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

Growing Calls for Inquiries Into Policing in South Africa

Recent events in Khayelitsha in the Western Cape have highlighted how the failures in the criminal justice system in general, and policing in particular, can have serious consequences. The most shocking example of this has been the vigilante-related deaths of at least 14 people between April and July this year. It is becoming apparent that these deaths are as a result of community members having lost faith in the police and starting to take matters into their own hands. Indeed, Khayelitsha as a geographic location is a difficult place to police. 

Established in 1985, Khayelitsha is currently home to an estimated 750 000 residents, most of whom are from poor and working class communities. Situated 35 km from the central business district of Cape Town, it is one of the most densely populated areas in the country and a majority of its young men and women of working age are unemployed. As a result there are high levels of poverty and associated social ills such as crime. Concerns about inadequate policing and the criminal justice system resulted in concerted community action as far back as 2003. Since then, community-based organisations in Khayelitsha have held more than 100 demonstrations, pickets and marches and submitted numerous petitions and memorandums to various levels of government in an effort to improve the situation.

The list of concerns is long and includes the following complaints:

• When crimes are reported, victims are often treated discourteously, sometimes with contempt.
• Dockets are often lost, resulting in cases being struck off the court rolls.
• Investigations and securing of crime scenes, gathering of forensic evidence, interviewing of witnesses and other basic procedures are often ignored or performed incompetently.
• Investigating officers often do not communicate with victims of crime regarding the progress of investigations or prosecutions, including information about court dates and bail hearings.
• Investigating officers routinely do not secure the presence of witnesses at trials, resulting in lengthy postponements.
• Witnesses to serious crimes are not given the protection they need in order to testify without fear of retribution and many refuse to testify following threats from perpetrators with no response from the police.
• There is insufficient visible policing in Khayelitsha (this is almost non-existent in all informal settlements).

Seven months ago a group of civil society organisations under the banner of the Social Justice Coalition (SJC), which consists of 1 500 members, lodged a formal complaint with the Western Cape Provincial Government detailing the many failures of criminal justice in providing services to the people of Khayelitsha.

In their complaint they pointed out that since 2009, certain violent crime categories recorded by the police stations that serve Khayelitsha have increased. For example, murders increased by 9,5%, sexual assaults by 15,9% and attempted murders by 63%. They also highlighted that most property crimes such as burglaries, theft and robbery were not reported to the police because residents were not insured and didn’t believe that the police would give them the necessary attention. In addition to the crime statistics, they included a number of detailed case studies that demonstrated serious systemic failures with regards to the functioning of the criminal justice system that had contributed to the loss of public trust in the police.

Their recommendation is that the premier of the Western Cape, Helen Zille, use her constitutional powers to appoint a five-person commission of inquiry headed by a retired judge to address the following concerns with regards to the police:

• Evaluating police effectiveness
• Assessing the suitability of the priorities, personnel, training, resources, systems, policies and community engagement practices employed by the police
• Investigating the causes of the breakdown in relations between the Khayelitsha community and the police
• Investigating the reasons for the inefficiencies at the interface between policing and the broader administration of justice
• Identifying the measures necessary to redress the inefficiencies and other problems identified, including a social crime prevention strategy
• Establishing time frames for the implementation of its recommendations

The premier has indicated that in principle the Western Cape Executive agreed to establish such a commission. This, along with the recent vigilante killings, appeared to spur the national SAPS into action and the new national Commissioner has asked that the establishment of the inquiry be delayed so that they have time to investigate the complaint. During the second week of July 2012, the Independent Police Investigative Directorate (IPID) was dispatched to investigate the concerns raised in the complaint by the SJC.

Irrespective of what the IPID investigation finds, it would be good for a commission of inquiry to proceed. This is because the IPID investigation will likely identify specific failings on the part of particular police officials and possibly other individuals (including perhaps prosecutors or members of the public). However, the policing challenges facing Khayelitsha are not confined to that area and occur in many precincts across the country.

When looking at the national picture a range of ongoing systemic challenges become apparent. While there are numerous examples, it is worth simply reflecting on the following few:

• Between 2001/02 and 2009/10 the number of criminal cases opened against police officials with the IPID increased by 363%.
• Internal Police Advisory Council inspections undertaken in 2006 to 2008 before being disbanded found a wide range of problems with poor station level supervision, inadequate inspections, ill-discipline and shortcomings with regards to police appointments, promotions, resources, skills and performance.
• Over the two-year period 2008/09 and 2009/10 the police lost 4 797 firearms and only 53 police officials faced disciplinary action as a result.
• A number of the most senior SAPS officers have left the organisation or are suspended following allegations of corruption. This includes the last two SAPS National Commissioners.
• In 2010/11 the Minister of Police paid out R115 million in civil claims arising out of poor police behaviour, an increase of 33% compared to the previous year.
• In April 2012 the then Acting SAPS National Commissioner conceded that 6 536 members were officially declared ‘not yet competent’ to handle their firearms.

It is therefore not surprising that a 2011 Human Sciences Research Council survey into corruption found that 66% of South Africans believed that corruption was widespread among the police. 

It must be born in mind that there are very many hard-working, dedicated policemen and women who willingly serve their communities under very difficult circumstances. However, their morale is seriously affected by the misdeeds of many of their leaders and colleagues. While a commission of inquiry into a particular policing precinct such as Khayelitsha is likely to provide valuable insight into the nature of the problems in that area and possibly into contributing systemic organisational weaknesses, there is a need to focus on those higher up in the organisation. Only when there is an independent inquiry into the challenges facing those at the top of the organisation who have the authority and responsibility to fix the problems, are we likely to see the kind of progress needed.

Gareth Newham, Programme Head, Crime and Justice Programme, ISS Pretoria Office

Source: ISS

The judgement on Mdluli underscores the importance of civic activism

Judge Ephraim Makgoba’s decision to interdict Lt General Richard Mdluli from his policing duties is a landmark victory for civil society activism and free press.

Corruption Watch (CW) and the Social Justice Coalition (SJC) welcomed Judge Makgoba’s granting of the urgent relief sought by Freedom Under Law (FUL) in the first part of its application to the North Gauteng High Court. The second part of the application will be heard separately on a date provided by the Judge President and will deal with, amongst other issues, the reasons why disciplinary proceedings were withdrawn and why Lt General Mdluli was reinstated as Head of Crime Intelligence.

It is on these issues that CW and SJC have filed a joint application for leave to intervene as co-applicants. In addition to the grounds raised by FUL, CW and the SJC have asked the Court to review and set aside decisions of the NPA to halt the prosecution of Lt General Mdluli for his alleged involvement in murder and corruption.

SJC’s Zackie Achmat said today’s judgement was a “victory for free press particularly investigative journalism, the independent judiciary … it affirms the importance of active citizenship, civil society and social movement activism.” The two civil society organizations were congratulatory of the achievements of FUL’s legal team and Judge Magkoba’s firm stance on the matter. “We are particularly encouraged at the firmness and clarity of the court’s reasoning. The judge made it clear that the SAPS is no ordinary institution, this is no ordinary matter, and Mdluli is no ordinary employee. This matter deserves urgent attention,” said Corruption Watch’s David Lewis

Giving reasons for his decision and referring to allegations leveled against Lt Gen Mdluli, Judge Makgoba pointed out that murder, defeating the ends of justice, fraud and money laundering were serious criminal acts which go to the fabric of public order and security.

“In my view this matter is of considerable public importance [and] the sooner this saga is brought to an end the sooner the credibility of the police, security service and the justice system as a whole can be restored,” said Judge Makgoba.

Source: Corruption Watch