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.
The South African Police Service (SAPS) is not well known for its conscientious, efficient, no-holds barred investigations into serious and violent crime, especially when the victim is not a foreign tourist or a blond rugby player. Where the victim is poor, black, gay, lesbian or transgender the indifference of the Police often borders on the criminal. This is also true in Cape Town, where you will almost certainly receive far better service at the Sea Point or Hout Bay Police Stations than at the Harare Police station in Khayelitsha. But for once it is the national government (and not the provincial government) who is blocking attempts at addressing the unequal treatment of citizens in the mother city.
When Western Cape Premier Helen Zille finally appointed a Commission of Inquiry into reports of SAPS inefficiency in Khayelitsha and the breakdown of trust between the Khayelitsha community and the Police (buckling under sustained pressure from civil society groups), it was widely seen as a good first step towards addressing the shockingly high crime rates – one of the highest in the country – in Khayelitsha.
But then, inexplicably, Minister of Police Nathi Mthethwa rushed to court to try and stop the Commission from continuing with its work. Mthethwa seemed particularly worried about the fact that the Commission can subpoena members of SAPS to force them to testify before it. As the Constitution requires various spheres of government to co-operate with one another in “mutual trust and good faith” by, amongst others, “consulting one another about matters of common interest”, Mthethwa told the court that he was not adequately consulted about the move to appoint a Commission of Inquiry. Mthethwa furthermore argued that the Premier encroached upon the powers of the national government by appointing a Commission of Inquiry into SAPS inefficiency in the Province.
The Western Cape High Court (in a majority decision) rejected Mthethwa’s application for an interim interdict to stop the Commission from doing its work. The minority argued that – in terms of the principles of co-operative government – there was a duty on Zille first to engage with the Minister before appointing such a Commission. Now Mthethwa has approached the Constitutional Court in a last ditched effort to stop the Commission from finding out why the SAPS in Khayelitsha is so dysfunctional.
In my opinion Minister Mthethwa is cynically using spurious legal arguments concocted by overpaid lawyers (and thereby wasting millions in taxpayer’s money), to stop an Inquiry that could help to improve policing in Khayelitsha.
Section 206(8) of the Constitution explicitly empowers the provincial government (whose executive authority is vested in the Premier) to appoint a Commission of Inquiry into any complaints of police inefficiency or a breakdown in relations between the police and any community in that province. The section also states that once the Inquiry has been completed, the Premier must make recommendations to the Minister of Police about how to address any problems relating to the SAPS management.
There is no constitutional duty on a Premier to consult with the Minister about the appointment of a Commission of Inquiry. In my opinion, both the minority and majority judgments got this completely wrong. As the Constitution explicitly grants the Premier the power to appoint a Commission of Inquiry into Police conduct, the Premier does not have to consult the Minister before exercising it. This is because the appointment of such a Commission is not a “matter of common interest” between the Premier and the Minister. Rather it is a matter only constitutionally of interest to the Premier who was granted the exclusive power to appoint a Commission of Inquiry. It only becomes a matter of interest to the Minister once the Commission delivers its report.
Where the Constitution explicitly and exclusively grants a power to one organ of state, that organ of state can and must exercise that power without having to consult with other organs of state. To hold otherwise would be to require the kind of incessant and debilitating consultation that would bring government at all levels to a grinding and permanent halt.
Just as the President does not have to consult the Premier before appointing a Commission of Inquiry into the failure to deliver textbooks to schools in Limpopo or into the cost implications of introducing a National Health Insurance scheme, so the Premier does not have to consult the Minister when appointing a Commission in terms of section 206. It is only once the Commission has delivered its report that the Premier has to consult the Minister about what steps could be taken to improve policing in Khayelitsha. As the implementation of policing in the province is not an exclusive provincial competence but one shared between the national and provincial spheres of government, the various parties must consult about it as required by the Constitution.
In fact, I would argue that the co-operative government provisions in the Constitution require the Minister (as well as the National and Provincial Police Commissioners) to co-operate with the Commission, to ensure that Police officers testify before it and that the Commission is granted access to all the necessary documents to complete its task. By rushing to Court and failing to co-operate with a Commission legally appointed by the Premier in terms of the powers granted to her by the Constitution itself, the Minister is in breach of his constitutional obligations to assist and support the Premier and to avoid legal proceedings against the Provincial government. This is because the Minister and the National and Provincial Commissioners share the constitutional powers to manage the police with the provincial government (as they do not share the powers to appoint a Commission). In my view the High Court should never even have considered the merits of the case and should have dismissed it out of hand.
Of course, once the Commission has concluded its Inquiry, both the Premier and the Minister will be required to engage with its report and would have to co-operate to try and find solutions for the abysmal management of the SAPS in many of the poorest areas of Cape Town. The Minister and his legal team are subverting the principles of co-operative government by trying to interfere with the constitutionally mandated exercise of powers of the Premier.
There is no rational reason for the Minister to have gone to court to try and stop this Commission of Inquiry. Politically, the Minister can only lose by appearing to want to protect possible corrupt or incompetent police officers rather than wanting to protect the ordinary people of Khayelitsha. Moreover, the power to appoint a Commission of Inquiry into the police is a limited one and exercising this power will not have immediate policy consequences. A Commission is no more than a fact finding exercise – it cannot make binding decisions. Where a Premier appoints such a Commission she can therefore never be said to assume powers of functions reserved for the national government. Once the Commission has concluded its Inquiry, the Premier will have to consult the Minister on what should be done – as required by the 206(8) and the co-operative government provisions of the Constitution.
Which leaves us with one of two options: either the Minister is trying to cover up corruption, nepotism or incompetence in the SAPS in Khayelitsha, or he is allowing his own ego and his antagonism towards the opposition to cloud his judgment – to the detriment of the people of Khayelitsha.BACK TO TOP