Khosa v Minister of Defence and Military Veterans
To ensure accountability and responsiveness and openness during state of disaster declared under the Disaster Management Act, 2002 and dealing with the conduct of security forces some soldiers, who assaulted and killed a civilian suspected of flouting lockdown regulations, did not use minimum force and thus exceeded their powers and the soldiers and police officer had to be suspended and authorities were ordered to publish a code of conduct to ensure compliance with Constitution and law.
Essence
High Court upheld founding values of accountability and responsiveness and openness in granting an extensive order protecting life, dignity and right to be free from torture.
Decision
(21512/2020) [2020] ZAGPPHC 147; [2020] 8 BLLR 801; 2020 (7) BCLR 816 (GP); [2020] 3 All SA 190 (GP) (15 May 2020)
Order:
See under quotations from judgment
Judges
Hans Fabricius J.
Reasons
“[1] It has long been debated by renowned philosophers of what the terms would be of what they called a ‘social contract’ between the populace and a legitimate government. Just one example: Kant was of the view that such a contract implied an idea of reason which obliged every legislator to frame its laws in such a way that they could have been produced by the united will of a whole nation and obligate each citizen as if he had consented. Kant concluded that this imaginary act of collective consent ‘is the test of the rightfulness of every public law’.
Aristotle, Bentham, Mill and Rawls had different views, and these are collected and discussed in ‘JUSTICE, WHAT’S THE RIGHT THING TO DO?’ by Michael J Sandel published by Farrar, Straus, and Giroux, New York in 2009.
What social contract exists now between the South African population and the government is fortunately defined and established by the Constitution of the Republic of South Africa which came into force in 1994 . Section 1 of Chapter 1, the Founding Provisions, tell us that the Republic is one founded on values of human dignity, the achievement of equality and the advancement of human rights and freedoms, amongst others. In particular it also provides for the supremacy of the Constitution and the rule of law.
Chapter 2 of this Constitution is the one that in my opinion is always regarded by the public as being one of the most ‘advanced’ constitutional documents in the world. I do not think that they have in mind all of the other chapters of the Constitution when this praise is uttered.
The Bill of Rights is the cornerstone of democracy in this country and it enshrines the rights of all people and affirms its democratic values of human dignity, equality and freedom which must be respected, protected, promoted and fulfilled by the state and all organs of state. See sections 7 and 8 of Chapter 2 of the Constitution.”
Quotations from judgment
Note: Footnotes omitted and emphasis added
“[145] I agree with applicants’ counsel that it was appropriate to refer to the decision by the Constitutional Court in Mahomed and Another v The Republic of South Africa and Others 2001 (3) SA 893 (CC) paragraph 69 where Chaskalson P referred to the United States decision in Olmstead et al v United States and quoted the words of Justice Brandeis as follows:
” In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously . . . Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example . . . If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself·, it invites anarchy.”
“[146] In the result, following order is granted:
1. This application is heard as one of urgency in terms of Rule 6(12), the ordinary requirements of the Rules in respect of notice, service and time periods being dispensed with, and the applicants’ departure therefrom being condoned.
2. In terms of sections 38 and 172(1)(b), read with section 21(1)(c) of the Superior Courts Act, 10 of 2013, it is declared that, during and notwithstanding the declaration of the State of Disaster and the Lockdown under the Disaster Management Act 57 of 2002:
2.1. all persons present within the territory of the Republic of South Africa are entitled to (among others) the following rights, which are non-derogable even during states of emergency:
2.1.1. the right to human dignity (section 10 of the Constitution);
2.1.2. the right to life (section 11 of the Constitution);
2.1.3. the right not to be tortured in any way (section 12(1)(d) of the Constitution;)
2.1.4. the right not to be treated or punished in a cruel, inhuman or degrading way (section 12(1)(e) of the Constitution);
2.2. under section 199(5) of the Constitution, the South African security services, which include the South African National Defence Force (“SANDF”), the South African Police Service (“SAPS”), and any Metropolitan Police Department (“MPD”). must act. and must instruct their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic;
2.3. as organs of state. the first to seventh respondents, the SANDF, the SAPS and any MPD are obliged, under section 7(2) of the Constitution, to respect, protect, promote and fulfil the rights in the Bill of Rights, including those enumerated above;
2.4. members of the SANDF, the SAPS and any MPD remain bound by section 13(3)(b ) of the South African Police Service Act 68 of 1995 (read with section 20(1)(a) of the Defence Act 42 of 2002), to use only the minimum force that is reasonable to perform an official duty;
2.5. members of the SANDF, the SAPS and any MPD, as well as their commanders or superiors, including each of the first to seventh respondents, are bound by the provisions of the Prevention and Combating of Torture of Persons Act 13 of 2013, and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
3. The first to fourth respondents, within their respective areas of authority, shall:
3.1. within five days, pending the outcome of disciplinary proceedings, place on precautionary suspension, on full pay, all members of the SANDF who were present at or adjacent to 3885 Moeketsi Street, Far East Bank, Alexandra, Johannesburg on 10 April 2020;
3.2. within two days, command all members of the SANDF, SAPS and any MPD to adhere to the absolute prohibition on torture and cruel, inhuman or degrading treatment or punishment, and to apply only the minimum force that is reasonable to enforce the law;
3.3. within five days, warn all members of the SANDF, the SAPS and any MPD, as well as their entire chains of command, that any failure to report. repress and prevent acts of torture or cruel, inhuman or degrading treatment or punishment shall expose them each individually to criminal, civil and/or disciplinary sanctions;
3.4. within seven days, lodge affidavits with this Court confirming that the above has been done.
3.5. It is recorded that the sixth respondent shall immediately commence a process to place the members of JMPD who were present at or adjacent to 3885 Moeketsi Street, Far East Bank, Alexandra, Johannesburg on 10 April 2020 on suspension, pending an investigation into charges of misconduct.
4. The first and fourth respondents shall, within five days:
4.1. develop and publish a code of conduct and operational procedures, regulating the conduct of members of the SANDF, SAPS and MPDs in giving effect to the declaration of the State of Disaster.
4.2. widely publish the following, in newspapers of national and provincial circulation; electronic platforms available to the government such as WhatsApp, Facebook and Twitter, and national and provincial radio stations:
4.2.1. guidelines about the circumstances when the use of force may be used in strict compliance with section 49 of the Criminal Procedure Act 51 of 1977;
4.2.2. guidelines about the enforcement of the Lockdown Regulations and any other Regulations issued during the State of Disaster;
4.2.3. guidelines about enforcing social distancing and the restriction of movement and other activities, at each of the different Stages of Alert during the State of Disaster;
4.2.4. guidelines about when a person may be arrested and alternative means of securing their attendance at trial;
4.2.5. information regarding where members of the public may lodge complaints against members of the SANDF, the SAPS and other any enforcement agency/officer.
4.3. lodge affidavits with this Court confirming that the above has been done
5. The first to sixth respondents shall, within five days:
5.1. establish a freely accessible mechanism for civilians to report allegations of torture or cruel, inhuman or degrading treatment or punishment, committed by members of the SANDF, the SAPS or any MPD for the duration of State of Disaster.
5.2. widely publicise such mechanism throughout South Africa via television, radio and digital media in all eleven official languages.
6. The first and fourth respondents shall:
6.1. ensure that the internal investigations into the incidents listed below are completed and reports are furnished to this Court, on or before 4 June 2020:
6.1.1. the treatment of Mr Collins Khosa;
6.1.2. the treatment of any other person whose rights may have been infringed during the State of Disaster at the hands of members of the SANDF, the SAPS and/or any MPD.
6.2. immediately lodge each such report with this Court.
6.3. furnish such reports to the appilcants’ legal representatives.
7. The ninth respondent is ordered to file its report of their investigations to this Court by 22 May 2020.
8. The first to fifth respondents shall. jointly and severally, bear the costs of this application, including the costs of two counsel.
[147] As far as costs are concerned there is no reason why the applicants who were substantially successful should, not be awarded the costs of this application. I have a discretion in this regard. Their challenge is constitutionally justified and bona fide.”
Court summary
Courtesy of LexisNexis – headnote to [2020] 8 BLLR 801 (HC)
“Constitutional rights – During state of disaster – Fundamental rights to life, dignity and not to be subjected to torture not suspended during state of disaster declared under Disaster Management Act, 2002.
Disaster Management Act, 2002 – State of disaster – Conduct of security forces during – Soldiers assaulting and killing civilian suspected of flouting lockdown regulations exceeding powers by not using minimum force – Authorities ordered to suspend implicated soldiers and police officer and to publish code of conduct to ensure compliance with Constitution and law.
Defence Force – Conduct during state of disaster – Soldiers deployed to enforce disaster regulations obliged to use minimum force and to comply with Constitution and law – Those using excessive force to be suspended and charged with misconduct.
Police – Conduct during state of disaster – Officers deployed to enforce disaster regulations obliged to use minimum force and to comply with Constitution and law – Those using excessive force to be suspended and charged with misconduct.
Practice and procedure – Declaratory relief – Order declaring that security forces bound to uphold Constitution and law when enforcing lockdown measures under state of disaster necessary even though order confirming existing law.
Suspension – SANDF soldiers and police officers – Court ordering authorities to suspend security officers suspected of assaulting civilians during national state of disaster pending disciplinary inquiry.”