Khosa v Minister of Defense: Municipalities warned on enforcing the Lockdown

The recent judgment of Khosa and Others v Minister of Defence and Military Veterans and Others  (Khosa judgment) binds the MPDs of municipalities insofar as it applies to SAPS as the MPDs are established under section 64A of the South African Police Service Act 68 of 1995. The judgment also serves as a warning to MPDs and law enforcement officials to realise the limits of their authority and to safeguard citizens’ rights when policing Lockdown Regulations. This article discusses how the order made by the Court in respect of the SAPS and SANDF serves as a warning to law enforcement officials and MPDs.

 The ‘heavy-handedness’ of Lockdown enforcement

Since the commencement of the Lockdown, there has been a spike in the number of complaints of the security forces’ heavy-handedness in enforcing the Lockdown Regulations. As at 4 May 2020, 38 complaints were reported against the security forces and ranges from murder, assault and rape. Consequently, the heavy-handedness of SAPS and SANDF during the Lockdown has attracted the attention of the United Nations (UN) Human Rights Office which states that South Africa has created a ‘toxic lockdown culture through heavy-handedness and aggressive implementation by law enforcement’. In the Khosa judgment, the Court dealt with some of the abuses and transgressions that were committed by some members of the SANDF and the municipal police during the Lockdown.

Brief summary of the Khosa judgment

In this case, Mr Khosa was accused by some members of the SANDF of having violated the Lockdown Regulations. The SANDF members, in an attempt to ‘prove a point’, assaulted Mr Khosa and damaged his property in the process. While this assault and destruction of property was going, some officers of the Johannesburg Police Metropolitan Department (JPMD) who were present, failed to stop the SANDF members from carrying out these unlawful acts. Three hours after the SANDF and JPMD officers left the premises, Mr Khosa succumbed to his injuries and died in his home. The Court, in finding that the conduct of the SANDF and the JPMD officials was unlawful, made the following order:

·       The right to dignity, the right to life, the right to be free from torture and the right not to be treated or punished in a cruel, inhumane or degrading way are non-derogable rights during a state of emergency;

·       SANDF, SAPS and MPDs must act and instruct their members to act in accordance with domestic and international law;

·       SANDF, SAPS and MPDs may only use minimum force that is reasonable to perform an official duty;

·       The relevant authorities must place all SANDF and JPMD members that were present at, or adjacent to, Mr Khosa’s home on precautionary suspension;

·       The relevant authorities must develop a Code of Conduct and operational procedures regulating the conduct of SANDF, SAPS and MPDs in giving effect to the declaration of the State of Emergency and to make it widely available in newspapers and social media; and

·       The relevant authorities must establish a mechanism for civilians to report allegations of torture or cruel, inhuman or degrading punishment or treatment by SANDF, SAPS or any MPD for the duration of the State of Disaster

What happens to the implicated JMPD officers?

The Court stated that the relevant JMPD officers had a legal duty to intervene by stopping the excessive use of force which was unlawful in the circumstances. The Court ordered that these JPMD officers be placed on precautionary suspension pending an investigation into the charges of misconduct against them. Since the judgment was handed down, the JMPD has undertaken to immediately commence with suspension proceedings against the implicated officers and to institute an investigation into their conduct. The investigation was expected to be finalised on Tuesday, 20 May 2020. This order of the Court warns law enforcement officials and other MPD officers that any failure on their part to intervene when illegal acts are being committed by any of the security forces and to report such conduct to the appropriate chains of command, will expose them to criminal, civil or disciplinary sanctions.

There are non-derogable rights even during a national state of disaster or state of emergency

The Khosa judgment also sends a message to municipalities to ensure that their security officers do not violate any of the non-derogable rights even during a state of emergency. Where the conduct of law enforcement and MPD officials results in the violation of any of these rights during the Lockdown or state of disaster, such conduct will be unlawful and both the municipality and the official will attract civil liability and, in certain cases, criminal liability.

The use of ‘minimum’ or ‘deadly’ force is only permissible under limited circumstances

When issuing the judgment, Justice Fabricius noted a number of complaints where members of the public alleged that they (or someone else) have been assaulted, shot or even murdered by some officers of the JPMD during the first 10 days of April 2020 (see paragraph 18 of the judgment). Like SAPS and SANDF members, law enforcement officers and MPD officials are only authorised to use force under strict circumstances. In this case the Court held that generally SAPS and SANDF should refrain from using force. However, force may be used when an official wants to secure an arrest. Even in such instances, they are only permitted to use minimum force defined as the use of force that is reasonably necessary and proportional. Deadly force will only be justifiable when there is a threat to life.

Publish a Code of Conduct and operational procedures

The Court reasoned that “the fact that the mentioned brutality had taken place suggested that there were members who do not ‘know’ their obligations”.  It could be that some members of the security forces are unaware of their obligations as a result of the extraordinary circumstances of the Lockdown and the joint operations of the security forces. The Court remarked that the current Code of Conduct of SAPS is insufficient for joint-operations with the SANDF. For example, the Code of Conduct of SAPS cannot guide SAPS on how to interact with SANDF members of different ranks, how to guide or restrain them during police exercises, searches, arrests, etc. There is thus a need for a proper Code of Conduct that aimed specifically at providing the security forces with guidance on these aspects. Therefore, the Court ordered that the Minister of Defence and the Minister of Police must, in accordance with section 19 of the Defence Act, to adopt a code of conduct and operational procedures for the SANDF’s service in cooperation with SAPS and MPDs during the Lockdown.

In the context of municipalities, the Code of Conduct which was ordered by the Court will bring greater awareness to MPD officials of when their conduct may be unlawful. The Court ordered that this Code of Conduct be published widely and the channels to report any violations must be communicated to citizens. In this way, the Khosa judgment now provides citizens with a mechanism to report misconduct of security forces, including MPDs in municipalities. The Code of Conduct, which has since been adopted, will not apply to municipal law enforcement officials. However, it should be noted that law enforcement officials are also in joint-operation with SANDF, SAPS and MPDs during the Lockdown. Therefore, to prevent any similar future violations there may be a need for municipalities to develop a Code of Conduct for their law enforcement officials so that they are also guided accordingly. It is suggested that such a Code should not stray too far from the provisions of the Code of Conduct that has been established for SANDF, SAPS and MPDs. This is necessary to ensure that there are uniform standards of behaviour that are expected of any of the security forces in operation during the Lockdown. In addition, a similar reporting mechanism should be established for citizens to report any misconduct of law enforcement officials.

Leaders should watch what they say

The Khosa judgment also makes it clear that leaders need to watch their tone and must communicate responsibly. The Court held that the Minister of Defence’s instruction to ‘skop, skiet and donder when necessary to do so’ was to provide soldiers with powers of punishment which they did not have. Local government leaders have also been found wanting in this respect. The now suspended Mayor, Nkosinjani Speelman, of the Matjhabeng Local municipality endorsed the Lockdown brutality on 8 April 2020 when he informed the SANDF members not to ‘hesitate to skop and donder’ when they enforce the Lockdown Regulations. Therefore, municipal leaders such as the councillors, the mayor, the municipal manager, senior managers, and the chief executive officer or executive head of the municipality’s police service – should have regard to the Constitution and other legislative provisions which bind them when they make statements. This is important because the tone that leaders set at the top is impacting on how the Regulations are being enforced on the ground.

Training of law enforcement and MPD officials on the use of minimum force

Further training on the use of minimum of force may be required given the peculiar conditions of the Lockdown or national state of disaster. The Court made it clear that ‘where police training confines itself to when a firearm is to be used or not is wholly and totally insufficient’ in this context of the Lockdown. Therefore, additional training may be required to inform officials of what qualifies as ‘minimum’ or ‘deadly’ force and which circumstances warrant the use of such force. Further training in many other areas, such as professional ethics, may also be useful to promote respect for human rights and values by members of the security forces.

Concluding remarks

The Khosa judgment symbolises a turning point in the way Lockdown Regulations are being enforced. The judgment restores the fundamental principle that the proper functioning and training of SANDF, SAPS, MPDs, and law enforcement officials is crucial to enhance the promotion and protection of human rights. The judgment is a warning to local government MPDs and law enforcement officials to enforce the Lockdown Regulations subject to the Constitution and with due regard to the fundamental rights of every person or expose themselves to civil, criminal or disciplinary sanctions.  The judgment provides a number of warnings to municipalities and their security forces namely:

·       Law enforcement and MPDs must refrain from committing police brutality by using either no or minimum force

·       MPDs and law enforcement officials have a legal duty to intervene in, and report, cases of police brutality

·       The Code of Conduct that was ordered by the Court will only bind MPDs and not law enforcement officials. Therefore, municipalities are advised to formulate a similar Code of Conduct for law enforcement officials to guide them in their joint-operations with SANDF, SAPS and MPDs

·       Municipal leaders must set the tone that the Lockdown Regulations should be enforced in a lawful manner.

These measures will contribute significantly to changing the ‘toxic’ Lockdown culture that has been created by the heavy-handedness of the security forces witnessed thus far.

By Jennica Beukes, Research assistant, and Doctoral researcher

The publication of the Bulletin is made possible with the support provided by the Hanns Seidel Foundation and the Bavarian State Chancellery.