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.
Since the Covid-19 lockdown took effect 41 days ago, members of the South African National Defence Force (SANDF) and the South African Police Service (SAPS) have been implicated in several cases of brutality and torture, many of these captured on video. The most shocking of these cases remain the death of Mr. Collins Khosa, who died from blunt force trauma to the head after allegedly being assaulted and tortured by members of the SANDF. A case brought by the Khosa family before the High Court raises questions about the commitment of the Minister of Defence and senior leadership of the SANDF to protect the public against lockdown brutality.
As I write this, the High Court is considering an application brought by the family of Mr. Collins Khosa against, amongst others, the Minister of Defence, and the Chief of the SANDF. The application is aimed at protecting the public against lockdown brutality, and at ensuring that Mr. Khosa’s death is properly investigated.
The applicants are asking the court to declare, amongst other things, “that members of the public are still entitled to having their fundamental rights upheld and protected by members of the security forces during the lockdown and the declared State of Disaster”. These rights include section 10 (the right to dignity), section 11 (the right to life) and section 12(1)(d)-(e) (the right not to be subjected to torture, or to any other cruel, inhuman or degrading treatment or punishment).
The applicants are also requesting the court to order the “immediately disarming and removing members of the security forces who were present during the attack of Mr. Khosa” and the development of “a code of conduct and operation procedures as required by section 19(1)(c) of the Defence Act 42 of 2002” to guide and restrain the actions of soldiers when deployed in co-operation with the SAPS. It further asks the court to order an independent investigation as there is a valid fear that the SANDF investigation will be a sham and a whitewash.
The applicants make clear in their papers that this “case is not about the justification for the Lockdown or its extent. It is about combating Lockdown brutality”. The facts as alleged make for chilling reading. It is important to quote these extensively:
On Good Friday, 10 April 2020, at around 17h00, two SANDF members patrolling Alexandra township, without a warrant or invitation, entered the home shared by Mr Collins Khosa, his life partner Ms Nomsa Montsha (the second applicant), his three minor children, his sister Mrs Ivonny Muvhango, her husband Mr Thabiso Muvhango (the third applicant) and their two minor children. Carrying sjamboks (short heavy whips), these SANDF members demanded that Mr Khosa and Mr Muvhango explain an unattended camping chair with a half-full cup of alcohol in the front yard. Mr Khosa explained that consuming alcohol on one’s own property was not a contravention of the Lockdown. Agitated by this, the SANDF members ordered Mr Khosa and Mr Muvhango to follow them outside to the street, so that they could “prove a point” to them. … Three further SANDF members shortly attacked Mr Khosa by: pouring beer over his head and body; choking him while holding his hands behind his back; slapping, punching and kicking him on his face, stomach and ribs; hitting him with the butt of a rifle; and slamming him against a cement wall and a steel gate. Mr Khosa died as a result of these injuries later that evening. While the attack on Mr Khosa was underway, various other SANDF members… ordered two neighbours, Mr Tebogo Mothabela and Ms Glenda Phaladi, to stop recording these attacks on their cell phones; confiscated their phones and deleted footage of the attacks; forced them into a JMPD vehicle, where they slapped and punched them; drove them to a temporary SANDF base; moved them to an SANDF vehicle, where they slapped and punched them further; drove them several kilometres away from Alexandra; dumped them on the side of the road; and threw their phones into the bushes.
The soldiers involved in this incident are likely to provide a completely different version of events. But I am sceptical that a radically different version of events will be plausible, given the fact that Mr. Khosa’s death notice describes his cause of death as blunt force trauma to the head. In other words, he was assaulted and killed. If the soldiers did not assault and kill him, who did?
Why have there been less public outrage (and less debate) about Mr. Khosa’s death and about other lockdown brutality by law enforcement officials, than there has been about the ban on the sale of cigarettes, on the one hand, and about those complaining about the ban, on the other? Is it because soldiers largely patrol working class and poor areas and not the leafy suburbs where most white people live? Is it because victims of brutality have been predominantly black? Or is it because the perpetrators of the abuse have been largely black?
Whatever the reasons may be, it is difficult not to become enraged when reading the heads of argument submitted to the court in the Khosa case on behalf of the Minister of Defence and the Chief of the SANDF.
It is of great concern that the Minister and the SANDF leadership oppose the suspension of the soldiers allegedly involved in the torture and killing of Mr. Khosa. Their heads of argument is replete with technical arguments and sophistic hair-splitting, seemingly aimed at protecting the SANDF and its soldiers in a manner that is not in the best interest of the public.
The Minister and the Chief of the SANDF concede that the latter is empowered to suspend soldiers after issuing a written notice to that effect and after allowing the soldiers to respond within 24 hours after the notice was issued. But they do not explain why the Chief of the SANDF did not issue such written notice immediately after the incident took place. The unwillingness to suspend soldiers who may have been involved in the murder of a member of the public, thus allowing them to continue to roam the streets with automatic rifles at the ready, is inexplicable.
Of similar concern is the argument advanced by the Minister of Defence and the Chief of the SANDF, opposing the development of a code of conduct and operation procedures to guide and restrain the actions of soldiers when deployed in co-operation with the SAPS. They claim that they are not required to do so by the Defence Act. But if one follows the logic of their argument, it looks – bizarrely – that they are admitting that soldiers who patrol the streets and take part in law enforcement activities in co-operation with the SAPS are doing so unlawfully because they were deployed in terms of the wrong section of the Defence Act.
The President deployed SANDF soldiers in terms of section 18 of the Defence Act. He did so, according to his letter, “for a service in co-operation with the South African Police Service in order to maintain law and order, support other State Departments and to control our border line to combat the spread of Covid-19”. But section 19 – not section 18 – permits the deployment of SANDF soldiers inside South Africa in co-operation with the SAPS, but only in accordance with “a code of conduct and operational procedures approved by the Minister”.
The requirements contained in section 19 apply to situations where SANDF soldiers actually patrol streets and take part in other law enforcement activities – like the policing of the Covid-19 regulations – and are aimed at protecting the public from abuses by SANDF soldiers who are not trained to police the streets.
When soldiers are deployed to rescue civilians from flood water, or to provide food or other services for hurricane survivors, it is not necessary to promulgate a code of conduct as they will not be fulfilling a quasi-policing function. But where they are deployed – as they have been under lockdown – at least partly to assist the SAPS to enforce lockdown regulations, it is imperative that they are bound by a code of conduct – as the death of Mr Khosa illustrates in such a stark manner.
Unless one reads section 19 in conjunction with section 18 and assumes – as the applicants do – that all deployments are done by the President in terms of section 18, while additional requirements are imposed by section 19 on the deployment of soldiers who will act in co-operation with the SAPS, it would mean the President used the wrong section to deploy SADF members “for a service in co-operation with the SAPS” and that the deployment is therefore unlawful and invalid.
Alternatively, one could generously interpret the submissions of the Minister and the Chief of the SADF to mean that the President can ignore the required safeguards contained in section 19 of the Defence Act, by deploying soldiers in terms of section 18. In this view the President has a choice of either deploying SANDF soldiers in a manner that protects the public, or in a manner that endangers the public and the President selected the latter.
None of this is logical or make sense. Clearly the view advanced by the applicants – that the soldiers were lawfully deployed in terms of section 18 of the Act, but that the deployment of soldiers to act in co-operation with the SAPS requires the promulgation of a code of conduct in accordance with section 19 – is the logical (and also ethical) view.
The contrary view advanced in the heads of argument of the Minister of Defence and the Chief of the SANDF is also dangerous. Surely, to protect the public from potential abuse by soldiers, it is imperative that such a code of conduct be developed, that soldiers be trained to ensure they abide by it, and that soldiers are disciplined if they don’t. The killing of Mr. Khosa and myriad other reports of abuse by SANDF soldiers, illustrate the importance of implementing all the protective measures contained in section 19, when deploying soldiers to fulfil a law-enforcement role in co-operation with the SAPS.
I do not know how the court will rule on every single point in this case, but I do know that the manner in which the Minister of Defence and the Chief of the SANDF have chosen to engage with the application of Mr. Khosa’s family, does not reflect well on them as individuals and as leaders of the military. Given these failures of leadership, it is a pity that so many South Africans are using their time to fight with one another about the ban on cigarettes, instead of fighting with the Minister and the Chief of the SANDF about their callous behaviour.BACK TO TOP