“The loss of life is regretted. Those who are found to have broken the law will face the full might of the law,” she said.
Khosa died on Easter Friday in Alexandra, allegedly at the hands of members of the South African National Defence Force (SANDF) and the Johannesburg Metro Police Department (JMPD). In court papers, Khosa’s family said he 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.
In an answering affidavit, Mapisa-Nqakula said: “The investigation is at an advanced stage with a final post-mortem report at hand.” It would be finalised by no later than Thursday, she said.
Mapisa-Nqakula said the investigation report — by a board of inquiry established under the Defence Act — would make findings on what happened and who was responsible and recommendations on any disciplinary action that may be taken which may “include suspension from work pending the outcome of disciplinary proceedings”.
There would be no suspension, however, without hearing the implicated members “as required by law” she said. If investigations established that any members may be guilty of murder, there “will be prosecution by the National Prosecuting Authority”, said the minister.
Mapisa-Nqakula was answering an urgent case taken to the high court in Pretoria by Khosa’s family, which wants the court to make a number of orders to put an end to excessive use of force and abuse of power by security forces during the national state of disaster.
The family had approached the Constitutional Court for a similar order, but that court had dismissed their application.
Allegations of abuse and excessive force have been a feature of the lockdown, with at least eight deaths alleged to have happened at the hands of security forces. In her affidavit, Mapisa-Nqakula reiterated that she condemned “violence of any form and the loss of life at the hands of the SANDF during the national state of disaster and at any time …”
One of the orders sought by the Khosa family is that the SANDF must adopt a code of conduct specifically for the disaster period, as was required by the Defence Act.
But Mapisa-Nqakula said the family had misconstrued the law that applied. Whereas Khosa’s family had referred to section 19 of the Defence Act, which requires a code of conduct, the employment of soldiers to assist the police was in fact done under section 18 of the Act, which did not require a code, she said.
“The allegations by the applicants that I have violated the human rights of South Africans by not publishing a code of conduct … has no basis in law and should be rejected by the court,” she said.
The minister also said it would be wrong to grant the orders sought by the applicants to set up a new mechanism and process to investigate brutality allegations. Detailing the legislative bodies in place to receive and investigate complaints, Mapisa-Nqakula said: “Together they show that there are systems at work to ensure accountability on the part of members of the SANDF in relation to their conduct. These procedures are known and are widely utilised.”
The minister acknowledged that there were resource constraints at bodies such as the Independent Police Investigative Directorate (Ipid), but said it wasn’t clear how creating new structures would help. “It would be a different matter if the applicants were seeking the capacitation of existing institutions …. creating new institutions is not a magic wand,” she said.
National police commissioner Khehla Sitole also insisted in his affidavit that the mechanisms already in place would do the job. He said IPID had “conducted endless investigations against the South African Police Service (SAPS) members. In some instances, the investigations resulted in successful convictions in court”.
“Rogue elements” were not uncommon, he said. But the police also knew they were not allowed to torture anyone during the lockdown and knew the consequences on failing to adhere to the rule of law and fundamental human rights.
“I wish to reiterate that the SAPS will welcome the reporting of any such unacceptable behaviour and I can [assure] the members of the public that ill-discipline will not be tolerated within the SAPS and any member found to have breached the law will be dealt with accordingly.”
Khosa’s family may still reply to the ministers before the case is heard.