Chumani Maxwele's rights were violated - SAHRC

Commission says Minister of Police refused to cooperate with inquiry


The SA Human Rights Commission has found that members of the Presidential Special Protection Unit have violated the rights of Mr Chumani Maxwele of Cape Town.

The Commission's finding follows a complaint that was lodged by the FW de Klerk Foundation's Centre for Constitutional Rights which was represented by its Director, Adv Nicola de Havilland, on behalf of Mr Maxwele.

On the 10th of February 2010, members of the unit arrested and detained Mr Maxwele for allegedly gesturing with his middle finger at a convoy of police vehicles which was reportedly transporting President Jacob Zuma. During this incident Mr Maxwele is also alleged to have resisted arrest.

Subsequent to this, the Foundation lodged a complaint with the Commission alleging that members of the unit violated Mr Maxwele's human rights as enshrined in the Constitution.

After conducting an investigation into this matter the Commission found that indeed the following rights were violated namely: Human Dignity (Section 10); Freedom and Security of the Person (Section 12); Privacy (Section 14); Freedom of Expression and peaceful/unarmed demonstration (Sections 16 & 17); Political Choice (Section 19) and the Rights of Detained Persons (Section 35).

The Minister of Police, who is a respondent in this matter, has acted in an unreasonable and unacceptable manner by initially failing to cooperate with it and respond timeously and substantively, to its request for information. As a result, the Commission proceeded to issue this report without substantive input from the Minister.

The Commission has also found that the Minister of Police should be held vicariously liable for the acts of members and employees of the South African Police Service who are found to have been acting within the course and scope of employment.

The Commission therefore recommends that the Minister, on behalf of all the members/employees who were involved in this incident, should make a full written apology to Mr Maxwele for their unlawful and unconstitutional behaviour. This apology should be submitted to the Commission within 30 days of the Minister's receipt of the Commission's report.

Furthermore, the Minister should also provide a report to the Commission within three (3) months of the date of his receipt of the report indicating its plan, with specific timeframes, towards implementing the recommended remedies, namely: that the Minister and members of the Presidential Special Protection Unit acknowledge within the said three (3) months that they accept the supremacy of the Constitution and the rule of  law in accordance with Section 1(c),  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.

In addition, the Commission has also recommended that Minister should indicate the steps he will take in terms of Section 199(5) of the Constitution to ensure that the South African Police Service acts, teaches and requires its members and specifically members of the unit who are found to have been involved in this matter, acts in accordance with the Constitution and the law.

Statement issued by Vincent Moaga, SAHRC, July 7 2011

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