Police Minister Nathi Mthethwa has refused repeated requests by the South African Human Rights Commission to respond in detail to the arrest of 25-year-old Chumani Maxwele, who claims he was abused after being falsely accused of “pointing a middle finger” at President Jacob Zuma’s VIP protection unit in Cape Town last year.
The deputy director of the legal services programme at the HRC, Eric Mokonyama, said this week that a draft report on Maxwele’s case had been prepared without Mthethwa’s input.
Attorney Nichola de Havilland of the Centre for Constitutional Rights unit of the FW de Klerk Foundation queried whether the HRC had any teeth. “Mthethwa should be put on terms,” said De Havilland. “It is totally unacceptable that the police should be non-responsive. It could lead to adverse findings for them.”
The centre asked the HRC to investigate possible violations of Maxwele’s constitutional rights. It also requested remedial action, including a full apology to Maxwele for “unlawful and unconstitutional behaviour”.
De Havilland said that because this was such a high-profile case, the HRC had “perhaps been cautious in indulging the minister of police” and could have used its powers of subpoena to ensure that he cooperated.
‘Left to the courts’
Confirming that the HRC has powers to subpoena, Mokonyama said the commissioners would discuss the matter at a meeting on March 14. The Mail & Guardian has a copy of a letter Mthethwa wrote to HRC chair Lawrence Mushwana, on August 27 last year, in which he argued that because both a criminal case was pending and Maxwele intended bringing a civil case, “the matter should be left to the courts”.
The HRC wrote back to Mthethwa in October last year that Maxwele contended that the minister’s response did not “address (his) complaint and relief it is seeking in this matter”.
Mthethwa failed to give a detailed response by the HRC’s deadline of November 12 last year. Mthethwa’s spokesperson, Zweli Mnisi, said the ministry had learned through the media that Maxwele’s lawyer intended filing a civil suit. “We believed that any pre-pronouncements may jeopardise the case,” Mnisi said.
Maxwele’s lawyer, Neil O’Brien, has launched a civil suit claiming undisclosed damages from Mthethwa. But Mnisi could not explain what criminal case Mthethwa referred to in his letter.
De Havilland said that a lack of resources at the commission seemed to have slowed down the delivery of the report. “If the government is serious about the commission’s role it needs to heed its call for additional resources,” she said. “Individual investigators have an insurmountable caseload.”
De Havilland said she had been forced to act as a “Rottweiler” to get the HRC to investigate Maxwele’s case. “I had to chase the commission each week to get action,” she said. “What about the man in the street who doesn’t have the resources to keep following up, what happens to those cases?”
After his arrest while jogging in Cape Town in February last year, Maxwele claims he was bundled into a vehicle, hooded and had his hands tied behind his back with cables.
Held for 24 hours, Maxwele said he was interrogated by intelligence agents about his ANC affiliations and forced to write a letter of apology to Zuma.