On Friday, 15 May 2020, the North Gauteng High Court handed down a judgement in an urgent application brought by the family of Mr Collins Khosa. The urgent application was brought following the death of Mr Khosa who succumbed to injures from an assault by members of the South African National Defence Force, accompanied by members of the Johannesburg Metropolitan Police n 10 April 2020. SERI was admitted as amicus curiae in the matter.
In reference to use of force by security forces during the lockdown, Judge Hans Fabricius held that “what we are dealing with in South Africa at this moment is the conduct of security forces aimed at mainly the most vulnerable because of the socio-economic situations that exist throughout South Africa for which the poor are certainly not to blame…”.
The Court held that the lockdown, instituted in terms of the Disaster Management Act 57 of 2002 and the declared national state of disaster, does not suspend people’s rights to dignity and life (sections 10 and 11 of the Constitution), as well as the right not to be tortured in any way or to be treated or punished in a cruel, inhuman or degrading way (sections 12(1)(d) and (e) of the Constitution).
The Court also held that the South African National Defence Force (SANDF), the South African Police Service (SAPS), and any Metropolitan Police Department (MPD) must “act in accordance with the Constitution and the law, including customary international law and international agreements binding” on the South African government. These laws include section 13(3)(b) of the South African Police Service Act, 1995 read with section 20(1)(a) of the Defence Act, 2002 on the use of minimum force that is reasonable. Other relevant laws cited include the Prevention of Torture of Persons Act, 2013, and the United Nations Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, 1984.
The Court also granted a range of remedies aimed at addressing the lockdown brutality and restoring trust between the public and security forces entrusted with enforcing the regulations and directions.
Contrary to the submissions made by the Minister of Defence, SERI submitted that Section 19 of the Defence Act must apply to the military’s deployment during the lockdown and that Section 19(3)(c) of the Act makes clear that “service in co-operation with the South African Police Service must be performed in accordance with” a code of conduct, operational procedures and guidelines published by the Minister of Defence.
SERI further submitted that “at the heart of this case is the need to fill the lacuna left by the absence of these checks, and to preclude the repetition of the tragedy that brought the applicants to court.”