Khosa case: Going straight to the Constitutional Courtroom isn’t at all times the precise path


From Day One of many Covid-19 lockdown, there have been allegations of brutality and abuse of power from the lockdown’s enforcers, the police and the South African Nationwide Defence Pressure (SANDF). This reportedly contains nine deaths

And, even after Collins Khosa was allegedly crushed to loss of life by troopers and metro police in Alexandra in Johannesburg on Easter Friday, new allegations have emerged: a lady was arrested and brutalised for selling atchar with out a allow, a Muslim prayer gathering was damaged up with pointless aggression. 

But final week the Constitutional Courtroom dismissed the Khosa household’s direct entry software on the grounds that they’d not proven “ample grounds” for direct entry to the very best courtroom.

Khosa’s household had approached the Constitutional Courtroom on an pressing foundation to forestall additional police and armed forces brutality in the course of the lockdown and nationwide state of catastrophe. They requested the courtroom to order that the SANDF undertake a code of conduct at some stage in the state of catastrophe. 

“Their [security force’s] conduct should be regulated by the Structure, in contrast to what has occurred till now the place among the troopers have performed themselves as if they’re above the Structure,” stated Khosa’s life companion, Nomsa Montsha in an affidavit.

The household additionally requested for numerous orders that may arrange a course of for the speedy reporting and investigation of police and armed forces brutality. This would come with a staff to obtain complaints and look into what’s reported, in addition to a particular investigation led by a retired choose.

The Constitutional Courtroom’s order was not a judgment on whether or not the Khosa household’s case was a great or a foul one. As an alternative, the very best courtroom’s determination was based mostly on a view that the household had not met the very excessive bar set for when it is going to settle for a case with out it having gone by way of the decrease courts.

The Constitutional Courtroom is an appellate courtroom, which signifies that within the unusual course it solely hears appeals from decrease courts. It’s also the very best appellate courtroom in South Africa — as soon as it has dominated, that’s the finish of the street. It’s due to this fact dangerous for the very best courtroom to be the primary and the final courtroom as a result of it has not had the advantage of different judges’ views.

“Expertise reveals that selections usually tend to be appropriate if a couple of courtroom has been required to contemplate the problems raised,” stated the Constitutional Courtroom in 1998.

This is without doubt one of the explanation why, regardless that direct entry is allowed, it is just in actually distinctive circumstances that it is going to be granted. 

Except the case entails one thing that falls inside the unique jurisdiction of the Constitutional Courtroom, the check set within the courtroom’s guidelines for when direct entry shall be granted is “the pursuits of justice”.

Through the years, the Constitutional Courtroom has fleshed out what this implies in apply. The courtroom will ask whether or not somebody has exhausted all different obtainable avenues, how pressing and essential the problems raised are, whether or not there shall be factual disputes (which frequently requires proof to be led and appellate courts usually are not arrange for this), the time and prices concerned and whether or not the case has good prospects of success. 

However the determination is determined on a case by case foundation, the courtroom has additionally stated. So there is no such thing as a cookie-cutter reply to when the very best courtroom will grant direct entry. With all of the competing elements to be weighed up, the check is usually a slippery one, making it onerous for a litigant to know whether or not they are going to succeed. 

When the Constitutional Courtroom dismisses an software in a single terse line — because it did in Khosa’s case — we’re additionally left guessing as to what was the premise for the refusal. 

In Khosa’s case, the argument for urgency was sturdy, as was the argument for a way essential the problems have been. In her founding affidavit, Montsha stated the precise to life, to dignity and to be free from torture and inhuman and degrading punishment have been all non-derogable rights: even below a state of emergency, which isn’t in place, these rights can by no means be suspended. 

The military was required by regulation to have pointers in place when it did joint operations with the police for regulation enforcement. But when these pointers have been requested for, none have been forthcoming. The safety forces have been performing like they have been a regulation unto themselves, she stated. 

Already 9 folks had died, and “members of the general public dwell in concern that they are going to be subjected to degrading and merciless punishment and at worst, loss of life, by the hands of the SANDF and the SAPS [South African Police Services]”. Every single day that the military went out, unguided, to implement the lockdown, was placing folks’s rights  and lives in danger.

Khosa’s household additionally stated there have been distinctive circumstances: within the historical past of South Africa’s democratic historical past, there has by no means been such a deep incursion into folks’s rights as there was within the state’s response to the Covid-19 pandemic. 

The Constitutional Courtroom didn’t clarify the way it got here to its conclusion that there have been inadequate grounds for direct entry. However the Khosa household’s argument for why it couldn’t get aid from a decrease courtroom was not as sturdy. In her affidavit Montsho stated the allegations of police abuse have been unfold all through the nation. 

“The truth that that is occurring on a nationwide scale makes it tough for a single choose in a single division to resolve the issue. Approaching judges in all divisions is an added sensible issue. Lots of the individuals who have been tortured or killed are from poor and indigent communities … the sheer value of coordinated and nationwide litigation, with a number of candidates and respondents, is one we can’t bear,” she stated.

“On steadiness, the candidates had little alternative however to strategy this courtroom,” stated Montsha.

However the order that the household sought from the Constitutional Courtroom may, and nonetheless can, be obtained from the excessive courtroom. Certainly, Khosa’s household has now approached the excessive courtroom for the very same order — the one distinction is that, in the case of metropolitan police departments, solely the Gauteng ones which have been cited. In sensible phrases, if the order is granted, it is going to, for essentially the most half, apply on a nationwide scale.  

If — and it’s probably — the excessive courtroom order is appealed, it is going to in all probability find yourself in Braamfontein anyway. However the judges there could have a excessive courtroom judgment to work with.