Judge Hans Fabricius, presiding over the court case related to the death of Collins Khosa, said it could be beneficial to grant an order instructing law enforcement to act within the confines of the Constitution during the lockdown.
There is mistrust between the government and the community, the judge added.
Legal representation for the South African National Defence Force (SANDF) and the minister of defence appeared in the North Gauteng High Court in Pretoria on Wednesday in a bid to oppose the urgent application brought by Khosa’s family.
Khosa was allegedly beaten to death by members of the army when they saw half a glass of alcohol in his yard in Alexandra.
According to his family, he was choked and beaten, slammed against the wall, and hit with the butt of a machine gun. He died soon after.
While the State wanted the matter dismissed, Fabricius suggested it might be beneficial for all parties if the court declares that human rights are still firmly intact during the lockdown, and all law enforcement, including the SANDF, the South African Police Service (SAPS) and the metro police, must act in accordance with the Constitution and international laws and agreements.
“No doubt, it would receive the necessary publicity on every possible channel and it could go some way to re-establish the trust that seems to be lacking between the community and the government, and vice versa,” Fabricius said.
“So there may be benefit to this and it may be that the court is entitled to do it, contextually speaking, to issue that order, which can’t prejudice the respondent – it could only be to the advantage of South Africa as a whole,” he added.
Ngwako Maenetje SC, on behalf of the SANDF, said he would leave it up to the court’s discretion, but asked that all other orders which the family seek be dismissed.
Lawyers on behalf of the Khosa family are seeking the suspension of the SANDF members allegedly involved in Khosa’s death, for all law enforcement to adhere to the prohibition of torture and inhumane treatment, and for any law enforcement official guilty of such to receive disciplinary sanction.
They also seek the creation and wide publication of a clear code of conduct and operational procedures related to law enforcement, as well as a freely accessible complaints mechanism for the public.
Use of force
Maenetje argued that guidelines and codes of conduct already exist for the SANDF, and that guidance was given on what should happen when a person resists arrest.
He said it would be tiresome and redundant to clarify “50 to 100 situations in which force may be required”.
He added that law enforcement had already been told what they needed to do to implement the lockdown, so a reminder of this was not necessary.
Maenetje also maintained that SANDF soldiers had received adequate training, including being briefed on the rules of engagement. But, he added, that training, theoretically, might not stop someone from committing an offence.
The case continues.