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Appeal to Khosa judgment imminent as family rejects police minister’s deal

An appeal against the Khosa judgment on police brutality seems imminent after Police Minister Bheki Cele tried to do a deal with the Khosa family through their lawyers — asking them to abandon a crucial part of the court order in exchange for an expedited appeal process. The suggestion was angrily declined.

“Our clients are outraged that you would ask for their consent to avoid your client’s obligations under the law and under the court order,” said Wikus Steyl, attorney for the Khosa family, in correspondence on Wednesday.

Collins Khosa was brutally assaulted by members of the South African National Defence Force (SANDF) and the Johannesburg Metro Police Department (JMPD), his family said. They said his assault included 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, she said. 

Khosa is not the only person who has died during the lockdown, allegedly at the hands of South Africa’s security forces, with at least eight other cases currently being investigated.

On May 15, the Pretoria high court made a series of orders against the government — some specific to Khosa’s case and others that will apply more broadly — to seek to end the brutality that has been a feature of the state’s response to the Covid-19 pandemic.

One of these orders, delivered by Judge Hans Fabricius on Friday last week, was that the ministers of defence and police must ensure that their ministries lodge with court reports about the internal investigations into Khosa’s death, and any other investigation into “the treatment of any other person whose rights may have been infringed during the state of disaster at the hands of the SANDF, the SAPS and/or any MPD [metropolitan police department]”.

The investigations must be completed and reports submitted to the court by June 4, the court ordered. 

In a letter to Khosa’s lawyers on Tuesday, the state attorney, on behalf of the police minister, said: “In order to expedite and shorten the anticipated application for leave to appeal proceedings, we request that your clients consider abandoning the whole or portions of paragraph 6 of the court order”. 

Responding on Wednesday, Steyl said to suggest that the Khosa family should consent to an agreement to allow [the police minister] not to carry out an investigation as required by law is rejected.”

Steyl said the Khosa family expected Cele to comply with the order “in full”. If he applies for leave to appeal, Cele was “expected — to dispel any inference of mala fides — to do so urgently and to allow the court order to come into effect immediately”, said Steyl.

Normally an appeal will suspend the implementation of a court order. But Steyl said if Cele refused to immediately implement the court’s order, the team would go back to court to enforce the order. They would also seek a “personal costs order against him [for] his attempt at evading his legal and constitutional duties through this meritless appeal”.

Responding to Steyl, later on Wednesday, the state attorney said  the Khosa family’s “intransigent approach” was regretted. This approach was “particularly strange” because the Khosa family had “no entitlement whatsoever” to what was contained in paragraph 6.3 of the order, which requires the police and defence ministries to furnish the Khosa family’s lawyers with the reports that are also to be submitted to court. 

The state attorney also said there was a “practical dilemma” with the part of the order that required a code of conduct for the security forces to be both developed and published within five days of the court order.

“We are instructed that satisfying both these components … cannot take place within the five day period … In any event, logically speaking, publication is only possible after the completion of the development of the guidelines and operational procedures,” said the letter from the state attorney.  

This story was updated to include the further correspondence from the state attorney on Wednesday 

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

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