/ 16 May 2020

Victory for Khosa family as judge makes orders to prevent further state brutality

Judge Hans Fabricius 7979 Dv
Restorative: Judge Hans Fabricius is hearing the application of the Khosa family. (Delwyn Verasamy/M&G)

In an emphatic victory for Collins Khosa’s family, on Friday  the high court in Pretoria gave a number of orders aimed at putting an end to police and army brutality during the Covid-19 lockdown, including court supervision of the investigations into Khosa’s death.

Khosa died on Easter Friday after an altercation with members of the South African National Defence Force (SANDF) and the Johannesburg Metropolitan Police Department (JMPD) — allegedly at their hands. The court heard from his family that he was severely assaulted by soldiers, including being strangled, slammed against a cement wall and a steel gate and hit with the butt of the machine gun.

Afterwards, he could not walk, began to vomit and lost the ability to speak. A few hours later, his partner, Nomsa Montsha, could not wake him up. Montsha and brother-in-law Thabiso Muvhango were also assaulted, they said when they took the case to court.

Khosa’s case is not unique. The excessive use of force by security forces to enforce the lockdown has been a feature of the state’s response to the Covid-19 pandemic, with at least nine deaths allegedly at the hands of police or army currently being investigated.

In his judgment, Judge Hans Fabricius said South Africans had to be able to trust the government to abide by the rule of law. In return, the government could then expect citizens to cooperate for the common goal. This “social contract” would then “take its rightful constitutional place for the benefit of the nation and the state”.

Instead, “the very institutions that have been created to safeguard and protect the population … are the very persons who now fail to impose the appropriate internal remedies against the transgressors”, he said.

Quoting a 2019 United Nations report on torture in South Africa, which found state institutions had not been investigating allegations of state torture promptly and impartially, Fabricius said “the present case seems to bear this out”. 

“The assaults on the applicants and the death of Mr Khosa occurred on 10 April 2020. There was no proper investigation in progress … No one from any state agency medically examined the applicants nor interviewed the surviving victims or any witnesses until after the court hearing,” said the judge. 

He ordered the government to set up a “freely accessible mechanism” to report allegations of brutality by security forces, which must be widely publicised throughout the country. 

In addition, internal investigations into Khosa’s death must be completed and the reports have to be lodged with the court before June 4 and those implicated in Khosa’s death must be put on precautionary suspension pending the investigations.

Fabricius also ordered that reports into “the treatment of any other person whose rights may have been infringed during the state of disaster at the hands of members of the SANDF, the SAPS or any MPD” had to be lodged with the court.

He gave the ministers of police and defence five days to develop and publish a code of conduct for their members during the lockdown. This, Fabricius said, was a requirement of the Defence Act. 

The police had argued that there were already guidelines in place, but the judge disagreed. “Section 49 of the Criminal Procedure Act is only a few lines long. It states principles. It does not describe how to use a particular weapon or instrument with minimum force. It does certainly not explain how to deal with the extraordinary circumstances of a lockdown.” 

The judge also took a dim view of the public statements that had been uttered by Police Minister Bheki Cele and Defence Minister Nosiviwe Mapisa-Nqakula. He said that, by “equally” condemning conduct that disobeys lockdown rules, Mapisa had created an “equivalence” between disobedience by civilians and the violations by security forces. 

“There is no such legal or moral equivalence,” he said.

Fabricius ordered the two ministers to command all members of the SANDF, the South African Police Service and metro police departments to adhere to absolute prohibition on torture and cruel and unusual punishment and to warn them of the consequences of failing to adhere to the law. 

“The fact that [these orders] may deflate some of the egos is of no concern to me,” he said.

Read the order below:

Khosa Judgment May 15 2020 by Mail and Guardian on Scribd