Amicus curiae – South African National Defence Force – South African Police Service - COVID-19 - Defence Act - High Court - Pretoria
On 26 April 2020, SERI lodged an application to intervene as amicus curiae in an urgent application brought before the North Gauteng High Court on behalf of Mr Collins Khosa’s family. The matter revolves around concerns of abuses and brutality carried out against members of the public during the lockdown imposed by the President to curb the spread of Coronavirus and combat the pandemic. Since the first day of the lockdown on 26 March 2020, there have been numerous reports of abuse, excessive use of force, police brutality and misconduct by members of the South African Police Service (SAPS), South African National Defence Force (SANDF), Municipal Police Departments and other law enforcement officials all of whom have been tasked with enforcing the regulations and directions issued in terms of the declared National State of Disaster.
On 10 April 2020, Mr Collins Khosa died from injuries sustained from an attack by members of the South African National Defence Force (SANDF) who were accompanied by Johannesburg Metro Police Officers (JMPD) when they were patrolling Alexandra township in Johannesburg. SANDF members patrolling the area entered Mr Khosa’s home armed with sjamboks and accused him of breaking lockdown regulations because of the unattended camp chair and a cup of partially consumed alcohol that was in the front yard of his home. After indicating that consuming alcohol on one’s own property did not constitute a lockdown violation, Mr Khosa was attacked along with Ms Nomsa Montsha (Mr Khosa’s life partner) and Mr Thabiso Muvhango (Mr Khosa’s brother-in-law) who were also present at the home.
An urgent application was brought on behalf of Mr Khosa’s family: namely Ms Mphephu Khosa (first applicant), mother of Mr Collins Khosa, Ms Nomsa Montsha (second applicant), and Mr Thabiso Muvhango (third applicant). The applicants seek:
The respondents argue that Section 19 of the Defence Act does not apply to the military’s deployment in support of the SAPS during the COVID-19 crisis and that the existing accountability and investigation mechanisms, which include the Military Ombud and the Independent Police Investigative Directorate, are sufficient to deal with any abuses that occur during the military’s deployment.
Section 19 of the Defence Act provides for the deployment of the SANDF “in co-operation with the South African Police Service … in the prevention and combating of crime and maintenance and preservation of law and order” in terms of Section 201 (2)(a) of the Constitution.
However, SERI submits that Section 19 of the Defence Act must apply to the military’s deployment during the lockdown and that Section 19(3)(c) of the Act makes clear that “service in co-operation with the South African Police Service must be performed in accordance with” a code of conduct, operational procedures and guidelines published by the Minister of Defence.
SERI also submits that the while the SAPS is institutionally separate from the military, during a joint deployment under section 201(2)(a) of the Constitution during for the lockdown, the police and the army become functionally identical, and so closely institutionally intertwined that the SAPS cannot conduct a truly independent investigation. Under these circumstances, SAPS becomes the only body empowered to investigate and hold the military accountable, however, in the absence of a code of conduct developed in terms of section 19 (3) (c) of the Act, any investigation by SAPS into abuses would not be sufficiently independent or transparent.
SERI also submits that the power to adopt a code of conduct under section 19(3)(c) of the Defence Act implies the power and the duty to create appropriate and independent mechanisms to hold military personnel accountable to it.
The application for direct access to the Constitutional Court was dismissed due to insufficient grounds. The applicants then launched an urgent application in the High Court. The matter will be argued before the North Gauteng High Court on 5 May 2020. On 15 May 2020, Judge H Fabricius handed down a judgment in favour of the applicants.
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