeannette Traverso agreed with Justice Yekiso and they dismissed the application by Minister Mthethwa and SAPS with costs.

Justice Vincent Saldanha wrote a dissenting minority judgment which would have forced the parties to try and reach a compromise by 31 January 2013. He stated that he and his colleagues were “extremely mindful of the desperate conditions that the community of Khayelitsha live in, with extreme levels of crime, poverty and inequality”. Justice Saldhana cited one and a half pages of the SJC’s founding affidavit by Mandla Majola which in summary stated:

This issue does not relate to… the political sniping and barbs exchanged between the Premier and the First Applicant (“the Minister”). Ultimately, this case is about the appalling level of crime experienced by residents of Khayelitsha on a daily basis. ….

The SJC submits that this case must in the first instance address the state’s duty to respect, protect, promote and fulfil, among others, the rights to life, dignity, freedom and security of the person, equality, privacy and the best interest of children. A criminal minority terrorises people living and working in Khayelitsha day and night, but we believe that this case must also take into account the constitutional rights of arrested, detained and accused persons.

While I and the other deponents on behalf of the SJC are often critical of the Applicants, we would far prefer to be working together with them, and the other parties, in addressing the circumstances of people living in informal settlements in Khayelitsha who are too scared to go out to the toilet at night or residents who are struggling to come to terms with the shock of having been robbed or raped without the benefit of counselling or institutional support.

Justice Saldanha accepts that our organisations campaigned for “ten years against the ever deteriorating and despairing conditions of criminal activity and impunity in the greater Khayelitsha area”. He found that Minister Mthethwa and Provincial Commissioner Arno Lamoer’s “interactions with the community” of Khayelitsha and our organisations “was hopelessly unresponsive”. However, he believed that the Premier and our organisations should have written another letter to Commissioner of Police General Mangwashi Phiyega.

Regrettably, Justice Saldanha fails to acknowledge that our organisations not only fully co-operated with the SAPS Task Team and granted the Commissioner an extra extension. He ignores the fact that we wrote two letters inviting her to meet with our organisations and the community but she failed to even acknowledge our letters.

Justice Yekiso (Deputy Judge-President agreeing) found that the Premier had acted lawfully and within her constitutional powers in setting up the Commission of Inquiry into SAPS Khayelitsha on 22 August 2012.

On the basis of the evaluation of the evidence …I cannot find that a case has been made. … that the Premier, in establishing the Commission in the manner she did, violated any one of the provisions relating to the principles of co-operative governance and inter-governmental relations as set out in Section 41 of the Constitution; that the Premier misconstrued her powers arising from the provisions of section 206(5)(a) of the Constitution; or that in the period prior to the establishment of the Commission and at the time she established the Commission itself, the Premier violated any one of the provisions relating to the basic values and principles governing public administration as set out in section 195 of the Constitution. It therefore follows that the applicants’ claim for interim relief, derived as they are from the Constitution, ought to fail.

Justice Saldanha would have ordered the Minister, SAPS and the Premier to negotiate and reach a settlement within two weeks. Justice Saldanha correctly held that:

In dealing with such issues 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.

Justice Saldanha also hoped that the SJC, TAC, EE, Triangle Project and NU would co-operate with all spheres of government stating that “more importantly none of them should compromise their independence in doing so”.

Meaningful engagement between all spheres of government, organisations, and communities (not conflict) has always been the primary objective of our organisations. In the struggle against crime only such meaningful engagement and co-operation will realise the rights to life, dignity, security of the person, including freedom from all sources of violence whether private or public. We call for meaningful engagement by all parties with the O’Regan/Pikoli Commission of Inquiry into policing and safety in Khayelitsha.

UMPHATHISWA WAMAPOLISA UNATHI MTHETHWA: AKAPHENDULI KULWAPHULO-MTHETHO OLUNZIMA EKHAYELITHSA: Iijaji zithi Iqela Eliphandayo lika O’Regan kwi SAPS maliqhubekeke

COIprotest.Hcourt6

 

Ngo Mvulo 14 ka Januwari 2013, Inkundla Yamatyala Ephakamileyo yaseNtshonalanga Kapa izikhabile iinzame zoMphathiswa wamaPolisa uNathi Mthethwa neNkonzo yamaPolisa oMzantsi Afrika (SAPS) zokumisa Iqela Eliphandayo lika O’Regan ekuqhubekekeni nomsebenzi walo. Isigqibo senziwe neendleko, oku kuthetha ukuba iSAPS kufuneka ibhatele iindleko zomthetho zabamangalelwa.

Zozibini izigwebo zeNkundlka, esesininzi nesobuncinane zingqinela amalungelo abantu abahlala nabasebenza eKhayelitsha besoyika ubundlobongela nolwaphulo-mthetho olugqithiseleyo. Isigwebo seNkundla ePhakamileyo sikwangqinela nomsebenzi ka Social Justice Coalition (SJC), Treatment Action Campaign (TAC), Equal Education (EE), Triangle Project (TP) ne Ndifuna Ukwazi (NU) kwisithuba seminyaka elishumi.

Iqela eliphandayo livumelekile ukuqhubeka nophando nemihlangano yalo de kuviwe icala lesibini letyala likaMphathiswa uMthethwa. INkundla kuyakufuneka ive obunye ubungqina obusuka kwi SAPS nakwimbutho yethu ukuze yenze isigwebo esigqibeleleyo.

UMphathiswa uMthethwa neSAPS basafunda isigwebo ukuze bagqibe ukuba bazakubhenelela isigwebo kwaye banexesha eliphela nge 28 Januwari ukwenza oko. Imibutho yethu ibongoza iSAPS ukuba isamkele isigwebo seNkundla kwaye isebenzisane neqela eliphandayo. Ngokufanayo, sibongoza uMphathiswa uMthethwa ukuba angaqhubekeki nesigaba sesibini selityala sokubeka iqela eliphandayo bucala ngoba akubonakali ngathi amapolisa angaliphumelela. Oku kuzakuphinda kulibazise umsebenzi weqela eliphandayo kwaye kumoshe enye imali eninzi kwiindleko zomthetho.

Sikwafuna ukuba uMphathiswa afumane imvume yeKhabhinethi ukuze iSebe lezoBulungisa noPhuhliso loMgaqo-siseko kunye nenkonzo yezoLuleko isebenze neqela eliphandayo.

Sikwabongoza iNkulumbuso uHelen Zille noSodolophu uPatricia de Lille ukuba baqinisekise ukusebenzisana okugqibeleleyo kwesiXeko saseKapa nawo onke amanye amasebe ephondo neqela eliphandayo.

Sifuna icebo lokwenza iKhayelitsha ikhuseleke – ukuqinisekisa ukuba inesebe lobupolisa elisebenzayo kunye nomgaqo wenkundla notshutshiso owohlwaya izaphuli-mthetho uzise ubulungisa. Ngokufunda kulomsebbenzi weliqela urhulumente angasebenza nazo zonge iindawo ukwenza uMzantsi Afrika ukhuseleke kumntu wonke ohlala esizweni sethu.

Imibutho yethu ikholisekile yimiphumela yelityala kwaye iqela eliphandayo ngoku livumelekile ngokusemthethweni ukuba liqhubekeke. Kodwa, lo ngumba obekungafanelanga ukuba ufikelele enkundleni. Isigqibo esithathwe ngamapolisa ngoNovemba sokuphikisa ukuba semthethweni kweqela eliphandayo kuxabise umrholi-rhafu izigidi zeerandi. Ikwalibazise nomsebenzi weqela eliphandayo. IKhayelitsha iyaqhubekeka ukuba namazinga  akumgangatho omkhulu kakhulu olwaphulo-mthetho nobundlobongela kwaye namapolisa alapha nomgaqo wobulungisa wolwaphulo-mthetho ushiyeka usindeka kwaye ungenazixhobo. Ukulityaziswa kwenkqubo ezama ukulungisa ezizimo kuyingxaki enkulu kwaye kuyakhathaza – ingakumbi unobangela wokulityaziswa ingurhulumente buqu.

[IYAPHELA]

Ukuba unemibuzo nceda uqhagamshelane no:

Axolile Notywala

(mobile) 0742895220

(twitter) xila_notywala

(email) axolile@sjc.org.za

Phumeza Mlungwana

(mobile) 0744178306

(email) phumeza@sjc.org.za

 

INQAKU NGESIGWEBO

Isigwebo sesininzi sika Justice James Yekiso siyavuma ukuba umsebenzi weqela eliphandayo mawujonge “ukutyholwa kokungasebenzi ngendlela komqago wobupolisa eKhayelitsha ekunqandeni, ekulweni, nasekuphandeni ulwaphulo-mthetho, ukuthatha iintetho, ukuvula amatyala nokubamba izaphuli-mthetho”.Uvumile ukuba uSJC, TAC, EE, TP no NU bakhalazele “ukungasebenzi ngendlela okubanzi, ukungakhathali, ukungalungeli umsebenzi nokungasebenzi kemigaqo yamapolisa esoloko ibonwa ngabahlali baseKhayelitsha”. Isekela lika Mongameli oyiJaji uJeannette Traverso uvumelene no Justice Yekiso baze basikhaba isicelo sikaMphathiswa uMthethwa ne SAPS sihamba neendleko.

UJustice Vincent Saldanha ubhale isigwebo sobuncinane esiphikisayo ebesizakunyanzelisa lamaqela ukuba azame ukufikelela kwisivumelwano phambi kwe 31 Januwari 2013. Uveze ukuba yena nabalingane bakhe “baxhalabe kakhulu yindlela embi abahlali baseKhayelitsha abaphila kuyo, namazinga aphezulu olwaphulo-mthetho, indlala nokungalingani”. uJustice Saldanha ucaphule iphepha elinye elinecala le affidavit ka SJC ebhalwe nguMandla Majola encitshiswe ngoluhlobo:

Lo mba awuyelelenanga kwimpixano yobupolitiki evele phakathi kwenkulumbuso nommangali wokuqala (“uMpathiswa”). Ekugqibeleni, elityala liveza amaqondo anxunguphalisayo olwaphulo-mthetho afunyanwa ngabahlali baseKhayelitsha mihla le….

USJC uxela ukuba elityala maliqale ngokujonga umsebenzi karhulumente wokuhlonipha, akhusele, anyusele afezekise, kwamanye, amalungelo obomi, isidima, inkululeko nokhuseleko lomntu, ukulingana, imfihlo neemfuno zabantwana. Ubuncinane bezaphuli-mthetho budandathekisa abantu abahlala nabasebenza eKhayelitsha busuku nemini, kodwa sikholelwa ukuba elityala malithathele ingqalelo namalungelo akumgaqo-siseko abo babanjiweyo, baselugcinweni nabantu abathyolwayo.

Nangona mna namanye amangqina kaSJC sisoloko sigxeka Abamangali, singathanda ukuba sikhethe ukusebenzisana nabo, kunye namanye amaqela, ekulungiseni iimeko zabantu abahlala ematyotyombeni aseKhayelitsha aboyika ukuya kwizindlu zangasese ebusuku okanye abahlali abangakwaziyo ukumelana nokuhlala bekhuthuzwa okanye bedlwengulwa bengafumani macebiso okanye inkxaso yamaziko athile.

 UJustice Saldanha uyavuma ukuba imibutho yethu ibikhankasa “isithuba seminyaka elishumi ikhankasela isimo esinyukayo nesingathembisiyo kwizenzo zolwaphulo-mthetho nokungohlwaywa kwingingqi yaseKhayelitsha”. Ufumanise ukuba iindibano zabahlali baseKhayelitsha noMphathiswa uMthethwa noMkhomishinala uArno Lamoer nemibutho khange ibe namiphumela”. Kusenjalo, ukholelwa ukuba iNkulumbuso nemibutho yethu ngeyibhale enye ileta eya kuMkhomishinala wamaPolisa uGeneral Mangwashi Phiyega.

Ngosizi, uJustice Saldanha akayivumi into yokuba imibutho yethu ayiphelelanga nje ekusebenzisaneni neTask Team ye SAPS yaze yanika uMkhomishinal ixesha elongezelelweyo. Akayinaki inyani yokuba sibhale iileta ezimbini simema yena ukuze adibane nathi kunye nabahlali kodwa zange akwazi nokuvuma ukuba uzifumene iileta zethu.

UJustice Saldanha ebezakuyalela uMphathiswa, iSAPS kunye neNkulumbuso ukuba bathetha-thethane ngesigqibo kwiiveki ezimbini. UJustice Saldanha uthe:

 Ekujongeni iindima ezinje kungalungela wonke ubani kwaye ngokubalulekileyo abahlali baseKhayelitsha ikakhulu amaxhoba olwaphulo-mthetho ukuba kubekho intsebenziswano enkulu phakathi kwalamacandelo mabini karhulumente kwaye basebenze ngokomgaqo-siseko.

 UJustice Saldanha ubekwanalo nethemba lokuba uSJC, TAC, EE, Triangle Project ne NU bayakusebenzisana nawo onke amacandelo karhulumente esitsho ukuba “okubaluleke kakhulu kungabikho kulemibutho emosha ukuzimela kwayo ekwenzeni oko”.

UJustice Yekiso (evumelana noMongameli oyiJaji) bafumanise ukuba iNkulumbuso yenze ngokusemthethweni kwaye ngokwamandla ayo akumgaqo-siseko ekuqaliseni iQela Eliphanda iSAPS eKhayelitsha nge 22 ka Agasti 2012.

 Ekujongeni kobungqina … Andifumanisi ukuba kukho ityala lokuba iNkulumbuso, ekuqaliseni iQela eliphandayo ngendlela enze ngayo, ixhaphaze nalinye lemiqathango ehambelana nokusebenzisana koorhulumente njengoba kubekiwe kwicandelo 41 loMgaqo-Siseko; okokuba iNkulumbuso iwaqonde kakubi amandla ayo asuka kwimimiselo yecandelo 206(5)(a) loMgaqo-Siseko; okanye okokuba kwelixesha phambi kokuqaliswa kweQela eliphandayo nangexesha aqalise iQela eliphandayo, iNkulumbuso ixhaphaze nalinye lemiqathango ejongene noburhulumente bolawulo lukawonke-wonke njengoba kubekwe kwicandelo 195 loMgaqo-Siseko . Ngoko ke kulandela ukuba ukumiswa kwethutyana okubekwa ngummangali, njengoba kuthathwe kuMgaqo-Siseko, akuphumeleli.

POLICE MINISTER NATHI MTHETHWA “HOPELESSLY UNRESPONSIVE” TO SERIOUS CRIME IN KHAYELITSHA: Judges say O’Regan Commission of Inquiry into SAPS must go ahead

Protest outside the High Court in support of the Commission of Inquiry

Protest outside the High Court in support of the Commission of Inquiry

On Monday 14 January 2013, the Western Cape High Court dismissed Minister of Police Nathi Mthethwa and the South African Police Service’s (SAPS) urgent attempt to stop the O’Regan Commission of Inquiry (CoI) from continuing its work. The order was made with costs and SAPS has to pay the respondent’s legal fees.

Both the majority and minority judgments of the Court vindicate the rights of people living and working in Khayelitsha under threat of extreme violence and crime. The High Court judgments also vindicate the work of the Social Justice Coalition (SJC), Treatment Action Campaign (TAC), Equal Education (EE), Triangle Project (TP) and Ndifuna Ukwazi (NU) over a ten year period.

The CoI is free to continue its investigations and hearings until the second part of Minister Mthethwa’s case is heard. The Court will have to see more evidence and hear more argument from the SAPS and our organisations before making a final judgment.

Minister Mthethwa and SAPS are studying the judgments and deciding whether they will appeal. They have until 28 January 2013 to do so. Our organisations urge SAPS to accept the findings of the Court and to co-operate with the CoI. Similarly, we urge Minister Mthethwa not to pursue the second leg of the case to have the entire CoI set aside because it is unlikely that the police will win. It will also further delay the work of the CoI and waste more money in legal fees.

We further demand that the Minister of Police secures Cabinet approval for the Departments of Justice and Constitutional Development and Correctional Services to work with the CoI.

We also urge Premier Helen Zille and Mayor Patricia de Lille to ensure the fullest co-operation of the City of Cape Town and all other provincial departments with the CoI.

We want a plan to make Khayelitsha safe – to ensure that it has a functional and professional police service and a prosecutorial and court system that punishes crime and delivers justice. By learning from the work of this Commission government can work with all communities to make South Africa safe for all the people who live in our country.

Our organisations are naturally pleased with the outcome of this case and the CoI is now legally permitted to continue. However, this is a matter that should never have ended up in court. The decision taken by the SAPS in November 2012 to challenge the legality of the CoI has cost taxpayers millions or rands. It has also delayed the CoI’s work. Khayelitsha continues to experience extremely high levels of crime and violence and its police and criminal justice system remain overburdened and under-resourced. Any delay of a process aimed to address these issues is extremely problematic and worrying – especially when the cause of the delay is government itself.

[ENDS]

For enquiries please contact:

Axolile Notywala

(mobile) 0742895220

(twitter) xila_notywala

(email) axolile@sjc.org.za

 

Phumeza Mlungwana

(mobile) 0744178306

(email) phumeza@sjc.org.za

 

NOTE ON THE JUDGMENTS

Justice James Yekiso’s majority judgment accepts that the CoI’s work must study the “alleged systemic failure of the police in Khayelitsha to prevent, combat, and investigate crime, take statements open cases and apprehend criminals”. He accepted the fact that the SJC, TAC, EE, TP and NU complained about “the widespread inefficiency, apathy, incompetence and systemic failures of policing routinely experienced by Khayelitsha residents”. Deputy Judge-President Jeannette Traverso agreed with Justice Yekiso and they dismissed the application by Minister Mthethwa and SAPS with costs.

Justice Vincent Saldanha wrote a dissenting minority judgment which would have forced the parties to try and reach a compromise by 31 January 2013.  He stated that he and his colleagues were “extremely mindful of the desperate conditions that the community of Khayelitsha live in, with extreme levels of crime, poverty and inequality”. Justice Saldhana cited one and a half pages of the SJC’s founding affidavit by Mandla Majola which in summary stated:

 This issue does not relate to… the political sniping and barbs exchanged between the Premier and the First Applicant (“the Minister”).  Ultimately, this case is about the appalling level of crime experienced by residents of Khayelitsha on a daily basis. ….

The SJC submits that this case must in the first instance address the state’s duty to respect, protect, promote and fulfil, among others, the rights to life, dignity, freedom and security of the person, equality, privacy and the best interest of children.  A criminal minority terrorises people living and working in Khayelitsha day and night, but we believe that this case must also take into account the constitutional rights of arrested, detained and accused persons.

While I and the other deponents on behalf of the SJC are often critical of the Applicants, we would far prefer to be working together with them, and the other parties, in addressing the circumstances of people living in informal settlements in Khayelitsha who are too scared to go out to the toilet at night or residents who are struggling to come to terms with the shock of having been robbed or raped without the benefit of counselling or institutional support.

Justice Saldanha accepts that our organisations campaigned for “ten years against the ever deteriorating and despairing conditions of criminal activity and impunity in the greater Khayelitsha area”. He found that Minister Mthethwa and Provincial Commissioner Arno Lamoer’s “interactions with the community” of Khayelitsha and our organisations “was hopelessly unresponsive”.  However, he believed that the Premier and our organisations should have written another letter to Commissioner of Police General Mangwashi Phiyega.

Regrettably, Justice Saldanha fails to acknowledge that our organisations not only fully co-operated with the SAPS Task Team and granted the Commissioner an extra extension. He ignores the fact that we wrote two letters inviting her to meet with our organisations and the community but she failed to even acknowledge our letters.

Justice Saldanha would have ordered the Minister, SAPS and the Premier to negotiate and reach a settlement within two weeks. Justice Saldanha held:

In dealing with such issues 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.

Justice Saldanha also hoped that the SJC, TAC, EE, Triangle Project and NU would co-operate with all spheres of government stating that “more importantly none of them should compromise their independence in doing so”.

Justice Yekiso (Deputy Judge-President agreeing) found that the Premier had acted lawfully and within her constitutional powers in setting up the Commission of Inquiry into SAPS Khayelitsha on 22 August 2012.

On the basis of the evaluation of the evidence …I cannot find that a case has been made. … that the Premier, in establishing the Commission in the manner she did, violated any one of the provisions relating to the principles of co-operative governance and inter-governmental relations as set out in Section 41 of the Constitution; that the Premier misconstrued her powers arising from the provisions of section 206(5)(a) of the Constitution; or that in the period prior to the establishment of the Commission and at the time she established the Commission itself, the Premier violated any one of the provisions relating to the basic values and principles governing public administration as set out in section 195 of the Constitution. It therefore follows that the applicants’ claim for interim relief, derived as they are from the Constitution, ought to fail.