HRC back-pedals on jogger case

South African Human Rights Commission chairperson Lawrence Mushwana has turned on his own staff in the case of a jogger arrested for “giving the middle finger” to President Jacob Zuma’s bodyguards.

The result is that the commission has not yet found whether the rights of the 25 year old Chumani Maxwele were infringed.

Widely criticised for being sympathetic to the ANC when he held the office of public protector, Mushwana’s statements contradict the action taken by his investigators. “There is a civil case against the ministry [of police] and if successful it could prove there was a violation of Mr Maxwele’s human rights,” Mushwana said.

“In which case, we [the human rights commission] do not need to go on with the matter. I asked my investigators why they had not verified for themselves whether it was correct that there were pending court cases.” The commission’s investigators have repeatedly requested that Police Minister Nathi Mthethwa contribute to its report on the incident. Maxwele was arrested after being accused of “pointing a middle finger” at Zuma’s VIP protection unit in Cape Town last year.

Maxwele claimed he was bundled into a vehicle, hooded and had his hands tied behind his back with cables. Held for 24 hours, he said he was interrogated by intelligence agents about his ANC affiliations and forced to write a letter of apology to Zuma. Mthethwa declined to give a detailed response to the commission, saying there was a civil and criminal case pending. The commission then gave the minister a November 12 deadline — which he did not meet.

Mushwana told the M&G that Mthethwa did not need to respond if the matter was going to court. The commission would hold the report “in abeyance” while it awaited the outcome of any court case. But there is no legal basis to delay a human rights commission report until court cases have been resolved, said attorney Nichola de Havilland of the Centre for Constitutional Rights at the FW de Klerk Foundation. Mthethwa should be held to account and if he failed to comply, he should be subpoenaed to give a response to the commission, she said.

“We want the police to stop their behaviour, which is why we want them to be told to apologise to Mr Maxwele. Our concern is that the conduct of the police indicates that they think they are above the law, and that is why they are entitled to violate rights,” said De Havilland. “We want that to be dealt with, which is why we want the human rights commission to make them publicly apologise. That is quite ­different from [any] monetary compensation.”

De Havilland said the commission had contacted her to find out whether there was any criminal case pending in the matter. “As far as we know there is no criminal case. There was also no civil case when we first asked the commission to investigate possible violations of Chumani’s constitutional rights eight months ago,” said De Havilland. “In view of the insurmountable volume of cases that the investigator assigned to the case is currently handling, it is understandable why it has taken so long. But justice delayed is justice denied and therefore lack of resources is not an excuse.”

The centre asked the commission to investigate not only possible violations of Maxwele’s constitutional rights but also remedial action, including a full apology to Maxwele for “unlawful and unconstitutional behaviour”. De Havilland said it was “unfortunately Mushwana’s prerogative” to decide that Mthethwa did not have to respond while a civil action is under way.

“We could take his determination on review, but that would involve another court case,” she said. “We just want the unlawful conduct halted.” Maxwele’s lawyer, Neil O’Brien, has launched a civil suit on behalf of Maxwele, claiming an amount of around R1,4million.

  • Meanwhile, the commission has announced it will receive only R89-million for 2011-2012, which is R25-million short of its requirements. The commission has a mandate to protect, promote and monitor human rights in South Africa.
  • The Chapter 9 institution presented a strategic plan in Parliament this month that revealed it achieved only 52% of its objectives in the 2009-2010 financial year.

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