Subpoena powers needed, court hears

2013-08-06 19:38
(Picture: Sapa)

(Picture: Sapa)

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Johannesburg - A commission of inquiry into policing in Khayelitsha without the power to subpoena police would be toothless, the Constitutional Court heard on Tuesday.

"Absent any form of subpoena power, clearly the commission would lack any teeth and it would be indistinguishable from an investigation," said Advocate Sean Rosenberg, for Western Cape Premier Helen Zille.

"Subpoena powers are essential to give commissions... the teeth needed."

Rosenberg said the nature of the commission's control over the police would not be a "worrisome intrusion".

He said the inquiry was established to investigate a matter of high public concern.

Earlier, Advocate Norman Arendse, for the police, told the court the inquiry did not have the authority to subpoena the police.

"Ordinarily, the province cannot call the police or provincial commissioner to account," Arendse argued.

"The problem is the coercive powers that are conferred on the commission of inquiry to achieve this purpose."

He said if the police were subpoenaed they would have to be at a particular place at a particular time, preventing them from doing their work. Arendse said the police were not immune to being held accountable for their actions, but this should be done through the Civilian Secretariat Act. It made provision for control and management of the police.

However, Rosenberg said the inquiry would need some power to subpoena when the situation required.

"If they [the police] are required to produce relevant information and relevant documentation... the commission is not exercising a form of control. To say a commission can never have subpoena powers would be adverse."

Investigating police inefficiency

Zille set up the inquiry last August to investigate alleged police inefficiency in the Cape Flats area. Police Minister Nathi Mthethwa opposed the inquiry in the Western Cape High Court.

His application for interim relief was dismissed in January. Mthethwa then approached the Constitutional Court.

On Tuesday, Arendse argued that the terms of reference stated by Zille were vague and would allow the commission to determine its own terms of reference.

Rosenberg said the inquiry was confined geographically because it related to three police stations and was limited to complaints made to Zille.

He said if Zille could establish the exact points of concern an inquiry would have been unnecessary.

Peter Hathorn, for the Social Justice Coalition (SJC), echoed Rosenberg and said the Constitution extended the power to subpoena to commissions of inquiry, and the inquiry would allow the police to be accountable to the province.

He questioned the purpose of coercive powers in an inquiry if it could subpoena everyone but the police.

Deputy Chief Justice Dikgang Moseneke questioned the connection between the inquiry and the situation in Khayelitsha.

"Is my understanding that the vital underlying purpose of the commission would ultimately be to advise the minister on how to alleviate the lives of vulnerable South Africans?" he asked.

He highlighted cases of possible vigilante justice and told Hathorn he hoped he would have found the connection between the people and the inquiry.

Hathorn responded: "That link is made very clearly in the opposing affidavit of the head of the Social Justice Coalition. We are aware of the link."

Arendse said the police ministry had no objection to the inquiry, but to its coercive powers.

Judgment was reserved.

Read more on:    sjc  |  police  |  nathi mthethwa  |  helen zille  |  dikgang moseneke  |  cape town

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