Statements on police criminality from the IPID website

WARRANT OFFICER TO APPEAR IN COURT FOR RAPING A 13 YEAR OLD GIRL IN MAMELODI EAST, PRETORIA

Media Statement
14 May 2013
A 48 year old Warrant Officer, stationed at Mamelodi East SAPS will appear at the Mamelodi West Magistrate’s Court on 14 May 2013 following his arrest for raping a 13 year old minor.
It is alleged by the complainant (13 year old girl) that on 28 April 2013 at about 17:00 she was at her place of residence when the suspect, who is a sector manager at SAPS Mamelodi East, arrived at her place to collect her. Earlier that day the victim’s guardian had called the CPF members to talk to the complainant for refusing to do any chores in the house. The girl did not respond positively to the CPF members, so they called the sector manager for assistance. The sector manager (suspect) arrived at 17:00 and took the girl in a police vehicle – he gave the victim’s family the impression that the victim was going to be handed over to a female officer. He took her to a KFC and bought her a meal and then he took her to his house where he kept her for the night and raped her. He dropped the victim off at home the next morning.
The victim did not tell anyone due to having been threatened by the suspect. The next evening after 17:00 the suspect again took the girl to his house. As he was preparing to rape the girl, she managed to escape after asking to go to the toilet. The victim reported a case of rape with the assistance of other police officials who had picked her up on the road. The case was reported to the IPID which took over the investigation.
After absconding for about a week, the suspect handed himself in at Brooklyn SAPS. He appeared in court on 07 May 2013 facing a charge of rape and was remanded to 14 May 2013 at Mamelodi Court B at 12:00 for a formal bail application. The IPID will oppose bail.
Upon conducting further investigations it was established that this suspect has two child rape cases pending at Kwamhlanga and Mamelodi East. The victims in the two pending were also minors aged 12 and 8 respectively and he was given bail on both matters.
Issued by the Independent Police Investigative Directorate
For enquiries:
IPID National Spokesman
Moses Dlamini
082 809 1927

WARRANT OFFICER MARATSHANE TO BE PROSECUTED FOR ASSAULTING A FEMALE AT A FILLING STATION IN SMITHFIELD, FREE STATE

Media Statement
PRETORIA – 13 June 2013
The Director of Public Prosecutions (DPP) in the Free State has agreed with the recommendations of the Independent Police Investigative Directorate (IPID) that Warrant Officer Ernest Maratshane should be prosecuted for assault. The DPP has decided that the suspect be prosecuted for two (2) counts of assault with intent to cause grievous bodily harm (GBH).
Video footage of the assault emerged early in April 2013 from the media. The IPID conducted an investigation and recommended that the suspect be charged for the offences which took place at the filling station and at the police station.
Since the victim refused to co-operate with the investigation, the DPP has decided that she is a compellable witness.
Warrant Officer Maratshane will be summoned to appear at the Smithfield Magistrate’s Court on 04 July 2013 to answer to the aforesaid charges.
Issued by the Independent Police Investigative Directorate

IPID ARREST MAITLAND FLYING SQUAD CONSTABLE FOR MURDER, WESTERN CAPE – MFULENI CAS 298/06/2013

Media Statement
PRETORIA – 10 June 2013
The Independent Police Investigative Directorate (IPID) has arrested a 30 year old male constable for the murder of a 26 year old Zimbabwean national. The suspect constable who is attached to the Maitland Flying Squad Unit is alleged to have shot and killed the deceased with his official firearm in the early hours of Sunday, 09 June 2013.
It is alleged that at about 02h00 on 09 June 2013, the suspect constable was outside Zizi’s Tavern in Mfuleni Extention 6, where he wanted to buy alcohol, but was told that the tavern had already closed. An argument between him and the deceased, who was working as a security officer (guard) at the tavern ensued. The policeman alleges that the deceased pulled a knife and threatened to stab the policeman who then fired shots with his official firearm hitting the security guard on the shoulder. The security guard died on the scene.
Upon being notified of the incident, the IPID attended the scene and started with the investigation. Preliminary investigation and witnesses statements obtained by the IPID does not corroborate with the version of the policeman, hence the arrest of the suspect constable for murder on 09 June 2013. He will appear in the Bluedowns Magistrate Court on Tuesday, 11 June 2013. The Post Mortem is scheduled for today, 10 June 2013 at Tygerberg Forensic Pathology Services.
The investigation continues.
Issued by the Independent Police Investigative Directorate
For enquiries:
IPID National Spokesman
Moses Dlamini
082 809 1927

CONSTABLE ARRESTED FOR MURDER IN RANDFONTEIN, GAUTENG

Media Statement
PRETORIA – 27 May 2013
A 30 year old Constable has been arrested by the Independent Police Investigative Directorate (IPID) for shooting and killing a 22 year old Tshwane University of Technology (TUT) student, Gopolang Ngobeni. The shooting occurred at a Caltex Garage on Randfontein Road in Randfontein.
It is alleged that on 25 May 2013 five students from TUT were on their way to the funeral of the father of their friend in Mohlakeng in the West Rand. The students had travelled from the TUT Soshanguve Campus. Apparently the students did not know the direction and they got lost. They then followed a security vehicle which had come in front of them. After the security vehicle made a U-turn at a cul-de-sac, the students also made a U-turn. While driving towards a Caltex Garage with the intention of asking for directions, another security vehicle from the same company cut in front of them. Both security vehicles stopped next to a marked SAPS vehicle. The students drove on to the filling station. It is alleged that within a short space of time, the police vehicle (with its blue light on), as well as the security vehicles, followed the students to the filling station, which is near where they were.
The students were ordered to get out of their vehicle by the police. While trying to get out of the vehicle, Gopolang Ngobeni was shot by a policeman with an R5 rifle. The victim was declared dead at the scene. The vehicle in which the students were travelling was searched and nothing illegal was found.
The suspect was arrested by the IPID. He appeared on 27 May 2013 at the Randfontein Magistrate’s Court on a charge of murder. The case has been postponed to 3 June 2013 for a formal bail application.
The investigation continues.
Issued by the Independent Police Investigative Directorate.
For enquiries:
IPID National Spokesman
Moses Dlamini
082 809 1927

Press Alert: CAMPAIGN FOR SAFE COMMUNITIES TO DELIVER MEMORANDUM AGAINST POLICE BRUTALITY AND CORRUPTION

Download the press release here.

 

The Campaign for Safe Communities is a broad-based coalition advocating for improved safety and access to justice for all. The Campaign condemns in the strongest terms any instance of police brutality and corruption.

The horrific visuals of Mozambican taxi driver Mido Macia being hand cuffed to a police vehicle and dragged through the streets of Daveyton have outraged people across South Africa and the world. SAPS officers were so brazen as to commit these acts in front of hundreds of members of the public.

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It is alleged that Macia, who had a wife and young son, was then taken to the police station and savagely beaten by SAPS officers. Hours later he died from horrific injuries having received no medical attention.

 Sadly, instances of police brutality have become commonplace in South Africa. The images of Andries Tatane and Marikana have been burned into our national consciousness while there are daily reports of criminal behaviour perpetrated by the police. Shockingly, in 2011/12 more than 900 people died as a result of police action or in police custody.

It is recognised that the police and the criminal justice system are overburdened and under-resourced and that this has an enormous impact on the ability to provide safety and justice. However, instances of police brutality and corruption are unacceptable. Officers who stand by while their colleagues break the law are equally complicit.

The police maintain that because the service has approximately 200,000 members there will always be some ‘rotten applies’. But it is the responsibility of police leadership and management to ensure that officers are properly vetted, receive adequate training, are continuously assessed, and that tough action is taken against police who themselves are criminals. Officers who commit crimes very often go unpunished – of the 217 people who died at the hands of the police in Gauteng last year, there has only been one conviction.

On Monday 11 March, the Campaign for Safe Communities will be delivering a memorandum to the Portfolio Committee for Police at Parliament calling for strong action to be taken against police who break the law. For trust and faith to be restored in the police this is imperative.

We will be leaving Ndifuna Ukwazi’s offices (47 on Strand) at 12:00, walk via St. George’s Mall and arrive at Parliament at 13:00 to meet Annelize van Wyk and hand over the memorandum.

Members of the public and the media are invited to attend.

For inquiries please contact:

Axolile Notywala   (mobile) 0742895220

(email) axolile@sjc.org.za

For documents related to the Campaign for Safe Communities please visit safecommunities.sjc.org.za

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.

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S.A.C.S

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

MINISTER OF POLICE AND SAPS APPEAL TO CONSTITUTIONAL COURT TO STOP O’REGAN/PIKOLI INQUIRY – WASTEFUL ABUSE OF PUBLIC MONEY

On 14 January 2013, the Western Cape High Court dismissed with costs an urgent interdict by Minister of Police Nathi Mthethwa and SAPS to stop the O’Regan/Pikoli Commission of Inquiry (CoI). The Court accepted that the Social Justice Coalition (SJC), the Treatment Action Campaign, Equal Education, Triangle Project and many other partners campaigned for “ten years against the ever deteriorating and despairing conditions of criminal activity and impunity in the greater Khayelitsha area”.

On 28 January 2013, Minister Mthethwa and SAPS decided to appeal to the Constitutional Court. As the court battles continue lives are lost, women continue to be raped and school gangs terrorise the people of Khayelitsha. On 1 February 2013, the Minister of Police and SAPS released a statement that illustrates an arrogant contempt for the public and victims of crime. The SJC unequivocally condemns the waste of public money by the Minister of Police and SAPS represented in this case by four advocates including two senior counsel.

Background

Over an entire decade the national SAPS Ministers and Commissioners have ignored the pleas of people and organisations in Khayelitsha. After almost two years of pressure Premier Helen Zille agreed to establish the O’Regan/Pikoli CoI on 22 August 2012. The CoI is investigating allegations of police inefficiency and a breakdown in relations between the SAPS and the Khayelitsha community.
Premier Zille attempted for about six months to get a decent response from the SAPS. Commissioner Mangwashi Riyah Phiyega was the first person to attempt to deal with the issues but after a good start basically failed to report on progress of her internal investigation. As the CoI was about to commence its public hearings where people would speak about their experiences of crime and safety, the police stopped the hearing with a court application. They failed.

On 28 January 2013 the SAPS lodged an application with the Constitutional Court requesting leave to appeal against the High Court decision. In court papers, SAPS again argue that the CoI was unlawfully established and that its operation will undermine the ability of the police perform their job.
The Minister and SAPS have placed much weight on the fact that the Court was divided. In a majority decision Justice James Yekiso found that a province had the constitutionally mandated power to establish a commission of inquiry into policing and that Premier Zille acted rationally based on the information available to her at the time. Justice Vincent Saldahna dissented and suggested that the Premier, Minister and Commissioner of Police attempt to negotiate a settlement in the interest of the people of Khayelitsha.

Everyone has the right to appeal to a higher court to resolve a matter but SAPS knows that the Western Cape High Court has not finally decided the matter. Regrettably, Minister of Police Nathi Mthethwa has decided to deliberately delay the CoI and to waste public money.

SAPS statement on appeal to Constitutional Court misleads the public

A statement issued by SAPS on 1 February 2013, disingenuously states that, “The Minister (Mthethwa) believes that it would not be coherent or useful to have two enquiries functioning at the same time to consider the same complaints”.

The two investigations referred to here are the O’Regan/Pikoli CoI and an investigation proposed by the SAPS that was only tabled after the O’Regan/Pikoli CoI had been set up. When the SJC requested clarity on the terms of reference of the police’s proposal, they failed to respond. The press release suggests that police were ready and willing to establish an independent body that would essentially perform the task of the O’Regan/Pikoli CoI. This is not the case.

Rather, the Minister has done his utmost to see that independent investigation does not take place. It must be remembered that they ignored requests for substantive responses to this process for more than half a year after we lodged our formal complaint in November 2011. We learnt from the Court papers for the first time that Commissioner Phiyega wanted to establish an independent panel. However, this was not communicated by Minister Mthethwa who proposed an “internal investigation” and then if necessary an independent review.

It is time that the police stop wasting public money to challenge this process – one that was established with the key objective of improving levels of and access to safety and justice for people living in Khayelitsha and at the same time, assisting police to perform their jobs more effectively. The SJC is a respondent in this matter and we will be opposing the Constitutional Court application. It is imperative that the CoI be allowed to continue its work – with the cooperation of the SAPS, all government departments responsible for the provision of safety and justice, as well as the City of Cape Town.

The crux of the matter must not be forgotten. The O’Regan/Pikoli CoI is about the rights to life, safety, freedom from harm and access to justice. The police’s application to the Constitutional Court only further delays the vital contribution that the CoI will make to improve lives in Khayelitsha and beyond.

[ENDS]

For enquiries please contact:

Axolile Notywala

(mobile) 0742895220
(twitter) xila_notywala
(email) axolile@sjc.org.za

Phumeza Mlungwana

(mobile) 0744178306
(email) phumeza@sjc.org.za

The police application to the CC is available online at http://safecommunities.sjc.org.za/resources/. Other documents relating to the CoI and the High Court case are available online at http://www.nu.org.za/coi.

University of Cape Town and University of Stellenbosch support Khayelitsha Commission of Inquiry

Statement from the University of Cape Town and Stellenbosch University on the breakdown in relations between the police and the Khayelitsha community

It is deeply troubling that residents of Khayelitsha fear leaving their homes at night as a result of on-going violence and intimidation. Of concern too, is that despite the Khayelitsha community having campaigned for the improvement of the quality of policing services over several years, very little has been done to assuage their concerns. As universities, we are committed to the development of individuals, through knowledge, to their fullest potential. Violence, its effects and the fear of violence are an enormous hindrance to human development. It is for these reasons that we have decided to issue this statement.

Khayelitsha has one of the highest levels of violent crime in the country, particularly murder and attempted murder. And, uncontroversially, crime is a far more pervasive threat for those living in crowded, impoverished, poorly serviced informal settlements of which Khayelitsha is typical compared to more affluent areas. Without adequate roads, lighting or safe transport, the residents of Khayelitsha are more vulnerable to social contact crime than those South Africans who enjoy such amenities. Moreover, the residents of this community are largely unemployed and thus dependent almost entirely on the provision of government protection, welfare and services.

The South African government has an obligation to protect members of the public from violations of their constitutional rights. In respect of policing, there is a specific constitutional duty on the South African Police Service (SAPS) to “prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.” Notably, in S v Walters, the Constitutional Court stated:

“Police officers do not have a discretion to fulfill these obligations if theywish – it is their duty to do so. They are always entitled and often obliged to take all reasonable steps…to carry out their duties.”

In addition, section 12(1)(c) of the South African Constitution states that everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. South African courts have recognized that freedom from violence is fundamental to the equal enjoyment of human rights and fundamental freedoms. There is thus a duty on the state and all of its organs not to perform any act that infringes these rights and, in certain circumstances, also a positive component, which requires the state to provide appropriate protection to everyone through legislation and policing structures.

Given the acknowledged level of dysfunction at the Khayelitsha police stations by both the SAPS and the Auditor-General, the unabating levels of violence, and the obvious dissatisfaction amongst residents with the standards of policing, the government’s failure to deliver any form of integrated solution to the policing problem is cause for deep concern. For as long as Khayelitsha continues to be affected by extreme violence and an ineffective responses from government, community members will continue to have their rights to life, security and bodily and psychological integrity violated on a daily basis.

Therefore, given the fundamental nature of the rights and duties of the South African government enumerated above, we urgently call for measures and processes that will improve police effectiveness, reduce violence and restore the breakdown in relations between the community and the police in Khayelitsha. As a first step, it is imperative that the state of policing in Khayelitsha be impartially and independently investigated, and that recommendations of this investigation be promptly implemented. It is essential that this investigation be supported by all levels of government, and be based on sound constitutional principles and that it aspires, ultimately to:

- help build a community free from violence and crime,
- ensure that the police service acts in accordance with the constitution and the law and
- ensure an open, accountable, ethical and efficient government that eradicates, condemns and punishes corruption.

 

POLICE MINISTER NATHI MTHETHWA “HOPELESSLY UNRESPONSIVE” TO SERIOUS CRIME IN KHAYELITSHA

15 January 2013

STATEMENT:

POLICE MINISTER NATHI MTHETHWA “HOPELESSLY UNRESPONSIVE” TO SERIOUS CRIME IN KHAYELITSHA

Judges say O’Regan Commission of Inquiry into SAPS must go ahead

On Monday 14 January 2013, the Western Cape High Court dismissed Minister of Police Nathi Mthethwa and the South African Police Service’s (SAPS) urgent attempt to stop the O’Regan Commission of Inquiry (CoI) from continuing its work. The order was made with costs and SAPS has to pay the respondent’s legal fees.

Both the majority and minority judgments of the Court vindicate the rights of people living and working in Khayelitsha under threat of extreme violence and crime. The High Court judgments also vindicate the work of the Social Justice Coalition (SJC), Treatment Action Campaign (TAC), Equal Education (EE), Triangle Project (TP) and Ndifuna Ukwazi (NU) over a ten year period.

The CoI is free to continue its investigations and hearings until the second part of Minister Mthethwa’s case is heard. The Court will have to see more evidence and hear more argument from the SAPS and our organisations before making a final judgment.

Minister Mthethwa and SAPS are studying the judgments and deciding whether they will appeal. They have until 28 January 2013 to do so. Our organisations urge SAPS to accept the findings of the Court and to co-operate with the CoI. Similarly, we urge Minister Mthethwa not to pursue the second leg of the case to have the entire CoI set aside because it is unlikely that the police will win. It will also further delay the work of the CoI and waste more money in legal fees.

We further demand that the Minister of Police secures Cabinet approval for the Departments of Justice and Constitutional Development and Correctional Services to work with the CoI.

We also urge Premier Helen Zille and Mayor Patricia de Lille to ensure the fullest co-operation of the City of Cape Town and all other provincial departments with the CoI.

We want a plan to make Khayelitsha safe – to ensure that it has a functional and professional police service and a prosecutorial and court system that punishes crime and delivers justice. By learning from the work of this Commission government can work with all communities to make South Africa safe for all the people who live in our country.

Our organisations are naturally pleased with the outcome of this case and the CoI is now legally permitted to continue. However, this is a matter that should never have ended up in court. The decision taken by the SAPS in November 2012 to challenge the legality of the CoI has cost taxpayers millions or rands. It has also delayed the CoI’s work. Khayelitsha continues to experience extremely high levels of crime and violence and its police and criminal justice system remain overburdened and under-resourced. Any delay of a process aimed to address these issues is extremely problematic and worrying – especially when the cause of the delay is government itself.

The Social Justice Coalition, Treatment Action Campaign, Equal Education, Triangle Project and Ndifuna Ukwazi express our immense gratitude to our legal team. In particular, we express our thanks to Advocates Peter Hathorn and Ncumisa Mayosi for providing sound legal advice, leadership, and meticulous attention to detail to ensure that people in Khayelitsha continue taking steps to ensure safety in their community as a precursor to safety and justice for all people across South Africa. We also wish to thank the Women’s Legal Centre, our attorneys who were slandered by the Minister of Police and his legal team. In particular, we wish to thank Sanja Bornman our attorney.

A range of people, organisations, and institutions in Khayelitsha and across the country made this small but significant victory for the O’Regan/Pikoli Commission and to achieve safety and justice for all possible.

Last, the court recognised that our members and staff together with Khayelitsha residents have now struggled against murder, rape, hate crimes, assaults, and robbery for more than a decade. Their dedication and courage brought the O’Regan/Pikoli Commission into SAPS in to existence and successfully defended it.

A brief analysis of the judgments is included below.
[ENDS]

For enquiries please contact:
,
Phumeza Mlungwana (mobile) 0744178306 (email) phumeza@sjc.org.za

Axolile Notywala (mobile) 0742895220 (twitter) xila_notywala (email) axolile@sjc.org.za

“The ever deteriorating and despairing conditions of criminal activity and impunity” – Minister of Police and Others v Premier of Western Cape and Others Western Cape High Court, Cape Town — Case No: 21600/12 14/01/2013

Justice James Yekiso’s majority judgment accepts that the CoI’s work must study the “alleged systemic failure of the police in Khayelitsha to prevent, combat, and investigate crime, take statements open cases and apprehend criminals”. He accepted the fact that the SJC, TAC, EE, TP and NU complained about “the widespread inefficiency, apathy, incompetence and systemic failures of policing routinely experienced by Khayelitsha residents”. Deputy Judge-President Jeannette Traverso agreed with Justice Yekiso and they dismissed the application by Minister Mthethwa and SAPS with costs.

Justice Vincent Saldanha wrote a dissenting minority judgment which would have forced the parties to try and reach a compromise by 31 January 2013. He stated that he and his colleagues were “extremely mindful of the desperate conditions that the community of Khayelitsha live in, with extreme levels of crime, poverty and inequality”. Justice Saldhana cited one and a half pages of the SJC’s founding affidavit by Mandla Majola which in summary stated:

This issue does not relate to… the political sniping and barbs exchanged between the Premier and the First Applicant (“the Minister”). Ultimately, this case is about the appalling level of crime experienced by residents of Khayelitsha on a daily basis. ….

The SJC submits that this case must in the first instance address the state’s duty to respect, protect, promote and fulfil, among others, the rights to life, dignity, freedom and security of the person, equality, privacy and the best interest of children. A criminal minority terrorises people living and working in Khayelitsha day and night, but we believe that this case must also take into account the constitutional rights of arrested, detained and accused persons.

While I and the other deponents on behalf of the SJC are often critical of the Applicants, we would far prefer to be working together with them, and the other parties, in addressing the circumstances of people living in informal settlements in Khayelitsha who are too scared to go out to the toilet at night or residents who are struggling to come to terms with the shock of having been robbed or raped without the benefit of counselling or institutional support.

Justice Saldanha accepts that our organisations campaigned for “ten years against the ever deteriorating and despairing conditions of criminal activity and impunity in the greater Khayelitsha area”. He found that Minister Mthethwa and Provincial Commissioner Arno Lamoer’s “interactions with the community” of Khayelitsha and our organisations “was hopelessly unresponsive”. However, he believed that the Premier and our organisations should have written another letter to Commissioner of Police General Mangwashi Phiyega.

Regrettably, Justice Saldanha fails to acknowledge that our organisations not only fully co-operated with the SAPS Task Team and granted the Commissioner an extra extension. He ignores the fact that we wrote two letters inviting her to meet with our organisations and the community but she failed to even acknowledge our letters.

Justice Yekiso (Deputy Judge-President agreeing) found that the Premier had acted lawfully and within her constitutional powers in setting up the Commission of Inquiry into SAPS Khayelitsha on 22 August 2012.

On the basis of the evaluation of the evidence …I cannot find that a case has been made. … that the Premier, in establishing the Commission in the manner she did, violated any one of the provisions relating to the principles of co-operative governance and inter-governmental relations as set out in Section 41 of the Constitution; that the Premier misconstrued her powers arising from the provisions of section 206(5)(a) of the Constitution; or that in the period prior to the establishment of the Commission and at the time she established the Commission itself, the Premier violated any one of the provisions relating to the basic values and principles governing public administration as set out in section 195 of the Constitution. It therefore follows that the applicants’ claim for interim relief, derived as they are from the Constitution, ought to fail.

Justice Saldanha would have ordered the Minister, SAPS and the Premier to negotiate and reach a settlement within two weeks. Justice Saldanha correctly held that:

In dealing with such issues it could only be in the best interests of all concerned and more importantly the community of Khayelitsha and in particular the victims of crime that there be the fullest possible cooperation between these two spheres of government and in their compliance with their constitutional obligations.

Justice Saldanha also hoped that the SJC, TAC, EE, Triangle Project and NU would co-operate with all spheres of government stating that “more importantly none of them should compromise their independence in doing so”.

Meaningful engagement between all spheres of government, organisations, and communities (not conflict) has always been the primary objective of our organisations. In the struggle against crime only such meaningful engagement and co-operation will realise the rights to life, dignity, security of the person, including freedom from all sources of violence whether private or public. We call for meaningful engagement by all parties with the O’Regan/Pikoli Commission of Inquiry into policing and safety in Khayelitsha.

UMPHATHISWA WAMAPOLISA UNATHI MTHETHWA: AKAPHENDULI KULWAPHULO-MTHETHO OLUNZIMA EKHAYELITHSA: Iijaji zithi Iqela Eliphandayo lika O’Regan kwi SAPS maliqhubekeke

COIprotest.Hcourt6

 

Ngo Mvulo 14 ka Januwari 2013, Inkundla Yamatyala Ephakamileyo yaseNtshonalanga Kapa izikhabile iinzame zoMphathiswa wamaPolisa uNathi Mthethwa neNkonzo yamaPolisa oMzantsi Afrika (SAPS) zokumisa Iqela Eliphandayo lika O’Regan ekuqhubekekeni nomsebenzi walo. Isigqibo senziwe neendleko, oku kuthetha ukuba iSAPS kufuneka ibhatele iindleko zomthetho zabamangalelwa.

Zozibini izigwebo zeNkundlka, esesininzi nesobuncinane zingqinela amalungelo abantu abahlala nabasebenza eKhayelitsha besoyika ubundlobongela nolwaphulo-mthetho olugqithiseleyo. Isigwebo seNkundla ePhakamileyo sikwangqinela nomsebenzi ka Social Justice Coalition (SJC), Treatment Action Campaign (TAC), Equal Education (EE), Triangle Project (TP) ne Ndifuna Ukwazi (NU) kwisithuba seminyaka elishumi.

Iqela eliphandayo livumelekile ukuqhubeka nophando nemihlangano yalo de kuviwe icala lesibini letyala likaMphathiswa uMthethwa. INkundla kuyakufuneka ive obunye ubungqina obusuka kwi SAPS nakwimbutho yethu ukuze yenze isigwebo esigqibeleleyo.

UMphathiswa uMthethwa neSAPS basafunda isigwebo ukuze bagqibe ukuba bazakubhenelela isigwebo kwaye banexesha eliphela nge 28 Januwari ukwenza oko. Imibutho yethu ibongoza iSAPS ukuba isamkele isigwebo seNkundla kwaye isebenzisane neqela eliphandayo. Ngokufanayo, sibongoza uMphathiswa uMthethwa ukuba angaqhubekeki nesigaba sesibini selityala sokubeka iqela eliphandayo bucala ngoba akubonakali ngathi amapolisa angaliphumelela. Oku kuzakuphinda kulibazise umsebenzi weqela eliphandayo kwaye kumoshe enye imali eninzi kwiindleko zomthetho.

Sikwafuna ukuba uMphathiswa afumane imvume yeKhabhinethi ukuze iSebe lezoBulungisa noPhuhliso loMgaqo-siseko kunye nenkonzo yezoLuleko isebenze neqela eliphandayo.

Sikwabongoza iNkulumbuso uHelen Zille noSodolophu uPatricia de Lille ukuba baqinisekise ukusebenzisana okugqibeleleyo kwesiXeko saseKapa nawo onke amanye amasebe ephondo neqela eliphandayo.

Sifuna icebo lokwenza iKhayelitsha ikhuseleke – ukuqinisekisa ukuba inesebe lobupolisa elisebenzayo kunye nomgaqo wenkundla notshutshiso owohlwaya izaphuli-mthetho uzise ubulungisa. Ngokufunda kulomsebbenzi weliqela urhulumente angasebenza nazo zonge iindawo ukwenza uMzantsi Afrika ukhuseleke kumntu wonke ohlala esizweni sethu.

Imibutho yethu ikholisekile yimiphumela yelityala kwaye iqela eliphandayo ngoku livumelekile ngokusemthethweni ukuba liqhubekeke. Kodwa, lo ngumba obekungafanelanga ukuba ufikelele enkundleni. Isigqibo esithathwe ngamapolisa ngoNovemba sokuphikisa ukuba semthethweni kweqela eliphandayo kuxabise umrholi-rhafu izigidi zeerandi. Ikwalibazise nomsebenzi weqela eliphandayo. IKhayelitsha iyaqhubekeka ukuba namazinga  akumgangatho omkhulu kakhulu olwaphulo-mthetho nobundlobongela kwaye namapolisa alapha nomgaqo wobulungisa wolwaphulo-mthetho ushiyeka usindeka kwaye ungenazixhobo. Ukulityaziswa kwenkqubo ezama ukulungisa ezizimo kuyingxaki enkulu kwaye kuyakhathaza – ingakumbi unobangela wokulityaziswa ingurhulumente buqu.

[IYAPHELA]

Ukuba unemibuzo nceda uqhagamshelane no:

Axolile Notywala

(mobile) 0742895220

(twitter) xila_notywala

(email) axolile@sjc.org.za

Phumeza Mlungwana

(mobile) 0744178306

(email) phumeza@sjc.org.za

 

INQAKU NGESIGWEBO

Isigwebo sesininzi sika Justice James Yekiso siyavuma ukuba umsebenzi weqela eliphandayo mawujonge “ukutyholwa kokungasebenzi ngendlela komqago wobupolisa eKhayelitsha ekunqandeni, ekulweni, nasekuphandeni ulwaphulo-mthetho, ukuthatha iintetho, ukuvula amatyala nokubamba izaphuli-mthetho”.Uvumile ukuba uSJC, TAC, EE, TP no NU bakhalazele “ukungasebenzi ngendlela okubanzi, ukungakhathali, ukungalungeli umsebenzi nokungasebenzi kemigaqo yamapolisa esoloko ibonwa ngabahlali baseKhayelitsha”. Isekela lika Mongameli oyiJaji uJeannette Traverso uvumelene no Justice Yekiso baze basikhaba isicelo sikaMphathiswa uMthethwa ne SAPS sihamba neendleko.

UJustice Vincent Saldanha ubhale isigwebo sobuncinane esiphikisayo ebesizakunyanzelisa lamaqela ukuba azame ukufikelela kwisivumelwano phambi kwe 31 Januwari 2013. Uveze ukuba yena nabalingane bakhe “baxhalabe kakhulu yindlela embi abahlali baseKhayelitsha abaphila kuyo, namazinga aphezulu olwaphulo-mthetho, indlala nokungalingani”. uJustice Saldanha ucaphule iphepha elinye elinecala le affidavit ka SJC ebhalwe nguMandla Majola encitshiswe ngoluhlobo:

Lo mba awuyelelenanga kwimpixano yobupolitiki evele phakathi kwenkulumbuso nommangali wokuqala (“uMpathiswa”). Ekugqibeleni, elityala liveza amaqondo anxunguphalisayo olwaphulo-mthetho afunyanwa ngabahlali baseKhayelitsha mihla le….

USJC uxela ukuba elityala maliqale ngokujonga umsebenzi karhulumente wokuhlonipha, akhusele, anyusele afezekise, kwamanye, amalungelo obomi, isidima, inkululeko nokhuseleko lomntu, ukulingana, imfihlo neemfuno zabantwana. Ubuncinane bezaphuli-mthetho budandathekisa abantu abahlala nabasebenza eKhayelitsha busuku nemini, kodwa sikholelwa ukuba elityala malithathele ingqalelo namalungelo akumgaqo-siseko abo babanjiweyo, baselugcinweni nabantu abathyolwayo.

Nangona mna namanye amangqina kaSJC sisoloko sigxeka Abamangali, singathanda ukuba sikhethe ukusebenzisana nabo, kunye namanye amaqela, ekulungiseni iimeko zabantu abahlala ematyotyombeni aseKhayelitsha aboyika ukuya kwizindlu zangasese ebusuku okanye abahlali abangakwaziyo ukumelana nokuhlala bekhuthuzwa okanye bedlwengulwa bengafumani macebiso okanye inkxaso yamaziko athile.

 UJustice Saldanha uyavuma ukuba imibutho yethu ibikhankasa “isithuba seminyaka elishumi ikhankasela isimo esinyukayo nesingathembisiyo kwizenzo zolwaphulo-mthetho nokungohlwaywa kwingingqi yaseKhayelitsha”. Ufumanise ukuba iindibano zabahlali baseKhayelitsha noMphathiswa uMthethwa noMkhomishinala uArno Lamoer nemibutho khange ibe namiphumela”. Kusenjalo, ukholelwa ukuba iNkulumbuso nemibutho yethu ngeyibhale enye ileta eya kuMkhomishinala wamaPolisa uGeneral Mangwashi Phiyega.

Ngosizi, uJustice Saldanha akayivumi into yokuba imibutho yethu ayiphelelanga nje ekusebenzisaneni neTask Team ye SAPS yaze yanika uMkhomishinal ixesha elongezelelweyo. Akayinaki inyani yokuba sibhale iileta ezimbini simema yena ukuze adibane nathi kunye nabahlali kodwa zange akwazi nokuvuma ukuba uzifumene iileta zethu.

UJustice Saldanha ebezakuyalela uMphathiswa, iSAPS kunye neNkulumbuso ukuba bathetha-thethane ngesigqibo kwiiveki ezimbini. UJustice Saldanha uthe:

 Ekujongeni iindima ezinje kungalungela wonke ubani kwaye ngokubalulekileyo abahlali baseKhayelitsha ikakhulu amaxhoba olwaphulo-mthetho ukuba kubekho intsebenziswano enkulu phakathi kwalamacandelo mabini karhulumente kwaye basebenze ngokomgaqo-siseko.

 UJustice Saldanha ubekwanalo nethemba lokuba uSJC, TAC, EE, Triangle Project ne NU bayakusebenzisana nawo onke amacandelo karhulumente esitsho ukuba “okubaluleke kakhulu kungabikho kulemibutho emosha ukuzimela kwayo ekwenzeni oko”.

UJustice Yekiso (evumelana noMongameli oyiJaji) bafumanise ukuba iNkulumbuso yenze ngokusemthethweni kwaye ngokwamandla ayo akumgaqo-siseko ekuqaliseni iQela Eliphanda iSAPS eKhayelitsha nge 22 ka Agasti 2012.

 Ekujongeni kobungqina … Andifumanisi ukuba kukho ityala lokuba iNkulumbuso, ekuqaliseni iQela eliphandayo ngendlela enze ngayo, ixhaphaze nalinye lemiqathango ehambelana nokusebenzisana koorhulumente njengoba kubekiwe kwicandelo 41 loMgaqo-Siseko; okokuba iNkulumbuso iwaqonde kakubi amandla ayo asuka kwimimiselo yecandelo 206(5)(a) loMgaqo-Siseko; okanye okokuba kwelixesha phambi kokuqaliswa kweQela eliphandayo nangexesha aqalise iQela eliphandayo, iNkulumbuso ixhaphaze nalinye lemiqathango ejongene noburhulumente bolawulo lukawonke-wonke njengoba kubekwe kwicandelo 195 loMgaqo-Siseko . Ngoko ke kulandela ukuba ukumiswa kwethutyana okubekwa ngummangali, njengoba kuthathwe kuMgaqo-Siseko, akuphumeleli.

POLICE MINISTER NATHI MTHETHWA “HOPELESSLY UNRESPONSIVE” TO SERIOUS CRIME IN KHAYELITSHA: Judges say O’Regan Commission of Inquiry into SAPS must go ahead

Protest outside the High Court in support of the Commission of Inquiry

Protest outside the High Court in support of the Commission of Inquiry

On Monday 14 January 2013, the Western Cape High Court dismissed Minister of Police Nathi Mthethwa and the South African Police Service’s (SAPS) urgent attempt to stop the O’Regan Commission of Inquiry (CoI) from continuing its work. The order was made with costs and SAPS has to pay the respondent’s legal fees.

Both the majority and minority judgments of the Court vindicate the rights of people living and working in Khayelitsha under threat of extreme violence and crime. The High Court judgments also vindicate the work of the Social Justice Coalition (SJC), Treatment Action Campaign (TAC), Equal Education (EE), Triangle Project (TP) and Ndifuna Ukwazi (NU) over a ten year period.

The CoI is free to continue its investigations and hearings until the second part of Minister Mthethwa’s case is heard. The Court will have to see more evidence and hear more argument from the SAPS and our organisations before making a final judgment.

Minister Mthethwa and SAPS are studying the judgments and deciding whether they will appeal. They have until 28 January 2013 to do so. Our organisations urge SAPS to accept the findings of the Court and to co-operate with the CoI. Similarly, we urge Minister Mthethwa not to pursue the second leg of the case to have the entire CoI set aside because it is unlikely that the police will win. It will also further delay the work of the CoI and waste more money in legal fees.

We further demand that the Minister of Police secures Cabinet approval for the Departments of Justice and Constitutional Development and Correctional Services to work with the CoI.

We also urge Premier Helen Zille and Mayor Patricia de Lille to ensure the fullest co-operation of the City of Cape Town and all other provincial departments with the CoI.

We want a plan to make Khayelitsha safe – to ensure that it has a functional and professional police service and a prosecutorial and court system that punishes crime and delivers justice. By learning from the work of this Commission government can work with all communities to make South Africa safe for all the people who live in our country.

Our organisations are naturally pleased with the outcome of this case and the CoI is now legally permitted to continue. However, this is a matter that should never have ended up in court. The decision taken by the SAPS in November 2012 to challenge the legality of the CoI has cost taxpayers millions or rands. It has also delayed the CoI’s work. Khayelitsha continues to experience extremely high levels of crime and violence and its police and criminal justice system remain overburdened and under-resourced. Any delay of a process aimed to address these issues is extremely problematic and worrying – especially when the cause of the delay is government itself.

[ENDS]

For enquiries please contact:

Axolile Notywala

(mobile) 0742895220

(twitter) xila_notywala

(email) axolile@sjc.org.za

 

Phumeza Mlungwana

(mobile) 0744178306

(email) phumeza@sjc.org.za

 

NOTE ON THE JUDGMENTS

Justice James Yekiso’s majority judgment accepts that the CoI’s work must study the “alleged systemic failure of the police in Khayelitsha to prevent, combat, and investigate crime, take statements open cases and apprehend criminals”. He accepted the fact that the SJC, TAC, EE, TP and NU complained about “the widespread inefficiency, apathy, incompetence and systemic failures of policing routinely experienced by Khayelitsha residents”. Deputy Judge-President Jeannette Traverso agreed with Justice Yekiso and they dismissed the application by Minister Mthethwa and SAPS with costs.

Justice Vincent Saldanha wrote a dissenting minority judgment which would have forced the parties to try and reach a compromise by 31 January 2013.  He stated that he and his colleagues were “extremely mindful of the desperate conditions that the community of Khayelitsha live in, with extreme levels of crime, poverty and inequality”. Justice Saldhana cited one and a half pages of the SJC’s founding affidavit by Mandla Majola which in summary stated:

 This issue does not relate to… the political sniping and barbs exchanged between the Premier and the First Applicant (“the Minister”).  Ultimately, this case is about the appalling level of crime experienced by residents of Khayelitsha on a daily basis. ….

The SJC submits that this case must in the first instance address the state’s duty to respect, protect, promote and fulfil, among others, the rights to life, dignity, freedom and security of the person, equality, privacy and the best interest of children.  A criminal minority terrorises people living and working in Khayelitsha day and night, but we believe that this case must also take into account the constitutional rights of arrested, detained and accused persons.

While I and the other deponents on behalf of the SJC are often critical of the Applicants, we would far prefer to be working together with them, and the other parties, in addressing the circumstances of people living in informal settlements in Khayelitsha who are too scared to go out to the toilet at night or residents who are struggling to come to terms with the shock of having been robbed or raped without the benefit of counselling or institutional support.

Justice Saldanha accepts that our organisations campaigned for “ten years against the ever deteriorating and despairing conditions of criminal activity and impunity in the greater Khayelitsha area”. He found that Minister Mthethwa and Provincial Commissioner Arno Lamoer’s “interactions with the community” of Khayelitsha and our organisations “was hopelessly unresponsive”.  However, he believed that the Premier and our organisations should have written another letter to Commissioner of Police General Mangwashi Phiyega.

Regrettably, Justice Saldanha fails to acknowledge that our organisations not only fully co-operated with the SAPS Task Team and granted the Commissioner an extra extension. He ignores the fact that we wrote two letters inviting her to meet with our organisations and the community but she failed to even acknowledge our letters.

Justice Saldanha would have ordered the Minister, SAPS and the Premier to negotiate and reach a settlement within two weeks. Justice Saldanha held:

In dealing with such issues it could only be in the best interests of all concerned and more importantly the community of Khayelitsha and in particular the victims of crime that there be the fullest possible cooperation between these two spheres of government and in their compliance with their constitutional obligations.

Justice Saldanha also hoped that the SJC, TAC, EE, Triangle Project and NU would co-operate with all spheres of government stating that “more importantly none of them should compromise their independence in doing so”.

Justice Yekiso (Deputy Judge-President agreeing) found that the Premier had acted lawfully and within her constitutional powers in setting up the Commission of Inquiry into SAPS Khayelitsha on 22 August 2012.

On the basis of the evaluation of the evidence …I cannot find that a case has been made. … that the Premier, in establishing the Commission in the manner she did, violated any one of the provisions relating to the principles of co-operative governance and inter-governmental relations as set out in Section 41 of the Constitution; that the Premier misconstrued her powers arising from the provisions of section 206(5)(a) of the Constitution; or that in the period prior to the establishment of the Commission and at the time she established the Commission itself, the Premier violated any one of the provisions relating to the basic values and principles governing public administration as set out in section 195 of the Constitution. It therefore follows that the applicants’ claim for interim relief, derived as they are from the Constitution, ought to fail.