In two days of argument in the high court in Pretoria this week, Judge Hans Fabricius explored with counsel how the courts could help restore trust between citizens and the government over the abuse of state power by the security forces during the national state of disaster.
Allegations of abuse and excessive use of force by the security forces have been a feature during the Covid-19 pandemic. There have been at least eight deaths, allegedly at the hands of security forces, since the start of the lockdown.
Collins Khosa died on Good Friday after an altercation with members of the South African National Defence Force (SANDF) and allegedly at their hands. According to his family’s court papers and witnesses, Khosa was brutally assaulted by members of the SANDF and the Johannesburg Metropolitan Police Department (JMPD). This included being strangled, slammed against a cement wall and a steel gate and hit with the butt of a machine gun. Afterwards, he could not walk, began to vomit and lost speech. A few hours later, his partner Nomsa Montsha could not wake him up.
The case taken to court by Khosa’s family was not only about accountability for his death. The family sought a number of orders to ensure an end to army and police brutality for the duration of the state of disaster. Khosa’s counsel, Tembeka Ngcukaitobi SC, said Covid-19 was likely to be with us for another 18 months. “We cannot have a population that lives in fear of their security forces,” he said.
Throughout the proceedings, in questions to counsel, Fabricius returned to the idea of the court’s role in restoring people’s trust in the state and the rule of law during this extraordinary period. When the police and defence ministers’ counsel argued that there was no reason for the court to give a declaratory order, which would set out what people’s rights are during the state of disaster, Fabricius suggested that context was important and that this application should perhaps be seen “not in light of the normal rules” on declaratory orders, but in the light of “existing circumstances”.
This might “go some way to reestablishing trust between the community and the government”, he said. “It can’t prejudice any respondent.”
Ngcukaitobi said the court had a duty to declare what the law was to instil public confidence in the rule of law and to ensure the longevity of the rights in the Bill of Rights.
It also emerged during the hearing that the investigative bodies already in place to look into Khosa’s death had not finished their investigations as was previously believed.
Just before the Khosa case was heard, Defence Minister Nosiviwe Mapisa-Nqakula said the SANDF’s board of inquiry appointed to look into the death would complete its investigation by April 30. But on Saturday it emerged that the board had not contacted a single member of Khosa’s family or any of the witnesses who were there when he was attacked.
Similarly, the Independent Police Investigative Directorate (IPID) said it had declined to investigate further the actions of the JMPD because the metro police members had only been present and had not participated in the assault of Khosa.
Khosa’s family said no one from the IPID had contacted them, although the IPID said they had spoken to witnesses.
As argument got underway on Tuesday, Ngcukaitobi said this showed that the investigations were neither credible nor independent. The IPID investigation was a “sham”.
But then Hamilton Maenetje SC, counsel for Mapisa-Nqakula, told the court that the board of inquiry’s investigation was not over, and that on April 30 an extension had been sought. He said the investigation was now due to be completed on May 15. After some pressure from Fabricius, Maenetje said the report would be made available to the court on June6.
The IPID also put in a last minute affidavit — on the second day of the hearing — that its earlier position had been wrong in law, and gave an undertaking to have a preliminary report ready by May 8.
Khosa’s family had originally asked for the court to order the establishment of a new body to investigate allegations of state brutality, led by a retired judge. But after a series of questions from Fabricius on Tuesday, who seemed reluctant to issue such an order without first seeing the reports of the investigations already in place, the family changed tack. They instead asked the court to order the ministers of police and defence to complete their internal investigations and lodge their reports with the court and with Khosa’s lawyers.
Suspend those implicated
Khosa’s family asked the court to order that the implicated soldiers and police officers be immediately taken off patrol. “That soldier who hit Mr Khosa with the butt of a machine gun is still holding his machine gun today, more than a month after the allegations,” said Ngcukaitobi.
It emerged in court that the Ekurhuleni Metropolitan Police Department had already suspended members who had been accused of brutality. The JMPD said — on the second day of the hearing — that it would begin suspension proceedings against its members implicated in Khosa’s death.
But the defence minister stuck to the position that there would be no suspension until the soldiers had been given an opportunity to respond to the allegations.
Code of conduct
The main parties to the dispute also remained far apart on whether the defence minister was required by law to put in place a code of conduct and operational procedures specifically for joint operations between the police and the defence force — with Maenetje and Ngcukaitobi (supported by friend of the court, the Socio-Economic Rights Institute) having very different readings of the Defence Act.
Ngcukaitobi argued that the adoption of a code was required by law and that the army and police were now acting in a legislative vacuum, without proper guidance or according to internal guidelines that did not properly state the law. Ngcukaitobi said: “It lies ill in their mouth to say their soldiers know what the rules are. If they did, they would not have hit Mr Khosa with the butt of a machine gun.”
But Maenetje said deployments under section 18 did not require the adoption of a code. Soldiers were trained beforehand and there were guidelines in place, which were as clear as possible.
“Even if you gave it to lawyers to write this guideline, they would leave it as flexible as possible because the judgment must be made by the trained officer,” he said.
Judgment was reserved.