Khosa case: Going straight to the Constitutional Court isn’t always the right path

NEWS ANALYSIS

From Day One of the Covid-19 lockdown, there have been allegations of brutality and abuse of power from the lockdown’s enforcers, the police and the South African National Defence Force (SANDF). This reportedly includes nine deaths

And, even after Collins Khosa was allegedly beaten to death by soldiers and metro police in Alexandra in Johannesburg on Easter Friday, new allegations have emerged: a woman was arrested and brutalised for selling atchar without a permit, a Muslim prayer gathering was broken up with unnecessary aggression. 

Yet last week the Constitutional Court dismissed the Khosa family’s direct access application on the grounds that they had not shown “sufficient grounds” for direct access to the highest court.

Khosa’s family had approached the Constitutional Court on an urgent basis to prevent further police and army brutality during the lockdown and national state of disaster. They asked the court to order that the SANDF adopt a code of conduct for the duration of the state of disaster. 

“Their [security force’s] 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,” said Khosa’s life partner, Nomsa Montsha in an affidavit.


The family also asked for a number of orders that would set up a process for the speedy reporting and investigation of police and army brutality. This would include a team to receive complaints and look into what is reported, as well as a special investigation led by a retired judge.

The Constitutional Court’s order was not a judgment on whether the Khosa family’s case was a good or a bad one. Instead, the highest court’s decision was based on a view that the family had not met the very high bar set for when it will accept a case without it having gone through the lower courts.

The Constitutional Court is an appellate court, which means that in the ordinary course it only hears appeals from lower courts. It is also the highest appellate court in South Africa — once it has ruled, that is the end of the road. It is therefore risky for the highest court to be the first and the last court because it has not had the benefit of other judges’ views.

“Experience shows that decisions are more likely to be correct if more than one court has been required to consider the issues raised,” said the Constitutional Court in 1998.

This is one of the reasons why, even though direct access is allowed, it is only in truly exceptional circumstances that it will be granted. 

Unless the case involves something that falls within the exclusive jurisdiction of the Constitutional Court, the test set in the court’s rules for when direct access will be granted is “the interests of justice”.

Over the years, the Constitutional Court has fleshed out what this means in practice. The court will ask whether someone has exhausted all other available avenues, how urgent and important the issues raised are, whether there will be factual disputes (which often requires evidence to be led and appellate courts are not set up for this), the time and costs involved and whether the case has good prospects of success. 

But the decision is decided on a case by case basis, the court has also said. So there is no cookie-cutter answer to when the highest court will grant direct access. With all the competing factors to be weighed up, the test can be a slippery one, making it hard for a litigant to know whether they will succeed. 

When the Constitutional Court dismisses an application in one terse line — as it did in Khosa’s case — we are also left guessing as to what was the basis for the refusal. 

In Khosa’s case, the argument for urgency was strong, as was the argument for how important the issues were. In her founding affidavit, Montsha said the right to life, to dignity and to be free from torture and inhuman and degrading punishment were all non-derogable rights: even under a state of emergency, which is not in place, these rights can never be suspended. 

The army was required by law to have guidelines in place when it did joint operations with the police for law enforcement. Yet when these guidelines were asked for, none were forthcoming. The security forces were acting like they were a law unto themselves, she said. 

Already nine people had died, and “members of the public live in fear that they will be subjected to degrading and cruel punishment and at worst, death, at the hands of the SANDF and the SAPS [South African Police Services]”. Every day that the army went out, unguided, to enforce the lockdown, was putting people’s rights  and lives at risk.

Khosa’s family also said there were exceptional circumstances: in the history of South Africa’s democratic history, there has never been such a deep incursion into people’s rights as there has been in the state’s response to the Covid-19 pandemic. 

The Constitutional Court did not explain how it came to its conclusion that there were insufficient grounds for direct access. But the Khosa family’s argument for why it could not get relief from a lower court was not as strong. In her affidavit Montsho said the allegations of police abuse were spread throughout the country. 

“The fact that this is occurring on a national scale makes it difficult for a single judge in one division to resolve the problem. Approaching judges in all divisions is an added practical difficulty. Many of the people who have been tortured or killed are from poor and indigent communities … the sheer cost of coordinated and nationwide litigation, with multiple applicants and respondents, is one we cannot bear,” she said.

“On balance, the applicants had little choice but to approach this court,” said Montsha.

But the order that the family sought from the Constitutional Court could, and still can, be obtained from the high court. Indeed, Khosa’s family has now approached the high court for the exact same order — the only difference is that, when it comes to metropolitan police departments, only the Gauteng ones that have been cited. In practical terms, if the order is granted, it will, for the most part, apply on a national scale.  

If — and it is likely — the high court order is appealed, it will probably end up in Braamfontein anyway. But the judges there will have a high court judgment to work with.

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

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