Minister of Police and Others v Premier of the Western Cape and Others

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J
• Judgment Date: 01 October 2013
• Citation: 2014 (1) SA 1 (CC)
• Hearing Date: 06 August 2013
• Docket Number: CCT 13/13 [2013] ZACC 33
• Counsel: N Arendse SC (with M Donen SC, T Masuku and L Ferreira) for the applicants. S Rosenberg SC (with D Borgström and M Adhikari) for the first and second respondents. A Katz SC for the third respondent. P Hathorn (with N Mayosi, T Ngcukaitobi and M Bishop) for the ninth respondent.

Moseneke DCJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurring): D

Introduction

[1] This case concerns a dispute between organs of state in the national and provincial spheres. The Minister of Police (minister) and the National Commissioner of the South African Police Service (commissioner) E contest the power of the Premier of the Western Cape Province (premier) to appoint a provincial commission of inquiry with powers to subpoena [1] members of the South African Police Service (Police Service) to appear before it over allegations of police inefficiency. In turn, the premier asserts that she derives the power from the Constitution and related provincial legislation.

Background F

[2] This matter has its origins in the township of Khayelitsha, located in the Western Cape province. Khayelitsha is one of the largest and fastest-growing townships in South Africa, forming part of the city of G Cape Town. [2] It is a densely populated settlement, carrying approximately 750 000 residents. The rights and interests of these residents lie at the heart of this dispute.

[3] On 28 November 2011 the eighth respondent (Women's Legal Centre), acting on its own and on behalf of various H civil-society organisations, including the ninth respondent (Social Justice Coalition), [3] delivered a complaint to the premier regarding alleged inefficiencies in the performance of the Police Service and the City of Cape Town

Moseneke DCJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurring)

A Municipal Police Department (Metro Police) operating in the community of Khayelitsha. The complaint cited 'widespread inefficiencies, apathy, incompetence and systemic failures of policing routinely experienced by Khayelitsha residents'.

[4] The complaint contained statistics showing high and escalating B crime rates, with particular concern over figures relating to homicides, assaults and sexual crimes. Various and serious inefficiencies in policing were claimed, including insufficient visible policing in the community, lack of witness protection, lack of co-ordination between the police and C prosecuting services and poor treatment of victims of crimes. The complaint described the routine violation of the rights of the residents of Khayelitsha [4] and highlighted the impact of high crime rates on residents, including children and people vulnerable to discrimination. It added that 'the [Khayelitsha] community has lost confidence in the ability of the police to protect them from crime, and to investigate crimes once they D have occurred'. The civil society organisations concerned proposed that the premier appoint a commission of inquiry into the Police Service and Metro Police operating in Khayelitsha.

[5] Within two weeks of receiving the complaint, the premier forwarded it to the provincial commissioner of police for the Western Cape E (provincial commissioner) and copied the correspondence to the minister and the acting national commissioner. [5] She requested comment, by 30 January 2012, on the substance of the complaint as well as the method that had been proposed to deal with the issues raised. Over a period of approximately nine months correspondence was exchanged F between the parties. The details of the exchanges are not pertinent at this stage. Suffice it to say, over nine months the premier sought the response of the provincial commissioner over the complaints and how they could be addressed. In this correspondence the minister and the acting national commissioner were copied. During that time the premier received further evidence and complaints over a 'breakdown in the rule G of law' in Khayelitsha and its adverse impact on residents.

[6] Early in July 2012, seven months after the original complaint, the provincial commissioner requested a task team to investigate the issues raised in the complaint. The provincial commissioner requested the task team to broaden the scope of its investigation and to investigate 'any H other aspects they may consider helpful in improving the overall quality of service delivery in Khayelitsha'. It appears that neither the premier nor the complainant organisations were informed of further steps that the Police Service would undertake as a result of the task-team investigation.

Moseneke DCJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurring)

[7] The premier claims that in the light of delays in securing substantive A responses to the complaints and the failure to reach consensus with the minister and the commissioner on the way forward, she approached the provincial cabinet. The provincial cabinet approved the proposed appointment of a commission of inquiry. On 22 August 2012 the premier conveyed to the public her decision to appoint a commission. B On 24 August 2012, almost nine months after the original complaint had been received, the premier appointed a commission of inquiry (Commission) into allegations of police inefficiency in Khayelitsha and of a breakdown in relations between the community and police in Khayelitsha. [6] It appears from the Proclamation that the Commission was appointed in terms of s 206(3) and (5) read with s 127(2)(e) of the C Constitution and s 1(1) of the Western Cape Provincial Commissions Act [7] (WC Commissions Act).

[8] The minister was not pleased. He sent a letter to the premier stating that the Commission was appointed 'without either discussing the D matter with [him] or notifying [him] of [her] intended actions' and that the appointment of the Commission was 'premature and may impact on other initiatives currently underway'. He further requested the postponement of the Commission's work so as to discuss the matter. The premier replied that she was open to further discussion but declined to postpone the work of the Commission at that stage. On 6 September 2012 the E Commission published a notice of its provisional working methods.

[9] Between September and October 2012 the premier and the minister exchanged letters and met. It is unnecessary to delve into the details. The critical point is that by the end of October 2012 it was clear that the minister had a variety of concerns regarding the appointment of the F Commission, including the ambit of the Commission's terms of reference and the subpoena powers of the Commission. It was also apparent that the premier was unwilling to accede at that stage to the request for the postponement of the Commission's work.

[10] On 30 October 2012 the Commission issued a subpoena to the provincial commissioner requiring the production of certain evidence. G

Moseneke DCJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurring)

A The following day subpoenas were issued to three station commanders. Within a week the applicants brought an urgent application in the Western Cape High Court (high court) for an order restraining the Commission from issuing and giving effect to the subpoenas, and directing it to suspend its activities pending a decision on the final review B application to set aside the premier's decision to appoint the Commission. The appointment was challenged on the basis that it was inconsistent with the Constitution, invalid, irrational or unlawful.

In the high court

C [11] The temporary interdict application was heard by a full court of the high court. The majority (per Yekiso J, Traverso DJP concurring) held that the power of the premier to appoint a commission was an original and discretionary power derived from the Constitution. It held that the premier was entitled to exercise the power by appointing a commission in terms of the WC Commissions Act in the manner she did. The D provisions of that Act, the majority reasoned, conferred powers of subpoena upon the Commission. Therefore, in the absence of a challenge to the constitutionality of those provisions, the Commission's subpoena powers were held to be constitutionally compliant. Further, the majority dismissed the contention of the minister that the premier had violated the principles of co-operative governance and inter-governmental E relations as set out in s 41 of the Constitution. [8] It concluded that in setting up the Commission, the premier did not act irrationally or unlawfully, and dismissed the urgent application.

[12] In a minority judgment Saldanha J took the view that, although the F premier had the power to appoint the Commission, the parties had not exhausted their obligations under s 41 to engage with one another to explore appropriate means of avoiding or resolving the dispute between them in relation to policing in Khayelitsha. He concluded that he would have granted the interdict and ordered the parties to take steps to resolve the conflict.

In this court G

Leave to appeal

[13] The minister and the commissioner approached this court seeking: first, leave to appeal against the decision of the high court; [9] and, second, H direct access on new and additional grounds. [10] However, in oral argument applicants conceded that it would be neither necessary nor in the interests of justice to deal with the application for leave to appeal if their direct-access application were granted.

[14] That concession was properly made. The appeal was directed I against the high court's refusal to grant an urgent temporary interdict. However, that dispute has been superseded by the substantive relief that

Moseneke DCJ (Mogoeng CJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurring)

the applicants ask for in the...