Respecting the office of the South African Human Right's Commission

The Minister of Police's response to the Human Rights Commission's findings and remedial order in the case of Mr Chumani Maxwele (the jogger who is alleged to have given President Zuma's motorcade ‘the finger') is misplaced and has no standing in law. The HRC found that the Special Protection Unit had violated several of Mr Maxwele's rights and called on the Minister, on behalf of the members involved, to apologise to Mr Maxwele and to take steps to ensure that the SAPS acts in terms of the Constitution and the Law.

Reacting to the HRC's findings, the Minister's spokesman claimed that because Mr Maxwele had instituted civil proceedings against the SAPS the sub judice rule applied. The SAPS had accordingly refused to participate in the investigation and would not abide by the HRC's ruling.

The sub judice rule was created to prevent people from commenting on a case where such comments would prejudice the outcome of the case in any way. Historically it was invoked whenever there was any risk of prejudice to a fair trial, regardless of how speculative. However, in the matter of Midi Television v The Director of Public Prosecutions, a full bench of the Supreme Court of Appeal effectively put an end to the rule.

Emphasising the importance of freedom of expression, the Court developed an extremely strict test as to when the sub judice rule can be invoked. The court found that it would only be applicable if a substantial and real prejudice to the administration of justice would occur as a result of the communication and the prejudice could not be prevented from occurring by any other means.

The complaint which was filled with the South African Human Rights Commission involved the violation of Mr Maxwele's constitutionally guaranteed rights to human dignity, to freedom and security of the person, to privacy, to freedom of expression and peaceful/unarmed demonstration, to make political choices and to certain rights as a detained person.

The remedy sought was the restoration of his dignity. In contrast, the pending civil claim to which the Minister refers is a damages claim sounding in money. The crisp issue that will have to be decided in that matter is whether Mr Maxwele is entitled to be compensated financially as a result of any damages suffered. The two are thus different enquiries, and no substantial prejudice to the civil trial can possibly arise through the correct exercise of its rights jurisdiction by the Human Rights Commission.

The South African Human Rights Commission is an institution established in terms of the Constitution to support constitutional democracy. It is specifically mandated to monitor the observance of human rights and authorised to take steps to secure appropriate redress where human rights have been violated. Section 181 obliges all organs of state to assist the Commission and prohibits any interference in its proper function. The Minister was thus ill advised not to co-operate with the investigation. It is now hoped that he will be correctly advised to respect and honour the findings within the stipulated 30 day time period.

Statement issued by Adv Nikki de Havilland, Centre for Constitutional Rights, FW de Klerk Foundation, July 15 2011

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