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[2013] ZACC 33
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Minister of Police and Others v Premier of the Western Cape and Others (CCT 13/13) [2013] ZACC 33; 2013 (12) BCLR 1365 (CC); 2014 (1) SA 1 (CC) (1 October 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 13/13
[2013] ZACC 33
In the matter between:
MINISTER OF POLICE
.........................................................................
First
Applicant
NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN POLICE SERVICE
...........................................................
Second
Applicant
PROVINCIAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICE FOR THE
WESTERN CAPE
..................................................................................
Third
Applicant
CIVILIAN SECRETARIAT FOR THE POLICE
SERVICE
.............................................................................................
Fourth
Applicant
COLONEL M F REITZ
..........................................................................
Fifth
Applicant
BRIGADIER Z DLADLA
......................................................................
Sixth
Applicant
COLONEL TSHATLEHO RABOLIBA
...........................................
Seventh
Applicant
and
PREMIER OF THE WESTERN CAPE
...............................................
First
Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR COMMUNITY SAFETY, WESTERN CAPE
........................
Second
Respondent
CITY OF CAPE TOWN
.....................................................................
Third
Respondent
HON. JUSTICE CATHERINE O’REGAN N.O.
.............................
Fourth
Respondent
ADV. VUSUMUZI PATRICK PIKOLI N.O.
.....................................
Fifth
Respondent
SECRETARY TO THE COMMISSION
............................................
Sixth
Respondent
ADV. T SIDAKI
.............................................................................
Seventh
Respondent
WOMEN’S LEGAL CENTRE
.........................................................
Eighth
Respondent
SOCIAL JUSTICE COALITION
.......................................................
Ninth
Respondent
Heard on : 6 August 2013
Decided on : 1 October 2013
JUDGMENT
MOSENEKE DCJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J,
Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen
J and Zondo J concurring):
Introduction
This
case concerns a dispute between organs of state in the national and
provincial spheres. The Minister of Police (Minister)
and the
National Commissioner of the South African Police Service
(Commissioner) contest the power of the Premier of the Western
Cape
province (Premier) to appoint a provincial commission of inquiry
with powers to subpoena
1
members of the South African Police Service (Police Service) to
appear before it over allegations of police inefficiency. In
turn,
the Premier asserts that she derives the power from the
Constitution and related provincial legislation.
Background
This
matter has its origins in the township of Khayelitsha, located in
the Western Cape province. Khayelitsha is one of the
largest and
fastest-growing townships in South Africa, forming part of the city
of Cape Town.
2
It is a densely-populated settlement, carrying approximately
750 000 residents. The rights and interests of these residents
lie at the heart of this dispute.
On
28 November 2011, the eighth respondent (Women’s Legal
Centre), acting on its own and on behalf of various civil society
organisations, including the ninth respondent (Social Justice
Coalition),
3
delivered a complaint to the Premier regarding alleged
inefficiencies in the performance of the Police Service and the
City
of Cape Town Municipal Police Department (Metro Police)
operating in the community of Khayelitsha. The complaint cited
“widespread
inefficiencies, apathy, incompetence and systemic
failures of policing routinely experienced by Khayelitsha
residents.”
The
complaint contained statistics showing high and escalating crime
rates, with particular concern over figures relating to
homicides,
assaults and sexual crimes. Various and serious inefficiencies in
policing were claimed, including insufficient
visible policing in
the community, lack of witness protection, lack of co-ordination
between the police and prosecuting services
and poor treatment of
victims of crimes. The complaint described the routine violation of
the rights of the residents of Khayelitsha
4
and highlighted the impact of high crime rates on residents
including children and people vulnerable to discrimination. It
added that “the [Khayelitsha] community has lost confidence
in the ability of the police to protect them from crime,
and to
investigate crimes once they have occurred.” The civil
society organisations concerned proposed that the Premier
appoint a
commission of inquiry into the Police Service and Metro Police
operating in Khayelitsha.
Within
two weeks of receiving the complaint, the Premier forwarded it to
the Provincial Commissioner of Police for the Western
Cape
(Provincial Commissioner) and copied the correspondence to the
Minister and the Acting National Commissioner.
5
She requested comment, by 30 January 2012, on the substance of the
complaint as well as the method that had been proposed to
deal with
the issues raised. Over a period of approximately nine months
correspondence was exchanged between the parties. The
details of
the exchanges are not pertinent at this stage. Suffice it to say,
over nine months the Premier sought the response
of the Provincial
Commissioner over the complaints and how they could be addressed.
In this correspondence the Minister and
the Acting National
Commissioner were copied. During that time, the Premier received
further evidence and complaints over a
“breakdown in the rule
of law” in Khayelitsha and its adverse impact on residents.
In
early July 2012, seven months after the original complaint, the
Commissioner requested a task team to investigate the issues
raised
in the complaint. The Provincial Commissioner requested the task
team to broaden the scope of its investigation and
to investigate
“any other aspects they may consider helpful in improving the
overall quality of service delivery in Khayelitsha.”
It
appears that neither the Premier nor the complainant organisations
were informed of further steps that the Police Service
would
undertake as a result of the task team investigation.
The
Premier claims that in the light of delays in securing substantive
responses to the complaints and the failure to reach
consensus with
the Minister and the Commissioner on the way forward, she
approached the provincial cabinet. The provincial
cabinet approved
the proposed appointment of a commission of inquiry. On 22 August
2012, the Premier conveyed to the public
her decision to appoint a
commission. On 24 August 2012, almost nine months after the
original complaint had been received,
the Premier appointed a
commission of inquiry (Commission) into allegations of police
inefficiency in Khayelitsha and of a
breakdown in relations between
the community and police in Khayelitsha.
6
It appears from the Proclamation that the Commission was appointed
in terms of section 206(3) and (5) read with section 127(2)(e)
of the Constitution and section 1(1) of the Western Cape
Provincial Commissions Act
7
(WC Commissions Act).
The
Minister was not pleased. He sent a letter to the Premier stating
that the Commission was appointed “without either
discussing
the matter with [him] or notifying [him] of [her] intended actions”
and that the appointment of the Commission
was “premature and
may impact on other initiatives currently underway”. He
further requested the postponement of
the Commission’s work
so as to discuss the matter. The Premier replied that she was open
to further discussion but declined
to postpone the work of the
Commission at that stage. On 6 September 2012 the Commission
published a notice of its provisional
working methods.
Between
September and October 2012, the Premier and the Minister exchanged
letters and met. It is unnecessary to delve into
the details. The
critical point is that by the end of October 2012 it was clear that
the Minister had a variety of concerns
regarding the appointment of
the Commission, including the ambit of the Commission’s terms
of reference and the subpoena
powers of the Commission. It was also
apparent that the Premier was unwilling to accede at that stage to
the request for the
postponement of the Commission’s work.
On
30 October 2012, the Commission issued a subpoena to the Provincial
Commissioner requiring the production of certain evidence.
The
following day subpoenas were issued to three station commanders.
Within a week, the applicants brought an urgent application
in the
Western Cape High Court (High Court) for an order restraining the
Commission from issuing and giving effect to the subpoenas
and
directing it to suspend its activities pending a decision on the
final review application to set aside the Premier’s
decision
to appoint the Commission. The appointment was challenged on the
basis that it was inconsistent with the Constitution,
invalid,
irrational or unlawful.
In the
High Court
T
he
temporary interdict application was heard by a full court of the
High Court
.
The majority (per Yekiso J,
Traverso DJP concurring) held that the power of the Premier to
appoint a commission was an original
and discretionary power
derived from the Constitution. It held that the Premier was
entitled to exercise the power by appointing
a commission in terms
of the WC Commissions Act in the manner she did. The provisions of
that Act, the majority reasoned, conferred
powers of subpoena upon
the Commission. Therefore, in the absence of a challenge to the
constitutionality of those provisions,
the Commission’s
subpoena powers were held to be constitutionally compliant.
Further, the majority dismissed the contention
of the Minister that
the Premier had violated the principles of co-operative governance
and inter-governmental relations as
set out in section 41 of the
Constitution.
8
It concluded that in setting up the Commission, the Premier did not
act irrationally or unlawfully and dismissed the urgent
application.
In a
minority judgment, Saldanha J took the view that although the
Premier had the power to appoint the Commission, the parties
had
not exhausted their obligations under section 41 to engage with one
another to explore appropriate means of avoiding or
resolving the
dispute between them in relation to policing in Khayelitsha. He
concluded that he would have granted the interdict
and ordered the
parties to take steps to resolve the conflict.
In
this Court
Leave to appeal
The
Minister and the Commissioner approached this court seeking: first,
leave to appeal against the decision of the High Court;
9
and, second, direct access on new and additional grounds.
10
However, in oral argument applicants conceded that it would be
neither necessary nor in the interests of justice to deal with
the
application for leave to appeal if their direct access application
were granted.
That
concession was properly made. The appeal was directed against the
High Court’s refusal to grant an urgent temporary
interdict.
However, that dispute has been superseded by the substantive relief
that the applicants ask for in the direct access
application.
Moreover, the urgent relief they sought then would have no
practical value now. Accordingly, leave to appeal falls
to be
refused.
Direct Access
The
applicants seek direct access under Rule 18. They ask this Court to
declare
the appointment of the Commission
inconsistent with the Constitution and invalid, and that the
subpoenas it had issued against
members of the Police Service be
set aside. This they contend for four principal reasons:
(a) The
nature and extent of the complaints made to the Premier did not
amount to jurisdictional facts that entitled her to appoint
a
commission.
(b)
Section 206(3) and (5) read with section 127(2)(e) of the
Constitution does not authorise the Premier to appoint a commission
with coercive powers against members of the Police Service.
(c)
Before establishing the Commission, the Premier did not comply with
her constitutional obligations under Chapter 3 of the
Constitution
and the Intergovernmental Framework Relations Act 13 of 2005
(Framework Act). and
(d) The
terms of reference of the Commission are vague and overbroad.
The
parties are in agreement that direct access to this Court should be
granted. Let it suffice to record that the applicants
assured the
Court that if direct access were to be granted, the decision of
this Court would be dispositive of their claim
and they would not
pursue any of the claims against the first and other respondents
pending in the High Court. As it turned
out, it is not necessary to
grant the direct access application.
The
Social Justice Coalition submitted that the direct access
application is redundant because section 167(4)(a) requires that
only this Court decide disputes between organs of state in the
national or provincial sphere concerning the constitutional
status,
powers or functions of any of those organs of state. Is this a case
of that kind?
In
Doctors for Life
11
this Court explained the rationale behind exclusive jurisdiction in
these terms:
“
The
purpose of giving this Court exclusive jurisdiction to decide issues
that have important political consequences is ‘to
preserve the
comity between the judicial branch of government’ and the
other branches of government ‘by ensuring
that only the
highest court in constitutional matters intrudes into the domain’
of the other branches of government.”
12
(Footnote
omitted.)
In
addition, exclusive jurisdiction provisions have an important
practical justification. Disputes between organs of state,
branches
of government, the executive and the legislature have the potential
to interrupt the smooth functioning of the political
system and one
may add, of the public administration. Exclusive jurisdiction makes
allowance for expeditious and final resolution
to disputes of that
genre.
The
language of section 167(4)(a) is broad and its ambit is seemingly
wide. However, this Court has often warned that the category
of
cases falling under section 167(4) should be narrowly
construed.
13
This is because exclusive jurisdiction ousts the jurisdiction of
other competent courts – a result that would deviate
from the
general rule that the judicial authority is vested in the courts.
14
Ordinarily, it is preferable for this Court to have the benefit of
the opinion of other courts before deciding a matter definitively.
In this way, other competent courts, which are ordinarily more
accessible than this Court, would help safeguard constitutional
promises and join in shaping our budding constitutional
jurisprudence.
In
National Gambling Board
,
15
the Court reined in the ambit of section 167(4)(a). It made a
distinction between powers or functions provided for in terms
of
any legislation, as opposed to those “explicitly or by
implication provided for in terms of the Constitution”.
16
In other words, the Court said that the term “constitutional
status, powers or functions” in section 167(4)(a)
means
status, powers or functions derived directly from the
Constitution.
17
In
Premier, Western Cape
18
the Court decided the matter as one falling within its exclusive
jurisdiction under section 167(4)(a). The issue at stake
was
whether Parliament had, in terms of section 197 of the
Constitution, the competence to prescribe to provinces how to
structure their administrations. The Court held that the
Constitution does confer on Parliament the power to regulate the
structure of the public service for the national and the provincial
spheres and that no implied provincial executive power was
infringed.
19
Here
we are certainly faced with a dispute between organs of state in
the national and provincial sphere.
20
The interim relief sought in the High Court as well as the relief
sought in this Court essentially concern whether the Premier
has
the power, in terms of the Constitution, to appoint a commission of
inquiry with subpoena powers over the Police Service.
The dispute
is therefore patently about the extent and scope of the competence
of the Premier to appoint a commission of inquiry
in terms of
sections 127(2)(e) and 206(5) of the Constitution.
It
is so that a part of this matter, in the High Court and before this
Court, related to whether the respective organs of state
had met
their Chapter 3 co-operative governance obligations. This makes it
necessary to caution that not every dispute concerning
Chapter 3
obligations between organs of state in the national and provincial
sphere would be a dispute within the exclusive
jurisdiction of this
Court. For instance, if a dispute between organs of state
related to powers or functions provided for in any legislation, as
opposed to those explicitly or impliedly provided for in
the
Constitution, it would not fall within the exclusive jurisdiction
of this Court. That would be so even if co-operative
governance
obligations are in issue because the obligations could arise even
where the powers and functions in issue originate
from legislation.
Of course, this does not mean that when the
Court exercises exclusive jurisdiction under section 167(4)(a) over
a particular
dispute, a Chapter 3 co-operative governance
obligation may not be raised as a valid defence to the merits of
that matter.
The
dispute before us concerns a contestation between organs of state
in the national and provincial sphere over the competence
or power
of a provincial organ of state provided for in the Constitution. In
my judgement it falls within the ambit of section
167(4)(a).
To
say so, meets the purposes of the exclusive jurisdiction given to
this Court. The challenge to the Premier’s exercise
of an
original constitutional power has weighty political and
institutional implications. Speedy and definitive resolution
is
required. This dispute between national and provincial organs of
state over the constitutionally-sourced competence of the
Premier
is a matter that should have come directly to this Court.
Merits
Nature and extent of the
complaints
During
the hearing the applicants abandoned the contention that the nature
and extent of the complaints did not justify the
appointment of a
commission under section 206(5). Again, the concession was
properly made. The empowering section provides
that the complaints
must point to “police inefficiency or a breakdown in
relations between the police and any community”
.
Even
a cursory reading of the complaints establishes the required
jurisdictional facts. Whether the complaints are true is
another
matter and the core area of enquiry of the Commission.
The power of the province to
appoint a commission of inquiry
The
Premier appointed the Commission acting under section 1 of the WC
Commissions Act
21
read with sections 127(2)(e), 206(3) and 206(5) of the
Constitution. Originally, the applicants impugned the appointment
of the Commission on several grounds. In this Court, the applicants
narrowed their attack. They accepted that the Premier had
the power
to appoint, as envisaged by section 206(5), the Commission with
subpoena powers over members of the public. However,
that
competence, they contended, does not extend to members of the
Police Service. Compelling members of the Police Service
to abandon
their normal duties in order to appear and testify or produce
documents before the Commission amounts to an exercise
of control
over the Police Service, a power which neither the province nor the
Commission has.
The
applicants were emphatic that the power to control and manage the
Police Service resides with the Commissioner. The exercise
of this
power is subject only to national policing policy under the
direction of the Minister. The Premier and provincial executive
and, by extension, a commission appointed by the Premier, are
excluded from exercising this control.
In
order to understand the authority of the Premier to appoint a
commission of inquiry we must look first at the Constitution.
Chapter 11 regulates the structure, conduct, powers, and functions
of our security services. Thereafter it prescribes principles
that
govern national security. Security forces are described as a single
defence force, a single police service and any intelligence
services established under the Constitution and which must be
structured and regulated by national legislation.
22
Objects of the police service are to prevent, combat and
investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property and to uphold
and enforce the law.
23
The
Constitution makes it plain that policing is a national competence.
The political responsibility for policing vests in the
Minister who
must set the national policing policy after hearing out provincial
governments on the policing needs and priorities
of provinces.
24
The President appoints the Commissioner.
25
In the Commissioner lies the power to “control and manage the
police service in accordance with the national policing
policy”
and the directions of the Minister responsible.
26
However,
in Part A of Schedule 4, the Constitution provides for concurrent
national and provincial legislative competence over
the policing
function. The Schedule makes it clear that the provincial
legislature has legislative competence over policing
only to the
extent conferred on it by Chapter 11.
27
In turn, that chapter explains that a provincial executive is
entrusted with the policing function as set out in the chapter
or
given to the provincial executive in national legislation or the
national policing policy.
28
Chapter 11 carves out the concurrent competence of a province in
relation to policing. For now the important provisions are
section
206(3) and (5).
Section
206(3) provides:
“
Each
province is entitled—
(a) to monitor police conduct;
(b) to oversee the
effectiveness and efficiency of the police service, including
receiving reports on the police service;
(c) to promote good relations
between the police and the community;
(d) to assess the effectiveness
of visible policing; and
(e) to liaise with the Cabinet
member responsible for policing with respect to crime and policing
in the province.”
In
turn, section 206(5) stipulates:
“
In
order to perform the functions set out in subsection (3), a
province—
(a) may investigate, or appoint
a commission of inquiry into, any complaints of police inefficiency
or a breakdown in relations
between the police and any community;
and
(b) must make recommendations
to the Cabinet member responsible for policing.”
This
Court in the
First Certification Case
29
said the following about this concurrent legislative competence:
“
This
pertains to legislation which might be found necessary to carry out
the monitoring, oversight and liaising functions set
out in [section
206(2)]. Apart from this, there is no express provision for
provincial legislative power in the NT.”
30
Under
the interim Constitution the Police Service functioned “under
the direction of the national government as well as
the various
provincial governments.”
31
Under the 1996 Constitution the power of direction by various
provincial governments and the relevant MECs was removed. It
was
replaced with the particular entitlements set out in section
206(3). This meant, as this Court observed in the
First
Certification Case,
the new text did “not prescribe any
powers or functions to be exercised by the province independent of
the National Minister
and [National Commissioner].”
32
Therefore,
as far as the contention of the applicants goes, it is correct. The
scheme of Chapter 11 and the
First Certification Case
and
Second Certification
Case
33
make
it plain that the role of a provincial executive in relation to
policing has been diminished and is now limited to the
monitoring,
overseeing and liaising functions set out in section 206(3).
That
however is not the end of the enquiry. The entitlements in section
206(3) are a recognition that, whilst a province has
no control
over the policing function, it has a legitimate interest that its
residents are shielded from crime and that they
enjoy the
protection of effective, efficient and visible policing. That
explains why the province has the authority and duty
to raise its
concerns on policing in the province with the Minister. Thus the
entitlements accord with the province’s
duty to respect,
protect and promote fundamental rights of its residents.
34
The
object of section 206(5) is to safeguard these entitlements over
policing within a province. It may undertake an investigation
or
resort to a commission of inquiry into complaints of police
inefficiency or of compromised relations between the police
and a
community and must make recommendations, in that regard, to the
Minister.
In
the words of the
Second Certification
Case
, the power
to appoint a commission of inquiry gives “more teeth”
to the monitoring and overseeing functions that
the province enjoys
by virtue of section 206(3).
35
The Court explained that this was to ensure adherence to the
Constitutional Principle that the power and functions of the
provinces defined in the Constitution shall not be substantially
inferior to those provided in the interim Constitution.
36
The
functions of a province must also be understood in the light of the
role afforded to a province in section 207(5) and (6)
of the
Constitution. In plain language, the provincial commissioner is
required to account to the provincial legislature on
an annual
basis on the state of policing in the province. The provincial
executive has further recourse in keeping the provincial
commissioner accountable to it. Its concurrence is required when
the Commissioner appoints a provincial commissioner.
37
In turn, should the provincial executive lose confidence in her or
him, it may seek “the removal or transfer of, or disciplinary
action against, that commissioner”.
38
The
pertinent question before us is whether, once constituted, a
provincial commission of inquiry may require members of the
Police
Service to appear before it under subpoena.
In my view, the
competence to appoint a provincial commission of inquiry into
police inefficiency and its alleged dysfunctional
relations with
any community is part of a constitutionally- mandated scheme
through which provinces are entitled to monitor
and oversee the
police function within their area of remit. Section 206(5)
targets a commission of inquiry as one of the
mechanisms of
accountability and oversight available to a province. A commission
brought into being for this purpose must be
effective and capable
of giving reasonable effect to the entitlements of a province over
the policing function.
As
we have seen, the applicants have conceded the authority of the
Premier to appoint a commission under section 206(5). Even
so, they
make two broad submissions. The first is that the province may not
enact legislation that entitles it to appoint a
commission with
coercive power over the Police Service. It follows, they contend,
the Premier’s reliance on the WC Commissions
Act –
provincial legislation enacted under section 127(2)(e) of the
Constitution – was misplaced. Second, the entitlement
to
oversee and monitor police functions and for that purpose to
appoint a commission of inquiry, does not give the province
the
competence to control and direct the Police Service. I look at each
of these contentions in turn.
Relationship between section 206(5) and section 127(2)(e)
Section
127(2)(e) is located in Chapter 6 which regulates the powers and
functions of a province. The section lists executive
powers and
functions of the Premier. These include the authority to appoint a
commission of inquiry. The section echoes section
84(2)(f) of the
Constitution which has entrusted the President with the power to
appoint “commissions of inquiry”.
In
SARFU III
39
this Court explained, in relation to section 84(2)(f),
40
that the President has the original power to appoint a commission
in his or her sole discretion as long as the discretion is
exercised within the constraints of legality.
41
The decision is executive action and not administrative action
because it does not relate to implementing legislation. The
President is not bound by the recommendations of the commission and
may implement only those he or she chooses.
42
The Court further held that “[a] commission of inquiry is an
adjunct to the policy formation responsibility of the President.”
43
It is a mechanism available to the President “whereby he or
she can obtain information and advice.”
44
These observations apply with equal force to the powers of the
Premier under section 127(2)(e) of the Constitution. An
additional and obvious constraint on the Premier is that the
commission she appoints must concern a matter over which the
province enjoys competence.
In
addition to advising the executive, a commission of inquiry serves
a deeper public purpose, particularly at times of widespread
disquiet and discontent. In the words of Cory J of the Canadian
Supreme Court in
Phillips v Nova Scotia
:
45
“
One
of the primary functions of public inquiries is fact-finding. They
are often convened, in the wake of public shock, horror,
disillusionment, or scepticism, in order to uncover ‘the
truth’. . . . In times of public questioning, stress and
concern they provide the means for Canadians to be apprised of the
conditions pertaining to a worrisome community problem and
to be a
part of the recommendations that are aimed at resolving the problem.
Both the status and high public respect for the
commissioner and the
open and public nature of the hearing help to restore public
confidence not only in the institution or situation
investigated but
also in the process of government as a whole. They are an excellent
means of informing and educating concerned
members of the public.”
46
In
SARFU III
the Court further explained that the President’s
power to appoint a commission is a distinct juristic act derived
from
the Constitution and not from legislation,
47
namely the Commissions Act.
48
However, a commission so appointed does not automatically have
coercive powers because “[c]oercive powers of subpoena
are
generally reserved for courts.”
49
The Court further noted that the powers of the President needed to
be limited to afford a commission those powers in situations
“where, viewed objectively, the matter to be investigated by
the commission is one of public concern.”
50
It also explained that, when appointing a commission under the
Commissions Act, the President must specify in the terms of
reference whether it has the authority to subpoena witnesses. In
short, under the Commissions Act, national legislation has
chosen
to allow an option. A commission may be appointed with or without
powers of investigation and subpoena.
Here,
the Premier relied, in part, on the WC Commissions Act and denies
that her reliance on the provincial legislation is misguided.
The
Minister and Commissioner see matters differently. They contend
that the powers to appoint a commission of inquiry in section
127(2)(e) and in section 206(5) are distinct, independent and
operationally severed from each other. They add that the Premier
is
not permitted to use section 127(2)(e) and provincial legislation
in order to set up a commission of inquiry into policing
with
coercive powers over the Police Service.
The
tenor of the WC Commissions Act is different from the Commissions
Act. It was passed by the provincial legislature in 1998
in order
“[t]o make provision for the functioning of commissions of
inquiry appointed by the Premier”, as envisaged
by section
127(2)(e) of the Constitution. Unlike section 206(5) which entrusts
the authority to appoint a commission to the
province, section
127(2)(e) says it is the Premier, and no other functionary of the
province, who is responsible for appointing
a commission of
inquiry.
51
As we know, the Premier appointed the
Commission. In doing so she had the support of the provincial
executive and she explicitly
invoked section 206(5) alongside the
WC Commissions Act. Given the view I take on the power of a
province to convene a commission
of inquiry under section 206(5), I
need not resolve the interpretive difference between the parties
over section 127(2)(e)
and the WC Commissions Act. It may stand
over for another day.
Section
206(5) accords a province a clear power to establish a commission
of inquiry into policing function. The provision allows
a province,
as a first option, to “investigate”. This would be an
inquiry initiated and managed by the provincial
executive and
without coercive powers. However, a commission of inquiry may only
be set up following “complaints of police
inefficiency or a
breakdown in relations between the police and any community”.
We must understand a commission to be
an inquiry different from and
more than a mere investigation.
In
this context, a commission without coercive powers would indeed be
unable to fulfil its mandate. It would be no different
from an
investigation. The objects envisaged in section 206(3) would never
be achieved if police enjoyed immunity from being
called upon to
testify or produce documents on their policing functions. When the
target of the investigation is the police
and how they fulfil their
duties in relation to a particular community, they are obliged to
account to a lawfully appointed
commission as envisaged by section
206(5). If they were to be shielded from the coercive power of
subpoena, the effectiveness
of the Commission would falter. The
entitlements in section 206(3) would be rendered nugatory as they
would depend on whether
members of the Police Service are willing
to cooperate with the Commission.
A
commission under section 206(5) must have coercive powers for
another reason. A premier and the province bear the duty to
respect, protect and promote the fundamental rights of people
within the province. In this case, the Premier is obliged to
take
reasonable steps to shield the residents of Khayelitsha from an
unrelenting invasion of their fundamental rights because
of
continued police inefficiency in combating crime and the breakdown
of relations between the police and the community. The
burden of
crime in Khayelitsha was confirmed and documented by the Police
Services’ own task team.
52
The
details of incessant crime emerging from the complaint are
unsettling. There is much to worry about when the institutions
that
are meant to protect vulnerable residents fail, or are perceived to
be failing. The police service has been entrusted
with the duty to
protect the inhabitants of South Africa and to uphold and enforce
the law.
53
The Constitution requires accountability and transparency in
governance.
54
And it establishes both a general framework for oversight as well
as specific mechanisms through which a province may exact
accountability. The complainants sought to invoke these oversight
mechanisms, which will be best served by
a
commission entrusted with powers of subpoena over members of the
Police Service.
The Commission and the power of subpoena
The
applicants sought to persuade us that the subpoena power of the
Commission amounts to control or management of members of
the
Police Service. The control of the Police Service, they correctly
pointed out, vests not in the provinces but rather in
the
Commissioner. Since the Premier does not have powers to control the
Police Service, the argument goes; the Premier cannot
delegate the
powers to a commission.
The
suggestion that the subpoena power amounts to “control of the
police service” as envisaged by section 207 is
an unwarranted
overstatement that has no merit. A subpoena may not always demand
physical presence, but may be only to obtain
specified documents or
material to be produced by the subpoenaed witness (
duces tecum
).
Even if a police witness were to appear in person, ordinarily it
would be over a limited time. Secondly, the mere attendance
of the
police at a hearing cannot possibly usurp the general management
and control of the Police Service and their day-to-day
activities.
When required to testify before a commission, a police officer may
raise any lawful objection to the production
of particular
evidence. It is trite that, a subpoena issued by a commission must
be lawful. It may not travel beyond the mandate
of the commission
or be otherwise defective. If it were so, it would be open to the
Police Service to have it set aside.
Civilian Secretariat
The
applicants submitted an additional contention why this Court should
not understand section 206(3) and (5) as authorising
a commission
of inquiry to subpoena members of the Police Service. The
contention runs as follows: A commission of inquiry
without
coercive powers does not leave members of the Police Service
unaccountable. The Civilian Secretariat for Police Service
Act
55
(Civilian Secretariat Act) empowers a civilian secretariat to
exercise civilian oversight over the Police Service. To that
end it
may conduct a systemic inquiry into police services and may compel
members of the Police Service to provide information
in order to
advance the investigation.
This
argument is without merit. The task at hand is to give meaning to
section 206(3) and (5). The applicants are in effect
inviting
us to construe these constitutional provisions through the prism of
national legislation, the Civilian Secretariat
Act. Nothing in the
scheme of Chapter 11 suggests that the oversight and monitoring
role of the province as envisaged in section
206(3) and (5) should
be curtailed or supplanted by the role of a civilian secretariat
under section 208 of the Constitution.
Sections 206 and 208
serve different purposes which may not be unduly conflated.
Having
considered the contentions advanced by the Minister and the
Commissioner, I conclude that a commission of inquiry appointed
by
a province under section 206(5) has the implied power to subpoena
members of the police service to attend its hearings,
testify
before it and produce documents and other evidence that may be
lawfully required of members of the Police Service.
It follows that
the commission of inquiry appointed by the Premier under section
206(5) on 24 August 2012, pursuant
to a resolution of the
provincial executive council to that effect, was lawfully appointed
and has the power to subpoena members
of the Police Service for the
purposes envisaged in the section.
Chapter
3 obligations
Chapter
3 of the Constitution has two parts. Section 40(1) affirms that the
three spheres of government – national, provincial
and local
– are distinctive, inter dependent and interrelated. On
the other hand, section 40(2) requires organs
of state to comply
with the principles of co-operative government spelled out in
section 41.
56
Section 41(3) requires an organ of state involved in an
inter-governmental dispute to make every reasonable effort to
settle
the dispute using the mechanisms and procedures provided
for. Also, the organ of state must exhaust all other remedies
before
it approaches a court to resolve a dispute. Another
important provision is that the court has a discretion to refuse to
hear
a dispute if it is not satisfied that the parties have made
every reasonable effort to settle the dispute.
57
However, a court is not thereby precluded from hearing the dispute.
In
National Gambling Board
this Court observed that the duty of
organs of state to avoid litigation is at the heart of Chapter 3 of
the Constitution.
58
Parties are duty bound to make a meaningful effort to comply
with the requirements of co-operative government. The obligation
to
avoid litigation entails much more than an effort to settle a
pending court case. A party to the dispute should not pay
lip-service to this obligation. It “requires of each organ of
state to re-evaluate its position fundamentally.”
59
Uthukela
60
dealt with the use of the provisions of section 41(3) where a
dispute resolution mechanism existed. The Court held that, apart
from the general duty to avoid legal proceedings against one
another, section 41(3) of the Constitution requires organs of
state
to make every reasonable effort to settle disputes through the
existing mechanisms and procedures, and to exhaust other
remedies
before resorting to litigation.
61
The
applicants seem to advance three bases for contending that the
Premier breached her co-operative governance obligations.
The first
is that by appointing a commission she usurped the powers and
functions of the Minister and the Commissioner, something
not
permitted by section 41(1)(e) of the Constitution.
62
There is no merit in this contention. As we have seen, the Premier,
acting for and with the approval of the province, exercised
the
power given to the province by section 206(5) of the
Constitution and in a manner permissible under the Constitution.
Section 41 does not require of the Premier to declare a dispute
before she exercises powers properly vested in her.
The
failure to declare a dispute affords a dilatory judicial mechanism
to encourage inter-agency dialogue and dispute settlement.
It is a
basis upon which an application to court can be dismissed. But it
is doubtful that an organ of state’s failure
to declare a
dispute is a disabling impediment to the subsequent exercise of a
constitutional power. In the present matter
it can be safely
concluded that, when the province appointed the Commission, it did
not usurp the powers and functions of the
Minister or the
Commissioner. The power to appoint the Commission, as we have
concluded, derives from section 206(5) of the
Constitution.
The
second contention was that, although the Premier was acting within
the powers given to a province, and did not have to declare
a
dispute, she was still obliged by section 41(1)(h)(iii) and (iv) to
inform other organs of state and consult them on matters
of common
interest as well as to coordinate actions. She had to co operate
adequately with other branches of government
before appointing the
Commission. There is no doubt that the Premier, acting for the
province, had the obligation to consult
the Minister and the
Commissioner before the province appointed a commission into the
policing function. However, the undisputed
facts show that, over
nine months from the time she received the first complaint, the
Premier exchanged extensive correspondence
with the Provincial
Commissioner, which was copied to the Commissioner and the
Minister, over the impending appointment of
the Commission. On the
facts before us, she certainly complied with these obligations.
The
third contention was that the Premier did not make every reasonable
effort required by section 41(3) to settle the dispute
before
litigation and that the Minister and the Commissioner did make such
efforts.
63
The difficulty with this line of argument is that all parties
accept that at the time when the Commission was appointed by
the
Premier there was no dispute. A dispute only arose after the
Commission had been appointed. Then the Minister made it clear
that
he opposed the further conduct of the Commission. In fact, matters
came to a head only when the Commission served subpoenas
on members
of the Police Service and well after the Commission had been
established. Even so, the Minister and the Commissioner
did not
declare a dispute as required by the Framework Act; instead they
approached the High Court. There is no doubt that
the Premier has
an obligation to comply with the Constitution and the applicable
Act. Here, it has not been shown that she
had not done so. This
contention too must fail.
It
must be added that spheres of government and organs of state are
obliged to respect and arrange their activities in a manner
that
advances intergovernmental relations and bolsters co-operative
governance. If they do not do so, they breach peremptory
requirements of the Constitution. And yet, more and more disputes
between or amongst spheres of government or organs of state
end up
in courts and in this Court, in particular.
64
The litigation is always at the expense of the public purse from
which all derive their funding. That is true of the present
dispute
between the province, the Commissioner and the Minister. Often
litigation of that order stands in the way or delays
sorely needed
services to the populace and other activities of government. Here
too, effective policing in Khayelitsha and
the functioning of the
Commission may have to await the outcome of litigation. Courts must
be astute to hold organs of state
to account for the steps they
have actually taken to honour their co-operative governance
obligations well before resorting
to litigation.
Terms
of reference of the Commission
The
applicants contended that the Commission’s terms of reference
are vague and overbroad. The crux of this complaint
appears to be
that the terms of reference authorise “a systematic
investigation of policing in Khayelitsha” and
that they allow
the Commission to investigate vigilantism rather than the
complaints made by the Social Justice Coalition.
In
SARFU III
, this Court described the inquiry into the
vagueness of terms of reference as—
“
[w]hether
objectively the terms of reference are reasonably comprehensible to
the commissioner and affected parties so as to determine
the nature
and the ambit of a commissions mandate with reasonable certainty.”
65
In
Affordable Medicine
66
s
this Court re-stated the test for vagueness in similar terms—
“
[t]he
ultimate question is whether, so construed, the regulation indicates
with reasonable certainty to those bound by it what
is required of
them.”
67
I
think the terms do not suffer from overbreadth or vagueness. Their
reach can be ascertained with reasonable certainty. First
they
reflect and track the wording of the empowering provisions of
section 206(5) of the Constitution in that they require
the
Commission to investigate complaints received by the Premier
relating to allegations of inefficiency of the Police Service
stations in Khayelitsha or a breakdown in relations between the
Khayelitsha community and members of the Police Service stationed
at the named police stations. Thus, the inquiry relates to
complaints that are geographically confined to only three police
stations in Khayelitsha and other police units operating in the
same neighbourhood. The terms of reference relate to the complaints
made to the Premier. Their nature and extent are well documented
and have been served on or made known to the Minister, Commissioner
and other parties affected by the work of the Commission.
There
is nothing in the relevant constitutional scheme to propose that
the complaints envisaged in section 206(5) must be limited
to
specific incidents and cannot permissibly raise broader and
systemic concerns about policing function in the specific
community. Even so, the terms of reference appear to be limited to
an investigation of the functioning of the police service
rather
than the structural problem of crime in Khayelitsha.
Lastly,
it may be added that vigilante attacks in Khayelitsha have resulted
in the deaths of at least nine people. The supplementary
complaint
submitted to the Premier reports on the vigilante deaths, and
should form a legitimate part of the inquiry into the
breakdown in
relations between the police and the community of Khayelitsha.
Outcome
I
conclude that the claim of the Minister and the Commissioner of
Police must fail. The application that this Court declare
that the
decision of the Premier of 24 August 2012 to establish a
commission of inquiry is inconsistent with the
Constitution and
invalid is without merit and must be dismissed.
Costs
The
Social Justice Coalition is a civil society organisation acting in
the public interest. It was one of the parties which
lodged the
complaints with the Premier. The complaints led to the appointment
of the Commission and later to this dispute.
It is now undisputed
that the nature and scope of the complaints justified the
appointment of the Commission. The correspondence
between the
Minister, Commissioner and Premier, as well as the report of the
Police Service task team, show that the complaints
are not
frivolous and deserve to be tackled. The Social Justice Coalition
should not be out of pocket for raising a matter
of importance in
favour of vulnerable people who are victims of pervasive crime. In
my judgement, they are entitled to costs.
In contrast, the costs of
the Premier, the Minister and the Commissioner are ultimately
sourced from the same public purse.
A costs order between them is
not warranted.
Order
The
following order is made:
1. Leave to appeal is refused.
2. The application for direct access is refused.
3. The application of the Minister of Police and of the National
Commissioner of the South African Police Service, that this
Court
declare the decision of the Premier of the Western Cape of 24 August
2012 to establish a commission of inquiry is inconsistent
with the
Constitution and invalid, is dismissed.
4. The Minister of Police and the National Commissioner of the South
African Police Service are directed to pay the costs of
the Social
Justice Coalition in the High Court and in this Court, including the
costs of two counsel, if applicable.
5. No further order as to costs is made.
For
the Applicants: Advocate N Arendse SC, Advocate M Donen SC, Advocate
T Masuku and Advocate L Ferreira instructed by the State
Attorney
For
the First and Second Respondents: Advocate S Rosenberg SC, Advocate
D Borgström and Advocate M Adhikari instructed by
Hayes Inc
For
the Third Respondent: Advocate A Katz SC instructed by Fairbridges
Attorneys
For
the Ninth Respondent: Advocate P Hathorn, Advocate N Mayosi,
Advocate T Ngcukaitobi and Advocate M Bishop instructed by Legal
Resources Centre
1
A
subpoena is a court order commanding the presence of a witness under
a penalty of fine for failure.
2
Khayelitsha
is situated approximately 35km from the city bowl.
3
The
Women’s Legal Centre is a non-profit, independently funded law
centre. In this matter it was acting for the Social Justice
Coalition, the Treatment Action Campaign, Equal Education, Free
Gender, Triangle Project and Ndifuna Ukwazi.
4
These
include rights to equality, dignity, life, freedom from public and
private violence, privacy, movement, property, housing
and the
rights of accused and detained persons.
5
Until
June 2012, Commissioner Mkhwanazi was the Acting National
Commissioner. On 12 June 2012 the current National Police
Commissioner,
Commissioner Phiyega, was appointed.
6
In
terms of Proclamation No. 9/2012, Provincial Gazette 7026 dated 24
August 2012 (Proclamation), the Premier appointed the Commission
as
set out in Schedule A of the Proclamation “under section 1 of
the Western Cape Provincial Commission Act, 1998”
and,
further, in Schedule A to the Proclamation made reference to section
206(3) and (5) of the Constitution. The terms of reference
of the
Commission are stated as follows—
“
To investigate complaints
received by the Premier relating to allegations of:
(a) inefficiency of the [SAPS stations in Khayelitsha
specifically named] and any other units of the [SAPS] operating in
Khayelitsha,
Cape Town . . .; and
(b) a breakdown in relations between the Khayelitsha
community and members of the [SAPS] stationed at the aforesaid
police stations
in Khayelitsha, or operating in Khayelitsha.”
7
10
of 1998.
8
Section
41 is further discussed at [58] to [63] below.
9
Under
Rule 19(2) of this Court’s Rules.
10
Under
Rule 18 of this Court’s Rules.
11
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
(
Doctors for Life
)
.
12
Id
at para 23.
13
Women
’
s
Legal Trust v President of the Republic of South Africa and Others
[2009]
ZACC 20
;
2009 (6) SA 94
(CC) at para 11;
Von
Abo v President of the Republic of South Africa
[2009]
ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10) BCLR 1052
(CC) at para 33;
Doctors
for Life
above
n 11 at para 20; and
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1998]
ZACC 21
;
1999
(2) SA 14
(CC);
1999
(2) BCLR 175
(CC)
(
SARFU
I
)
at para 25.
14
Section
165(1) of the Constitution.
15
National
Gambling Board v Premier, KwaZulu-Natal and Others
[2001] ZACC
8
;
2002 (2) SA 715
(CC)
2002 (2) BCLR 156
(CC). The Court
characterised the dispute as one related to the interpretation of
national and provincial legislation rather
than the power to enact
such legislation. As such, the Court at para 26 held: “The
dispute is about the effect of the legislation
and not the power to
make it. It is accordingly not a dispute envisaged by section
167(4)(a) of the Constitution and therefore
does not fall within
this Court’s exclusive jurisdiction.”
16
Id
at para 24.
17
Id.
18
Premier
of the Western Cape v President of South Africa and Another
[1999] ZACC 2
;
1999 (3) SA 657
(CC);
1999 (4) BCLR 382
(CC).
19
Id
at para 45.
20
Section
239(a) of the Constitution provides—
“‘
organ of state’
means
any department
of state or administration in the national, provincial or local
sphere of government.”
21
Section
1 of the WC Commissions Act in relevant provides:
“
The Premier may by
proclamation in the official gazette of the Province—
(a) appoint a commission of inquiry;
(b) define the matter to be investigated by the
commission and its other terms of reference;
(c) make regulations—
(i) providing for the procedure to be followed at the
investigation for the reservation of confidentiality;
(ii) providing generally for all matters which he or
she considers necessary or expedient for the proper performance by a
commission
of its functions;
(d) appoint a secretary to the commission, and such
other officials as he or she may deem necessary to assist the
commission;
and
(e) designate any member of the commission as the
chairperson of that commission.”
22
Section
199(1) and (4) of the Constitution.
23
Section
205(3) of the Constitution.
24
Section
206(1) of the Constitution.
25
Section
207(1) of the Constitution.
See also
Glenister v President
of the Republic of South Africa and Others
[2011] ZACC 6
;
2011
(3) SA 347
(CC);
2011 (7) BCLR 651
(CC) (
Glenister II
) at
para 130.
26
Section
207(2) of the Constitution. See also
Glenister II
above n 25
at para 130.
27
Part
A of Schedule 4 to the Constitution in relevant part provides:
“
Police to the extent that the
provisions of Chapter 11 of the Constitution confer upon the
provincial legislatures legislative
competence.”
28
Section
206(4) of the Constitution.
29
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South
Africa, 1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10)
BCLR 1253
(CC) (
First Certification Case
)
.
30
Id
at para 399. NT means New Text of the Constitution of the Republic
of South Africa.
31
Section
214(1) of the interim Constitution.
32
First
Certification Case
above n 29 at para 398.
33
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Amended Text of the Constitution of the
Republic
of South Africa, 1996
[1996] ZACC 24
;
1997 (2) SA 97
(CC);
1997 (1) BCLR 1
(CC)
(Second Certification Case).
34
Section
7(2) of the Constitution provides:
“
The state must respect,
protect, promote and fulfil the rights in the Bill of Rights.”
35
Second
Certification Case
above n 33 at para 168.
36
Constitutional
Principle XVIII.2 of the interim Constitution. See also
Second
Certification Case
above n 34 at para2.
37
Section
207(3) of the Constitution.
38
Section
207(6) of the Constitution.
39
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) (
SARFU III
).
40
Section
84(2)(f) of the Constitution provides:
“
The
President is responsible for appointing commissions of inquiry”.
41
SARFU
III
above n 39 at paras 144-8.
42
Id
at para 146.
43
Id
at para 147.
44
Id.
See also
S v Mulder
1980 (1) SA 113
(T) at 120E cited in
SARFU III
above n 39 at fn 113.
45
[1995]
2 SCR 97.
46
Id
at 137-8.
47
SARFU
III
above n 39 at para 155.
48
8
of 1947.
49
SARFU
III
above n 39 at para 176.
50
Id.
51
Also
reflected in sections 1 and 3 of the WC Commissions Act.
52
Task
Team Report compiled by Major General (Dr) CP de Kock on 3 August
2012, titled “Serious Crime in Khayelitsha and Surrounding
Areas”. The Report revealed that social contact crime in
Khayelitsha increased by 16,1% in 2011/2012 and 17.5% during the
first quarter of 2012/2013. Furthermore, the four other stations
used in comparison to Khayelitsha presented in the report (namely
Harare, Lingelethu West, Mfuleni and Mitchells Plain) mostly
recorded small decreases, except Mitchells Plain with a 7,1%
increase.
53
Section
205(3) of the Constitution. See also Preamble to the
South African
Police Service Act 68 of 1995
.
54
Section
1(d) of the Constitution.
55
2
of 2011.
56
Section
41(1)(h) of the Constitution provides that “[a]ll spheres of
government and all organs of state within each sphere
must . . .
co-operate with one another in mutual trust and good faith”.
57
Section
41(4) of the Constitution.
58
National
Gambling Board
above n 15 at para 33.
59
Id
at para 36.
60
Uthukela
District Municipality and Others v President of the Republic of
South Africa and Others
[2002] ZACC 11
;
2003 (1) SA 678
(CC);
2002 (11) BCLR 1220
(CC)(
Uthukela
).
61
Id
at para 19.
62
Section
41(1)(e) of the Constitution provides:
“
All spheres of government and
all organs of state within each sphere must respect the
constitutional status, institutions, powers
and functions of
government in the other spheres”.
63
Section
41(3) of the Constitution provides:
“
[a]n organ of state involved
in an intergovernmental dispute must make every reasonable effort to
settle the dispute by means
of mechanisms and procedures provided
for that purpose, and must exhaust all other remedies before it
approaches a court to resolve
the dispute.”
64
eThekwini
Municipality v Ingonyama Trust
[2013] ZACC 7
;
2013 (5) BCLR 497
(CC). See also
City of Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal and Others
[2010] ZACC 11
;
2010 (6)
SA 182
(CC);
2010 (9) BCLR 859
(CC),
MEC for Health,
KwaZulu-Natal v Premier, Kwazulu-Natal: In re Minister of Health and
Others v Treatment Action Campaign and Others
[2002] ZACC 14
;
2002 (10) BCLR 1023
(CC)
, Independent Electoral Commission v
Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC).
65
SARFU
III
above n 39 at para 229.
66
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
67
Id
at para 109.