On 14 January 2013, the Western Cape High Court dismissed with costs an urgent interdict by Minister of Police Nathi Mthethwa and SAPS to stop the O’Regan/Pikoli Commission of Inquiry (CoI). The Court accepted that the Social Justice Coalition (SJC), the Treatment Action Campaign, Equal Education, Triangle Project and many other partners campaigned for “ten years against the ever deteriorating and despairing conditions of criminal activity and impunity in the greater Khayelitsha area”.
On 28 January 2013, Minister Mthethwa and SAPS decided to appeal to the Constitutional Court. As the court battles continue lives are lost, women continue to be raped and school gangs terrorise the people of Khayelitsha. On 1 February 2013, the Minister of Police and SAPS released a statement that illustrates an arrogant contempt for the public and victims of crime. The SJC unequivocally condemns the waste of public money by the Minister of Police and SAPS represented in this case by four
advocates including two senior counsel.
Over an entire decade the national SAPS Ministers and Commissioners have ignored the pleas of
people and organisations in Khayelitsha. After almost two years of pressure Premier Helen Zille
agreed to establish the O’Regan/Pikoli CoI on 22 August 2012. The CoI is investigating allegations of
police inefficiency and a breakdown in relations between the SAPS and the Khayelitsha community.
Premier Zille attempted for about six months to get a decent response from the SAPS. Commissioner
Mangwashi Riyah Phiyega was the first person to attempt to deal with the issues but after a good start
basically failed to report on progress of her internal investigation. As the CoI was about to commence
its public hearings where people would speak about their experiences of crime and safety, the police
stopped the hearing with a court application. They failed.
On 28 January 2013 the SAPS lodged an application with the Constitutional Court requesting leave to
appeal against the High Court decision. In court papers, SAPS again argue that the CoI was unlawfully
established and that its operation will undermine the ability of the police perform their job.
The Minister and SAPS have placed much weight on the fact that the Court was divided. In a majority
decision Justice James Yekiso found that a province had the constitutionally mandated power to
establish a commission of inquiry into policing and that Premier Zille acted rationally based on the
information available to her at the time. Justice Vincent Saldahna dissented and suggested that the Premier, Minister and Commissioner of Police attempt to negotiate a settlement in the interest of the
people of Khayelitsha.
Everyone has the right to appeal to a higher court to resolve a matter but SAPS knows that the
Western Cape High Court has not finally decided the matter. Regrettably, Minister of Police Nathi
Mthethwa has decided to deliberately delay the CoI and to waste public money.
SAPS statement on appeal to Constitutional Court misleads the public
A statement issued by SAPS on 1 February 2013, disingenuously states that, “The Minister (Mthethwa)
believes that it would not be coherent or useful to have two enquiries functioning at the same time to
consider the same complaints”.
The two investigations referred to here are the O’Regan/Pikoli CoI and an investigation proposed by
the SAPS that was only tabled after the O’Regan/Pikoli CoI had been set up. When the SJC requested
clarity on the terms of reference of the police’s proposal, they failed to respond. The press release
suggests that police were ready and willing to establish an independent body that would essentially
perform the task of the O’Regan/Pikoli CoI. This is not the case.
Rather, the Minister has done his utmost to see that independent investigation does not take place. It
must be remembered that they ignored requests for substantive responses to this process for more
than half a year after we lodged our formal complaint in November 2011. We learnt from the Court
papers for the first time that Commissioner Phiyega wanted to establish an independent panel.
However, this was not communicated by Minister Mthethwa who proposed an “internal investigation”
and then if necessary an independent review.
It is time that the police stop wasting public money to challenge this process – one that was
established with the key objective of improving levels of and access to safety and justice for people
living in Khayelitsha and at the same time, assisting police to perform their jobs more effectively.
The SJC is a respondent in this matter and we will be opposing the Constitutional Court application. It
is imperative that the CoI be allowed to continue its work – with the cooperation of the SAPS, all
government departments responsible for the provision of safety and justice, as well as the City of Cape
The crux of the matter must not be forgotten. The O’Regan/Pikoli CoI is about the rights to life, safety,
freedom from harm and access to justice. The police’s application to the Constitutional Court only
further delays the vital contribution that the CoI will make to improve lives in Khayelitsha and beyond.
For enquiries please contact:
Axolile Notywala (mobile) 0742895220
Phumeza Mlungwana (mobile) 0744178306
The police application to the CC is available online at http://safecommunities.sjc.org.za/resources/.
Other documents relating to the CoI and the High Court case are available online at