Following the complaint made by the CFCR to the SAHRC in July 2011, the SAHRC found that a number of Mr Maxwele’s rights had been violated, including his human dignity, the freedom and security of his person and his rights as a detained person, as articulated in the Constitution. Recommendations addressing the above were sent to the Minister of Police. The Minister failed to comply with said recommendations and proceeded to appeal the findings. The SAHRC dismissed the appeal and stood by its findings. The matter was then taken on review to the South Gauteng High Court by the Minister. The Court dismissed the application to review the findings of the SAHRC.
The recommendations sent to the Minister and members of the Special Protection Unit required an acknowledgement that they accept the supremacy of the Constitution and the Rule of Law in accordance with the Constitution. Further, the report emphasised the State’s duty to respect, protect, promote and fulfil the rights in the Bill of Rights. The SAHRC also recommended that the Minister should indicate the steps to be taken in terms of section 199(5) of the Constitution to ensure that the South African Police Service (SAPS) teaches and requires its members – and specifically members of the Unit – to act in accordance with the Constitution and the law.
In 2014, following the failure of the Minister to comply with and cooperate with the above recommendations, the SAHRC submitted a letter to the Speaker of the National Assembly, informing her of the above and requesting intervention to secure compliance from the Minister. Subsequently, in a letter to the SAHRC, the Minister acknowledged the duty of the SAPS, as part of the State, to respect, protect, promote and fulfil the rights in the Bill of Rights. He also acknowledged the existence of police officers who do not act in accordance with the Constitution and the South African Police Service Act. He assured the SAHRC that the National Commissioner of Police would consider the manner in which effect was to be given to the recommendations. The Minister also penned an apology to Mr Maxwele.
The SAHRC went further and established an expert committee in terms of section 11 of the SAHRC Act on Human Rights in Law Enforcement, which the National Police Commissioner was invited to and attended. Furthermore, the SAPS and the SAHRC met in 2014 to discuss human rights in policing. A Memorandum of Understanding (MOU) was agreed upon and signed early in 2015. The SAHRC’s committee also facilitated engagement with expert committees on the prevention of torture. Since the MOU was signed, a number of meetings have been held to review the improvement of basic training for the SAPS. This resulted in the convening of an operational group in 2015 constituting SAPS senior management, the SAPS academy and the SAHRC.
Whilst the matter has been closed, the SAHRC has undertaken to continue interventions in respect of SAPS training and monitoring police conduct. This is a welcome measure as this incident is not an isolated one. Police brutality or the use of excessive force by the SAPS is nothing new. Perhaps the most jarring example being the killing of striking workers at Marikana. In the report given by the Marikana Commission (established to investigate the tragic incidents that took place at Lonmin Mine in Marikana), it was noted that the conduct of the police in South Africa does not meet international standards. It is in this spirit that the White Paper on Police (still in draft form) advocates for the enforcement of human rights policy.
This finding is a prime example of the role of Chapter 9 institutions in the guarding of our democracy. Organisations such as the CFCR that work to uphold the Constitution assist in this regard. Also, bearing in mind the recent judgment made by the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others, regarding the effect of recommendations made by the office of the Public Protector, it is worth paying attention to the above. Chapter 9 institutions are important and serve as the watchdogs of our democracy and the Bill of Rights. Therefore, their findings must be treated with the utmost respect. This case stands to prove that while the system may oftentimes be slow and bureaucratic, it does work.
By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
