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[2013] ZAGPJHC 180
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Minister of Police v Human Rights Commission and Others (2012/1095) [2013] ZAGPJHC 180 (23 July 2013)
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE
NO
:
2012/1095
DATE
:
2013/06/12
DATE:23
/07/2013
In
the matter between:
MINISTER
OF POLICE
…............................................................
Applicant
And
HUMAN
RIGHTS COMMISSION
…........................................
1
st
Respondent
FW
DE KLERK FOUNDATION CENTRE FOR
CONSTITUTIONAL
RIGHTS
................................................
2
nd
Respondent
SHUMANI
MAXWELE
..........................................................
3
rd
Respondent
JUDGMENT
C.
J. CLAASSEN J
:
The
applicant in this matter is the Minister of Police. In paragraph 1
of the notice of motion the following relief is sought:
“
1. Reviewing
and setting aside the finding of the first respondent on appeal,
dated 24 November 2011 in accordance with the provisions
of
Section 6
of the
Promotion of Administrative Justice Act 3 of 2000
.”
The
notice of motion also seeks an order for the first respondent, who
is the Human Rights Commission, to pay the costs of the
application.
THE
FACTS
The
background facts to this matter arise from an arrest affected by the
officers in the employ of the applicant, upon the third
respondent
Mr Maxwele on 10 February 2010. Shortly thereafter on 3 March 2010
the second respondent, who is the FW de Klerk Foundation
Centre for
Constitutional Rights, filed a complaint on behalf of Mr Maxwele in
terms of Section 7(1)(c) of the Human Rights Commission
Act. Two
newspaper articles corroborating the complaint was attached to the
complaint.
Since
7 May 2010 the applicant was requested to respondent to the
complaint but failed to do so despite numerous requests. Only
on 28
April 2011 did the applicant write to the first respondent
acknowledging receipt of the latter’s letter dated 6 April
2011. The latter merely indicated that the National Prosecuting
Authority decided not to prosecute the criminal case instituted
against the third respondent and recorded that the third respondent
had instituted a civil claim against the applicant by issuing
summons out of the Western Cape High Court under case number
2010/21885.
On
6 July 2011 the first respondent handed down its recommendations and
findings. Its first finding in paragraph 10 reads as follows:
“
Mr
Maxwele’s following human rights were violated by the
respondents, human dignity (Section 10); freedom and security of
the
person (Section 12); privacy (Section 14); freedom of expression and
peaceful/unarmed demonstration (Sections 16 and 17); political
choice
(Section 19); rights of detained persons (Section 35).”
The
first respondent further recommended that the applicant on behalf of
all the members and employees who were involved in the
incident
surrounding the arrest and treatment of the third respondent, make a
full written apology for their unlawful and unconstitutional
conduct, which apology was to be submitted to the first respondent
within thirty days. Needless to say no such apology has yet
been
affected by the applicant or any of his officers and/or employees in
regard to the arrest.
On
19 July 2011 the applicant acknowledged receipt of the findings.
Subsequent thereto the applicant lodged an appeal against
the
findings and recommendations of the first respondent, which appeal
was dismissed on 24 November 2011. Thereafter on 13 January
2012 the
applicant issued the present notice of motion against the first,
second and third respondents, and ultimately filed
his replying
affidavit some 6 months later on 2 July 2012.
Another
year went by and nothing was done. Thereafter, the first respondent
eventually filed a further supplementary answering
affidavit, and in
a letter of 9 May 2013 advised the attorneys of record acting on
behalf of the applicant that the respondents
are intending to set
the matter down for hearing on 4 June 2013. This gave the applicant
ample opportunity to prepare for the
hearing of this matter in this
court.
THE
MERITS OF THE REVIEW
As
to the merits of the matter, I can do no better than to refer to a
portion in the second respondent’s supporting affidavit
wherein the following is stated:
“
The
attitude of the police members involved reveals a shocking ignorance
of the Bill of Rights and of their overriding duty to uphold
the
Constitution and the rights that it assures. It is reminiscent
precisely of the attitude of intolerance, the unfettered power
and
the lack of accountability that characterised the conduct of the
policy during the apartheid regime, and that resulted in the
widespread suppression of the freedoms and rights of the people of
our country.”
In
its recommendations, the first respondent upheld that contention,
and in my view quite correctly so.
There
is, however, a preliminary point which, in my view, disposes of this
matter altogether. The question is whether the appeal
is a
reviewable decision pursuant to the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”).
The
definition in Section 1 of “administrative action” in
the Act states the following:
“’
administrative
action
’
means any decision taken, or any failure to take a decision, by –
an
organ of state, when –
exercising
a power in terms of the Constitution or a provincial constitution;
or
exercising
a public power or performing a public function in terms of any
legislation; or
a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in
terms
of an empowering provision, which adversely affects the rights of
any person and which has a direct, external legal effect…”
In
my view, the appeal procedure and the subsequent dismissal of the
appeal does not fall within the categorisation of an administrative
act as set out in the definition referred to above. I, therefore,
agree with the submission made by Ms McLane on behalf of the
respondents that this matter is not properly before this court as a
reviewable matter in terms of PAJA. That conclusion then
dispenses
with the necessity to deal with the grounds of review.
Ms
Makopo, acting on behalf of the applicant, actually only argued one
issue. She submitted that the pending civil case for damages
which
has been instituted by the third respondent against the applicant
might be prejudiced viewed from the applicant’s
point of view,
by the first respondent’s recommendation that the applicant
and the employees involved in the arrest are
to make a full written
apology for their conduct during the arrest.
Ms
McLane quite correctly countered this submission by saying that the
findings and the recommendations by the first respondent
are not
enforceable by law. The first respondent does have the right in
terms of the Human Rights Commission Act, to come to
court to seek
to enforce its findings and recommendations, but only then in the
manner of a retrial before the court.
CONCLUSION
I
am therefore of the view that there can be no actual prejudice
whatsoever to the applicant if the findings and recommendations
remain standing pending the conclusion of the civil matter against
the applicant. There is, therefore, in my view, no case made
out
whatsoever for the relief sought in the notice of motion.
I
need to say something about the conduct of the applicant in delaying
a response for almost a period of two years before reacting
to the
first respondent’s communications. I find it disconcerting
that a government officer and his department, displayed
such a
non-chalant attitude to the rights and duties imposed by the
Constitution upon them. If it is not contemptuous of the
first
respondent as a constitutional institution then at the very least it
shows disrespect for the first respondent’s
standing as a body
instituted by the Constitution, tasked with the duty to investigate
incidents placed before it where constitutional
rights have been
violated.
The
applicant, as an organ or state and member of the executive, is
duty-bound to give full cooperation and show respect to the
first
respondent to enable it to execute its functions properly, timeously
and expeditiously. The conduct of the applicant in
this particular
matter falls far short of its constitutional duty to assist the
first respondent in the exercise of its constitutional
mandate.
In
my view this is an indication where the applicant should be made
aware of the displeasure of this court by a punitive order
for
costs.
For
the reasons set out above I therefore make the following order: The
application is dismissed with costs, which costs include
the costs
occasioned by two counsel, payable at the scale of attorney and own
client.
DATED
THE 23
rd
DAY OF July 2013 AT JOHANNESBURG
____________________
C.
J. CLAASSEN
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant: Adv N. Makopo
Counsel
for the Respondents: Adv McLane