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[2013] ZAWCHC 216
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Minister of Police and Others v Premier of the Western Cape and Others (21600/12) [2013] ZAWCHC 216 (14 January 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO:
21600/12
In
the matter between:
THE
MINISTER OF POLICE
1
st
Applicant
NATIONAL
COMMISSIONER OF THE SOUTH AFRICAN
POLICE
SERVICE
2
nd
Applicant
THE
PROVINCIAL COMMISSIONER OF THE SOUTH
AFRICAN
POLICE SERVICE FOR THE WESTERN CAPE 3
rd
Applicant
THE
CIVILIAN SECRETARIAT FOR THE POLICE SERVICE
4
th
Applicant
COLONEL
M F REITZ
5
th
Applicant
BRIGADIER
Z DLADLA
6
th
Applicant
COLONEL
TSHATLEHO RABOLIBA
7
th
Applicant
And
THE
PREMIER OF THE WESTERN CAPE
1
st
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
COMMUNITY
SAFETY, WESTERN CAPE
2
nd
Respondent
THE
CITY OF CAPE TOWN
3
rd
Respondent
THE
HON JUSTICE CATHERINE O’REGAN N.O.
4
th
Respondent
ADV
VUSUMZI PATRICK PIKOLI N.O.
5
th
Respondent
THE
SECRETARY TO THE COMMISSION
6
th
Respondent
ADV
T SIDAKI
7
th
Respondent
WOMEN’S
LEGAL CENTRE
8
th
Respondent
SOCIAL
JUSTICE COALITION
9
th
Respondent
JUDGMENT
DELIVERED ON 14 JANUARY 2013
YEKISO,
J
[1]
On 22 August 2012 and pursuant to her discretionary powers under
section 206(5) of the Constitution of the Republic of South
Africa,
1996 (“the Constitution”), read together with section
127(2)(e) of the Constitution and section 1(1) of the
Western Cape
Provincial Commissions Act, 10 of 1998 (“the Cape Commissions
Act”), the Premier of the province of the
Western Cape (“the
Premier”) established a commission of enquiry (“the
commission”).
[2]
The decision to establish the commission was premised on complaints
received by civil society bodies operating in Khayelitsha,
including
the Social Justice Coalition (the 9
th
Respondent), which
suggested a systemic failure in policing and a plague of what appears
to have been vigilante killings in which
at least 13 alleged suspects
were killed during the first half of the year 2012. The complaints
were, in turn, delivered to the
Premier on 28 November 2011.
[3]
The decision to establish a commission was promulgated in the
Provincial Gazette published on 24 August 2012. Schedule “A”
to the proclamation noted that the members of the Commission are
Justice Catherine O’Regan (a retired judge of the
Constitutional
Court) and Advocate Vusumzi Patrick Pikoli (who
previously served as the National Director of Public Prosecutions).
The Commission
is chaired by Judge O’Regan and has since become
known as the O’Regan Commission.
[4]
Item 6 of Schedule “A” of the proclamation referred to in
the preceding paragraph provides that the Commission has
to perform
the enquiry within its terms of reference and may exercise the powers
and perform the functions of a commission as referred
to in the Cape
Commissions Act and in accordance with regulations in Schedule “B”
thereof. The terms of reference are
set out as follows in the
proclamation:
“
To
investigate complaints received by the Premier relating to
allegations of –
(a)
inefficiency of the South
African Police Service stations at Site B, Bonga Drive, Khayelitsha;
Steven Biko Road, Harare, Khayelitsha;
and Makhabeni Street,
Lingelethu West, Khayelitsha and any other units of the South African
Police Service operating in Khayelitsha,
Cape Town (“Khayelitsha”);
and
(b)
a breakdown in relations
between the Khayelitsha community and members of the South African
Police Service stationed at the aforesaid
police stations in
Khayelitsha or operating in Khayelitsha.”
[5]
Once the Commission was established it commenced its work without
delay. The chairperson had to submit the report of the Commission
to
the Premier within six (6) months of its establishment which meant
that it had to conclude its work by 24 February 2013. Evidence
suggests that the Commission established offices in Harare,
Khayelitsha, which became operational from 11 September 2012.
[6]
On 5 November 2012 the applicants issued a notice of motion out of
this court in which the applicants seek several forms of
interdictory
relief under part A of the notice of motion pending determination, by
way of judicial review, of the relief sought
in part B of the notice
of motion.
[7]
Under part A of the notice of motion the applicants seek the
following relief as against the fourth, the fifth, the sixth and
the
seventh respondent:
[7.1.] an order restraining the
aforementioned respondents from giving effect to subpoenas issued in
terms of section 3(1)(a) of
the Cape Commissions Act and served on
certain police officials pending the final determination of the
relief sought under part
B of the notice of motion;
[7.2.] an order restraining the
aforementioned respondents from conducting the commission in any form
whatsoever, pending the final
determination of the relief sought
under part B of the notice of motion; and
[7.3.] similarly, an order restraining
the aforementioned respondents from issuing or causing to be issued
any subpoenas to any
member of the South African Police Service in
terms of section 3(1)(a) of the Cape Commissions Act, pending the
final determination
of the relief sought under part B of the notice
of motion.
[8]
Under part B of the notice of motion, and on a date to be determined
by the registrar, the applicants seek various forms of
relief. These
relate to an order reviewing and setting aside proclamation number
9/2012 published in the Provincial Gazette of
24 August 2012; an
order reviewing and setting aside the first respondent’s
decision to establish the commission on the grounds
of irrationality
and inconsistency with the Constitution; an order setting aside first
respondent’s decision to establish
the commission on the
grounds of unlawfulness and unconstitutionality; an order to set
aside the first respondent’s decision
to establish a commission
on the grounds of failure to give effect to the principles of
co-operative government and inter-governmental
relations as
contemplated in section 41 of the Constitution; and several other
forms of relief contemplated in part B of the notice
of motion.
THE
REQUIREMENTS FOR AN INTERIM INTERDICT
[9]
The requirements for an interim interdict are well established in our
law. In an application for an interim interdictory relief
the
applicant must establish a
prima facie
right to the relief
sought even if such relief may be open to some doubt; a well-grounded
apprehension of irreparable harm if the
interim relief is not granted
and the ultimate relief is eventually granted: that the balance of
convenience favour the granting
of the interim relief; and the
absence of any other satisfactory remedy available to the applicant.
[10]
However, in the instance of this matter, the applicants make it clear
in their submissions that several forms of relief sought
in the
notice of motion are sourced from the Constitution. These forms of
relief are based on the alleged unlawfulness and unconstitutionality
in the establishment of the Commission. In this regard the
applicants submit that the test for the granting of an interim
interdictory relief in authorities such as
Setlogelo v Setlogelo
1914 AD 221
was initially designed for and ideally suited to
disputes between private parties. The submission is that the test as
formulated
in
Setlogelo v Setlogelo, supra,
should now be
applied cognisant of the normative scheme and democratic principles
that underpin the Constitution. What this means,
as the
Constitutional Court aptly spells it out in
National Treasury &
Others v Opposition to Urban Tolling Alliance & Others
2012
(11) BCLR 1148
(CC) paragraph [45], is that when a court considers
whether to grant an interim interdict, it must do so in a way that
promotes
the objects, spirit and purport of the Constitution.
[11]
The applicants go on to make a point in their submissions that in an
instance where a right asserted in a claim for an interim
interdict
is sourced from the Constitution, it would be redundant to enquire
whether that rights exists and that, similarly, when
a court weighs
up where the balance of convenience rests, it may not fail to
consider the probable impact of the restraining order
on the
constitutional and statutory powers and duties of the state
functionary or organ of state against which the interim order
is
sought, relying as they do in their submissions, on
National
Treasury & Others v Opposition to Urban Tolling Alliance &
Others, supra
para’s [45] and [46]
.
Thus, the
applicants submit that their claims for the interdictory relief
derive from the Constitution.
BACKGROUND
TOWARDS ESTABLISHMENT OF THE COMMISSION
[12]
As has already been pointed out in paragraph [2] above, on 28
November 2011 the Women’s Legal Centre, acting for several
non-governmental organisations, delivered a lengthy complaint to the
Premier of the province of the Western Cape regarding alleged
inefficiencies in the S A Police Service and the City of Cape Town
Municipal Police Service (the Metro Police) operating in Khayelitsha.
The complaint sought to detail several cases which were emblematic of
alleged systemic failures. According to the Premier, she
recognised
at that stage that the evidence in the complaint was not sufficient
in itself for purposes of assessment of the merit
of the complaint
and that same had to be taken up with the S A Police Service as well
as the Metro Police. The premier forwarded
the complaint to the Metro
Police and the Provincial Commissioner of Police, Western Cape (“the
Provincial Commissioner”),
respectively, on 8 and 9 December
2011. The Premier states in her answering affidavit that the
complaint was addressed to the Provincial
Commissioner as the latter
functionary was the Premier’s counterpart in the province and
most appropriately placed to deal
with the issues. The complaint
received from the Women’s Legal Centre was enclosed in both
letters addressed to the Metro
Police as well as the Provincial
Commissioner. The letter requested the Provincial Commissioner to
provide the Premier with his
comment on the substance of the
complaint and the method proposed to be the most appropriate to deal
with the complaint. The letter
to the Provincial Commissioner, under
cover whereof was enclosed the complaint, was copied to the Minister
of Police as well as
the National Commissioner of Police (“the
National Commissioner”) per letters dated 9 December 2011. The
Premier sought
comments on the complaints lodged from those
functionaries by no later than 30 January 2012.
[13]
The response from the City of Cape Town merely indicated that none of
the cases referred to in the complaint involved the Metro
Police
officers, simultaneously explaining the role and procedures of the
Metro Police in their policing operations in Khayelitsha.
The office
of the Minister responded by way of a letter dated 12 December 2011
which states as follows:
“
On
behalf of the Minister of Police, Mr E N Mtetwa, MP, we hereby
acknowledge receipt of your correspondence dated the 9
th
December 2011.
The
matter is receiving our utmost attention and further correspondence
will be directed to you in due course.
With
kind regards.”
The
letter was signed off by a Mr Simon Chabangu, the Minister’s
administrative secretary. No response was received
from the
Provincial Commissioner or the office of the National Commissioner.
[14]
As at 30 January 2012 the Premier had neither received a response
from either the Provincial Commissioner or the office of
the Minister
and, for that matter, from the office of the National Commissioner.
On 14 February 2012 the Premier once again addressed
a letter to the
Provincial Commissioner referring to earlier correspondence of 9
December 2011. The Premier noted that she
had not had a
response from the Provincial Commissioner by 30 January 2012 as
suggested in her earlier correspondence. This
letter was, once
again, copied both to the National Commissioner as well as the office
of the Minister. On this occasion the Premier
requested for a comment
from the Provincial Commissioner by no later than 28 February 2012,
failing which, so the Premier pointed
out in her letter, she would be
forced to assume that the Provincial Commissioner has no interest in
the matter in which event
the Premier would proceed to deal with the
matter without further reference to the office of the Provincial
Commissioner.
[15]
The Provincial Commissioner responded by way of a letter dated 27
February 2012 informing the Premier that the matter had since
been
referred to the S A Police Service head office for instructions.
Evidence tends to suggest that the Provincial Commissioner
had, in
the interim, contacted the S A Police Service Executive Legal Officer
for guidance. It would appear that the Executive
Legal Officer
advised that the then acting National Commissioner was of the view
that, to the extent that the Premier has the authority
to appoint a
commission of enquiry, it is not for the S A Police Service to
comment on how she should exercise those powers.
[16]
It would appear that on 29 March 2012 the Minister met with the
community leadership of Khayelitsha regarding the disturbing
incidents of violence against foreign nationals in that community.
Following the Minister’s request, the Provincial Commissioner
ensured that the S A Police Service provincial leadership, the
cluster commander and the station commanders were in attendance
to
meet with the members of the community and listen to their concerns.
It appears that the office of the Premier had no knowledge
of the
Minister’s meeting with the community leadership of Khayelitsha
nor was the Premier’s office and the MEC for
Community Safety
invited to attend that meeting. It is not quite apparent on the basis
of the evidence whether the meeting with
the community leadership of
Khayelitsha was a sequel to the correspondence by the Premier
addressed to the Provincial Commissioner
and copied to the National
Commissioner and the Minister.
[17]
On 4 April 2012 the Premier received a supplementary complaint from
the Women’s Legal Centre dealing with allegations
against the
Metro Police. Evidence tends to suggest that the Premier met the
Women’s Legal Centre on 6 March 2012 and at
which meeting the
Premier indicated that she needed more detail regarding the complaint
lodged with her. It would appear that there
was a misunderstanding
arising from the meeting of 6 March 2012 as regards the further
detail required by the Premier. It would
appear that the Women’s
Legal Centre was of the view that the further detail and supplement
required was designed to determine
whether, in the event of a
commission of enquiry being established, its terms of reference
should include the conduct of the Metro
Police. The Premier states in
her answering affidavit that such an impression is not correct. She
states that her actual intention
had actually been to indicate the
need for more detail generally and not a supplement to address a
question whether the conduct
of the Metro Police should be included
in the terms of reference of the proposed commission. This
supplementary complaint was forwarded
to the City and the latter
provided a substantive response thereto to the Premier on 6 June
2012.
[18]
On 22 May 2012 a further letter was addressed to the Provincial
Commissioner, a copy whereof was forwarded to the Minister
and to the
then acting National Commissioner. In this letter a view was
expressed that the on-going acts of vigilantism in the
Khayelitsha
area appeared to give credence to the alleged breakdown of trust as
contained in the complaint lodged with the Premier
on 28 November
2011. The Premier referred to earlier correspondence of 9 December
2011 and 14 February 2012 eliciting comment on
the complaints lodged
and the method most appropriate to deal with the complaints.
The Premier expressed her disappointment
for lack of response from
the office of the Provincial Commissioner. The Premier further
advised that she was then compelled to
consider the establishment of
the commission without the benefit of the input from the Provincial
Commissioner in relation to the
veracity of the complaint. In
this letter the Premier indicated that she intended making a decision
within the following
ten (10) days.
[19]
On 14 June 2012 the Premier once again addressed a letter to the
Provincial Commissioner indicating that, notwithstanding an
acknowledgement of receipt of her letters dated 9 December 2011, 14
February 2012 and 22 May 2012, she had heard nothing further
from his
office regarding the complaints lodged with her and forwarded to the
Provincial Commissioner under cover of her letter
dated 9 December
2011. In the same letter, the Premier indicated that she had
received another set of additional supplementary
facts from several
of the original complainant organisations, stating in her letter that
those facts provide further evidence of
the allegation of
inefficiency and a breakdown in the relationship between the
community and the S A Police Service serving the
Khayelitsha
community. The additional supplementary facts were annexed to the
letter. The letter, together with the annexure thereto,
was copied to
the Minister as well as the office of the National Commissioner. The
Premier requested a response to the enclosed
additional facts by no
later than Wednesday, 20 June 2012. The Premier threatened to deal
with the matter without further reference
to that office should she
not receive a response by Wednesday, 20 June 2012.
[20]
The office of the Provincial Commissioner responded to the letter
referred to in the preceding paragraph stating that he was
still
awaiting instructions from his head office. The Minister’s
office responded, by way of a letter dated 21 June 2012,
a day after
the deadline set in the Premier’s letter dated 14 June 2012,
once again advising that the matter is receiving
utmost attention and
that further correspondence will be directed to the office of the
Premier in due course.
[21]
The office of the National Commissioner responded to the latest
letter from the office of the Premier dated 14 June 2012 by
way of a
letter dated 21 June 2012. In this letter the National Commissioner
requested time until 29 June 2012. This was necessitated
by the fact
that the current National Commissioner, in the person of General
Phiyega, had just been appointed. In her response
the National
Commissioner stated that she required time to consult with provincial
management and other role players at provincial
and national level
for purposes of conducting an investigation. She simultaneously
advised that the feedback from the Provincial
Commissioner was before
her for consideration and that the complaints were being investigated
with the assistance of the National
Inspectorate. By way of a letter
dated 22 June 2012 the Premier agreed to the extension requested,
simultaneously enclosing in
her letter to the National Commissioner
an open letter from the Social Justice Coalition which the Premier
had in the interim received.
[22]
On 29 June 2012 the National Commissioner addressed yet a further
letter to the Premier indicating that she had been briefed
and that
her response would be aided by the S A Police Service Inspectorate.
The National Commissioner simultaneously indicated
that she had
intended to undertake a qualitative assessment for which a realistic
time frame would be 20 July 2012. It would appear
that the briefing
referred to in the letter by the National Commissioner was not
provided to the Premier. The Premier responded
to the latest letter
from the National Commissioner by way of her letter dated 3 July
2012. The Premier acceded to the extension
requested. Paragraph of
the letter from the Premier reads:
“
The
volatile situation in Khayelitsha makes it imperative that all organs
of state are now seen to be taken swift and resolutive
action in this
regard. To date SAPS have failed to take any action whatsoever. Thus,
whilst I am agreeable to one final extension
of time, I am not
prepared to agree to this time period extending past the end of this
month, that is some seven months after the
initial complaint was sent
to your predecessor’s office; and I accordingly await to hear
from you in this matter on or before
close of business on 20 July
2012.”
[23]
It would appear that, in the interim, the National Commissioner had
appointed the task team to investigate the allegations
made by the
non-governmental organisations and to investigate the reasons,
relationships and quality of service delivery with the
view to
briefing the National Commissioner as to the most effective and
appropriate action required arising therefrom. It further
appears, on
the basis of evidence on record, that the task team met with the
Women’s Legal Centre together with its clients
on 11 July 2012.
The Premier makes a point in her answering affidavit that she,
together with the MEC for Community Safety, was
not informed of this
meeting; were not invited to attend; nor were they provided with any
report from the task team. As a matter
of fact the Premier states in
her answering affidavit that she was not advised of the progress of
the work being undertaken by
the task team; that she was not
approached by the task team; and that she was never provided with any
report generated by the task
team.
[24]
Arising from the meeting of 11 July 2012 the Women’s Legal
Centre requested the Premier to postpone her decision as to
whether
or not to establish a commission of enquiry until 31 July 2012. The
Premier responded to the request by the Women’s
Legal Centre by
way of a letter dated 16 July 2012. In this letter the Premier stated
that she is not prepared to consider agreeing
to an extension of time
past 20 July 2012 without, at the very least, being in receipt of a
motivated request from General Phiyega
in that regard, setting out
what would have been done to date and what her plan was with regards
to the issues raised in the complaint.
The Premier thus persisted
with her attitude that she was awaiting a response from the office of
the National Commissioner by no
later than 20 July.2012.
[25]
Evidence tends to suggest that the Premier and the National
Commissioner had an introductory meeting on 18 July 2012. The content
of this meeting is disputed. The National Commissioner suggests that
she asked for an extension and that the Premier acknowledged
that she
knew that the Minister was opposed to the establishment of a
commission. The Premier, on the other hand, suggests in her
replying
affidavit that she did indeed raise the issue of the commission with
the National Commissioner but merely indicated that
she knew the
Minister would be uncomfortable with the suggestion of a commission
but that, in any event, such a commission would
be of assistance to
the police. The Premier thus denies in her answering affidavit that
she had agreed to the deadline being extended
until 31 July 2012.
The Premier had, in any event, not heard any further from the
National Commissioner until her letter
addressed to the Premier dated
7 August 2012.
[26]
On 6 August 2012 the Premier met with the representatives of the
Women’s Legal Centre and the relevant civil society
organisations. It is not clear on the basis of the evidence on record
what the purpose of this meeting was but what is clear, though,
is
that neither the Provincial Commissioner, nor the National
Commissioner, nor the Minister was present at such a meeting. At
this
meeting the Women’s Legal Centre and their clients confirmed
their request for the establishment of a commission. They
also
confirmed that they had heard nothing further from the task team
since their last meeting on 11 July 2012. The representatives
of the
civil society organisations had apparently advised that in their view
it was imperative that a commission be established
on the basis of
the facts of the complaints so that the root causes of the on-going
acts of vigilantism in the area could be addressed.
[27]
The next communication from the office of the National Commissioner
to the Premier was by way of a letter dated 7 August 2012.
In this
letter, the National Commissioner indicates what efforts had been
made with regards to the resolution of the issues since
29 June 2012.
These included visits to the province, meeting with stakeholders and
engaging SAPS leadership in the province regarding
the challenges.
According to the view of the Premier this letter from the National
Commissioner was largely in general terms and
did not indicate with
any measure of specificity with regards to the issues raised in the
complaints lodged with her, did not address
the substance of the
complaint nor any appropriate method to deal with the complaint.
[28]
In the interim, the Provincial Department of Community Safety
produced a report dated 14 August 2012 recommending the establishment
of a commission of enquiry. The Provincial Cabinet had previously
indicated its “in principle” support for a commission
of
enquiry. On 15 August 2012 it confirmed its unanimous approval of the
proposed commission. The Premier made her decision to
appoint the
commission on 22 August 2012 which was conveyed to the public on the
same day. The establishment of the commission
was promulgated in the
Provincial Gazette published on 24 August 2012.
EVENTS
SUBSEQUENT TO ESTABLISHMENT OF THE COMMISSION
[29]
There are some few events which occurred subsequent to the
establishment of the Commission and the institution of these
proceedings
out of this court on 5 November 2012. These events
include a letter by the Minister of Police addressed to the Premier
dated 27
August 2012. The second paragraph of this letter reads:
“
I
write to you in the spirit of co-operative governance and
co-operative inter-governmental relations. I sincerely hope that you
will view my letter in this light as well. I also desire that by
writing to you we shall avert an inter-governmental dispute. This
is
necessary as organs of state are constitutionally bound to co-operate
with each other in mutual trust, good faith, to assist
and support
each other.”
[30]
Further in the letter the Minister indicates that he was deeply
concerned by media reports that on 24 August 2012 the Premier
appointed a Commission of Enquiry into allegations of police
inefficiency in Khayelitsha and of a breakdown in relation between
the community and the police in Khayelitsha. The Minister goes on to
say that the Commission was established without the Premier
either
discussing the matter with him or notifying him of her intended
actions. The letter concludes by the Minister requesting
the Premier
to postpone the Commission from commencing its work in order that the
issues raised by the Minister in his letter of
27 August 2012 be
resolved amicably.
[31]
The Premier responded by way of a lengthy letter dated 28 August
2012. Apart from responding to some of the issues raised in
the
Minister’s letter, the Premier’s response was that,
whilst she was happy to meet with the Minister, she nonetheless
was
not agreeable that the commission postpones its work as requested.
After exchange of further correspondence the Minister ultimately
issued a notice of motion out of this court in which the Minister,
together with several other applicants, seek various forms of
relief
as set out in part A and part B of the notice of motion.
THE
APPLICANTS’ CHALLENGE TO THE LEGALITY OF THE COMMISSION
[32]
The applicants’ complaints on the legality of the Commission
appears to be based on a contention that the complaint,
on the basis
of which the Commission was established, is improper and does not
warrant the appointment of the Commission; that
the appointment of
the Commission was irrational; that the Premier failed to comply with
her obligations with regards to co-operative
governance before taking
the decision to establish the Commission; that the decision was made
without the Premier first complying
with her obligation to engage
with other constitutional and statutory bodies; that the Premier
usurped the statutory and constitutional
powers of the police by
authorising the Commission to issue subpoenas against certain
officials of the S A Police Service; that
the decision was made under
dictation and for an ulterior motive; that the Commission is unlawful
as it entails the investigation
of criminal offences, thereby
usurping the constitutional and statutory functions of the police;
and that the appointment of a
judge to chair the Commission results
in judicial entanglement in matters of political controversy.
[33]
The legality of the Commission is further challenged on the basis of
the Commission’s coercive powers, it being contended
on behalf
of the applicants that to cloak the Commission with such coercive
powers is invalid, unlawful and, accordingly, unconstitutional.
In this regard it submitted on behalf of the applicants that the
Premier and/or the executive council of the province did not have
the
power under section 207 of the Constitution, read in the context of
chapter 11 of the Constitution (and more particularly with
reference
to a power of “a province” under section 206(5) thereof)
to appoint a commission with a power of control
over members of the
SA Police Service, whether by way of a subpoena or otherwise. It is
thus contended on behalf of the applicants
that the establishment of
the Commission virtually usurped the powers of control of the SA
Police Service vested in the President,
the Minister of Police and
the National Commissioner of Police.
[34]
The further basis of an attack on the constitutionality or otherwise
lawfulness of the establishment of the Commission is based
on a
contention that the Premier, in establishing the Commission in the
manner she did, misconstrued her powers in terms of section
127(2)(e)
and 206(5) of the Constitution. In this regard it is submitted on
behalf of the applicants that the equation of the power
of a province
to appoint a Commission over policing in terms of section 206(5) of
the Constitution with the powers of the Premier
in terms of section
127 of the Constitution is bad in law as the Premier acted under a
misconception as to the powers and duties
of the province and of her
own powers. Arising from the basis of all these challenges the issue
that first has to be determined
is, in my view, whether the Premier
had the power to establish the Commission in the manner she did.
THE
PREMIER’S POWER TO APPOINT THE COMMISSION
[35]
The Commission was established by the Premier in terms of the powers
conferred upon her under section 206(5) of the Constitution.
The
relevant provisions in section 206 dealing with the province’s
entitlement and the power of the Premier to appoint a
Commission read
as follows:
“
206
(3) 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.”
[36]
On the other hand, the competence of “the Province” to
appoint a Commission is derived from section 206(5) which
reads as
follows:
“
(5)
In order to perform the functions set out in subsection (3), a
province –
(a)
may investigate, or
appoint a commission of enquiry 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.”
It
is worth noting that the executive authority of a province vests in
the Premier and that the Premier exercises executive authority
together with the other members of the Executive Council.
[37]
In order to appreciate the power of the province to appoint a
Commission in terms of section 206(5) of the Constitution it
is
necessary, in my view, to trace the brief history and background of
the inclusion in the Constitution of sub-section (3) to
sub-section
(9) to section 206 of the Constitution. After the adoption of the
Final Constitution by the Constitutional Assembly
that text of the
Constitution was forwarded to the Constitutional Court for the
required certification as contemplated in section
71 of the
Constitution of the Republic of South Africa, Act 200 of 1993
(Interim Constitution). In terms of that section the constitutional
text which would be adopted by the Constitutional Assembly had to
comply with the constitutional principles contained in Schedule
4 of
the Interim Constitution. Section 71(2) of the Interim Constitution
provided at the time that the new constitutional text
that would be
adopted by the Constitutional Assembly, or any provision thereof,
would not be of any force unless the Constitutional
Court would have
certified that all the provisions of such text comply with the
constitutional principles referred to in sub-section
(1) paragraph
(a) thereof. The constitutional principles referred to in section (1)
are those principles agreed to between the
parties who were involved
in negotiations at Kempton Park, commonly referred to as the “
Solemn
Pact”
at the time, from which the new constitutional text
would not deviate or derogate.
[38]
Paragraph XVIII (2) of the said constitutional principles provided as
follows:
“
The
powers and functions of the provinces defined in the Constitution,
including the competence of a provincial legislature to adopt
a
Constitution for its province, shall not be substantially less than
or substantially inferior to those provided for in this
Constitution.”
When
the new text was referred to the Constitutional Court for the
required certification in terms of section 71 of the Interim
Constitution the Constitutional Court refused to certify the text on
the basis that the powers and functions of the provinces,
as defined
in the Interim Constitution, in the text to be certified, were
significantly reduced to those provided for in the Interim
Constitution. (In re:
Certification of the Constitution of the
Republic of South Africa,
1996 1996 (10) BCLR 1253
(CC) p1378
para 401). The new constitutional text was referred back to the
Constitutional Assembly for reconsideration.
[39]
When the new text was referred back to the Constitutional Assembly
for reconsideration section 206 in the new text comprised
only two
sub-sections, these being sub-section (1) dealing with the member of
the Cabinet responsible for policing and sub-section
(2) dealing with
each province’s entitlement. Seven additional sub-sections were
added to section 206 after reconsideration
of the new text by the
Constitutional Assembly. Amongst the sub-sections included in section
206 is sub-section (5) which deals
with the powers conferred on the
province in the performance of those functions set out in section
206(3).
[40]
When the amended text was referred back to the Constitutional Court
seven further sub-sections were added to section 206 over
and above
the only two sub-sections which were provided for in the new text.
The further sub-section added to section 206, over
and above the
other sub-sections, was sub-section (5), which confers on the
Province power to investigate or appoint a Commission
of enquiry into
any complaints of police inefficiency or breakdown in relations
between the police and any community. In its second
certification
judgment the Constitutional Court observed that the monitoring and
overseeing functions of the provinces in the amended
text were given
more teeth by the power given to the provinces to investigate or to
appoint a Commission of Enquiry into any complaints
of police
inefficiency or breakdown in relations between the police and any
community. (See
Certification of the amended text of the
Constitution of the Republic of South Africa
[1996] ZACC 24
; ,
1996 1997 (1) BCLR
1
(CC) page 50 para [68]). It is, in my view, in the light of
this constitutional background, that the powers of the province
and,
ultimately, the power of the Premier to appoint a Commission in terms
of section 206(5), has to be assessed.
[41]
It is thus on the basis of this background, that the Constitutional
Assembly, over and above the power conferred on the Premier
in terms
of section 127(2)(e) of the Constitution, conferred on the Province a
power to investigate and appoint a Commission as
contemplated in
section 206(5)(a) of the Constitution.
[42]
It is clear in terms of section 206(5) of the Constitution that the
existence of a complaint or complaints is a jurisdictional
pre-requisite for the exercise of the powers conferred on the Premier
by this provision. The only requirement specified for a complaint
is
that it must relate to police inefficiency or a breakdown in
police/community relations. If a complaint is to be acted on, it
may
either be investigated or a Commission may be appointed. The purpose
of a Commission to conduct an investigation contemplated
in section
206(5) is thus directed towards the performance by the police of the
five functions listed in section 206(3) of Constitution.
Section 206(5) confers the power to appoint a Commission to conduct
an investigation on “a province”. A Premier is
the only
provincial official or body that is authorised by the Constitution to
appoint a Commission. By way of contrast, the power
to conduct an
investigation in terms of section 206(5) of the Constitution may be
performed by the province acting through the
member of the provincial
executive responsible for policing functions referred to in section
206(4) of the Constitution or possibly
any other official or body
that has the power to authorise an investigation.
[43]
Section 127(2)(e) of the Constitution is the source of the Premier’s
power to appoint a Commission of Enquiry. The provision,
in part,
provides that the Premier of a province shall be responsible for
appointing Commissions of Enquiry.
Mr
Hathorn (with him
Ms
Mayosi
) makes a point in his submissions that the powers of the
Premier in terms of section 127(2) of the Constitution are the
equivalent,
at the provincial sphere of government, of the more
extensive powers exercised by the President in terms of section 84(2)
of the
Constitution which confers on the President the power to
appoint of a Commission of Enquiry. I am in perfect agreement
with
this submission.
[44]
The power of the province to appoint a commission in terms of section
206(5)(a) of the Constitution, such power having been
specifically
conferred on the province by the Constitutional Assembly, is to be
exercised by the Premier and his or her Executive
Council.
[45]
As has already been pointed out elsewhere in this judgment, the
Premier made a decision to appoint the Commission on the 22
nd
August 2012. The proclamation establishing the Commission was
published in the Provincial Gazette of the 24
th
August
2012. The Commission is established in terms of section 1 of the Cape
Provincial Commissions Act. In terms of this provision,
the Premier
may, by proclamation, appoint a Commission of Enquiry, define the
matter to be investigated and the Commission’s
terms of
reference and make regulations providing for the procedure to be
followed by the Commission. The terms of reference
of the
Commission are cited in paragraph [4] of this judgment.
[46]
Sections 3 and 4 of the Cape Commissions Act confer on the Commission
the coercive powers to subpoena witnesses, call for provision
of
documents and may call on witness to be sworn in and answer
questions. Any Commission appointed by the Premier in terms of the
Cape Provincial Commission is automatically clothed with coercive
powers. The applicants do not include, in their challenge to
the
legality of the Commission, a challenge to the constitutionality of
the provisions of the Cape Commissions Act. Thus, the power
of the
Premier to appoint a Commission is an original constitutional power
of a discretionary nature which can be limited only
by the
Constitution (
City of Cape Town v Premier, Western Cape &
Others
2008 (6) SA 345
(C) para 57.2).
[47]
The primary constraint on the Premier’s decision to establish a
Commission of Enquiry is the requirement that the appointment
comply
with the principle of legality (see
City of Cape Town v Premier,
Western Cape & Others, supra, para 98
). The principle of
legality would entail that the Premier’s conduct must be
consistent with the Constitution and should be
within the law; that
she must not misconstrue her powers and that the decision to
establish a Commission must be rationally related
to the purpose for
which the power to appoint a Commission was conferred (see
Masetlha
v The President of the Republic of South Africa & Another
[2007] ZACC 20
;
2008
(1) SA 566
(CC) at paras 79 to 81). As the establishment of the
Commission was promulgated by way of a proclamation in the Provincial
Government Gazette of the 24
th
August 2012, the Premier’s
decision to establish the Commission ought and should be assessed as
at the time the act of establishing
the Commission was promulgated.
[48]
Thus, the Premier’s power to appoint a Commission of Enquiry is
derived from section 127(2)(e) of the Constitution. The
competency of
the province to investigate complaints of police inefficiency or
breakdown in relations between the police and any
community is
derived from section 206(5) of the Constitution. The Premier is the
only provincial official authorised by the Constitution
to appoint a
Commission of Enquiry. The Commission was established pursuant to the
Cape Commissions Act which automatically applies
to all Commissions
established in the province. It is within the constitutional and the
statutory matrix referred to in preceding
paragraphs that the
legality of the establishment of the Commission has to be assessed.
[49]
In paragraph [32] of this judgment, I listed several grounds on the
bass of which the constitutionality of the establishment
of the
Commission is challenged. I shall now deal with those several basis
of constitutional challenges with a view to determining
the merits
thereof and, ultimately, the legality of the establishment of the
Commission. The first such basis of a challenge is
the contention
that the Premier, in establishing the Commission in the manner she
did, failed to comply with her obligations with
regards to
co-operative governance and inter-governmental relations.
CO-OPERATIVE
GOVERNANCE
[50]
The applicants’ contend in the their notice of motion as well
as in their founding affidavits that the Premier, in establishing
the
Commission in the manner she did, failed to comply with the
constitutional and statutory obligations relating to principles
of
co-operative governance and intergovernmental relations. The
principles of co-operative governance apply to the national,
provincial
and local spheres of government; the legislative and
executive branches within each sphere of government; the public
administration,
which includes the public service; organs of state
and other public entities (see Yvonne Burns:
Administrative Law
under the 1996 Constitution
Butterworths 1998 p72).
[51]
The office of the Premier; the office of the Provincial Commissioner;
the office of the National Commissioner; and the office
of the
Minister are all organs of state as contemplated in section 239 of
the Constitution. In terms of that section, “organ
of state”,
in part, means any department of state or administration in the
National, Provincial or Local sphere of government.
To the extent
that the office of the Premier; the office of the Provincial
Commissioner; the office of the National Commissioner
as well as the
office of the Minister fall within the public administration, those
institutions are subject to the high standard
of professional ethics
which must be promoted and maintained as envisaged in section
195(1)(a) of the Constitution. The Constitution
enjoins the
aforementioned institutions to co-operate with one another in mutual
trust and good faith in those aspects listed under
paragraph (h)(i)
to (vi) of the Constitution.
[52]
As indicated in the preceding paragraph, the organs of state at play
in the determination of whether the Premier failed to
comply with the
constitutional and statutory obligations relating to principles of
co-operative governance and inter-governmental
relations, are the
office of the Premier; the office of the Provincial Commissioner; the
office of the National Commissioner; and
the office of the Minister.
The office of the Premier is an organ of state within the provincial
sphere of government. The office
of the Provincial Commissioner,
although operating within a province, is essentially an organ of
state within the national sphere
of government. That the office of
the National Commissioner and the office of the Minister are organs
of state within the national
sphere of government does not need any
elaboration.
[53]
As has already been pointed out, the office of the Premier, being an
organ of state within the provincial sphere of government,
was served
with a lengthy complaint by the Women’s Legal Centre acting for
several non-governmental organisations operating
within Khayelitsha
regarding the alleged inefficiencies in the S A Police Service and
Metro Police operating in Khayelitsha. The
complaint purports to be
lodged in terms of section 206(5)(a) of the Constitution read with
section 66(2)(a) of the Constitution
of the Western Cape. The
complaint is addressed to the Premier of the Western Cape. The
complaint urges the Premier to establish
a Commission of Enquiry in
terms of section 127(2)(a) of the Constitution, read with section
37(2)(e) of the Constitution of the
Western Cape.
[54]
Once the complaint was received the Premier thought it prudent to
involve the Provincial Commissioner as the latter functionary
was the
Premier’s counterpart in the province and most appropriately
placed to deal with the issues raised in the complaint.
INTER-GOVERNMENTAL
COMMUNICATION: PROVINCIAL COMMISSIONER
[55]
After receipt of the complaint, and by way of a letter dated 9
December 2011, the Premier addressed a letter to the Provincial
Commissioner enclosing a copy of the complaint. The letter requested
the Provincial Commissioner to provide the Premier with his
comment
on the substance of the complaint and the method proposed to be the
most appropriate to deal with the complaint. The letter
requested the
Provincial Commissioner to let the Premier have his comments by no
later than 30 January 2012.
[56]
No response was received from the Provincial Commissioner by 30
January 2012 as requested in the Premier’s letter dated
9
December 2011. By way of a further letter dated 14 February
2012 the Premier once again addressed a letter to the Provincial
Commissioner referring to earlier correspondence of 9 December 2011.
On this occasion the Premier requested a response from the
Provincial
Commissioner by no later than 28 February 2012 and that, in the
absence of a response from that office, the Premier
advised that she
would assume that the Provincial Commissioner has no interest in the
matter, in which event, the Premier would
proceed to deal with the
matter without further reference to that institution. The response
from the office of the Provincial Commissioner,
on the occasion of
this communication, was by way of a letter dated 27 February 2012. In
this letter the Provincial Commissioner
merely advised that earlier
communication, by way of the Premier’s letter of 9 December
2011, had since been forwarded to
the office of the National
Commissioner for instructions.
[57]
As at 22 May 2012 no response had been received from the office of
the Provincial Commissioner. On this occasion the Premier
expressed
her disappointment for lack of substantive response to her earlier
communication by way of letters dated 9 December 2011
and 14 February
2012. In the light of lack of response from the office of the
Provincial Commissioner the Premier advised, on this
latest
communication to the Provincial Commissioner, that she was, under the
circumstances, compelled to consider the establishment
of the
Commission without the benefit of an input from the office of the
Provincial Commissioner in relation to the veracity of
the complaints
lodged with her. The Premier further indicated that she had intended
to take a decision with regards to the matter
within the following
ten(10) days. The office of the Provincial Commissioner once again
acknowledged receipt of this latest correspondence
and still
maintained that he was still awaiting instructions from the head
office. Despite all the aforementioned communications
addressed to
the Provincial Commissioner, the Premier did not receive any response
from that office with regards to the veracity
of the complaints
lodged with the Premier or an input with regards to the method best
thought to be appropriate to deal with the
complaints concerned.
[58]
The last communication by the Premier to the office of the Provincial
Commissioner was by way of a letter dated 14 June 2012.
Once again
the Premier expressed her disappointment for lack of any substantive
response from the office of the Provincial Commissioner
to her
earlier correspondence of 9 December 2011, 14 February 2012 as well
as 22 May 2012. In this letter the Premier indicated
that she had
since received another set of additional supplementary facts from
several of the original complainant organisations.
The Premier states
in this letter that the facts contained in the latest set of
additional supplementary facts from these organisations
tend to
provide evidence of allegations of inefficiency and a breakdown in
the relations between the community and the S A Police
Service
serving the Khayelitsha community. On this occasion, the Premier
requested a response from the office of the Provincial
Commissioner
by no later than Wednesday, 20 June 2012. Once again, on this
occasion, the Premier threatened to deal further with
the matter
without further reference to that office should she not receive any
response from that office by Wednesday, 20 June
2012. Once again, the
Provincial Commissioner responded by merely stating that the latest
communication by way of a letter of 14
June 2012, had been referred
to the Head Office. Ultimately, the Commission was established
without any input from the office
of the Provincial Commissioner.
THE
NATIONAL COMMISSIONER
[59]
All the correspondence addressed to the Provincial Commissioner was
copied to the National Commissioner including the last
letter
addressed to the Provincial Commissioner dated 14 June 2012. On this
occasion the office of the National Commissioner responded
to the
Premier’s earlier letter of 14 June 2012 by way of her letter
dated 21 June 2012. The National Commissioner noted
that her office
was “in a situation of transition” with the appointment
of the new National Commissioner. In this letter
the National
Commissioner requested time until 29 June 2012 in order to afford her
an opportunity to deal with the issues raised
in earlier
correspondence. The National Commissioner further stated that she
required time to consult with provincial management
and other role
players at provincial and national level for purposes of conducting
an investigation. The Premier acceded to the
requested extension.
[60]
On 29 June 2012 the National Commissioner addressed yet a further
letter to the Premier on this occasion advising that she
had been
briefed and that her response would be aided by the S A Police
Service Inspectorate. She simultaneously indicated that
she had
intended to undertake a qualitative assessment for which a realistic
time frame would be 20 July 2012 and requested an
extension of time
until the aforementioned date. The Premier acceded to this request
simultaneously advising that the volatile
situation in Khayelitsha
makes it imperative that all organs of state be seen to take swift
and relative action with regards to
the complaints raised.
[61]
It appeared that the National Commissioner had, in the interim,
appointed a task team which subsequently met with the Women’s
Legal Centre together with its clients on 11 July 2012. Arising from
the meeting with the task team the Women’s Legal Centre
addressed a letter to the Premier requesting that more time be
afforded to the National Commissioner to deal with the matter
simultaneously
requesting that she be afforded an extension from 20
July 2012 until 31 July 2012. The attitude of the Premier was that
she would
only be agreeable to an extension beyond 20 July 2012 on
the basis of a motivated request from the National Commissioner in
which
it would be set out what would have been done to date and what
her plan was with regards to the issues raised in the complaint.
No
direct request was received from the office of the National
Commissioner with regards to the request for an extension beyond
the
deadline of 20 July 2012.
[62]
The Premier had heard nothing further from the office of the National
Commissioner until a letter received from that office
dated 7 August
2012. In this letter the National Commissioner advised of
efforts that had been made with regards to the resolution
of the
issues since her last letter addressed to the Premier dated 29 June
2012. These included visits to the province; meeting
with
stakeholders; engaging S A Police Service leadership in the province
regarding the challenges and also pointed out that the
issues raised
in the complaint were intricate and complex and not capable of being
addressed overnight. By this time it had almost
been a period of nine
months since the Premier first made contact with the Provincial
Commissioner, the National Commissioner as
well as the office of the
Minister.
[63]
In her letter of 7 August 2012 the National Commissioner does not
refer to an extension of 20 July 2012 granted to her earlier
and
which, by all accounts, she failed to adhere to. She does not refer
to the extension of 31 July 2012 which apparently was granted
to her
by the Premier but which extension is disputed by the Premier. Apart
from raising the fact that the issues raised in the
complaint were
intricate and complex, the National Commission did not state what her
plan of action was with regards to dealing
with the matter nor the
fact that she had, in the interim, established a task team with a
view to advising her on the most appropriate
method to deal with the
complaints. Also, with regards to the National Commissioner, the
Premier ultimately established the Commission
without any benefit of
an input from that office.
THE
MINISTER
[64]
No substantive response was received from the office of the Minister
other than acknowledgement of communication addressed
to that office
with an assurance that the matter was receiving utmost attention at
that office. There is no evidence to suggest
that the office of the
Minister had, in the interim, been in contact with both the office of
the National Commissioner and the
Provincial Commissioner to
ascertain how those institutions intended dealing with the
complaints, coupled with a directive that
the Minister be apprised of
the developments with regards to how the complaint was being attended
to. It would appear that the
Minister elected to leave the matter of
the complaints raised with the National and the Provincial
Commissioner. In the meantime,
the Premier had received a report from
the Department of Community Safety. Once the Premier had received a
report from the Department
of Community Safety and the Executive
having unanimously approved the establishment of a Commissioner of
Enquiry, the Premier proceeded
to establish the Commission which was
duly proclaimed in the Provincial Gazette on 24 August 2012.
FAILURE
TO ENGAGE WITH OTHER BODIES
[65]
Ancillary to the complaint that the Premier, in establishing the
Commission in the manner she did, failed to comply with the
constitutional and statutory obligations relating to the principles
of co-operative governance and inter-governmental relations,
is the
complaint that the Premier took the decision to establish the
Commission without engaging with a range of constitutional
and
statutory bodies prior to making her decision. These complaints
relate to failure to raise a matter of the complaint at the
meetings
of the Executive; failure to raise the matter with the office of the
National Minister prior to establishing the Commission;
failure to
engage the MinMec structures; the Civilian Secretariat for Police;
failure to raise the issues relating to the complaints
with the
standing meetings between the MEC and the Provincial Commissioner;
failure to utilise information requesting channels
within the S A
Police Service and the Provincial Commissioner; and Community
Policing Forums, amongst other structures that the
applicants contend
that the Premier ought to have consulted prior to making a decision
to establish a Commission of Enquiry.
[66]
Apart from the Civilian Secretariat for Police and the Independent
Police Investigate Directorate, both of which organisations
are
organs of state within the national sphere of government, none of the
organisations referred to in the applicants’ complaint
can be
construed as organs of state contemplated in section 41(1) of the
Constitution. The applicants’ complaints boil down
thereto that
the Premier was obliged to deal with the complaints about policing in
Khayelitsha by consulting a variety of bodies,
ostensibly as a
pre-requisite before she could lawfully establish a Commission in
terms of section 206(5) of the Constitution.
However, in doing so,
the applicants fail to point out a single statutory or constitutional
provision to sustain this basis of
a complaint. There appears to be
no textual or other indicators in the Constitution or in the Cape
Commissions Act which suggest
the kind of limitation that the
applicants seek to impose on the Premier’s oversight powers
inclusive of the power to establish
a Commission of Enquiry in terms
of section 206(5) of the Constitution.
[67]
As has already been pointed out in the preceding paragraph only two
of the organisations and/or structures which the applicants
contend
the Premier ought to have consulted prior to establishing a
Commission are organs of state. These are the Civilian Secretariat
for Police and the Independent Police Investigative Directorate. The
Civilian Secretariat is an organ of state in the national
sphere of
government. Its functions are set out in section 6 of the Civilian
Secretariat Police Service Act, 2 of 2011 (“the
Civilian
Secretariat Act”).
Mr Rosenberg
SC (with him
David
Borgström
and
Mushahida Adhikari
) makes a point in
his submissions that the Civilian Secretariat at the national sphere
does not have a complaints mechanism through
which the complaints of
the nature and substance of those submitted by the civil society
organisations could have been dealt with.
The submission goes further
to suggest that such complaints, in any event, fall outside of the
functions of the Civilian Secretariat
as set out in its governing
legislation. I am in perfect agreement with this submission.
[68]
The mandate of the Civilian Secretariat, as set out in section 6 of
the Civilian Secretariat Act, does not make provision for
the
investigation of complaints against the police. As has already been
pointed out, the Civilian Secretariat is an organ of state
in the
national sphere of government. Its existence cannot be interpreted as
imposing a limitation upon the exercise of a provincial
oversight
power. As for the Independent Police Investigative Directorate,
its mandate is primarily to investigate complaints
against members of
the S A Police Service. Its mandate does not include complaints of
the nature and substance of those submitted
by the civil society
organisations to the Premier. It is not an appropriate body to deal
with a complaint in regard to the breakdown
of relations between the
police and the communities.
[69]
The Inter-Governmental Relations Frameworks Act, 13 of 2005 (“the
Framework Act”) envisages the creation of several
inter-governmental forums some of whom are mandatory and some
optional. Such forums are designed to increase the flow of
information
to various affected actors and to thereby better enable
them to co-ordinate their activities in areas of either shared
competence
or devolved administration (Stu Woolman & Theunis
Roux:
Constitutional Law of South Africa
2
nd
Edition Vol 1 at 14-37). The obligatory or mandatory forums referred
to in the Act are the President’s Co-ordinating Council,
the
Premier’s Inter-Governmental Forums and the District
Inter-Governmental Forums. These are about the only the obligatory
forums referred to in the Frameworks Act. All those bodies and
structures referred to in the applicants’ complaints would
either be optional forums or the kind of structures in respect of
which it would not be obligatory for the Premier to consult prior
to
making her decision to establish the Commission. In my view, it
neither was obligatory on the part of the Premier to have consulted
those bodies and/or structures referred to in the applicants’
complaints nor could the Premier be faulted for having proceeded
to
establish the Commission without prior consultation to such
bodies/forums/structures.
RATIONALITY
[70]
This category of a complaint is based on a contention that the
Premier’s decision to appoint the Commission was irrational.
In
authorities such as
Bel Porto School Governing Body v The Premier,
Western cape & Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC) at paragraph 46,
the Constitutional Court held that the threshold for rationality is
low, particularly in circumstances where
the functionary is
exercising an original constitutional power of a discretionary
nature. This court, in
City of Cape Town v Premier, Western Cape &
Others,
supra, describes such original constitutional power as
“almost untrammelled”.
[71]
In
Pharmaceutical Manufacturers Association of SA & another:
in re ex parte President of the Republic of South Africa & Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) the Constitutional Court made the following
observation with regards to the test for rationality:
“
Rationality
in this sense is a minimum threshold requirement applicable to the
exercise of all public power by members of the executive
and other
functionaries. Action that fails to pass this threshold is
inconsistent with the requirements of our Constitution and
therefore
unlawful. The setting of this standard does not mean that the courts
can or should substitute their opinions as to what
is appropriate for
the opinions of those in whom the power has been vested. As long as
the purpose sought to be achieved by the
exercise of public power is
within the authority of the functionary, and as long as the
functionary’s decision, viewed objectively,
is rational, a
court cannot interfere with the decision simply because it disagrees
with it or considers that the power was exercised
inappropriately.”
[72]
The rationality of the Premier’s decision in establishing the
Commission is to be determined on the facts known to her
at the time
at which the establishment of the Commission was promulgated on 24
August 2012. As has already been pointed out elsewhere
in this
judgment, the Premier made her decision without the benefit of any
substantive input from the S A Police Service despite
repeatedly
having requested the Provincial Commissioner to provide comment on
the complaint and having granted the National Commissioner
no less
than two extensions of time within which to provide their responses
and comments. Thus, the applicants in the instances
of the Provincial
Commissioner and the National Commissioner failed to provide the
comment requested either on the complaints or
the best method thought
appropriate to deal with the complaints.
[73]
In a letter addressed by the Minister to the Premier dated 11 October
2012, the Minister makes the following observation:
“
The
National Commissioner had met with you and had taken note of your
concerns and the complaints lodged with you. She had also
taken note
of your correspondence to her and the National Commissioner concluded
that it was necessary to address those concerns.
In
order to do so, the National Commissioner issued standing
instructions to the police to investigate and to consider the issues.
The National Commissioner reason that a full police investigation is
needed and that at a later stage, if necessary, a more formal
enquiry
in which the police will be assisted by persons outside of the S A
Police Service appointed by the National Commissioner,
will be
conducted. I concur with the National Commissioner.”
In
this letter the Minister clearly states that the National
Commissioner acknowledges that a full police investigation is needed
into the complaint lodged.
[74]
It needs to be noted that the Premier based her decision to establish
the Commission on the complaints received from the complainant
organisations together with reports and complaints and in media at
the time, which attributed the outbreak of vigilante killings
in
Khayelitsha to the perception that policing in the area had failed.
The Premier subsequently explained that the reports of the
vigilante
attacks lent credence to the complaint that there had been a
breakdown in police-community relations in Khayelitsha.
[75]
The Premier explicitly states in her answering affidavit that in
forming her decision to establish the Commission she relied
on both
the complaints from the complaint organisations and the plague of
vigilante killings in Khayelitsha. News reports, community
activists
and the Social Justice Coalition all suggested an intuitive link
between these acts and the loss of faith in the police.
Obviously,
these factors cannot be analysed disjunctively. As at the time of the
establishment of the Commission, the cases referred
to by the
complainant organisations in their several complaints involving the
alleged inefficiency on the part of the S A Police
Service in
Khayelitsha stood uncontroverted. Based on these observations, in my
view, the need for action to be taken, in the form
of the established
Commission of Enquiry, was compelling. The information before the
Premier at the time provided a rational basis
for her decision to
establish the Commission. Thus, in my view, the applicants’
challenge on the legality of the Commission,
on the basis of
rationality, is untenable.
[76]
There are several other complaints on the basis of which the
applicants contend that the legality of the Commission is vulnerable
to attack and, on that basis, an order setting aside the
establishment of the Commission is justified in the circumstances of
this matter. These complaints relate to alleged ulterior motives in
the establishment of the Commission; that the terms of reference
of
the Commission are such that the work of the Commission would either
constitute investigation of crime or acts of vigilantism;
that the
pith and substance of the original complaint made by the complainant
organisations during November/December 2011 does
not warrant the
appointment of a Commission of Enquiry and that the Commission, in
the manner it is established, is designed to
embark on criminal
investigations and thereby encroach on the functional and operational
terrain of the police.
[77]
As for the complaint based on the contention that the original
complaint, viewed objectively, does not warrant the appointment
of
the Commission of Enquiry, the applicants contend that the specific
cases of alleged police inefficiency referred to in the
complaint
were properly investigated and prosecuted, and in relation to six of
the eight complaints, subsequent convictions and
effective jail
sentences were imposed. In advancing this contention, the applicants
do not refer to the supplementary additional
facts lodged with the
Premier on 4 April 2012 and 6 June 2012.
[78]
In my view, this contention is untenable. The way I look at it,
the complainant organisations did not make a number of
individual
complaints. The complaint was of an alleged systemic failure of the
police in Khayelitsha to prevent, combat and investigate
crime, take
statements, open cases and apprehend criminals. Paragraph [49] of the
complainants’ complaint dossier at page
372 of the record
refers to the systemic failure of the Khayelitsha police to prevent,
combat and investigate crime, take statements,
open case and
apprehend criminals. The statement of complaint goes further to
mention in paragraph [4] at page 356 of the record
that the eight
case studies annexed to the original complaint do not purport to be
comprehensive and constitute only a small sample
of the widespread
inefficiency, apathy, incompetence and systemic failures of policing
routinely experienced by Khayelitsha residents.
[79]
Section 206(5)(a) of the Constitution is not prescriptive with
regards to the nature of the complaint or the manner in which
such
complaint has to be lodged. The complaint could well either be in
writing as is the case in the circumstances of this matter
or, for
that matter, the complaint may be orally communicated. Based on the
complaint as originally lodged, duly supplemented by
further
additional supplementary facts, it cannot be said that the complaint
on the basis of which the Commission was established
is not a proper
complaint for the purpose of setting up a Commission of Enquiry.
[80]
The applicants contend that the Commission, in the manner it was
established, is designed to investigate vigilante attacks
and that it
is impermissible for the Premier to authorise investigation into
criminal activities which can be abused for party
political gain. In
City of Cape Town v Premier, Western Cape & Others
paragraph
154, supra, this court held that it is undesirable to vest a
Commission of Enquiry with the primary task of investigating
criminal
conduct as this could lead to a blurring of the functions of the
executive and the police. In the instance of that matter,
the primary
function of the Commission was to investigate an allegedly criminal
conduct. It had no other purpose.
[81]
Whereas in the
City of Cape Town v Premier, Western Cape &
Others,
supra, the terms of reference required the Commission to
investigate and determine whether the conduct of specified political
office
bearers was unlawful, the position, in the instance of this
matter, is quite different. In the instance of this matter, the
mandate
of the Commission is clearly set out in its terms of
reference. The terms of reference of the Commission mirror the
wording of
the Constitution in section 206(5)(a). A Commission’s
terms of reference constitutes a mandate for the Commission and
determine
the scope of its investigation.
[82]
Ms Dissel, the secretary of the Commission, points out in her
answering affidavit that the Commission has stated repeatedly
that it
was not its task or intention to investigate crime; that the
Commission was not investigating specific actions on the part
of any
particular police officer, but intended to focus on systemic issues;
that the complainants were discouraged from providing
the names of
particular members of the S A Police Service in their complaints and,
as per its first notice, issued by the Commission
on 6 September
2012, the Commission made it clear that it is conducting an enquiry,
not a trial, and it is not investigating whether
anyone should face
criminal prosecution or be held civilly liable. As for an example, in
a letter dated 12 October 2012 addressed
to Advocate Rodney De Kock,
the Director of Public Prosecutions, the Commission clearly states
that its mandate is confined to
investigations defined in its terms
of reference and to avoid any attempt to establish criminal or civil
liability. In my view,
the contention that the Commission is designed
to investigate crime or acts of vigilantism is not sustainable.
[83]
I have considered the several other contentions which the applicants
contend constitute the basis for a challenge to the validity
of the
establishment of the Commission. These range from coercive powers
seemingly granted to the Commission; the contention that
the
Commission was established on the basis of an unlawful dictation by
the Women's Legal Centre coupled with an ulterior motive,
which
allegedly is political. I have considered the merits of all these
contentions on the basis of the evidence on record. In
my view, no
cogent evidence of such quantum as to justify the setting aside the
establishment of the Commission, based on those
contentions, has been
adduced. Consequently, in my view, a claim by the applicants that the
establishment of the Commission is
liable to be set aside on the
basis of those contentions, is similarly untenable.
[84]
I have not considered the applicants’ claims based on the
alleged unlawfulness or alleged over-breadth of the subpoenas
issued
by the Commission. As correctly pointed out by
Mr Rosenberg
SC
these are issues that can be dealt with by the Commission itself. It
indeed is so that an attack on the subpoenas issued by the
Commission
cannot found a challenge to the anterior decision to establish the
Commission itself.
CONCLUSION
[85]
On the basis of the evaluation of the evidence on record, coupled
with the consideration of the parties’ submissions
and oral
argument at the hearing of the matter, I cannot find that a case has
been made, at the interim relief stage of these proceedings,
for the
several forms of relief that the applicants seek. No case has been
made, once again, at the interim relief stage of these
proceedings,
that the Premier, in establishing the Commission in the manner she
did, violated any one of the provisions relating
to the principles of
co-operative governance and inter-governmental relations as set out
in section 41 of the Constitution; that
the Premier misconstrued her
powers arising from the provisions of section 206(5)(a) of the
Constitution; or that in the period
prior to the establishment of the
Commission and at the time she established the Commission itself, the
Premier violated any one
of the provisions relating to the basic
values and principles governing public administration as set out in
section 195 of the
Constitution. It therefore follows that the
applicants’ claims for interim relief, derived as they are from
the Constitution,
ought to fail.
[86]
A claim relating to the recusal of the two Commissioners and Advocate
Sidaki was not pursued at the hearing of this matter.
Consequently,
no determination is made on the applicants’ claims based on
recusal.
[87]
In result I would propose the following order:
[87.1.] The applicants’ claim
for interim relief, based on part A of the notice of motion, is
dismissed;
[87.2.] The applicants are ordered to
pay the first, fourth to seventh and the ninth respondents’
costs, jointly and severally,
the one paying the other to be
absolved.
[87.3.] In the instance of the first
respondent such costs shall include costs consequent upon employment
of three counsel.
[87.4.] In the instance of the fourth
to the seventh, and the ninth respondents, such costs shall include
costs consequent upon
employment of two counsel.
____________________
N
J Yekiso, J
I
agree.
__________________
J
H M Traverso, DJP