Western Cape premier Helen Zille.
Hours worth of arguments passed at the Constitutional Court on Tuesday when deputy chief justice Dikgang Moseneke interjected once more: what was the essence of the matter that had brought Minister of Police Nathi Mthethwa, Premier of the Western Cape Helen Zille and civil society to the Constitutional Court?
And why, after hours of arguments about what powers Zille ought or ought not to have, had no one uttered a word about the rights of the people of Khayelitsha?
Common cause was that Zille had established the O'Regan commission of inquiry into policing in the Western Cape. Mthethwa was opposed to several basic tenets of the commission's existence.
Counsel for the police, Norman Arendse SC, argued that the commission's power to subpoena police witnesses and documents was not constitutional.
Moseneke pointed out that there was no contention from either party that an urgent investigation into policing in Khayelitsha was needed. But despite this being common cause, the court had yet to hear arguments on what impact its decision would ultimately have on the people of that community.
"What is [the number], now? Twelve, 13 vigilante killings [in Khayelitsha]? Not one iota of evidence has been submitted to suggest that the proliferation of these crimes is not taking place. While lawyers are fiddling, there is an issue that needs to be resolved. I didn't hear these concerns from you."
Moseneke urged counsel to remember that, ultimately, there was a need for the complaints lodged by the Social Justice Coalition – and the community of Khayelitsha – to be investigated.
'Inferior' policing
Reports indicate that, in 2012 alone, there were at least 20 vigilante killings in Khayelitsha.
Arendse agreed. He said that was why the police had agreed to the establishment of a task team that would investigate the "inferior" Khayelitsha policing. The police minister himself conceded that the people of Khayelitsha suffered while the quality of policing seemed to go from bad to worse.
But the Social Justice Coalition and Zille did not agree to the establishment of the task team because it would have reported solely to the police minister.
At this point in Tuesday's proceedings, civil society campaigners in favour of the establishment of the commission of inquiry protested outside the Constitutional Court under the watchful eye of the police, who enclosed the protestors in some yellow tape and then reclined in their vehicles.
In 2011, the Women's Legal Centre, representing the Social Justice Coalition and other Khayelithsa-based civil society organisations, wrote to Zille urging that a commission of inquiry be established to investigate a breakdown in policing in that area and an increase in violent "vigilante" killings.
Zille, in court papers, said she subsequently wrote to the police minister and commissioner about the issue, stating her intention to establish the commission. Mthethwa tried to stop the commission in late 2012, arguing in the Western Cape High Court that it had been unlawfully established, that its terms of reference were too broad, and that its existence meant Zille had powers over the police that allowed her to overstep her constitutional mandate as premier. The high court dismissed that application.
On Tuesday, the police asked the Constitutional Court for leave to appeal that decision; alternatively, it wanted to directly challenge the constitutionality of the commission.
Legal powers
Legally, the matter came down to whether or not relevant sections of the Constitution, which allow for the Western Cape premier to appoint a commission of inquiry into policing in Khayelitsha, imply that she can also give said commissions coercive powers.
Lawyers acting on behalf of the Mthethwa argued that this was not so: that the sections that empowered Zille to appoint commissions of inquiries such as this one did not implicitly give her the right to empower those commissions with the ability to subpoena police witnesses and documents.
While they did not disagree with the establishment of the commission in principle, they felt that if the commission could subpoena police officers, it would in essence give Zille power – or control – over the police, which is a national competency.
But Zille's team, lead by Sean Roberston SC, argued that the commission's ability to subpoena police witnesses and documents was not the same as having "power" or "control" over the police.
Justice Van Der Westhuizen was not alone in his questioning of what a commission without the power to subpoena witness and documents could realistically achieve.
"On a common sense level," Van Der Westhuizen began, "can a commission do anything worthwhile if they are ignored by the people they want to listen to?"
Arendse said commissions should not be toothless but that the answers to the question must be sought in the Constitution.
'Conceivable'
Chief Justice Mogoeng asked if, "as a matter of principle", it was "conceivable" that a commission "could be powerless to subpoena people?"
Arendse said the applicants had no issue with the commission having the power to subpoena members of the public.
"But the nub of our complaint lies with the power to subpoena the police," he explained.
Van Der Westhuizen asked: "So members of the public can go to the commission and make really awful statements about the police. But you [the commission] cannot compel the police to respond? Wouldn't that make it quite lopsided?"
Justice Nkabinde weighed in, pointing out that those accused by civil society of being involved in the deterioration of policing in Khayelitsha were potentially guilty of various crimes, including crimes against children.
"How can the commission do its work without coercive powers?" she asked.
Chief Justice Mogoeng said: "One must bear in mind what a commission like this is supposed to achieve. It is not far fetched that the power to subpoena is implied."
Judgment was reserved.