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    Court orders SANDF to suspend members present when Collins Khosa was beaten to death, pending an investigation.

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    Court orders SANDF to suspend members present when Collins Khosa was beaten to death, pending an investigation.

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    © All Rights Reserved
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    17K views79 pages

    Khosa Judgment May 15 2020

    Uploaded by

    Mail and Guardian
    Court orders SANDF to suspend members present when Collins Khosa was beaten to death, pending an investigation.

    Copyright:

    © All Rights Reserved
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    a IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NUMBER: 21512/2020 DELETE WCHEVER 5 NOT APPLICABLE a) porta & Srna Pomeas woces FEO 1s] ¢f2ea0 IN THE MATTER BETWEEN: KHOSA, MPHEPHU FIRST RESPONDENT MONTHSHA, NOMSA SECOND APPLICANT MUVHANGO, THABISO THIRD APPLICANT AND MINISTER OF DEFENCE AND MILITARY VETERANS FIRST RESPONDENT ‘SECRETARY FOR DEFENCE SECOND RESPONDENT CHIEF OF THE SOUTH AFRICAN NATIONAL DEFENCE FORCE THIRD RESPONDENT MINISTER OF POLICE FOURTH RESPONDENT NATIONAL CONIMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE FIFTH RESPONDENT ACTING CHIEF OF THE JOHANNESBURG ‘METROPOLITAN POLICE DEPARTMENT SIKTH RESPONDENT CHIEF OF THE EKURHULENI METROPOLITAN POLICE DEPARTMENT ‘SEVENTH RESPONDENT OFFICE OF THE MILITARY OMBUD EIGHTH RESPONDENT INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE NINTH RESPONDENT MINISTER OF COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS TENTH RESPONDENT JUDGMENT FABRICIUS J [1] thas tong been debated by renowned philosophers of what the terms would be of what they called @ ‘social contract’ between the populace and a legitimate government. Just one example: Kant was ofthe view that such @ contract implied an idea of reason which obiged every legislator to rame its awe in such a way that they could have been produced by the united wil of a whole nation end obiigate each citizen as i he had consented, Kant concluded that this imaginary act of callective consent‘ the test of the righfuness of evely publ law Aristote, Bentham, Mil and Rawis had diferent views, and these ae collected and discussed in JUSTICE, WHAT'S THE RIGHT THING TO DO?’ by Mictael J Sandel publehed by Farrar, Straus, and Giroux, New Yorkin 2009. What social contract exists now between the South African population and the governments fortunately defined and fslabished by the Constitution of the Republic of South Aca which came ino force in 1984. Section 1 of Chapter 1, the Founding Provisions, tellus that the Republic is one founded on values of human dignity, the chievement of equality Page 20f79 and the advancement of human rights and freedoms, amongst others. In particular it also provides forte supremacy of the Constituton and the rule of law. Chapter 2 of this Corton fs the one that in my opinion is always regarded by the pubic as being one of the most ‘advanced’ constitutional documents in the world. | do not think that they have in mind all ofthe other chapters of the Constitution when this Praise is uttered. The Bill of Rights is the comerstone of democacy in tis county ‘nd it enshrines the rights of all people and affims its democrat values of human Algnity, equality ard freedom which must be respected, protecied, promoted and {utile by the state and all organs of state, See sections 7 and 8 of Chapter 2 ofthe Constitution [2] The urgent application before me is of an unusual nature in as much as on a {rt reading it only seeks me to restate the law. The aw inthis context would be the ‘elevant provisions of the said Constitution, the Disaster Management Act 57 of 2002, Intemational Documents relevant in tho context of section 39(1(0) of the Constitution, such 26 the Universal Declaration of Human Rights of 1948, the International Convent on Civil and Political Rights of 1876 (a trealy which South ‘Atica has raliied and whichis thus part of South African law), the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment ©F Punishment of 1984 (‘Torture Convention’) which was also ratified and ‘domesticated through the Prevention and Combating of Torture of Persons Act 19 of 2013 (Torture Act). And further, the domestic law, namely the South Aican Police ‘Act 68 of 1995, the Defence Act 42 of 2002, the Criminal Procedure Act 51 of 1977 ‘and Mitary Ombud Act 4 of 2012 as also the Independent Potce Investigative Directorate Act 1 of 2914 Page 3019 @ {3] The urgext application before me consists of some 1300 pages which wore delivered to me on the afternoon of 2 May 2020. The heads of argument of the Parties consisting of some 280 pages were delivered to me during the late afternoon ‘of Monday, the 4” of May 2020, The hearing was set down for Tuesday the SM May 2020 and continued on the 6" May 2020. Its evident that this process is not ihe Usual one as envisaged by the Rules of Court relating to urgency and the particular Practice Manual ofthis division pertaining to the same topic. | decided however to condone all non-compliance because ofthe nature of the application and the relet Sought, which in my view all had to be considered carefully and properly and lugently in the context of the state of affairs that now exists under the Disaster Management Act 87 of 2002, as well as the state of the South Affican economy which existed immediately, but also for a faity long period of time, before the ‘elevant decisions in terms of the Disaster Management Act were taken by the President, which provided for a ‘lock-down’ in terms of Regulations that were Published from time 10 ume as well as amended on occasions. In law context is everything and as will become apparent when | deal with the particular relief that 2s ultimately sought by the applicants, | have kept the context in mind as i forms fn important part of the applicants’ case as well as that of certain of the respondents [4] During the last year or so international rating agencies classified the South ‘Afican investment rating as being of “junk" status which of course had ils own Consequence on the nancial markets, on the value of the Rand, and the abiity of the government to borrow money on international markets. Added to that was the Page ofr @ fact that there is vast unemployment in South Afic, substantial inequality between various groups of our population, ack of base facies such as electricity and water, the supply of electrty, and very litle foreign investment which cout have ‘llevated the situation. Coupled to that are the problems that have been grabbled with for years, "9 to Slate Ovmned Enterprises which by any defniton were all insolvent, and unable to function either properly or at all rom time to timo. Allo this Obviously had an effect on the mood of the nation, if 1 could call it thet, and especialy the youth who were faced with limited employment epportunties and the lack of any hope to obtain a proper education, These are unfortunately the realities ‘and they play a role in this application if itis read property as a whole {51 | must however add that this case is not concemed with the question whether or net any ofthe Regulations promukated are unlawful and thus invalid because they are not rationally related to ther purpose, i. to contain the spread of the coronavirus. Rationay is part of the rule of law requirement. It is vewed ‘objectively and itis iretevant that a decision was made mistakenly orn good fh See Pharmaceutical Manufacturers Assocation of SA and Another: In re Ex Parte ‘President ofthe Republic of South Atica end Others 2000 (2) $A 674 (CC) at par 20, 18] A seemingly rational Regulation seems to be that one can purchase only Certain items at a super-market, whilst not others, It makes no sense and it affects econemic progress that must go hand-in-hand with the concerted effect by Including the citizenry, to contain the Virus. It should not be the choice of either the Public health or the state of the economy, It is a necessity to safeguard both The Page Saf 74 @ virus may well be contained (but not defeated until a vaccine is found) but what is the point ifthe result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security ofthe 2et80n and overall, the maintenance ofthe rule of law. The ens i my view Is there is no point [7] However, | need to say something in the context of the present state of affairs and the application as a whole. The populace must be able to trust the ‘government to abide by the rule of law and to make rational Regulations to promote their stated purpose. These should intrude upon the rights of people (and businesses) either not at all or if they do, of justifiably must, the least restrictive ‘measures, must be sought, applied and communicated to the public. In retum the Goverment can justifiably expect the citizens to co-operate for the common goal {ake responsibilty to ensure their own safety and that of others. The social contract that | have briefly referred to wil then take its rightful constitutional place for the benefit ofthe nation and the State. If there is no such community of interest, the whole exercise and purpose of a lock-down will fal and a westeland and social Unrest avaits Us all This citizenry must also take responsiblity te achieve the stated {goal even vihen they are exercising ther rightful freedom of choice {8} Returning then fom the duty of the population to the duty of the government. | must point out, as I will again hereunder, thatthe founding values of ‘our Consttution include a democratic government based on the principles of ‘accountability, responsiveness and openness. The public administration, which includes al organs of State, must be accountable and transparency must be Page 6 079 fostered by providing the public with timely, accessible, accountable and accurate Information ‘See 8. 195(1)(9) of the Constitution, and Alay Consolidated Investment Holdings (Ply) Ltd v Chief Excoutive Officer South Afrisan Social Seounty Agancy and Othore 2014 (9) SA 173 (CC) at par [50 [8] Thus, ifthe Government is held to these Constitutional obligations and the citizens trust is restored, and lawful rational Regulations are obeyed, the expected flood of tigation wil retreat and the spread of the vs will be contained until the ‘appropriate vaccine is found. The fact of the matter is thus simply the following ‘Communality of faiue. ‘THE PARTIES BEFORE COURT: [10] The Mister of Defence and Mitry Veterans (Defence Minster’) isthe Cabinet Minster responsible for the South Afican National Defence Force (SANDF) in terms of secon 201(1) of the Constitution. The secend respondent the Secretary for Defence apocinedin terms of section 7 of the Delence Act 42 of 2002 (Defence Ae’) and is responsible inter alia for advising the Defence Minister on defence polley mates and for monitoring compliance wih the polcies and rections issued by the chief ofthe SANOF by the Defence Minster. The thd respondent is te Git of the SANOF appointed in terms of section 13 of the Defence Ae, and is responsible amongst eter for formulating and issuing miliary policies and doctrines, traning the SANDF, and to act in accordance with Page? 078 e Constitution and the law, including customary international law and international ‘agreements binding on the Republic [14] In terms of section 200 of the Constitution, the Defence force must be stuctured and managed as a disciplined miltary force. Its primary objective is 10 defend and protect the Republic, its teitorial integrity and is people in accordance with the Constitution and the principles of international law regulating the use of force (See sections 200(1) and 200(2) respectively). The fouth respondent isthe Minister of Police, who is the Cabinet Member responsible forthe Police Services in terms of section 206 of the Consitution. The fith respondent i the National Commissioner ofthe South ican Police Services (‘SAPS Commissioner) vito is ‘pointed in terms of secton 207 of the Constitution to exercise contol over and ‘manage the Police Servic. 192] The sith respondent is the Chief of the Johannesburg Metopoitan Police Department which is @ municipality police service established in terms of section 4A ofthe South African Police Service Act 68 of 1996, for the cty of Johannesburg Metropolitan Municipality [13] The seventh respondent is the chief of the Ekurhuleni Metiopoltan Police Department which is @ municipal police service established in terms of section 648, forthe Ekurhuleni Metropolitan Municipality [14] The eighth respondent is the office of the Miltary Ombud which is an office ‘established by the Miltary Ombud Act 4 of 2012 to investigate complaints by Page 8 of members of the SANDF regarding their working conditions and complaints by members of the public about the ‘official conduct’ of the SANDF. No relief was Sought against the Ombud including a costs order. The application in the context of this tespondent was said to be inlended to support the purpose of the office and ensure @ proper investigation which wil be credible and independent. il return to the role ofthe Ombud later inthis judgment. {15] The ninth respondent is an Independent Police investigative Directorate ('1PID), PID 1 an investigative body established by the Independent Polce Investigative Directorate Act 1 of 2011 mandated to investigate police misconduct ‘and offences. No reef was sought against his respondent but applicants sought to {ensure that ary investigation done would be eredibie and independent, [16] The tenth respondent is the Minister of Cooperative Governance and ‘Traditional Affas, the cabinet member responsible for the Disaster Management ‘Act, No relief is sought against this Minister but she was cited for her potential 'nterest in the matter as the Minister who dectared the stale of disaster. ‘THE HEARING: (171 1 em glad to say that the hearing was conducted in the most amiable ‘manner and every counsel conducted himseliherself with the greatest degree of Professionalism and dignity. | am proud to say tht the South African public as well 8 the respondents were well served by all the counsel who appeared before me ‘The arguments were well prepared and to the point. Obviously 1 as Judge woe obiged to put certain problems to counsel that | had withthe relief sought, and Page 9079 @ ‘these wore promptly and properly addressed to such an extent that towards the end of the heating | was handed a draft order by the applicants which in a numiver of material respects, asked for lesser relief than that sought inthe original Notice of Motion, and acconingly the last hours of argument concemed themselves with the relief sought in that particular order. [18] The Socio-Economic Rights Insitute was admitted as an amicus curiae anc ‘supplied me with written heads of argument wiich | undertook to consider for purposes of my judgment. No oral argument was necessary, and was thus not olvered. The Fair and Equable Society sought leave to intervene as an applicant, ‘and after having listened to argument reating to urgency ofthe application, and the nature of the interest that this applicant either had or did not have, | decided that i had no substantial interest inthe application brought by the present applicants, ang that the matter was not urgent in any event, because this party had waited about fone month before it launched its application obviously in the hope that it could ride fon the back of the present applicants. There was no basis for this hope and what was even more disturbing was that the particular members of the public who were ‘aid to have suffered at the hands of the SAPS and SANDF. had all allegedly been cilther assaulted, shot and even murdered by the Johannesburg Metropolitan Police Department during the first ten days or so of April 2020. Despite that, it was ‘common cause that no complaint has as yet been laid by these persons or by the ‘Society. In the ight of those facts seen cumulatively, | struck the matter off the rot but made no cost order. This Society has other remedies al its disposal, and obviously the fist would be to register a complaint with the relevant authorities, re that the compkints are properly investigated, and then if necessary to age 0 of 73 ‘approach the cout in its own right for an order thal would be appropriate having regard tothe facts then at its disposal [13] As | have mentioned in my introductory paragraphs, an important factor ‘arose during argument and that is also contained in ll the affidavits when read together, is that | and counsel were at idem that at present there is @ large measure of distrust between the South Afican populace and the government. This distust Felates primarily tothe functions of the respondents and how they treat the persons throughout South Aftca in the context of the Reguiations made under the Disaster Management Act, The fear ofthe population relates at present not only to the fear of contracting the virus, but also tothe fear of what wl happen after the national lock: down ie called off. It fs plainly clear (counsel in court admited that a Judge is allowed to read newspapers to keep himself or herself informed of curtent events) thatthe present lock-down measures will sult in massive unemployment with alts consequences ‘relating to the inabilly to provide each particular family with sustenance and an income, itis clear that thousands of small businesses have been versely affected and many of them wil probably never be re-estabished. Unemployment will become worse and many fails, in fact mest key ition, will think about the future with @ great deal of insecurity and despair. Added to that Is that both the Commissioner of South African Revenue Services and the Minster of Finance have told the public about the billons of Rand that are lost every month, Unrecoverable in my view, asa result ofthe lock-down Regulations, and the fact that thousands of businesses have groune toa hat. Ths has ofcourse a snowball effect in as much a8 the State is deprived of revenue that it would receive by way of various forms of taxes. It is no exaggeration to say that the national psyche has thus Page 11 0179 @ been negatively affected by the lockdown Regulations. How this wil ever be ‘ected nobody knows, and the public is not tol, It was therefore my view, and counsel accepled it a8 wel thatthe application should be seen inthe light ofthe context that I have brie refered fo. | must emphasise that all counsel were in ‘agreement that a lockdown was necessary, and | must add that | am ofthe same ‘ew less there be any doubt about that. The publi is however ented tobe treated with dignty and respect whether rich or poor. Section 7 of the Bil of Rights makes this abundantly clear and there is no doubt about that. They are also entitled to hhuman dignity and ths right needs to be respected and protected as again made ‘abundantly clear by section 10 ofthe Bl of Rights. Similary the public is entitled to the right to ite by way of section 11, and everyone has the right to freedom and security of the person according to the provision of section 12 which includes the "ght to be fre from all forms of violence from ether public or private sources, nat o be tortured in any way, and not to be tested or punished in a cruel, inhuman or eqracing way. Section 12(2) provides that everyone has the right to body and psychological integrty which includes the right to security in and contol over their body. Section 21 deals to the right to a basic education and section 31 enites all members of the community to enjoy their cuture, practice their religion, use their language and to form, join and maintain relgious and linguistic associations in other organs of civil society. Section 35 deals withthe rights of an arested, detained and ‘cused person. An important section in the present context is section 36, which deals with iritaton of rights and states thatthe rights in the Bil of Rights may only be lied in terms of a law of general application tothe extent thatthe limitation is Feasonable and justifable in an open and democratic society based on human ignity, equality and freedom, taking into account a number of factors, the most Page 120f 73 important of whic for present purposes is the question whether or not the State has introduced less restrictive means to achieve the purpose of any partcuiar Regulation made in terms of the management ofthe Disaster ket (Section 26(1)¢). Some ofthese rights, including the right to equality, human dignity. fe, freedom of security ofthe person and arrested and detained and accused persons, may not be ‘derogated from even ina state of emergency. {20} All ofthese righ's may be enforced by anyone acting in their own interest or ‘acting on behalf of another who cannot act in their own name, or acting as 2 ‘member of, or inthe inerest of group oF class of persons or acting in the public interest by approaching a competent court alleging that aright in the Bill of Rights has been infinged or threatened, and the court may then grant appropriate relief including @ declaration of rights. Declaratory orders are discretionary and flexible and al relevant circumstances must be considered. tis a flexible remedy which can assist in laying legal and constitutional obligations in @ manner which promotes the protection and enforcement of tha Constitution and its values ‘See: Rail Commuters Action Group v Transnet Ltd Va Metrorail 2005 (2) SA 359 (CC) at paragraph 107. [21] The court is given certain powers in constiutional matters and when deciding such, section 172 provides that @ court must declare any law or conduct ‘that inconsistent witn the Constitution to be invalid to the extent of its inconsistency and make any order that is just and equitable. | will deal with this ‘section again hereunder. Page 13 0f78 @ RELIEF SOUGHT: {22] As | have sald, the relief sought by the applicants was informally amended by the handing up of a draft order during the eource of the proceedings on the second day of the hearing. it is my view that the relief sought needs to be considered in terms of the relevant legislation, the Constitution and various other documents and directives that pertain tothe functions of the various respondents, | Wil later inthis judgmen: refer to some of those. The relief sought must also be seen in the context ofthe situation that South ica finds ite in at the moment as | have said. There was no argument pertaining tothe urgency of this application ang in any ‘event, | would have held that itis extremely urgent. [23] The relief sought was ultimately the following: tn terms of sections 38 and 172(1\(6), read with section 21(1)() ofthe Superior Courts Act, 10 of 2013, it 18 declared thet, “during. and otwithstancing the declaration ofthe Slate of Disaster and the Locksoun Under the Disaster Management Act 57 of 2002, 21 all persons present within the territory of the Republic of South Anca are entitled to (among others) the folowing rights, which are non-derogable even during slates of ‘emergency: 21.1 the right to human ignty (section 10 of the Constitution 2.1.2. the rightto site (section 14 ofthe Consitution) 2.1.3 the ght not to be tortured in any way (section 12(14¢) ofthe Constitution); 2.4.4 the right ot fo be trested ar punished in @ crue, ‘inhuman or degrading way (secten 12{%}(e) of the Constution| 22 under section 199(5) of the Consituien, the South AMtican secunly services, which include the South African Nations! Detence Force ('SANDF.), the South Afrcan Police Service (SAPS?) and any Metropottan Police Department (MPD) ‘must ac and. must instruct their members. fo. act in ‘accordance with the Consituton andthe law, moluderg Page 18 0179, 23 24 25 31 32 33 a {tomy ntemational law and Intemational agreements binding on the Republe & gens of slate, the fist to seventh respondents, the SINCE the SAPS and! any MPD are obliged, under seciee 72 of he Constitution, o respect. protec, promote end halt {te rights in the Bil of Rights, nduaing those onus a abeve Imenibers of the SANDF, the SAPS and any MPO remain ound by section 13(3)b) of he South Attcan Police Sere ‘cl 68 of 1985 read with section 20/9) ef he Dotone ne 421 2002), to use only the minimum force tral & oneness ‘0 perio an offeia dy. ‘members ofthe SANDF, the SAPS ond any UPD, as well as their commanders or supenrs, including each ofthe fet te ‘The list to fourth respondents, within ther respective areas of euthorty, shar witio fe_devs. pending the outcome of escitnay rocsedings, place on precautionary suspension, on ha pan, {i members ofthe SANDF wiho were presen a or adjoceor ns 3885, Mocketsi ‘Street, “Far East Bani, amen -lohannesburg on 10 Apri 2020 within two devs, command all members of the SANOF. SAPS and any MD to achere lo the absolute pronation on torts 2nd uel, inhuman or degrading treatmont ar punahns and f0 apply only the minimum force that is veasonabie ‘enforce the law, within ve days wam all members of the SANDE, the SAPS {td any MPD, a8 well s thir ent chains of command, tne any faluro to report. repress and prevent acts of iota, uel, inhuman or degrading treatment or punishment choy expose them each indivilualy to criminal, ch ante dlscipinary sanctions; sin saten caus lodge affdavis wan ths Court conting ‘thal th sbove hes been cone L's recorded that the sith respondent shah immedisely Commence a process to place the members cf IMO Na, [Hote present ator adjacent to 3885 Movkets) Stool Far ba Bank, Alexandra, Johannesburg’ on 10 Api 2600672, suspension, pending an investigation in’ choose mmiscondvet. The fist and fourth respondents shal, within five days: develop end publish @ code of conduct and operational procedures, regulting the conduct of members af ihe Page 18.0179 42 4 on 82 62 63 ‘SANDF, SAPS and MPDS in giving effect the decleration of the Staie of Disaster. Widely publish the folowing, in newspapers of nationel and provincial crcuteton; elecront platforms ovate. 10 the ‘Government such as WhetsApo, Facebook and Twier, and ational an provincial radio stations: 42.1 guidelines about the circumstances wien the use of Force may be used in sit comptance with section 43 ofthe Criminal Procedure Act Sf of 1977, 422 guidelines sbout the enforcement of the Lockdown Regulations and any other Regulations feeued duriy the State of Disaster 42.3. guidelines about enforcing social dlstencing and the ‘siriction of movement ane other activites, a each of ‘he ailrent Stages of Alen during the State. of Disaster 424° guidetines about when a porsan may be arrested and ‘temstive means of securing eit attendance at 425 information regarding where members of ihe pute ‘may lodge complaints against members of the SANDE ‘the SAPS and other any enforcement agency/ohicer. ‘odge affidavits with this Court canting thatthe above has eon done. The fis to si respondents shall, within five days: establish a freely accessible mechanism for clas lo report allegations of torture or cruel, inhuman or degrading reatmont 2 Punishment, commited by members of the SANDF. the ‘SAPS or any MPD forthe duration of State of Disaster widely publicise sucn mecnanism throughout South Atice via fetevision, resio and digital mecia in al eleven offal enguages. The fist and forth respondents shel: censure that the intemal investigations nto the incwents hse below are completed and reports are funished to this Cour, (on or before & May 2020: 64.1. the veatment of Me Colins Knosa; 6.1.2 the treatment of any other person whose rights may Ihave been infringed during the State of Disasler ot Ie hhands of members of the SANDF, the SAPS andior any MPD. lmmectatey lodge each such repor with this Court funish such reports tothe applicants’ legel representatives, The eighth and ninth respondents are ordered to fie ther report of their investigations to this Court by 6 hay 2020 The fist to fith eespandents shal oily and severally, bear the oss this application, inclucing the costs of two counsel Page 16.0179, [24] nthe introduction to applicants’ heads of argument the following appears and | quote: 1. This case cancers torture and sbrufaty commited against civtans ty ‘members of the South Afican socurly forces, inthe course of & nations {ont operstion to enforce unprecedented resiretions on ehilan movemon ard! ‘actvy, imposed by Government to combat the spread of the COVID-S Coronavirus pandemic. 2 These restrictions (colectvaly called ‘the Lockdown’) have been m place since 26 Merch 2020 and wil remain in psc, to varying degrees, indohntey, 3. The Lockdown is being enforced by members of the South Aican Police Service "SAPS: and Municipal Poice Departments (‘MPDs'). They are being ‘assisted by 76,000 members of the Soutn Afican National Defence Fores ('SANDF), in @ joint operation (caled “Operation Notlelas meaning “ock) \which commenced en 26 March 2020 and is due to conclude on 26 June 2020, but may be extended, 4. There is evidence that several civllans have been brutalised and tortured ~ some to death ~ by membars of the SANDF, the SAPS and MPDs (‘secunty forces) enforcing the Lockdown These aro inslences of “Lockdown brutality 5. This appiation is brought by the famiy of ane man = Mr Cotins Khiosa ~ who Yas brtalised, tortured and murdered by members ofthe secunly forces & hs ‘home, on 10 Apri 2020. Two of he applicants were themsalves oso brtalised ‘2nd tortured onthe same occasion, ©. This caso isnot about the justification forthe Lockdown or its exten. is about combating Lockdown brutaly 7. Specifically, itis about whether the officials in command ofthe security forces ~ {ne frst to seventh respondents (the “commanding officers!) ~ hove dove what the Constitution requires them to do in order 10 combat Lockdown brut. '& The commanding officers say they have, The applicants sey they have nol, ane 8k his Cour to order hem fo do whal the Constitution commands 8. Various rete is sought against tne first to seventh respondents. They ok ‘pose this application, an grounds thet broadly overlap. For convenience, Ine ‘isto seventh respondents shall be refered 0s “the respondents 10.10 rei is sought against the eighth fo leh respondents; they are cited oniy for the interest they may have in the matior They do not oppose the ‘pplication, but the igh and ninth respondents have. tied explanatory afidavis, Page 7 of 79, @ {25] The above mentioned rights have been curtailed substantially and have negatively affected just about every business, every private household and every Person whist itis a tite law that when righis are restricted or derogated from It should happen within the confines of section 36(1)(e) which provides, fora test restrictive means enquiy to achieve the slated purpose. The Disaster Managemert ‘Act also creates offences and penalies, and itis apparent from newspaper reports that almost 20 000 persons on day 42 of the Yock-down’ have been made criminals, ‘The consequences thereof have perhaps not been sensibly considered, in as much 28 a criminal convition impedes or even prohibits further employment opportunites Perhaps an administrative fine that could be paid Soldarty Fund would have been a better option. However these remarks are obiter and do not form part of the ‘applicants’ cause of action and therefore | will say nothing further. | do think however that 2 Courts’ comments especially during extraordinary times can and ‘should reflect the general views ofthe public. | similarly again emphasise that the ‘applicans' seek no dedaraton that any particular Statute or Regulation should be struck down as being invalid on grounds of irationalty. THE LOCK-Downy: [26] On 31 December 2019 a novel pneumenia of unknown cause was detected in Wuhan, China. This virus known 28 COVID-19 (coronavirus) is a highly ‘communicable and infectious disease and was so declared to be by the Public Health Emergency of Intemational Concem on 30 Janvary 2020 by the Works Health Organisation, Pope AB ot 19 e@ R7] On 15 March 2020 the President of the Republic of South Africa, MC Ramaphosa, declared a state of national disaster and announced measures to combat the spread of this virus, 28] On 25 March 2020 the Minister of Cooperative Government and Traditional Affairs (the tenth respondent), acting in terms of 63 ofthe Disaster Management Act 57 of 2002, issued Regulations implementing measures where movement would be severally resticted thrcuah a “lock-down’ Clock-dawn regulations). This was 26 2 Fest of justified concems about the growing spread of COVID-19 infections in South Aca since the frst notification ofa postive case. As I've said this lock-down was supported by all counsel and by myself, and we therefore need not concern ourselves with the decision to do so any further, except in respect of one aspect hich | will retum to, [28] The President then announced thatthe SANDF would be deployed to assist ‘SAPS to enforce the lockdown Regulations. On 25 March 2020 the President Tsoued President's Minds 78 ef 2020 which read as tolows: ° By virtue by the Powers vested in me in terms of s201(2\@) ofthe Constitution of the Republic of South Afica, 1996, read with 6181) of the Defence Act (Act 42 of 2002), | hereby ‘uthorise the employment of 2820 (15 battalions), support elements and equipment of the SANDF enrolled in terms of $552 and 53 ofthe said Defence At, for service assistance of other State Departments and bordering contol The period of -deployment will be from 26 March 2020 untl 26 June 2020’ The President signed this minute and it was co-signed by the appropriate minister ofthe Cabinet Page 19.179, (80) ‘Then also on 25 March 2020 the President wrote to the Chairperson on the ‘Joint Standing Committee on Defence Parliament of the Republic of South Africa as follows: 31] 132) EMPLOYMENT OF MEMBERS OF THE SOUTH AFRICAN NATIONAL DEFENCE FORCE FOR SERVICE IN CO-OPERATION. WITH THE SOUT AFRICAN POLICE SERVICE TO MAINTAIN LAW AND ORDER, SUPPORT TO OTHER STATE DEPARTMENTS AND BORDERLINE CONTROL. On 29 March 2020 1 announced that the National Coronavirus Command Counc ‘nas deciied to enforce a nstiona-wide Tock-down for 21 dys wilt efeck manght Thursday 26 Merch 2020. The decison by the National Coronavrus Conner! Counc wes taken as e measure to save South Aticans liom infection dle sone, the ives of thousands of people To ensure thet the measures outlined in my announcement are implemented, | hhave in terms of s20%(2)(a) of the Consttuian ofthe Republic of South ee 1996 ‘and 618(1) of the Defence Act 2002 (Act ¢2 of 2002) authorised the employment of 2820 members ofthe South Afrcan National Defence Force (SAND) for service fy co-operation with the South Alcan Police Service in order to maintain low and ‘erder, suppor other State Departments and fo control our borderline to combat the soraad of Covie-19. Members of the SANDF wit be employed in al 9 provinces. The employment is gulhoried in accordance with section 201(2}s) of the Constitution of ihe Ropu South Ati, 1996 and s18(1) of the Defence Ac! 2002 The employment wil be over a period trom 26 March 2020 o 26 June 2020, The expenditure expected to be incurred for his employment is R641 200 290 | wil communicate this roport to members of the Notional Assembly and the ‘National Council of Provinces end which to request that you tring the contents ‘erect tothe attention of he Joint Standing Commitee on Defence © ‘This communication was signed by the President. AA similar such letter was again writen hy the President on 21 April 2020 Where he stated that the outbreak of the Covid-19 continued to increase with Feporied cases across the Republic of South Afica. As a result he decided in terms of the same sections referred to in the previous letter to employ an additional 73180 Page 20 0f7 ‘members of the SANDF consisting of the regular force, reserve force and auxiliary force, He also gave the expected expenditure which was round R 4,590,383,040.00, [83] Regulations were then issued from time to time in terms of $27(2) of the Disaster Management Act by the tenth respondent designated under section 2 of the Disaster Management Act ater consultation with relevant cabinet members. [24] The second applicant authorised to make the founding affidavit on behalf of the other applicants described the torture and murder of Mr. Khosa as follows: "The Torture and Murder of Mr Collins Khosa 45. a7 48 a, 50, 5 uring the lock-down on Good Friday, 10 Apni 2020, at about 17h00. 1 was at home with tr Khosa, Mr Muvnango and is wile. Mrs Yvonny Muvnange linen two unformed female members of the SANOF ered our hone carrying siamboks (whips), Before entering the house, the said members met with Mr Muvinango just outside the house but inside the yard. The two members of the SANOF ‘asked him about an unatended camping chair and hall-fl cup of alcoho! in the yard. Before he could answer, they ordered him inside the house and ‘announced that they would confzcate any alcohol nthe house, When the tivo SANDF members came inside, | ad just finished dishing up «nner for Mr Khosa who was by then busy eating, Mr Muvhango's pregnant ve was also inside the house with her two chiéren The tuo SANDF menbers accused Mr Khiosa and Mr Muvhango of vitaing the Lockdown Reguiations. They inquired about the camping chav and halk, {ul cup of alcoho inthe yard, Mr Kosa informed thom that even f he had ‘been drinking, that would not be an offence as it was inside his yard The SSANDF members dif not lake kincly fo Me Khosa's response and they ware ‘agitated by nis response. Uti at that point hat the SANDF proceeded 0 rakd the house. They Confiscated one bees from Mr Muvhango's fridge ond then one beer fom Wr ‘Khosa’stridge. They ordered Mr Khosa and Mr Muvharig to follow them ‘Outside tothe stroet as they wanted to ‘prove @ point to them. (On their way out, @ member of the SANDF damaged Mr Khosa's car which was parked inside the yard, by smashing tne metal gale agains Mr Koso rotested this act of vandalism. This further agitated the members of Ie ‘SANDF. ‘Ms Wonny Muvhango end I followed them outside. | asked the SANDE ‘memters why they fk the alcohol outside th yard creating an impression Page 0179 22 55 56, er. 29, {hat fr Khosa and Mr Muvhango violated the reguations by drinking euside ‘the yard. This question was also repeated by Mr. Muvihango and Me Kosa We did not receive any response, ‘Me Kosa and Mr Muvnango were made fo stand outside the yord withthe ‘wo beers on the ground, whle members ofthe SANDF waited for backsyp ‘Shorty, @ number of vehicles rived form both the SANDF and the JMPD, with armed personnel At this stoge, about three further SANDE members approached the scene and were “briefed” about the incident by the two SANDF members who had entered cur home. Without making any enquines of Mr Kosa or anybody ls, these three SANDF members manhandled and assaulted Mr Kiese i the folowing manner 53.1 they poured beer ontop ofthis head and on his body, 53.2 one member of tho SANDF held hie hands behind his back, whie the other choked him, 53.3. they slammed him against the coment wal 53.4 they it him withthe butt ofa mechine gun; 53.5 they kicked slapped and punched him on his face, stomach and ribs, ‘and {526 they slammed him against the sie! gate. ring the entire incident, | kept shouting that they must stop hurting Me nasa as they were going lo kl him My plea was ignored ‘During this time, Mr Muviango was also manhandied by a member of the ‘SANDF and beer was also poured al over his body. While Mr Khose was being brutalised, two female SANDF menbers Seproachod me end Mrs Muvhango. Mr Muvtango shouted thal tese ‘SANDF members should not touch his wile as she is pregnant. As they approached me, | ran inside the house and closed the door, the ‘SANDF members came after me and kicked the door open. They ordbred ‘me 10 come outside, end ane member slated whpoing me with @sjanbox ‘over my body an my face. | was ina state of shack as was being whigoed. ' could not defend myset om the SANDF nor could run away The confirmatory affidavits of Mrs Muvhango are attached to this aidan as ae ‘The incident was witnessed by some members ofthe Alexandra conunly ‘in action, part ofthe above incident was caught an cellphone wea wc was circuited on the news and soci media. Regrettably, some. of the \mtnesses whom we consulted with, informed me thet, while they recorded the incident on ther cell phanes, ther phanes were laken by the SANDF and the video recordings were deleted. These potential eyewitnesses wore sis0 Page 22179 60, or. 2 63, threatened with violence by the SANDF and they have been afraid to essist us in the investigation ofthe matter. [Mr Tebogo Mothabela is one of our neighbours who winessed the assauit fn Mir Kosa, he etempted recoraing th incident wih his phone however ne was instructed by the SANDF to stop recording, Thereafter mernbers the SANOF epproached him and took his phone and deleted the recordings ‘Mr, Mothebela's confirmatory afltavit i attached as annexure "E” ‘Simiary, one ofthe community members, Ms Glenda Phalad!recordee the assauil on ir. Khosa an her cellphone, however, her phone was also ‘confiscated by members of SANDF and they deleted the recoring. Ms Phalod's confimatory affidavit is attached as annexure “F".In ation Mr ‘Noo! Bongela lives in the same yard as us, he had spent his day with Mr ‘khose before his death and also witnessed the assault an Mr Kosa ater ‘hat dey, lr Bongela's contimatory affidavi fs otached as annexure *G"; ‘After the SANDF and JMPD members lef took Mr Khosa inside our house. He later started vomiting, losing is. speech and consciousness. and ‘rogressively, he lest his abity fo walk I resi him on tho bed. 1 sal on the Side of the Bed tying to comfort him. However, about three hours afer ine SAND members had le. While holding my Nand, | noticed that he w3s nol ‘moving. | quickly caled Mr Muvhango and his wile who. then’ celed Emergency Services. Upon ther ariva, the Emergency Services desired Mr khnosa dead on anv. Mecice! advice received suggested blunt force trum to Mr Khosa's heed ‘and torso, which could have severely damaged his intemal organs. including his brain. Consistent with this advice, the death notice described couse of death as a blunt force head injury attach a copy ofthe death notice os annexure "H" The manner in which Mr Khosa was killed has left me, his chitren, his ‘mother ( the frst eppican)), his sister, and his brothersin low (the tard appicant) in @ state of absolute shock and trauma, We ave ermotorlly bitereted and have lost compete faith in the secunly forces. and the ‘SANDF in particular [35] It was then said in the Founding Affidavit that Commanding Officers had responded promptly and effectively tothe incidents of lock-down brutality described in the preceding paragraphs, by developing a proper Code of Conduct, placing of duty the implicated members of the secutty forces, or by reminding the security {otces of their legal obigations, the deponent’s if-partner might stil be alive end his chldzen might nat orphaned. Poge 23.0178 @ e [Bo] The next heating of the Founding Afidevt wes ‘Commanding Officers Response’ twas stated by the deponent thatthe Minister of Police and the Minister of Defence have executive authorty over the securty forces and they failed to take effective steps to stop legal action ofthese forces. The statements which | wil refer 1» hereunder appear to defend and downplay, f not encourage the use of force Even afer the death of Mr Khosa, the Minister of Defence stated thet the public should not ‘provoke’ the soldiers. {871 On the Wednesday preceding the start of the nation-wide lock-down (26 March 2020) the defence minister while addressing the media on the role of the SANDF during the lockdown stated that there wil be no ‘skop, skiet and donder of civilans by the SANDF unless necessary to do to. “it will ony be skop, skit and donder when circumstances determine that For now we are a constiutiona! democracy’ (The relevant link refertng to this statement is given as a footnote in ‘he Founding Affidavit) ‘Skop, skit and donder’ when literally translated into English, as it should not be, means ‘kick, shoot and assault or nur’ Its in ine with ‘he colloquial saying in Afrikaans which realy means that | will assault, injure or harm you. [5] The deponent then stated that these type of statements do not ‘unconditionally condoma police and miltary brutality or promote the spit and purport ofthe Bil of Rights and the Constitution in general, They seem to imply that South Afica is a Consituional democracy ‘for now’ — thats consitonal upon members ofthe public not ‘provoking’ security forces, In effect what the Minister of Defence stated was that there would be circumstances where forea is ‘deserved! Page 24078 e@ This wae again to provide soldiers with powers of punishment which they a@ not have. These powers are lu be reserved for cours only, '39] On 7 April 2020, during a national address by the Police Minister, held at Secunda, he encouraged the police officers enforcing the lock-down to ‘push Scuth ‘icans back to thelr homes if they refuse. (Similarly, the ink giving access to his statement is contained in a footnote tothe Founding Affidavit as are all the oher statements of Ministers that | wil refer to.) In this statement the Police Minister made the folowing remarks: 1 hear them (people) crying that cops and solders are bru not stening 10 us rata. ‘tis our duty, it you do not want protect yourself andthe ret of us, we must start by protecting you...s0 we need fo push aie bt 0] One does ask in this context, and this was also debated in court. how and Under which circumstances the police would ‘push’ alleged transgressors back into their humble shacks or huts in the many informal squatter camps that are so unfortunately present all over South ica, |41] tn similar vein the now suspended executive member of the Matjhabeng Local Municipality endorsed lock-down brutality on 8 April 2020 during a rallying call ‘ local members of the SADF in the Free Stale “do not hesitated to skop and ‘donder’ citizens and foreign nationals when enforcing lock-down. [42] On 12 April 2020 the Minister warned that police officers wil confiscate liquor that is being sold illegally and will ‘destroy the infrastructure where liquor is Page25 0179 being sold’. This of course will be an unlawful act and not justified by any law or regulation, [43] The deponent quite corect states thatthe lockdown Regulations do not ‘authorise law enforcement officials to cause damage to property owned or occupied »y civiians. This would clearly be an act of undermining them. What is even worse inthis particular context is that Regulation 11€ provides that ‘no person is entitled to Compensation for any loss or damage arising out of any act or omission by an enforcement officer under these Regulations’. This seems to offer a wholesale indemnity for law enforcement offcials and adds tothe already lacklustre response by the commanding officers tothe incre ing spade ofthe lock-down brutality [44] On 16 April 2020, after Mr Khosa's death, as described, the Minister of Defence addressed the media. She mentioned that the matter was under investigation. However, as reported by News24.com she had the folowing message to the civiian population which the deponent refers to as ‘this chiling message Mapisa-Nqakula said 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 {aking 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 ife i you go out you do so at your own peri” she sai ‘2dding that they out will only ead to further infecions’. It was Stated in this context that the Defence Minister clearly blames civilans for ‘Provoking’ the soldiers. She was either unable or unwiling to make unequivocal statements condemning violence, Poxe 260878 145] W should be added at ths stage that itis not explained in these papers how millions of poor people who are confined to the most humblest of homes’ are supposed to be justifiably confined to the litle space that shelter them from the ‘elements. Many of such people are children and itis also nowhere explained how they would have to encure months of lockdown conditions without any movement oF, what is 80 necessay for young chidren, playing wth other children the same ‘892. do not intend to say inthis context thatthe relevant porsons are entiled to ‘am arcund in the streets but if they are in their own litle courtyard, 1 fai to see how that would be a transgression ofthe relevant Regulations. Certainly, they would not invite assaults and brutality, 6] The deponent continued to refer to @ subsequent radio interview on Radio 702 0n 22 April 2020 wien the Minister of Defence seemed to lay the blame sauarely at tho feet ofthe civilians stating thal they should “not provoke’ the military forces. The minister did not condemn the lockdown brutality. This was after ‘applicants’ had launched proceedings before the Constitutional Court on terms ‘similar tothe present (airect access to this court was denied). Applicants state that they are advised that under the Constitution the Parliament should practice oversight over the SANDF and SAPS. The realty was that pariamentary processes are not designed to prevent ongoing violence atthe hands ofthe secur forces especialy during @ slate of disaster. While the matter may be reported to the oversight bodies, these wil take time, and will unlikely be designed to address the problem that is currently being faced. Page 270179 e [47] It was further stated that the attitude of the SANDF to the parliamentary process has been alarming. On 22 April 2020 the Defence Minister, the Chief of Staff of SANDF and Chief of Joint Operations appeared before Pariament’ Joint Stancing Committee on defence. When the SANDF was questioned on the alleged cause of brutality and torture, Lieutenant General Yam is reported to have said to the patiamentarians: “You are not our clients, we are not the Police Force. We take Cur instructions fom the Commander in Chief. Again it seems to have been forgotten that we lve ina consitutional democracy and where patament, eccording {o the provisions of Chapter 4 of the Constitution consisting of the National ‘Assembly and National Council of Provinces, isthe legislative authoriy [48] The deponents to the Founding Affidavit then futher state that to their knowledge, no steps have been taken against the SANOF for the statements and the contempt they have shown to pariament. The etude ofthe Chief of Staff of the ‘SANDF points tothe concern o! the applicants about the general view of the SANDF 40 the law, and the fact thatthe power must be regulated, It was sald that the SANDF should not be left unaccountable and its use of force should be regulated “This was the point ofthe application, [49] | have already referred to 5200 of the Constitution which refers 10 the defence force and its primary objects to defend and protect the republic. ils terntona integrity end its people in accordance with the Consttution (my underlining). Pope 28.078 Pp PRECLUDE TO THE APPLICATION: {50] On 14 April 2020 the applicants’ attomey sent a leter {0 the Minister of Defence, in that letter it was demanded that the SANDF and the JMPD provide ‘hem with ful detas ofthe particular incident including the names of the members who were present and also involved in the assaut. It was demanded that the President, the Minister of Defence and the Chief of the JMPD publicly condemn the Conduct oftheir members, A report on what steps had been taken by the SANDF ‘and JMPD in dsciplining their members was demanded as well as a confimatien that such members be immediately removed trom the pubic and placed ca suspension pending the finalisation of the investigation. in respect of Mr Khosais minor chiéren, an undertaking of financial support, emotional shock, psychological assistance and any medical expenses that they had to incur during this period was sought. Further, the Parkamentary report on the employment of the SANOF was requested in terms of section 201 of the Constitution. The Code of Conduct in ‘operational procedures governing the SANOF being the joint operation in terms of section 19(9)(¢)() ofthe Defence Act was required. [51] twas said in the Founding Affidavit that on 16 April 2020 the State Attomey sent a terse report on behalf of President and the Defence Minister, a copy of which was also annexed. The Defence Minister effectively fobbed them off boldly denying any wrong doing, failing to give any meaningful answer, an fling to deliver any of the documents requested. On 19 Apsil 2020 the State Attomey provided the Perliamentary Report requested, The response from the State Atomey was slert 6 the other demands made, including the Code of Conduct for the SANDF As a result, on 20 April 2020 the applicants’ instituted an urgent application for divect age 29.0173 access to the Constitutional Court seeking the same relief and on essentially the same facts of this application, On 24 April 2020 the Constitutional Court refused direct access. It simply ruled that there was no case made out for approaching the court directly [2] There is no doubt that the applicants have standing in this application, and thie was not debated in court any further [53] | have referred to the Constitutional and legal framework applicable to these proceedings and | will return to the relevant sections when | deal with the reli sought ‘THE PREVENTION AND COMBATING OF TORTURE OF PERSONS ACT 13 OF 201: [54] This Act ratified and domesticated the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading treatment or punishment, 1994 (he Torture Convention) Torture fs defined in article 1. Artic 2(1) oblges the Slate to take effective legislative, administrative, judicial and other measures to prevent acs of torture, Article 10 states that rules and instructions inthis regard are required. importanty article 12 requires South Afia to ‘ensure that its competent authorities proceed to @ prompt and impartial investigation whenever there reasonable ground to believe that an act of torture has been committed. Article 19 requires South Altca to ‘ensure that any individual who alleges that he has been subjected to torture.has aright to complain to, and to have his case promptly and impartially examined by its competent authorities’ Page 300173, e {55] Certain sections of the Torture Act are particularly relevant in the present context. Section 4(4) states that no exceptional citcumstances including any state of ‘emergency, may be invcked as a justification for torture. Section 10 gives the State ‘a duty to promote awareness against the prohibition against torture aimed at the prevention and combating thereof...” This would include the training of public officials on the prohibition, prevention and combating of torture and by ensuring that ‘all public officials who may be involved inthe custody, interogation, treatment of @ ppetson subjected to any form of arrested, detained or imprisonment are educated ‘and informed of the prohibition againet torture’. Iti clear from section 12(1)(¢)(@) {and (¢) of the Constitutcn, interpreted in the ight of international law, especialy the Torture Convention and the Torture Act that State brutality is juridically regarded as especially egregious form of harm. State brutally, when it takes the form torture, cruel or inhuman treatment or punishment is legally dstinlive for two definitional reasons, as it was explained in the Founding Affidavit 1. It ls commited by ‘public ofislar, when people clathed with public ‘authority, in whom the public are entitled and expected to repose ther trust ‘See F v Minster of Safety and Security 2012 (1) SA 536 CC at par 78° "Once we accept that our Constitution assures the public that itis safe to repose the ttust in the police, we must also accept thet constitutional aspiration is undermined when the trust is breached, pagent 079 @ 2. Its committed for purposes’ ulterior to legitimate law enforcement, such 2a to ‘punish’ peope, who have not been afforded a fair trial before a ‘competent and indevendent tribunal or indeed any tial at all [56] _Itfollows that these constitutionally exceptional crimes need to be prevented ‘and remedied in a radical different, more stringent and more urgent manner than ‘ordinary crimes’ DOMESTIC LAWS AND THE LIMITS ON THE USE OF FORCE: [57] The constitutional guarantee of freedom from State brutality Is also given effect to by the provisions of the mentioned Defence Act, the SAPS Act and the Criminal Procedure Act. [58] The SAPS Actisthe principal legislation that governs the SAPS and MPD'S and places limits onthe existence of their powers and functions. 4, Section 13(1) provides that they must exercise their powers and functions, ‘subject tothe Constitution’ and wih due regard to the fundamental rights of every person, 2. Section 13(3)(a) requires them to perform their duties ‘in a manner thal is reasonable in the circumstances! 3. Section 13(3)(b) provides that where members authorised by law to use force, he or she ‘may only use the minimum force which is reasonable in the circumstances’ Page 32.0179, [55] The Criminal Procedure Act is even more detailed: 1. $49(2) provides that Police officials may use force only- 1.110 effect an arrest of a ‘suspect (a person reasonable suspected of hhaving committed an offence; 4.2even then, when 2 suspected cannot be arrested without the use of force 0 4.340 the extent fore used that it teaconably necessary and proportional in the circumstances to overcome resistance or to Prevent the suspect from fleeing, [60] It further provides that ‘deadly force’ (ikely to cause serious bodily harm or death) may be used only he suspect 1, Poses a threat of serious violence to the arrestor and any other person, or 2. Is reasonable suspected of having commited a crime involving the « infliction or threatened infliction of serious bodily harm and there are no other reasonable means of affecting arrest. [61] Other than in that specific instance (to arrest a person and to secure their attendance at trial); the SAPS Act does not give police officers a general license to se force inthe execution oftheir duties, [62] Where potce raining confines itself to when a firearm is to be used or nol It {is wholly and totally insufficient inthe context of what | have just dealt with Page 38 of [83] SANDF members are also not exempt from these limitations on the use of force. On the contrary, the Defence Act provides that when the SANDF is ‘employed in co-operation with the [SAPS] in terms of section 201(2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law ‘and order within the Republic’ several conditions wil apply, including 1. Section 20(1) subjects SANDF members equally tothe strict limitations on the use of force as set out in the SAPS Act and the Criminal Procedure Act, 2 Section 19(3}(c)() requires that their functions ‘must be performed in ‘accordance with...code of conduct and operational procedures approved by the [Defence] Minister; 4. Section 20(11) provides that they ‘must receive appropiate training prior to such employment, I was contented tha itis obvious that why such a Code of Conduct and prior traning i required: soldiers are trained to use force and not retrain fom it. When deployed within the Republic 10 ‘engage with allied civilans rather than enemy combat, SANOF members ‘ust be re-educated or re-vientated in a nonsmitary fashion, which includes adhering to the statutory limits ofthe use of force. | may just add that when the poor, the weak, the hunger and desperate are addressed by this security forces, this ebigation requires more restraint and is of even more of moral imperative. What we are dealing with in South ‘Attica at this moment is the conduct of security forces aimed at mainly the Page 38.0179, most vulnerable because of the socio-economic situations that exist throughout South Africa for which the poor are certainly not to blame, ‘Whe | refer to “poor, | also refer to the consequent result, namely mental languish, physical weakness, ack of proper housing or sanitary facilites, and also lack of even the most basic food or medical supplies. f such Persons are treated with contempt and indifference any cout of law would do its utmost within its discretionary powers (where such exist) to apply the law to its fullest extent to prevent such [64] In summary therefore the positon is as follows: 4. In generat members of the SAPS and the SANDF may not use force, However, where force is necessary to use, it may only be minimum fore, 2. Ifit Is the intention to secure the arrest of # person, force may only be used where itis reasonably necessary and proportional. Where deadly force may be used this can only occur where there is threat tote 3. Other than in those strict circumstances, there is no general hcense for the SANDF or the SAPS to use fore. (85) | wil hereunder deal withthe allegations by the respondents as to training ‘and instructions that are given to the security forces inthis regard. But in my view, Page 35 0179 @ ‘on thelr own version. this is solely inadequate and we have seen the reeuit in the steels, [66] In terms of the draft order that was handed to me during the proceedings {and which was debated in court, as well as in the affidavits, the applicants seek @ declaratory order notwithstanding the declaration of the State of Disaster and the lock-down under the Disaster Management Act as set out in prayers 2.1 to 24. | ‘ted that paragraphs 2.1 to2.4 essentially consists of "e-alfimation’ ofthe law that is applicable in South Africa in the present context, and in particular the law that ‘applies to the security forces either under lock-down conditions or in general. I was. therefore contended by the respondents that such a declaration was incompetent and in any event wholly unnecessary, inasmuch as all members of the security forces had received proper training, had received instructions, both in oral and ‘written form, It was furthermore contended that itis not the funtion of the court to ‘merely restate the law in any given circumstances. {B7] Declaratory relief is competent in one of four instances. Firsty, as “appropriate rele? in tems of section 38 of the Constitution. Secondly, where law or conduct is declared unconstiutonal under section 172(1)(a) of the Constitution Thirdiy, a just and equitable in terms of section 172(1)) of the Consthuton Fourthly, as discretionary relief in tems of section 21(1)c) ofthe Superior Courts ‘Act 10 f 2012 [68] Each of these constitute an independent basis for a declaratory relie! The respondents argued that there was no basis for relief granted in terms of section 5236 078 e 24(1}(e) of the Superior Courts Act, a contention with which the applicants counsel obviously disagreed. But, even if he was wrong, it would not folow that declaratory: relief would be incampetent. It would be competent in terms of sections 38 and 172 of the Constitution SECTION 98 OF THE CONSTITUTION: [69] This provides: ‘any one listed in this section has the right to approach @ ‘competent court, alleging that a right in the Bill of Rights has been infinged or threatened, and the court may grant appropriate rele, including a declaration of Nights’ This section therefore contains two substantive requirements: frst an oplicant must allege that a right has been infringed or is threatened with Infringement, and secondly a cour is entitled to grant ‘appropriate relief which may include a declaration of rights. The applicants satisfy both requirements in my view. 'n Fase v Minister of Safety and Security 1997 (3) SA 786 (CC) at paragraph 69, the Consttaional Gourt explained the meaning of ‘appropriate reli? as follows: ‘given the historical context in which Interim Constitution was adopted and the ‘extensive violation of fundamental rights whicn preceded i I heve no doubt that ts court has @ particular duty to ensure that within the bounds of tho Constitution, fective relief can be granted forthe infangement of any ofthe nights enonched i tn our context an appropriate remedy mist mean an éffecive ramedy, for iow effective remedies for breach, the values underving and the righls enrerched it Ihe Constitution cannot be propery upheld or enhanced Particular ina County $6 tow ‘have the means 0 enforce ther ight tough the Courts. 15 essential that on {hase occasions where the legal process des establish that an infringement of on entrenched right had occured, that it bo effecively vindicated. The Cours have 9 Bartcuinr responsibilty in tie rogara end are abe (0 orGe NeW tools and eoape ‘innovative remedies, needs be, 0 achive tis goat [70] As Ihave said this comment was made by the Constitutional Court in 1997, 't applies some 23 years later and in my view it applies particularly to the case before me given the facts and the state in which the society lves at present. We live Page 37 of 79 In @ democratic society under the rule of law. The Bil of Rights is @ modem and ‘effective too nd it must be used without fear or favour where appropriate within the ‘bounds of the Constitution, The present facts cry out for a declaratory order in my ‘pinion, [7A] In Hottman v South Afican Airways 2001 (1) SA 1 CC the cout held that Appropriate rte in terms of section 38 must be construed purposely and inthe ight Of section 172(1)(0) which empowers a cour in constitutional matters to make any ‘order that just and equitable. As such, the court held that, ‘appropiate relief must be fair and justin the circumstances of the particular case.” Appropriateness imports ‘the elements of justice and faimase’ {72} The cout held st paragraph 42 99 follows: ‘ the determination of the nproprite role, therefore, calls fr a balancing ofthe various interest that might be effected by the remedy. The balancing process must at least be guided by the objective, firs, 10 address the role occasioned by the infingemen of the Constitutional ight: second, to deter future infingements; tid, to make an order that can be compied with; fourth, faimess ofa those that might be effected by the ‘ele, invariably, the nature ofthe ight infringed and the nature of the iningement will provide guidance as to the appropriate relief in the particular case’, (731 | have atready referred in some detail to the number of infringements of certain constitutional rights that have unfortunately become so apparent The deterrence aspect is of great importance in this case and under the present ‘ccumstances. As | have said, there are clear indications of the complete lack of Page 38 of 73 ‘rust between the relevant parties and by that | dont only mean the present itgants before me but ne Government as an institution on the one hand and society on the ater hand, which, | need to repeat, are not objects, or subjects of some higher autholy be i the President or the executive or the nebulous National Command Council. They are holders of rights and in particular those rights are stipulated in Chapter 2 of the Constitution. And as | have said, these need to be respected by Government and the Security Forces under al cicumstances, 174] tis my view that a declaratory order is justifiable on the facts, and the considerations that the Hoffman decision refers to. Whilst itis of course so that Paragraphs 2.1 to 2.1.4 refer to constitutional righ, there ere also rights under the domestic statutes that refered to, Paragraph 2.2 makes the other orders effective ‘The respondents have said in their anewering affidavits that they do training and ‘sive appropriate instructions, and therefore there could be 20 justifable oppasiton to this part ofthe reiet. Similarly, as far as these secury forces are concemed, is important that the instructions that they are given, and examples have been annexed to ther answering atidavis, must not only be conned to the use or non- Use of frearms. | have set out ther obligations in some detail and i is important to ‘ote and for the pubic to appreciate, that security forces are only entitled to use he ‘minimum force that is reasonable to perform an official duty. | may be naive, but | ‘need to say that I cannot understand why the securly forces cannct realise that they ‘ate also citizens ofthis country, They are also the holders o! the rights in the Bill of Rights. No doubt they also have families that suffer under the present state of affairs fand | am convinced that no father or mother in the security services would tke to Page 390119 see their familes be treated in the manner that others have been so visibly i- tweated, {75] twas also submited that appropriate relict must be future looking. One of its objects is to ‘deter future violations. This imposes an obligation on the cour. faced with evidence which proves violations of rights, not to gloss ove the violation Con the basis that declaratory rele is not necessary. Declaratory ref services a unique and distnel purpose of acknowledging he wolaton, setting out the ‘obligations and deterring future violations, agree that this isthe correct approach and itis one that | wil adopt. {76] twas contended that to qualify for appropriate reli per section 38 of the Constitution the applicants merely need to estabish that their rights have been infringed or are threatened with ningement, On the facts ofthis case, tis plain that these rights have been inringed, or are threatened with infelagement. Especial the right to ie has been infringed and their right to dignity has been grossly infinged ‘Also, the right nol to be subjected to torture or cruel unusual punishment has been established on the facts. The right to dignity is @ foundational value inthe Chapter of Rights which must be respected by all organs of state, In my view, itis the essence ofthe Bil of Rights and a court should nat tolerate an itingement especialy nol by those that are created to proect the human dignty of citizens and all persons in this County, Its an ironic thought having regard to the history of thi country thatthe ‘very institutions that have been created to safeguard and protect the population from crime and violence. are the very persons wha now fail 1o impose the age a0 0178, e ‘ppropriate internal remedies against the transgressors, but have the audacity to tell ‘court that it has no function inthe matter and ought not even to hear it SECTION 172 OF THE CONSTITUTION: [7] Section 172(1) of the Constitution provides that when a court is dealing with an constitutional matter within its powers it must declare that any aw or conduct that is inconsistent with the Constitution as invalid to the extent ofits inconsistent and ‘make any order that is just and equitable, [78] In Bengwenyama Minerals Pty Lid v Genorah Resources (Py) Lid 2011 (4) 8A 113 (CO) the Constitutional Court stressed the rule of lw underpinnings behind ‘section 172, The rule of law is entrenched In section 1(o) ofthe Constitution which Provides that ifs a foundational value of our Constitution and our society, The rule flaw concer behind a declaration of invaldty of aw or conduct, was deat with as follows in the said judgment at paragraph &5: 1 do mot think that itis wise fo atemot to lay own inlexble rues in determining & {ust and equitable remedy following upon a dectaration of unlawul sdminstaive ‘action. The rule of law must never to relinquished but the crcumslances ach ase must be examined in order to determine whether the foclual certenty requves ‘some amelioration of legalty, 150, 1 which extant [79] | agree withthe applicanis' contention that itis crucial to note that according to section 172(1)(b) a court may make any order that is just and equitable. Ths is ‘not dependant on the finding of invalidity, In Corruption Wetch NPC and Others v The President of the Republic of South Arica 2018 (10) BOLR. 1179 (CC) this was ‘explained in paragraph 68 as follows: ' The operative word * any” is as wide as it sounds. Wide this jurisdiction ‘may be, its not unbridled. It is bounded by the very two factors stipulated in this section- justice and equitable” Page a1 of79, e [80] This actualy echoes what was said by the Constitutional Court in Economic Freedom Fighters v The Speaker of the National Assembly and Another 2018 (2) 8A 571 (CO) paragraphs 210 to 211 ‘A court's remedial power snot limted to declarations of invalid It ls much wider Without any resictons or conditions, $172{1)®) empowers courts 10 make ary order tht la juct ond equitable The powerto gran a jus! and equitable order isso wide and fenble that i allows ours fo formulate an order that does no flow prayers inthe Notice of Motion some order pleading, ‘twill become apparent that this is exactly what | intend to do. [81] Iti therefore clear that both under section 38 and 172 ofthe Constitution I ‘2M inte to grant an order that is appropiate or just and equitable, Where rights # threatened of violated it can in my view not be seriously and honestly be argued that declaration is not appropriate and if | understood Mr Maenetie SC on behalf cf the frst three Respondents correctly, he didnot seriously contend otherwise. do ‘appreciate his proper approach in this context SECTION 21(1(c) OF THE SUPERIOR COURTS ACT: {82} Inthe context of section 21(1)(c) ofthe Superior Cours Act the respondents ‘seem to be ofthe view that this secon has displaced the remedial power ofthis court which fe contained in sections 36 and 172 ofthe Consttuton This is obuoUSIY ot so, Section 21 is additional and not exclusive, so it was submitted in any event as told thatthe debate about section 21 of the Act should not detain me unduly ‘The applicants have not relied thereon, but explicitly on the sections in the Constitution, Therelore the only question is whether or not the applicants have made out the case tat they have pleaded. However, if were to appl the eiteria of ‘ection 21(1)(c) of fhe Superior Courts Act all necessary prerequisiles have been {ulfiled. In terms of section 21(1)¢), | have the power. ints dsereton, and at the Page a2 0179, instance of any interest person, to enquire into and determine any existing, future oF ‘ontingent right or obligation, not extending that such person cannot claim any relief ‘consequential upon their determination, [83] in Competition Commission of South Africa v Hosken Consolidated Investments Limited and Anofner 2019 (3) SA 1 (CC) the two etage approach was ‘endorsed, First the court must be satisfied that the applicant has interest in a future, ‘existing or contingent right or obligation, and secondly a court may then exercise its discretion either to refuse or grant the order sought. The existence of a ve dispule 's nota prerequisite. It was accepted by the respondents thatthe applicants do have {an interest in the an existing, uture of contingent right or obligation. What was

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