COMMENT

State of brutality: A constitutional crisis (I)

Lee-Anne Germanos considers the circumstance leading to the death of Mr Khosa

State of brutality – A constitutional crisis (I): A Good Friday murder

25 June 2020

GOOD FRIDAY

Good Friday of this year was unlike other Good Fridays in recent years. The public holiday, falling on 10 April this year, and Christian holy day marking both Christ’s death and the beginning of the Easter long weekend, fell in the middle of the first global pandemic in 100 years. For the first time in South Africa’s history churches and streets were empty on this day. These might be the reasons for which 10 April 2020 will be remembered, but they should not be. They should not be, because on Good Friday, nearly two thousand years after the death of Jesus, a man suffered a brutal and inhuman death at the hands of soldiers. This man lived in Alexandra, South Africa.

On that warm autumn afternoon on 10 April 2020, Mr Khosa enjoyed a drink with his brother-in-law in his humble yard, and shared a meal with his family in their modest home. A little further away from this scene, Charlie Company of the South African National Defence Force (“SANDF”) patrolled the streets of Alexandra, armed with whips and machine guns.

Unbeknownst to Mr Khosa and his family, the two soldiers that walked the road that led to their home had been issued with SANDF Directives to “find, fix and neutralise the non-compliers” of the Disaster Management Regulations (“lockdown regulations”) among the “population of Alexandra”.[1] So the soldiers on the streets of Alexandra that day were on the lookout for someone of whom they could make an example.[2] When the two soldiers passed an empty camping chair and bottle of beer in Mr Khosa’s yard, they decided that he would be the chosen one.

What ensued is a disgrace to the SANDF uniform (which continues to protect them) and to us, as a South African people. The two soldiers, turned legislators, decided that the drinking of alcohol had become unlawful. (The drinking of alcohol was and has never been unlawful in terms of the lockdown regulations – only its sale was temporarily banned.) When Mr Khosa responded along these lines, the soldiers lost what little self control they pretended to have. They proceeded to raid Mr Khosa’s home and confiscated two beers which they would later use to frame and humiliate him and his brother-in-law.

The soldiers forced the two men on to the street outside their home where minutes before they had been enjoying a peaceful family meal. The soldiers proceeded to pour the confiscated beer on top of Mr Khosa’s head. They held his hands behind his back and choked him. They slammed him against a cement wall; hit him with the butt of a machine gun; kicked, slapped and punched him in the face, stomach and ribs; and then slammed him against a steel gate.

This was all done under the watchful eye of members of the Johannesburg Metropolitan Police Department (“JMDP”) and additional SANDF soldiers who had been called in as reinforcements for this ‘dangerous’ crowd. Lest we forget, JMPD’s existence hinges on civilian protection. This reign of terror did not end with Mr Khosa. Mr Khosa’s life partner, his brother-in-law and his brother-in-law’s pregnant wife were also attacked and brutalised by SANDF who whipped and assaulted them.[3]

Following his torture and brutalisation, Mr Khosa began to vomit and progressively lost his ability to walk. He eventually lost his speech and consciousness, and died 3 hours later. The cause of death: blunt force trauma to the head and torso causing severe damage to the internal organs and the brain.[4] Unlike in other parts of the world where scenes like this that take place in public are recorded and sent to the media, South African security forces are wise to the trouble that this may cause for them.

So every eyewitness who recorded this brutal scene on their phones that day was forced by the SANDF and JMPD to delete the videos from their phones. They proceeded to threaten the witnesses, for good measure, should they be so bold as to come forward about what happened.[5] This should read like a scene from a police state. Yet it occurred in South Africa. South Africa is a constitutional democracy.

GUARDIANS OF OUR CONSTITUTIONAL ORDER

Without video evidence there is no sensational story to report, so the torture and brutal murder of Mr Collins Khosa by SANDF soldiers became one of the many murders reported in South Africa on a daily basis. Then an application was brought before the High Court in Pretoria against the Minister of Defence and Minister of Police to ask for a seemingly obvious, even trite, declaration to be made by the court.

The late Mr Khosa’s loved ones asked that the court reaffirm every South African’s right to human dignity, life, not to be tortured or treated in a cruel, inhuman or degrading way – even in a time of crisis; and to reaffirm the state’s duty to respect, protect, promote and fulfil the rights contained in the Bill of Rights.[6] Condemnation and cooperation is what one should have expected of the South African government in response to the security force brutality and the application brought before the court.

Instead what we received (“we” because this is a crime committed against the people of South Africa – in fact, against the state by the state itself – and not only Mr Khosa and his family) was condonation and opposition.

The South African government had the audacity to oppose the relief sought by the applicants.[7] The government and its legal representatives fobbed requests for information and investigations into the SANDF and JMPD members responsible for and complicit in Mr Khosa’s torture and murder.[8] 

The South African government went above and beyond shirking its constitutional duties when the Minister of Defence condoned the actions of the murderers dressed in SANDF uniforms and the JMPD officers who failed in their duty to protect Mr Khosa, by stating that she “condemned conduct that disobey[ed] the lockdown Regulations[9], saying that civilians should not “provoke[10] soldiers and added that:

people should not venture out of their homes to check what soldiers and law enforcement were doing 'or even provoke them… we are not taking this steps because we are a mean government or we are being insensitive. We have taken these decisions because it has become necessary for us to do so. Young people, you have nothing to lose but your life if you go out you do so at your own peril' she said, adding that [going] out will only lead to further infections[11]

What is considered provocation according to the Minister and her soldiers?[12] And if we do provoke, are we to expect death, and understand it to be deserved?[13] Is there no duty on her soldiers to apply minimal force?[14] How can death ever be a proportionate response to provocation? How can assault or torture be either?

The case of the South African people against its government and its enforcement agents continues to mount as the SANDF board of inquiry, which conducted an investigation into the criminal actions of its soldiers (only because it was ordered to do so by the High Court), incredibly absolved its murderous members of any wrong doing.

This disgraceful report found that there was no causal link between the injuries inflicted by the SANDF soldiers and Mr Khosa’s death. The post mortem report produced on Mr Khosa’s death was discredited by the board of inquiry, based on the opinion of an expert who was unlikely to have examined Mr Khosa’s body at all.[15] No witnesses were interviewed by the board. The issue of excessive use of force was not addressed. In addition, the SANDF board had the audacity to comment on murder dockets opened against their brothers in arms as being “unacceptable”.[16]

The SANDF report was filed with the High Court in May 2020. To add insult to injury the Minister of Defence misrepresented the SANDF board’s position when she came under fire before Parliament for this sham.

She claimed that the investigation was incomplete and that there was in fact no report, because she did not consider the report filed with the High Court to be even a preliminary one.[17] Not so. The report was the SANDF board’s final decision. The matter is now being referred to the Military Ombud which, up until the application before the High Court on Mr Khosa’s death, had never been heard of and, most likely, has rarely been utilised.[18]

As for the South African Police Services and its complaints body, the Independent Police Investigative Directorate (“IPID”), an investigation into the JMPD officers complicit in Mr Khosa’s death was initially rejected on the basis of a lack of jurisdiction. IPID changed its view when Mr Khosa’s family brought their application before the High Court. Although IPID may now be investigating, the High Court, in its judgment, noted IPID’s ‘inadequacies’ and its inability to fulfil properly its function.[19] The judgment may have even prompted the President to finally sign into law the long overdue IPID Amendment Bill in June 2020 (which was mentioned in obiter).[20]

SAPS’ ‘executive’-in-chief, the Minister of Police, decided not only to oppose the relief sought by Mr Khosa’s family before the High Court, but is now appealing a part of the judgment which requires that SAPS conduct an internal investigation into incidents of rights abuses by police officers during the lockdown.[21]

Although both the Ministers of Defence and Police are well within their rights to both oppose the application before the High Court and to appeal its judgment, the government seems to have lost a sense of humanity in its approach to this situation and, with it, a sense of shame that should have followed at the thought of pursuing such a course of action.

Lee-Anne Germanos, Legal Researcher, Helen Suzman Foundation. 

[1] Khosa and Others v Minister of Defence and Military Defence and Military Veterans and Others (21512/2020) [2020] ZAGPPHC 147 at para 88.

[2]Supra at para 34.

[3]Supra.

[4]Ibid fn2.

[5]Ibid fn2.

[6]Ibid fn1 at para 146.

[7]Ibid fn1 at para 76.

[8]Ibid fn1 at para 51.

[9]Ibid fn1 at para 89.

[10]Ibid fn1 at paras 36, 44, 46, and 92.

[11]Ibid fn1 at para 44.

[12]Ibid fn1 at para 93.

[13]Ibid fn1 at para 38.

[14]Ibid fn1 at para 64.

[15]Ibid fn1 at para 137.

[16]The Citizen, ‘SANDF probe clears soldiers of killing Collins Khosa saying he was only pushed and clapped’ 27 May 2020 <https://citizen.co.za/news/south-africa/investigation/2292352/sandf-probe-clears-soldiers-of-killing-collins-khosa-saying-he-was-only-pushed-and-clapped/>accessed 10 June 2020.

[17]Polity, ‘Mapisa-Nqakula got it wrong on Collins Khosa inquiry – report is final’, 5 June 2020 <https://www.polity.org.za/article/mapisa-nqakula-got-it-wrong-on-collins-khosa-inquiry-report-is-final-sandf-2020-06-05> accessed 10 June 2020.

[18]Ibid fn1 at para 139.

[19]Ibid fn1 at para 138.

[20] Kimera Chetty, ‘A missed opportunity: President Ramaphosa signs the IPID Amendment Bill into law’, 8 June 2020 < https://hsf.org.za/publications/hsf-briefs/a-missed-opportunity-president-ramaphosa-signs-the-ipid-amendment-bill-into-law> accessed 10 June 2020.

[21]LoyisoSidimba, ‘Police Minister BhekiCele appeals portion of Collins Khosa ruling’, 5 June 2020 <https://www.iol.co.za/news/politics/police-minister-bheki-cele-appeals-portion-of-collins-khosa-ruling-48999920>accessed 10 June 2020.