As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Over the weekend Police Minister Bheki Cele threatened that law enforcement will come down harder on shebeens that continue to supply alcohol during the lockdown. While doing so, he promised that the police would break the law to enforce the liquor ban. Surprisingly, there has been little criticism of the Police Minister’s statement, and neither has Parliament taken any steps – as it is constitutionally required to do – to hold the Minister accountable.
Earlier this week United States President, Donald Trump, claimed that – as President – he wielded “total” authority in the current pandemic crisis. He made this claim despite the fact that the United States of America has a strong federal system of government, and that individual states and their governors wield significant powers to deal with crisis, including the present Covid-19 crisis.
Trump, whose management of the Covid-19 crisis has been a catastrophe, was widely mocked for this claim. Governor Andrew Cuomo of New York went to the heart of the matter when he dismissed Trump’s bogus claim by pointing out that: “We don’t have a king in this country. There are laws and facts — even in this wild political environment.” Given Trump’s continuous disregard for both the law and the facts, and given his authoritarian tendencies, it is not surprising that he is claiming to have power that he does not have.
For the same reason it is perhaps not surprising that Bheki Cele, South Africa’s Minister of Police, are talking tough, and are inciting the police to enforce the lockdown regulations in a manner not permitted by the regulations itself. On Sunday Cele warned that the police officers will confiscate liquor that is being sold illegally and will “destroy the infrastructure where the liquor is sold”.
The regulations do not authorise SAPS and SANDF members to destroy infrastructure, regardless of whether the infrastructure was used for the unlawful sale of liquor or not. Members of the SAPS and SANDF who heed Minister Cele’s call to destroy such infrastructure will therefore commit the criminal offence of malicious injury to property, which is defined as “unlawfully and intentionally damaging the property of another”. The Minister’s statement could therefore be read as incitement to commit a crime. Apart from criminal sanction, the destruction of property not authorised by law will also expose the Department to civil claims for damages.
While some cabinet ministers like Zweli Mkhize and Ronald Lamola have acted in an exemplary fashion during the lockdown, others have followed the skop skiet en donner” approach of Minister Cele. Minister Cele’s statement on Sunday is therefore not an isolated case. It is part of a pattern of law-and-order-inclined cabinet ministers sending a signal to members of the SAPS and the SANDF to ignore the law and to use as much force as they deem fit to punish members of the public for perceived transgressions of the lockdown regulations (even if these “transgressions” are in fact not transgressions).
Some members of the public might want to turn a blind eye to these kinds of statements because they believe it is acceptable for Ministers and law enforcement officers to flout the law as long as this is in pursuit of the important aim of slowing the spread of Covid-19. This attitude may be exacerbated by the fact that some members of the public value the lives of poor people less highly than the lives of middle class and rich people, and may (rightly) believe that abuses by SANDF and SAPS members will almost exclusively be directed at the poor.
Apart from being callous, this view is also dangerous and short-sighted. It disregards the fact that the long-term consequences of encouraging lawlessness within the SAPS and the SANDF could be calamitous for all South Africans and for the effectiveness of the lockdown. The more often members of the SANDF and SAPS flout the law and harass, assault and murder civilians, the less likely that people will continue to support the lockdown.
It disregards the fact that the irresponsible statements of politicians in which they encourage law enforcement officers to break the law, could have serious consequences, as the death of Collin Khosa (allegedly at the hands of SANDF and Johannesburg Metro Police officers) illustrate. According to Mr Khosa’s family, he was severely assaulted for having a drink in his own yard, something that is perfectly legal, and died as a result. In a letter written by Mr Khosa’s family they describe how SANDF soldiers arrived and, without inquiring any further details from Khosa, they:
manhandled and assaulted Mr Khosa in the following manner. In particular, they: poured beer on top of his head and on his body; one member of the SANDF held his hand behind his back, while the other choked him; slammed him against the cement wall; hit him with the butt of the machine gun; kicked, slapped him, punched him on his face and on his stomach and ribs; and slammed him against the steel gate.
If this is correct, and if this assault caused Mr Khosa’s death, the officers involved are guilty of murder (or at the very least culpable homicide) and those responsible should be prosecuted and sent to jail. The politicians whose utterances encouraged this kind of behaviour, will, of course, not be prosecuted.
This should not be the end of the matter. Parliament, and particularly the National Assembly (NA) has a constitutional obligation to hold members of the executive accountable. This is not an optional extra and the NA does not have the right to ignore its constitutional obligations in this regard.
The Constitutional Court affirmed in Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (2017) in a case dealing with the impeachment of former President Jacob Zuma that the NA had a constitutional duty to hold the President (and other members of the executive accountable. In the judgment on the binding powers of the Public Protector the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others explained that it was not for the court to prescribe to the NA how to scrutinise executive action.
However, the Constitution did impose an obligation on the NA to hold members of the executive accountable and the court had the power to determine in each case “whether what the National Assembly did does in substance and in reality amount to fulfilment of its constitutional obligations”. As the facts in the two cases above illustrate, this obligation on the part of the NA is triggered when evidence emerge that a member of the executive might have flouted the Constitution or the ordinary law. What is required is for the NA to investigate the matter and, if the facts reveal abuse of power, to hold the member of the executive accountable.
The court pointed out that ultimate accountability mechanism was the removal of the members of the executive from office. As far as ordinary cabinet ministers is concerned, this can be achieved in terms of section 102(1) of the Constitution that provides for the NA by passing a motion of no confidence in the Cabinet excluding the President, supported by a majority of its members. In such a case the President would be required to reconstitute the Cabinet, presumably excluding the member or members of the cabinet in which the NA had lost confidence.
As far as the statement by Bheki Cele is concerned, it clearly raises questions which the NA has a duty to look into. In terms of section 96(2)(b) of the Constitution members of the Cabinet are prohibited from acting in any way that is inconsistent with their office. When cabinet ministers are sworn in in accordance with section 95 of the Constitution they swear under oath that they will “be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic”.
It goes without saying that a Minister who encourages members of the SAPS or the SANDF to take the law into their own hands and to commit criminal offences in order to enforce the lockdown, does not act in accordance with his or her oath of office. This is a matter for the NA to look into to ensure that the members of the executive are held accountable for flouting their constitutional obligations.
In fairness, Parliament was in recess between 23 March and 13 April. But it is supposed to be back in session from yesterday. Nothing in the Constitution prevents the NA or any of its committees from meeting remotely during this period. In fact section, 51(3) of the Constitution explicitly states that sittings of the NA “are permitted at places other than the seat of Parliament only on the grounds of public interest, security or convenience”.
The NA portfolio committee on Police could arrange a sitting and call the Minister of Police to come and explain why he is encouraging members of the SAPS to break the law. The Minster of Defence, the senior leaders of the SAPS and SANDF and the head of IPID and the Military Ombud could also be called to explain what is being done to curb abuses of power.
It is unclear whether the NA will comply with its constitutional obligations now that the recess is over. ANC committee whip Kebby Maphatsoe was quoted on the weekend as saying that his MPs had too much work in their constituencies to take care of. “We are very busy to ensure that people obey the regulations,” he is quoted as saying. Maphatsoe was reportedly surprised to hear that people have died at the hands of police. ‘If it is true, we can discuss it after recess. We don’t have time now to respond to newspaper reports.”
I beg to differ. Given that the Rule of Law and the very legitimacy of the lockdown are at stake, the NA cannot afford to waste more time to hold the executive accountable. If it does not act swiftly, it runs the risk of again failing in its obligations to hold the executive accountable – just as it did during the Nkandla crisis.BACK TO TOP