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Cape Town - The Constitutional Court has supported Western Cape Premier Helen Zille’s bid to establish a commission of inquiry into policing in Khayelitsha.
The court dismissed an application by the police to declare Zille’s decision to set up the commission invalid. Zille’s decision was lawful in terms of the constitution, it said, and it rejected Police Minister Nathi Mthethwa’s application for leave to appeal against an earlier Western Cape High Court decision.
The high court found earlier this year that Zille had the discretionary power, derived from the constitution, to appoint the commission and she had not acted irrationally or unlawfully. It dismissed the police’s urgent interdict application.
Mthethwa then approached the Constitutional Court for leave to appeal.
On Tuesday, deputy Chief Justice Dikgang Moseneke handed down the unanimous judgment which said Khayelitsha was one of the fastest-growing townships in South Africa with a population of about 750 000.
“The rights and interest of these residents lie the heart of this dispute.”
The court action stems from a complaint the Women’s Legal Centre lodged with Zille in November 2011. The complaint cited “widespread inefficiencies, apathy, incompetence and systematic failures of policing routinely experienced by Khayelitsha residents”.
Within two weeks Zille forwarded the complaint to the provincial police commissioner, asking for a response by January 30 last year. Over nine months the parties corresponded with one another and in July the police asked a task team to investigate the issue. But neither Zille nor the other complainants were informed.
After discussing the matter with her provincial cabinet, on August 22 Zille announced she had appointed a commission of inquiry into policing in Khayelitsha. It was headed by retired Constitutional Court judge Kate O’Regan and former national director of public prosecutions Vusi Pikoli.
Mthethwa was not pleased and wrote to Zille objecting to the appointment of a commission without consultation with him. Last October the commission subpoenaed the police commissioner and three police station commanders in the area for certain evidence.
A week later, Mthethwa and six other applicants brought an urgent application to the high court seeking an order restraining the commission from issuing further subpoenas, and suspending it pending a review application. Mthethwa’s grounds were that the commission was inconsistent with the constitution, invalid, irrational or unlawful.
The high court dismissed the urgent application.
Mthethwa challenged this judgment in the Constitutional Court. He argued, among other things, that the extent of the complaints to Zille did not entitle her to appoint a commission and that the commission’s terms of reference were vague. The court disagreed, saying the complaints were confined to three police stations and police units operating in the same area.
The judges found the commission had been appointed lawfully and that it had the power to subpoena the police. It also found that Zille, as premier, was obliged to take reasonable steps to shield the residents of Khayelitsha from the erosion of their fundamental rights as a result of alleged police inefficiency.
The police were ordered to pay legal costs incurred by the Social Justice Coalition.
Meanwhile, Mthethwa says he will respect the court ruling.
Constitutional law expert Professor Pierre de Vos said the judgment upheld the principle of accountability. Although policy was the terrain of the national minister, and the police’s national commissioner was in charge of the police, a provincial government had the power to monitor and oversee policing. A commission of inquiry was such a tool of accountability.
“It’s a good thing for the people of Khayelitsha,” said De Vos, adding that based on the crime rate, there was a problem and a commission of inquiry would begin to oversee and to hold accountable those in charge. “It reaffirms the province has a role to play in overseeing the police.”
However, it would become “interesting” once the commission made its findings and recommendations, said De Vos: “What can the province do to address the findings? Because neither the minister nor the MEC is in charge, but the national police commissioner.”
Zille also welcomed the court ruling, saying: “We remain committed to working with both the commission and the police in order to increase safety in all our communities, and now that we have clarity on this aspect we trust that the commission can move forward in fulfilling its mandate with the full co-operation of the police.”
The secretary of the commission was unavailable on Tuesday and it was unclear when the commission would resume.
Freedom Front Plus policing spokesman Peter Groenewald on Tuesday said the police minister was wasting taxpayers’ money - last year alone the police spent R204million on civil claims.
“The impression is being created the police are eager to turn to the courts because legal fees aren’t a consideration. It is time that an investigation is launched to - in the case of certain court cases - hold the minister of police personally responsible for the legal fees,” Groenewald said.