The SAHRC, after conducting an investigation, subsequently found that the SAPS had violated a number of Mr Maxwele’s fundamental rights when they, among others, “forcefully bundled” him into a police vehicle, “head-covered”, “leg-tied” and “interrogated” him, where after they searched his home without a warrant or reasonable grounds. The Commission also found that the Minister of Police acted in an unreasonable and unacceptable manner by initially failing to cooperate with the Commission in its investigation. In addition, the Commission found that the Minister should be held vicariously liable for the acts of members and employees of the SAPS who are found to have been acting within the course and scope of their employment.

The SAHRC consequently recommended that the Minister, on behalf of the SAPS, formally apologise, in writing, to Mr Maxwele for their unlawful and unconstitutional behaviour. It also recommended that the Minister should provide a report to the Commission indicating his plan towards implementing the recommended remedies, namely: that the Minister and the SAPS acknowledge the supremacy of the Constitution and the Rule of Law as well as the duty of the State in terms of section 7(2)  to respect, protect, promote and fulfil the rights in the Bill of Rights. The Commission also recommended that the Minister should indicate the steps he would take in terms of section 199(5) of the Constitution to ensure that the SAPS acts, teaches and requires its members to act in accordance with the Constitution and the law. However, instead of recognising their shortcomings and implementing the SAHRC’s recommendations, the Minister and the SAPS unsuccessfully appealed the findings before the SAHRC on technicalities. The Minister then challenged the SAHRC’s finding in the High Court. 

In dismissing the Minister’s application to review and set aside the findings of the SAHRC – with punitive costs – the High Court found that the Minister displayed a disconcerting attitude which, if not blatantly contemptuous of the Commission, at the very least showed disrespect for the Commission’s standing as a body instituted by the Constitution, and tasked with a duty to investigate violations of human rights.

The Minister’s spokesperson, Zweli Mnisi, was quoted saying that the Minister noted and respected the judgement, but that he had not undermined the Commission. Instead the matter raised “an important constitutional issue, that is, whether litigants should have access to a plethora of fora within which to ventilate their complaints against the state or whether they should determine a particular forum within which to do so”. 

When it lodged the complaint with the SAHRC on behalf of Mr Maxwele, the CFCR was perfectly aware that he intended to institute civil proceedings against the SAPS. However, for the CFCR the core issue was that the SAPS had violated several of Mr Maxwele’s fundamental rights and that their action in so-doing threatened the rights of all law-abiding citizens. We accordingly believed that it was an issue that rightly belonged with the SAHRC quite apart from any civil proceedings that he might decide to pursue. In terms of section 184 of the Constitution, the SAHRC – as an independent entity subject only to the Constitution and the law – must promote respect for human rights and a culture of human rights; promote the protection, development and attainment of human rights; and monitor and assess the observance of human rights in South Africa. Moreover, the SAHRC has the powers, in terms of section 184 and as regulated by national legislation, “to investigate and to report on the observance of human rights”; “take steps to secure appropriate redress where human rights have been violated”; “carry out research”; “and to educate”. Other organs of state – including the SAPS – “must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”.

The Court agreed with the SAHRC that the Minister had not been assisting the Commission as he should have. The Minister appears to be more concerned about possible civil claims against himself and the SAPS, than the reasons he had to face these claims in the first place. His spokesperson’s assertion that the SAHRC’s findings and the High Court’s ruling “may lead to extensive cherry-picking by litigants in the future” is thus missing the point. What the Minister should be concerned about is the ongoing and blatant human rights violations by members of the SAPS – including wrongful arrests, rape, attempted rape, grievous bodily harm, corruption and assault – which led to the SAPS paying out R209,93 million to settle 3 773 civil claims against it over the past financial year.  

These extensive settlements – together with the Marikana incident and the brutal killings by members of the SAPS of Mr Andries Tatane and the Mozambican taxi driver, Mr Mido Macia – indicate the urgent need for the SAPS to heed the SAHRC’s order to “act, teach and require its members to act in accordance with the Constitution and the law”. They also show that issues like Mr Maxwele’s complaint should not only be settled quietly in civil proceedings – but should be exposed to the full glare of public scrutiny by the institutions that the Constitution has established to protect the rights of citizens.

The Constitution requires an effective police service which is trusted by law-abiding people and feared by those who violate the law – not because of their brutality or ruthlessness, but rather because of their professionalism and righteousness. The Minister accordingly has a constitutional duty to ensure that the SAPS acts, teaches, and requires its members to act in accordance with the Constitution and the law. Thus, unless the Minister now sees to it that the SAPS effectively implement the SAHRC’s recommendations as set out in the Maxwele-matter – thereby committing to the promotion of a human rights culture within the SAPS – “cherry-picking” by legitimate litigants who have been wronged by the SAPS may be the least of the Minister’s worries.

By Adv Johan Kruger, Director: Centre for Constitutional Rights