Police Minister Nathi Mthethwa has launched a last-ditch attempt to avoid having to apologise to Chumani Maxwele, the Cape Town student who was arrested and abused by police after being accused of showing his middle finger to President Jacob Zuma’s motorcade.
Mthethwa has now applied for a review of an appeal finding by the South African Human Rights Commission, which upheld its earlier ruling that he should apologise to Maxwele. A disappointed Maxwele is frustrated by the minister’s stance. He said that by continuing to fight the issue, Mthethwa was sending out a message that he was protecting the officers who had infringed his human rights.
“An apology means a lot because it exonerates me,” said Maxwele. “This is a straightforward case, but by dragging out this matter the minister appears [to be] protective of those police officers who have done wrong.”
After his arrest while jogging on the M3 highway towards the University of Cape Town in February 2010, Maxwele was bundled into a police VIP protection vehicle, hooded and had his hands tied behind his back. The 25-year-old jogger was held in police custody for 24 hours and interrogated by intelligence agents about his ANC affiliations. He was forced under duress to write a letter of apology to Zuma.
Maxwele believes an apology from Mthethwa will instil public confidence in the police and encourage others to come forward with complaints. Nichola de Havilland, the director of the FW De Klerk Foundation’s centre for constitutional rights, which lodged a complaint on Maxwele’s behalf, said a rapid finalisation of the case was imperative.
She said the Promotion of Administrative Justice Act stipulated that judicial review proceedings had to be instituted without delay and she would call for an early review to avoid the matter dragging on for years. “There is absolutely no legal justification for the review and clearly the minister is simply buying time. Until there is finalisation, the VIP unit will continue to act as a law unto themselves.”
Zweli Mnisi, spokesperson for Mthethwa, said the minister was following legitimate legal processes that any South African was entitled to access. Mnisi dismissed De Havilland’s claims that the VIP unit would continue to act unlawfully until the minister apologised to Maxwele and said her comments about the blue-light brigade were “a sweeping generalisation”.
Democratic Alliance leader Helen Zille has gone further in her condemnation of the behaviour of the VIP protection unit, describing its members as “presidential blue-light bullies” after a string of serious incidents highlighted their actions. The conduct of members of the blue-light brigade has led to numerous complaints against the VIP unit.
There has been a public outcry over incidents such as the assault in 2009 of a motorist who got “too close” to a vehicle in Deputy President Kgalema Motlanthe’s motorcade on the N12 highway near Johannesburg. When a pedestrian was killed by a VIP protection unit vehicle in Zuma’s convoy in Ulundi that same year, the regional head of the unit, Commander Mzondeki Tshabalala, was quoted by News24 as saying that the public did not respect the unit’s vehicles, or those of the police, and simply refused to “move out of the way”.
De Havilland believes the recent calls for the banning of the blue-light brigade would be unnecessary if the minister apologised. In its findings the commission told Mthethwa to apologise to Maxwele after it found that the unit had violated Maxwele’s constitutional rights to human dignity, freedom and security, privacy, freedom of expression, peaceful and unarmed demonstration and political choice. The police had also infringed his rights as a detained person, the commission found.
It criticised the police’s initial failure to respond “timeously and substantively” to its correspondence about the case. Based on Maxwele’s undisputed complaint and the investigation conducted by the commission, it called on Mthethwa to apologise within 30 days.
As well as an apology, the commission ruled that the South African Police Service should compile a programme, including plans and time frames, for the education of its members – specifically the members of the VIP unit — regarding their duty to act in accordance with the Constitution and the law.
“The minister of police, on behalf of all the members or employees who were involved in the incident, must make a full written apology to Maxwele for their unlawful and unconstitutional behaviour,” the commission stated. The minister appealed against the finding on the basis that Maxwele had lodged a civil claim for damages and his involvement in the commission’s investigation could prejudice court proceedings.
In its findings on appeal the commission stated that although there was no direct evidence that the minister had purposefully intended to undermine and disregard the commission, his conduct during its investigation had led them to believe he was doing that.
“These unnecessary delays compromise the commission in fulfilling its mandate to the Constitution, which specifically protects the fundamental rights of all citizens, the complainant in particular,” it said.
The commission found that the matter involved a dispute over human rights and that it fell within its scope and mandate. The fact that the case would come before a court of law did not preclude the commission from proceeding with its own investigation, it found. Maxwele is claiming R1.45-million from the police for his ordeal.