Dikgang Moseneke on Mthethwa versus Zille: What about the people?

Nathi Mthethwa Dikgang Moseneke on Mthethwa versus Zille: What about the people?

Deputy Chief Justice Dikgang Moseneke has lashed Police Minister Nathi Mthethwa’s lawyers for forgetting about the rights of Khayelitsha residents who were “suffering from the burden of crime”.

The Constitutional Court yesterday heard argument in the turf war between Mthethwa and Western Cape Premier Helen Zille over the appointment of a commission of inquiry into a breakdown of community faith in the police in Khayelitsha.

Moseneke appeared dissatisfied with the fact that the majority of the argument before the court dealt with whether Zille’s commission should have the power to subpoena members of the police.

Addressing Norman Arendse, the advocate who represented the Mthethwa and the police before the court, Moseneke said: “I haven’t heard an iota of evidence or a suggestion that there is not a proliferation of crime (in Khayelitsha), that people are not suffering from the burden of crime or even that there is effective policing … I haven’t quite heard you go there and raise that concern.”

Arendse said he disagreed, pointing out that an internal police report he had referred to was “itself damning in many respects and is indicative of shortcomings in the police service”.

This report, which City Press reported on last year when it was filed as part of the court record, noted that the three Khayelitsha stations collectively recorded 78 incidents between April 2011 and June 2012 this year related to what it calls “bundu courts” or vigilante courts.

Arendse said the report shows “police still perform their core functions but also highlights many deficiencies”.

Quipped Moneke: “Then do your clients accept the obvious connection between vigilantism and inadequeate policing?”

Arendse said this was why Mthethwa had proposed appointing a task team which would include the Social Justice Coalition (SJC), the NGO which has been the driving force behind the campaign for a commission of inquiry into community safety in Khayelitsha.

“The problem that the SJC and the premier subsequently raised was that this task team would only be reporting to the minister. The police have shown concern on many levels and that’s on the record,” argued Arendse.

Central to the case before the court is whether Zille could give a commission of inquiry the coercive power to subpoena police witnesses to appear before it and to produce police documents.

Zille exercised this power in terms of Chapter 11 of the Constitution, which deals with policing.

The section says “a province may investigate, or appoint a commission of inquiry into any complaints of police inefficiency or a breakdown in relations between the police and community”.

The Chapter 11 power is separate from the power a premier is given “to appoint commissions of inquiry” in terms of Chapter 6 of the Constitution, which deals with the provinces, including the powers of the premiers.

All parties accept that a commission appointed by the premier in terms of Chapter 6 would be able to subpoena witnesses.

The problem the Constitutional Court has to grapple with is whether the Chapter 11 commission can subpoena witnesses, given the fact that Chapter 11 places the control and management of the police under national government.

Arendse argued that the power to subpoena meant the commission was usurping a competence of national government.

Arendse argued that the constitution limits the province’s role to monitor police conduct and oversee the effectiveness and efficiency of the provincial police service.

He said the fact that Zille had conferred the power to subpoena witnesses to the Chapter 11 commission meant she was “extending the reach of the provincial authority”.

Arendse said the police accepted there was a basis for a commission of inquiry but insisted that the commission work through the Civilian Secretariat for Police, which has the power to subpoena witnesses.

Sean Rosenberg, who appeared for Zille, argued that the police were creating an “artificial distinction” between the two separate powers to appoint a commission.

He said the power to subpoena witnesses was an inherent power of a commission of inquiry.

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