The South African President enjoys great discretion with respect to how he exercises his powers. This includes the appointment of Cabinet Ministers. This is not to suggest that there are no limits to his power. As court decision after court decision has emphasised, public powers can only be exercised within the narrow confines of rationality. Of course, as the courts have made clear, rationality does not mean that a decision is irrational just because there is a different way of doing things. Rationality means that there should be a logical connection between the reason for the decision and the outcome of the decision. Simply put, there must be a link between the means and the ends.

The Minister of Police last week, speaking at the relaunch of the Tactical Response Team, stated that “Even if you do not have a warrant of arrest‚ slap them. Break the law progressively and let me worry about court cases.” He further used language unbecoming for the Centre for Constitutional Rights’ readers, to drive home the point that the South African Police Service (SAPS) must use excessive force and at times act unlawfully, to apprehend violent criminals.

The Minister of Police’s views are delivered in the context of a nation with one of the world’s highest crime rates, however, policing must still be underpinned by human rights considerations. In this regard, human rights are derived from the inherent dignity of all persons. It is vital that the SAPS act within the confines of the law at all times. Additionally, the SAPS needs to respect the principle of legality, necessity, proportionality, non-discrimination and humanity. This means that in responding to crime, the SAPS should only use the necessary force in order to apprehend criminals. The SAPS Act too, is cognizant of this legal principle, given that its preamble enjoins the police service to uphold and safeguard the fundamental rights of every person, as guaranteed by the Bill of Rights in the Constitution.

Urban migration is a global phenomenon, to which South Africa is not immune. Thousands of South Africans move to urban areas every year in search of better opportunities including better remuneration, education, work opportunities and improved services. Many such South Africans find themselves, as the occupants of the Marikana informal settlement near Cape Town did, precariously settled on the margins of the city and facing a certain future homelessness.

All of the above issues came to the fore recently, in three related instances, which due to the proximity of the occupied land in question, the Western Cape High Court (the Court) viewed as a single case. The facts briefly are that land belonging to Mrs Fischer and two private companies came to be unlawfully occupied by 60 000 individuals. Despite early attempts in 2013 to evict the unlawful occupants, the number of unlawful occupants had exponentially grown to 60 000 by the time the Applicants approached the Court.

Part 2 – Failing to address legislative shortcomings on the State’s surveillance powers

The words “surveillance of communication”, “interception orders” and “national security” in the age of modern technology cause a sense of distrust, especially in a volatile democracy such as South Africa with its apartheid history of secrecy.

Most South Africans are aware that they are required to register their SIM card in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA). However, one wonders how many are aware of the RICA procedure, which allows the State to intercept an individual’s communications. It would be naïve to believe surveillance laws do not impact on ordinary law-abiding citizens and only concern the fighting of “terrorists” who pose a “national threat”. A case in point is the recent conviction of a Crime Intelligence Official who was found guilty of spying on two Sunday Times journalists in 2010 by supplying false names in the interception application.