A constitutional legal question the Madlanga commission has been tackling since the start of its public hearings last week is whether police minister Senzo Mchunu had the legal authority to order that the political killings task team (PKTT) be immediately disbanded.
Where the minister’s legal powers end and the national police commissioner’s begin may seem like dry legal terrain, but this issue goes to the heart of the work of the judicial commission of inquiry into criminality, political interference and corruption in the criminal justice system. The disbandment of the task team was what precipitated KwaZulu-Natal provincial police commissioner Nhlanhla Mkhwanazi to go public in July with allegations that Mchunu and other high-level law enforcement officials were colluding with criminal cartels.
The separation between the constitutional powers and responsibilities of the minister and the national commissioner is nuanced. The minister is “responsible for policing” overall. Section 207(4) of the constitution says the national commissioner must “control and manage” the police service. However, it adds that this must be done in accordance with national policing policy (for which the minister is responsible), and in accordance with “the directions” of the minister.
So on the one hand, the constitution seeks to immunise the police from political interference by putting control and management of the service in the hands of a non-political actor. On the other hand, it seeks to ensure the police are not a law unto themselves, and that those given the power to arrest, detain and use firearms are accountable to the nation, do not abuse their powers, and act in accordance with policies determined by a democratically elected government.
When this balance fails, the way may be open for abuse, as has been alleged here. “The police minister’s role needs to be urgently defined,” said national police commissioner Fannie Masemola in his written statement to the commission.
On Thursday, the SAPS legal division’s head of governance, legislation and policy, Petronella van Rooyen, testified there was no “clear guidance” from the South African Police Service Act or the constitution on the “ambit or scope” of the policy or directions referred to in the country’s highest law.
But her view was that the role of the minister was limited to providing "national direction [on a strategic level] in accordance with government policy”.
Mchunu’s letter of December 31 2024 was plainly peremptory: “I therefore direct that the [PKTT] be disestablished immediately.”
Mchunu did not have the authority to disband the team, said Van Rooyen. “It can never be appropriate for a minister to instruct the national commissioner, not only to disband the PKTT, but also to say the disbandment must be done immediately. This constitutes not only a usurping of the powers of the national commissioner, but also [an undermining of] the constitutional objects of SAPS,” she said.
The decision to disband the [political killings unit] in KwaZulu-Natal was fundamentally an operational matter, falling squarely within the purview of the national commissioner.
— Gen Fannie Masemola, national police commissioner
For his part, Masemola has not been entirely consistent about whether Mchunu acted within his legal powers. In an August affidavit handed up to the high court, in which he responded to urgent litigation instituted by his deputy Shadrack Sibiya, Masemola said: “I accepted that the directive [the instruction in the letter] fell within the oversight powers of the minister, but held the view that his insistence on how and when the task team [should] be deactivated [intruded on] my constitutional mandate.”
In his September affidavit to the commission, he said: “The decision to disband the PKTT in KwaZulu-Natal was fundamentally an operational matter, falling squarely within the purview of the national commissioner … When the minister intervened and made determinations about the PKTT … such actions constituted an overreach into areas reserved for my operational command.”
During his oral testimony, he stuck to the latter view. When asked about the difference between “policy” and “directions”, he said policies were guidelines made in terms of legislation, while a “direction” was “any directive” the minister could issue on which matters the police needed to prioritise.
But he said that, even if Mchunu’s decision were found to be a matter of policy, implementing the decision — the “how” of the disbandment — was an operational matter. “[To say] “now, now, now — not even tomorrow — I think that is totally [an] encroachment into the mandate of the national commissioner in terms of the performance of my duty,” he told the commission on Monday.
Van Rooyen said the minister’s letter was clearly an instruction, and it used the word “direct”. But it was not a lawful “direction” under section 207(4) of the constitution because it strayed into operational matters. When she was asked what kind of direction would not offend, she said that if the minister were to direct that “something must be done” about, for example, gangsterism in the Western Cape, that would pass constitutional muster. But “how” that was to be done would fall outside the lawful scope of his duties.
She said the commission should not get stuck on whether an instruction was a policy or a direction. What was important was “the potential political interference that comes with the policy or directive”.
However, the commission’s chair, retired justice Mbuyiseli Madlanga, said the commission could only decide that Mchunu’s decision was an operational matter, and not a direction, “if we know what a direction is”. That was why these questions were being asked, he said. He stressed that the commission had yet to hear Mchunu on his letter. When it did so, “it will be up to us to decide”, he said.
On Monday, the commission will hear testimony from Lt-Gen Dumisani Khumalo, who is both the national convenor of the PKTT and the divisional commissioner for crime intelligence. As the person directly in charge of the PKTT, and in particular the Gauteng operation Mkhwanazi testified had directly closed the PKTT, he may be an important witness in corroborating Mkhwanazi’s claims.
Khumalo is currently charged with corruption and fraud relating to the appointment of Dineo Mokwele to a senior post in crime intelligence. It emerged during Mkhwanazi’s evidence that it was the magistrate’s “bizarre” bail condition — that Khumalo be prohibited from entering any crime intelligence premises — that led Mkhwanazi to allege the judiciary was colluding with criminal syndicates.
The charges against Khumalo were also what led Mkhwanazi to implicate the Investigating Directorate Against Corruption, which brought the case.
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