Khosa family approaches Constitutional Court to put an end to state brutality

Lawyers for the family of Collins Khosa allegedly killed by army and police officers on Good Friday have urgently approached the Constitutional Court, asking for an order that would set up a system for receiving and investigating complaints of state brutality for the duration of the state of disaster including a special investigation, led by a retired judge. 

“Such an investigation cannot wait until after the lockdown … It presents the only effective remedy to nip in the bud the culture of impunity that is apparently taking root during the lockdown,” Khosa’s life partner, Nomsa Montsha, said in an affidavit.

Khosa died after an altercation with members of the South African National Defence Force (SANDF) and the Johannesburg Metro Police Department (JMPD). In her affidavit, Montsha repeats the allegations made last week, that Khosa was severely assaulted by SANDF and JMPD officers including being hit with the butt of a machine gun, throttled while his arm was held behind his back and slammed into a steel gate. The death notice attached to the court papers described the cause of death as a blunt force to the head. 

Montsha was herself whipped with a sjambok, over her body and face, she said.

“The SANDF, the SAPS [South African Police Service] and several MPDs [municipal police departments] have become a law unto themselves. The killing of my partner [is] symptomatic of a wider problem of police brutality and violence that has been reported through several newspapers and videos shared on social media,” said Montsha.

Khosa’s family has asked for a number of orders from the Constitutional Court. They want the highest court to declare that the state of national disaster does not detract from the right to life, dignity and to be free from state violence. They have asked the court to order that a code of conduct be developed for the SANDF for the duration of the state of disaster. 

Reporting and investigation process

They have also asked the court to order the establishment of process for the speedy reporting and investigation of police and army brutality. This would include a team of at least 20 people, seconded from the Independent Police Investigative Directorate (Ipid) and the Office of the Military Ombud to look into what is reported, as well as a special investigation led by a retired judge into allegations of brutality.

The existing structures Ipid and the military ombud were not enough, the family said. They did not have joint jurisdiction and Ipid was under-resourced and overstretched. 

In her affidavit, Montsha set out the law, as it stands, on the use of force by the army and the police when the army is assisting the police, as is the case during lockdown. The use of force is not allowed, unless its  purpose is to secure a suspect’s appearance in court, and then only minimum force is allowed. Lethal force is only allowed if there was a danger to life. International law also requires South Africa to have a mechanism in place for reporting allegations of torture.

“Their [security forces’] conduct must be regulated by the Constitution, unlike what has happened until now where some of the soldiers have conducted themselves as if they are above the Constitution,” she said.

Montsha said there have been a number of reported cases of deaths and brutality at the hands of security forces, and listed some of these. She said the case was urgent: “The SANDF is currently enforcing the lockdown regulations in the absence of a code of conduct on how they are to engage with civilians at present, they are a law unto themselves. Citizens have no effective means or channels to lay complaints about torture at the hands of the security forces.”

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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