15 January 2013



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.

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.