EDITORIAL: Judge lashes Cele and Mapisa-Nqakula over Collins Khosa killing
Pretoria high court judge Hans Fabricius ruling was the sort of blistering ruling that President Cyril Ramaphosa should read and re-read, before suspending his egotistical and unaccountable police and defence ministers
As the sun was about to set on Good Friday, two soldiers walked into the house in Alexandra where Collins Khosa was staying. They asked him why there was a cup of alcohol in his yard, and Khosa replied that even if he had been drinking it, it was his yard, so he was entitled to do so. The soldiers, evidently furious and used to being treated with fealty and fear, ordered Khosa outside to "prove a point".
Soon, more soldiers arrived along with Joburg metro police officers. Then the torture began: three of them poured beer on Khosa’s head, choked him, slammed him against a cement wall, punched him and hit him with a machinegun. When neighbours tried to film it on their cellphones, the thugs took their phones.
Soon after the officers left, Khosa began vomiting. He lost the ability to speak and walk. An ambulance arrived, but he was dead on arrival at the hospital. The army, brought in to ensure compliance with the Covid-19 lockdown rules, had killed Collins Khosa.
You might say it was inevitable, given the scorn which police minister Bheki Cele has shown for human rights, and the way in which defence minister Nosiviwe Mapisa-Nqakula, rather than condemn the soldiers, opted to say citizens shouldn’t "provoke" them.
Well, in a blistering 79-page judgment last week, Pretoria high court judge Hans Fabricius delivered what is destined to become one of the most important rulings of SA’s Covid-19 pandemic. Khosa’s family had asked the court for accountability — and Fabricius met the moment.
In the ruling, he points out the errors of law and illegal acts sanctioned by Cele, how the lockdown rules were poorly considered as they made "criminals" out of 20,000 people, and how Mapisa-Nqakula failed to condemn Khosa’s murder or take action against those responsible.
"It is an ironic thought that, having regard to the history of our country, the very institutions that have been created to safeguard and protect the population from crime and violence are the very [institutions] who now fail to impose the appropriate internal remedies against the transgressors, but have the audacity to tell a court that it has no function in the matter," he said.
Fabricius described how all of this had broken the tenuous "social contract" between citizens and the government.
"The virus may well be contained, but what is the point if the result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of the person and overall, the maintenance of the rule of law," he said.
In the end, Fabricius went further than many expected. He ordered that Mapisa-Nqakula must, within five days, suspend all the soldiers who were at Khosa’s house and subject them to a disciplinary process. A full report on Khosa’s death, as well as a report on "any other person whose rights may have been infringed" by the police or army during the lockdown, must be handed to the court by June 4.
It was the sort of blistering ruling that President Cyril Ramaphosa should read and re-read, before suspending his egotistical and unaccountable police and defence ministers.
Fabricius said: "The populace must be able to trust the government to abide by the rule of law and to make rational regulations … [which] should intrude upon the rights of people and businesses either not at all, or if they do, or justifiably must, the least restrictive measures must be sought." In return, the government can expect co-operation.
That eloquently cuts to the heart of why Ramaphosa’s lockdown has lost its legitimacy.
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