Relevant and applicable legal provisions
Section 199(1) and (6) of our Constitution provide as follow:
“Establishment, structuring and conduct of security services
199.(1) The security services of the RSA consist of a single defence force [the SANDF], a single police service [the SAPS] and any intelligence services established in terms of the Constitution.
(2) to (5) …
(6) No member of any security service may obey a manifestly illegal order ...”
Section 47 of the South African Police Service Act 68 of 1995 provides as follows:
(1) Subject to subsection (2), a member [of the SAPS] shall obey and order or instruction given to him or her by a superior or a person who is competent to do so: Provided that a member shall not obey a patently unlawful order or instruction.
(2) Where it is reasonable in the circumstances, a member may demand that an order or instruction referred to in subsection (1) be recorded in writing before obeying it.
(3) A member may, after having obeyed an order or instruction referred to in subsection (1), demand that such an order or instruct be recorded in writing.”
(Emphasis added and works in square brackets inserted by Pollex.)
Important note: This Kleinhans case to be discussed infra, is about orders (Afrikaans: “opdragte en/of bevele”) issued to SAPS members by a public prosecutor in his or her official capacity. Pollex is of the opinion that these orders (in this Kleinhans case) are genuine, legal orders. Pollex is also of the opinion that a “public prosecutor” falls within the category of “person who are competent to give such orders” as referred to in section 47(1) of the SAPS Act 68 of 1995 supra.
During February 2019, Mr J J Kleinhans reported a theft case in Pretoria at Wonderboompoort (“WBP”) Police Station - CAS 116/2/2019 refers. During June 2020, Kleinhans reported a further case in Pretoria, this time at Sinoville Police Station - Sinoville CAS 81/6/2020 refers. In both cases, the alleged suspect is Ms Samantha Jane Wright.