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Khosa and Others v Minister of Defence and Military Defence and Military Veterans and Others (21512/2020) [2020] ZAGPPHC 147

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Khosa and Others v Minister of Defence and Military Defence and Military Veterans and Others (21512/2020) [2020] ZAGPPHC 147

26th May 2020

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[1]        It has long been debated by renowned philosophers of what the terms would be of what they called a 'social contract' between the populace and a legitimate government. Just one example: Kant was of the view that such a contract implied an idea of reason which obliged every legislator to frame its laws in such a way that they could have been produced by the united will of a whole nation and obligate each citizen as if he had consented. Kant concluded that this imaginary act of collective consent 'is the test of the rightfulness of every public law'. Aristotle, Bentham, Mill and Rawls had different views, and these are collected and discussed in 'JUSTICE, WHAT'S THE RIGHT THING TO DO?' by Michael J Sandel published by Farrar, Straus, and Giroux, New York in 2009. What social contract exists now between the South African population and the government is fortunately defined and established by the Constitution of the Republic of South Africa which came into force in 1994 . Section 1 of Chapter 1, the Founding Provisions, tell us that the Republic is one founded on values of human dignity, the achievement of equality and the advancement of human rights and freedoms, amongst others. In particular it also provides for the supremacy of the Constitution and the rule of law. Chapter 2 of this Constitution is the one that in my opinion is always regarded by the public as being one of the most 'advanced' constitutional documents in the world. I do not think that they have in mind all of the other chapters of the Constitution when this praise is uttered. The Bill of Rights is the cornerstone of democracy in this country and it enshrines the rights of all people and affirms its democratic values of human dignity, equality and freedom which must be respected, protected, promoted and fulfilled by the state and all organs of state. See sections 7 and 8 of Chapter 2 of the Constitution.

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[2]          The urgent application before me is of an unusual nature in as much as on a first reading it only seeks me to restate the law. The law in this context would be the relevant provisions of the said Constitution, the Disaster Management Act 57 of 2002, International Documents relevant in the context of section 39(1)(b) of the Constitution, such as the Universal Declaration of Human Rights of 1948, the International Convent on Civil and Political Rights of 1976 (a treaty which South Africa has ratified and which is thus part of South African law). the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 ('Torture Convention') which was also ratified and domesticated through the Prevention and Combating of Torture of Persons Act 13 of 2013 ('Torture Act'). And further, the domestic law, namely the South African Police Act 68 of 1995, the Defence Act 42 of 2002, the Criminal Procedure Act 51 of 1977 and Military Ombud Act 4 of 2012 as also the Independent Police Investigative Directorate Act 1 of 2011.

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