By Craig Oosthuizen
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 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.
 2000 (1) SA 1