SAHRC welcomes court's decision against Minister of Police in the Chumani Maxwele matter

The South African Human Rights Commission has welcomed the decision of the High Court to dismiss, with a punitive costs order, Minister of Police, Mr Nathi Mthethwa's application calling for a review, setting aside and substitution of the Commission's finding against the Minister and the President's Special Protection Unit (SPU) in the matter involving Mr Chumani Maxwele of the Western Cape.

The matter pertains to the complaint received by the Commission from the FW de Klerk Foundation's Centre For Constitutional Rights in February 2010. It was alleged that the SPU arrested and detained Mr Maxwele for allegedly gesturing with his middle finger at a convoy of police vehicles which was transporting President Jacob Zuma, and for resisting arrest.

Mr Maxwele alleged that in the course of his arrest his head was covered, his legs were tied and that he was taken to the Rondebosch and Mowbray police stations respectively whilst being interrogated.

He was informed that he would be released only after being interviewed by the National Intelligence Agency. During his detention his home was searched. In addition he was held in custody for a day without food, and was then transferred to the Wynberg Magistrate Court where he was released without appearing in court.

In the course of its investigation of the complaint the SA Human Rights Commission received poor cooperation from the office of the Minister.

In its ruling, the Commission found against the Minister and the SPU, and recommended that the SPU and the Minister make a full written apology to Mr Maxwele for their unlawful and unconstitutional behavior which apology was to be submitted within 30 days with an option to appeal the decision. The apology was not given and an appeal was only launched by the Minister at the eleventh hour, some three days after the expiration of the period allowed for appeal. The appeal was decided against the Minister.

In January 2012 the Minister launched an application to review, set aside and substitute the Commission's decision on appeal. The Commission opposed the application and the parties argued the matter before the Honourable Judge Claasen in the South Gauteng High Court on 12 June 2013. The Court found in favour of the Commission and dismissed the Minister's application.

To paraphrase his judgment, Claasen J criticised the Minister for his behaviour, reminding the Minister of his constitutional duties as a member of the Executive to give full cooperation to the Commission and to assist the Commission to ensure, amongst other things, the effectiveness of the Commission and the other Chapter Nine institutions, .

Claasen J found that the Minister had displayed a disconcerting attitude which, if not downright 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 events where human rights are violated.

The judge stated that the Minister is duty bound as a member of the Executive to give his full cooperation to the Commission and to show respect to the Commission in order to enable the Commission to execute its own duties expeditiously, timeously and effectively. The judge accordingly found that the Minister's conduct fell far short of its duty to assist the Commission.

Expressing his ire at the conduct of the Minister the judge ordered the Minister to pay the Commission's costs including the costs of two counsel, which are payable on the scale between attorney and own client.

Chairperson of the SAHRC, Adv Lawrence Mushwana, welcomes the decision of the court to dismiss the review application with a punitive costs order. Adv Mushwana stated that: "We are very pleased with Judge Classen's finding that the Minister must respect the SAHRC and the work done by the Commission. This should really send the message to other government officials who do not cooperate with the Commission or its findings".

Statement issued by Isaac Mangena, Head: Communications, South African Human Rights Commission, June 18 2013

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