Minister Challenges Commission in ConCourt


By Craig Oosthuizen

Protesting Outside the ConCourt

For well over ten years the Social Justice Coalition, Treatment Action Campaign and other community organisations have been campaigning for safe and secure communities through countless protests, marches and letters of demand. On 6 August 2013 the Social Justice Coalition faced the Minister of Police, Nathi Mthethwa, in the Constitutional Court, defending the appointment of the O’Regan/Pikoli commission of inquiry into policing in Khayelitsha. This follows a decision by the Western Cape High Court dismissing Mthethwa’s application for an urgent interdict to prevent the Commission from proceeding.

In Khayelitsha and around the country, people’s constitutional rights to life, dignity and safety are threatened every day. In Khayelitsha, even walking to the toilet can be dangerous, with poor lighting and long distances leading to many people being robbed or raped. According to SAPS’ official data, in Khayelitsha at least one person is murdered every day and at least two people are raped. Women and children are particularly vulnerable. The actual figures are probably far worse, since the SAPS data only incorporates reported crimes.

Mthethwa’s advocate, Norman Arendse, questioned the Premier’s authority to appoint a commission of inquiry into SAPS; claimed that the terms of reference of the commission are too vague; and challenged the Commission’s power to issue subpoenas to SAPS personnel. The Commission was appointed in terms of section 206(5) of the Constitution, which allows a province to “investigate, or appoint a commission of inquiry into, any complaints of police inefficiency” in order to give effect to section 206(3). Section 206(3) entitles a province to monitor, oversee and promote good relations between the community and the police. Section 127(2)(e) also entitles the Premier to appoint a commission of inquiry.

Arendse argued that the Premier was exceeding her jurisdiction when she appointed the commission of inquiry. Arendse claimed that while the Commission is nominally independent, there is a clear link with the Province and its purpose is to fulfil the functions of the provincial executive. Justice Nkabinde asked Arendse if he agreed that the matters being investigated are of public concern. Arendse replied by insisting that the Commission was attempting to manage and control SAPS, and since SAPS is part of the national government the province should not be allowed to call them to account. Advocate Rosenberg, representing the Western Cape government, responded by saying that the Premier was merely fulfilling her constitutional obligation to appoint a commission, and that the Commission was not trying to exercise control over the police.

Arendse claimed that the terms of reference, or purpose, of the Commission were too broad and undefined. Rosenberg answered by pointing out that the terms of reference are clearly limited to Khayelitsha, to the complaints made to the Premier regarding section 206(3) issues, and to SAPS. The Advocate for the Social Justice Coalition, Hathorn, also contended that the terms of reference were very clearly defined.

According to Arendse, the province was only permitted to oversee and monitor the police, and therefore the Constitution did not foresee a commission with coercive powers, such as the power to subpoena. The purpose of a commission of inquiry is simply to advise, not investigate. Justice van der Westhuizen asked how a commission without power is even thinkable. Adding to that, Justice Moseneke asked Arendse what constitutional “distaste” comes from asking the police to tell their side of the story. Especially since the general understanding is that both courts and commissions issue subpoenas. Arendse countered by pointing out that, since the provincial executive does not have the power to subpoena SAPS, it is illogical that they should be able to appoint a commission with more power than themselves.

Rosenberg’s response was that section 206(5) was designed to give the province teeth, and the power to subpoena gave meaning to that provision. Justice van der Westhuizen asked how subpoenas can be seen as a form of control of SAPS, when they are merely asking for documents and evidence to be produced.

Hathorn referred to the President of the Republic of South Africa v South African Rugby Football Union[1] case. In that case it was held that the President could appoint a commission with coercive powers, where the matter being investigated is of public concern, even though the President does not have the power to issue subpoenas.

Hathorn argued that the Constitutional provision that allows the Premier to appoint a commission mirrors the provision that entitles the President to appoint a commission, and therefore coercive powers are implied. We are dealing with a special constitutional power to confer the Commission with powers the Premier does not have. According to Hathorn, a commission without the power to subpoena would defeat the purpose of section 206(5). Justice Nkabinde questioned how complaints that the police were violating laws based on fundamental rights could be dealt with if the Commission could not subpoena the police.

In his final arguments before the court, Arendse asked that the court set the appointment of the Commission aside. The justices are now deliberating, and will hopefully give a judgement soon.

Nearly 500 members of the community mobilised in both Khayelitsha and outside the Constitutional Court in Support of the Commission. Justice Moseneke reminded the court that this case is about people and their rights. Given the extremely low levels of trust by the community in the police, this commission offers a key opportunity to rebuild that relationship. Nathi Mthethwa should stop wasting tax payer’s money in court and cooperate with the commission.

[1] 2000 (1) SA 1


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)


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.


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.


For more information please contact:

Cape Town:                                              Johannesburg:

Nomlungisi Qezo     (0716426203)           Phumeza Mlungwana        (0744178306)

Ntuthuzelo Vika       (0730977082)           Welcome Makele                 (0748521118)