By Duncan Wild on 23 April 2013

The case involves the legality of the Premier of the Western Cape’s (“the Premier’s”) appointment of the O’Regan Commission into complaints related to inefficiency in the South African Police Service (“the SAPS“) stations in Khayelitsha, as well as the breakdown in relations between the SAPS operating in Khayelitsha and the Khayelitsha community (“the O’Regan Commission”).

On 24 August 2012, the Premier established the O’Regan Commission, appointing its chair, former Justice of the Constitutional Court, Catherine O’Regan, and Mr. Vusumuzi Pikoli as commissioners.

On 5 November 2012, the applicants, including the Minister of Police (“the Minister”), the National Commissioner of the SAPS (“the National Commissioner”) and the Western Cape Provincial Commissioner of the SAPS (“the Provincial Commissioner”) launched an application in two parts: first, seeking an interim interdict halting the operation of the O’Regan Commission, and specifically to prevent Commission from giving effect to subpoenas it had issued or to issue further subpoenas, pending the outcome of the second part; and second, seeking an order setting aside the establishment of the O’Regan Commission.

At this stage, it is strictly speaking only the first part of the relief sought that the court had to decide, that is the interim relief pending a court’s final decision on the legality of the Premier’s establishment of the O’Regan Commission. In other words, the lawfulness of the appointment of the Commission is not directly before the court for decision. What the court must determine is whether the applicants have met the requirements for interim relief: the High Court set out these requirements as “the applicant must establish a prima facie right to the relief sought even if such relief may be open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted: that the balance of convenience favour the granting of the interim relief; and the absence of any other satisfactory remedy available to the applicant.”

In addition, the High Court noted that as the applicants based certain of the relief sought in the Constitution, that the test should be applied “cognizant of the normative scheme and democratic principles that underpin the Constitution,” referring to the Constitutional Court’s e-tolling case, National Treasury & Others v Opposition to Urban Tolling Alliance & Others 2012 (11) BCLR 1148 (CC). The prime impact of this is that when considering the balance of convenience, the court must consider the impact of granting an interim interdict that restrains the constitutional or statutory powers of a state functionary or organ of state.

The applicants challenged the legality of the O’Regan Commission on a number of grounds, including that the Premier: acted irrationally in appointing the Commission; did not comply with the Constitutional obligations of co-operative governance in appointing the Commission; did not engage with the relevant constitutional and statutory bodies before appointing the Commission; and usurped the powers of the police by empowering the Commission to issue subpoenas, including the power to subpoena police officials, as well as to investigate crimes. There were other grounds based on an alleged ulterior motive in appointing the Commission, and that appointing a judge as a commissioner was impermissible.

The High Court, in a judgment written by Judge Yekiso, with the Deputy Judge President, Traverso concurring, went through each of these grounds in some detail.  In brief, the High Court found that the Constitution in section 206 empowers a province to, among other things, monitor police conduct, oversee the effectiveness of the police, and promote good relations between the police and the community.  In addition, a province is specifically permitted to appoint a commission of enquiry “into any complaints of police inefficiency, or a break down of relations between the police and the community”.  Based on this foundation, the High Court found that the Premier had the power to appoint a commission, provided the Constitutional requirements for establishing the commission were complied with. The High Court then went on to consider the challenges raised by the applicants to the constitutionality of the O’Regan Commission.

In relation to the Premier’s alleged obligations in respect of co-operative governance prior to appointing the O’Regan Commission, the High Court found that the Premier had, over a period of several months after receiving complaints into the conduct of the police in Khayelitsha, attempted to engage the Provincial Commissioner, National Commissioner and Minister, but had received no substantive or comprehensive responses from any of them.  In the circumstances, the Premier had complied with her obligations.

The High Court found that given the complaints received, as well as the media reports and general public attention on the situation, establishing a commission to investigate the issues was rational.

Finally, the High Court found that the O’Regan Commission would not be usurping police functions, as it would not investigate specific crimes or specific officers, but would conduct an enquiry into systemic issues.

The High Court briefly noted that on the other grounds of complaint, including those related to allegedly impermissible coercive powers of the commission, and the alleged ulterior motive for its formation, the High Court found that there was not sufficient evidence to justify setting aside the Commission on these grounds.

The High Court therefore dismissed the application for interim relief seeking to halt the conduct of the O’Regan Commission.

In an extensive dissenting judgment, Judge Saldanha found that the Minister, National Commissioner and Provincial Commissioner had not complied with their obligation under section 41(3) of the Constitution to exhaust all other remedies before approaching a court in an intergovernmental dispute.  Judge Saldanha would have ordered the parties to engage with one another and report back to the Court in two weeks, pending which the O’Regan Commission would have been halted.

The Constitutional Court will decide whether the High Court was correct in dismissing the application to halt the conduct of the O’Regan Commission pending the outcome of the main application to set it aside.  The proceedings in the Constitutional Court are thus likely to focus on whether the requirements for an interim interdict were met.  Of course, even if the Constitutional Court agrees with the High Court and refuses to grant the interim relief, the main application, that is the second part of the application to actually set aside the Commission will still go ahead in the High Court.

An additional question the Constitutional Court might consider, which was not raised in the High Court, is whether this matter falls within the exclusive jurisdiction of the Constitutional Court (and thus should not have been instituted in the High Court).  Section 167(4)(a) states that “only the Constitutional Court may decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers and functions of any of those organs of state“.