Too many bad apples: IPID report reveals unacceptable levels of criminality within the police

By Craig Oosthuizen


Over the past year, people filed 6 728 cases of criminal and professional misconduct against police officers with the Independent Police Investigative Directorate (IPID). This number represents 4.3% of active police officers (officers employed in terms of the SAPS Act).

According to IPID, its role is to “ensure independent oversight” over the police, which involves investigating criminal offences by the police and making appropriate recommendations. IPID reports to the Minister of Police and has oversight over SAPS as well as municipal police services, such as the Cape Town Metro Police.

The 2011 IPID Act imposes greater reporting obligations on the police. It provides us with a clearer picture than ever before of the levels of criminality and misconduct within the police service.

Section 28 of the Act requires IPID to investigate: deaths in police custody; deaths as a result of police action; complaints related to the discharge of a police firearm; rapes by police officers; rapes in police custody; complaints of torture or assault by police officers; police corruption, and any other matters referred to IPID by its Executive Director, the Minister of Police, an MEC, or the Secretary of Police.

IPID investigated 7 277 cases in the 2012/2013 financial year, including 549 cases carried over from the year before. The vast majority of reported cases involved members of SAPS, with only 165 cases reported against members of the municipal police services.

Most of the received cases were for assault — 4 131 cases in total. Roughly 30% were for assault with the intent to do grievous bodily harm and the rest were mostly for common assault. People also reported 50 cases of torture by police officers. Unfortunately, Parliament only passed legislation making torture a criminal offence in July this year, 15 years after South Africa ratified the United Nations Convention Against Torture in 1998. This meant that until recently, cases of torture (like those in the IPID report) could only be prosecuted as cases of assault.

147 incidents of rape by police officers were reported, with 55 cases involving on-duty and 92 involving off-duty police officers. Unlike other offences, the IPID Act requires IPID to investigate allegations of rape regardless of whether the officer concerned was on duty at the time. People reported 22 cases of rape while in police custody; 13 of these were allegedly committed by police officers. This demonstrates a lack of proper monitoring and oversight of persons in custody.

Even more damning are the 275 deaths that occurred in police custody: 96 were allegedly due to suicide (35%); 80 people died of injuries they sustained before arrest (29%); and 77 were reported to have died of natural causes (28%). In most cases of alleged suicide (75%), people used prohibited items such as belts or shoelaces to commit suicide. This again demonstrates a lack of proper monitoring or custody management. Most of the deaths caused by prior injuries (91%) were the result of injuries sustained during vigilante attacks.

Although many deaths were reportedly due to natural causes, there is reason to doubt the reliability of this statistic. Previous research into pre-trial detention conditions has revealed that inmates are often not properly medically assessed when they are admitted; many inmates do not receive medical attention or are ignored when they complain of sickness and pain; and often the doctor who is said to have certified the death fails to sign the forms. This raises concerns as to whether people in custody receive proper medical attention, and whether these deaths could have been prevented.

IPID also investigates “death as result of police action”. It is important to note that each of these cases may involve more than one fatality, because reported cases refer to single incidents rather than the number of people killed. For example, the police shooting of striking miners at Marikana resulted in 34 deaths but only one case was registered, and 270 striking workers received wounds serious enough to qualify as possible attempted murder.

Last year IPID investigated 431 cases involving 485 deaths. This includes 156 cases of people killed during an arrest. 539 cases were also brought against police officers for attempted murder; again, many of these cases involved multiple victims.

IPID investigated over 120 new cases of corruption last year. Of those, 75% were for extortion or soliciting a bribe. It also received six cases for systematic corruption, defined as “an institutionalised, endemic manipulation of a system by individuals or networks/organisations, taking advantage of weakness in the processes and systems for illicit gain, where there are leadership deficiencies, collusion and/or abuse of power.”

Once IPID completes a criminal investigation and finds evidence that police officers broke the law, it refers the recommendation to the National Prosecuting Authority (NPA). Of 1 088 criminal recommendations, 545 were referred to the NPA. The rest were not referred because IPID could not substantiate the allegations. Most of these referrals were for assault (384), with 46 being for death in police custody or as a result of police action, and 12 being for rape by a police officer or by someone else while in police custody. 57 police officers were convicted during the reporting period, with the majority of the convictions (27) being for death as a result of police action.

IPID made 1 044 disciplinary recommendations last year, but only managed to refer 788 recommendations to SAPS during the reporting period. The other 256 recommendations still need to be referred. 84 disciplinary convictions were made against members of the police. Some disciplinary actions were startling: some cases of murder and rape resulted in little more than a written warning. In two cases of attempted murder, the officers were only required to attend corrective counselling. This is concerning in light of a SAPS internal audit from August, which revealed that 1 448 police officers continued to actively serve despite being convicted of criminal offences.

The IPID Act, by increasing the mandate of IPID in terms of criminal investigations and reporting, offers the opportunity to ensure greater transparency and accountability in the police service than has been possible before. In order to foster an atmosphere of accountability, officers accused of criminal offences should be suspended until their guilt or innocence has been determined in court. Members of the police found guilty of a criminal offence should without exception be dismissed from the police service. This is essential to build a democratic, effective and accountable police service under professional and ethical command.

Original image of rotten apples by Alison E Dunn (CC BY 2.0).

Originally published in on 09 October 2013

Gang Violence in Manenberg: can it be stopped?

By Ian Hanson

Learners from Manenberg's Red River Primary

Girls from Manenberg’s Red River Primary pose on a bench they have designated as a ‘safe space’ in their school, and which they designed and decorated.

This year the Manenberg community in the Cape Flats was wracked by gang violence that escalated in May 2013 and has continued for at least three months. 27 people were killed and over 50 injured. Gang violence is severe and endemic in Manenberg. This latest outbreak was largely a battle between two rival gangs, the Americans and the Hard Livings, the most powerful in Manenberg; it brought the community to a virtual standstill, traumatizing people and forcing them to live in fear. Teachers at 14 schools in Manenberg banded together, declaring the situation too dangerous for students and teachers to come to school anymore, and demanded that the Department of Education take serious and meaningful action to ensure the safety of learners and educators. This group formed the Teachers Steering Committee and their refusal to teach forced the Department to close all 14 schools.

Metro Police have provided temporary security for every school, and have beefed up their presence in the community. This has contributed to decreasing the fighting around Manenberg, but did not actually stop the violence. Instead it simply pushed it into neighboring areas such as Mitchells Plain and Hanover Park. Violence died down in late August, when the Manenberg Church of Reconciliation helped facilitate a ceasefire and peace talks between the two gangs. The two gangs apologized, vowing to stop using violence to resolve conflict and to help bring peace and stability to the community.

Although the media has stopped covering the gang violence, fighting has not stopped. Valdi, from the Manenberg Trauma Centre, reported that a trauma worker was injured two weeks ago during a shooting incident at the Trauma Centre. She says that reports of domestic violence have increased over the past month, suggesting that violence is manifesting itself in different ways.

In early September, several weeks after the ceasefire, the Western Cape Religious Leaders Forum, Campaign for Safe Communities (CSC) and other supporting organisations organized a solidarity visit to Manenberg. The object of this visit was not to tell local organizations how to operate but to show support for the community, speak with community members and leaders, visit areas substantially impacted by the violence, and discuss ways this outside group could assist Manenberg-based organizations. Although many things came to light over the course of two visits on 10 and 19 September, several things of particular importance were highlighted: the vulnerability of youth to gangsterism, and the ineffectiveness of current policing and government practices for tackling gangs.

Youth are most susceptible and often most actively involved in crime in Manenberg. The government has failed the youth of South Africa: a lack of employment opportunities and underfunded educational institutions has contributed to higher gang membership. These youth have been let down by a system that views them not as victims of a fractured, unequal society, but as part of the problem. They are often presented with few alternatives to a life on the streets. Even those not directly involved have been severely impacted by it. In Manenberg, students and educators alike were highly traumatized by the fighting around them. Many pupils are forced to walk through the territory of multiple gangs on their way to school. Silver Stream High School is located on the road dividing the territory of the Hard Livings and the Americans; this is the same area where 14 of the 27 murders took place.

Without proper counseling, it is unreasonable to expect students to function at the level of those living in calmer areas, or for educators to teach at their highest ability. According to the Principal of Silver Stream, during times of intense violence school attendance can drop to as low as 10% and most students will find it difficult to focus for more than five minutes.

The effects of gangsterism on school and youth life are wide and varied. At Red River Primary School, the sports field once used for exercise has been cordoned off and has become a hotspot for gangs and drug dealers. The community as a whole lacks places to release energy. When members of the CSC and partner organizations spoke with students from Red River, it became clear how profoundly the community has been touched by gangsterism. Most pupils acknowledged that they knew someone in a gang and that they had already been exposed to drugs. Most shocking of all was how commonplace this has become to the people of Manenberg.

Hard policing is not an effective strategy to combat gangsterism. Violent and aggressive tactics do very little to curb the rising influence of gangs upon communities in the Cape Flats. This strategy overlooks the complex variables that play a role in the development of gangs; it alienates the community, gains support for gangs, and increases gang membership. By brutalizing innocent people along with gang members, the police lose the support of the community, who should be its most crucial partner in the fight against gangs. Premier Zille’s proposed response to this latest surge in gang violence (i.e. bring in the army) suggests a lack of understanding of the fight against gangs.

It is important to examine the diverse factors contributing to the development of gangs. Gangs thrive on desperation. Manenberg struggles with an unemployment rate hovering around 66%, endemic societal problems such as school dropout rates between 60-80%, overpopulation, drug abuse, and health issues. These issues must be addressed in order to move towards curbing the power of gangs. People who do not have the prospect of employment or economic opportunities often turn to the alternative economy of crime, with its own forms of societal power and camaraderie.

Community leaders have suggested alternative ways the government could make a positive impact. The government would better serve the community by investing in sustainable development plans, which are critical to solving longstanding crime problems. It should establish alternative routes for unemployed youth. Father Donovan from the Manenberg Church of Reconciliation suggested several ideas, including youth diversion programs for youth who are not enrolled in school and skills development centers for unemployed people.

It is imperative that the government shifts its focus away from the Cape Flats “war” mentality and attempts to create meaningful change within struggling communities. Civil society and community organizations, together with active members of the community, hope to effect a gradual policy change through sustained pressure and through cooperation with the state. Perhaps it is naive to believe this will happen, but it is better than accepting the status quo.

While these problems are acute in Manenberg, the scourge of gangsterism is a nationwide issue with far-reaching effects for people living in South Africa. Gangsterism cannot simply be cordoned off. It can’t be stopped through aggressive policing. Its causes are complex and multifaceted, and must be addressed through fundamental shifts in government and law-enforcement policy, properly funded and executed community development, and active citizen involvement.

The People versus the Minister of Police

By Jacques van Heerden

ToyToyingAtPeoplesCommission (1)Yesterday, the Constitutional Court dismissed a request by the Minister of Police Nathi Mthethwa and others to hear a direct appeal against the appointment of the O’Regan/Pikoli Commission of Inquiry.

Western Cape Premier Helen Zille appointed the O’Regan/Pikoli Commission to investigate allegations of inefficiency at police stations in Khayelitsha and a breakdown in relations between the Khayelitsha community and members of the Police Service. The court effectively found that the Minister had no valid reasons to appeal and ordered the government to pay the legal costs of the Social Justice Coalition (SJC).

Minister Mthethwa’s lawyers argued that Zille did not have the constitutional right to appoint the commission, that she had done so without meeting her obligations in terms of cooperative governance, and that the terms of the commission were “vague and overbroad”.

A unanimous verdict written by Deputy Chief Justice Moseneke on behalf of the Constitutional Court rejected each of these arguments as “without merit”. The court criticised the minister of police for not engaging with the premier more closely, referring to nine months of “extensive correspondence” between the premier and the provincial commissioner of police, which had occurred with full knowledge of the national commissioner and the minister. They also pointed out that the minister waited until the last minute to seek a remedy, relying on the courts to referee their disagreement without first declaring a dispute, engaging with the premier, or responding directly to the community’s complaints.

The court also expressed concern about the minister’s decision to resort to expensive legal measures rather than engaging with the province or the community. Whereas both the provincial and the national governments’ legal costs are “ultimately sourced from the same public purse”, the only group who need to pay for their own legal representation are the communities.

Justice Moseneke wrote in the judgment, when awarding costs to the SJC: “The Social Justice Coalition is a civil society organisation acting in the public interest. It was one of the parties which lodged the complaints with the Premier. The complaints led to the appointment of the Commission and later to this dispute. It is now undisputed that the nature and scope of the complaints justified the appointment of the Commission. The correspondence between the Minister, Commissioner and Premier, as well as the report of the Police Service task team, show that the complaints are not frivolous and deserve to be tackled. The Social Justice Coalition should not be out of pocket for raising a matter of importance in favour of vulnerable people who are victims of pervasive crime.”

Regarding the minister’s claim that the premier did not have the constitutional authority to appoint the commission, the court found that “the competence to appoint a provincial commission of inquiry into police inefficiency and its alleged dysfunctional relations with any community is part of a constitutionally-mandated scheme through which provinces are entitled to monitor and oversee the police function within their area of remit”.

The Constitution recognises that, although the ultimate responsibility for the police belongs to the minister, provincial authorities such as the office of the premier share responsibility for effective, efficient and visible policing. Even though the province does not have direct control over the policing function, it “has a legitimate interest that its residents are shielded from crime”. Additionally, the provincial commissioner is accountable to the provincial legislature for the state of policing in the province.

As a result, the court also found that it was essential to give the O’Regan–Pikoli commission the right to issue subpoenas, otherwise it would not have the coercive powers required to compel members of the public or government officials to appear before the commission or to compel government bodies and others to provide copies of relevant documents. In the words of Justice Moseneke, “a commission without coercive powers would indeed be unable to fulfil its mandate”.

Although the terms of the commission are narrow, the community’s complaint to Premier Zille raises a wide range of issues. This includes “insufficient visible policing in the community, lack of witness protection, lack of co-ordination between the police and prosecuting services, and poor treatment of victims of crimes” as well as “the routine violation of the rights of the residents of Khayelitsha” and “the impact of high crime rates on residents including children and people vulnerable to discrimination”.

Crime is a complex problem that requires a comprehensive, carefully planned, and well-informed fact-based responses by a wide range of community members, organisations, academics, and community organisations. The O’Regan–Pikoli Commission of Inquiry is only the next step in a campaign for safety and security that has been going on for at least 10 years, and seems set to continue for many more. But it is a crucial step in engaging the communities who are most vulnerable to violent crime, gender-based violence, and other forms of criminal harm.

Originally published in on 02 October 2013

Minister Challenges Commission in ConCourt


By Craig Oosthuizen

Protesting Outside the ConCourt

For well over ten years the Social Justice Coalition, Treatment Action Campaign and other community organisations have been campaigning for safe and secure communities through countless protests, marches and letters of demand. On 6 August 2013 the Social Justice Coalition faced the Minister of Police, Nathi Mthethwa, in the Constitutional Court, defending the appointment of the O’Regan/Pikoli commission of inquiry into policing in Khayelitsha. This follows a decision by the Western Cape High Court dismissing Mthethwa’s application for an urgent interdict to prevent the Commission from proceeding.

In Khayelitsha and around the country, people’s constitutional rights to life, dignity and safety are threatened every day. In Khayelitsha, even walking to the toilet can be dangerous, with poor lighting and long distances leading to many people being robbed or raped. According to SAPS’ official data, in Khayelitsha at least one person is murdered every day and at least two people are raped. Women and children are particularly vulnerable. The actual figures are probably far worse, since the SAPS data only incorporates reported crimes.

Mthethwa’s advocate, Norman Arendse, questioned the Premier’s authority to appoint a commission of inquiry into SAPS; claimed that the terms of reference of the commission are too vague; and challenged the Commission’s power to issue subpoenas to SAPS personnel. The Commission was appointed in terms of section 206(5) of the Constitution, which allows a province to “investigate, or appoint a commission of inquiry into, any complaints of police inefficiency” in order to give effect to section 206(3). Section 206(3) entitles a province to monitor, oversee and promote good relations between the community and the police. Section 127(2)(e) also entitles the Premier to appoint a commission of inquiry.

Arendse argued that the Premier was exceeding her jurisdiction when she appointed the commission of inquiry. Arendse claimed that while the Commission is nominally independent, there is a clear link with the Province and its purpose is to fulfil the functions of the provincial executive. Justice Nkabinde asked Arendse if he agreed that the matters being investigated are of public concern. Arendse replied by insisting that the Commission was attempting to manage and control SAPS, and since SAPS is part of the national government the province should not be allowed to call them to account. Advocate Rosenberg, representing the Western Cape government, responded by saying that the Premier was merely fulfilling her constitutional obligation to appoint a commission, and that the Commission was not trying to exercise control over the police.

Arendse claimed that the terms of reference, or purpose, of the Commission were too broad and undefined. Rosenberg answered by pointing out that the terms of reference are clearly limited to Khayelitsha, to the complaints made to the Premier regarding section 206(3) issues, and to SAPS. The Advocate for the Social Justice Coalition, Hathorn, also contended that the terms of reference were very clearly defined.

According to Arendse, the province was only permitted to oversee and monitor the police, and therefore the Constitution did not foresee a commission with coercive powers, such as the power to subpoena. The purpose of a commission of inquiry is simply to advise, not investigate. Justice van der Westhuizen asked how a commission without power is even thinkable. Adding to that, Justice Moseneke asked Arendse what constitutional “distaste” comes from asking the police to tell their side of the story. Especially since the general understanding is that both courts and commissions issue subpoenas. Arendse countered by pointing out that, since the provincial executive does not have the power to subpoena SAPS, it is illogical that they should be able to appoint a commission with more power than themselves.

Rosenberg’s response was that section 206(5) was designed to give the province teeth, and the power to subpoena gave meaning to that provision. Justice van der Westhuizen asked how subpoenas can be seen as a form of control of SAPS, when they are merely asking for documents and evidence to be produced.

Hathorn referred to the President of the Republic of South Africa v South African Rugby Football Union[1] case. In that case it was held that the President could appoint a commission with coercive powers, where the matter being investigated is of public concern, even though the President does not have the power to issue subpoenas.

Hathorn argued that the Constitutional provision that allows the Premier to appoint a commission mirrors the provision that entitles the President to appoint a commission, and therefore coercive powers are implied. We are dealing with a special constitutional power to confer the Commission with powers the Premier does not have. According to Hathorn, a commission without the power to subpoena would defeat the purpose of section 206(5). Justice Nkabinde questioned how complaints that the police were violating laws based on fundamental rights could be dealt with if the Commission could not subpoena the police.

In his final arguments before the court, Arendse asked that the court set the appointment of the Commission aside. The justices are now deliberating, and will hopefully give a judgement soon.

Nearly 500 members of the community mobilised in both Khayelitsha and outside the Constitutional Court in Support of the Commission. Justice Moseneke reminded the court that this case is about people and their rights. Given the extremely low levels of trust by the community in the police, this commission offers a key opportunity to rebuild that relationship. Nathi Mthethwa should stop wasting tax payer’s money in court and cooperate with the commission.

[1] 2000 (1) SA 1


Private Security: a law unto themselves?

By Craig Oosthuizen

The private security industry in South Africa is one of the largest in the world, with active registered security guards outnumbering police by almost three to one and eight security companies for every police station. 

Over the last few years this industry has drawn public attention, but not always for positive reasons. Images, for example, of security guards beating an elderly lady (suspected of shoplifting) in the back of a store have created a negative impression of the industry. Recent news reports of shootings by security guards have also raised concerns over gun violence and its link to the industry.

It is alarming that many media articles of shootings by private security guards reported that guards were using their personal firearms. The security industry is regulated by the Private Security Industry Regulatory Authority (PSIRA). PSIRA regulations forbid guards from using their own personal firearms while on duty. In 2012 PRISA investigated 106 armed security guards; it found that 19% of them were using their own personal firearms and at least 12% did not have proper training to use them. This is concerning because it increases the risk of injury or death because of improper use of the firearm. It is also a violation of the Firearms Control Act, which stipulates that a firearm can only be issued once the person has received proper training and been issued a competency certificate.

The prevalence of firearms and a lack of proper regulation within the industry are even more worrying when considering the concurrent evidence of criminality. According to PSIRA, 240 criminal cases were reported against members of the industry last year, and 771 cases were still outstanding.

There is currently no publicly available data about when a firearm is discharged by a guard, or on injuries or deaths because of the actions of security guards. By contrast, the police are required to make this information available to the Independent Police Investigative Directorate (IPID), which publishes it annually. Private security guards are increasingly required to perform policing functions, such as making arrests or searching people. This significantly increases their interaction with the public and increases the risk that negligent behaviour will cause injury to members of the public. Therefore, a strong argument can be made for this data to be made publicly available.

Another concern is the possible diversion of firearms from the industry to criminal entities. In a 2003 parliamentary hearing, Eugene Vilakazi (then Director of PSIRA) stated that, because of capacity constraints, firearm licenses are not always cancelled when private security companies de-register. He said that in some cases companies intentionally register and then deregister to obtain licensed firearms.

The Firearms Control Act requires companies that deregister as security providers to inform the Central Firearms Registry of all its firearms and how it will dispose of them. If it fails to do so within ninety days, the police are supposed to confiscate and destroy the firearms. Tracking of firearms was raised in parliamentary questions in 2006 and 2010. Firearms are still slipping through the cracks when companies deregister. No data is currently being made available on the number of firearms being diverted from the private security industry. However, the 2008 Small Arms Survey reported that the loss and theft of firearms from the private security industry is a significant source of firearms for the criminal sector.

The Private Security Industry Regulation Act puts the obligation on PSIRA to make security companies comply with legislation and PSIRA regulations through “active monitoring and investigation.” However, PSIRA itself has serious financial difficulties that constrict its capacity to investigate and monitor security providers. They currently do not receive parliamentary funding, and the revenue comes primarily from annual fees. However, although PSIRA ran deficits of R24 million and R9 million in 2011 and 2012 respectively, the management have consistently given themselves annual pay rises significantly above the rate of inflation. The Director of PSIRA currently earns approximately R120,000 per month, while operational investigators earn approximately R24,000 per month.

These and other factors led parliament to raise serious concerns over wasteful expenditure. In parliamentary hearings in November, the Police Portfolio Committee insisted that PSIRA withdraw its 2011/2012 Annual Report to correct false financial information and agreed to refer PSIRA’s financial situation to SCOPA.

The Private Security Industry Regulation Amendment Bill is currently being tabled in Parliament. This bill should be debated as soon as possible. Although some of the proposed amendments (such as limiting foreign ownership of security providers to 49%) have received widespread criticism, it provides an opportunity to meaningfully develop and enhance regulation in the industry:

The bill would increase the oversight of the Minister of Police over PSIRA by, among other things, requiring that it report to the Minister quarterly.

It would also require the Central Firearm Registry to keep a database of every firearm issued to security providers, which would assist PSIRA to track firearms.

To promote financial accountability, the bill also requires that the annual financial statements be audited by the Auditor-General, and included in the Annual Report.

The private security industry is incredibly well resourced. However, in order for it to promote safety and security, rather than fuelling violence, it must be reformed. The industry must be held accountable to the Constitution, law and PSIRA regulations.

Private security companies, unlike most other private entities, are asked to perform functions that are traditionally within the realm of public services like the police. These actions include making arrests, crowd control, conducting searches and even investigating crime. Increased contact with the public creates more risks of abuse and violence. Private companies are not subject to the same level of oversight or reporting requirements as public entities. Therefore, there are significant risks when delegating policing powers to these companies. When these companies are asked to exercise policing powers, they should be held to the same level of accountability as the police.

Security companies should be required to report misconduct, the number of firearms in their possession, when a firearm is discharged, actions of security guards that lead to death or injury and any other statistics that will assist in ensuring better oversight of the industry. The amendment bill is the first step in this process. Civil society, members of the public and all other interested stakeholders should put pressure on Parliament to push for greater accountability in the private security industry.

Originally published in on 26 June 2013

No reconciliation without social justice

by Zackie Achmat

edited by Brad Brockman 

Reconciliation has not been achieved in South Africa – and it never will be unless we urgently find more truth and justice in the way we are seeking to transform society. Reconciliation does not happen in a single day, nor is it a simple condition. It is a complex process that unfolds over time and must be continually renewed. For this, we are in desperate need of leadership and moral authority, the kind that will inspire people to get involved in the struggle for a better society.

It is now commonly accepted that our country would have had a racial civil war, an inter-ethnic civil war, had the violence of the 1980s split over into the next decade and century. If there had been a political settlement, there would have been sustained violence in the country.

The Honour to Serve_images

Umkhonto we Sizwe

It is important to remember that the apartheid state was under siege, but not defeated. The army and police retained considerable might. By contrast, the ANC’s military wing, Umkhonto weSizwe, was a guerrilla army with no military power. South Africa did not really experience an armed insurrection or even a guerrilla war. Our population is largely urban, so the struggle was very different from those in Vietnam, Algeria or China, which mainly depended on a ‘peasant war’ waged in the rural areas. The state also had the support of Inkatha, the witdoeke (vigilante groups), and police assassination units like Vlakplaas, which did not hesitate to use against anyone who identified with the ANC. The balance of forces favoured the democratic movement led by the ANC. While a white state would never have survived, victory in any civil war would have come at an enormous cost to human life. To avoid this, a political compromise became essential.

With the transition, the Truth and Reconciliation Commission (TRC) offered an essential opportunity for justice for victims of gross human violations. Despite the good work that the TRC managed to do, not enough was done to prosecute apartheid criminals, in particular the top echelons, who refused the generosity of our people. Today we would have been better off if there had been trials for top-level state officials and high-ranking officers in the security forces who did not fully participate in the TRC. Those who did not come clean needed to be put on trial, as happened with the Nazis after the Second World War at the Nuremberg Trials.

Former president P.W. Botha held the TRC in contempt. So too, I would argue, did F.W. de Klerk, all the generals and, much more importantly in my view, big business. Anglo American, Anglovaal, Sanlam, Old Mutual: all failed to do what was necessary for coming clean about their role in apartheid and for doing something to redistribute wealth more equitably. Though I have never since the 1990s advocated the abolition of capitalism, we did miss the opportunity to effect more fundamental changes in overcoming apartheid inequality and its social deficits. This should have been part of the public dialogue preceding the establishment of the TRC. Today, we must seek a path against corporate lalwelessness.5_5_trc_cartoon

As Jeremy Seekings and Nicoli Nattrass point out in their new book on inequality in South Africa, it was not the robbery through land dispossession and cheap wages that constituted the real dispossession of black people; it was what Linda Chisholm had called the ‘intellectual dispossession’ of black people. The wealth that the apartheid state invested in white education is what has allowed most of white society to retain its privilege. There is also admittedly a small minority of black people – a growing minority, but a minority nonetheless – who share in the wealth of white people. Yet, for the majority the greatest dispossession happened as a result of decades of vastly inferior education.

Pass laws, on the other hand, were part of the colonial system of migrant labour. The people essentially responsible for these inhumane laws were mining companies – later also white farmers, but essentially the mining industry – which wanted a supply of cheap labour for the mines. The dreadful consequences of the migrant labour system are well known. It undermined family life and social structure in the rural areas. It destroyed subsistence agriculture, initially through the 1913 Land Act. It ensured that migrant workers were paid a pittance. Harold Wolpe’s analysis showed, for example, how rural women subsidized the profits of the mining industry by having to feed their children while the men were away. Lastly, and probably most importantly, the pass laws criminalised tens of millions of people. That there were 4 million convictions under the pass laws in a ten-year period leads us to ask: how many raids were conducted, how many arrests were made, how many people were arrested two or three times, how many families were disrupted? No one has paid for this: not the mining industry, and not the state.



The worst crime of the post-apartheid era has been the continuing intellectual dispossession of black, particularly African and Coloured, working-class and poor children across the country. The inequalities in education today are greater than under apartheid. This based on a number of things. First, it follows from the partial privatisation of former white (‘Model C’) public schools that was allowed by the charge of excessive fees, which automatically excluded black working-class children. These schools already had established intellectual and physical capital – a well-trained cadre of teachers, laboratories, libraries and large sports grounds – yet they were allowed to charge fees. So today you have in Khayelitsha or Manenberg in Cape Town families unable to afford school fees of R100 or even R50 a year, while in the Southern Suburbs the fees at some government schools are over R17 000 a year. So imagine the disparity.

However the greater inequality subsists in the number of teachers and the quality of their teaching. The majority of teachers in Coloured and African townships today – and I use these racial terms deliberately because they remain realities – have a greater burden in their shoulders than any other former Model c teacher. They have to be a parent for the child who is not looked after at home; they have to be a doctor for the child who comes to school sick; they have to be a social worker for the child who is neglected, physically abused or sexually abused; they have to be a drug counselor and a policeman for the child who is so brutalized that he comes to school with a knife to stab other children or teachers. This is what a township teacher has to do. Moreover, teachers in township schools are often less qualified than their counterparts in the suburbs. Under apartheid the qualification that most African and Coloured teachers had was matric or a three-year teacher’s diploma. A significant minority was barely qualified, with only matric or a Standard Eight plus a teacher’s diploma. Teachers with degrees or postgraduate qualifications were impossible to find in rural and urban schools for the majority of our people.

Another aspect of the intellectual dispossession of our children is language. It is true that the majority of African children have been dispossessed of their mother tongue, first through colonization, and later through Afrikaner nationalism. If children do not learn in their mother tongue, at least for the first six years of their education, conceptualization and capacity for abstract thought are underdeveloped. A study by the Nelson Mandela Foundation and the HSRC found that the majority of teachers cannot teach properly in their mother tongue, because African languages are not standardised. For the majority of African teachers, English is a second language and Afrikaans is a third and stigmatized language. Also, in the majority of communities where people are taught through the medium of English, the community does not speak English, the family does not speak English, and the teachers themselves do not speak English as a first language. What does that do to a people? The question then arises: where is the reparation from big capitalist publishing houses, particularly those once allied to Afrikaner nationalism? Where is their contribution to ensuring that the apartheid deficit in language development is overcome for indigenous black African languages?

So how can we claim that we have reconciled when we condemn the majority of our children to an intellectual dispossession that will make themselves slaves – not only because they cannot read, write and count properly, but because there is no economic future for them in today’s globalised world?

There is nothing to stop the parents at former Model C schools in the Southern Suburbs from saying: ‘Ok, we’re paying R17 000 in fees a year.R6 000 of that should go to an equity fund to build libraries, to build schools and so on.’ Are middle-class parents going to object? Only the odd person will, because the majority will see the value of having every kid in society educated, the value of opening unlimited horizons for a child in Khayelitsha or Manenberg, and the value of building equality in education.

Anglo American, Old Mutual, Sanlam, Anglovaal: these giants that control the economy, that put the wealth of the country into their pockets and leave people destitute of social security, work and healthcare, are enormous danger. They have not yet paid reparation – and reparation for apartheid is essential. There is no way that we can have reconciliation, unless there have been significant reparations – and reparations are not paid to an individual only. There is no reason why all the companies listed on the Johannesburg Stock Exchange, and those that have delisted and gone to America and Britain, should not give two percent of their wealth to an equity fund. This is a reasonable demand. It would allow the state, in addition to the ordinary taxation which we all pay, to address the enormous imbalances that we have inherited. And it would create a sense of unity and social cohesion among all people if it is done properly. It must not be accompanied with finger-pointing, but with an understanding that we all have to invest in the future of the country.

I really believe that it is not only the right thing to do, but it is in every business interest to say: ‘Here’s two percent of our wealth’, and make this ongoing. So whenever money is invested and shares go up, dividends can be paid to the state for education and housing backlogs, public works, job creation, healthcare and social security. But we’ve not had the national leadership that said: ‘Look, this is what happened. We’re not blaming you but this is what happened; it was part of a system. Let’s all fix it together. This is what we’re proposing.’ Thabo Mbeki failed us as a leader in this respect, because what he instituted was a policy of racial nationalism that alienated minorities, particularly white people, and allowed white people to go back into the laager and build a new culture of white supremacism, which says: ‘We don’t care about the rest’, ‘We’ve paid our debt’ and ‘Our children are not responsible for apartheid.’

In a very regrettable article, James Myburgh, for whom I once had enormous respect, wrote that white people, and other minorities as well, have been greater victims of crime than blacks. What people like Myburgh forget is the migrant labour system that destroyed families and social cohesion, the ten years of HIV deaths that weakened the social fabric, and the criminalization of the vast majority of African people by the pass laws simply because they wanted a family life. The difficulty that all of us face now stems from our failure to understand that the whole African population, irrespective of class, was criminalized under apartheid, and did not see the police as an instrument of justice, but as an instrument of oppression. This needs to be considered with the larger problem of social injustice, including the massive unemployment rate and the huge inequality between rich and poor. And as we all know, it is not poverty that cause crime, it is inequality. If I have a cellphone and you have nothing, and your family has been criminalised over generations, what are you going to do? Are you going to have respect for the law? Are you going to see a white or black person as a person, or are you going to see them as someone with something that you want or need? So to argue that whites or coloureds are the greatest victims of crime is not only wrong – the evidence shows that the majority of people affected by crime are African and Coloured working-class and unemployed people – but fails to understand the connection between social injustice and crime.

South Africa has one of the largest public police forces in the world, and also the largest privatised police force in the world. Whom does the privatized police force protect? It protects middle-class and business people like us with alarms, barbed wire and armed response. Yet all of these protections are ignored by the vast majority of white people and all of business.adt_patrols

If you take these things together – the crime situation, unemployment, the education system, the lack of justice for crimes against humanity committed under apartheid – the question we have to ask is: Have we averted a civil war or have we simply postponed it? Unless we address these and other questions, there is no way we are going to avert a civil war. Black men are killing black men at an alarming rate. People have been so brutalized through lack of education and economic opportunity, through dispossession and criminalisation , that they fail to see another person as a human being. Black women and children carry an even greater burden of violence.

What we are seeing now is that violence is shifting from the private to the public sphere. This is manifest in rape in shebeens, women’s skirts being pulled off at taxi-ranks, and black working-class lesbians being targeted for murder. The most extreme example of this violence has been the attack on other African people over the last few years, which resulted in xenophobic pogroms in 2008. What this underlines is that there are serious racial, ethnic and class-based fault lines in society and that poor people are struggling against each other for the limited resources available.

The conflict will continue to expand and eventually it will engulf all of us, unless we take steps to fix our education system, improve social security and make business understand that without social justice, business will not survive, just as people will not survive.

The conscious struggle for social justice and social equality is the most important route to reconciliation. The Constitution, which came out of negotiated settlement, is of enormous benefit to that struggle, but it requires active citizens. In small ways the Treatment Action Campaign, the Social Justice Coalition (which emerged from xenophobic pogroms) and Equal Education are places where non-racialism, freedom, equality and reconciliation are built daily through struggle. After all, here is where I learnt that for a whole generation of children, ‘Die Stem’ – which until this year I never sang – means reconciliation, and not what we used to sing: ‘Uit die blou van Bonteheuwel /Uit die diepte van Diep Rivier /Oor die ver verlaate Distrik Ses /Waar die bulldozers antwoord gee /Ons sal klipgooi tot die einde /Ons Sal opfok tot die end /Ons sal lewe, ons sal sterwe /Ons vir jou, Azania.’

ENDS  2010

Crime and punishment in Western Cape townships

by Jacques van Heerden

“Farce is a tragedy played at a thousand revolutions a minute”

Whether it appears as a book, film, or newspaper article, the basic formula for a detective story is simple: a crime is committed, a detective investigates, and the criminal is identified. One subgenre, the police procedural, focuses on the detective who interviews witnesses, gathers and examines evidence, and follows leads to identify the guilty party.

Similarly, in stories that focus on the justice system, the prosecutor builds and presents a case to the court, based on evidence the police obtained during their investigation. Meanwhile a defence attorney tries to find flaws in the prosecution’s case or alternative explanations for the evidence.

The Task Team report into the state of policing in Khayelitsha, commissioned by the National Commissioner of the SAPS in response to a complaint by a group of NGOs, tells a completely different story. This report focused on “line function activities”, including “attendance of complaints, crime prevention, sector policing and the investigation of crime”. Reading it reveals a story of apathy and incompetence, exacerbated by inadequate training, equipment, support, and accountability.

Crimes are reported but no arrests are made, or suspects are released because of a lack of evidence, sometimes after being held more than 48 hours. Often the police reports do not explain why suspects were arrested in the first place.

Other examples of basic failures of policing listed in the Report:

  • failure to attend to a complaint of two missing teenage girls
  • failure to comply with regulations in terms of domestic violence
  • failure to ensure that a murder docket was at court on a scheduled date/failure to take dockets to court on a scheduled date
  • failure to register dockets, investigate/inspect/check dockets, or present dockets for inspection
  • failure to send charged suspects to court
  • non-compliance to instructions in case dockets
  • wrongful release/escape of suspects

The report also identifies worrying trends about how crimes are investigated. For example, crime scene experts are seldom asked to collect fingerprints or other forensic evidence. Police officers fail to take witness statements or to invite witnesses to look at mug shots. They also fail to ask cell phone companies to track stolen phones and do not circulate the serial numbers of stolen goods.

CSI: Khayelitsha this isn’t.

Meanwhile, “nearly 50%” of criminal cases opened in townships are for possession of pocket knives, which the police wishfully classify as “dangerous weapons”.

These problems are exacerbated by a lack of discipline:

  • failure to report on duty/being absent from work without reason
  • assault
  • failure to carry out lawful orders
  • refusal to assist a complainant
  • shouting at a complainant

The situation doesn’t get much better once the courts are factored in. Most of us are familiar with books and films where someone innocent is accused of a crime and must then be acquitted. Often, the innocent are saved by a dedicated and upstanding attorney, a particularly enterprising jury member, or a last-minute plot twist. Sometimes a criminal goes free, but that is the price people pay for a justice system that prefers to err on the side of caution: better to let a hundred criminals go free rather than send one innocent person to jail.

By contrast, the residents of the townships seem to live in a dystopia where all these assumptions have been overturned and where the justice system has more in common with Kafka’s The Trial than with Twelve Angry Men.

In The Trial, Josef K. is arrested but is never told what the charge is, who accused him, or what evidence there is against him. No one ever explains how the courts or the justice system work, no one explains any laws, and even though he is sure he has never committed a crime he is punished by death. Justice in this world is a confusing and intimidating bureaucratic hell.

According to the Report, cases arising from the townships are often thrown out of court because police fail inform witnesses about the hearings. Most cases “are settled otherwise than as guilty”, in which case the accused are referred to rehabilitation programs. This, together with the inflated number of arrests due to the activities of the “pocket knife” police, still qualifies as a success in terms of the SAPS’s official performance figures. But should this be enough?

Even in cases where investigations were declared to have been “properly investigated”, convictions can still take years. In one case of assault, rape, and murder, it took five years to get a conviction. The two suspects received sentences of 10 years (3 years suspended) and 8 years (3 years suspended). In another case, a man was stabbed to death in 2002. Ten years later the case is still in court.

There are many different ways to tell detective stories or courtroom dramas, and there are many variations on the basic formula, but the question of innocence is crucial to all of them. There are many reasons why it is important to ensure that the right people are prosecuted and sentenced for crimes they committed, that crime is kept to a minimum, and that everyone who works for the police and the justice system is competent and accountable. Similarly, crime and punishment need to go hand in hand because unless criminals are caught and punished, unless crime has some kind of consequence, there is no reason it will stop.

John Mortimer wrote that “Farce is tragedy played at a thousand revolutions per minute.” In other words, if something appalling happens once, it is tragic, but if it keeps happening it turns into a farce. Regardless of what happens to the Commission of Inquiry into policing, for too many people living in townships across the Western Cape, the police and justice system is too much of both.

There will always be crime and no one would suggest that it is possible to eradicate completely. But the breakdown in the police system in informal settlements has reached a point where all semblance of law and order is a fiction: no justice system can tolerate such levels of vigilantism, corruption, and lack of accountability. These problems have persisted for much too long, and they require urgent action and reform. The residents of these communities are still waiting for justice.

*This article first appeared in the Cape Times, 18 December 2013