Picture: ALON SKUY
Picture: ALON SKUY

South Africans are entitled to life and dignity during the lockdown and a mechanism for citizens to report allegations of abuse by the security forces during this period should be established within days.  

Pretoria high court judge Hans Fabricius said these rights were “non-derogable” even under a state of emergency.

Fabricius was reading his judgment on the court application brought to the high court by among others, the partner of the late Collins Khosa, who was allegedly tortured and killed by members of the SA National Defence Force (SANDF) and the Johannesburg Metro Police on Good Friday, soon after the onset of the lockdown.

While advocate Tembeka Ngcukaitobi SC, for the applicants, had asked for orders that relate specifically to Khosa's death, he also asked the court for broader protection against SA's security forces.

SA has been under a lockdown since the end of March as the government battles to curb the spread of Covid-19. There is no indication as to when that State of Disaster will end.

While the police are primarily responsible for enforcing the lockdown regulations, tens of thousands of members of SANDF have also been deployed and put on standby to assist the police with maintaining law and order.

Khosa's death was one of the worst examples of abuse of power in enforcing the strict regulations, which among others, controlled the movement of people, closed schools and large gatherings, and banned the sale of alcohol and tobacco products.

Fabricius handed down an order that declared that all people in SA during the State of Disaster were entitled to the right to human dignity and life, to not be tortured and not to be treated or punished in a cruel, inhumane and degrading way.

He ordered that the SANDF, SAPS and metro police act, and instruct its members to act, in accordance with the constitution and the law.

He said they were obliged, under the constitution, to respect, protect and promote the Bill of Rights.

He ordered that only the minimum force that was reasonable for use during official duty be used, and that all members of the SAPS, SANDF and metro police be bound by legislation that prevents and combats torture.

The court further ordered that those officials of the SANDF and the Johannesburg Metro Police that were present at Khosa's death, be placed on suspension while investigations were under way.

The ministers of police and defence were ordered to develop and publish a code of conduct on operational  procedures within five days, that would regulate the conduct of members of the police, SANDF and metro police during the State of Disaster.

The ministers have to widely publish on various traditional media and social media platforms under which circumstances force may be used in enforcing the lockdown regulations, and guidelines about when a person may be arrested.

mailovichc@businesslive.co.za

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