Minister of Police and Others v Premier of the Western Cape and Others (21600/12) [2013] ZAWCHC 216 (14 January 2013)

Key Facts

Issues

• The legality of the Commission's establishment hinges on whether the Premier had constitutional authority under sections 206(5) and 127(2)(e) of the Constitution to appoint it, and whether this power was exercised rationally and in compliance with co-operative governance principles.
• The Premier is accused of breaching her obligations under section 41 of the Constitution by failing to engage with the National Commissioner, Provincial Commissioner, and other constitutional/statutory bodies before establishing the Commission.
• The appointment of a retired judge (Justice O'Regan) to chair the Commission is contested as judicial entanglement in politically sensitive policing issues, risking impartiality.
• The applicants allege the Commission's mandate to investigate systemic police inefficiencies and community relations overlaps with criminal investigations, encroaching on the police's exclusive constitutional and statutory functions.
• The applicants challenge the validity of the Commission's coercive powers (e.g., subpoenas for police officials), arguing these powers usurp the President and National Commissioner of Police's control over the SAPS, violating constitutional and statutory frameworks.

Holdings

• The court dismissed the applicants' claim for interim relief, finding no violation of co-operative governance principles, no misuse of powers under section 206(5)(a) of the Constitution, and no breach of constitutional principles in the Premier's decision to establish the Commission. The applicants' contention that the Commission's terms of reference encroached on police functions was also rejected.
• The applicants were ordered to pay the respondents' costs, including costs for employing counsel. The court did not address claims related to the recusal of commissioners or advocate, as these were not pursued at the hearing.

Remedies

• The applicants are ordered to pay the first, fourth to seventh, and ninth respondents' costs, jointly and severally. The one paying the other to be absolved.
• The applicants' claim for interim relief, based on part A of the notice of motion, is dismissed.

Legal Principles

• The judgment examines the Premier's authority under the Constitution to establish a Commission of Enquiry, addressing claims that the Commission encroached on the police's constitutional functions and judicial independence. The court concluded the Premier's power to appoint the Commission was valid, provided it did not unlawfully interfere with other state organs' roles.
• The judgment underscores the rule of law by requiring the Premier's exercise of power under sections 206(5) and 127(2)(e) of the Constitution to align with constitutional principles. It confirms that while the Premier's authority is broad, it must not contravene the Constitution or encroach on other state functions.
• The applicants challenged the Commission's legality through judicial review, contending the Premier's decision was irrational, failed to comply with co-operative governance principles, and exceeded constitutional authority. The court applied rationality and ultra vires tests, finding the decision lawful as it was based on systemic policing concerns and did not usurp other organs' powers.

Precedent Name

• Pharmaceutical Manufacturers Association of SA v President
• City of Cape Town v Premier, Western Cape
• Setlogelo v Setlogelo
• National Treasury v Opposition to Urban Tolling Alliance
• Masetlha v The President of the Republic of South Africa

Cited Statute

• Inter-Governmental Relations Frameworks Act, 13 of 2005
• Cape Commissions Act, 10 of 1998
• Constitution of the Republic of South Africa, 1996
• Civilian Secretariat Police Service Act, 2 of 2011

Judge Name

• N J Yekiso
• J H M Traverso

Passage Text

• [85] On the basis of the evaluation of the evidence... I cannot find that a case has been made... that the Premier violated any provisions relating to co-operative governance, misused her powers, or breached administrative principles. The applicants' claims for interim relief derived from the Constitution ought to fail.
• [71] The applicants' challenge on the basis of rationality is untenable... The information before the Premier at the time provided a rational basis for her decision to establish the Commission. The complainant organisations' allegations of systemic police failure in Khayelitsha, supported by media reports of vigilante killings, formed the basis for the Commission's establishment.
• [35] The Commission was established by the Premier in terms of the powers conferred upon her under section 206(5) of the Constitution. The relevant provisions in section 206 dealing with the province's entitlement and the power of the Premier to appoint a Commission read as follows: '206 (3) Each province is entitled – (a) to monitor police conduct; to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service; (b) to promote good relations between the police and the community; (c) to assess the effectiveness of visible policing; and (d) to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province.'