1
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO:………..……../2013
WCHC CASE NO: 21600/2012
In the matter between:
MINISTER OF POLICE / First ApplicantNATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE / Second Applicant
THE PROVINCIAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE FOR THE WESTERN CAPE / Third Applicant
THE CIVILIAN SECRETARIAT FOR THE POLICE SERVICE
COLONEL M F REITZ / Fourth Applicant
Fifth Applicant
BRIGADIER Z DLADLA / Sixth Applicant
COLONEL TSHATLEHORABOLIBA / Seventh Applicant
and
THE PREMIER OF THE WESTERN CAPE / First Respondent
THE MEMBER OF THE EXECUTIVE COUNCIL FOR COMMUNITY SAFETY, WESTERN CAPE / Second Respondent
THE CITY OF CAPE TOWN / Third Respondent
THE HON. JUSTICE CATHERINE O’REGAN N.O. / Fourth Respondent
ADV VUSUMZI PATRICK PIKOLI N.O. / Fifth Respondent
THE SECRETARY TO THE COMMISSION / Sixth Respondent
ADV T SIDAKI / Seventh Respondent
WOMEN’S LEGAL CENTRE / Eighth Respondent
SOCIAL JUSTICE COALITION / Ninth Respondent
______
AFFIDAVIT
______
I, the undersigned,
MANGWASHI VICTORIA PHIYEGA
do hereby make oath and state that:
1I am the National Commissioner of the South Africa Police Service (“SAPS”), the second applicant in this matter, and I am duly authorised to depose to this affidavit, and to bring this application, on behalf of the other applicants herein. My service address is care of the State Attorney, Cape Town, and State Attorney, Johannesburg, as indicated in the notice of application to which this affidavit is annexed.
2The facts herein are, unless the contrary appears from the context, within my own personal knowledge, and are true and correct. Where I make legal submissions, unless otherwise indicated, I do so on the basis of advice given to me by the applicants’ legal representatives and which advice I verily believe to be correct. Where I rely on information not within my knowledge, I do so on the basis of information supplied to me or upon objectively determinable facts.
THE PARTIES
3I am the second applicant herein having been appointed as the National Commissioner of the South African Police Service by the President of the Republic of South Africa on 12 June 2012, just over two (2) months before the Premier of the Western Cape Province (the first respondent) appointed the Commission of Inquiry into allegations of police inefficiency in Khayelitsha and of a breakdown in relations between the community and the police in Khayelitsha (“the Commission”) on 24August 2012. A copy of the Western Cape Government Provincial Gazette No 7026 dated 24August 2012 containing Proclamation 9/2012 appointing the Commission is annexed marked “AL58” (pp530 – 534). [All relevant annexures annexed will follow the Index to the Western Cape High Court record for convenience and ease of reference].
4The first applicant is the Minister of Police who is the Member of the Cabinet responsible for policing and determining national policing policy as contemplated by s206(1) of the Constitution, and who has his offices at 120Plein Street, Cape Town, and in Pretoria, but who is otherwise care of State Attorney, Cape Town and State Attorney, Johannesburg.
5The third applicant is the Provincial Commissioner of the South African Police Service for the Western Cape, Lieutenant General A H Lamoer of 25Alfred Street, Green Point, Cape Town.
6The fourth applicant is the Civilian Secretariat for the Police Services, established in terms of the Civilian Secretariat for Police Service Act (No 2 of 2011) (“the Civilian Secretariat Act”), with its offices at 7th Floor, 217 Pretorius Street, Pretoria. The Civilian Secretariat Act came into operation on 1December 2011.
S 208 of the Constitution provides for the establishment of a Civilian Secretariat by national legislation to function under the direction of the Minister of Police. The Civilian Secretariat had previously resorted under s2 of the South African Police Services Act 68 of 1995 (“the SAPS Act”) which came into operation on 15 October 1995.
7The fifth applicant is Colonel M F Reitz, the Station Commander, Lingelethu West Police Station, Makabeni Street, Lingelethu West, Khayelitsha.
8The sixth applicant is Brigadier Z Dladla, the Station Commander of the Khayelitsha Police Station, Site B, Bonga Drive, Khayelitsha.
9The seventh applicant is Colonel Tshatleho Raboliba, the Station Commander of Harare Police Station, Steve Biko Road, Khayelitsha.
10The first respondent is the Premier of the Western Cape c/o 27 Wale Street, Cape Town.
11The second respondent is the Member of the Executive Council for Community Safety Western Cape (“the MEC”) c/o 7th Floor, 14 Queen Victoria Street, Cape Town. Together with the Minister and MECs holding equivalent portfolios in other provinces they constitute the Ministerial Executive Committee (“MINMEC”). Such a committee is required by the provisions of S 206(8) of the Constitution to ensure effective coordination of the police service and effective cooperation among spheres of government. MINMEC was established in terms of S 27 (Part 4) of the cooperative framework described in Chapter 5 of the Civilian Secretariat Act.
12The third respondent is the City of Cape Town, a metropolitan municipality established in terms of the Local Government: Municipal Structures Act No. 117 of 1998, c/o The Municipal Manager, Civic Centre, Cape Town, 12 Hertzog Boulevard, Cape Town.
The City is cited as an interested party in that it is responsible for the Municipal Police Service (“Metro Police”) established in terms of s64A of Chapter 12 of the SAPS Act. The Metro Police is directly implicated by the eighth and ninth respondents in their initial complaint to the Premier (first respondent) in November/December 2011 on account of their alleged “brutal” conduct in Khayelitsha. The Premier however excluded them from the Commission’s terms of reference when it was appointed on 24August 2012.
13The fourth respondent is the Honourable Justice Catherine O’Regan who is cited in her capacity as the appointed chairperson of the Commission of Inquiry into Allegations of Police Inefficiency in Khayelitsha and of a Breakdown in Relations Between the Community and the Police in Khayelitsha (“the Commission”) operating at VPUU Centre, 42 Ncumo Street, Harare, Khayelitsha. The Learned Justice’s recusal from the Commission is no longer sought by the applicants.
14The fifth respondent is Advocate Vusumzi Patrick Pikoli, a member of the Commission of the same address. Advocate Pikoli’s recusal from the Commission is no longer sought by the applicants.
15The sixth respondent is the Secretary to the Commission, Ms Amanda Dissel, of the same address.
16The seventh respondent is Advocate T Sidaki, a practising Advocate appointed as evidence leader in the Commission, of the same address.
The applicants maintain that should the Commission continue its work, there is a potential for conflict in relation to Advocate Sidaki in that he served as the Senior Public Prosecutor in Khayelitsha during the period to which some of the complaints relate.
17The eighth respondent is the Women’s Legal Centre c/o 7th Floor, Constitution House, 124 Adderley Street, Cape Town.
18The ninth respondent is the Social Justice Coalition (“SJC”), a registered public benefit organisation registered with the Department of Social Development and having the number 06-689 NPO. The SJC is represented by the Women’s Legal Centre.
NATURE OF THIS APPLICATION AND THE RELIEF SOUGHT
19The applicants launched their application on an urgent basis in the Western Cape High Court on 5 November 2012. By agreement, and following directions issued by the Judge President and the Deputy Judge President, a Full Bench was appointed, and the matter was heard and argued on Thursday, 13 December 2012.
20The applicants sought orders, inter alia, that:
1the application be heard as a matter of urgency;
2the fourth, fifth and sixth respondents, and any person or persons acting under their direction or control, be interdicted and restrained from giving effect to subpoenas purportedly issued in terms of s3(1)(a) of the Western Cape Provincial Commissions Act 10 of 1998 on 30 October 2012 and served on Colonel M F Reitz, Brigadier Z Dladla, Colonel Tshatleho Rabolibela and Lieutenant General A H Lamoer, pending the final determination of the relief sought in Part B hereof;
3the fourth, fifth and sixth respondents (and those acting under their direction and control) be interdicted and restrained from conducting the Commission of Inquiry into allegations of police inefficiency in Khayelitsha and a breakdown in relations between the community and the police in Khayelitsha (“the Inquiry”) appointed under s1 of the Western Cape Provincial Commissions Act, 1998 (Act 10 of 1998) and the Regulations thereto pursuant to s206(5) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), in any form whatsoever, pending the final determination of the relief sought in Part B hereof;
4the fourth, fifth and sixth respondents, and those acting under their direction and/or control, be interdicted and restrained from issuing or causing to be issued any subpoenas to any member of the South African Police Service in terms of s3(1)(a) of the Western Cape Provincial Commissions Act 10 of 1998, pending the final determination of the relief sought in Part B hereof;
5any of the parties hereto who oppose the relief sought in Part A hereof pay the costs of this application jointly and severally, the one paying the others to be absolved;
6that further and/or alternative relief be granted.
21The application was necessitated by the first respondent’s appointment of the Commission of Inquiry aforementioned; the Commission’s subsequent subpoenaing of the third, fourth, fifth, sixth and seventh applicants duces tecum; and, subsequent (and failed) attempts by me, the Minister of Police, and the Premier to engage in terms of the principles of co-operative government and intergovernmental relations provided for in s41 of the Constitution read together with s 68(2)(c) of the Western Cape Constitution, the co-operative framework contained in Chapter 5 of the Civilian Secretariat for Police Act, and the relevant provisions of the Intergovernmental Relations Framework Act 13 of 2005 and Regulation of 491 of 26 April 2007 promulgated thereunder.
A copy of the Notice of Motion containing Parts A and B thereof is annexed marked “A” (pp 3 – 15). A full set of the papers will be filed as soon as the Chief Justice grants directions in relation to the further conduct of this matter. I annex also a copy of the Index marked “B” from which it is apparent that the record is some 2446 pages. In a sincere endeavour to not overburden this Court’s record, but yet put the application in its proper perspective, I will annex only selected parts of the record as contemplated in Rule 19(3)(c) of this Court’s Rules. Insofar as I fail and/or neglect to annex parts of the record that may be relevant or even important, I apologise in advance. I do not intend to downplay the importance of any contribution made in the matter by any party or person.
22The application was heard by the Deputy Judge President (Traverso DJP, Presiding), and Yekiso and Saldanha JJs on Thursday, 13 December 2012. (During the course of oral argument, applicants’ counsel indicated that the relief sought by the applicants no longer included seeking the recusal of the fourth respondent).
23The Deputy Judge President delivered judgment on the morning of Monday, 14January 2013 indicating that Her Ladyship and Yekiso J, constituting the majority of the Court, dismissed the application, with costs. A written copy of the majority judgment, together with that of the minority judgment of Saldanha J was then made available to the parties at Court. A copy of the majority judgment is annexed hereto marked “C” and that of Saldanha J is annexed marked “D”.
24The applicants respectfully submit that it is in the interests of justice to grant leave to appeal, alternatively, for direct access to be granted to this Court, on an urgent basis, given the constitutional importance, and urgency of the matters at hand. Should this Court grant leave to appeal, alternatively grant direct access to it, this Court is asked to decide the merits of the appeal. The question is whether the Western Cape High Court was correct in refusing to grant the restraining order sought by the applicants in Part A of the Notice of Motion.
Indeed, it is common cause that the decision of the Premier to appoint the Commission did not involve any policy or polycentric considerations. The Premier is on record as saying that it was to assist the police in fighting crime in Khayelitsha.
25The applicants submit that there cannot be any dispute between the parties that this appeal raises several constitutional issues involving the interpretation and application of Chapter 3 [Co-operative Government) ss 40 – 41, and the relevant provisions of Chapter 11 [Security Services] ss205 – 208, of the Constitution. The pending judicial review also raises a number of constitutional issues, and has been brought, inter alia, under s6 of the Promotion of Administrative Justice Act (PAJA), a statute enacted to give effect to the right to just administrative action guaranteed by the Constitution.
26Moreover, the applicants respectfully submit that the review poses the question whether a province may trespass on the exclusive domain of the South African Police Service which resorts under the direction and control of the National Executive, having regard to the relevant provisions of ss 205 – 208 of the Constitution. A further issue raised is whether the refusal by the majority of the Western Cape High Court to grant the interdict impermissibly entrenches upon the constitutional tenet of separation of powers. The applicants respectfully submit that these are constitutional issues of considerable importance.
27The applicants submit that it is in the interests of justice to grant leave to appeal, alternatively direct access to this Court, by hearing the matter on an urgent basis.
1It is respectfully submitted that the refusal to grant the interim interdict (in particular in relation to the issue of the subpoenas) has the effect (final, it is submitted) that it compels members of the SAPS to testify before the Commission of Inquiry, and in so doing disposes of a substantial portion of the relief sought in the pending review. In this regard, I respectfully submit that the harm that flows from this is serious, immediate, ongoing, and irreparable.
2The refusal by the majority of the Western Cape High Court to grant a temporary restraining order has the effect that it unduly trespasses upon the powers of the police, in circumstances where the final determination of the review grounds are pending. The applicants submit (with due respect) that the majority of the Western Cape High Court ought to have granted the urgent interim interdict, and that the executive powers of the police ought first to be decided on review. In so doing, the applicants submit that the majority of the Western Cape High Court in effect usurped the role of the review Court by anticipating the outcome of the review.
28I respectfully submit that the applicants are entitled to approach this Court directly and on an urgent basis, and that it is indeed in the interests of all parties concerned that this Court decide on the appropriateness of whether or not an urgent interim interdict ought to be granted pending the final review. The case does not require a development of the common law on which the views of the Supreme Court of Appeal would have been helpful. Rather, it raises important issues of separation of powers and intergovernmental relations in the context of the Constitution.
29Accordingly, I respectfully submit that it is in the public interest and in the interests of justice that the dispute over the appropriateness of the interim interdict be resolved forthwith.
30For this Court’s convenience, and taking into account the extreme urgency of the matter, I annex to this affidavit:
1the founding affidavit of the Minister (pp 14 – 61) marked “E”;
2my affidavit (second applicant) (pp 732 – 746) marked “F”;
3the affidavit of the third applicant, the Provincial Commissioner (pp 62 – 197) marked “G”;
4annexure “AL38” (pp 347 – 396) dated 9 December 2011 from the office of the Premier to the Western Cape Provincial Commissioner of Police containing the Women’s Legal Centre (“WLC”) complaint dated 28November 2011;
5annexure “AL39” (pp 397 – 399) dated 14February 2012 from the office of the Premier to the Western Cape Provincial Commissioner;
6annexure “AL40” (pp 400 – 401) from the Provincial Commissioner to the Premier acknowledging receipt of her referral and advising that the matter has been referred to the SAPS’ head office for instructions;
7annexure “AL42” (pp 406 – 409) from the office of the Premier to the Western Cape Provincial Commissioner dated 22May 2012 referring to her previous letters of 9 December 2011 and 14February 2012;
8annexure “AL43” dated 24May 2012 from the Provincial Commissioner to the Premier acknowledging receipt of her letters and advising that they have been sent to the National Commissioner’s office;
9annexure “AL45” (pp 414 – 415) dated 5June 2012 being a newspaper article quoting the Premier as consulting lawyers about the setting up of a commission of inquiry;
10annexure “AL46” (pp 416 – 483) dated 13June 2012 being a letter from the Premier to the Provincial Commissioner attaching the WLC’s supplemented complaint dated 5June 2012;
11annexure “AL47” (pp 484 – 485) dated 18June 2012 from the Provincial Commissioner to the Premier acknowledging receipt of the letter and advising that the matter has been referred to SAPS head office for handling.
At this point I draw this Court’s attention to the fact in all the letters sent by the Premier of the Western Cape to the Western Cape Provincial Commissioner, the Minister and the National Commissioner were “copied”, and that none of the Premier’s letters are directly addressed or written to the Minister or the National Commissioner.
12annexure “AL48” (pp 486 – 487) being my letter from the National Commissioner to the office of the Premier dated 29June 2012 confirming that I had been briefed in the matter and that I request that everything be held in abeyance pending a further and proper consideration of the matter and indicating my serious commitment to look at the issue and respond in a meaningful way in due course;
13annexure “AL49” (pp 488 – 493) dated 7 June 2012 sent by Major General Ms S J Jephta on behalf of the Provincial Commissioner to the Divisional Commissioner, Inspectorate (Lieutenant-General Tshabalala) which contains a report on the complaints received from the Premier dated 9December 2011;
14annexure “AL50” (pp 505 – 506) dated 3July 2012 being the Premier’s response to my letter to her;
15annexure “AL50-A” (p 507) being a request by the Minister of Police dated 13 July 2012 to the Premier requesting a meeting with the National Commissioner for Wednesday 18July 2012;
16annexure “AL51” (pp 508 – 510) dated 13July 2012 from the Women’s Legal Centre addressed to the National Police Commissioner and the Premier confirming that their clients (including the Social Justice Coalition, the ninth respondent) and the WLC met with the investigative team from the SAPS’ Inspectorate;
17annexure “AL52” (pp 511 – 513) dated 16 July 2012 from the Premier to the Women’s Legal Centre;
18annexure “AL53” (pp 517 – 518) from the Women’s Legal Centre to the Premier dated 19 July 2012 advising the Premier to extend the date for the establishment of the inquiry in order to allow the National Commissioner to consider the additional information to be provided by their clients, to analyse the information, and to investigate the cases;