Other avenues open for family of Collins Khosa to get justice, court hears

Defence minister Nosiviwe Mapisa-Nqakula says the family of Alexandra resident Collins Khosa have other remedies available to ensure the investigation into his death is dealt with timeously.

Khosa, 41, died after an altercation with soldiers and Johannesburg metro police at his home in Alexandra on April 10.

His family have approached the high court in Pretoria seeking to have the soldiers and metro police who were there disarmed and suspended.

They also want Mapisa-Nqakula and police minister Bheki Cele to develop and publish a code of conduct and operational procedures for soldiers and police deployed during the state of disaster. And they want an order compelling the state to establish a freely accessible mechanism for civilians to report allegations of torture or cruel, inhuman or degrading treatment committed by the police, army and metro police during the state of disaster.

The Khosa family's lawyer Tembeka Ngcukaitobi, argued for the family when the case began on Tuesday.

When the matter resumed on Wednesday, Ngwako Maenetje, the lawyer for the defence minister, secretary for defence and chief of the SANDF, opposed all but one of the orders sought by the family.

Maenetje said the family wanted investigations into complaints about the conduct of the SANDF done promptly and impartially.

“They have a suitable alternative remedy in this regard. They must lodge the complaints they have with the relevant institutions tasked with the constitutional and statutory mandate to investigate their complaints,” he said.

He said investigations regarding the death of Khosa were under way and had not yet been finalised, adding that if the family remained aggrieved by the conduct of such investigations, they could approach the court for a remedy.

“It is not appropriate relief to seek the replacement of the statutory bodies for purposes of the investigations to be conducted,” he said.

Maenetje said it was up to the court's discretion to rule on another order that the family sought. They want the court to order that during the lockdown everyone in SA is entitled to a number of rights that cannot be suspended, even during states of emergency.

These are the right to human dignity, the right to life, the right not to be tortured and the right not to be treated or punished in a cruel, inhuman or degrading way.

Judge Hans Fabricius, who was hearing the application, suggested to Maenetje that granting this order could go some way in re-establishing the trust between the people and the government.

The judge said the order cannot harm any of the state respondents.

“I fully understand the context. It is ultimately a matter of discretion for the court. What my lord is suggesting could be appropriate,” said Maenetje.

Mike Bofilatos, the lawyer for the police minister and national police commissioner, also opposed the orders sought by the family.

He said the police watchdog, the Independent Police Investigative Directorate (Ipid), had an obligation to deal with all cases of misconduct by the police.

Bofilatos said if the family had a real complaint regarding the effectiveness of Ipid or the military ombud, the family ought to have approached the court for orders compelling these bodies to complete their investigations.

The application continues.