SA HUMAN RIGHTS COMMISSION FINDING ON THE BLUE LIGHT BRIGADE COMPLAINT 

The arrogance, the intolerance of dissent and the lack of respect for the Constitution which the Minister of State Security displayed as he bulldozed the Protection of State Information Bill through Parliament is cause for grave concern in itself. It is of even greater concern, however, because it is increasingly the attitude displayed by other Ministers and the parliamentary members of the ruling party.

In particular, it was the same attitude displayed by the Minister of Police in the handling of the complaint lodged by the Centre for Constitutional Rights against the Minister and the Special Protection Unit of the South African Police Service concerning their unlawful arrest of Mr Maxwele and the abuse of his rights.

It is an attitude which is diametrically opposed to the culture of openness, transparency and accountability envisioned in the Constitution. It is an attitude which ignores the rights of those they represent, the rights of the ordinary citizens and it is an attitude that threatens our Constitution. It is thus increasingly important that our Chapter Nine Institutions, whose brief is to strengthen our constitutional democracy, exercise their powers and perform their functions without fear, favour or prejudice.

We at the Centre for Constitutional Rights accordingly welcome the recent finding on appeal by the South African Human Rights Commission in that complaint. Its finding not only protects Mr Maxwele's human rights, but also promotes respect for human rights and educates the South African Police Service on human rights, as the Commission is constitutionally mandated to do.

The complaint arose from the unlawful arrest and detention by certain members of the Special Protection Unit during February, 2010, of Mr Chumani Maxwele for allegedly pointing his middle finger at the President's motorcade. The members who occupied the last of a six-car convoy which was transporting the President, bundled Mr Maxwele into their car, pushed  him onto the floor of the vehicle, shouted at him, tied his legs up with a rope and had a black bag pulled over his head. Thereafter, he was taken to the Rondebosch Police Station and then to the Mowbray Police Station and later to holding cells at the Wynberg Magistrate's Court, where he was unlawfully detained for 24 hours. Whilst at the cells, he was manhandled and subjected to cruel and inhumane interrogation. He was also forced to write an apology to President Zuma for his behaviour.  Furthermore, his home was searched by police officers whilst he was being detained and his belongings and notebooks were rifled through. He was charged with crimen injuria and resisting arrest, but these charges were all dropped upon his release from detention. All of this for allegedly showing "the finger" to the cavalcade. 

In our complaint, the Centre expressed its concern that not only had Mr Maxwele's rights to human dignity, to freedom and security of the person, to privacy, to freedom of expression, to make political choices and the right to certain conditions of detention been violated, but that the attitude of the SAPS members involved revealed a shocking ignorance of the Bill of Rights and of their overriding duty to uphold the Constitution and the rights that it assures.

Their conduct was, we believed, reminiscent of the attitude of intolerance, the unfettered power and the lack of accountability that characterized the conduct of the police during the apartheid regime which resulted in the widespread suppression of the freedoms and rights of the people of our country.  

The purpose of our complaint was thus twofold - firstly, to restore Mr Maxwele's dignity and secondly, to stem the growing attitude of the SAPS that they are above the law. As part of its requests, the Centre accordingly asked that the Minister of Police should be required to acknowledge that he accepted the supremacy of the Constitution and the rule of law, as well as the duty of the state to respect, protect, promote and fulfil the rights in the Bill of Rights.

It specifically asked that steps should be taken to ensure that the South African Police Service acts, teaches and requires its members and, specifically, members of the Special Protection Unit involved to act in accordance with the Constitution and the law; and that all those involved in this incident should make a full apology to Mr Maxwele for their unlawful and unconstitutional behaviour. 

After the initiation of the complaint in March, 2010, and independently, Mr Maxwele laid a civil claim for damages against the SAPS.

Despite numerous communications from the Commission, the Minister failed to respond timeously to the complaint and when he eventually did, simply stated that, as there was a civil claim, the matter should be left to the courts for determination. The Commissioner found that Mr Maxwele's rights had indeed been abused and that the respondent's initial failure to cooperate with and respond timeously and substantively to have been unreasonable and unacceptable.

The Commission ordered that the Minister apologise to Mr Maxwele and that he submit a report acknowledging the supremacy of the Constitution, the rule of law and the SAPS duty to respect, protect, promote and fulfil the bill of rights. In addition the Minister was to report on their plans, with specific timeframes, regarding steps to be taken to ensure that the SAPS understood their constitutional duties. 

Once again, the Minister failed to implement the recommendations timeously and also failed to file his notice of appeal within the stipulated period. It was only when the Commission threatened legal action at his expense, that he did file an appeal. When he did so, the substantive grounds on which the Minister appealed were again that the matter was before a civil court and that the Commission accordingly had no right to hear the matter. The basis for applying for condonation for his late appeal was what the Minister had termed "administrative problems."  

In a detailed finding the Commissioner found that, although the Minister had indicated that "there was no intention on his part to undermine or disregard the Human Rights Commission", his conduct in not responding to communications from the Commission, as well as that of the Minister's  office had throughout the process clearly led the Commissioner "to conclude that the appellant was doing exactly that." As to the defence that the delay in appealing was due to administrative problems, the Commission found that "...this defence is just not credible. What has been pointed out throughout the process is a consistent failure to cooperate with and responding timeously and substantively to the Commission's correspondence."

Such conduct was "unreasonable and unacceptable". Importantly, the Commissioner found that "[d]ifferentiating between the responsibility of the appellant and that of his office is passing the buck and a failure to take full ministerial responsibility." 

The Public Protector has, rightly so, enjoyed much publicity regarding her shown ability to act without fear or favour. It is thus equally encouraging to find the Human Rights Commission doing likewise. The Minister was ill-advised both in his original response to the objection and more so in his grounds of appeal.

It is hoped that proper note will now be taken of both the original finding and the appeal finding and that the recommendations will be implemented. Should he not, it is hoped that the Commission will launch its earlier threatened court application to enforce implementation of its recommendations. State organs and government officials need to learn that they treat our Chapter Nine Institutions with disdain and disrespect at their own peril.

Statement issued by Adv. Nikki de Havilland, Centre for Constitutional Rights, FW de Klerk Foundation, November 28 2011

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