On Sunday afternoon the Helen Suzman Foundation (HSF) offices in Parktown, Johannesburg were the target of a military-style raid. Those conducting the raid clearly knew what they were looking for: computers and other documentation relating to the programmatic work of the HSF were taken. The brazen, coordinated nature of the operation and its targeted, selective focus are sinister. So, too, is its timing.
In its bid to promote constitutional democracy, the HSF undertakes vital but often politically sensitive and contentious activity. Among its most recent activities was the launch last Wednesday of an application in the Pretoria High Court to block the head of the Hawks from exercising any of his powers pending the outcome of its application to have his appointment set aside as irrational and unlawful.
We, the undersigned, are alarmed at the raid on the HSF. Thuggery such as this is probably intended to intimidate the HSF and others in civil society engaged in promoting constitutional democracy, advancing human rights, fighting endemic corruption and protecting the Rule of Law.
While the culprits of the raid have yet to be identified, we note that it takes place in a context of increasing hostility by some within the state towards civil society. Should it be established that the perpetrators of the raid are in any way linked to police, army or intelligence functionaries, it will represent an attack on our democracy of the gravest kind. Even absent such linkages, government is not without responsibility. The enmity currently characterising its relationship with outspoken NGOs helps encourage the view that NGOs are fair targets.
To discharge its responsibility, government will need to act swiftly and decisively. We call on it to ensure that the raid is properly investigated and the perpetrators prosecuted.
Centre for Applied Legal Studies (CALS)
Centre for Human Rights (CHR)
Centre for Environmental Rights
Corruption Watch
Freedom Under Law (FUL)
Lawyers for Human Rights (LHR)
Legal Resources Centre (LRC)
Socio-Economic Rights Institute of South Africa (SERI)
South African History Archive (SAHA)
Southern Africa Litigation Centre (SALC)
Treatment Action Campaign (TAC)
Women’s Legal Centre (WLC)
Showing posts with label SAPS. Show all posts
Showing posts with label SAPS. Show all posts
Tuesday, March 22, 2016
Friday, March 27, 2015
Jiba: Nxasana accuses police of 'assuming the role of defence'
National director of Public Prosecutions (NDPP), Mxolisi Nxasana, says a perception is being created that the police are trying to protect his deputy, Nomgcobo Jiba, from prosecution. Nxasana addressed the media at a press conference on Friday morning.
This week, a senior police official served a summons on Jiba related to an investigation into her conduct. But Jiba was not there to receive the summons, which Nxasana tried to deliver to her.
The police denied that the summons was issued, saying their case was not ready to go to court. “It is our view that the NPA, who are also complainants in the matter, jumped the gun when they issued a summons against advocate Jiba,” said SAPS spokesperson Lieutenant-General Solomon Makgale on Wednesday.
Nxasana was asked on Friday if he believed the police were trying to protect Jiba. “I don’t believe that she’s protected. But a perception is created, and it’s unavoidable, that she’s being protected at all costs,” Nxasana said.
Prosecution
He said the idea that a matter could only proceed to court once the investigation was complete was not true. “Matters in court, although I’m not condoning it, are enrolled and they get postponed time and time again, for further investigation. Therefore any suggestion that the matter can only be enrolled once its been investigated is misleading. It’s the responsibility of the investigating officer to make a decision as to whether the matter could be prosecuted,” Nxasana said.
He accused the police of “assuming the role of defence”. Nxasana said Jiba “knows her rights”, and if she felt that the summons issued against her was false, that he hoped charges would be laid and those responsible would be brought to book.
‘Very strange’ saga
Nxasana said the idea that Jiba was “awol” this week did not emanate from the National Prosecuting Authority (NPA). He said that on the morning the summons was issued, he had tried to contact her in an unrelated matter, but she was not at work. But this did not mean she was “absent without leave”. On the whole, Nxasana said he found the entire saga “very strange”.
“I was hoping that the police as our partners would tell us if they are ready to prosecute this matter. The police have now assumed the role of being the defence.
“I can only hope that after all this – the impression created is that the police were merely instructed by the prosecutor to take the summons – that if the conduct of the prosecutor (in Jiba’s matter) is found wanting, which I strongly deny, he’ll have also to face the might of the law.
“And if the police officers and others acted (involved in the investigation into Jiba) unlawfully I expect stern actions be taken against them.”
Summons
Questions still remain about who was responsible for delivering the summons to Jiba. Nxasana said, “I attempted to serve the summons upon her. But my understanding of the law is that that is one of the manners to effect service upon a person. My understanding is that the summons has been served upon her. And if she doesn’t appear in court I have no doubt in my mind that the prosecutor will do what is necessary and the court will be the final arbiter.
“When she refused to accept the summons, I wrote on the summons and witness wrote what happened.
“I’m more concerned about the integrity of the NPA especially because the public looks to and expects the NPA to do its work without fear or favour of prejudice as enjoined by the Constitution,” Nxasana said. “The integrity of the NPA must remain in tact and untarnished.”
Source: Mail & Guardian
This week, a senior police official served a summons on Jiba related to an investigation into her conduct. But Jiba was not there to receive the summons, which Nxasana tried to deliver to her.
The police denied that the summons was issued, saying their case was not ready to go to court. “It is our view that the NPA, who are also complainants in the matter, jumped the gun when they issued a summons against advocate Jiba,” said SAPS spokesperson Lieutenant-General Solomon Makgale on Wednesday.
Nxasana was asked on Friday if he believed the police were trying to protect Jiba. “I don’t believe that she’s protected. But a perception is created, and it’s unavoidable, that she’s being protected at all costs,” Nxasana said.
Prosecution
He said the idea that a matter could only proceed to court once the investigation was complete was not true. “Matters in court, although I’m not condoning it, are enrolled and they get postponed time and time again, for further investigation. Therefore any suggestion that the matter can only be enrolled once its been investigated is misleading. It’s the responsibility of the investigating officer to make a decision as to whether the matter could be prosecuted,” Nxasana said.
He accused the police of “assuming the role of defence”. Nxasana said Jiba “knows her rights”, and if she felt that the summons issued against her was false, that he hoped charges would be laid and those responsible would be brought to book.
‘Very strange’ saga
Nxasana said the idea that Jiba was “awol” this week did not emanate from the National Prosecuting Authority (NPA). He said that on the morning the summons was issued, he had tried to contact her in an unrelated matter, but she was not at work. But this did not mean she was “absent without leave”. On the whole, Nxasana said he found the entire saga “very strange”.
“I was hoping that the police as our partners would tell us if they are ready to prosecute this matter. The police have now assumed the role of being the defence.
“I can only hope that after all this – the impression created is that the police were merely instructed by the prosecutor to take the summons – that if the conduct of the prosecutor (in Jiba’s matter) is found wanting, which I strongly deny, he’ll have also to face the might of the law.
“And if the police officers and others acted (involved in the investigation into Jiba) unlawfully I expect stern actions be taken against them.”
Summons
Questions still remain about who was responsible for delivering the summons to Jiba. Nxasana said, “I attempted to serve the summons upon her. But my understanding of the law is that that is one of the manners to effect service upon a person. My understanding is that the summons has been served upon her. And if she doesn’t appear in court I have no doubt in my mind that the prosecutor will do what is necessary and the court will be the final arbiter.
“When she refused to accept the summons, I wrote on the summons and witness wrote what happened.
“I’m more concerned about the integrity of the NPA especially because the public looks to and expects the NPA to do its work without fear or favour of prejudice as enjoined by the Constitution,” Nxasana said. “The integrity of the NPA must remain in tact and untarnished.”
Source: Mail & Guardian
Tuesday, March 24, 2015
McBride suspended
Independent Police Investigative Directorate (IPID) head Robert McBride has been suspended, eNCA reported on Tuesday.
On Wednesday last week, an urgent interdict sought by McBride to prevent his suspension from IPID was struck off the roll in the North Gauteng High Court in Pretoria.
"The facts do not support the relief sought, nor the applicable legal considerations. It is accordingly struck off the roll," Judge Hans Fabricius said in his written judgment.
Police Minister Nathi Nhleko had opposed McBride's application.
McBride had received a letter from Nhleko, asking him to make submissions about why he should not be suspended.
Source: News24
On Wednesday last week, an urgent interdict sought by McBride to prevent his suspension from IPID was struck off the roll in the North Gauteng High Court in Pretoria.
"The facts do not support the relief sought, nor the applicable legal considerations. It is accordingly struck off the roll," Judge Hans Fabricius said in his written judgment.
Police Minister Nathi Nhleko had opposed McBride's application.
McBride had received a letter from Nhleko, asking him to make submissions about why he should not be suspended.
Source: News24
Sunday, March 15, 2015
Robert McBride accused of stealing incriminating USB stick from Hawks
Robert McBride is now the subject of a criminal investigation – over an allegation that he stole a memory stick containing evidence that could implicate himself as well as Hawks bosses Anwa Dramat and Shadrack Sibiya in unspecified “wrongdoing”.
City Press has learnt the Hawks are now investigating a case of defeating the ends of justice against the head of the Independent Police Investigative Directorate (IPID) after he personally went to the office of suspended Gauteng Hawks head Shadrack Sibiya to take possession of the memory stick that was kept in the walk-in safe.
A senior Hawks officer told City Press on Saturday they were also investigating the relationship between McBride and Sibiya following allegations they received that Sibiya helped McBride evade arrest and a blood test after he allegedly drove drunk and crashed his car after a Christmas party in 2006.
Neither McBride nor Sibiya were available for comment on this allegation on Saturday.
McBride, however, is hitting back and is investigating how acting Hawks head Mthandazo Ntlemeza came to be in possession of the IPID docket into the illegal rendition of five Zimbabweans. He is seeking legal advice on what charges to lay against Ntlemeza.
On Thursday night, McBride filed an urgent application at the North Gauteng High Court in which he asked for an interdict against Police Minister Nathi Nhleko suspending him.
Nhleko had sent him a letter on Wednesday giving him notice of his intention to suspend him.
In his affidavit in court papers, McBride said he met Nhleko and Ntlemeza in Cape Town in February and was told he had been accused of “raiding” Gauteng Hawks provincial headquarters.
'Bugging device'
Two senior sources, one from the Hawks and another from IPID, told City Press the criminal investigation to “nail” McBride was still in its early stages.
“There is an investigation that focuses on whether McBride stole the memory stick, which we believe contained incriminating evidence implicating Dramat, Sibiya and himself,” said the senior Hawks source.
The device has been handed to the State Security Agency for analysis.
However, in another affidavit, Sibiya says two colonels from the Crime Intelligence Unit arrived at his offices in Parktown asking for the device because it belonged to their then suspended boss, Lieutenant General Richard Mdluli, who wanted it back.
Sibiya, who was also suspended at the time, then asked McBride to collect it and examine its contents “to see if it was not a bugging device that was installed unlawfully to monitor my communications”.
The Hawks investigation against McBride relies on an affidavit by Sibiya’s chief administration clerk, Pearl Angel Pomuser, which says McBride and two other men arrived at the provincial headquarters and demanded the device.
McBride allegedly threatened Pomuser with criminal charges if she did not comply, and he was then given the “Data 6 line box” device.
In his letter to Pomuser, McBride said IPID was “investigating a case of systematic corruption” and needed to examine it.
Criminal charges
Last week, City Press reported that McBride faced suspension for allegedly changing the findings of a report into the roles Dramat and Sibiya played in the renditions. The differences between the draft report that implicates the two and the final version that clears them is under way by law firm Werksmans Attorneys.
The senior Hawks officer said that if McBride were found to have played a role in altering the report, he would face additional criminal charges of defeating the ends of justice.
A source within the Sandton law firm told City Press they were still analysing the reports and had asked Nhleko for another two weeks to complete their investigation, which was initially due on Friday.
“Our mandate has been extended to a month,” the source said.
In his notice of intention to suspend McBride, Nhleko accuses McBride of deliberately misleading Dramat and Sibiya by saying they had been cleared of their role in the renditions when they had not.
McBride is also accused of not informing Nhleko that there were two reports and of undermining the minister by writing to the parliamentary portfolio committee on police two weeks ago to request a special sitting to explain the differences in the reports.
Hawks spokesperson Brigadier Hangwani Mulaudzi declined to comment on Saturday, referring questions to police ministry spokesperson Musa Zondi.
Zondi confirmed Nhleko had asked McBride “in the letter whether taking the device could not be construed as tampering with evidence”.
In 2011, McBride was sentenced to two years in prison for drunken driving and an effective three years for trying to defeat the ends of justice.
He successfully appealed his conviction on both counts in 2013.
Source: News24
City Press has learnt the Hawks are now investigating a case of defeating the ends of justice against the head of the Independent Police Investigative Directorate (IPID) after he personally went to the office of suspended Gauteng Hawks head Shadrack Sibiya to take possession of the memory stick that was kept in the walk-in safe.
A senior Hawks officer told City Press on Saturday they were also investigating the relationship between McBride and Sibiya following allegations they received that Sibiya helped McBride evade arrest and a blood test after he allegedly drove drunk and crashed his car after a Christmas party in 2006.
Neither McBride nor Sibiya were available for comment on this allegation on Saturday.
McBride, however, is hitting back and is investigating how acting Hawks head Mthandazo Ntlemeza came to be in possession of the IPID docket into the illegal rendition of five Zimbabweans. He is seeking legal advice on what charges to lay against Ntlemeza.
On Thursday night, McBride filed an urgent application at the North Gauteng High Court in which he asked for an interdict against Police Minister Nathi Nhleko suspending him.
Nhleko had sent him a letter on Wednesday giving him notice of his intention to suspend him.
In his affidavit in court papers, McBride said he met Nhleko and Ntlemeza in Cape Town in February and was told he had been accused of “raiding” Gauteng Hawks provincial headquarters.
'Bugging device'
Two senior sources, one from the Hawks and another from IPID, told City Press the criminal investigation to “nail” McBride was still in its early stages.
“There is an investigation that focuses on whether McBride stole the memory stick, which we believe contained incriminating evidence implicating Dramat, Sibiya and himself,” said the senior Hawks source.
The device has been handed to the State Security Agency for analysis.
However, in another affidavit, Sibiya says two colonels from the Crime Intelligence Unit arrived at his offices in Parktown asking for the device because it belonged to their then suspended boss, Lieutenant General Richard Mdluli, who wanted it back.
Sibiya, who was also suspended at the time, then asked McBride to collect it and examine its contents “to see if it was not a bugging device that was installed unlawfully to monitor my communications”.
The Hawks investigation against McBride relies on an affidavit by Sibiya’s chief administration clerk, Pearl Angel Pomuser, which says McBride and two other men arrived at the provincial headquarters and demanded the device.
McBride allegedly threatened Pomuser with criminal charges if she did not comply, and he was then given the “Data 6 line box” device.
In his letter to Pomuser, McBride said IPID was “investigating a case of systematic corruption” and needed to examine it.
Criminal charges
Last week, City Press reported that McBride faced suspension for allegedly changing the findings of a report into the roles Dramat and Sibiya played in the renditions. The differences between the draft report that implicates the two and the final version that clears them is under way by law firm Werksmans Attorneys.
The senior Hawks officer said that if McBride were found to have played a role in altering the report, he would face additional criminal charges of defeating the ends of justice.
A source within the Sandton law firm told City Press they were still analysing the reports and had asked Nhleko for another two weeks to complete their investigation, which was initially due on Friday.
“Our mandate has been extended to a month,” the source said.
In his notice of intention to suspend McBride, Nhleko accuses McBride of deliberately misleading Dramat and Sibiya by saying they had been cleared of their role in the renditions when they had not.
McBride is also accused of not informing Nhleko that there were two reports and of undermining the minister by writing to the parliamentary portfolio committee on police two weeks ago to request a special sitting to explain the differences in the reports.
Hawks spokesperson Brigadier Hangwani Mulaudzi declined to comment on Saturday, referring questions to police ministry spokesperson Musa Zondi.
Zondi confirmed Nhleko had asked McBride “in the letter whether taking the device could not be construed as tampering with evidence”.
In 2011, McBride was sentenced to two years in prison for drunken driving and an effective three years for trying to defeat the ends of justice.
He successfully appealed his conviction on both counts in 2013.
Source: News24
Sunday, March 8, 2015
Police Minister launches investigation into Robert McBride
Police Minister Nkosinathi Nhleko has launched an investigation into Independent Police Investigative Directorate (Ipid) Head Robert McBride’s handling of the case involving senior Hawks officials and their role in the rendition of Zimababweans in 2010.
It’s understood Ipid filed conflicting reports on the case.
The City Press is reporting Nhleko has accused McBride of changing the findings on the report allegedly in an attempt to protect the Hawks bosses.
The police ministry has also confirmed that Nhleko called the IPID boss asking to explain why there were differences in the two IPID reports.
Spokesperson Musa Zondi, “The minister has asked Werksmans Attourneys to look into both reports and come back to us as soon as possible and tell us when exactly these reports were changed and what the reasons were.”
Weekend reports suggest McBride could soon be joining Hawks boss Anwa Dramat and Shadrack Sibiya on suspension, in the wake of the illegal rendition of five Zimbabweans from Diepsloot, over the Beitbridge Border Post in 2010.
The police minister suspended the pair late last year however, the High Court in Pretoria rendered Dramat's suspension null and void.
However, the Police Ministry last month confirmed that Dramat has not reported for duty, and is on leave by mutual agreement with Nhleko.
Source: EWN
It’s understood Ipid filed conflicting reports on the case.
The City Press is reporting Nhleko has accused McBride of changing the findings on the report allegedly in an attempt to protect the Hawks bosses.
The police ministry has also confirmed that Nhleko called the IPID boss asking to explain why there were differences in the two IPID reports.
Spokesperson Musa Zondi, “The minister has asked Werksmans Attourneys to look into both reports and come back to us as soon as possible and tell us when exactly these reports were changed and what the reasons were.”
Weekend reports suggest McBride could soon be joining Hawks boss Anwa Dramat and Shadrack Sibiya on suspension, in the wake of the illegal rendition of five Zimbabweans from Diepsloot, over the Beitbridge Border Post in 2010.
The police minister suspended the pair late last year however, the High Court in Pretoria rendered Dramat's suspension null and void.
However, the Police Ministry last month confirmed that Dramat has not reported for duty, and is on leave by mutual agreement with Nhleko.
Source: EWN
Thursday, September 11, 2014
Marikana Commission: Riah Phiyega's impossibly hazy memory
National Police Commissioner Riah Phiyega appeared at the Marikana Commission on Wednesday to clarify questions on how decisions were made from the top. Instead, she further tarnished the SAPS position in the inquiry, painting top officers as uninterested in operational matters and effectively laying the blame at the feet of ground commanders. By GREG NICOLSON.
Riah Phiyega listened to chairman Ian Farlam. “You swear that the further evidence you give to this Commission will be the truth, the whole truth and nothing but the truth?” In a floral skirt, teal blouse and blazer, with matching pearl earrings and necklace, Phiyega agreed.
The national police commissioner appeared in front of the Marikana Commission again on Wednesday for the last time before the inquiry wraps up. As the top cop in August 2012, when 34 mineworkers were killed in a single day and 10 people were killed in the preceding week, Phiyega's testimony is crucial to the Commission's goal of pursuing truth and restorative justice. She is ultimately responsible for the police operations. She's also the link between alleged political influence and SAPS actions.
On Wednesday, however, Phiyega stonewalled Farlam who for most of her appearance quizzed her on issues that either hadn't been resolved or had come to light since Phiyega's previous lengthy appearance. To most questions, she simply said she doesn't remember what happened over two years ago. In her silence, she painted a picture of a leader unwilling to cooperate with the inquiry, senior police officers who failed to perform their duties, and an SAPS that has tried to mislead the Commission.
Farlam wanted to talk about the extraordinary meeting of the police management forum on 15 August when top provincial and national officers discussed Marikana. It was in this meeting when the decision was taken to implement the disperse, disarm and arrest plan the next day, which ultimately led to the massacre. Incredibly, the police didn't hand over any evidence of the meeting nor mention it when they made their submissions to the Commission. It only came out later.
“You're now seriously stating we would be in error if we find SAPS didn't cooperate [with the Commission]?” Farlam put to Phiyega. Only after a third party pointed them towards the meeting did the Commission find out about it. There was nothing untoward, she claimed, and when requested, they admitted the meeting took place. “It certainly appeared to us to be a secret when it came out at a later stage,” said Farlam.
Phiyega agreed the Marikana strike was the most challenging public policing situation during the democratic era, but she could not remember details of the meeting which approved the plan to tackle it. In the hour-long session on 15 August 2012, North West Provincial Commissioner Zukiswa Mbombo made a presentation for 10 to 15 minutes and the SAPS from different provinces also discussed sharing the necessary resources for the operation. Beyond that, Phiyega said she didn’t have a “photographic memory” and could not remember “pedantic details” about what happened in the meeting.
“It's very important for us to know why the decision was taken to proceed on Thursday morning,” said Farlam. “It's important for us to find out was exactly was said.” Phiyega didn't help, but she was clear about what didn't happen in the meeting. While most of the country's provincial police commissioners were present, some of whom come from policing backgrounds, Phiyega said no specific details of the plan to confront the mineworkers were discussed before it was approved.
“Are you seriously suggesting that the meeting endorsed the proposal without knowing what the details of the response were?” asked Farlam. Phiyega's response was that police know how to conduct disarming operations and they're are essentially the same. She said this despite two officers being hacked to death when a disarming operation went wrong on 13 August. Incredibly, reflecting on the meeting on 15 August, Phiyega could not recall any of the country's top police officers raising the fear of further bloodshed while they decided to approve the plan.
While shocking, it also seems extremely unlikely given the volatile situation in Marikana at the time and widely publicised problems with policing protests. Yet if Phiyega acknowledged they knew and spoke about the dangers, the next question is, so why did they implement the plan, or why this plan, and why wasn't greater precaution taken?
Farlam, however, seemed shocked. “The fact that the proposal was endorsed by the meeting, the fact that the people there all agreed to make resources available as required, surely means that they cannot evade responsibility and say, 'We knew about the plan. Sure go ahead. We'll make resources available. And if it goes wrong because it's managed badly or defective planning, that's nothing to do with us.' Surely there comes a time when responsibility must rest with those people in that meeting as well.”
He was equally surprised that Phiyega had no recollection of a conversation with SAPS expert witness Cees de Rover about political influence on police decisions at Marikana. “My questions have been straightforward on the issue; the answers have not been,” De Rover said last week, claiming Phiyega was evasive. Farlam said surely she would remember being asked if political pressure played a part in the death of 34 people in a day. Phiyega said she couldn't remember and refused to engage the chairman's questions.
Already evasive and difficult, the national police commissioner's credibility was shot when Farlam brought up the review panel. When Phiyega had appeared at the Commission before, she was asked whether the SAPS had established a review on certain issues related broadly to Marikana and Phiyega said she had not. But when a police hard drive was analysed, it emerged a review panel had been established and Phiyega's signature was on the call up instructions. No evidence the panel existed was voluntary handed to the Commission by the police despite their commitment to do so with all relevant information at the start of the inquiry.
It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest.
While she plays the amnesia card and tries to distance the country's top officers from the details of the plan to confront the miners, she opens up herself and other officers to allegations of incompetence and dereliction of duty. But by doing so she shifts the greater responsibility to the commanders on the ground who she says the SAPS relied on.
Phiyega is also putting a wall between the police and the politicians who got involved in Marikana. Last week, De Rover, a policing expert who has worked in over 60 countries, said he couldn't fathom a situation where politicians were not involved.
If there was any doubt that Phiyega was untruthful, Advocate Dali Mpofu showed her the transcript between the SAPS's Mbombo and Lonmin's Bernard Mokoena on 14 August 2012. In relation to the police ending the strike, the two speak of Cyril Ramaphosa, Julius Malema, the pair's relationship in the ANC disciplinary committee, problems with Malema potentially ending the crisis, and nationalisation of the mines. Asked about the political nature of the discussion and whether it is legal for the SAPS to use policing operations to influence party politics, Phiyega responded, “What's political about this?”
“They could have used different words, but what I hear is people who are interested in ending a protest.”
Let us say it once more: It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest. DM
Source: Daily Maverick
Riah Phiyega listened to chairman Ian Farlam. “You swear that the further evidence you give to this Commission will be the truth, the whole truth and nothing but the truth?” In a floral skirt, teal blouse and blazer, with matching pearl earrings and necklace, Phiyega agreed.
The national police commissioner appeared in front of the Marikana Commission again on Wednesday for the last time before the inquiry wraps up. As the top cop in August 2012, when 34 mineworkers were killed in a single day and 10 people were killed in the preceding week, Phiyega's testimony is crucial to the Commission's goal of pursuing truth and restorative justice. She is ultimately responsible for the police operations. She's also the link between alleged political influence and SAPS actions.
On Wednesday, however, Phiyega stonewalled Farlam who for most of her appearance quizzed her on issues that either hadn't been resolved or had come to light since Phiyega's previous lengthy appearance. To most questions, she simply said she doesn't remember what happened over two years ago. In her silence, she painted a picture of a leader unwilling to cooperate with the inquiry, senior police officers who failed to perform their duties, and an SAPS that has tried to mislead the Commission.
Farlam wanted to talk about the extraordinary meeting of the police management forum on 15 August when top provincial and national officers discussed Marikana. It was in this meeting when the decision was taken to implement the disperse, disarm and arrest plan the next day, which ultimately led to the massacre. Incredibly, the police didn't hand over any evidence of the meeting nor mention it when they made their submissions to the Commission. It only came out later.
“You're now seriously stating we would be in error if we find SAPS didn't cooperate [with the Commission]?” Farlam put to Phiyega. Only after a third party pointed them towards the meeting did the Commission find out about it. There was nothing untoward, she claimed, and when requested, they admitted the meeting took place. “It certainly appeared to us to be a secret when it came out at a later stage,” said Farlam.
Phiyega agreed the Marikana strike was the most challenging public policing situation during the democratic era, but she could not remember details of the meeting which approved the plan to tackle it. In the hour-long session on 15 August 2012, North West Provincial Commissioner Zukiswa Mbombo made a presentation for 10 to 15 minutes and the SAPS from different provinces also discussed sharing the necessary resources for the operation. Beyond that, Phiyega said she didn’t have a “photographic memory” and could not remember “pedantic details” about what happened in the meeting.
“It's very important for us to know why the decision was taken to proceed on Thursday morning,” said Farlam. “It's important for us to find out was exactly was said.” Phiyega didn't help, but she was clear about what didn't happen in the meeting. While most of the country's provincial police commissioners were present, some of whom come from policing backgrounds, Phiyega said no specific details of the plan to confront the mineworkers were discussed before it was approved.
“Are you seriously suggesting that the meeting endorsed the proposal without knowing what the details of the response were?” asked Farlam. Phiyega's response was that police know how to conduct disarming operations and they're are essentially the same. She said this despite two officers being hacked to death when a disarming operation went wrong on 13 August. Incredibly, reflecting on the meeting on 15 August, Phiyega could not recall any of the country's top police officers raising the fear of further bloodshed while they decided to approve the plan.
While shocking, it also seems extremely unlikely given the volatile situation in Marikana at the time and widely publicised problems with policing protests. Yet if Phiyega acknowledged they knew and spoke about the dangers, the next question is, so why did they implement the plan, or why this plan, and why wasn't greater precaution taken?
Farlam, however, seemed shocked. “The fact that the proposal was endorsed by the meeting, the fact that the people there all agreed to make resources available as required, surely means that they cannot evade responsibility and say, 'We knew about the plan. Sure go ahead. We'll make resources available. And if it goes wrong because it's managed badly or defective planning, that's nothing to do with us.' Surely there comes a time when responsibility must rest with those people in that meeting as well.”
He was equally surprised that Phiyega had no recollection of a conversation with SAPS expert witness Cees de Rover about political influence on police decisions at Marikana. “My questions have been straightforward on the issue; the answers have not been,” De Rover said last week, claiming Phiyega was evasive. Farlam said surely she would remember being asked if political pressure played a part in the death of 34 people in a day. Phiyega said she couldn't remember and refused to engage the chairman's questions.
Already evasive and difficult, the national police commissioner's credibility was shot when Farlam brought up the review panel. When Phiyega had appeared at the Commission before, she was asked whether the SAPS had established a review on certain issues related broadly to Marikana and Phiyega said she had not. But when a police hard drive was analysed, it emerged a review panel had been established and Phiyega's signature was on the call up instructions. No evidence the panel existed was voluntary handed to the Commission by the police despite their commitment to do so with all relevant information at the start of the inquiry.
It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest.
While she plays the amnesia card and tries to distance the country's top officers from the details of the plan to confront the miners, she opens up herself and other officers to allegations of incompetence and dereliction of duty. But by doing so she shifts the greater responsibility to the commanders on the ground who she says the SAPS relied on.
Phiyega is also putting a wall between the police and the politicians who got involved in Marikana. Last week, De Rover, a policing expert who has worked in over 60 countries, said he couldn't fathom a situation where politicians were not involved.
If there was any doubt that Phiyega was untruthful, Advocate Dali Mpofu showed her the transcript between the SAPS's Mbombo and Lonmin's Bernard Mokoena on 14 August 2012. In relation to the police ending the strike, the two speak of Cyril Ramaphosa, Julius Malema, the pair's relationship in the ANC disciplinary committee, problems with Malema potentially ending the crisis, and nationalisation of the mines. Asked about the political nature of the discussion and whether it is legal for the SAPS to use policing operations to influence party politics, Phiyega responded, “What's political about this?”
“They could have used different words, but what I hear is people who are interested in ending a protest.”
Let us say it once more: It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest. DM
Source: Daily Maverick
Thursday, January 30, 2014
Limpopo's fierytale: the people vs. the police, Armageddon style
On the day Robert McBride secured a nod in Parliament to lead police watchdog Ipid – and while more denials were heard by the Farlam Commission – news broke that officers in Limpopo shot dead two more protesters in a chaotic stand-off. This brings to eight the number of protesters killed this month alone. ALEX ELISEEV asks what it will take to make the police realise that its relationship with communities across South Africa is in a fiery tailspin.
The numbers are as mad as the story is startling: One satellite police station in the Relela village outside of Tzaneen, Limpopo. Twenty officers defending the outpost. Between 1,500 and 2,000 protesters “attacking” the station with stones and petrol bombs. Some 2,050 rounds of rubber bullets fired before the switch-over to live ammunition. Fifteen officers injured in the battle. Three of them left in a critical condition. Nineteen police cars damaged or destroyed. Two protesters shot and killed during the clash.
The images flooding your mind right now are probably closer to what South African soldiers endured in the Central African Republic rather than what police officers should be dealing with in a war-free, democratic country.
The question that pierces through all those figures is: how angry does a community have to be – what kind of hatred must be festering – for hundreds of people to come together and overrun, by force, their local police station? To try to obliterate the place that houses men and women who’ve taken an oath to protect you. We know too well the evil that lurks inside a mob, but this was an outright storming of a sacred castle.
Unlike with the Marikana bloodbath, there were probably few or no cameras filming the latest clash. The details still have to be investigated by the same organisation that Robert McBride – one of the country’s most controversial policemen – will soon be leading. But even on the police’s own version, what happened in Relela does not belong in post-Apartheid South Africa.
Granted, what happened there was not a routine service delivery protest over water or electricity that spiralled out of control. The circumstances were different. A local woman was killed and mutilated and the community wanted those responsible to be arrested. Police took a couple of suspects in for questioning but when they were released, their neighbours went on the rampage, burning down their homes. When the police intervened, a teenage boy was shot and killed. His death, in turn, became the magnet that drew the crowd to the Relela police station on Tuesday night.
Limpopo police claim that anyone in the same situation (the situation the officers were in) would have done the exact same thing. The crowd had broken through into the station’s courtyard and were out for revenge. Judging by the damage, there’s every reason to believe that the officers may have been genuinely terrified and thought their lives were in danger. They probably were. Those attacking the station were committing a criminal act. There’s also evidence that the police officers did their best to push back the mob, using thousands of rounds of rubber bullets.
But the issues here run much deeper, the main one being: how did it get to this? How did we reach a crisis which the police, and police minister Nathi Mthethwa, think they can talk their way out of? (Which, of course, they can’t).
Too much blood has been spilled. Too much horror witnessed. The list has been mentioned over and over again: Marikana, Tatane, Macia, Mothutlung, Durban Deep… For way too many people the police have become the enemy.
The cold, hard truth is that the level of violence we are seeing now is the consequence of earlier decisions. Decisions which ranged from bad to catastrophic. Remember the “shoot to kill!” and “maximum force” rhetoric spewing out of Bheki Cele’s mouth (which went viral). Or the decision by Jackie Selebi to reconfigure the Public Order Policing, leaving it in shambles. And, as a show of force, the re-introduction of military ranks.
But worst of all have been the decisions, one after the next, to send in civilians (political appointments) to lead the police. The latest, by President Jacob Zuma, was Riah Phiyega, who has so far had a disastrous run (some of it was not her fault, and some of it was).
The Institute for Security Studies – the think tank which the police loves to ignore – says all indicators show that police brutality is rising, public trust in the service is deteriorating and there doesn’t seem to be any real plan to reverse either of these trends.
Asked whether we can expect more bloodshed, the ISS’s Gareth Newham says: “I hope not. But we will continue to see growing anger and discontent and a breakdown of the relationship.”
He adds: “Warnings were ignored and now we’re seeing the consequences.”
The reality on the ground is complex. The balance between crushing violent crime or policing tense protests while respecting human rights is a delicate one. No one is saying it’s easy. Then there’s the politics, corruption, shadowy alliances and the unholy mess in units like Crime Intelligence (which Phiyega is now trying to clean up).
The time has come for drastic action. Possibly a complete overhaul of the Public Order Policing (POP). The unit needs an injection of officers and strong, accountable commanders. A message needs to cascade through the ranks that says that anyone who steps out of line, who loads up their shotgun with buckshot or fires without an order, will be punished. Officers need to be better trained. And all of this needs to be communicated to the public so that perceptions can begin to change. Maybe even hold a public commission of inquiry into the POP, diagnose the problem and fix it.
It’s time for Mthethwa to go beyond sending out media statements and praying with families of victims. He needs to take meaningful action. It’s time for President Jacob Zuma to step up. If he can find the time to congratulate Ladysmith Black Mambazo on a Grammy or the Bantu Church of Christ on its centenary, spur on the Matrics or defend eTolling, he can get stuck into this crisis. And by that we mean do something more than establish a task team. After all, the storming of a police station is about as close as you can come to true lawlessness.
Newham describes what happened in Relela as a “new development”. It’s much more than that. It’s a wake-up call, a short in the circuit of democracy. A signal that the relationship between police and civilians can’t be that of a state of war or a violent occupation. History teaches us how people, countries, respond to that.
When Phiyega visited the community on Wednesday, angry residents were shouting at her, demanding to know who gave the order to kill? She did her best to restore calm to the area, but she was up against a hostile crowd.
The police may be under attack, but they have to start earning back the trust. Showing the public that they are not the enemy. When what happened in Relela becomes a reality, you’ve waited too long to act. DM
Source: Daily Maverick
The numbers are as mad as the story is startling: One satellite police station in the Relela village outside of Tzaneen, Limpopo. Twenty officers defending the outpost. Between 1,500 and 2,000 protesters “attacking” the station with stones and petrol bombs. Some 2,050 rounds of rubber bullets fired before the switch-over to live ammunition. Fifteen officers injured in the battle. Three of them left in a critical condition. Nineteen police cars damaged or destroyed. Two protesters shot and killed during the clash.
The images flooding your mind right now are probably closer to what South African soldiers endured in the Central African Republic rather than what police officers should be dealing with in a war-free, democratic country.
The question that pierces through all those figures is: how angry does a community have to be – what kind of hatred must be festering – for hundreds of people to come together and overrun, by force, their local police station? To try to obliterate the place that houses men and women who’ve taken an oath to protect you. We know too well the evil that lurks inside a mob, but this was an outright storming of a sacred castle.
Unlike with the Marikana bloodbath, there were probably few or no cameras filming the latest clash. The details still have to be investigated by the same organisation that Robert McBride – one of the country’s most controversial policemen – will soon be leading. But even on the police’s own version, what happened in Relela does not belong in post-Apartheid South Africa.
Granted, what happened there was not a routine service delivery protest over water or electricity that spiralled out of control. The circumstances were different. A local woman was killed and mutilated and the community wanted those responsible to be arrested. Police took a couple of suspects in for questioning but when they were released, their neighbours went on the rampage, burning down their homes. When the police intervened, a teenage boy was shot and killed. His death, in turn, became the magnet that drew the crowd to the Relela police station on Tuesday night.
Limpopo police claim that anyone in the same situation (the situation the officers were in) would have done the exact same thing. The crowd had broken through into the station’s courtyard and were out for revenge. Judging by the damage, there’s every reason to believe that the officers may have been genuinely terrified and thought their lives were in danger. They probably were. Those attacking the station were committing a criminal act. There’s also evidence that the police officers did their best to push back the mob, using thousands of rounds of rubber bullets.
But the issues here run much deeper, the main one being: how did it get to this? How did we reach a crisis which the police, and police minister Nathi Mthethwa, think they can talk their way out of? (Which, of course, they can’t).
Too much blood has been spilled. Too much horror witnessed. The list has been mentioned over and over again: Marikana, Tatane, Macia, Mothutlung, Durban Deep… For way too many people the police have become the enemy.
The cold, hard truth is that the level of violence we are seeing now is the consequence of earlier decisions. Decisions which ranged from bad to catastrophic. Remember the “shoot to kill!” and “maximum force” rhetoric spewing out of Bheki Cele’s mouth (which went viral). Or the decision by Jackie Selebi to reconfigure the Public Order Policing, leaving it in shambles. And, as a show of force, the re-introduction of military ranks.
But worst of all have been the decisions, one after the next, to send in civilians (political appointments) to lead the police. The latest, by President Jacob Zuma, was Riah Phiyega, who has so far had a disastrous run (some of it was not her fault, and some of it was).
The Institute for Security Studies – the think tank which the police loves to ignore – says all indicators show that police brutality is rising, public trust in the service is deteriorating and there doesn’t seem to be any real plan to reverse either of these trends.
Asked whether we can expect more bloodshed, the ISS’s Gareth Newham says: “I hope not. But we will continue to see growing anger and discontent and a breakdown of the relationship.”
He adds: “Warnings were ignored and now we’re seeing the consequences.”
The reality on the ground is complex. The balance between crushing violent crime or policing tense protests while respecting human rights is a delicate one. No one is saying it’s easy. Then there’s the politics, corruption, shadowy alliances and the unholy mess in units like Crime Intelligence (which Phiyega is now trying to clean up).
The time has come for drastic action. Possibly a complete overhaul of the Public Order Policing (POP). The unit needs an injection of officers and strong, accountable commanders. A message needs to cascade through the ranks that says that anyone who steps out of line, who loads up their shotgun with buckshot or fires without an order, will be punished. Officers need to be better trained. And all of this needs to be communicated to the public so that perceptions can begin to change. Maybe even hold a public commission of inquiry into the POP, diagnose the problem and fix it.
It’s time for Mthethwa to go beyond sending out media statements and praying with families of victims. He needs to take meaningful action. It’s time for President Jacob Zuma to step up. If he can find the time to congratulate Ladysmith Black Mambazo on a Grammy or the Bantu Church of Christ on its centenary, spur on the Matrics or defend eTolling, he can get stuck into this crisis. And by that we mean do something more than establish a task team. After all, the storming of a police station is about as close as you can come to true lawlessness.
Newham describes what happened in Relela as a “new development”. It’s much more than that. It’s a wake-up call, a short in the circuit of democracy. A signal that the relationship between police and civilians can’t be that of a state of war or a violent occupation. History teaches us how people, countries, respond to that.
When Phiyega visited the community on Wednesday, angry residents were shouting at her, demanding to know who gave the order to kill? She did her best to restore calm to the area, but she was up against a hostile crowd.
The police may be under attack, but they have to start earning back the trust. Showing the public that they are not the enemy. When what happened in Relela becomes a reality, you’ve waited too long to act. DM
Source: Daily Maverick
Friday, January 10, 2014
President Proclaims Civilian Secretariat Commencement
The remaining sections of the Civilian Secretariat for Police Service Act of 2011 that did not come into effect in December 2011 will now come into force on 1 April 2014.
The act seeks to give effect to section 208 of the Constitution by establishing a civilian secretariat tasked with monitoring, assessing and evaluating the performance of the South African Police Service (SAPS).
The minister of police will be responsible for the new secretariat.
Provincial police secretariats will be expected to align their planning and operations with the new national secretariat.
The civilian secretariat will be expected to:
• Exercise civilian oversight over the SAPS
• Advise the minister on developing and implementing policies
• Provide administrative support to the minister
• Communicate with stakeholders
• Form a partnership with stakeholders to improve service delivery by SAPS
• Improve relations between itself and the independent police investigative directorate
In terms of the sections that are to now come into effect, section 4(2) refers to the establishing of the secretariat as a national department while 4(3) deals with the secretary as the accounting officer of the secretariat.
Section 14 focuses on the responsibilities of the secretary in terms of finances and accountability.
The proclamation notice was published in Government Gazette 37151.
Prior to the notice, the presidency had indicated in a statement at the beginning of December that the remaining sections were to commence on 1 April.
Source: SABINET
The act seeks to give effect to section 208 of the Constitution by establishing a civilian secretariat tasked with monitoring, assessing and evaluating the performance of the South African Police Service (SAPS).
The minister of police will be responsible for the new secretariat.
Provincial police secretariats will be expected to align their planning and operations with the new national secretariat.
The civilian secretariat will be expected to:
• Exercise civilian oversight over the SAPS
• Advise the minister on developing and implementing policies
• Provide administrative support to the minister
• Communicate with stakeholders
• Form a partnership with stakeholders to improve service delivery by SAPS
• Improve relations between itself and the independent police investigative directorate
In terms of the sections that are to now come into effect, section 4(2) refers to the establishing of the secretariat as a national department while 4(3) deals with the secretary as the accounting officer of the secretariat.
Section 14 focuses on the responsibilities of the secretary in terms of finances and accountability.
The proclamation notice was published in Government Gazette 37151.
Prior to the notice, the presidency had indicated in a statement at the beginning of December that the remaining sections were to commence on 1 April.
Source: SABINET
Friday, November 15, 2013
Nkandla report: The real reasons why ministers took on Thuli
The fight between Public Protector Thuli Madonsela and the security cluster is about much more than her provisional report into state expenditure at President Jacob Zuma’s private Nkandla homestead.
It signals the start of a new war between openness and accountability, on the one hand, and secrecy, cloaked in the garb of security, on the other. And it is clear that the Protection of State Information Bill – the so-called secrecy Bill – passed for the third time in the National Assembly this week, opens up a dangerous new front in that war.
Last Friday, Police Minister Nathi Mthethwa approached the Pretoria high court to interdict Madonsela from releasing the draft report, purportedly in a quest for more time.
In effect, though, he sought to block the release until the security cluster ministers were satisfied with the way she had accommodated their concerns about allegedly sensitive information.
What emerges starkly in the court papers is that the ministers believe any document that draws on classified information must itself be classified. In his founding affidavit, Mthethwa in effect threatened criminal sanction should Madonsela release an uncensored draft report to other “affected, implicated and interested parties” to obtain their responses.
Principle of secrecy
He warned: “Release of the provisional report to third parties … without prior authorisation of [the ministers] … is unlawful and carries … a criminal penalty.”
Mthethwa’s affidavit attached an earlier letter to Madonsela from Public Works Minister Thulas Nxesi, also on behalf of the defence, police and state security ministers.
Nxesi made the point explicitly: “As neither I, nor the ministers involved, have given the necessary permission to declassify the documentation relied upon by you in your provisional report, we deem it necessary to inform you that to release your provisional report without our authorisation would, in effect, result in … a contravention of section 4 of the National Key Points Act, 102 of 1980, and section 4 of the Protection of Information Act, 84 of 1982.”
Nowhere did Mthethwa refer to any specific contents of the draft report to justify the claim that the president’s security was at risk.
What really seems to be at stake is the principle of secrecy – and who gets to pronounce on it.
In her stinging reply, Madonsela said the ministers did not cite a “single fact” to illustrate how the president’s safety would be compromised by the disclosure of the draft report.
In his second affidavit, tabled on Thursday, Mthethwa sidestepped that challenge, claiming it was irrelevant to the request for more time.
In their reply, the ministers abandoned their interdict, citing the fact that Madonsela, in asking for the matter to be postponed until November 15, had in effect given them the extra time they asked for.
But it would be a mistake to see this as a final climb-down instead of a tactical retreat.
Further litigation to come?
In his second affidavit, Mthethwa foreshadows potential further litigation, stating: “It will be argued at an appropriate time, when the need arises, that the [public protector], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report … Should the respondent arrogate to herself that power to determine whether or not there is a breach of security arising from the contents of her provisional report, I am advised that she will in law be acting ultra vires her powers and the law.”
In short, ministers, not Madonsela, must decide whether the report breaches security.
Mthethwa adds: “The classified and top-secret information extracted by [the public protector] in her provisional report … is governed by the minimum information security standards, and it is those classified and top-secret documents and/or extracts that require the minister to authorise its further publication.”
Clearly, no authorisation has been granted. If Madonsela does not excise what they ask her to, there appears to be a real chance the security cluster will return to court.
The state security department itself accepts that apartheid-era laws the ministers rely on are probably unconstitutional, making the ministers’ attempt to exert their authority over Madonsela something of a reach.
That will change when the secrecy Bill is signed into law – which the president could do any day now.
Top secret
The new Act specifies that the state security minister will make regulations governing how chapter nine institutions – including the public protector and the auditor general – will be allowed to access and use classified information.
The push for a security curtain was echoed in the report of the Joint Standing Committee of Intelligence (JSCI), which released its Nkandla report on Thursday.
After the outcry over the expenditure – about R210-million – in November 2012, the public works minister appointed a government task team to investigate. Its report – classified as top secret – was delivered to Nxesi in January.
In June, the report was referred to the JSCI, which usually carries out oversight of the intelligence services.
An opinion from the parliamentary legal adviser recommended the JSCI restrict itself to matters to do with security oversight, redact sensitive information and then refer the report to the National Assembly.
The JSCI ignored this advice, endorsed the top-secret classification and even recommended that any new information uncovered should be referred back to the JSCI for consideration behind closed doors.
It notes: “Matters relating to the allocation of tenders … should be referred to the office of the auditor general for a full investigation … However, the JSCI believes that because of the classification aspects of the subject matter, the auditor general should report on this investigation to the JSCI.”
Of even more concern is how the JSCI parrots the ministers’ line in their interaction with Madonsela.
A sign of things to come
In a veiled reference to her, the JSCI notes: “Entities which have investigative powers … should not be inappropriately motivated … to launch into an investigation on a matter which has already been assigned to another entity. It is therefore recommended that the executive give urgent attention to this matter … so that unnecessary parallel investigations can be avoided.”
This was precisely the argument the ministers used to try to discourage Madonsela’s Nkandla investigation.
In a letter to Madonsela in April, the state attorney referred to her meeting with the ministers and noted: “The purpose … was to discuss with you our concerns regarding parallel investigations ...”
He said a draft proclamation for the Special Investigating Unit to take up the matter had already been sent to the president and a request for an Nkandla audit had been addressed to the auditor general. “Our clients, therefore, propose … that you hold your investigation in abeyance until the processes embarked upon have been completed.”
Madonsela said in her affidavit this week that the auditor general’s audit had not materialised, nor had the Special Investigating Unit yet been authorised to investigate.
Source: Mail & Guardian
It signals the start of a new war between openness and accountability, on the one hand, and secrecy, cloaked in the garb of security, on the other. And it is clear that the Protection of State Information Bill – the so-called secrecy Bill – passed for the third time in the National Assembly this week, opens up a dangerous new front in that war.
Last Friday, Police Minister Nathi Mthethwa approached the Pretoria high court to interdict Madonsela from releasing the draft report, purportedly in a quest for more time.
In effect, though, he sought to block the release until the security cluster ministers were satisfied with the way she had accommodated their concerns about allegedly sensitive information.
What emerges starkly in the court papers is that the ministers believe any document that draws on classified information must itself be classified. In his founding affidavit, Mthethwa in effect threatened criminal sanction should Madonsela release an uncensored draft report to other “affected, implicated and interested parties” to obtain their responses.
Principle of secrecy
He warned: “Release of the provisional report to third parties … without prior authorisation of [the ministers] … is unlawful and carries … a criminal penalty.”
Mthethwa’s affidavit attached an earlier letter to Madonsela from Public Works Minister Thulas Nxesi, also on behalf of the defence, police and state security ministers.
Nxesi made the point explicitly: “As neither I, nor the ministers involved, have given the necessary permission to declassify the documentation relied upon by you in your provisional report, we deem it necessary to inform you that to release your provisional report without our authorisation would, in effect, result in … a contravention of section 4 of the National Key Points Act, 102 of 1980, and section 4 of the Protection of Information Act, 84 of 1982.”
Nowhere did Mthethwa refer to any specific contents of the draft report to justify the claim that the president’s security was at risk.
What really seems to be at stake is the principle of secrecy – and who gets to pronounce on it.
In her stinging reply, Madonsela said the ministers did not cite a “single fact” to illustrate how the president’s safety would be compromised by the disclosure of the draft report.
In his second affidavit, tabled on Thursday, Mthethwa sidestepped that challenge, claiming it was irrelevant to the request for more time.
In their reply, the ministers abandoned their interdict, citing the fact that Madonsela, in asking for the matter to be postponed until November 15, had in effect given them the extra time they asked for.
But it would be a mistake to see this as a final climb-down instead of a tactical retreat.
Further litigation to come?
In his second affidavit, Mthethwa foreshadows potential further litigation, stating: “It will be argued at an appropriate time, when the need arises, that the [public protector], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report … Should the respondent arrogate to herself that power to determine whether or not there is a breach of security arising from the contents of her provisional report, I am advised that she will in law be acting ultra vires her powers and the law.”
In short, ministers, not Madonsela, must decide whether the report breaches security.
Mthethwa adds: “The classified and top-secret information extracted by [the public protector] in her provisional report … is governed by the minimum information security standards, and it is those classified and top-secret documents and/or extracts that require the minister to authorise its further publication.”
Clearly, no authorisation has been granted. If Madonsela does not excise what they ask her to, there appears to be a real chance the security cluster will return to court.
The state security department itself accepts that apartheid-era laws the ministers rely on are probably unconstitutional, making the ministers’ attempt to exert their authority over Madonsela something of a reach.
That will change when the secrecy Bill is signed into law – which the president could do any day now.
Top secret
The new Act specifies that the state security minister will make regulations governing how chapter nine institutions – including the public protector and the auditor general – will be allowed to access and use classified information.
The push for a security curtain was echoed in the report of the Joint Standing Committee of Intelligence (JSCI), which released its Nkandla report on Thursday.
After the outcry over the expenditure – about R210-million – in November 2012, the public works minister appointed a government task team to investigate. Its report – classified as top secret – was delivered to Nxesi in January.
In June, the report was referred to the JSCI, which usually carries out oversight of the intelligence services.
An opinion from the parliamentary legal adviser recommended the JSCI restrict itself to matters to do with security oversight, redact sensitive information and then refer the report to the National Assembly.
The JSCI ignored this advice, endorsed the top-secret classification and even recommended that any new information uncovered should be referred back to the JSCI for consideration behind closed doors.
It notes: “Matters relating to the allocation of tenders … should be referred to the office of the auditor general for a full investigation … However, the JSCI believes that because of the classification aspects of the subject matter, the auditor general should report on this investigation to the JSCI.”
Of even more concern is how the JSCI parrots the ministers’ line in their interaction with Madonsela.
A sign of things to come
In a veiled reference to her, the JSCI notes: “Entities which have investigative powers … should not be inappropriately motivated … to launch into an investigation on a matter which has already been assigned to another entity. It is therefore recommended that the executive give urgent attention to this matter … so that unnecessary parallel investigations can be avoided.”
This was precisely the argument the ministers used to try to discourage Madonsela’s Nkandla investigation.
In a letter to Madonsela in April, the state attorney referred to her meeting with the ministers and noted: “The purpose … was to discuss with you our concerns regarding parallel investigations ...”
He said a draft proclamation for the Special Investigating Unit to take up the matter had already been sent to the president and a request for an Nkandla audit had been addressed to the auditor general. “Our clients, therefore, propose … that you hold your investigation in abeyance until the processes embarked upon have been completed.”
Madonsela said in her affidavit this week that the auditor general’s audit had not materialised, nor had the Special Investigating Unit yet been authorised to investigate.
Source: Mail & Guardian
Wednesday, November 13, 2013
Parliament should reject Robert McBride's nomination as head of the Independent Police Investigative Directorate
Dr Mamphela Ramphele, the leader of Agang SA, calls on Parliament to reject the appointment of disgraced former Ekurhuleni metro police chief Robert McBride as head of the Independent Police Investigative Directorate (Ipid).
"McBride has tarnished his copybook with too many criminal charges that he has managed to escape in the past, making his potential appointment to such an important public institution highly questionable," she said. "South African citizens deserve better - they deserve clean government that looks after the interests of every citizen, not the political elite," she said.
Dr Ramphele, who addressed a meeting in the Strand district of Cape Town last evening, called on South Africans to vote for a clean and professional police force - one of the key issues Agang SA is championing in the run up to the 2014 elections.
At the meeting, she praised the Strand Broadlands community for the way in which they had managed to root out a scourge of drug dealers by working together with the police in a peaceful and effective campaign over a period of seven months.
Her message follows the alarming event last week in Khutsong, west of Johannesburg, where residents took the law into their own hands against gangsters, and killed six people.
"This country desperately needs to respect its public institutions, including the police, so that we can have law and order. We need a country that is free of corruption and crime - a country that trains and pays its police force well and expects the best of them," Ramphele said.
"Imagine we could have a country where everybody feels safe on the streets. It is possible, if we all insist on the best services our nation can deliver to us all."
Statement issued by Dr Mamphela Ramphele, the leader of Agang SA, November 13 2013
Source: Politicsweb
"McBride has tarnished his copybook with too many criminal charges that he has managed to escape in the past, making his potential appointment to such an important public institution highly questionable," she said. "South African citizens deserve better - they deserve clean government that looks after the interests of every citizen, not the political elite," she said.
Dr Ramphele, who addressed a meeting in the Strand district of Cape Town last evening, called on South Africans to vote for a clean and professional police force - one of the key issues Agang SA is championing in the run up to the 2014 elections.
At the meeting, she praised the Strand Broadlands community for the way in which they had managed to root out a scourge of drug dealers by working together with the police in a peaceful and effective campaign over a period of seven months.
Her message follows the alarming event last week in Khutsong, west of Johannesburg, where residents took the law into their own hands against gangsters, and killed six people.
"This country desperately needs to respect its public institutions, including the police, so that we can have law and order. We need a country that is free of corruption and crime - a country that trains and pays its police force well and expects the best of them," Ramphele said.
"Imagine we could have a country where everybody feels safe on the streets. It is possible, if we all insist on the best services our nation can deliver to us all."
Statement issued by Dr Mamphela Ramphele, the leader of Agang SA, November 13 2013
Source: Politicsweb
Thursday, October 17, 2013
Marikana funding case hints at larger problems with gaining access to justice
Most South Africans do not have effective access to justice. Without adequate legal representation, which few people can afford, not many litigants or criminal defendants will truly savour the sweet taste of justice. While banks, other large corporations, the very wealthy and organs of state will have the funds to employ an army of lawyers to exploit every legal loophole and to pursue every legal argument to win their case, most ordinary persons of moderate means will not. Unless the legal system is substantially reformed or the state pumps billions of rands into the Legal Aid system, this will not change – despite the quixotic court victory of the survivors of the Marikana massacre to legal representation at state expense.
The Marikana massacre, in which the South African Police Service (SAPS) killed 34 striking mine workers, may well turn out to have been a watershed moment in South African politics. From where I sit, it looks suspiciously as if the ruling elite (ab)used its control of the SAPS (or its political access to those who control the SAPS) to teach miners taking part in a violent and unprotected strike a “lesson”, because these striking miners threatened its financial and class interests. As a result, 34 striking and protesting miners were killed by the SAPS and more than 78 people were injured.
The Farlam Commission of Inquiry into the massacre, and the events that led up to it, may not come to the same conclusion. Commissions of Inquiry – even Commissions that do a good job – are usually better at determining the small truths than at uncovering the larger political truths of a tragic event like this. It is also not yet clear to what extent the alleged SAPS cover-up of the event and the possible protection of political principals and mine company executives will succeed.
This does not mean that the work done by the Farlam Commission is not important. Like the Truth and Reconciliation Commission it might uncover at least part of the truth, creating a factual matrix within which, over time, we will come to understand the political significance of the events on 16 August 2012. For that reason it is essential that the Commission must be seen to be acting fairly: if its findings are not trusted by everyone, it will be difficult to rely on these findings as a springboard for more searching analysis of the political import of the Marikana massacre.
The Commission’s legitimacy was threatened by the withdrawal of the legal teams representing the families of the killed miners as well as of the injured and arrested miners because of a dispute about the funding of the lawyers of the injured and arrested miners (led by Adv. Dali Mpofu). It therefore came as a great relief when the North Gauteng High Court (in a legally daring judgment by Makgoka J) in the case of Magidiwana and Another v President of the Republic of South Africa and Others ordered Legal Aid SA to fund Adv. Mpofu and his team.
I am delighted that Legal Aid SA has now agreed to fund Adv. Mpofu’s team. However, Legal Aid SA may still appeal the judgment because of the potentially far-reaching consequences the judgment poses to the continued financial viability of Legal Aid SA and it will not at all be surprising if such an appeal succeeds.
The bulk of the judgment focuses on the right of surviving miners to be represented by legal representatives and does an admirable job of showing why section 34 of the Constitution – which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing – entitles miners to such legal representation.
What the judgment fails to do convincingly, in my opinion, is to show that this right must translate into a right to have those lawyers funded at state expense through Legal Aid SA.
As Legal Aid SA eventually conceded, its CEO does have the general discretion to fund the lawyers of interested parties who appear before a Commission of Inquiry. In fact, Legal Aid SA funded the lawyers of families of the deceased miners in accordance with this general discretion. The question is whether its decision to fund the lawyers representing the families of deceased miners (but not the injured and arrested miners) could be declared unconstitutional on the basis that it was irrational to fund the former but not the latter.
The court found that the injured and arrested miners did have a right to state funded legal representation in general, given their substantial and direct interest in the outcome of the commission; their vulnerability and financial position; the complexity of the proceedings and the capacity of the applicants to represent themselves; the procedures adopted by the commission; the need for an “equality of arms” between the parties; and the potential consequences of the findings and recommendations of the commission for the injured and arrested miners.
In a wonderful passage that could easily apply to the vast majority of litigants and accused persons of modest means who need legal representation in South Africa, the court stated:
Moreover, the court pointed out that the SAPS legal team is said to comprise five advocates (three senior counsel and two senior-junior counsel). In addition, the SAPS also use the services of a private firm of attorneys in Rustenburg, instead of State Attorney. Furthermore, the Minister of Police, whose interests should ordinarily coincide with those of SAPS, for some reason maintains a separate legal team on a so-called “watching brief” at the Commission (a fact that raises its own set of questions about the possible political involvement in the events of 16 August 2012).
According to the court, the State parties’ legal representation costs approximately R2 million to R3 million per month.
The judgment therefore concludes that considerations of fairness and the need for “equality of arms” between the parties require the state to fund the legal representatives of the miners. The interests of justice and the rule of law would be undermined by a failure to fund their lawyers.
It would be difficult to argue with the court that it would be fundamentally unfair for one party to be represented by lawyers to the cost of up to R3 million a month while another party with a direct interest in the outcome of the Commission have no legal representation at all. After all, those involved in the killing and injuring of the miners are represented by an army of lawyers, ever alert to protect the interest of their clients, who would obviously like to pin the blame for the massacre on the miners themselves in order to absolve the SAPS and its political principal from any blame. It seems extremely unfair that the one side is so well protected while one of the other parties is not.
However, apart from the profound political importance of the case, this situation is not fundamentally different from that faced daily by many litigants or potential litigants who wish to go to court to enforce their legal rights or to challenge the abuse of power or the flouting of the law by big banks, other large corporations, wealthy individuals or the state. Legal Aid SA very seldom provides funding for such litigants due to an acute shortage of Legal Aid funds. It is mandated by its rules and by the Constitution to fund lawyers for indigent criminal defendants “if substantial injustice would otherwise result”, but the Constitution does not explicitly impose a duty on the state (and hence Legal Aid SA) to fund civil matters (nor matters relating to Commissions of Inquiry).
Because of a lack of funds to pay good lawyers capable of taking on the “big boys” (and the difficulty of securing the services of such lawyers, given the financial interests many lawyers have in representing the “big boys” instead), ordinary people – both poor people and middle class people – often face insurmountable hurdles in securing justice in court.
There are no quick fix solutions to secure better access to justice for most South Africans. It would help if the state pumped additional billions of rands into the legal aid system – but that is not going to happen. Funds are needed for other “important” state matters – like upgrading the private residence of the president.
Establishing a system in which recent law graduates do one year of community service – similar to medical graduates – to assist indigent litigants may also help to secure better access to justice, but that would require a gargantuan administrative effort from the Department of Justice. The Department currently probably does not have the financial and human resources to pull this off successfully.
Simplifying legal rules and moving away from the absurdly rigid application of these rules by some courts, will also help. Many procedural rules unnecessary complicate litigation and increase costs – often to the advantage of those litigants with the deepest pockets and hence the best lawyers. It goes without saying that litigants without lawyers are often unfairly disadvantaged by these rules or are precluded from benefiting from access to the legal system at all because of their lack of knowledge of the rules.
But because of the formalistic legal culture – often inculcated and perpetuated by untransformed legal training provided at Law Schools – and because lawyers often benefit financially from the complicated and formalistic legal rules, there seems to be little appetite among elites in the legal profession to champion the streamlining and simplification of procedural rules.
It is judged against this background that the ultimate decision of the court in the Marikana case gets to look a bit shaky. This is so, not because it would have been fair to deny the injured and arrested miners legal representation at state expense, but because it is not clear that the decision of Legal Aid SA not to fund the lawyers can be said to have been irrational, given its many other commitments and the almost infinite demands on its limited funds.
Legal Aid SA provided three reasons for funding the legal team representing the families of the killed miners but not the legal team of the injured and arrested miners. First it claimed that the former group had a “substantial, proximate, and material interest in the outcome of the commission” to a degree that the latter did not. Second, it claimed that the latter group’s interests would be adequately protected by labour unions, NUM and AMCU. Third, it claimed that due to budgetary constraints it could not fund both parties.
The court (seemingly confusing or conflating the requirements for legality contained in section 1 of the Constitution and the test for a breach of section 9(1) of the Constitution) affirmed, correctly, that the exercise of public power by the executive and other functionaries should not be irrational. The court, more controversially, concluded that the refusal by Legal Aid SA to provide legal aid to the injured and arrested miners was not rationally related to the purpose of the Legal Aid Act, (as far as I can tell) because it found that this was not done to pursue a legitimate purpose.
The court did not really explain why this was the case. If the purpose of the decision was to manage Legal Aid SA’s funds properly, it is unclear why it would be irrational for Legal Aid SA to fund the one group but not the other. There is also clearly a difference in the position between the two groups: the loved ones of one group were killed, while the members of the other group are still alive.
Rationality review does not allow the court to set aside a decision of a public body because that body acted unwisely or because another decision would have resulted in a fairer outcome. It only allows the court to interfere if it can be shown that there was no rational reason for its decision: in other words, when the decision is arbitrary or capricious. In this case one can argue about the wisdom of the Legal Aid SA decision, but I am not sure one can say with confidence that it was irrational. To hold otherwise would have potentially catastrophic consequences for the financial viability of Legal Aid SA.
Despite the shaky legal argumentation, the judgment must be welcomed. Hopefully the clear injustice illustrated by the case may well spark a broader debate about the lack of access to justice and about what steps can be taken by the government and by the legal profession to provide ordinary people with a better chance to access the skills of competent lawyers.
Source: Constitutionally Speaking
The Marikana massacre, in which the South African Police Service (SAPS) killed 34 striking mine workers, may well turn out to have been a watershed moment in South African politics. From where I sit, it looks suspiciously as if the ruling elite (ab)used its control of the SAPS (or its political access to those who control the SAPS) to teach miners taking part in a violent and unprotected strike a “lesson”, because these striking miners threatened its financial and class interests. As a result, 34 striking and protesting miners were killed by the SAPS and more than 78 people were injured.
The Farlam Commission of Inquiry into the massacre, and the events that led up to it, may not come to the same conclusion. Commissions of Inquiry – even Commissions that do a good job – are usually better at determining the small truths than at uncovering the larger political truths of a tragic event like this. It is also not yet clear to what extent the alleged SAPS cover-up of the event and the possible protection of political principals and mine company executives will succeed.
This does not mean that the work done by the Farlam Commission is not important. Like the Truth and Reconciliation Commission it might uncover at least part of the truth, creating a factual matrix within which, over time, we will come to understand the political significance of the events on 16 August 2012. For that reason it is essential that the Commission must be seen to be acting fairly: if its findings are not trusted by everyone, it will be difficult to rely on these findings as a springboard for more searching analysis of the political import of the Marikana massacre.
The Commission’s legitimacy was threatened by the withdrawal of the legal teams representing the families of the killed miners as well as of the injured and arrested miners because of a dispute about the funding of the lawyers of the injured and arrested miners (led by Adv. Dali Mpofu). It therefore came as a great relief when the North Gauteng High Court (in a legally daring judgment by Makgoka J) in the case of Magidiwana and Another v President of the Republic of South Africa and Others ordered Legal Aid SA to fund Adv. Mpofu and his team.
I am delighted that Legal Aid SA has now agreed to fund Adv. Mpofu’s team. However, Legal Aid SA may still appeal the judgment because of the potentially far-reaching consequences the judgment poses to the continued financial viability of Legal Aid SA and it will not at all be surprising if such an appeal succeeds.
The bulk of the judgment focuses on the right of surviving miners to be represented by legal representatives and does an admirable job of showing why section 34 of the Constitution – which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing – entitles miners to such legal representation.
What the judgment fails to do convincingly, in my opinion, is to show that this right must translate into a right to have those lawyers funded at state expense through Legal Aid SA.
As Legal Aid SA eventually conceded, its CEO does have the general discretion to fund the lawyers of interested parties who appear before a Commission of Inquiry. In fact, Legal Aid SA funded the lawyers of families of the deceased miners in accordance with this general discretion. The question is whether its decision to fund the lawyers representing the families of deceased miners (but not the injured and arrested miners) could be declared unconstitutional on the basis that it was irrational to fund the former but not the latter.
The court found that the injured and arrested miners did have a right to state funded legal representation in general, given their substantial and direct interest in the outcome of the commission; their vulnerability and financial position; the complexity of the proceedings and the capacity of the applicants to represent themselves; the procedures adopted by the commission; the need for an “equality of arms” between the parties; and the potential consequences of the findings and recommendations of the commission for the injured and arrested miners.
In a wonderful passage that could easily apply to the vast majority of litigants and accused persons of modest means who need legal representation in South Africa, the court stated:
The fact that they [the miners] are poor should never be a basis to summarily dismiss their potential substantial prejudice. It is unthinkable and deeply offensive to basic fairness and the rule of law in a democratic state that the poor and vulnerable be left to their own devices, in a manner that will deny them exercise of their constitutional right in terms of s. 34 of the Constitution.
Moreover, the court pointed out that the SAPS legal team is said to comprise five advocates (three senior counsel and two senior-junior counsel). In addition, the SAPS also use the services of a private firm of attorneys in Rustenburg, instead of State Attorney. Furthermore, the Minister of Police, whose interests should ordinarily coincide with those of SAPS, for some reason maintains a separate legal team on a so-called “watching brief” at the Commission (a fact that raises its own set of questions about the possible political involvement in the events of 16 August 2012).
According to the court, the State parties’ legal representation costs approximately R2 million to R3 million per month.
The judgment therefore concludes that considerations of fairness and the need for “equality of arms” between the parties require the state to fund the legal representatives of the miners. The interests of justice and the rule of law would be undermined by a failure to fund their lawyers.
It would be difficult to argue with the court that it would be fundamentally unfair for one party to be represented by lawyers to the cost of up to R3 million a month while another party with a direct interest in the outcome of the Commission have no legal representation at all. After all, those involved in the killing and injuring of the miners are represented by an army of lawyers, ever alert to protect the interest of their clients, who would obviously like to pin the blame for the massacre on the miners themselves in order to absolve the SAPS and its political principal from any blame. It seems extremely unfair that the one side is so well protected while one of the other parties is not.
However, apart from the profound political importance of the case, this situation is not fundamentally different from that faced daily by many litigants or potential litigants who wish to go to court to enforce their legal rights or to challenge the abuse of power or the flouting of the law by big banks, other large corporations, wealthy individuals or the state. Legal Aid SA very seldom provides funding for such litigants due to an acute shortage of Legal Aid funds. It is mandated by its rules and by the Constitution to fund lawyers for indigent criminal defendants “if substantial injustice would otherwise result”, but the Constitution does not explicitly impose a duty on the state (and hence Legal Aid SA) to fund civil matters (nor matters relating to Commissions of Inquiry).
Because of a lack of funds to pay good lawyers capable of taking on the “big boys” (and the difficulty of securing the services of such lawyers, given the financial interests many lawyers have in representing the “big boys” instead), ordinary people – both poor people and middle class people – often face insurmountable hurdles in securing justice in court.
There are no quick fix solutions to secure better access to justice for most South Africans. It would help if the state pumped additional billions of rands into the legal aid system – but that is not going to happen. Funds are needed for other “important” state matters – like upgrading the private residence of the president.
Establishing a system in which recent law graduates do one year of community service – similar to medical graduates – to assist indigent litigants may also help to secure better access to justice, but that would require a gargantuan administrative effort from the Department of Justice. The Department currently probably does not have the financial and human resources to pull this off successfully.
Simplifying legal rules and moving away from the absurdly rigid application of these rules by some courts, will also help. Many procedural rules unnecessary complicate litigation and increase costs – often to the advantage of those litigants with the deepest pockets and hence the best lawyers. It goes without saying that litigants without lawyers are often unfairly disadvantaged by these rules or are precluded from benefiting from access to the legal system at all because of their lack of knowledge of the rules.
But because of the formalistic legal culture – often inculcated and perpetuated by untransformed legal training provided at Law Schools – and because lawyers often benefit financially from the complicated and formalistic legal rules, there seems to be little appetite among elites in the legal profession to champion the streamlining and simplification of procedural rules.
It is judged against this background that the ultimate decision of the court in the Marikana case gets to look a bit shaky. This is so, not because it would have been fair to deny the injured and arrested miners legal representation at state expense, but because it is not clear that the decision of Legal Aid SA not to fund the lawyers can be said to have been irrational, given its many other commitments and the almost infinite demands on its limited funds.
Legal Aid SA provided three reasons for funding the legal team representing the families of the killed miners but not the legal team of the injured and arrested miners. First it claimed that the former group had a “substantial, proximate, and material interest in the outcome of the commission” to a degree that the latter did not. Second, it claimed that the latter group’s interests would be adequately protected by labour unions, NUM and AMCU. Third, it claimed that due to budgetary constraints it could not fund both parties.
The court (seemingly confusing or conflating the requirements for legality contained in section 1 of the Constitution and the test for a breach of section 9(1) of the Constitution) affirmed, correctly, that the exercise of public power by the executive and other functionaries should not be irrational. The court, more controversially, concluded that the refusal by Legal Aid SA to provide legal aid to the injured and arrested miners was not rationally related to the purpose of the Legal Aid Act, (as far as I can tell) because it found that this was not done to pursue a legitimate purpose.
The court did not really explain why this was the case. If the purpose of the decision was to manage Legal Aid SA’s funds properly, it is unclear why it would be irrational for Legal Aid SA to fund the one group but not the other. There is also clearly a difference in the position between the two groups: the loved ones of one group were killed, while the members of the other group are still alive.
Rationality review does not allow the court to set aside a decision of a public body because that body acted unwisely or because another decision would have resulted in a fairer outcome. It only allows the court to interfere if it can be shown that there was no rational reason for its decision: in other words, when the decision is arbitrary or capricious. In this case one can argue about the wisdom of the Legal Aid SA decision, but I am not sure one can say with confidence that it was irrational. To hold otherwise would have potentially catastrophic consequences for the financial viability of Legal Aid SA.
Despite the shaky legal argumentation, the judgment must be welcomed. Hopefully the clear injustice illustrated by the case may well spark a broader debate about the lack of access to justice and about what steps can be taken by the government and by the legal profession to provide ordinary people with a better chance to access the skills of competent lawyers.
Source: Constitutionally Speaking
Sunday, May 5, 2013
McBride 'heavily indebted' and must find a job
Former Ekurhuleni metro police chief Robert McBride is "heavily indebted" and needs to start looking for a job, according to a report.
"I owe lots of people money," McBride told City Press. "I had to sell lots of my things. Fortunately some of my family, friends and comrades assisted me."
McBride spent R1.7-million on legal fees.
On Friday, the state lost its bid to appeal against McBride's acquittal on charges of drunken driving and attempting to obstruct justice.
The high court in Pretoria ruled on Friday the state had not raised any question of law that the Supreme Court of Appeal should consider.
McBride was arrested in 2006 after crashing his official car on the R511 near Hartbeespoort Dam following a Christmas party.
Pretoria regional magistrate Peet Johnson in September 2011 sentenced him to five years' imprisonment, but he appealed to the high court in Pretoria. Judges Cynthia Pretorius and Lettie Malopa-Setshosa acquitted him in March this year, on the grounds the state had not proved its case beyond a reasonable doubt, despite McBride's "strange" behaviour. They set aside McBride's five-year prison sentence.
The state applied for leave to appeal against the ruling on various technical grounds. City Press reported McBride felt vindicated, but angry. "It's good to win, especially when you know it's a personal issue against you and not a matter of law," he was quoted as saying.
"But despite the judges' findings of police manipulation and evidence fabrication, there seems to be a lack of interest in the real issue behind the whole saga – the involvement of the South African Police Service in violent crime." – Sapa
Source: Mail & Guardian
"I owe lots of people money," McBride told City Press. "I had to sell lots of my things. Fortunately some of my family, friends and comrades assisted me."
McBride spent R1.7-million on legal fees.
On Friday, the state lost its bid to appeal against McBride's acquittal on charges of drunken driving and attempting to obstruct justice.
The high court in Pretoria ruled on Friday the state had not raised any question of law that the Supreme Court of Appeal should consider.
McBride was arrested in 2006 after crashing his official car on the R511 near Hartbeespoort Dam following a Christmas party.
Pretoria regional magistrate Peet Johnson in September 2011 sentenced him to five years' imprisonment, but he appealed to the high court in Pretoria. Judges Cynthia Pretorius and Lettie Malopa-Setshosa acquitted him in March this year, on the grounds the state had not proved its case beyond a reasonable doubt, despite McBride's "strange" behaviour. They set aside McBride's five-year prison sentence.
The state applied for leave to appeal against the ruling on various technical grounds. City Press reported McBride felt vindicated, but angry. "It's good to win, especially when you know it's a personal issue against you and not a matter of law," he was quoted as saying.
"But despite the judges' findings of police manipulation and evidence fabrication, there seems to be a lack of interest in the real issue behind the whole saga – the involvement of the South African Police Service in violent crime." – Sapa
Source: Mail & Guardian
Thursday, March 28, 2013
McBride wins appeal against drunk driving conviction
The high court in Pretoria on Thursday concluded he was not guilty on all charges.
"The appeal against conviction on both counts is upheld," Judges Cynthia Pretorius and Lettie Molopa-Sethosa said in their written judgment.
"The appellant is found not guilty on all charges and is discharged."
McBride was arrested in 2006 after crashing his official car on the R511 following a Christmas party.
Earlier this month, the two judges reserved judgment in McBride's appeal against his conviction, as well as his five-year jail sentence.
In September 2011, a Pretoria regional magistrate sentenced McBride to two years imprisonment for driving under the influence of alcohol and an effective three years imprisonment for attempting to obstruct the course of justice.
Under the influence
Initially three of McBride's colleagues made statements supporting his version that he had not been drunk and did not leave the scene of the accident to evade justice.
However, five months later they testified that he had been heavily under the influence of alcohol and systematically set about covering this up with their assistance.
In his appeal, McBride argued the three former colleagues had themselves been intimidated into changing their story. They were under investigation by the Organised Crime Unit (OCU) in a separate attempted murder matter and had been offered indemnity in exchange for statements against him.
McBride had previously clashed with the OCU. About a month before his colleagues changed their statements, he had written to the South African Police Service asking them to initiate an investigation into the possible involvement of some members of the OCU in cash-in-transit crimes.
In Thursday's judgment, Pretorius and Molopa-Sethosa wrote there was clear evidence that OCU members had manipulated the testimony of the three.
Describing the three as "self-confessed liars", the judges said the magistrate had erred in finding their testimony credible.
There were "several strange aspects" to McBride's behaviour after the accident, such as trying to get medical certificates from a variety of doctors and driving to Durban to see a doctor.
The state had not proved its case beyond a reasonable doubt, the judges concluded. "Although the appellant's action after the accident is suspect, it is not possible to draw the inference that the appellant was driving under the influence of intoxicating alcohol at the time beyond a reasonable doubt." – Sapa
Source: Mail & Guardian
"The appeal against conviction on both counts is upheld," Judges Cynthia Pretorius and Lettie Molopa-Sethosa said in their written judgment.
"The appellant is found not guilty on all charges and is discharged."
McBride was arrested in 2006 after crashing his official car on the R511 following a Christmas party.
Earlier this month, the two judges reserved judgment in McBride's appeal against his conviction, as well as his five-year jail sentence.
In September 2011, a Pretoria regional magistrate sentenced McBride to two years imprisonment for driving under the influence of alcohol and an effective three years imprisonment for attempting to obstruct the course of justice.
Under the influence
Initially three of McBride's colleagues made statements supporting his version that he had not been drunk and did not leave the scene of the accident to evade justice.
However, five months later they testified that he had been heavily under the influence of alcohol and systematically set about covering this up with their assistance.
In his appeal, McBride argued the three former colleagues had themselves been intimidated into changing their story. They were under investigation by the Organised Crime Unit (OCU) in a separate attempted murder matter and had been offered indemnity in exchange for statements against him.
McBride had previously clashed with the OCU. About a month before his colleagues changed their statements, he had written to the South African Police Service asking them to initiate an investigation into the possible involvement of some members of the OCU in cash-in-transit crimes.
In Thursday's judgment, Pretorius and Molopa-Sethosa wrote there was clear evidence that OCU members had manipulated the testimony of the three.
Describing the three as "self-confessed liars", the judges said the magistrate had erred in finding their testimony credible.
There were "several strange aspects" to McBride's behaviour after the accident, such as trying to get medical certificates from a variety of doctors and driving to Durban to see a doctor.
The state had not proved its case beyond a reasonable doubt, the judges concluded. "Although the appellant's action after the accident is suspect, it is not possible to draw the inference that the appellant was driving under the influence of intoxicating alcohol at the time beyond a reasonable doubt." – Sapa
Source: Mail & Guardian
Wednesday, January 23, 2013
Police accused of looting during Sasolburg protest
A security guard has said that police also looted shops during the violent protests in Zamdela. "If I had a camera, I would have taken photos. They took stuff in one Chinese shop and the community followed," said a security guard at a municipal office. "At Save Right [a local shop near the police station] they even advised us not to injure each other, and when the ATM was robbed, their van was nearby."
The 32-year-old man claimed that Sasolburg police were also unhappy about the proposed merger of the Ngwathe and Metsimaholo local municipalities.
He said this was evident in Tuesday's shooting, in which two people died and others were wounded when police from other provinces were deployed.
"We protested on Sunday [and] no one was wounded or died; we did it again on Monday ... [there were] no injuries we heard about. So why are people being shot at when there is police from other provinces?"
Earlier in the week, police from Gauteng and Welkom were deployed in the area to help control the situation.
Criticism
Police spokesperson Colonel Motantsi Makhele said he was aware of the allegations that police were among the looters. "People must come to the front if they have information," he said. "We welcome anyone who has information so that we can investigate this."
Resident Nthako (47) said he was happy Cooperative Governance and Traditional Affairs Minister Richard Baloyi had announced that the process of merging the municipalities had been stopped.
However, Nthako criticised government officials for not arriving at Moses Kotane Stadium where residents had expected to be addressed on the matter at 10am on Tuesday.
Residents ran out of patience and left the stadium at 11am.
"If they came to the stadium and addressed people, no one would have died or got injured," Nthako said. A protester was shot dead at the Zamdela police station during a clash with protesters on Tuesday.
Sticks and stones
Earlier in the day, police said another protester was shot dead by a motorist after a group of protesters tried to block his way. Nine people, two of them police officers, have been injured since the protest started on Sunday.
A Jacaranda radio journalist's car was pelted with stones and a South African Press Association cameraperson was threatened with a knife, also on Tuesday. The situation was quiet on Wednesday and police were seen patrolling the area and taking photographs of damaged properties on the main road.
Three police nyalas [armoured vehicles] were seen driving around in the area while a helicopter hovered overhead. Lucky Malebo, a community leader, said people had gone to hospital to check on the wounded.
"A list of those who were injured and those who died is being compiled, and we might get it around 3pm," he said. Malebo said the residents had wanted to hold a meeting at the stadium on Wednesday, but could not apply for permission as no one was on duty at the council.
Source: Mail & Guardian
The 32-year-old man claimed that Sasolburg police were also unhappy about the proposed merger of the Ngwathe and Metsimaholo local municipalities.
He said this was evident in Tuesday's shooting, in which two people died and others were wounded when police from other provinces were deployed.
"We protested on Sunday [and] no one was wounded or died; we did it again on Monday ... [there were] no injuries we heard about. So why are people being shot at when there is police from other provinces?"
Earlier in the week, police from Gauteng and Welkom were deployed in the area to help control the situation.
Criticism
Police spokesperson Colonel Motantsi Makhele said he was aware of the allegations that police were among the looters. "People must come to the front if they have information," he said. "We welcome anyone who has information so that we can investigate this."
Resident Nthako (47) said he was happy Cooperative Governance and Traditional Affairs Minister Richard Baloyi had announced that the process of merging the municipalities had been stopped.
However, Nthako criticised government officials for not arriving at Moses Kotane Stadium where residents had expected to be addressed on the matter at 10am on Tuesday.
Residents ran out of patience and left the stadium at 11am.
"If they came to the stadium and addressed people, no one would have died or got injured," Nthako said. A protester was shot dead at the Zamdela police station during a clash with protesters on Tuesday.
Sticks and stones
Earlier in the day, police said another protester was shot dead by a motorist after a group of protesters tried to block his way. Nine people, two of them police officers, have been injured since the protest started on Sunday.
A Jacaranda radio journalist's car was pelted with stones and a South African Press Association cameraperson was threatened with a knife, also on Tuesday. The situation was quiet on Wednesday and police were seen patrolling the area and taking photographs of damaged properties on the main road.
Three police nyalas [armoured vehicles] were seen driving around in the area while a helicopter hovered overhead. Lucky Malebo, a community leader, said people had gone to hospital to check on the wounded.
"A list of those who were injured and those who died is being compiled, and we might get it around 3pm," he said. Malebo said the residents had wanted to hold a meeting at the stadium on Wednesday, but could not apply for permission as no one was on duty at the council.
Source: Mail & Guardian
Monday, January 14, 2013
Mthethwa fails to stop Zille's police inquiry
A high court has dismissed an application by the police minister for an interdict against a commission of inquiry into Khayelitsha's policing.
On Monday the Western Cape High Court announced its dismissal of Police Minister Nathi Mthethwa's urgent interdict against the commission set up by Premier Helen Zille last year. The commission – headed by advocate Vusi Pikoli and retired Constitutional Court Judge Catherine O’Reagan – was tasked with investigating allegations of police inefficiency and the breakdown of the relationship of the police after public lobbying by organisations such as Equal Education, the Social Justice Coalition and the Treatment Action Campaign.
In response to arguments by advocates representing Zille, the Social Justice Coalition and the commission itself last year, Mthethwa's legal team argued Zille's decision to appoint the commission would have an impact on the independence of the South African Police Service. Advocate Peter Hawthorne, acting for the coalition, on Monday told the court Mthethwa's legal team failed to prove the commission would cause irreparable harm to the SAPS. The commission was meant to hold public hearings from November 12 to December 14, which was since suspended pending the outcome of Mthethwa's application.
Last year the M&G reported that there had been more than 18 vigilante killings in Khayelitsha in 2012 – which activists related to the community’s lack of trust in the police’s ability to maintain order – as well as a spate of gang violence in the area.
"The rationale behind the setting up of such a commission, which, at a strategic level, only focuses on the South African Police Service and not the Western Cape metro police, is suspicious if not questionable," Mthethwa said in November after the commission was set up.
"Despite the engagements we held with the premier over the past weeks, it is evident that she is determined to continue with the commission by hook or crook, which leaves us with no option but to challenge the matter through the legal framework," said Mthethwa when he challenged the validity of the commission.
Following Mthethwa’s urgent interdict in November, many residents of Khayelitsha and activists – including Social Justice Coalition founder Zackie Achmat and its workers – gathered outside the Western Cape High Court last year to protest against the police minister's attempt to stop the commission of inquiry.
Outside the court on Monday residents took part in the “people’s commission of inquiry into crime in Khayelitsha” where they shared stories about their experiences with the police in the township, and Achmat used a loudspeaker to call witnesses to the "stand".
Source: Mail & Guardian
On Monday the Western Cape High Court announced its dismissal of Police Minister Nathi Mthethwa's urgent interdict against the commission set up by Premier Helen Zille last year. The commission – headed by advocate Vusi Pikoli and retired Constitutional Court Judge Catherine O’Reagan – was tasked with investigating allegations of police inefficiency and the breakdown of the relationship of the police after public lobbying by organisations such as Equal Education, the Social Justice Coalition and the Treatment Action Campaign.
In response to arguments by advocates representing Zille, the Social Justice Coalition and the commission itself last year, Mthethwa's legal team argued Zille's decision to appoint the commission would have an impact on the independence of the South African Police Service. Advocate Peter Hawthorne, acting for the coalition, on Monday told the court Mthethwa's legal team failed to prove the commission would cause irreparable harm to the SAPS. The commission was meant to hold public hearings from November 12 to December 14, which was since suspended pending the outcome of Mthethwa's application.
Last year the M&G reported that there had been more than 18 vigilante killings in Khayelitsha in 2012 – which activists related to the community’s lack of trust in the police’s ability to maintain order – as well as a spate of gang violence in the area.
"The rationale behind the setting up of such a commission, which, at a strategic level, only focuses on the South African Police Service and not the Western Cape metro police, is suspicious if not questionable," Mthethwa said in November after the commission was set up.
"Despite the engagements we held with the premier over the past weeks, it is evident that she is determined to continue with the commission by hook or crook, which leaves us with no option but to challenge the matter through the legal framework," said Mthethwa when he challenged the validity of the commission.
Following Mthethwa’s urgent interdict in November, many residents of Khayelitsha and activists – including Social Justice Coalition founder Zackie Achmat and its workers – gathered outside the Western Cape High Court last year to protest against the police minister's attempt to stop the commission of inquiry.
Outside the court on Monday residents took part in the “people’s commission of inquiry into crime in Khayelitsha” where they shared stories about their experiences with the police in the township, and Achmat used a loudspeaker to call witnesses to the "stand".
Source: Mail & Guardian
Thursday, November 29, 2012
Glenister prepares for round 3 in ConCourt over Hawks Act
Hugh Glenister is preparing to return to the Constitutional Court, to argue that the amendments to the South African Police Amendment Act - known as the ‘Hawks Act' - do not meet that Court's criteria for an effective anti-corruption entity as laid out in the Glenister judgment of March 2011.
The Act was signed into law by President Zuma in September this year. Glenister submitted a notice of application to the Court today.
Glenister and his legal counsel have asked that the Court give the executive six months to remedy the legislation once again, and have suggested that a new entity with a specific mandate to combat corruption be established outside of the police service. Glenister says that this could be achieved in a number of ways, either through the creation of:
a new Chapter 9 institution;
a specialised unit within an existing Chapter 9 Institution (e.g. The office of the Public Protector or the Auditor General); or
a free-standing legislated body which is not accountable to the National Commissioner, the Minister or the cabinet.
The SAPS Amendment Act was first passed into law in 2008, when anti-corruption unit, the Scorpions, was disbanded and replaced by the Directorate for Priority Crime Investigation, a new unit within the police service known as ‘the Hawks'.
Glenister successfully argued that the legislation establishing the Hawks was unconstitutional when he won the 2011 ‘Glenister judgement' in the Constitutional Court. The Court found that the SAPS Amendment Act gave inadequate independence to the anti-graft unit in investigating corruption and gave the executive 18 months to amend the legislation. The cut-off date was 18 September 2012.
In its judgement, the Court clearly outlined its criteria for South Africa's anti-corruption entity:
Adequate specialisation and training;
independence from political influence and interference;
guaranteed resources; and
security of tenure for the entity's officials.
However, Glenister believes that the executive failed to adhere to these criteria and therefore to the requirements of the Constitution, specifically regarding the location of the Hawks and its reporting structure.
As a unit within the police, the Hawks head is answerable to the Commissioner of Police, the Minister of Police, Cabinet and ultimately, the President. Glenister believes that this makes the unit vulnerable to political meddling, compromising its ability to effectively investigate corruption at all levels of society.
"How can the Hawks combat corruption within the public sector if the ruling party has control over who can be investigated and who is above the law?" says Glenister, "The unit has its hands tied and is vulnerable to the kind of political interference which resulted in corruption charges being withdrawn against the President, without the opportunity of being tested in court."
According to the 2008/2009 annual report of the National Prosecuting Authority, the number of new investigations has dropped by 85% since the Hawks took over from the Scorpions in 2008, and the value of illegally acquired assets seized has fallen from R4 billion to R35 million.
Additionally, public perception about corruption within the SAPS is at an all time low according to an October survey by market research firm, TNS, which revealed that it is seen as the most corrupt government entity in South Africa. The Court regards public perception of independence as a relevant factor in its deliberations on the effectiveness and autonomy of the tweaked Hawks unit.
"If the unit itself is corrupt, how can it be expected to fight corruption?"
Statement issued by FTI Consulting on behalf of Hugh Glenister, November 29 2012
Source: Politicsweb
The Act was signed into law by President Zuma in September this year. Glenister submitted a notice of application to the Court today.
Glenister and his legal counsel have asked that the Court give the executive six months to remedy the legislation once again, and have suggested that a new entity with a specific mandate to combat corruption be established outside of the police service. Glenister says that this could be achieved in a number of ways, either through the creation of:
a new Chapter 9 institution;
a specialised unit within an existing Chapter 9 Institution (e.g. The office of the Public Protector or the Auditor General); or
a free-standing legislated body which is not accountable to the National Commissioner, the Minister or the cabinet.
The SAPS Amendment Act was first passed into law in 2008, when anti-corruption unit, the Scorpions, was disbanded and replaced by the Directorate for Priority Crime Investigation, a new unit within the police service known as ‘the Hawks'.
Glenister successfully argued that the legislation establishing the Hawks was unconstitutional when he won the 2011 ‘Glenister judgement' in the Constitutional Court. The Court found that the SAPS Amendment Act gave inadequate independence to the anti-graft unit in investigating corruption and gave the executive 18 months to amend the legislation. The cut-off date was 18 September 2012.
In its judgement, the Court clearly outlined its criteria for South Africa's anti-corruption entity:
Adequate specialisation and training;
independence from political influence and interference;
guaranteed resources; and
security of tenure for the entity's officials.
However, Glenister believes that the executive failed to adhere to these criteria and therefore to the requirements of the Constitution, specifically regarding the location of the Hawks and its reporting structure.
As a unit within the police, the Hawks head is answerable to the Commissioner of Police, the Minister of Police, Cabinet and ultimately, the President. Glenister believes that this makes the unit vulnerable to political meddling, compromising its ability to effectively investigate corruption at all levels of society.
"How can the Hawks combat corruption within the public sector if the ruling party has control over who can be investigated and who is above the law?" says Glenister, "The unit has its hands tied and is vulnerable to the kind of political interference which resulted in corruption charges being withdrawn against the President, without the opportunity of being tested in court."
According to the 2008/2009 annual report of the National Prosecuting Authority, the number of new investigations has dropped by 85% since the Hawks took over from the Scorpions in 2008, and the value of illegally acquired assets seized has fallen from R4 billion to R35 million.
Additionally, public perception about corruption within the SAPS is at an all time low according to an October survey by market research firm, TNS, which revealed that it is seen as the most corrupt government entity in South Africa. The Court regards public perception of independence as a relevant factor in its deliberations on the effectiveness and autonomy of the tweaked Hawks unit.
"If the unit itself is corrupt, how can it be expected to fight corruption?"
Statement issued by FTI Consulting on behalf of Hugh Glenister, November 29 2012
Source: Politicsweb
Cops probing ammo suspect's alleged links to heists
Within hours of a police station commander appearing in court for the theft and sale of police ammunition to organised crime gangs, detectives have launched investigations into allegations that he might be linked to a series of violent crimes that were committed using police weapons.
Captain Petrus Badenhorst, the commander of Rust de Winter police station, near Pretoria, appeared in the Pretoria North Magistrate's Court yesterday with co-accused Eduan Smit, 31, and Smit's wife, Elmari, 26.
The three were arrested by the Hawks on Tuesday after a 10-month investigation into the theft and sale of police and military ammunition from the police station.
Smit and his wife were arrested in a sting operation at a Pretoria shopping centre; Badenhorst, who is to be suspended, was arrested at the police station.
During the arrests police seized over 10000 rounds of ammunition for semi-automatic rifles and handguns. In the past month, they had bought nearly 40000 rounds of ammunition from the three in several operations.
In the early hours of yesterday morning, just hours before the trio's court appearance, police raided a Pretoria house where they recovered dozens of military-issue 20mm rounds of ammunition and a quantity of AK47 bullets.
The house is believed to belong to a relative of the Smits and is thought to have been used as a storage facility while buyers for the ammunition were being sought.
A source said shortly after Badenhorst's arrest that the police received information of his alleged links to several crimes that were comitted using weapons taken from the police station.
"All these crimes appear to have been violent. Investigators are following up on information that should soon lead to the arrest of several more people, including police officers, who were involved in these thefts and sales.
"It appears he [Badenhorst] saw himself as a super cop and a law unto himself," said the source.
The expected arrests will follow the widening of the investigation by detectives to include several Gauteng and Limpopo police stations with armouries from which thousands of rounds of ammunition are believed to have been stolen, allegedly by Badenhorst and people who have been linked to him.
Source: Times Live
Captain Petrus Badenhorst, the commander of Rust de Winter police station, near Pretoria, appeared in the Pretoria North Magistrate's Court yesterday with co-accused Eduan Smit, 31, and Smit's wife, Elmari, 26.
The three were arrested by the Hawks on Tuesday after a 10-month investigation into the theft and sale of police and military ammunition from the police station.
Smit and his wife were arrested in a sting operation at a Pretoria shopping centre; Badenhorst, who is to be suspended, was arrested at the police station.
During the arrests police seized over 10000 rounds of ammunition for semi-automatic rifles and handguns. In the past month, they had bought nearly 40000 rounds of ammunition from the three in several operations.
In the early hours of yesterday morning, just hours before the trio's court appearance, police raided a Pretoria house where they recovered dozens of military-issue 20mm rounds of ammunition and a quantity of AK47 bullets.
The house is believed to belong to a relative of the Smits and is thought to have been used as a storage facility while buyers for the ammunition were being sought.
A source said shortly after Badenhorst's arrest that the police received information of his alleged links to several crimes that were comitted using weapons taken from the police station.
"All these crimes appear to have been violent. Investigators are following up on information that should soon lead to the arrest of several more people, including police officers, who were involved in these thefts and sales.
"It appears he [Badenhorst] saw himself as a super cop and a law unto himself," said the source.
The expected arrests will follow the widening of the investigation by detectives to include several Gauteng and Limpopo police stations with armouries from which thousands of rounds of ammunition are believed to have been stolen, allegedly by Badenhorst and people who have been linked to him.
Source: Times Live
Wednesday, November 28, 2012
Captain allegedly sold a 9mm and shotgun ammunition to criminals
A LIMPOPO police station commissioner was arrested yesterday for possession of and dealing in ammunition, the Hawks said. More than 500 rounds of ammunition were found at his house. Earlier police arrested a couple believed to be his accomplices. They had 10,500 rounds of ammunition worth about R1-million for apparent delivery to a buyer.
The captain, 43, allegedly sold the 9mm and shotgun ammunition to criminals. The three would appear in the Pretoria North Magistrate's Court today.
Source: The Sowetan
The captain, 43, allegedly sold the 9mm and shotgun ammunition to criminals. The three would appear in the Pretoria North Magistrate's Court today.
Source: The Sowetan
Monday, September 17, 2012
In the wake of Marikana, ANC pushing a self-destruct button
As police raided the hostels of Lonmin miners it looked like the ANC had once again chosen force over discussion. It’s nothing new, but this specific raid will be what we remember as the beginning of the party’s decline. By GREG NICOLSON.
This weekend’s crackdown on the settlement of Nkaneng should come as no surprise. In the last few years, as service delivery protests have engulfed townships and informal settlements across the country, the ANC government has stood behind the state-sponsored violence and intervened only when absolutely necessary.
The tale feels like a cliché. Something triggers a store of long-held grievances and the community fortifies its thoroughfares with burning tyres. After the police arrive they eventually decide the protest cannot continue and attack the toyi-toying group. In their nyalas, the cops first teargas the community in a drive-by and then conduct a series of arbitrary arrests that follow a hail of rubber bullets.
The smell of teargas, stab of rubber bullets and the humiliation of violent raids further enrages the angry mob. The stakes are raised and the more violent and disaffected members of the community remain, seeking ever more destruction.
Between police and protestors lies a dark silence. The cops don’t care why people are on the streets, burning the little they have access to while government officials are too scared or don’t care enough to mediate promptly. When they finally arrive and offer the slightest semblance that they give a damn about the community’s concerns, the protest often subsides.
It seems obvious that a leader should immediately attempt to listen. But in the silence of a community on fire, before government officials are forced to react, lies a deafening reality of the disconnect between our most marginalised and their elected leaders, usually from the ANC.
These protests, similar in root cause to the ongoing Lonmin strike, regularly occur because of poverty, corruption and unmet expectations. People are tired of living without adequate shelter. They know it’s unfair they can’t access decent health services. They want electricity and water plumbed into their homes and they want an effective and transparent billing system. They are tired of the forced humiliation that latches onto poverty. Worst of all, they’re disheartened seeing their children grow up to live in exactly the same desperate conditions.
Law and order needs to prevail in Marikana and no more deaths can be added to the toll. But this weekend’s move by the police and army into Nkaneng is all too reminiscent of the response to service delivery protests over the years. All too often the ANC has let police shoot first before even asking why protests are occurring, let alone engaging in meaningful discussion (however long, risky or arduous it need be).
It’s symbolic of a larger problem. The ANC aims to “end Apartheid in all its forms” and “fight for social justice and eliminate the vast inequalities created by Apartheid”, but too many examples show that it’s no longer the party of the people. A litany of betrayals and failures stain the party’s successes (which primarily include a massive service delivery rollout and making a dent into transforming the system of racial exclusion) while its internal power plays and the venality of members erode the foundations established by some of the most inspiring leaders of the 20th century.
The ANC’s June policy conference proved the party knows what’s hurting South Africans – poverty, inequality, unemployment and the ills flowing from the combination. We’re sure its members also care deeply – who wouldn’t when the stories of many South Africans are tragedies?
But the party is too distant from those we expect it to represent. President Jacob Zuma’s insulting and incredulous comments about visiting a township and realising there are poor people struggling to survive is testament to the disconnect. ANC MP Rose Sonto confirmed this last week when he disagreed with opposition parties in the Parliamentary Portfolio Committee on Mineral Resources, saying, “We can’t go and talk to a crowd with suicidal tendencies.”
Dangerous, yes, but strikes and protests are messages sent when other avenues of communication fail. Instead of provoking miners with further police antagonism, the ANC needed to work with union leaders and mine management to increase engagement until leaders trusted them. Zuma has sent an inter-ministerial force, made a visit and established a judicial inquiry, but it’s not enough. ANC leaders aren’t giving Marikana the attention it deserves. Simply, they have failed to lead when the country was wailing, desperate and distraught, for leaders.
The problem the party faces, however, is that even if it had the resolve to provide leadership it’s so removed from disaffected communities it would have struggled to get a platform. The miners have been too hostile, and like many others across the country seem to believe the party has broken too many promises, its members too corrupt to trust.
Instead of proving them wrong, the party has distanced itself from the workers and failed to show it understands their concerns (at the same time it has lambasted the capitalist miners it has been so happy to accommodate all these years).
So in an attempt to control the situation the ANC offered the same response it has to service delivery protests: it sent in the police. That response is nothing new, but while the party hides, the Marikana massacre will go down in history as the moment everybody knew the ANC was no longer a party of the poor, no longer a party of the working class and no longer a party that could claim to represent the majority of South Africans.
The National Executive Committee has discussed Marikana at length, said Secretary General Gwede Mantashe. It’s looking at ways to address the causes of the disaster and may come up with creative solutions involving partnering with mining companies to improve the living conditions of workers.
One can only hope the party can, but one has to fear it has once again stoked unrest and it might be too late. The ANC may still be in power. It may still have the votes, but things change. They always do. And it’s moments like these the historians will remember.
Source: Daily Maverick
This weekend’s crackdown on the settlement of Nkaneng should come as no surprise. In the last few years, as service delivery protests have engulfed townships and informal settlements across the country, the ANC government has stood behind the state-sponsored violence and intervened only when absolutely necessary.
The tale feels like a cliché. Something triggers a store of long-held grievances and the community fortifies its thoroughfares with burning tyres. After the police arrive they eventually decide the protest cannot continue and attack the toyi-toying group. In their nyalas, the cops first teargas the community in a drive-by and then conduct a series of arbitrary arrests that follow a hail of rubber bullets.
The smell of teargas, stab of rubber bullets and the humiliation of violent raids further enrages the angry mob. The stakes are raised and the more violent and disaffected members of the community remain, seeking ever more destruction.
Between police and protestors lies a dark silence. The cops don’t care why people are on the streets, burning the little they have access to while government officials are too scared or don’t care enough to mediate promptly. When they finally arrive and offer the slightest semblance that they give a damn about the community’s concerns, the protest often subsides.
It seems obvious that a leader should immediately attempt to listen. But in the silence of a community on fire, before government officials are forced to react, lies a deafening reality of the disconnect between our most marginalised and their elected leaders, usually from the ANC.
These protests, similar in root cause to the ongoing Lonmin strike, regularly occur because of poverty, corruption and unmet expectations. People are tired of living without adequate shelter. They know it’s unfair they can’t access decent health services. They want electricity and water plumbed into their homes and they want an effective and transparent billing system. They are tired of the forced humiliation that latches onto poverty. Worst of all, they’re disheartened seeing their children grow up to live in exactly the same desperate conditions.
Law and order needs to prevail in Marikana and no more deaths can be added to the toll. But this weekend’s move by the police and army into Nkaneng is all too reminiscent of the response to service delivery protests over the years. All too often the ANC has let police shoot first before even asking why protests are occurring, let alone engaging in meaningful discussion (however long, risky or arduous it need be).
It’s symbolic of a larger problem. The ANC aims to “end Apartheid in all its forms” and “fight for social justice and eliminate the vast inequalities created by Apartheid”, but too many examples show that it’s no longer the party of the people. A litany of betrayals and failures stain the party’s successes (which primarily include a massive service delivery rollout and making a dent into transforming the system of racial exclusion) while its internal power plays and the venality of members erode the foundations established by some of the most inspiring leaders of the 20th century.
The ANC’s June policy conference proved the party knows what’s hurting South Africans – poverty, inequality, unemployment and the ills flowing from the combination. We’re sure its members also care deeply – who wouldn’t when the stories of many South Africans are tragedies?
But the party is too distant from those we expect it to represent. President Jacob Zuma’s insulting and incredulous comments about visiting a township and realising there are poor people struggling to survive is testament to the disconnect. ANC MP Rose Sonto confirmed this last week when he disagreed with opposition parties in the Parliamentary Portfolio Committee on Mineral Resources, saying, “We can’t go and talk to a crowd with suicidal tendencies.”
Dangerous, yes, but strikes and protests are messages sent when other avenues of communication fail. Instead of provoking miners with further police antagonism, the ANC needed to work with union leaders and mine management to increase engagement until leaders trusted them. Zuma has sent an inter-ministerial force, made a visit and established a judicial inquiry, but it’s not enough. ANC leaders aren’t giving Marikana the attention it deserves. Simply, they have failed to lead when the country was wailing, desperate and distraught, for leaders.
The problem the party faces, however, is that even if it had the resolve to provide leadership it’s so removed from disaffected communities it would have struggled to get a platform. The miners have been too hostile, and like many others across the country seem to believe the party has broken too many promises, its members too corrupt to trust.
Instead of proving them wrong, the party has distanced itself from the workers and failed to show it understands their concerns (at the same time it has lambasted the capitalist miners it has been so happy to accommodate all these years).
So in an attempt to control the situation the ANC offered the same response it has to service delivery protests: it sent in the police. That response is nothing new, but while the party hides, the Marikana massacre will go down in history as the moment everybody knew the ANC was no longer a party of the poor, no longer a party of the working class and no longer a party that could claim to represent the majority of South Africans.
The National Executive Committee has discussed Marikana at length, said Secretary General Gwede Mantashe. It’s looking at ways to address the causes of the disaster and may come up with creative solutions involving partnering with mining companies to improve the living conditions of workers.
One can only hope the party can, but one has to fear it has once again stoked unrest and it might be too late. The ANC may still be in power. It may still have the votes, but things change. They always do. And it’s moments like these the historians will remember.
Source: Daily Maverick
Wednesday, September 12, 2012
'Corruption at forensic lab sabotages convictions'
ALLEGED wide-scale corruption and theft at the country's leading police forensic science laboratory is leading to massive backlogs in the finalisation of horrific crimes, including sexual assaults.
A detailed dossier compiled by the Police and Prisons Civil Rights Union (Popcru) has blown open the lid on alleged criminal activities by police working within the national forensic science laboratory in Pretoria.
Contained within the dossier is damning information on the alleged irregular decommissioning of a multi-million rand DNA database machine, the theft of R500-million worth of narcotics evidence, the apparent sabotaging of court cases and the concealing of information reflecting the true situation of the laboratory's caseload backlog.
The dossier was given to National Police Commissioner General Riah Phiyega nearly two months ago. According to Popcru, which is calling for an investigation, police management have done nothing about the allegations, while whistle-blowers have been victimised - with two being subjected to internal disciplinary hearings.
According to the National Prosecuting Authority (NPA) and gender violence NGOs, DNA databases are essential in the fight for justice. NPA spokesman Vuyisile Calaza said DNA was crucial in proving the guilt of an accused in a sexual offence.
People Opposed to Women Abuse (Powa) director Nhlanhla Mokwena said a database of DNA from perpetrators of rape would make seeking justice easier.
A report by the Medical Research Council and the Study of Violence - involving the tracking of rape cases through the criminal justice system - showed how DNA reports more often than not led to an acquittal than a conviction. The report said DNA reports were seldom available because kits were infrequently analysed and the suspects' blood rarely taken for comparison against any DNA identified by the laboratory.
Popcru's Gauteng provincial chairman Vusi Shabalala said they had spent months collecting information to compile the dossier, which contained information on the alleged irregular decommissioning of a R46-million DNA database machine - crucial parts of which were sold for scrap metal.
Police spokesman Brigadier Phuti Setati said the matter was receiving attention.
"Popcru is being engaged. We cannot discuss the contents until the matter has been addressed," he said.
Police ministry spokesman Zweli Mnisi said Minister Nathi Mthethwa had been briefed on the allegations.
Source: The Sowetan
A detailed dossier compiled by the Police and Prisons Civil Rights Union (Popcru) has blown open the lid on alleged criminal activities by police working within the national forensic science laboratory in Pretoria.
Contained within the dossier is damning information on the alleged irregular decommissioning of a multi-million rand DNA database machine, the theft of R500-million worth of narcotics evidence, the apparent sabotaging of court cases and the concealing of information reflecting the true situation of the laboratory's caseload backlog.
The dossier was given to National Police Commissioner General Riah Phiyega nearly two months ago. According to Popcru, which is calling for an investigation, police management have done nothing about the allegations, while whistle-blowers have been victimised - with two being subjected to internal disciplinary hearings.
According to the National Prosecuting Authority (NPA) and gender violence NGOs, DNA databases are essential in the fight for justice. NPA spokesman Vuyisile Calaza said DNA was crucial in proving the guilt of an accused in a sexual offence.
People Opposed to Women Abuse (Powa) director Nhlanhla Mokwena said a database of DNA from perpetrators of rape would make seeking justice easier.
A report by the Medical Research Council and the Study of Violence - involving the tracking of rape cases through the criminal justice system - showed how DNA reports more often than not led to an acquittal than a conviction. The report said DNA reports were seldom available because kits were infrequently analysed and the suspects' blood rarely taken for comparison against any DNA identified by the laboratory.
Popcru's Gauteng provincial chairman Vusi Shabalala said they had spent months collecting information to compile the dossier, which contained information on the alleged irregular decommissioning of a R46-million DNA database machine - crucial parts of which were sold for scrap metal.
Police spokesman Brigadier Phuti Setati said the matter was receiving attention.
"Popcru is being engaged. We cannot discuss the contents until the matter has been addressed," he said.
Police ministry spokesman Zweli Mnisi said Minister Nathi Mthethwa had been briefed on the allegations.
Source: The Sowetan
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