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.
Politicians sometimes make statements that are so astonishingly stupid and irresponsible that I have to check whether the report was not perhaps an April fools joke. A case in point is a statement reported to have been made yesterday by Susan Shibangu, the Deputy Minister of Safety and Security at an anti-crime imbizo in Pretoria West. Referring to criminals, she reportedly told the police that they should “kill the bastards if they threaten you or the community”.
You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect . . . I want to assure the police station commissioners and policemen and women from these areas that they have permission to kill these criminals. I won’t tolerate any pathetic excuses for you not being able to deal with crime. You have been given guns, now use them.
I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don’t miss. We can’t take this chance. Criminals are hell-bent on undermining the law and they must now be dealt with. If criminals dare to threaten the police or the livelihood or lives of innocent men, women and children, they must be killed. End of story. There are to be no negotiations with criminals.
The constitution says criminals must be kept safe, but I say No! I say we must protect the law-abiding people and not the criminals. I say that criminals must be made to pay for their crimes.
This kind of statement might be popular with people suffering under crime, but it is both factually and ethically wrong for a Deputy Minister to make such a statement. It will also undermine respect for the Constitution and for the law and basically purports to give the police the right to be a law unto themselves.
Members of the executive (if we assume a lowly Deputy Minister is a member of the executive) have a duty to uphold the law and the Constitution and to create the impression that the police or anyone else is above the law is not acceptable. Unfortunately this is exactly what Ms Shabangu has now done and in the process she is misleading ordinary police men and woman and undermining the law and the Constitution.
It sounds as if she has spent too much time around Mr Jacob Zuma and now also has foot in mouth disease.
As the law and regulations lay down criteria for when police can shoot at and kill an alleged criminal, the police has a legal duty to adhere to these guidelines. A Minister or a Deputy Minister cannot override the law and for her to say that she will worry about the regulations and to purport to give permission to shoot and kill suspects is illegal and undermine the Rule of Law. She is inciting people to take the law into their own hands which might actually be a criminal offense.
Only Parliament can make a law and even then that law must comply with the Constitution. No matter what a Deputy Minister might say, members of the police are legally and constitutionally bound not to shoot and kill criminal suspects on sight. If they do, they should face murder charges because they would have taken the law into their own hands. A Minister has no power to override these basic legal and constitutional principles and to suggest otherwise is scandalous and misleading. It also undermines the separation of powers which explicitly requires Parliament and not the Executive to make laws.
As Mr Zuma and his supporters always remind us, the Constitution presumes that everyone is innocent until proven guilty and only a court of law can decide whether a person is a real criminal or not. For a minister to be seen to give permission to the police to shoot and kill people they think are criminals, is really nothing else but incitement to murder. As the law makes clear, suspects can only be shot and killed if they clearly threaten the lives of someone. One cannot shoot and kill a person if they threaten your belongings. To say otherwise is to completely undermine the law and our Constitution and to encourage the police to take the law into their own hands.
We have recently seen the spate of police brutality accusations leveled at the police and some have wondered why the police may be acting as if they are above the law. Now we know. Politicians in charge of the police are clearly encouraging the police to break the law and to assault and kill people who have never been found guilty of any crime in any court of law. For a Deputy Minister to do so is morally reprehensible and shocking. If the President wanted to send a signal that we all must respect the law and the Constitution (as he has often done in the past), he would have no choice but to fire Ms Shabangu for her idiotic and dangerous comments.
Some might say that the criminals have it coming and to kill a few of them would not really bother the rest of us. But who are these criminals? Today it might be a cruel hijacker, but tomorrow it might be you or me who happens to be at the wrong place at the wrong time when the police starts playing cowboys and crooks. The Minister will not worry about that because she has bodyguards to protect her from the police but the rest of us must be very afraid because if the police starts thinking they have permission to shoot and kill “real” criminals, it will not be long before they start shooting and killing those who are completely innocent.
Ms Shabangu’s statement must be condemned in the strongest terms and the Minister or the President should issue a rectification to make clear that the police may not legally shoot and kill criminals unless the life of a person is seriously threatened. Ms Shabangu should also be told that she is not above the law merely because she happens to be a Deputy Minister and that she cannot override the law or the Constitution.
She should be fired forthwith and redeployed to become South Africa’s third secretary of nothing in a godforsaken backwater of the world (Khazakstan perhaps?)? so that we never hear of her again. For gods sake, just keep her away from the police. They are dangerous enough as it is.BACK TO TOP