To discuss the unanimous judgment of the Constitutional Court in Minister of Police and Others v Premier of the Western Cape and Others, as well as its implications for policing, the power of provinces, and intergovernmental cooperation.
Discussion on Judgment in Minister of Police and Others v Premier of the Western Cape and Others presented by the CSC and SJC
1. Discussion on Judgment in
Minister of Police and Others v
Premier of the Western Cape
and Others
Regarding the appointment of the
O’Regan-Pikoli Commission of Inquiry into Police inefficiency and a
breakdown of relations between the community and the police in
Khayelitsha
Prepared by Craig Oosthuizen
2. Background
13 Dec 2003
13 Dec 2004
16 Dec 2005
23 May 2008
TAC activist, Lorna
Mlofana, Murdered
1000 people from
TAC/MSF march in
remembrance of Lorna
TAC activist, Nandipha
Makeke, murdered and
raped
5000 from TAC/MSF
march for safety & justice
4 Feb 2006
23 Sept 2010
4 Oct 2011
28 Nov 2011
Zoliswa Nkonyana
murdered
600 activists picket
Parliament
500 activists hand
memorandum to MEC
Dan Plato requesting
Commission of Inquiry
Official complaint lodged
with Premier Helen Zille
by SJC, TAC, EE, Triangle
Project and NU
24 Aug 2012
5 Nov 2012
14 Jan 2013
6 Aug 2013
Premier Helen Zille
officially appoint the
Commission of Inquiry
SAPS applies for the WC
High Court for an urgent
interdict to stop the
Commission of Inquiry
HC dismisses SAPS
interdict with costs
Constitutional Court hears
SAPS application
Outbreak of Xenophobic
violence
3. Constitution
Section 206 (3) Each province is entitled
(a) to monitor police conduct;
(b) to oversee the effectiveness and efficiency of the police
service, including receiving reports on the police service;
(c) to promote good relations between the police and the
community;
(d) to assess the effectiveness of visible policing; and
(e) to liaise with the Cabinet member responsible for policing
with respect to crime and policing in the province.
4. Constitution
Section 206 (5) To perform those function a province may
“may investigate, or appoint a commission of
inquiry into, any complaints of police
inefficiency or a breakdown in relations between
the police and any community”
5. Principal Arguments
SAPS
(Applicant)
WC Province
(Respondent)
SJC
(Respondent)
• Premier exceeded her
powers in appointing
commission
• Terms of reference too
broad
• Power to oversee
police did not include
power to subpoena
• Premier was fulfilling
Constitutional duty
• Terms of reference
clearly limited
(Khayelitsha & SAPS)
• S 206(5) of Constitution
had no teeth with
power to subpoena
• Terms of reference
clearly defined
• Power to subpoena is
implied where matter
investigated is of public
interest
(SARFU case)
• No power to subpoena
would defeat purpose
of S 206(5)
7. Judgment
The power of SAPS:
“Objects of the police service are to prevent, combat and investigate crime,
to maintain public order, to protect and secure the inhabitants of the
Republic and their property and to uphold and enforce the law.”
“The Constitution makes it plain that policing is a national competence.”
“The President appoints the Commissioner. In the Commissioner lies the
power to ‘control and manage the police service in accordance with the
national policing policy’ and the directions of the Minister responsible.”
8. Judgment
The power of SAPS continued:
“the Constitution provides for concurrent national and provincial
legislative competence over the policing function.”
“political responsibility for policing vests in the Minister who must set the
national policing policy after hearing out provincial governments on the
policing needs and priorities of provinces.”
“a provincial executive is entrusted with the policing function as set out in
[Chapter 11] or given to the provincial executive in national legislation or
the national policing policy.”
9. Judgment
SAPS Response to the complaint:
“over nine months the Premier sought the response of the Provincial
Commissioner over the complaints and how they could be addressed.”
“In early July 2012, seven months after the original complaint, the
Commissioner requested a task team to investigate the issues raised in the
complaint.”
“neither the Premier nor the complainant organisations were informed of
further steps that the Police Service would undertake as a result of the task
team investigation.”
10. Judgment
Does the Premier have the power to appoint a commission?
“Section 206(5) accords a province a clear power to establish a commission
of inquiry into policing function.”
“The Constitution requires accountability and transparency in
governance.54 And it establishes both a general framework for oversight as
well as specific mechanisms through which a province may exact
accountability.”
“The complainants sought to invoke these oversight mechanisms, which
will be best served by a commission entrusted with powers of subpoena
over members of the Police Service.”
11. Judgment
Does the Commission have the power to subpoena?
“The suggestion that the subpoena power amounts to “control of the
police service” as envisaged by section 207 is an unwarranted
overstatement that has no merit.”
“a commission of inquiry appointed by a province under section 206(5) has
the implied power to subpoena members of the police service to attend its
hearings, testify before it and produce documents and other evidence that
may be lawfully required of members of the Police Service.”
12. Judgment
Intergovernmental relations:
“A dispute only arose after the Commission had been appointed.”
“Minister and the Commissioner did not declare a dispute as required by
the Framework Act; instead they approached the High Court.”
“Courts must be astute to hold organs of state to account for the steps they
have actually taken to honour their co-operative governance obligations
well before resorting to litigation.”
13. Where to now
Commission Timeline:
13 November 2013 – Preliminary sitting on the procedure to be followed
by the Commission
21 January – 22 February 2014 – Phase one of public sittings
24 March – 28 March 2014 – Phase two of public sittings (expert evidence)
