The court made a number of declarations of principle that must continue to operate even during the state of disaster caused by the lockdown and other steps taken by the government to curb the spread of COVID-19. It also issued several orders about what the security forces and their leaders, including the Ministers of Police and of Defence, must do in relation to the lockdown and the behaviour of the security forces during this time. Further, the court gave strict deadlines for complying with these orders.
The court declared
- that during, and despite the state of disaster, everyone in SA was entitled to the following rights among others, as these are non-derogable even during states of emergency:
- the right to dignity
- the right to life
- the right not to be tortured in any way
- the right not to be treated or punished in a way that is cruel, inhuman or degrading
- that SA’s security services must act, and must instruct their members to act, in accordance with the constitution and the law – including international customary international law and international agreements that are binding on the republic
- that the security forces and their leaders were obliged to respect and promote the rights in the Bill of Rights
- that members of the security force are bound to use ‘only the minimum force that is reasonable to perform an official duty’
- that members of their security forces and their leaders are bound by domestic and international law prohibitions on torture and cruel or degrading punishment.
In addition to these general declarations, the court also ordered
- that the security force authorities shall, within five days, suspend all members of the defence force who were at or near the Khosa house on 10 April 2020, pending the outcome of disciplinary proceedings
- that, within two days, all members of the security forces will be ‘commanded’ by their respective leaders to ‘adhere to the absolute prohibition’ on torture and cruel and degrading punishment or treatment and to apply only minimum reasonable force to enforce the law
- that, within five days, all members of the security forces must be warned that failure by individuals within the ranks to report or prevent acts of torture or cruel or degrading treatment, could lead to criminal, civil or disciplinary action against those who fail to act to stop or report this behaviour
- that the authorities have seven days to lodge affidavits with the court confirming that all the above has been carried out.
On the question of behavioural guidelines and a code of conduct for the security forces, the court ordered
- that the authorities have five days to develop and publish a code of conduct and operational procedures to regulate the conduct of the security forces during the state of disaster
- that the authorities publish details of when the use of force may be allowed, along with guidelines about how the security forces may enforce the lockdown regulations, social distancing and other regulations during the state of disaster; when arrests are permissible and what other methods may be used to ensure attendance at trial
- that details are given about where members of the public may lodge complaints against the security forces
- and that affidavits are lodged with the court confirming that all this has been done.
To ensure that the public knows of these behavioural guidelines and the code of conduct, the court ordered that the following be done:
- that, within five days the authorities must establish a mechanism for civilians to report allegations of torture or degrading treatment against the security forces during the state of disaster; the authorities must also publicise information about this mechanism throughout SA in all official languages via television, radio and digital media
- that the Minister of Defence and the Minister of Police must ensure that the internal investigations into the treatment of Khosa and anyone else whose rights may have been so far reported as infringed by the security forces during the state of disaster are completed and reported on to the court by 4 June 2020, with copies given to the Khosa family’s legal team.
Finally, the court ordered that the costs of the case should be carried by the respondents, as the challenge was constitutionally justified and bona fide
Tags: Bill of Rights, constitutionalism, Covid-19, Gauteng, high court, Judge Hans Fabricius, security forces, torture