Defence Minister Nosiviwe Mapisa-Nqakula's comment about the SA National Defence Force (SANDF) using a "skop, skiet and donder" approach when necessary to enforce the lockdown should not be taken literally, the Gauteng High Court in Pretoria heard on Wednesday.
The minister and commissioner of police are opposing the application submitted by the family of Collins Khosa who died last month allegedly at the hands of SANDF members.
Lawyers on behalf of the family argued the ministers of police and defence had failed to take steps to prevent illegal action by law enforcement officials, adding their public statement defended, downplayed and encouraged the use of force.
They said the defence minister had particularly failed to condemn brutality by law enforcement officials when she reportedly said: "It will only be skop, skiet and donder when circumstances determine that. For now, we're a constitutional democracy."
The lawyers for the family maintained these comments suggested "South Africa is a constitutional democracy only 'for now' - that is, conditional upon members of the public not 'provoking' security forces".
Mike Bofilatos SC, on behalf of the police, said those words "must not be taken too literally, they are a figurative expression".
But Judge Hans Fabricius said comments like those were not beneficial.
"It's not really helpful in the present circumstances to say something like that," he added.
Previously, Ngwako Maenetje SC, for the defence minister, said the comments were "taken out of context" by the media who "reports so they can sell".
"[You] will see when [you] read those articles that the minister was clear that they regret the incident, and then she said … they would not defend what happened," Maenetje said, reading a news article.
He also read that the minister had said the public should stay at home and not provoke the soldiers, which was also taken out of context.
"The law allows the defence force to use minimum force when required, she says we must avoid the use of force, the SANDF [must] adhere to the law, members of the public [must not] provoke them, and let's avoid the use of force.
"How could that statement be so offensive so as to be a egregious infringement of the Bill of Rights and constitutional duties and the oath of office?”
However, the family believes the minister is putting the blame on civilians for the brutality.