The People versus the Minister of Police

By Jacques van Heerden

ToyToyingAtPeoplesCommission (1)Yesterday, the Constitutional Court dismissed a request by the Minister of Police Nathi Mthethwa and others to hear a direct appeal against the appointment of the O’Regan/Pikoli Commission of Inquiry.

Western Cape Premier Helen Zille appointed the O’Regan/Pikoli Commission to investigate allegations of inefficiency at police stations in Khayelitsha and a breakdown in relations between the Khayelitsha community and members of the Police Service. The court effectively found that the Minister had no valid reasons to appeal and ordered the government to pay the legal costs of the Social Justice Coalition (SJC).

Minister Mthethwa’s lawyers argued that Zille did not have the constitutional right to appoint the commission, that she had done so without meeting her obligations in terms of cooperative governance, and that the terms of the commission were “vague and overbroad”.

A unanimous verdict written by Deputy Chief Justice Moseneke on behalf of the Constitutional Court rejected each of these arguments as “without merit”. The court criticised the minister of police for not engaging with the premier more closely, referring to nine months of “extensive correspondence” between the premier and the provincial commissioner of police, which had occurred with full knowledge of the national commissioner and the minister. They also pointed out that the minister waited until the last minute to seek a remedy, relying on the courts to referee their disagreement without first declaring a dispute, engaging with the premier, or responding directly to the community’s complaints.

The court also expressed concern about the minister’s decision to resort to expensive legal measures rather than engaging with the province or the community. Whereas both the provincial and the national governments’ legal costs are “ultimately sourced from the same public purse”, the only group who need to pay for their own legal representation are the communities.

Justice Moseneke wrote in the judgment, when awarding costs to the SJC: “The Social Justice Coalition is a civil society organisation acting in the public interest. It was one of the parties which lodged the complaints with the Premier. The complaints led to the appointment of the Commission and later to this dispute. It is now undisputed that the nature and scope of the complaints justified the appointment of the Commission. The correspondence between the Minister, Commissioner and Premier, as well as the report of the Police Service task team, show that the complaints are not frivolous and deserve to be tackled. The Social Justice Coalition should not be out of pocket for raising a matter of importance in favour of vulnerable people who are victims of pervasive crime.”

Regarding the minister’s claim that the premier did not have the constitutional authority to appoint the commission, the court found that “the competence to appoint a provincial commission of inquiry into police inefficiency and its alleged dysfunctional relations with any community is part of a constitutionally-mandated scheme through which provinces are entitled to monitor and oversee the police function within their area of remit”.

The Constitution recognises that, although the ultimate responsibility for the police belongs to the minister, provincial authorities such as the office of the premier share responsibility for effective, efficient and visible policing. Even though the province does not have direct control over the policing function, it “has a legitimate interest that its residents are shielded from crime”. Additionally, the provincial commissioner is accountable to the provincial legislature for the state of policing in the province.

As a result, the court also found that it was essential to give the O’Regan–Pikoli commission the right to issue subpoenas, otherwise it would not have the coercive powers required to compel members of the public or government officials to appear before the commission or to compel government bodies and others to provide copies of relevant documents. In the words of Justice Moseneke, “a commission without coercive powers would indeed be unable to fulfil its mandate”.

Although the terms of the commission are narrow, the community’s complaint to Premier Zille raises a wide range of issues. This includes “insufficient visible policing in the community, lack of witness protection, lack of co-ordination between the police and prosecuting services, and poor treatment of victims of crimes” as well as “the routine violation of the rights of the residents of Khayelitsha” and “the impact of high crime rates on residents including children and people vulnerable to discrimination”.

Crime is a complex problem that requires a comprehensive, carefully planned, and well-informed fact-based responses by a wide range of community members, organisations, academics, and community organisations. The O’Regan–Pikoli Commission of Inquiry is only the next step in a campaign for safety and security that has been going on for at least 10 years, and seems set to continue for many more. But it is a crucial step in engaging the communities who are most vulnerable to violent crime, gender-based violence, and other forms of criminal harm.

Originally published in on 02 October 2013

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

Craig Oosthuizen
(Mobile)        071 611 7237

Yoliswa Dwane
(Mobile)        076 706 2338

Ingrid Lynch
(Tel.)             021 868 1475

Marcus Low
(Mobile)         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.

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.


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)