Two operational documents used by the State to deploy an initial 2 820 members of the South African National Defence Force (SANDF) in March and more than 73 000 members in April to enforce government’s national lockdown failed to unpack what amount of force ought to be used when dealing with a civilian population.
While minimal coaching appears to have been given to SANDF officers, it is unclear if any teaching on how to use minimum force to deal with citizens was given to their counterparts, the SA Police Service (SAPS).
These were the damning arguments heard by the North Gauteng High Court on Tuesday as lawyer for the family of deceased Alexandra township resident Collins Khosa, Advocate Tembeka Ngcukaitobi, made his submission.
Khosa allegedly died at the hands of the SANDF and Johannesburg Metropolitan Police Department (JMPD) officers.
Ngcukaitobi argued that this limited and or non-existent education led to the death of Khosa and other crimes committed by SANDF and police officers.
The advocate leaned on Section 199 subsection five of the Constitution while making his submissions.
This section of the Constitution states that it is the direct constitutional obligation of ministers in the security cluster “to teach and require their members to act in accordance with the Constitution and the law”.
“There is therefore nothing inventive in what the applicants (the Khosa family) are seeking in their court application. What they actually seek to do is to simply enforce Section 199 subsection five of the Constitution,” said Ngcukaitobi.
He argued that the state and Defence Minister Nosiviwe Mapisa-Nqakula – in an operational document dated March 30 used when deploying SANDF officers, as well as another one page document – failed to comply with the dictates in Section 199(5) of the Constitution.
“It’s plainly inadequate for the minister to think these letters [were] sufficient and consider herself having taught and charged her officers to uphold the constitutional rights of citizens,” argued Ngcukaitobi.
He added that the only mention of citizens’ constitutional rights was at the bottom of the initial letter and on paragraph two of the one page operational letters.
Noises of shock and disbelief reverberated through the sparsely populated courtroom as Ngcukaitobi read through the initial operational document.
Some of the directives given to the SANDF officials included being told to “engage in battle without drinking and smoking”, while also being urged to channel non-complying members through allowing “harsh measures of the law to apply”.
More shocking were the words “find and fix and neutralise non compliance”, as well as being warned in advance that residents in Alexandra were “supporting illicit activities”.
“The language that is used in the very same document that the minister of defence is saying aligns with the Constitution virtually accuses every person they see in Alex as a non compiler. This is what the minister says is her attempt at complying with Section 199(5) of the Constitution,” he said.
Ngcukaitobi added that: “What’s clear is that the operational document that they put up is entirely consistent with the attitude adopted by the minister that we will skop, skiet en donder when the circumstances determine”.
He continued to argue that the language of “neutralising” referred “to overcoming an enemy by force” and that’s what has been happening in impoverished communities.
According to the advocate, the SANDF – through its internal instructions – therefore failed to adhere to the Constitution instead “wedging tensions between law enforcement and the community”.
He argued that while SANDF officers received minimal education on what force to use, the SAPS doesn’t appear to have been given any directives in this regard.
Khosa, a father of three, died on April 10 and the “preliminary medical opinion is that the cause of death is directly related to the assault by the members of the SANDF”, said a letter written to President Cyril Ramaphosa by the family.
The letter detailed the assault, narrating the accounts of witnesses present during the incident.
Ngcukaitobi called for the suspension of the law enforcement members involved in Khosa’s killing.
He added that “the remaining members then be told that tougher is unacceptable and that should they carry out such acts they would face the consequences”.
Proceedings are expected to continue on Wednesday with Ngcukaitobi before the defence makes their submissions.