19 June 2013

Government "duty-bound" to assist South African Human Rights Commission in fulfilment of its mandate

The South African Human Rights Commission (SAHRC) was vindicated in the South Gauteng High Court on 12 June 2013 when an application brought by the Minister of Police to review, set aside and substitute its findings and recommendations was dismissed. The SAHRC's findings related to the ordeal suffered by Chumani Maxwele, the UCT student who was allegedly harassed, detained and abused by members of the President's Special Protection Unit (SPU) in 2010 for supposedly making a rude gesture with his middle finger.

After the incident Maxwele lodged a complaint with the FW De Klerk Foundation's Centre for Constitutional Rights who escalated the complaint to the SAHRC.

Kerry Plots, a Senior Associate in the Dispute Resolution Department at Cliffe Dekker Hofmeyr Inc, acted for the SAHRC. She explains that, "the Centre for Constitutional Rights referred the complaint to the SAHRC because certain of Maxwele's human rights were violated, including his rights to human dignity, security and freedom of the person, privacy, freedom of expression, peaceful and unarmed demonstration, political freedom, and the rights afforded to detained persons."

"In May 2010 the SAHRC advised the Section Head of the SPU of the complaint lodged by the Centre for Constitutional Rights and requested a substantive response from the Minister of Police. The SAHRC is still waiting for that response" Plots says.

"Notwithstanding numerous letters and phone calls the only response received from the Minister was on 27 August 2010 when the SAHRC was told that the Minister's opinion was that, because criminal charges were pending and because Maxwele intended to institute an action for damages, it should be left to the courts to pronounce on the matter."

Having received no substantive response from the Minister, the SAHRC handed down its findings and recommendations on 6 July 2011. After examining the evidence before it, the SAHRC found that Maxwele's human rights had been violated by the Minister and the SPU. Plots explains that the SAHRC recommended that, on behalf of all the members or employees who were involved, the Minister should make a full written apology to Maxwele for their unlawful and unconstitutional behaviour. The SAHRC also recommended that the Minister and the SPU should submit a report to the SAHRC indicating a plan to implement the following:

  • That the Minister and the SPU acknowledge that they accept the supremacy of the Constitution and the rule of law, as well as the duty of the State to respect, protect, promote and fulfil the rights contained in the Bill of Rights; and
  • That steps should be taken in terms of the Constitution to ensure that the SAPS acts, teaches and requires its members to act in accordance with the Constitution and the law.

Plots says that the Minister was advised of the SAHRC's findings and numerous unsuccessful attempts were made to obtain his response. Eventually the SAHRC told the Minister that it intended to approach the High Court in order to enforce its findings and recommendations. The Minister eventually lodged an appeal against the findings and recommendations with the SAHRC at the eleventh hour, some three days after the expiration of the period allowed for appeal.  The appeal was dismissed by the SAHRC on 24 November 2011.

"In response the Minister launched an application to review, set aside and substitute the SAHRC's decision on appeal to the South Gauteng High Court in January 2012. The SAHRC, the Centre for Constitutional Rights and Maxwele were all cited as respondents. Cliffe Dekker Hofmeyr Inc was instructed to oppose the application on behalf of the SAHRC. We have acted pro bono throughout the entire process as have the counsel on brief," explains Plots.

The Minister's application was heard on 12 June 2013 before Judge Claasen and was dismissed after hearing argument from both sides.

“The judge said that in terms of the merits of the case, he could do no better than to refer to the comments of Nicola de Havilland, the then-Director of the Centre for Constitutional Rights, made in the letter lodging the complaint with the SAHRC. Ms de Havilland stated that, "The attitude of the police members involved reveals a shocking ignorance of the Bill of Rights and of their overriding duty to uphold the Constitution and the rights that it assures.  It is reminiscent precisely of the attitude of intolerance, the unfettered power and the lack of accountability that characterised the conduct of the police during the apartheid regime and that resulted in the wide spread suppression of the freedom and rights of the people of our country".  Claasen J found that the HRC correctly upheld the view of the Centre for Constitutional Rights," Plots notes.

"The judge also found that, in consistently failing to substantively respond to the complaint of the Centre for Constitutional Rights and Maxwele, the Minister had displayed a disconcerting attitude which, if not downright contemptuous of the SAHRC, at the very least showed disrespect for the SAHRC's standing as a body instituted by the Constitution and tasked with a duty to investigate events where human rights are violated.  The judge stated that the Minister is duty bound as a member of the Executive to give his full cooperation to the SAHRC and to show respect to the SAHRC in order to enable the SAHRC to execute its own duties expeditiously, timeously and effectively.  Claasen J accordingly found that the Minister's conduct fell far short of his duty to assist the SAHRC," she adds.

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