Why
is Mthethwa trying to stop inquiry into police incompetence?
byPierre De Vos.
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.
