Court lockdown victory for family against SANDF, SAPS after death of Collins Khoza
Pretoria – In a step to improve the accountability of the police and the South African National Defence force while enforcing the Covid-19 lockdown, the ministers of Defence and Police must within five days develop and publish a code of conduct and operational procedures regulating the conduct of their members, including that of the metropolitan police departments.
This code of conduct must be published in newspapers as well as on social media, the North Gauteng High Court in Pretoria ordered on Friday.
In a 77-page judgment issued by Judge Hans Fabricius, he said the guidelines must include the circumstances when the use of force may be used, which must be in strict compliance with the law.
He further ordered that guidelines must be issued about enforcing social distancing and the restriction of movement and other activities during each of the stages of lockdown. These guidelines must include when a person may be arrested as well as alternative means of securing their attendance at their trial.
The ministers must also supply information as to where the public may lodge complaints against members of the SANDF and SAPS who do not toe the line.
These were a few of the list of orders issued by the court following an urgent application by the family of Collins Khoza, who was on April 10 assaulted at his Alexandra home for allegedly contravening the lockdown rules by drinking alcohol in his yard.
Khoza died following the assault, allegedly at the hands of members of the armed forces. The post-mortem report, which was handed to the court, indicated that he had died of blunt-force trauma to the head.
His family turned to the court for an urgent order directing the police, the SANDF and other armed forces to toe the line during the lockdown.
They also successfully secured an order that the Khoza incident, as well as other similar incidents during this time, had to be properly investigated.
In this regard, Judge Fabricius ordered that the SANDF had to place all SANDF members who were present at Khoza’s home that day or adjacent to his premises, on suspension with full pay within five days. This is pending the outcome of an investigation into his death.
Similarly, he also ordered that the head of the Johannesburg Metro Police Department had to put all JMPD officers who were at or around
Khoza’s home that day on suspension pending the outcome of an investigation into their possible misconduct.
Judge Fabricius said his orders are designed to ensure that South Africa complies with its Constitutional and international obligations.
He based his orders mostly on what was suggested.
“I was asked to order the respondents to enhance the existing institutions and to give them what they are currently lacking, but constitutionally require the necessary competence, independence and capability to receive and investigate complaints of torture and brutality promptly, impartially and effectively.
The judge said lockdown brutality requires a remedy and his order provides that remedy.
He declared that all citizens of this country are entitled to the right to human dignity, not to be tortured or punished in a cruel and inhumane manner. The judge said this is the case no matter whether we are now in a state of disaster or whether we were in a state of emergency.
The judge said the SAPS, SANDF and other armed forces must instruct their members to act in accordance with the constitution and the law. He said they are bound by the law to use minimum force that is reasonable to perform their official duties.
He further ordered that the ministers of Police and SANDF, as well as their entire chain of commands, had to warn their members within five days of this order that any failure to report, repress and prevent acts of torture or inhumane treatment of people shall expose them each individually to criminal . civil or disciplinary sanctions.
The judge said he wanted affidavits within seven days from these ministers as to whether this was done.
The ministers of police and SANDF, meanwhile, have to ensure that the internal investigation into the death of Khoza, as well as any other similar incidents by which the armed forces were implicated during the past weeks, are completed and that reports regarding the findings are handed to the court before June 4.
The Independent Police Investigative Directorate must file its report into the Khoza matter with the court by May 22.