By Duncan Wild on 1 October 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.

In the High Court, it was 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 was not directly before the court for decision. In the Constitutional Court, however, the argument was made by the Social Justice Coalition as amicus curiae that this matter involved a dispute between organs of state, it fell within the exclusive jurisdiction of the Constitutional Court in terms of section 167(4) of the Constitution. In addition, the applicants sought direct access and an order of invalidity in respect of the decision to appoint the O’Regan Commission.

The Constitutional Court agreed that the matter did fall within its exclusive jurisdiction to decide, and therefore considered whether the decision to appoint the O’Regan Commission was in fact inconsistent with the Constitution and invalid. 

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 found that none of the grounds had merit and so therefore dismissed the application for interim relief seeking to halt the conduct of the O’Regan Commission.

The Constitutional Court, in a unanimous judgment authored by Deputy Chief Justice Moseneke (Chief Justice Mogoeng, Justices Cameron, Froneman, Jafta, Madlanga, Nkabinde, Skweyiya, Van der Westhuizen and Zondo, and Acting Justice Mhlantla concurring) dismissed the application and found that the decision was not inconsistent with the Constitution and invalid. 
The Constitutional Court held 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.  This includes the power to “investigate” matters, and so under these section the Premier could appoint a commission, and give that commission powers to coerce witnesses to give evidence before that commission. Without such powers the effectiveness of “the commission would be falter.” In addition, the Constitutional Court dismissed the argument that the power to subpoena police officers usurped the “control of the police service”, and that the proper place for an investigation into the police is through the Civilian Secretariat for Police Service Act. It did so as merely requiring physical attendance at a commission does not replace the general management and control of the police in their day-to day activities, and that regardless of Civilian Secretariat for Police Service Act, content must be given section 206(3) and (5) of the Constitution allowing monitoring and oversight of the police by a province.

In relation to the Premier’s alleged obligations in respect of co-operative governance prior to appointing the O’Regan Commission, the Constitutional Court found that the Premier had, over a period of nine months after receiving complaints into the conduct of the police in Khayelitsha, exchanged extensive correspondence with the Provincial Commissioner, National Commissioner and Minister, but had rand so had complied with her obligations to consult with the relevant organs. In addition, the Constitutional Court found that there was no merit to the applicants arguments that the Premier was usurping a power of the Minister, as the Premier had the power to appoint the Commission, and that the obligation to settle a dispute before litigation was not relevant, as at the time the Commission was formed there was no dispute. It was only after the Commission had been appointed and began issuing subpoenas that the applicants raised issues with its conduct and appointment, and at the stage either the Minister nor the Commissioner sought to declare a dispute, but went to the High Court with this application. The Premier had therefore complied with her obligations.

Finally the Constitutional Court dismissed the applicants contention that the terms of reference of the Commission were overbroad. 

The application was therefore dismissed, and the Constitutional Court found that the decision to appoint the O’Regan Commission was not inconsistent with the Constitution and invalid. 

Regarding costs, the Constitutional Court held that as the Social Justice Coalition, as a organisation acing in the public interest, which had been involved in the matter from the beginning, in bringing various complaints that led to the appointment of the Commission to the Premier’s attention, it should not be “out of pocket for raising a matter of public importance in favour of vulnerable people who are victims of pervasive crime”.  The Court therefore ordered the the Social Justice Coalition’s costs be paid by the Minister and Commissioner.

As both the Premier and the applicants were funded from the public purse, the Constitutional Court held that it would be not be warranted to make a costs order between them.

Download the judgment here.