The story up to now, in brief: for the past two years, civil society organisations, led by the Social Justice Coalition (SJC), have been lobbying Western Cape Premier Helen Zille to set up a commission of inquiry into policing within Cape Town’s largest informal settlement, Khayelitsha. The SJC has collected a dossier of testimonies from Khayelitsha residents who say that both the police force and the entire criminal justice system are failing them at every turn. There are reports of police failing to take correct statements; failing to attend to criminal incidents at all without the direct intervention of the local police commissioner; attempts to dissuade the victims of crime from opening cases; and in some cases engaging in physical violence themselves.

A damning City Press story in November, based on an internal SAPS investigation, found that 78 vigilante murders have been committed in Khayelitsha in 14 months, far higher than the previous estimates of about 20. Such violence suggests a lack of faith in the police’s ability to effect justice for the community.  The same report also found that the number of disciplinary cases brought against Khayelitsha police personnel actually exceeded the number of people involved: in the course of a year, there were 701 disciplinary cases brought against 656 police staff members. In the first six months of 2012, there were also 16 domestic violence charges laid against Khayelitsha police officers.

In short, the picture doesn’t look good. So in August, Zille bowed to the pressure from civil society groups and finally announced the establishment of a commission of inquiry tasked with finding out exactly why things are going so wrong. The commission would be headed by retired judge Kate O’Regan and advocate Vusi Pikoli, and would hold public hearings between 12 November and 14 December.

But this hasn’t gone according to plan, because the police top brass didn’t like the idea. Both Police Minister Nathi Mthethwa and Police Commissioner Riah Piyega expressed the opinion that the commission was premature, unnecessary, and even “an act of aggression” against the SAPS. Mthethwa said that the investigation could be better run as an internal process. Naturally, people weren’t very happy with this idea, partly because impartiality is seen as key, and partly because, speaking frankly, many people don’t trust that the SAPS will not engage in some kind of cover-up.

Mthethwa has essentially framed the commission as a kind of vendetta against the SAPS, pointing to the fact that the metro police – employed by the City of Cape Town rather than the SAPS – have been excluded from the ambit of the proposed investigation. It is also clear that the dispute is largely about power: Mthethwa sees Zille as radically overreaching her position by ordering an inquiry into his police force. And so to court he went for an interdict to prevent the commission going ahead, and on Thursday all parties turned out ready to rumble.

It was a long and occasionally fractious day, with advocate Norman Arendse, acting for the police minister,  seeming to get under the skin of Judge Traverso in particular. Arendse was blustery and repetitive. One of his initial arguments was that Kate O’Regan and Vusi Pikoli were not suitable candidates to serve as commissioners for the inquiry due to potential bias. In the case of O’Regan, the bias stemmed from the fact that she was a patron of the Women’s Legal Centre, which represents the SJC in the matter. In the case of Pikoli, his stint as head of the National Prosecuting Authority is considered sufficient potential for bias. Yet later in the day, almost as an afterthought, Arendse said that they would not, in fact, be pursuing this claim.

When Arendse brought up the exclusion of the metro police, Traverso informed him that this was irrelevant to current considerations. “We are only here to discuss whether the commission is unlawful or not,” she said. Arendse said that a major complaint was the haste with which Zille had acted in setting up the commission: Phiyega had asked Zille for more time, he said, saying that these were difficult, complex issues that couldn’t be addressed overnight. (The Women’s Legal centre says in this regard that correspondence has been undertaken with the police on the matter since 28 November 2011, so the claim that it was sprung upon them is without merit.)

Arendse also disputed the fact that the state of Khayelitsha policing constituted an “urgent” matter. “What was the urgency?” he asked. “The commission is clearly not going to stop the vigilante killings.” He also claimed that many so-called vigilante killings were actually gang-related, and suggested that Zille had been led astray by media reports.

Surely he would have to agree, said Traverso, that the vigilantism was indicative of systemic problems. Oh indeed, said Arendse, but you didn’t need a commission of inquiry to tell you it was symptomatic of a wider rot. Why was only the police being targeted, he asked. What about the court system, and the wider criminal justice system?

All the lawyers involved insisted on poring minutely over the relevant correspondence, with Arendse claiming at one point that the fact that an email from Zille was CCd to Phiyega rather than directly addressed was of huge significance. In essence, however, Arendse’s argument rested heavily on the idea that Zille’s appointment of the commission amounted to an intrusion, particularly due to its ability to issue police officers with subpoenas.        

Acting for Helen Zille, Sean Rosenberg made the point that pressure had been building on the premier to take action. He said there was a “self-evident link” between vigilantism and a breakdown of trust in the police. Rosenberg suggested, moreover, that vigilantism constituted a threat too urgent for its handling to be deferred. Zille could not be accused of having failed to try to engage the police top dogs on the matter of the commission, he averred. But his major point was simply that the Constitution “clearly indicates” that a provincial commission may be launched, and that its establishment was well within Zille’s powers.

The Women’s Legal Centre was represented by Peter Hathorn, who brought the hearing’s focus back to what it arguably should have been on all along: the residents of Khayelitsha directly affected by crime. Residents were too scared to go to the toilet at night, he said: there is clearly a problem. Hathorn suggested that there was a “fundamental irrationality” to the objections of the police minister. Mthethwa accepted that an inquiry was necessary, but came to the court at great expense to fight the establishment of an inquiry.

(Oddly, one of the initial police objections to Zille’s commission was the expense of it. It would be interesting to know what Mthethwa’s legal fees will amount to in trying to block it.)

Hathorn also invoked the Constitution as allowing for the commission. He said that even if Zille’s actions constituted an intrusion, it was a “constitutionally mandated intrusion”. Francois van Zyl, acting for the embryonic commission itself, made the point that it was strange that police should be so averse to being subpoenad, since they were called to give evidence in court very frequently.

In the end, it came down to Arendse – given right of response – duking it out with the judges. Would any commission of inquiry encroach on police territory, asked Traverso. Arendse answered that it was the commission’s “coercive powers” – the right to subpoena – that amounted to the “nub” of the problem, since it infringed on the SAPS Act. Nobody was saying that police were above the law, Arendse said. “But why would you, as a police officer, would you submit to a subpoena from the commission? The commission is not your boss, and neither is the premier. Your boss is the national police commissioner, and her boss is the president. Whether you like it or not, the president is in charge of the police,” Arendse said.

After the hearings had concluded, with judgement reserved, the civil society representatives expressed cautious optimism.

“Having listened to the arguments put forward by the representative of the minister, I do not believe they have made out a case for the court to grant them what they’ve asked for,” the Women’s Legal Centre’s Sanja Bornman told the Daily Maverick. “But today was just the interim seeking of relief, not even getting into the fight of constitutionality. It’s important, though, because if you fail at Phase A, you’re less likely to win at Phase B.”

Ndifuna Ukwazi’s Zackie Achmat wouldn’t be drawn on the likely outcome of the case. “The minister didn’t act with sobriety, according to Justice Saldanha,” was all Achmat would say, citing an earlier comment by the judge.

It’s not known how long it will take the judges to deliver judgement – possibly a matter of days, maybe longer. Until they do, there will be no commission; but if they reject Mthethwa’s interdict application, the inquiry will have to be allowed to go ahead. DM

Read more:

• Khayelitsha commission “an intrusion”, on News 24

Photo: Nathi Mthetwa & Helen Zille (Reuters)