The Report of the Commission of Inquiry
into Allegations of Police Inefficiency and
a Breakdown in Relations between SAPS
and the Community in Khayelitsha
Click here to view the Final Report August 2014
All the documents that formed part of the Commission’s deliberations are now on the website under the ‘Bundles’ menu.
1. This Commission of Inquiry was established in terms of section 206(5) of the Constitution. Its terms of reference are to investigate complaints of police inefficiency and an alleged breakdown in relations between the South African Police Services and the Khayelitsha community. Once it has investigated these allegations of inefficiency and a breakdown in the relationship between the community and the SAPS in Khayelitsha, the Commission must make recommendations to the MEC for Safety and Security in the Western Cape as to how any inefficiency and/or breakdown in the relationship between SAPS and the community may be improved or resolved.
2. It is important to understand that the Commission’s roots lie in two different but equally important parts of our Constitution. The first relates to the rights of citizens. Section 12 of our Constitution states that everyone has the right to freedom and security of the person, which includes the right “to be free from all forms of violence from either public or private sources”. The right to be safe from violence in one’s community and elsewhere is thus a key constitutional right.
3. The second relevant aspect of our Constitution is the constitutional principle that the exercise of all public power must be consistent with the law and the Constitution and give effect to the constitutional values of accountability, responsiveness and openness. In order to ensure that public power is exercised accountably, responsively and openly, the Constitution creates a range of checks and balances on the exercise of power. A system of checks and balances in a constitution is often referred to as the separation of powers. Checks and balances in our constitution take many different forms: for example, the national Parliament is entrusted with the task of “scrutinising and overseeing executive action”: so the action of the President and Ministers, and the bureaucracy that falls under them, must be scrutinised by Parliament. Another example is the chapter 9 institutions such as the Auditor General, the Public Protector and the various rights commissions that have specific powers and tasks all aimed at creating checks and balances on the exercise of power to promote accountability, responsiveness and openness in our constitutional democracy.
4. The mandate of this Commission thus needs to be understood in the light of the constitutional rights of citizens and of the broader constitutional framework of checks and balances. Chapter 11 of the Constitution (where the power to establish this Commission is found) regulates the security services: the Defence Force, the Police and the intelligence agencies. Its opening clause (section 198(a)) states that “[n]ational security must reflect the resolve of all South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”. Moreover section 199 makes plain that the security services, including SAPS, and their members have a duty to act without favouring or prejudicing any particular political party.
5. Section 205 states that the national police service (SAPS) must function in the national, provincial and where appropriate local spheres of government. The same section provides that the objects of the SAPS are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of our country and to uphold and enforce the law. SAPS therefore has a key role to play in ensuring that people’s constitutional rights to security of the person are respected.
6. Although the Constitution makes plain that the police service is a national institution under the control of the national executive, the monitoring of the police service is not an exclusive national power. Instead the Constitution provides that provincial governments are entitled to monitor police conduct, oversee the effectiveness and efficiency of the police service, promote good relations between the SAPS and the community, assess the effectiveness of visible policing and liaise with the national Minister responsible for policing in respect to crime and policing in a particular province. The power to establish a commission of inquiry to investigate complaints of police inefficiency is closely related, therefore, to the constitutional role of provincial governments in monitoring and overseeing policing.
7. The Commission thus undertakes its work conscious of the constitutional principles which must inform its mandate, and especially conscious of the constitutional right of the people who live and work in Khayelitsha to safety and security. The Commission established its offices in Khayelitsha and holds its hearings here because the work of this Commission is primarily concerned with the safety of the people who live and work here. It is their safety and their rights that must be at the centre of the work the Commission performs in carrying out its mandate.
8. The Commission commenced its work in August 2012 by opening offices in Harare, here in Khayelitsha to start to investigate allegations of inefficiency and a breakdown in the relationship between the community and the SAPS. The Commission’s offices have been open to the public for many months and members of the public have been encouraged to come and make statements to the Commission.
9. The Commission has a small team: the two commissioners, two evidence leaders, Nazreen Bawa and Lihle Sidaki, a secretary, Amanda Dissel and an administrator, Khangelani Rawuza. Please do not hesitate to contact a member of the Commission’s staff if you have any queries or need assistance. In addition to this small team, the Commission has been assisted by newly qualified advocates, both at the end of 2012 and 2013 who have assisted the Commission in taking statements.
10. The Commission has established a website which contains all the information relevant to the work of the commission: www.khayelitshacommission.org.za It contains the notices of the Commission, its terms of reference, and will in due course publish the statements of many of the witnesses, some of the documents that the Commission has admitted into evidence, as well as the photographs that were taken by a photographer appointed by the Commission during the inspections in loco.
11. The Commission has divided its work into two phases: the first involves the investigation of allegations of inefficiency and a breakdown in the relationship between the community and SAPS. Evidence in this first phase will be heard at public sittings here in this hall from now until 21 February 2014. The second phase will take place in March and it will hear evidence from policing experts that will inform any recommendations to be made by the Commission. Again the public sittings associated with the second phase will be held here in Khayelitsha.
12. It is important to realise that the Commission is not a court. It is undertaking an investigation, not determining whether any person has committed a crime or is liable to any person for any harm. The focus of the Commission is forward looking. First, it must answer the question whether there are inefficiencies in policing, or a breakdown in the relationship between SAPS and the community. And secondly, it it finds there are inefficiencies, or a breakdown in the relationship between SAPS and the community, it must make recommendations as to what can be done about it.
13. A range of parties have been admitted to appear before the Commission. A group of NGOs, including the SJC, Equal Education, the Treatment Action Campaign, Ndifuna Ukwazi and Triangle Project, whom the Commission refers to as the complainant organisations constitutes one party. Another is the City of Cape Town. The third is the province of the Western Cape. And the fourth is SAPS. In addition, there are several individuals represented before the Commission, and another NGO the Women’s Legal Centre who has been admitted to tender evidence on issues relating to domestic violence.
14. Parties before the Commission have been given an opportunity to produce evidence relevant of the work of the Commission and the Commission’s evidence leaders have also sought out evidence. The commission has already seen the statements of nearly all the witnesses who will give evidence in the first phase. Parties will also see the witness statements before evidence is led and will have the opportunity to apply to cross examine witnesses. The commission has received nearly 50 000 pages of documents from SAPS, DOCS, the City and other parties.
15. In closing these opening remarks, may we thank all those who have assisted the Commission in its work so far. We look forward to continuing to work with many people in Khayelitsha and more broadly in the city of Cape Town to ensure that the Commission’s mandate is carried out as thoroughly, fairly and expeditiously as possible. We hope that in pursuing the mandate of the Commission, the vision set out in the Preamble of our Constitution may be brought a little nearer for the people of Khayelitsha: a vision in which the quality of life of all citizens may be improved and the potential of each person may be freed.
Kate O’Regan and Vusumzi Pikoli
23 January 2014