On 14 January 2013, the Western Cape High Court dismissed an application made by the Minister of Police, Nathi Mthethwa to halt the Commission of Inquiry established by the Premier of the Western Cape, Ms Helen Zille.
The Minister has now decided to make an application for leave to appeal to the Constitutional Court. Minister Mthethwa decided to do so because two judgments were delivered in the matter. The majority judgment concluded that the Premier had complied fully with the principles of cooperative government and that the application made by the Minister had to be dismissed, for that reason.
The minority judgment, on the other hand, had concluded that the intergovernmental processes had not been fully complied with and would have ordered the parties to finalize those processes and to report back to the court so that the court could consider the application again.
The Minister believes that the approach adopted by the minority was correct and that the majority should have concurred with the minority. Both Minister Mthethwa and the National Commissioner of Police, General Riah Phiyega had undertaken to work with the Premier and the civil society organizations which had wanted the inquiry, in order to address their concerns.
In fact, General Phiyega had established a task team to consider the matter. That task team had submitted a comprehensive report to her which suggested that further investigations were necessary. She had drafted terms of reference for the broader enquiry which the Minister had endorsed.
The Minister believes that it would not be coherent or useful to have two enquiries functioning at the same time to consider the same complaints, thus had asked Premier Zille to halt this commission of inquiry.
Cooperative government requires spheres of government to work together to resolve issues of concern. The premier refused to do so and the Minister felt compelled to launch the interdict proceedings.
Apart from concerns about the failure on the part of the Premier to adhere properly to the principles of cooperative government, the Minister believes that the commission’s powers are very broad, will intrude upon the powers of the police and hinder it in its work.
The commission also appears to want to investigate the whole of the criminal justice system. This exceeds the powers given to the province to appoint a commission of inquiry. The appeal will be filed today (01 February 2013).