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The Sunday Times v. United Kingdom (No. 2)
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The North Gauteng High Court in South Africa issued a declaration that law enforcement officials are bound by the Constitution, the law and international treaties when enforcing Regulations enacted to address the coronavirus pandemic, and that the military and police were obligated to investigate torture. After an individual was assaulted and killed by members of the military deployed to enforce the Regulations, his family approached the Court. The Court held that the law enforcement officials had not adhered to their legislative obligations and that the processes in place did not meet the requirements for investigating torture as set out in the UN Torture Convention. The Court stipulated the actions law enforcement needed to take to investigate the assault, and imposed strict timelines for the completion of these investigations.
On March 15, 2020, the President of the Republic of South Africa declared a state of disaster in response to the coronavirus pandemic. On March 25, 2020, the Minister of Cooperative Government and Traditional Affairs issued Regulations in terms of the Disaster Management Act, 57 of 2002 which restricted the movement of persons and prohibited the sale of alcohol and the consumption of alcohol in public places to limit the spread of the virus. On the same day, the President deployed the South African National Defence Force (SANDF) to assist the South African Police Service (SAPS) to enforce the Regulations.
On April 10, 2020, two members of the SANDF approached a house in Alexandra, Johannesburg and questioned the occupants about the half-full cup of alcohol in the yard. The SANDF members then entered the house, and confiscated items of alcohol in the fridge. One of the occupants, Collins Khosa, informed the SANDF members that it was not illegal to consume alcohol in private residences and objected to the SANDF damaging his car on their way out of the yard. The two SANDF members took Khosa and another occupant, Thabiso Muvhango, outside and called for reinforcements. Three more SANDF members approached the group and Khosa was assaulted: beer was poured on Khosa’s head; his hands were held behind his back while he was choked; he was slammed against a concrete wall and steel gate; and he was kicked, slapped and punched and hit with the butt of a machine gun [para. 34]. Muvhango was also assaulted.
The attack was witnessed by neighbors and was filmed on a mobile phone camera. The SANDF members left the scene and residents took Khosa into the house and, when he became unresponsive, called the Emergency Services who pronounced Khosa dead on their arrival. The death notice cited blunt force trauma as the cause of death.
The Minister of Defence and Military Veterans (the Minister of Defence) had made various statements on the role of the SANDF during the lockdown: on March 25 she said that “it will only be skop, skiet en donder [an Afrikaans saying meaning “kick, shoot and assault”] when circumstances dictate; and after Khosa’s death she said that citizens “should not ‘provoke’ the soldiers” [para. 36-37]. The Minister of Police also used similar language, encouraging police officers to “push South Africans back to their homes” if they violate the lockdown [para. 39].
On April 14, 2020, Khosa’s spouse, Mphephu Khosa, his life partner, Nomsa Monthsha, and his brother-in-law, Thabiso Muvhango (the applicants) wrote to the Minister of Defence, requesting information on the SANDF members involved in the attack and that the Minister and the President publicly condemn the conduct of those members. They also asked for a report on what steps had been taken by the SANDF and the Johannesburg Metropolitan Police Department in disciplining their members involved, and for financial support for Khosa’s minor children. Unsatisfied with the response received, the three then approached the High Court.
The applicants applied for two forms of relief: 1) a declaratory order that all individuals within South Africa are entitled to the rights protected by the Bill of Rights, that all law enforcement agencies must act in accordance with the Constitution respect, protect, promote and fulfil the rights in the Bill of Rights, and “use only the minimum force that is reasonable to perform an official duty”; and that all law enforcement agencies are bound by the Prevention and Combating of Torture of Persons Act, 13 of 2013 (the Torture Act) and the UN Convention Against Torture and other cruel, inhuman or degrading treatment or punishment (UNCAT); and 2) an order that the law enforcement agencies take action to investigate Khosa’s assault and discipline those found responsible.
The case was brought against the Minister of Defence, the Secretary for Defence, the Chief of the SANDF, the Minister of Police, the National Commissioner of SAPS, the Chief of the Johannesburg Metropolitan Police Department, the Chief of the Ekurhuleni Metropolitan Police Department, the office of the Military Ombud, the Independent Police Investigative Directorate, and the Minister of Cooperative Governance and Traditional Affairs.
The Socio-Economic Rights Institute was admitted as an amicus curiae. The Fair and Equitable Society also applied for admission as an amicus but this was rejected by the Court.
Judge Fabricius delivered the judgment of the High Court. The central issues for the court were to determine whether it should issue a declaratory order on the legal rights and obligations in South Africa and whether the law enforcement agencies had done what is constitutionally required of them in investigating Khosa’s death.
The applicants argued that that all those present in the territory of South Africa were entitled to the protection of the Bill of Rights, and specifically the rights to dignity (under section 10 of the Constitution), to life (under section 11), to not be tortured (under section 12(1)(d)), and to not be treated or punished in a cruel, inhuman or degrading way (section 12(1)(e)). In addition, they argued that section 199(5) of the Constitution obligated the SANDF and all police departments to act in accordance with the Constitution and all other domestic and international laws, and that section 7(2) required them to “respect, protect, promote and fulfil the rights in the Bill of Rights”. The Defence Act, 42 of 2002 and the South African Police Service Act, 68 of 1995 stipulate that officers may “use only the minimum force that is reasonable to perform an official duty”. The applicants also sought a declaration that that law enforcement agencies are bound by the provisions of the Torture Act and UNCAT.
The applicants argued that the various government ministers, law enforcement agencies and accountability mechanisms did not have the requisite structures to effectively investigate the assault on Khosa (and other instances of police or military brutality) and to hold those responsible accountable. This included not having a specific code of conduct and operational procedure for the cooperation between the SANDF and SAPS during the lockdown, as well as a mechanism for individuals to report instances of torture. The applicants also submitted that the specific actions taken by the SANDF and the SAPS to investigate Khosa’s assault were insufficient and that the Court should order an investigation and monitor that such an investigation is conducted.
The State officials accepted that the Bill of Rights and legislative framework conferred rights and responsibilities on individuals and law enforcement agencies but that it was not necessary for the Court to make such a declaration because it was unnecessary. The State officials argued that there was a SAPS Code of Conduct and so there was no obligation to adopt a specific code for the lockdown cooperation between the SANDF and the SAPS, and that there was no need for law enforcement officials to be reminded (through warnings and commands) of their obligations under the Constitution, legislation and international treaties [para. 66].
The Court emphasized that the case was “not about the justification for the Lockdown or its extent … [i]t is about combating Lockdown brutality” and about whether law enforcement agencies had done what is constitutionally required of them to combat that brutality [para. 24]. It also confirmed that the case did not concern whether or not the Regulations were lawful or valid. The Court did make some comments on some of the Regulations, which it thought were “seemingly irrational”, such as purchasing only certain items at supermarkets, and questioned the point of the Regulations if they may result in the containment of the virus but “the result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of the person and overall, the maintenance of the rule of law” [para. 6].
The Court recognized that all parties had acknowledged the necessity of the lockdown but noted that the present case had to be seen in the context of the existing distrust between the population and the government. It characterized the social contract as including the requirement that government should make regulations which “intrude upon the rights of people (and businesses) either not at all or if they do, or justifiably must, the least restrictive measures, much be sought, applied and communicated to the public” which would then allow government to “justifiably expect the citizens to co-operate for the common goal, take responsibility to ensure their own safety and that of others” [para. 7]. Here, the Court stressed that for this social contract to work, government must be accountable and transparent, but that “there is a large measure of distrust between the South African populace and the government”, particularly around the treatment of the population under the Regulations and fear over what would happen to the economy after the lockdown [para. 19]. The Court commented that “[i]t is no exaggeration to say that the national psyche has thus been negatively affected by the lock-down Regulations” [para. 19].
The Court noted that the Regulations did not confer any power on law enforcement to damage property, but that they did provide that no person was “entitled to compensation for any loss of damage arising out of any act or omission by an enforcement officer” which – the Court commented – seemed to provide indemnity to law enforcement officials [para. 43].
In respect of the applicants’ request for a declaratory order, the Court acknowledged that this would amount to a “re-affirmation of the law that is applicable in South Africa in the present context” [para. 66], but reiterated that the applicants were entitled to approach the Court under section 38 of the Constitution which allows anyone to approach a court to allege that a right in the Bill of Rights has been infringed, and that the Court is entitled to grant “appropriate relief” – including a declaratory order. It described one of the objectives of declaratory relief as the deterrence of future rights violations, and stated that “[t]he present facts cry out for a declaratory order in my opinion” [para. 70].
In examining the obligations on law enforcement officials, the Court conducted a thorough analysis of the legislative framework. It noted that section 4(4) of the Torture Act stipulates that there are no circumstances – including a state of emergency – which would justify torture, and that section 10 obliges the State to promote awareness of the prohibition against torture. The Defence Act, the SAPS Act and the Criminal Procedure Act, 51 of 1977 stipulate that all law enforcement duties must be exercised subject to the Constitution, that only the minimum required force may be used and that deadly force may only be used where there is a threat to life. In addition, section 19 of the Defence Act requires that the Minister of Defence approve a code of conduct and operational procedures to be used for each specific instance of cooperation between the SANDF and SAPS. The Court held that this provision applied to the deployment of the SANDF for enforcement of the Regulations, and that the Defence Minister had therefore failed to uphold her obligation under section 19 and that the Police Minister was incorrect in arguing that the existing standard SAPS code of conduct was sufficient, as that code did not address cooperation with the SANDF and that it would not have encompassed the “extraordinary circumstances of the lockdown” [para. 117].
The Court referred to articles 12 and 13 of the Torture Convention, which require “a prompt and impartial investigation” when torture is suspected and that anyone who alleges to have been the victim of torture has the right to make a complaint and to have that complaint examined [para. 131]. The Court also referred to the 2002 African Commission on Human and People’s Rights’ Robben Island Guidelines which gives effect to article 5 of the African Charter on Human and People’s Rights. In discussing South Africa’s adherence to their obligations under the Torture Convention, the Court referred to the 2017 observations from the UN Committee Against Torture on South Africa’s adherence to the UNCAT which had noted that the domestic legislation does not adequately provide for mechanisms for complaints and investigations. The Court commented that “[i]t is abundantly clear that the view of [the Committee] is that South African’s existing investigative bodies have not been performing and do currently not have the capacity to perform the ‘prompt and impartial’ investigation required by the Torture Convention” [para. 136]. It added that the example of the assault on Khosa demonstrated these inadequacies as the investigation was launched almost a month after the assault and did not include a medical examination or interviews of any of the witnesses. The Court also found that the functioning of the Independent Police Investigative Directorate and the office of the Military Ombud were inadequate, incompetent and not sufficiently independent.
Accordingly, the Court agreed with the applicants’ submission that “there is no existing mechanism capable of conducting prompt, impartial and effective investigations of lock-down brutality” [para. 141], and ordered the Defence and Police Ministers to “establish one urgently” [para. 141].
The Court addressed the relief sought by the applicants for the suspension pending disciplinary measures of implicated officials. In noting the need to prevent the “culture of impunity”, the Court recognized that Courts are entitled to order suspensions of officials before wrongdoing has been proven, and that making such an order “is not a drastic measure at all, but it would instil public confidence” [para. 87]. In respect of the relief sought for commands and warnings to adhere to the law to be issued to the law enforcement officials, the Court reiterated that section 199(5) of the Constitution obliges the security services to act in accordance with the Constitution and domestic and international law. The Court criticized the Minister of Police for not providing any evidence for their statements that “SAPS members know of their obligation to respect fundamental rights and the obligation to report any transgression by their fellow employees” [para. 94], and commented that it was “difficult to understand” their objection to the application for these commands and warnings to be repeated [para. 97].
The Court identified comments made by the Ministers of Defence and Police which had aggravated the situation between the population and law enforcement, and criticized the Minister of Defence for implying some form of equivalence between civilians disobeying the lockdown regulations and the law enforcement’s unlawful use of force, and for criticizing citizens’ behavior. The Court noted that the comments that citizens should not provoke officials implied that Khosa had “provoked the security forces and thus bore some blame for his death” [para. 92]. It characterized these comments as having the effect of not condemning police and military brutality and implying that the protections enjoyed in a constitutional democracy are “conditional upon members of the public not ‘provoking’ law enforcement officials [para. 38].
In granting all the relief sought by the applicants, the Court issued both a declaratory order and made specific orders setting out the action law enforcement entities must take. The Court declared that “during, and notwithstanding the declaration of the State of Disaster and the Lockdown under the Disaster Management Act 57 of 2002 all persons present within the territory of the Republic of South Africa are entitled to (among others) the following rights, which are non-derogable even during states of emergency: the right to human dignity …, the right to life …, the right not to be tortured in any way …, the right not to be treated or punished in a cruel, inhuman or degrading way” [para. 146]. In addition, it declared that all law enforcement entities “must act, and must instruct their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic” and that all organs of state must respect, protect, promote and fulfil the rights in the Bill of Rights. It also declared that all members of the SANDF and SAPS could “use only the minimum force that is reasonable to perform an official duty” and that they were bound by the Torture Act and Convention [para. 146].
The Court ordered the Ministers of Defence and Police and the Secretary for Defence and the Chief of the SANDF to, within five days, place members of the SANDF present at the assault on precautionary suspension pending the outcome of disciplinary proceedings; to, within two days, command all SANDF and police members to adhere to the prohibition against torture and to apply minimum force in enforcing the law; to, within five days, warn all members that a failure to “report, repress and prevent” torture would result in criminal, civil and/or disciplinary sanctions; and to, within seven days, inform the Court that all this had been done [para. 146].
The Court also ordered the Ministers of Defence and Police to develop a code of conduct and operational procedures for the lockdown period and publicly publish guidelines on the use of force; the enforcement of the lockdown regulations; enforcing social distancing and the restriction of movement; when a person may be arrested and alternatives to arrest and detention pending trial; and information on where complaints can be lodged.
The Court also ordered the Defence and Police authorities to, within five days, “establish a freely accessible mechanism for civilians to report allegations of torture” and publicize the information about this mechanism.
The Court also ordered the Ministers of Defence and Police to ensure that investigations into the treatment of Khosa (and any other person whose rights may have been infringed during the state of disaster) be conducted and completed before June 4, 2020 [para. 146].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court confirmed that all law enforcement officials are bound by national and international laws prohibiting torture – even in a state of disaster – and that individuals who challenge police and military brutality remain protected by the rights in the South African Bill of Rights.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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