It is trite that South Africa remains a Constitutional democracy and its existence is premised within the confines of the principles and ethos of the Constitution of the Republic of South Africa, 1996 (“the Constitution”). This remains even after the advent of the COVID-19 pandemic in our shores. Certainly, the pandemic has brought myriad of fears to many members of our society in general. The number of infections and deaths resulting from COVID-19 has also exacerbated anxiety to many including members of the army and police officials who are entrusted with powers to enforce and police the nationwide lockdown regulations. Nevertheless, the above fear and anxiety by the enforcers of the regulations do not make South Africa less of a democratic state or justify the unlawful and inhumane treatment that many in our community are receiving from some officials of the SANDF and SAPS.

It is a tired tale how police and the army unlawfully executed their duties during apartheid regime, some acting out of their own volition and others carrying out illegal orders from their ruthless superiors. Although the law enforcement officers received criticism by the legal experts, media, and courts for their conduct during the apartheid regime, this did not deter them from their illegal means of “law” enforcement. Thankfully, those days have passed. South Africans live in a hard fought for, constitutional democracy highly emulated internationally.

Back to the elephant in the room, COVID-19 pandemic, the South African government is hard at work in exploring ways and means to avoid and prevent the spread of the virus. The sterling job the government leaders are doing have received praise from many countries around the world, including the World Health Organisation. However, it remains the same government’s responsibilities, to amongst other things, ensure that the society they govern is properly protected from all manner of criminalism and human rights violations by police and the army in the name of lockdown regulations. Pandemics are uncommon occurrence and that when they do surface, extra ordinary measures are required to counter the impact. However, this article reminds those responsible for security and protection of citizens to respect the very ethos of our Constitution and the laws of the country. The article also provides remedies available for member of the public who suffer at the hands of the law enforcement.

While the government’s decision of restricting movement and trade under lockdown is commendable, police, army and other security clusters must uphold rule of law and democratic principles. Principles enshrined in the Constitution and other relevant statutes such as Section 49 of the Criminal Procedure Act No 51 of 1977 are still applicable in South Africa. The country remains a Constitutional state, and not a police state. Communities at large with the exempted few, must still adhere to promulgated statutes and regulations in support of a nationwide lockdown.

During alert level 5 lockdown, the South African Office of the Military Ombud has assured citizens that they remain open to assist those who would feel aggrieved by the conduct of any member of the SANDF in the execution of their duties. The Ombud’s Lieutenant General (Retired) Vusumuzi Masondo asserted that communities need to be informed of the existence of the office and the assistance they can get from it when a need to lodge a complaint should arise. Masondo further reportedly stated “Our job is to make sure that complaints that comes through our office are handled professionally and rights of citizens of the country are protected without compromise.” These comments by Masondo came as the Minister of Defence and Military Veterans (“Minister of Defence”), Nosiviwe Mapisa-Nqakula condemned any form of abuse committed by soldiers during the lockdown.

The Military Ombud has been established in terms of Military Ombud Act No.4 of 2012 (“Military Ombud Act”) and has powers to expeditiously investigate complaints lodged with them, either by the members of the army or members of public. In terms of section 6 of the Act, “If the Ombud upholds the complaint, the Ombud must recommend the appropriate relief for implementation to the Minister.” Whether the recommendation to the Minister is binding will be discussed in another article.

As of 19 April 2020, the Military Ombud had already received 28 complaints against conduct of the army since the commencement of the nationwide lockdown. What members of public, including those who have since lodged complaints with the Military Ombud must know is that the processes contemplated in the Military Ombud Act do not substitute their rights to institute civil action for damages against the Minister of Defence who is vicariously liable as the employer, for unlawful and negligent conduct by members of the SANDF in the execution of their duties. Judging by the number of reports involving assault and killings allegedly at the hands of army during lockdown, the state might have to face numerous civil claims of damages by the affected victims.

Neethling et al in his book defined vicarious liability as follows:
“Vicarious liability may in general terms be described as the strict liability of one person for the delict of another. The former is thus indirectly or vicariously liable for the damage caused by the latter. This liability applies where there is a particular relationship between two persons. Three such relationships are important, namely that of employer-employee, principal-agent and motor car owner-motor car driver.”

Likewise, members of society also need to be informed that complaints arising from the unlawful and negligent conduct of the police in the performance of their duties within the scope of their employment with the SAPS must be directed to the Independent Police Investigative Directorate (“IPID”). The above legal principles that applies to civil claim for damages against the Minister of Defence, would also apply when considering civil action against the Minister of Police.

In conclusion, lodging complaints with the Military Ombud and IPID does not guarantee recovery of civil damages by the victims, but successful claim of civil law process does. At the same time, our army and police should always have regard to Constitutional principles when they execute their very important duties.