COMMENT

State of brutality: A constitutional crisis II

Lee-Anne Germanos writes on law enforcement and the social contract in SA

25 June 2020

THE SOCIAL CONTRACT

We are living in unprecedented times; in a time where we fear for our lives and our livelihoods – both of which have been entrusted to the South African government. The South African people need to know that the laws enacted unite with the will of the nation[1] and that the government promotes this will (through its actions and not just its words) for the benefit of the nation.[2] In return the government can justifiably expect citizens to co-operate for the common good.[3] This is the social contract.

However, what we are currently faced with is state brutality[4] (which is brutality of the worst kind) and a power drunk executive which has totally detached from its people and the realities on the ground. It is detached to the extent that it does not even realise the deterioration of the legitimacy of its lockdown objectives and lockdown regulations among the South African people (who once supported it). Neither does the executive recognise the importance of the buy-in of its citizenry and that without such buy-in it would be unable to contain either the virus or its citizens. As Judge Fabricius put it, “a wasteland and social unrest awaits us all.”[5] The judge further found that there is a:

complete lack of trust...[between] the Government as an institution on the one hand and society on the other hand, which, I need to repeat, are not objects, or subjects of some higher authority be it the President or the executive or the nebulous National Command Council. They are holders of rights...”[6]

During this national state of disaster (which title sounds ominous enough in itself) the executive has published the most prescriptive regulations – to the extent that they determined which items of clothing may be bought and sold. The executive is currently still attempting to ban the sale of products like tobacco by framing it as producing a COVID-19 specific health risk and thereby circumventing a burdensome parliamentary legislative process required to properly ban its sale.[7] Judge Davis recently summed up the executive’s authoritarian-like behaviour during this period when stating that:

The starting point was not “how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” But rather “we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as the people of South Africa, may exercise”.[8]

The South African security forces take their cues from their leadership, which is why SANDF Chief of Staff, Lieutenant General Yam, arrogantly believed that he was not accountable to Parliament when questioned on SANDF’s brutal murder of Mr Khosa.[9] The government and its enforcement agents drink from the same cup.

Once again, South Africa’s judiciary has had to remind government that we live in a constitutional democracy where the executive is answerable to the South African people. For how long will this be the case, as the erosion of South African society’s moral fibre has already begun to filter through from the top to the man on the street? It is from the man on the street that the judiciary of tomorrow is appointed.

POOR LIVES DON’T MATTER

Globally, there has been a need for a call for black lives to matter. In South Africa there is a need for a call for poor lives to matter – the overwhelming majority of which are black. Poor lives in South Africa are often viewed as worthless, or worth less, and disposable. Yet there has been no call for their lives to matter. Is this because the poor are so powerless – so marginalised – that we cannot hear their voices? Or is it because they have stopped calling, because no one has heard their cry or has taken up their call?

In the murkiness of this national state of disaster, and because of the violence that South Africans are accustomed to living with, it seems to be forgotten by the South African state and South African citizens that a life was senselessly taken, by the state itself, on 10 April 2020. There is a woman in South Africa that grieves the loss of her life-partner.

There are children that grieve the loss of a father that they will never see grow old. There is a family that will struggle financially at the loss of their breadwinner, and psychologically, at having witnessed the humiliation and brutalisation of their loved one by murderers dressed in SANDF uniform. We must not forget that security forces are empowered by law to carry weapons in our streets and to gain unimpeded access into our homes. Collins Khosa, and many others like him, are dead because their lives did not matter to these forces.

Petrus Miggels is another life that did not matter. Miggels was tortured and murdered in Ravensmead by Western Cape police on the first day of lockdown (27 March 2020) for walking down the street in possession of alcohol.[10] Another poor man’s life declared valueless. Another investigation absolving security forces of any wrong doing because a pathology report showed no causal link between the injuries inflicted by the police and Miggels’ death.

Here it should be noted that there is a global trend in absolving security forces of brutality on the basis of pathology reports failing to draw a causal link between the injuries sustained by the victim, as a result of the brutality, and the victim’s resultant death. Is it not obvious that a pathology report, considered in isolation from the circumstances of death, will not necessarily draw that link? Witness interviews provide context as to why someone may have died of a heart attack (otherwise considered a “natural cause” of death by a pathology report) after being tortured and brutalised an hour prior to such a heart attack. This was the case with Miggels.

SHADOWS OF THE PAST

South Africa has a rising number of police torture cases without there even being a proper reporting mechanism for torture (as required by statute and South Africa’s international obligations).[11] The number of cases reported to IPID in 2018/19 increased by 24% from the previous financial year. The number of torture cases reported to IPID was low (270) compared to how many were likely to be unreported. Shockingly, not a single case out of the 270 reported resulted in a criminal conviction.[12] Could the policing techniques of South Africa’s Apartheid past have carried through into our democracy uncorrected, without adequate reporting mechanisms to bring them to light, and adequate training to eradicate them?

It is concerning that these senseless murders and their condonation by the South African government does not disturb each and every individual, and that they have not generated the same fire to protest outside of the Departments of Defence and Police, as other incidents around the world have fuelled protests before the US Embassies. If we are not outraged that lives have been taken by the very people who are meant to protect them; if we are not disturbed to our core by the humiliating, brutal and senseless death of another; if we are not pained by the fact that some lives are considered more valuable than others, then we should all at least be fearful of the fact that a South African citizen was humiliated, brutalised and murdered by South African security forces. We should shudder at the inaction of our leaders or, more specifically, at their condonation of such heinous crimes committed by their agents, and question our own subdued voices.

This is a slippery slope, as these actions and reactions threaten the constitutional democracy of the very people for whom it was fought – the disempowered. These are warning reminders of darker times past. In the words of the current Minister of Defence: “[f]or now we are a constitutional democracy.[13] The President’s silence is ominous.

Might we be facing a moral crisis as a people, and a constitutional crisis as a country, by virtue of our apathy?

By Lee-Anne Germanos, Legal Researcher, HSF, 25 June 2020

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

[2]Ibid fn1 at para 7.

[3]Supra.

[4]It is clear from section 12(1)(c),(d) and (e) of the Constitution, interpreted in the light of international law, especially the Torture Convention and the Torture Act that State brutality is juridically regarded as especially egregious form of harm. State brutality, when it takes the form torture, cruel or inhuman treatment or punishment is legally distinctive for two definitional reasons, as it was explained in the Founding Affidavit:

1. It is committed by 'public official', when people clothed with public authority, in whom the public are entitled and expected to repose their trust.

See F v Minister of Safety and Security 2012 (1) SA 536 CC at par 78"

'Once we accept that our Constitution assures the public that it is safe to repose the trust in the police, we must also accept that constitutional aspiration is undermined when the trust is breached.

2. It is committed for 'purposes' ulterior to legitimate law enforcement, such as to 'punish' people, who have not been afforded a fair trial before a competent and independent tribunal or indeed any trial at all.

Khosa and Others v Minister of Defence and Military Defence and Military Veterans and Others (21512/2020) [2020] ZAGPPHC 147 at para 55.

[5]Ibid fn1 at para 7.

[6] Ibid fn1 at para 68.

[7] Karyn Maughan, Keep tobacco ban even if court finds it unlawful – says Dlamini-Zuma, 6 June 2020 <https://www.businesslive.co.za/bd/national/2020-06-04-tkeep-tobacco-ban-even-if-court-finds-it-unlawful-says-dlamini-zuma/>accessed 8 June 2020.

[8]De Beer and Others v Minister of Cooperative Governance and Traditional Affairs (21542/2020) [2020] ZAGPPHC 184 at para 7.17.

[9]Ibid fn1 at para 47.

[10]Daneel Knoetze, COVID-19 police watchdog investigation of first lockdown reveals deep flaws , 28 April 2020 <https://viewfinder.org.za/covid-19-police-watchdog-investigation-of-first-lockdown-death-reveals-deep-flaws/>accessed 9 June 2020.

[11]Ibid fn1 at para 137.

[12] Parliamentary Research Unit, Implications of the Khosa Judgment: Torture, 21 May 2020 <file:///H:/My%20Drive/Public/Lee-Anne/COVID-19/200522Research_Unit-_Khosa_Judgement_Focus_on_Torture_MAY_2020%20-%20IPID.pdf> accessed 9 June 2020

[13]Ibid fn1 at para 37.