South Africa, High Court, 15 May 2020, [2020] ZAGPPHC 147

Case overview

Country
South Africa
Case ID
[2020] ZAGPPHC 147
Decision date
Deciding body (English)
High Court
Type of body
Court
Type of Court (material scope)
Civil Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
State Court
Instance
1st Instance
Area
Private and family life
Further areas addressed
Freedom from torture and inhuman treatment
Outcome of the decision
Claim upheld
Link to the full text of the decision
Decision_EN available on saflii.org
General Summary

The members of the Defense Force, who were employed to assist the police and municipal police in enforcing the lockdown, entered upon the property where the deceased resided, accused him of violating the lockdown regulations, and ordered him outside. There they proceeded to assault him. He later died of his injuries. This case was brought for a declaration that the above acts were a violation of the right to life and freedom from prohibition from torture. Court granted the declaration.

Facts of the case

Being ordered to leave his premise during the control for violation of the lock down regulations, the Applicants sought the following relief: A declaration that: 

  • All persons were entitled to the rights to dignity, to life, and to not be tortured nor treated in a cruel, inhumane, or degrading way. The Defense Force, the police and the metropolitan police were required to act in accordance with the law and to respect, protect, promote, and fulfil the rights in the Bill of Rights.
  • That their members were required to use minimum force and suspend the members of the Defense Force who were at the deceased’s place of residence on the night he was assaulted.
Type of measure challenged
National government measure
Measures, actions, remedies claimed
A declaration that rights as to life and as to prohibition from torture were violated.
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Urgency
Reasoning of the deciding body

The Court noted that it was asked to order the Respondents to enhance the existing institutions and to give them what they currently lack but constitutionally require the necessary competence, independence, and capacity to receive and investigate complaints of torture, and brutality promptly, impartially, and effectively. This relief is competent, justified, appropriate and above all just and equitable as required by the Constitution. Lock-down brutality requires a remedy. The order sought provides that remedy.

Conclusions of the deciding body

The Court held that the right to human dignity, the right to life, the right not to be tortured in any way, and the right not to be treated or punished in a cruel, inhuman or degrading way are nonnegotiable even during states of emergency, and that they are rights held by all persons within the territory of South Africa.

Implementation of the ruling

The Court ordered as prayed by the Applicant, that the Respondents, within respective number of days, to suspend the members of the forces who were perpetrators of the crime, pending disciplinary hearing, to adhere to prohibitions of torture, develop and publish the code of their operational conduct and report to the Court by affidavit, of the implementation of the said orders.

Fundamental Right(s) involved
  • Freedom of religion
  • Prisoners’ rights
  • Right to bodily integrity
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
  • Right to human dignity, Section 10, Constitution of South Africa
  • Right to freedom and security of a person, Section 12, Constitution of South Africa
  • Freedom from torture, Section 12(1)(d), Constitution of South Africa
  • Right to bodily and psychological integrity, Section 12(2), Constitution of South Africa
  • Right cultural and religious practices, Section 31, Constitution of South Africa
  • Rights of arrested, detained and accused persons, Section 35, Constitution of South Africa
  • Right to life, Section 11, Art 5, African Declaration on Human and People’s Rights
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
  • Health v. freedom of movement of persons
  • Health v. freedom of religion
  • right to bodily integrity
General principle applied
Rule of law
Balancing techniques and principles (proportionality, reasonableness, others)

Court also noted that the members of the South African National Defense Forces are bound by the different provisions of the law and international Instruments regarding torture, inhuman or degrading treatment.

Impact on Legislation/Policy

Court encouraged respect for Human Rights by the Defense forces.

Impact on national case law

Complementary.

Author of the case note
Professor Emmanuel Kasimbazi, Makerere University