A CALL TO UNITE AGAINST POLICE BRUTALITY

 

….the Nazis came for the Communists, and I did not speak up, becauseI was not a Communist.  Then they came for the Jews, and I did not speak up because I was not a Jew.  Then they came for the trade unionists,
and I did not speak up, because I was not a trade unionist.  Then they came
for the Catholics and I was Protestant so I did not speak up.  Then
they came for me…  By that time there was no one to speak up for anyone.’ [Pastor Niemoller]

 No man is an Iland, intire of itself………. Any man’s death diminishes me because I am involved in mankind’ [John Donne]

 

Horrific as the beating and death of Meleke Andries Tatane was,
it was only a matter of time before the SAP were caught on camera engaging in the type of  gratuitous brutality which has become routine among many of its members. Countless cases of assault, tubing (near suffocation), and damage to property never reach the public spotlight because the victims are poor and powerlessness. In their actions these police members – and the management responsible for their conduct – place themselves above, and show contempt for, the highest law of the land, our Constitution. They also endanger the lives of their colleagues.

While not as insensitive as then minister Jimmy Kruger’s ‘it leaves me cold’ response to Steve Biko’s death, minister Nathi Mthethwa’s comment that Mr Tatane’s death was ‘unfortunate’ must surely go down in history as a completely inappropriate reaction to the death of a human being, especially under such circumstances. Tatane’s death is a major tragedy – for his family, community and the entire country.
Even reported minsiterial comments about provocation and taunting of the
police are reminiscent of the apartheid era. Fifty one years ago the then
government tried to justify the shooting dead of sixty nine people at
Sharpville as the consequence of threat to the police from the protesting
crowd.

Those who think that tough talk and rough action by the police will decrease crime have been misled. Key ingredients in fighting crime are
good intelligence and detective work, and proper, well functioning, forensic
services. Police intelligence was lacking even before the present Mdluli
debacle. Most detectives are poorly trained, and often completely overstretched in terms of case load. Competent detectives achieve convictions without resorting to abuse (which can jeopardise cases in court) Forensic laboratories, like mortuaries services – a crucial component of the fight against crime – are shambolic.

Gaining the trust and confidence of communities is another
key ingredient in combating crime. In far too many communities members have been alienated by their treatment at the hands of those who are supposed, in terms of the constitution, to protect them. They fear the police, and say that they accept that if they are suspects they will be arrested; however, based on personal experience, they are scared that they will be tortured or killed by police who arrest them.  There have even been threats in some places that if the police keep behaving in this way they will be attacked. An increase in attacks on police will set in motion an even more dangerous spiral of violence, and the lives of those countless members who strive to do their jobs properly will be placed in further jeopardy.

The ICD is clearly not coping. It lacks sufficient investigators, and experiences training and management problems. New legislation giving the oversight body more powers is step in right direction but it is deeply flawed because it does not remove it from the control of the Ministry for Safety and Security. Like the minister and the national commissioner, the head of the civilian Secretariat is a political appointee, falling under the same ministry. Any body investigating the police must be independent of this ministry.

While the ANC has condemned what happened to Mr Tatane, without
action its response is mere rhetoric. The question is, what is it doing about
endemic police brutality? It is the ANC as the governing party which must
accept responsibility for encouraging this type of conduct, by deliberately
fostering a military, ‘shoot to kill’ policing culture. Does it not know that
many of its own supporters are sick and tired of being abused by members of the police, and not seeing justice done to them in the courts?

Like those in Nazi Germany who were not Jews, communists or trade unionists, people who have not experienced the gross excesses of the police first hand should bear in mind that unless something is done no one will
be safe. To make matters worse, if the Promotion of Access to Information Act is passed into law, the type of media coverage which exposed police conduct in Meqheleng township may well be restricted in terms of the ‘national interest’ (which, of course, is often indistinguishable from the interests of the governing party).

The solution lies in the hands of civil society – media, faith based organisations, advocacy NGOs – and voters. As happens in established democracies, the conduct of the police, and the suitability for office of those accountable for it (the national minister and commissioner) must become an election issue. Service delivery is important, but is of no use to the dead. It is bad enough to have to guard incessantly against criminals, without having to fear abuse and death from those who should be protecting the public and spending their time and resources in the prosecution of criminals.

THE HAWKS : PLACING THEMSELVES ABOVE THE CONSTITUTION

The recent Constitutional Court judgment that the establishment of the Hawks, which fall under the control of the National Commissioner of SAPS, lack the independence from political interference required by the Constitution, is both welcome and opportune. While KZN Monitor was the first to draw attention, in 2000, to abuses by the erstwhile Scorpions, it also subsequently argued (in submissions to the Khamphepe Commission and to Parliament) that it should not be disbanded, but that the problems with the unit as then structured should be addressed. It was obvious at the time that situating the new unit within the police would lead to further problems – which is exactly what has happened. Since the inception of the Hawks it has become clear that this unit is another instance of ‘old wine in new wineskins’, in that a number of its staff members have not shed the habits they acquired under apartheid, and, like the SAPS of which they are part, regularly flout the Constitution by engaging in gross human rights abuses.

Members of the police are not only, on occasion, killing innocent people, but they are also, regularly, engaged in acts of abuse and torture, including the notorious ‘tubing’, i.e. near suffocation of victims.  Members of the unit now termed Organized Crime have long been among those associated with such abuses.[i] Organised Crime now falls under the Hawks, and members have wide discretion about which dockets they will take over (and it is by no means clear what the connection is between some of the dockets they take and ‘Organised’ crime). Some of these members are also alleged to collude with certain taxi factions against their rivals, who are then targeted by the police.

One particularly serious case currently being followed up by MERAN (Medical Rights Advocacy Network), which is closely associated with KZN Monitor, involves the detention and torture of Inspector Vinod Maharaj, At the time of his arrest on 6 May 2010  Maharaj was working at the Newcastle SAPS. He was arrested in connection with a serious case, the bombing of an ATM in Mpumalanga province, in which three police members had died – Amerfoort CAS 96/04/2010. He was apparently arrested on the basis that a suspect in Soweto had said that a certain ‘Jimmy Maharaj’  (not his name) had been implicated in this crime. Maharaj and others claim that, given the distance between Newcastle and Amersfoort, and the fact that he was present at events attended by many other people on the days he was supposedly planning and implementing the crime, he could not have been involved in the events described in his ‘confession’ which – as will become evident – was signed under extremeduress (documentation in this case also raises questions about competency levels of those forming part of this supposedly elite unit)

At the time of his arrest, and following thereon over a period of time, Maharaj was severely assaulted and tortured by a number of police members whom he and others have named, all of whom appear connected with either Organised Crime or the Hawks.  Among the methods of torture named are assault, tubing, electric shock treatment, and the placing of a gun in his mouth. He was very badly injured, and his left arm was fractured. While he was being transported around by the police, including to Pretoria, he reported his injuries to other police members, but was denied medical treatment. It was only when his brother insisted he receive medical attention that we saw a doctor (on 13 May). He underwent emergency surgery which necessitated placing a seven screw pin and plate in his arm. He claimed that the police started assaulting him again soon after the operation.  It was while being subject to continuing torture that he signed a ‘confession’, allegedly written by one of the police members who had been abusing him.

Other alleged irregular and illegal conduct on the part of the police members involved include :

– Theft of personal items from his home at the time of arrest, including contents of a safe which included jewellery, and the falsifying of information recorded by the police concerned

– Refusing him permission to have his lawyer present while he was being questioned

–  Extorting money from him

–  Misrepresenting the date and circumstances of his arrest

–  Instructing those responsible for detaining him to put him in the worst cell, and tell the prisoners he was a police member and they should assault him

When Maharaj appeared in court on 10 May in Middelburg he reported his injuries to the magistrate, and, according to the court notes, all five suspects showed  obvious signs of torture. During the next court appearance on 17 May with other the suspects all complained of abuse, but no record appears to have been made. If allegations made by Maharaj are true, it appears that at
least one of the magistrates before whom he has appeared accepts his confession and thinks he should plead guilty. Clearly that magistrate should recuse himself from any further hearings. Surely officers of the court are aware that a confession obtained as a result of torture is not admissible in court? Why is the Middelburg court failing to take action when it is brought to their attention that suspects have been tortured?

There is no good reason why Maharaj should have been refused bail, but he has experienced problems in securing reliable legal assistance (the family has had to report a lawyer to whom a large amount of money was paid,
allegedly for work not done, to the Law Society). Based on the account of events during the past ten months, and observations by those who have followed them closely, the power wielded by the Hawks –  manifest
in the use of threat and brute force and threat –
is highly intimidating to
those they deal with. While the doctor who treated Maharaj appear to have acted in an unethical manner by releasing Maharaj from hospital prematurely, he reports that there were at least a dozen policemen with huge guns around his rooms intimidating patients. Are the courts also being intimidated?

The Constitutional Court has given the government eighteen months to
re-establish an independent unit. However, abuses by the Hawks go well beyond their lack of independence to investigate corruption.  The need
to do something about their gross abuse of
power is urgent.  What is needed, immediately, is the establishment of an oversight body, chaired by a Judge, to which complaints can be addressed – a body which does not report to the Minister of Police[ii].

 


[i] Cases of abuse dealt with by Monitor include members from SAPS stations, National Intervention Unit , Dog Unit, and Public Order Policing as well as Organised Crime

[ii] A fundamental problem with new ICD legislation is failure to remove oversight from Ministry of Police

2010 : WHITHER JUSTICE & HUMAN RIGHTS IN KZN?

As the year draws to a close Christmas proclaims peace on earth, but there ca be no true peace without justice. All societies, regardless of religious beliefs, recognise this truth, and all have rules for dealing with violence. Modern states have criminal justice systems – police, courts, prisons–  because they recognise the dangers of citizens taking the law into their own hands. It should thus be a matter of great public concern that the national commissioner is, in effect, encouraging vigilantism by police members, and that this message receives support from many, including in government. This tactic diverts attention from the fact that if the police were doing their jobs properly levels of violent crime would not be so high – and that many more people are dying at the hands of the police than when murder rates were considerably higher. To make matters worse, police
members routinely abuse people, including through the notorious ‘tubing’ (near suffocation) method – yet management is silent. There is an increasing lack of accountability on the part of police management, and government general, which bodes ill for democracy.

The well publicised utterances of the national police commissioner about the Anni Dewani murder also indicate either a lack of understanding, or contempt for criminal justice processes. Dewani’s husband is already branded a criminal despite not having appeared in a court of law. Ironically, police members are the first to hide behind the sub judice rule – as in their refusal to explain why members took no action to stop a group of armed, chanting, people from killing foreigners in a nearby building in central Durban.
Unlike the swift justice in the Dewani case, the xenophobia matter is still, almost two years later, dragging on. At least people have been charged, which does not, in the majority of cases (even murder) happen.  Victims who are poor, or out of public sight, do not generally merit the resources and expertise accorded to high profile cases. Housebreaking, and with it the threat to personal safety, is rife but the outlook for any justice being done is even gloomier (and such criminals often go on to even more serious crimes).
Leads are often not followed up, as in the handling of two consecutive cases of the theft of valuable transformers from a farm near Umhlali, in what were clearly well organised operations. When the farmer concerned approached
the local station commissioner, after the first theft, to express dissatisfaction with the police’s disinterest, he was treated with rudeness. The way in which some stations are being run beggars belief. Two residents of the Mayville policing area reported recently that when there was a break in at their homes (one very close to the station) they were told that there was only one operational van – for an area that extends from Westrdige/Manor Gardens to
near Overport. Why are the other vans not operational?

It is bad enough when the police do not do their jobs properly (and many do strive to do so). It is even worse that people have to live in fear of being tortured or killed by them, as occurred during apartheid.  In Macibini near Sundumbili (Mandeni) police members have been kicking down doors in the middle of the night and assaulting people. One of those badly abused, including through tubing, is Mr Makhoba.  A retired police member, he managed to ascertain which unit was involved – and it was not even supposed to be operating in his area.

Allegations that police members take sides in taxi industry
disputes are common, as in the case of the Mbonambi family, who have a permit to run a local taxi service in the Sundumbi area. Starting in 2008 they were allegedly subject to threats to their lives, including from a man (Shabane) who was involved in a rival association (in which some local police appeared to have interests). However, early in 2009 it was two of the Mbonambi brothers –  Siyabonga and Sam – who were arrested by the
police, and were badly assaulted and tubed. They were charged with crimes, but charges were withdrawn.  Despite continuing threats to them being reported to the police the Mbonambi home in Dendethu was attacked on 25 March this year by five men, who were armed, including, allegedly, with an R5 rifle(a police or military issue). Siyabonga was badly injured and his brother and toddler nephew were killed. There were witnesses to the attack. Shabane and others were arrested and charged, but the charges appear to have been withdrawn. A member of the same unit which is investigating the matter (who is himself widely feared) has been seen moving around with Shabane. Does this inspire confidence that justice will be done? In August Sigyabonga was arrested by a Kranskop policeman who is alleged to be
close to one of those charged with the attack on the Mbonambi house, and
imprisoned in Kranskop. His family feared it was a pretext to kill him, so the
assistance of the station commissioner was sought. He was given bail and
charges were later withdrawn. In September, a group of police without any
identification kicked down the door the house he and his family were hiding in at Ntuzuma, Durban, and allegedly assaulted them and stole money (a frequent allegation when such raids occur). Siyabonga remains in hiding, especially as there are still (as at today) reports that hit men are looking for him.

Other taxi men too, are in hiding because they have taken a
stand against paying protection money to taxi warlords with whom, they claim, police members collude. In May, one of these men, Xaba, was gunned down in kwaDukuza, together with a local resident who was giving him a lift, by police members. Before he died, Xaba had put it in writing that he feared for his life from rival taxi operators and the police. Despite  glaring irregularities surrounding this killing, the ICD has not taken the case over, but is simply ‘monitoring’ its investigation by a member whose credentials for the job are questionable.  Nor has the Transport Department in Pietermaritzburg assisted taxi men standing up to illegal practices by other
operators.

As under apartheid, many people are being terrorised by
police who do not identify themselves, who have removed their name tags and/or obscured their faces. There are even reports of electricity being switched off so that their vehicles cannot be recognised in the dark. It seems that some of these police members are from units which report directly to the national commissioner in Pretoria.

To make matters worse, police management – provincial and
national    – as well  as the National Minister for Safety and Security, fail to respond to letters, even by way of acknowledgement. This is a new development since the change of government. Even approaches to the relevant parliamentary portfolio committee elicit no response.  The impression is that the human rights embodied in the Constitution – including as they relate to policing, to access to information, and to just administrative action – are held in scant regard by some members of the present government (and not only those concerned with policing).

The situation can only worsen in 2011 if the governing party
presses ahead with enacting the Protection of Information Bill without making fundamental changes to it, and imposing clamps on the media. The government appears obsessed with secrecy, so there is no room for complacency: It is absolutely essential that mobilisation in defence of our right to know continues, and expands, in the New Year.

 

SAPS CRIME STATISTICS 2009/2010

 

In line with the overall trend nationally the statistics released by the police on 9 September show a decrease in the most serious crimes, murder and attempted murder, in KZN (although numbers of culpable homicide cases have actually increased, both nationally and in KZN, since 2003). That is most welcome, but levels of violence are still far too high in South Africa.
In general, not enough is being done by the police to prevent it happening.  Statistics should be available throughout the year, and  – given levels of mistrust – there should also be an independent verification process to ensure that no fiddling of the books is taking place.

Although the two worst stations in 2008/2009, Umlazi and KwaMashu, have shown a drop in murders, the numbers of people killed in both areas are much the same as for all the other years since 2003 (i.e. last year’s deaths were an all-time high for that period). It is also important to bear in mind that both of these policing areas serve very large populations. For comparative purposes, it would be helpful to see the figures expressed as a
rate of the population.

All stations that have brought down rates of serious crime – especially those showing a consistent improvement since 2003 – are to be commended.  However, questions must be asked why there has been no improvement in other areas shown to have extremely high crime rates in 2008/9. Plessislaer is a case in point, and despite problems with the functioning of this station having been drawn to the attention of management and the ICD during the past few years nothing seems to have been done to improve service delivery to those living in the area thestation serves.  Does the consistent
improvement in the Durban Central area since 2003 have anything to do that with the fact that it serves a tourist hub?  Why can there not be a similar improvement in a number of rural areas which serve largely poor and powerless people such as Nongoma, Msinga and Sundumbili?

In Sundumbili two people would not have been murdered had
proactive components of the police followed up on warnings that a family member was under threat of death. This incident at this particular station is by no means an exception. During the past few years, other stations, too, have been warned about threats to people, yet have failed to secure their safety.

Reports are also received of police at some stations failing to open cases until pressurised to do so, which is one of the reasons for cynicism about the reliability of statistics, especially for crimes such as robbery and assault. The present system, where the police release their statistics once a year is not acceptable. Firstly, there should be some sort of ongoing independent audit of police records (what exactly does the civilian component of policing nationally and in provinces do?) Secondly, there is no good reason whatsoever for the public having to wait a whole year to learn how
many people have died. In the 1990s, daily media releases by the police listed
the number of people killed over a twenty four hour period. Why can police
stations not provide details, every month, of people who have been killed in
their areas of jurisdiction during that time?  This is public information. There are clearly shortcomings in community police forums in many areas, including insofar as their composition, and failure to report backs to members of their constituencies is concerned.

Finally, police management continue to insult the
intelligence of members of the public by repeating, ad nauseam (as Comm de Kock did this year) that most murders involved people who knew each other.
They should explain how they know this – and, if the perpetrator is known, why the conviction rate for murder is so low (a figure of 12% in
2007/2008)

 

THE MAGWAZA MAPHALALA (GALE) STREET MORTUARY :A NEED FOR URGENT ACTION

 

         Show me the manner in which a nation or a community

        cares for its dead  and I will measure with mathematics

        exactness, the tender mercies of its people, their respect

        for the law of the land, and their loyalties to high ideals

      W E Gladstone, Prime Minister of England 1892-1894

 

 

The crucial importance of good forensic services to the criminal justice system cannot be overemphasised. Such services depend not only on the skills of pathologists who perform autopsies, but also on support staff whose tasks include the repair and safe care of corpses, and rendering assistance
to people facing the intensely painful task of identifying loved ones. There
has, however, been a failure to address serious and long-standing problems with mortuary services in KwaZulu-Natal and the present strike has seen the conduc of some staff at the Magwaza Maphalala (Gale) Street mortuary  degenerate to depraved criminality.

A few years ago the Department of Health took over the
running of mortuaries from the police, and it was anticipated that the quality
of service would improve. Quite the reverse has happened, and the situation has deteriorated even further. Apart from lack of resources and poor maintenance, most of the problems are linked to the conduct of staff, who not only fail to do what is required of them (e.g. maintain hygienic standards, ensure that specimens are properly stored, and treat cadavers with dignity) but also refuse to comply with the instructions of pathologists who work in the mortuary under extremely difficult conditions.  Staff reportedly come and go as they please and management appears non-existent. It also seems that international protocols for dealing with unidentified bodies are not being observed.

All these problems have been reported to the provincial Department of Health, but no constructive steps have been taken to address them, and to institute disciplinary procedures where necessary. They must shoulder the blame for employing people who are clearly unsuitable for this work in the first place, instead of people who had some training in the medical field. What is needed is technologists who understand the pivotal role of forensics, and are governed by a statutory body that imposes some sort of code of medical ethics on its members.

 Bad as the pre-strike situation was, the inhuman conduct of
some of the employees who are currently out on strike is criminal. According to well informed sources :

– Staff members have threatened anyone still
working at the morgue with death

  • Generators have been sabotaged and fridges
    switched off
  • Identification tags have been cut from bodies
    and corpses mixed up
  • Dissection tools used by pathologists are
    missing
  • Death registers are missing

Such conduct speaks volumes about the contempt with which
some striking workers hold the dead, whose mortal remains have been entrusted to their care. They obviously lack any sense of the empathy needed when interacting with bereaved persons.

Forensic medicine relates to the scientific collection of
evidence, the integrity of which will be relied on in criminal proceedings
which may follow. The intentional destruction of this process is a criminal act
which not only undermines the inquest process, but will have a secondary effect of fuelling the burden of crime in this province. The Department of Health must accept liability for employing and retaining corrupt staff should any family member feel prejudiced by their deliberate actions.

The mortuary staff must not be allowed to return to their
jobs when the strike is over. The KZN Monitor calls on the Department of Health to suspend these striking workers pending a full, independent enquiry into the staffing of the mortuary, and the criminal incidents by strikers. Criminal investigations must run their course, and no effort must be spared in identifying those responsible for these heinous acts. These employees must no longer be allowed to handle human remains so, if necessary, they should be transferred elsewhere by the Department which has foolishly employed them – and failed to take steps to prevent these abuses.

BEWARE LURKING AUTHORITARIANISM:THE PROTECTION OF INFORMATION BILL

 The Kafkaesque Protection of Information Bill is about more than media freedom : It is an expression of authoritarianism lurking beneath a thin veneer of democracy. It is the latest legislative attempt to give far too much power to faceless bureaucrats, the Expropriation Bill and aspects of the Criminal Law Amendment Bill  being other recent examples.  Despite public rhetoric, and the apparent commitment to democracy by many politicians, there has been no seismic shift away from the authoritarianism of apartheid.

Racial and homeland legislation has been dismantled, and a  superb constitution enacted, but the structure of South African society has no changed dramatically. We are still among the world’s most unequal nations, and, for many, old mindsets remain. Political intolerance and destructive struggle within parties are rife. Ethnic chauvinism still rears its ugly head – including within political parties, and in attacks on foreigners.

Many in leadership positions project, through their trappings of power, an image of self-importance which is out of place in a modern democracy. There seems little doubt that political moves to ‘regulate’ the media are motivated by resentment of exposes about people in powerful positions (which is not to excuse sloppy and unethical journalism).  Election to high office brings public scrutiny and those who fear the heat should stay out of the political kitchen. Indeed, the autocratic tendencies of some politicians suggest that they fail understand that they owe their positions not only to the voters but to the taxpayers who fund them.

Powerlessness, and dependency on patronage, play a part in the failure of the majority to hold their government to account. Crucial factors promoting authoritarian conformity include the quality of most education, traditional
leadership, and violence.

The dearth in critical thinking is the product of poor
education. Apartheid education was not designed to produce questioning adults (including whites), but Bantu education was the cruellest blow inflicted on black people. During the dying days of apartheid, the situation deteriorated even further as schools became sites of struggle and attacks on learners. Those who made it to university were quick to latch on to Marxian rhetoric and slogans, but most ignored the master’s dictum that ‘we must be critical’. Had they, and those in exile, paid more attention to sociologist Max Weber they might not have made such a mess trying to transform the bureaucracies they inherited, especially the police. It is these extremely dysfunctional bureaucracies, with their high turnover of senior staff, that the drafters of this legislation intend to entrust with awesome powers of control over information.

Elements of democracy surrounding traditional leadership were stripped by colonial governments which used the institution as a means of controlling the dispossessed. Instead of confining their roles to ceremonial matters (as elsewhere in Africa) the present government has given these leaders too much power. While some do attempt to run their fiefdoms in a democratic manner, others rule by fear. The system itself is authoritarian.

Pervasive violence is another reason for excessive
conformity, especially in areas where policing remains atrocious. People fear
to speak out, and – as during the protest excesses of the 1980s – dare not
stand up to the bullies in their midst.  Violence, rather than democratic alternatives such as lobbying, remains the preferred method of dealing with problems, including in protest and political (intra and inter-party) issues.

The impression is that those supporting this legislation are
out of touch with reality. Ad hoc committee chairperson Cecil Burgess, for
example, seems to think that should bureaucrats classify information illegally
colleagues would report them .Does he not know that most graft goes unreported. With good reason, people fear the consequences, and many do not trust their lives to the police.

Similarly, Justice and Constitutional Development Minister
Jeff Radebe sees the bill as a product of democratic process, overlooking the
fact that relatively few people – those who are able to access it and read it –
are able to express their views on legislation. How many parliamentarians read and digest bills sufficiently well to cast their votes in an informed manner? How many parliamentarians, legislature members and councillors report back to their constituencies about legislation, and actively encourage public debate about it? Even literate people may find it difficult to keep up with the large volume of legislation before parliament.

If this government had the interests of democracy at heart
it would be facilitating access to information, and not trying to curtail it
even further. It is already difficult to obtain public interest information
from government departments, including the SAPS, Health and Land Affairs (which has failed to supply it even when Promotion of Access to Information forms have been submitted)

Have victims of oppression, including State law advisor
Enver Daniels, not learnt the lessons of recent history? They are lucky that
they, unlike so many thousands who died in the struggle for freedom, are still
alive. Many of those deaths could have been prevented had the apartheid regime not been so successful in misconstructing social reality through controls over the flow of information. If this bill is passed in its present form, and if nothing is done about the authoritarianism that has spawned it, the future of democracy in South Africa will be in danger.

 

 

 

 

 

2010: THE WORLD CUP, CRIME AND XENOPHOBIA

Credit is most certainly due to all those responsible for the safety of visitors and locals attending World Cup-related events. However, away from the Cup’s public arena and tourist areas there was no let up in violent crime. Taxi conflict and attacks on farmers did not miraculously disappear and, in townships and informal settlements around Durban, many died violent deaths. Despite rumours of possible attacks on foreigners being dismissed by government ministers, an exodus of Zimbabweans from the Western Cape was followed by a spate of attacks on Somali shopkeepers in that province. Should fears of a xenophobic outbreak be taken seriously and, if so, what pre-emptive steps can be taken?

Attacks on foreigners labelled xenophobia are but one of the ways in which conflict arising from divisions between ‘us’ and ‘them’ manifests itself. In this case, the ‘other’ is defined as being non-South African, rather than a member of a different racial, ethnic or religious group. In other words, it is about real or imagined differences when, instead of celebrating the diversity with which humanity is blessed, it is used as an excuse for conflict.
Invariably, it is about competition for scarce resources, whether political or
economic, where the emotional appeal of identifying with a particular nation or ethnic group is harnessed to justify action against those who are
different.

It is probably true that most South Africans are not
xenophobic, i.e. they do not hate or fear foreigners. However, the type of
conflict of which xenophobia is but one manifestation has frequently occurred. In 1949 riots involving people classified as Africans and Indians left many dead. In the 1980s and early 1990s political rivalry was often disguised as ethnic conflict between Xhosa/Pondo (UDF/ANC) and Zulu (Inkatha). That the tendency to cloak political competition with ethnic labels has not gone away has been evident in recent years in attacks in KZN on COPE supporting Xhosas. Nationalism, like ethnicity, is a phenomenon which is activated by specific situations. People celebrating their South Africanness – or Africanness – during the World cup could, in a different context, react to a specific situation as a Zulu, Xhosa etc. We are only at the beginning of building our common nationality across the ethnic and racial divisions entrenched by apartheid.

Blanket generalisations about xenophobia overlook the fact that it too manifests itself in a specific context in which particular grievances exist. It may, however, be orchestrated, as was the case in 2008 when a wave of attacks against foreigners swept the country (or when waves of ‘ethnic’ attacks occurred in the Reef carnage of the early 1990s). Questions must thus be asked about what lessons have been learnt by those responsible for
everyone’s safety from what happened in 2008, and what steps have been taken to prevent re-occurrences of such attacks. Have the recommendations of the Human Rights Commission’s report into the 2008 violence been implemented?

Why, given the rumours and alleged threats to Zimbabweans in
the Western Cape was nothing done to protect vulnerable Somali shopkeepers, who have consistently been victims of brutal attack in different parts of the country?  Has anyone been brought to book for these crimes? If attacks on foreigners follow on rumours that they will occur a hidden hand seems to be at work. Either these attacks were planned in advance, or those spreading the rumours saw some benefit for themselves from threatening
foreigners – such as displacing them, or encouraging opportunistic criminals to target them  If there is any orchestration it is the job of state security agencies to uncover it, and take appropriate action. If it could ensure the safety of foreign tourists why can it not do the same for poor foreigners living in the country?

Continuing, sporadic attacks on foreign nationals are, giventheir unpredictability, more difficult to deal with, especially as many of these foreigners live in shack settlements. Since the police have a constitutional duty to prevent crime, their intelligence services should play a vital role in pre-empting attacks. However, this they usually fail to do even for their own citizens. To make matters worse, shack areas are usually badly policed, one of the reasons being the lack of easy access due to the absence of roads. Councillors could play an important role in identifying threats, if they did their jobs properly – and provided they are not part of the anti-foreigner
groupings. The fact that foreigners do not have the vote may also count against their receiving support from political party representatives.

Protection for foreigners should be integral to ensuring the safety of residents of poorer – including rural – areas, which are far more vulnerable to serious crime than are middle class areas. People in these areas are often too scared to speak out because intimidation and threat are often rife, and the history of poor policing has not been properly addressed. What steps can be taken to improve the safety of poor communities, especially, in the present climate, foreigners?

One of the Human Rights Commission’s recommendations is the
establishment of a national hotline through which to report threats.  Also needed, however, is the involvement of concerned community members who would ensure that complaints, and cases opened, were followed up by the police (far too often they are not) and, if necessary, to protect the identities of people who fear possible repercussions if they identify themselves. It is very important that data bases of threats be maintained as factual evidence, and with a view to establishing whether there are any discernable patterns in the intimidation. This job is too important to be left to the police, who themselves need close monitoring. Faith based organizations, including Diakonia in Durban, are to be commended for taking the lead in initiatives to assist foreigners under threat.

Surely there can be no better way of keeping the spirit of the World Cup alive than by reaching out to foreigners living in our midst with a view to counteracting the threats that they face?

 

 

NO TRUE FREEDOM WITHOUT JUSTICE REFLECTIONS ON FREEDOM DAY 27 APRIL 2010

Those concerned about the state of democracy in South Africa would do well to pay close attention to disturbing trends in the criminal justice system. The courts are the ultimate guardians of the freedoms Freedom Day celebrate, but they are not functioning optimally. They also dispense justice, which most crime victims are denied. While most blame lies with incompetent and corrupt police members prosecutorial services are not doing enough to remedy investigative deficiencies. We should be most alarmed about the militarisation of police ranks, especially given existing abuses of power by members of the service.  If we do not pay close attention, and raise our collective voices against these abuses, we may find ourselves back to where we were under apartheid.

Policing

The reversion to military rankings goes against the spirit (and wording) of the Constitution, and the rationalisation that it will help the fight against crime is a red herring. Indeed, one wonders whether the police take the Constitution seriously. More people die at their hands than ever, and some of those implicated carry apartheid era baggage. Torture and assault of suspects is common, and abuse of power by blue light bullies and bodyguards is common. Abusers are among those now addressed by titles usually associated with authoritarian and totalitarian regimes. By failing to respond to written requests for public information the police are also in breach of Section 32 of the Constitution.

There are many good police members who give of their best, often at great risk to their personal safety, and without due recognition. However, corruption and incompetence is rife, and many members have been promoted well beyond their levels of competence. All over the province people complain that police collude with criminals, either through acts of omission or commission, and engage in illegal business activities such as taxi and security company operations through fronts. If that is true, it is small wonder that mayhem continues in the taxi industry, and illegal security company operations go unpunished.

Guns disappear from police keeping, as do dockets, and cars driven by police members are, not infrequently, involved in accidents leading to injury and death. While people who are widely alleged to be criminals remain free, and police fail to follow up on information which could prevent crimes from happening. Innocent people are often arrested, and may even be refused bail despite there being no evidence against them. Poor rural people, who do not know their rights, and lack access to lawyers, are especially vulnerable to this type of abuse.

The blame for this state of affairs rests with management and the various bodies designed to hold police accountable for their actions – civil oversight bodies, internal police investigations and the Independent Complaints Directorate. Despite the existence of all these structures no one is policing the police properly. Internally, police regularly investigate their colleagues who, unsurprisingly, are never brought to book. The Independent Complaints Directorate is desperately under-resourced and under-skilled, seemingly overwhelmed by the sheer extent of complaints against the police (which are probably the tip of the iceberg).  In terms of what they cost taxpayers, and what they achieve, civilian oversight bodies (provincial as well as national), as presently constituted, appear a waste of money. It would be better to put more resources into the ICD.

In far too many cases, including those involving deaths at the hands of the police, there is a failure to make maximum use of forensic evidence. Forensic services in the province are in a state of crisis – teetering on the brink of collapse in places – with few properly trained forensic staff, and a dearth of proper equipment. For this, the Department of Health must bear responsibility.

Courts

There is a failure on the part of many prosecutors, especially in rural and township areas, to intervene in shoddy investigative work. Either prosecution does not take place, or the quality of the evidence is such that there is no conviction. Much of the fault lies with prosecutors themselves.  In a recent case, police members who had been involved in a shooting (for no apparent reason)in which an innocent car passenger died were acquitted because no one had bothered to access crucial forensic evidence and call a ballistic expert.

There is no consistency in the granting of bail. Recently the national police commissioner complained the courts for easy bail. However, it is often police who do not oppose bail, as in the current case of taxi operators and their security guards who are charged with murder. Bail was not opposed despite their having apparently been breaking the law with impunity before they attack for which they are now charged.

Despite being asked, local police had failed to protect the victims of this crime. Are they now going to protect the witnesses?  However, in another matter, a man accused of stealing a car, who had been assaulted when arrested, was refused bail, despite a lack of evidence..

There are apparently well founded allegations of complicity, in some courts, between prosecutors, investigators and certain lawyers in not opposing bail in return for a kick back.  In a recent case, a local magistrate refused to sign a warrant of arrest for a man who already has a criminal conviction and is now accused of serious crimes (including kidnapping). The warrant had to be taken elsewhere for signature. Now locals are asking what hope there is that justice will be done when the case goes to court.

There are also huge discrepancies in sentencing. Mr Sizwe Shezi was sentenced to 18 months’ imprisonment for jumping a red traffic light. A kwaMashu detective was involved in a hit and run accident in 2004, and was only brought to justice because of the perseverance of a family member assisted by Monitor. He was convicted of culpable homicide in 2009 and, despite having killed a woman and absconded from the scene he received a slap on the wrist in the way of a fine. Other officers of the law get away with such crimes altogether. Where, compared to the sentence meted out to Mr Shezi, is the justice?

Problems are not limited to magistrates’ courts, but are also found with appointments to High Courts and judgments meted out there.

THE ATTACK ON THE MBONAMBI FAMILY, DENDETHU : AN INDICTMENT ON THE FAILURE OF THE SAPS & KZN TRANSPORT TO ENFORCE THE RULE OF LAW

While there is probably no one in SA who is not affected by violent crime, or a potential victim, people living in rural areas are by far the most vulnerable since, despite known dangers, they often enjoy less police protection than their urban counterparts.
According to a member of the Mbonambi family, during the evening of 25 March 2010, five men armed with a variety of weapons, including what appeared to be an R5 (a police or military weapon) opened fire on members of their family at their Dendethu home (near Mandeni) severely injuring Siyabonga Mbonambi, his brother Mdu, and their toddler nephew Lungela. Lungela and Mdu have since died. Elderly Mrs Mbonambi, who bears the scars of injuries she suffered during the political violence of the 1990s, and walks with difficulty, has now lost a son and a grandson.

This attack was not unexpected, since Siyabonga had spent much of the previous year in hiding in fear of his life. Siyabonga is the chairperson of the local eNembe and MachibiniTaxi Association and he had been receiving death threats. This state of affairs was drawn to the attention of the local (Sundumbili) police, who were asked to investigate the matter. The SAPS were also requested to take steps to stop the rival Long Distance Taxi Association from apparently breaking the law, and operating on the route for which the eNembe and Machibini Taxi Association have a permit from the Department of Transport. The KZN Department of Transport, including the Taxi Registrar, was also approached with a view to its implementing the law regarding permits and routes.  There are long simmering tensions around taxi
operations, and irregular conduct by security companies, in this area. In 2008,
for example, the SAPS had been asked to investigate the activities of security
guards who were alleged to be openly armed with Uzzis and pump action shotguns, publicly drinking alcohol and intimidating commuters and taxi operators.

Why has nothing been done to restore the rule of law around taxi operations, protect people under threat, and disarm and charge those who openly flout the law?

Instead of protecting members of the Mbonambi family, three of them have been tortured by SAPS members, including by ‘tubing’ (medical evidence to this effect was collected by MERAN – Medical Rights Advocacy Network. The victims of last night’s attack are fearful of giving statements to the local police, alleging that certain members are in cahoots with taxi operators who are trying to take over their route.

According to an eye witness to last night’s attack, one of the attackers is linked to a security company employed by the Long Distance Taxi Association. According to the PSIRA (Private Security Industry Regulatory Authority) web site, the registration for the two entities bearing this name has been withdrawn. In other words, the company is breaking the law by operating and no one, including the SAPS, is doing anything about it. Security companies who are not registered have no legal right to guns (unless licensed to individuals)

The KZN Monitor calls on the MEC for Community Safety and Liaison and Transport and the Provincial Commissioner SAPS to take immediate steps to

  • Remove this murder and attempted murder docket from
    the Sundumbili SAPS and give it to a completely independent investigator
  • Instruct whoever is responsible for ensuring that taxi operators act only in terms of their permits to intervene to protect the rights of the eNembe and Machibini operators
  • Launch a full investigation into the apparentl illegal operations of the security company employed by the Long Distance Association, and a full audit of guns in the possession of employees.

 

 

HUMAN RIGHTS DAY 2010 : WHAT RIGHTS FOR PEOPLE IN KWASHEMBE (CLERMONT), MACAMBINI/MANGETE, AND KENNEDY ROAD

As we celebrate yet another Human Rights Day recent events in kwaShembe (an informal settlement in Clermont), Mangete and adjoining Macambini, near Mandeni, and Kennedy Road informal settlement in Durban show the lack the lack of progress we have made in ensuring people’s rights to freedom of political association.

This morning, Sunday 21 March, a number of dwellings of COPE supporters were burnt down and vandalised in the kwaShembe informal settlement area of Clermont. While there have been isolated incidents in this past, the attacks on COPE supporters started in earnest on Sunday 14 March, with police in the area claiming they could only ‘contain’ the situation, rather than arrest those committing the crimes. People fled their homes, initially camping in COPE offices in Durban. Cases were opened at kwaDabeka station, one case of intimidation covering a number of incidents. According to a press report on 18 March, police had been deployed in the area ‘to ensure 24 hour visibility’ and prevent any further intimidation. Residents were encouraged by the SAPS to their homes since the police were there to protect them. However, according to a COPE representative who was in the area yesterday, 20 March, there was no sign of any police. The local station commissioner claims that police deployment is at night, because no incidents were expected during day time – which is cold comfort for those who have lost their homes and possessions. Nor have key perpetrators been arrested, despite having been identified.

On Sunday 14 March a committee elected by persons listed as successful claimants in the Mangete land claim, supposedly settled in 2002, called a meeting at Mangete Primary School to report back on legal action that has been taken against Macambini traditional leader Mathaba. Mathaba, despite never having been a claimant, controls a Trust established by the Land Claims Commission, which holds land for the claimants, and income which should be for them. Most claimants have never received any of these benefits, so have called for a review of the settlement in the Land Claims Court, and have also approached the Master of the High Court calling for the conditions of the Trust, including insofar as access to financial statements, to be implemented. Papers have been served on Mathaba (who is also in contempt of court, having ignored a High Court order in which he is the First Respondent). The meeting at Mangete Primary School was to take place at 10h00 and the Mandeni SAPS had been requested, three days earlier, to ensure a security force patrol. When claimants arrived for the meeting there was no police presence. A van which had been to the area earlier had left, Mandeni SAPS claimed they had no personnel and vehicles, and the telephone of the standby officer (the station commissioner) was on messaging mode. According to eyewitness accounts at the time, and sworn statements, Mathaba arrived and told those present to disperse or face the consequences. The door of his vehicle was open and a large gun – possibly a rifle – lay on the seat pointing in the direction of those present. It is not known if the gun is licenced. Fearing for their safety (with good reason, given TRC findings against him, and, more recently, sworn statements and an interdict) those present dispersed and went to the Mandeni station to open a case. Once again, the SAPS wilfully failed to protect people, despite a history of violence directed against people who want to exercise their constitutional right to freedom of association and assembly. Mathaba had no right whatsoever to interfere in this meeting, since Mangete Primary School is part of Mangete, and not part of the Macambini tribal area.

As in kwaShembe, people have been driven out of Kennedy Road informal settlement, and had their houses destroyed, apparently because they are associated with the shack dwellers movement Abahlali  baseMjondolo, or believed to be COPE supporters.  Although twelve Abahlali supporters have been arrested and charged it seems that no arrests have been made for attacks perpetrated against them.  Of the twelve arrested almost six months ago, five have been refused bail, despite no good reason apparently having been advanced by the police for the refusal of bail. According to a statement issued by ecumenical organisation Diakonia, following the five’s tenth court appearance on 19 February 2010 ‘…the new magistrate in Abahlali court appearance has admitted that there is massive political pressure in the Kennedy 12 case’ The five were, once again, remanded in custody to 4 May 2010.

In all three cases above fingers are pointed at the police for their failure to protect people, and to prosecute those who violate their rights. This government has had sixteen years to transform the police but not only has it failed abysmally, it is in the process of taking us back to the past with the proposed militarisation of police ranks. Rather than celebration, Human Rights Day calls for a sober reflection on where South Africa may be heading if more people do not make their voices heard in condemning the type of violations which continue to occur, apparently with impunity.