Trump bans Muslims and we claim that this is un-American, that we are not this. I don’t have to talk up “ancient” history to show that we are. I won’t bring up settler colonialism, genocide, and land theft, or harp on slavery, or internment camps for Japanese-Americans. I won’t refer to the Page Act banning those deemed “undesirable,” the Chinese Exclusion Act, the Asiatic Barred Zone Act, or the Emergency Quota Act. I don’t have to mention the hundreds of thousands of Mexicans deported in the nineteen-thirties… I won’t mention any of this, because this happened so long ago. We can always delude ourselves by saying that America was this but now we are better. Let me just say that in 2010 and 2011, state legislatures passed a hundred and sixty-four anti-immigration laws..
South Africa’s complicated quasi-federal system of government bestows a set of concurrent powers on both the national government and on each of the nine provincial governments. These are a general set of shared powers on housing, health care, education, welfare services and public transport exercised by both the national government and by each of the provincial government.
Policing is also a shared competence between national government and provincial governments. However, the constitutional provisions dealing with control over the SAPS differ from this general scheme. The power to control and manage the SAPS resides with the National Commissioner of Police (not with the Minister of Police).
The Minister of Police is politically responsible for policing, and to this end has the duty to determine national policing policy after consulting the provincial governments and taking into account the policing needs and priorities of the provinces as determined by the provincial executives. The relationship between the National Commissioner of Police and the Minister of Police therefore mirrors that of the National Director of Public Prosecutions and the Minister of Justice.
This is, however, not the end of the matter. The constitution strikes a delicate balance between the oversight powers of the Minister and that of the provincial government. The provincial commissioner is thus 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, as its concurrence is required when the Commissioner appoints a provincial commissioner. In turn, should the provincial executive lose confidence in her or him, it may seek “the removal or transfer of, or disciplinary action against,” the provincial commissioner.
Furthermore, section 206(3) of the Constitution also empowers each province to monitor police conduct; to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service; to promote good relations between the police and the community; to assess the effectiveness of visible policing; and to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.
In order to perform these functions a province is empowered to appoint a commission of inquiry into any complaints of police inefficiency or a breakdown in relations between the police and any community.
These are unique constitutional arrangements regarding the management of the police specifically, which are not replicated elsewhere in the Constitution. It allows provincial governments to monitor and oversee the police function within their area, but not to exercise control over the day-to-day management of the SAPS in their province. This means the relationship between the national government and provincial governments regarding the police differs from the arrangement relating to other shared competences on housing, health care, education, welfare services and the like.
After Western Cape Premier Helen Zille appointed a commission of inquiry into the alleged failure of policing in Khayelitsha – as she is empowered to do by section 206(5) of the Constitution – and after the Commission issued a subpoena to the Provincial Commissioner to produce certain evidence, followed by subpoenas to three station commanders, the Minister of Police, the National Police Commissioner, the Provincial Police Commissioner and other members of Western Cape SAPS leadership tried to scuttle the commission by challenging its constitutionality as well as the constitutionality of its powers to subpoena members of the SAPS, in court.
In the Constitutional Court they argued (on far narrower grounds that initially in the High Court) that the commission had no legal power to subpoena members of the SAPS. They also argued that the Premier breached her co-operative governance obligations and thus usurped the power of the national government by failing to consult adequately with it before appointing the Commission.
Yesterday the Constitutional Court, in a unanimous judgment written by Deputy Chief Justice Dikgang Moseneke in the case of Minister of Police and Others v Premier of the Western Cape and Others dismissed these arguments and confirmed the constitutionality of the commission as well as its powers to subpoena members of the SAPS.
Khayelitsha is an area with one of the highest crime rates in South Africa. The SAPS in Khayelitsha has long been accused of mismanagement, incapacity and even corruption, and it is alleged that this has contributed to the shockingly high crime rate which has led to a loss of confidence by the community in the ability of the police to protect them from crime, and to investigate crimes once they have occurred.
It is not clear why attempts were made to stop the commission from doing its work. It may be a case of power politics trumping the best interest of citizens. It is not in the interest of the national government and the majority party whose members form the national government to be seen to hamper attempts at improving policing in Khayelitsha, a political stronghold of the governing party.
I can only speculate that the case arose, firstly, out of a fear that the DA government would attempt to use any adverse findings of the commission to embarrass the ANC government and, secondly, out of anxiety that this commission would embolden the DA government to become more robust in its exercise of oversight over the police and (the fear might have been) might have ultimately led to a loss of control by the ANC government over the police in the Western Cape.
Be that as it may, the Constitutional Court rejected the argument that the commission of inquiry could not require members of the SAPS to appear before it under subpoena. As the Constitutional Court explained:
a commission without coercive powers would indeed be unable to fulfil its mandate. It would be no different from an investigation…. 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…. If they were to be shielded from the coercive power of subpoena, the effectiveness of the Commission would falter.
Moreover, the Constitutional Court went further and affirmed that a Premier and the provincial government had the duty to respect, protect and promote the fundamental rights of people within the province. This means that the Western Cape 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”.
To ensure that the Western Cape government could fulfil this duty, the Constitution required it to hold the SAPS accountable and to ensure transparency in its operation. These oversight mechanisms included the power to appoint a commission of inquiry who could subpoena members of the SAPS. Without it the provincial government would be hamstrung in protecting the constitutional rights of people living within its province, as it would make it very difficult to hold the police accountable as it is empowered to do by the Constitution.
On the issue of co-operative governance, the Constitutional Court found that when the province appointed the Commission, it did not usurp the powers and functions of the Minister or the Commissioner.
Although 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:
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 co-operative governance provisions in section 43(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.
However, the court found that in this case, no dispute was ever declared. The Minister and the Commissioner of Police had no dispute with the provincial government before members of the SAPS were subpoenaed to come and testify before the Commission. Even then, the Minister and the Commissioner did not declare a dispute as required by the Framework Act; instead they approached the High Court.
In other words, the judgment suggests rather diplomatically (without spelling it out) that it was the Minister and the National Commissioner that rushed to court without trying to resolve the dispute – not the other way around, as they alleged before the court. The court thus implicitly criticises the parties who rushed to court instead of trying to resolve the dispute and stated as follows:
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.
It was perhaps for this reason that the court ordered the Minister of Police and the National Commissioner of the SAPS to pay the costs of the Social Justice Coalition in the High Court and in this Court, on whose urging the Commission was established and who was a party to these proceedings.
The commission can now proceed. The leadership of the SAPS will have to testify before it. Once a report has been finalised, the Premier would have to decide how the province could use the findings to help the National and Provincial Commissioner to improve policing in Khayelitsha. It is at this stage that civil society – including the Social Justice Coalition – could play a pivotal role. Because no matter what findings the commission might arrive at, without sustained political pressure none of the parties will probably display the political will to improve policing in Khayelitsha to the benefit of its long-suffering residents.BACK TO TOP