Category: Reports

The approach in this presentation, by a human rights defender who is a social scientist, is a comparative one, drawing on material from different societies, and providing a broader context, including historical. The study of different societies teaches us how human beings are fundamentally the same, and how much of their behaviour is a response to societal structures (relating to power distribution), and prevailing values and beliefs (which are not unrelated to economic and political power relationships), which may vary greatly from one society to another. Also drawn on is over twenty years of experience in interventionist work on behalf of victims of violence and other human rights abuses, so the presentation will also touch on ways in which the provisions of this act might impact upon those engaged in human rights work, as well as the public’s right to know about violence and abuse of power by the police. Essentially the argument is that this bill breaches international norms to which democratic societies subscribe relating to access to information and human rights.

 

The concerns outlined in the written submission refer to the possibility of the provisions of this legislation impacting on the public’s right to know about violence (which could facilitate its continuation), the bill’s over-broad definition of national security, the over-concentration of power to classify in a few hands and inadequate review mechanism, excessive penalties for breach of legislation coupled with the lack of a public interest defence.  This oral submission essentially fleshes out the written submission, and deals with concerns, which are inter-linked, under the following broad headings :

1.International perspectives on classification and over-classification

2.The South African classification context

3.Excessive penalties and lack of public interest defence

The main threads of the argument are drawn together in the conclusions.

 

1.International perspective on classification and over-classification

Despite the bill’s spelling out of the conditions under which information may be classified (Section 14), experience in established democracies such asUKandUSAshows gross over-classification by government bureaucracies, some of it to cover up wrongdoing by governments.

 

The UKhas seen a series of leaks of official documents over the years, including those dealing with the war in Iraq. In one of these cases, a former Cabinet Office official (Geogh) and former researcher for a Labour MP (O’Connor) were tried and convicted in 2007 for leaking a memo about a 2004 meeting between Prime Minister Blair and President Bush (I shall return to this case when talking about punishment). Among other things, this document is alleged to have noted that Bush had proposed to bomb Al Jazeera broadcaster (which would have been a war crime), and Blair’s criticism of US military tactics.   Before the trial the foreign secretary had made it clear that it was embarrassment the government feared – despite her having signed a Public Interest Immunity (PII) certificate claiming there would be damage to US-UK relations if made public, i.e. it involved the ‘risk of harm to national security’. In fact, no harm was done.[1]

 

Although the true contents of the official government record of the meeting were not made public during the trial of these two men, in other cases in theUKit has been the courts and senior judges who have taken the lead in opposing secrecy.  Thanks to the actions of these judges various cases have shown that theUKwas complicit in illegal activities carried out by theUSAin its war against terror.  Take, e.g. the secret ‘rendition’ from Pakistan of British resident Binyan Mohamed by the USA, in collusion with Britain’s MI5, and his subsequent torture, In this case, government and lawyers had relied on what journalist Norton-Taylor describes as ‘the tired old argument’ that secrecy on grounds on national security can’t be challenged – which the courts had previously deferred to. This trial showed that theUKhad tried to prevent the release of classified information about it because it would have shown that the government was complicit in cruel and degrading treatment meted out to Mohamed.  Judges did not accept the government’s excuse that making this information public would harm relationships between theUSAand theUK, including insofar as intelligence gathering was concerned. They said it was impossible to believe that US would take action againstUKif this material released, and that public interest, accountability and rule of law demanded it – the rule of law being the cornerstone of democracy.   ‘In our view, as a court in UK, a vital public interests requires for reasons of accountability and the rule of law in the UK, that a summary of the most important evidence relating to the involvement of the British security services in wrongdoing be placed in the public domain in the UK’

 

In this case, the government not only wanted to suppress information about unlawful activities, but also the fact that they had lied about it. Top Judge Neuberger commented that some security officials ‘appear to have dubious records when it comes to human rights and coercive techniques’. While publicly claiming they abhorred torture, they had been privately complicit in it.[2]

The campaign for a Public Interest defence is ongoing in theUK.

 

American Senior Counsel David Sobel also cites examples of over-classification. One well known example concerns events following the leak of a secret government report on the Vietnam war by Daniel Ellsberg in 1971 (The Pentagon Papers). Ellsberg, like those convicted of leaking state information in the UK, claimed he acted on moral grounds (and it has since become common knowledge that the USA pursued this war, despite the costs in terms of lives and money, despite knowing it was unwinnable).[3]

A subsequent Commission on this matter (Moyihan) found that unnecessary classification was rampant in theUSA.

 

More recently, the chairperson of a Commission established to investigation the attacks of September 2001 commented that three quarters of the documents he had read should not have been classified in the first place.[4]

 

The European Court of Human Rights, too, has been critical of over-classification, even in situations of armed conflict, finding that in many cases it facilitated violations of basic rights.

 

 

2.The South African context in which classification occurs

It should be noted that bothUKandUSAhave a recent history of terrorist attacks, and, following September 2001, both countries tightened up on legislation. They have also both involved in fighting wars in theMiddle East.  Canadian legislation is also reportedly a response to the threat of terrorism, given its border with theUSA.

In contrast,  according to the Head of Communications in the Ministry of State Security, Brian Dube, in a  media release dated 2 June 2011, there are’ no discernable threats to the constitutional order’. On the same day, his minister, during his budget vote, waxed lyrical about ‘prevailing peace and security’, and the country being ‘stable and secure’.  Yet now the Hon Minister is claiming that opposition to this bill is linked to foreign spies.

South Africais a new democracy – and democracy doesn’t just happen overnight but needs building, as well as consolidating and defending. This bill requires that senior persons in bureaucracies classify information, yet bureaucracies are beset with problems and are in a state of flux with a high turnover of senior staff, some of it linked to changes in the government executive (e.g. new HODs may be appointed with a change of ministers of MECs). There are factions within bureaucracies, especially in security services such as the police. The well-known matter of General Richard Mdluli,(SAPS Crime Intelligence) including the circumstances surrounding his decision to de-classify a document reportedly relating to an alleged plot against President Zuma raises questions about motives.

Definitions and wording: There are problems relating to the definition of national security. The bill’s definition of national security is so excessively broad that it could be used to classify a huge body of data, e.g. relating to the crime, that should be in the public domain. The specific areas it lists are not exhaustive – they are simply mentioned as included. A tighter definition is required, which lists all areas, i.e. one which is inclusive.

It does not meet criteria of Johannesburg Principles which were drafted in the city in the mid 1990s by international legal experts, and endorsed and utilised by the UN, including its Commission on Human Rights. These principles are very specific about conditions governing the classification of information. They specify that that the law must be unambiguous (the vagueness of the wording of this act in places, including the definition of national security, facilitates ambiguity), and that the burden is on the government to demonstrate the validity of the restriction on information, This the South African government has not done. Categories of information to be withheld must be ‘specific and narrow’ (see, e.g. principles 1, 2 and 12). Principle 12 states that ‘in all laws and decisions concerning the right to obtain information, the public interest in knowing the information shall be a primary consideration’, and denial of information should be subject to some sort of judicial review (Principle 14).   As pointed out above, the South African public has had conflicting messages about national security from the Hon Minister, the most recent inference being that the legislation is needed because of some sort of threat to it. As Principle 11 notes, the right to information from public authorities includes information relating to national security (unless government can demonstrate that restriction is necessary to protect a legitimate national security interest.

Two of the aspects of the bill’s definition of national security are of particular concern:

(a)the threat of the use of force or the use of force : This is extremely wide-ranging and vague. The use of force is endemic in SA with its high crime rate. It is also used extensively by the police (examples given below). Virtually anything linked to crime and policing could, in theory, be classified if this phrase is included.

Point (v) of definition : exposure of economic, scientific or technological secrets vital to the Republic. Again, this is far too broad, and easily open to abuse. Science is by its very nature an open system of knowledge which must be constantly debated, revised and updated. Secrecy is the antithesis of science, and renders it easily open to abuse. We must, as TRC warns us, never forget the lessons of the abuse of science under apartheid. Distorted social science was used to underpin the apartheid system, built as it was on separate homelands.  The worst damage was done by biochemical/medical scientists, including in apartheid’s chemical warfare programme. This appalling programme was so secret that what was eventually revealed about it (and not everything) was behind closed doors, and the information was initially embargoed by the TRC. No sanctions have ever been brought against those scientists, many of whom continue to work in the scientific/medical field. For all the public knows, some of them may still work for the state.

Another problem is the recurring reference (especially regarding punishment) to the possession or publication of information that might benefit a foreign state. This phrase is far too broad (what type of information? In which ways could it benefit a foreign state?)  It is not only states which could benefit from, for example, confidential information about, e.g. defence strategies. The Canadian legislation distinguishes between foreign states, foreign entities and foreign financial entities – for terrorists organisations are generally distinctive from states (political units).

In the contemporary world, large multinationals may have more financial power than smaller states and, like foreign individuals, they are already benefitting from, e.g. information generated from research in South Africa. If human tissue (e.g. blood) is exported by overseas researchers, crucial genetic material, for example, may be patented overseas by pharmaceutical companies or individuals, resulting in loss of income to South Africa (which would need to buy back products produced as a result of research on South Africans).[5]

Classification process and administration of it :  Some of the criteria to be considered when classifying information could be problematic/impractical.  For example, section 14(3) includes (b) anything that could impair the ability of the govt to protect officials/persons for whom protection services, in the interests of national security, are authorised. Consider that persons for whom protection services are authorised may include a multitude of people at all levels of government – national, provincial, local – could lead to unprecedented levels of non-disclosure to the public who fund this protection, and are entitled to information about whether or not it is warranted (to make matters worse, some of this protection, at least in the eThekwini (Durban) municipality, is reportedly necessary because councillors believe themselves under threat from persons in their own party).

Section 14 3 f, another criterion to be considered when classifying, relates to information causing life threatening harm to individuals. Clarity is needed about the nature of information that could be life-threatening. Countless people live in fear of their lives because, e.g. they are witnesses to crime, or victims of crime, and fear that they will be targeted/further targeted by criminals. People often fear to speak out, or open cases, because of intimidation. If there is any danger to a person’s life, openness, including about the alleged source of the threat, is crucial. It is the principle upon which Amnesty International Urgent Actions from international members works – letters written to those in authority, drawing attention to threats to people’s lives with a view to ensuring that they take action to investigate and protect. Among those who benefitted from this type of action are two MECs in the provincial KZN government who were targeted by hit squads in the 1990s.   

Regarding Section 15, returning classified information to a local Agency (Intelligence) might be impractical since the whereabouts of this agency and agents are not generally known. While it would be easier to return classified information to the police there is a general lack of confidence in the police, who may also be feared, for the type of reasons detailed below.

Section 19 :For the provisions of this section relating to requests for classified information to work in practice there would need to be a change of behaviour on the part of state bureaucracies.  In various government departments, especially SAPS and Land Affairs, there has been an increasing tendency to fail to respond to correspondence, even in many cases by way of acknowledgement, let alone provide information, e.g. replies to questions asked on behalf of interested parties such as victims of crime, or land claimants/land owners (the same applies to the Department of Health). For example, land owners atByrneValley, nearRichmond, who were subject to a land claim, completed all the necessary forms to access information to which they were entitled in terms of the legislation governing land restitution as well as  PAIA, yet never received a response. They followed up with a registered letter to the Regional Land Claims office and, when they tracked the letter with the post office, found that it had never even been collected.

Section 31 : Hopefully the Minister’s Department would be more efficient in responding than the other government departments referred to. However, if an appeal fails, ordinary people (i.e. who are not wealthy, and who lack funding) experience problems in accessing courts for this type of appeal.

Practical examples of how powers to classify could be abused  by the police

As elsewhere in this presentation, factual information drawn from KZN Monitor files is used to show potential problems in giving the type of power spelled out in this bill to security agencies, especially the police, without sufficient independent checks on possible abuse. While the examples are drawn from KZN, and there are specific problems in this province relating to its recent history, the matters referred to (and others), have also been drawn to the attention of the national commissioner and minister who are ultimately responsible for policing in KZN, as in other provinces.

Policing in KZN has, since the 1980s, been highly politicised because of (1) the nature of the KwaZulu homeland police force which was amalgamated with the former SAP post-1994 (see TRC findings regarding KZP) and (2) the history of political contestation of the province. In many areas, depending on local level dynamics (e.g. the presence of a warlord with long-standing police connections) policing has not been de-politicised. A KZN Monitor 1999 research report (The more things change…..Policing in the ‘new’ South Africa) documented how badly amalgamation and transformation were handled, which resulted in the sidelining of highly experienced and extremely competent black African police members, many of whom left the service. Political allegiances may also shift depending on political developments and this has happened in some parts of KZN in the past decade.

For example, in the area served by Plessislaer SAPS outside Pietermaritzburg, in the local government elections of 2004 there was evidence of collusion between certain police members and a local IFP strong man, and a police member named by the TRC as a handler of both this man and the late Sifiso Nkabinde (ANC) was openly harassing an ANC ward candidate. However, in the context of current divisions within the ANC in Pietermaritzburg, some of the comrades previously harassed and threatened by police members at the station allegedly colluding with the IFP claim that they are now being harassed by police members acting in collusion with other ANC members in positions of power because, they say, they are trying to deal with corruption.

It is not only political partisanship that the police are accused of. There are numerous reports of abuse by police members, from different units, which are not dealt with by management members. For example, in September 2010 Mr Albert Makhoba, was one of the residents of a rural area outside Sundumbili, north coast, who suffered abuse. His door was kicked down, and then he was beaten and ‘tubed’ (near suffocation with a rubber tube or similar apparatus). He lost consciousness. When he recovered he went to the police station (being a retired police member he knew what to do) and there he saw the members who had assaulted him (they were from a Pietermaritzburg unit). The investigating officer at the same station has been trying to arrange an identification parade since the incident happened, but has received no cooperation from the commanding officer.

A current example of abuse, by TRT (Tactical Response Team) members (who are allegedly involved in widespread abuse), involves a young ANC leader in the Port Shepstone policing cluster area, who opened a case against members who had assaulted him on two occasions (they have assaulted many people in the area, without apparent reason). After the case was opened he received threatening phone calls, and was also warned by credible sources that he might be killed so that he could not identify the culprits at an ID parade. He went into hiding, and moved his wife and child to a safe place, paying someone to look after the family home. Despite various letters to the Port Shepstone Cluster Commander, the police stalled the holding of the ID parade for weeks, and it was only after the intervention of the ICD (Independent Complaints Directorate) that some progress was made in this regard. A parade for witnesses to incidents is still outstanding. As Zulu remains in hiding, three men visited his wife at her place of work – she was on lunch break – and left a message that a man whose name has been widely linked to violence in the Pietermaritzburg area wanted to see her, causing serious concerns for her safety and that of her child.

The apparent complicity of some police members in illegal paramilitary training, which carried on in the province after 1994 is also a cause for concern. This training should be seen against a background of huge quantities of weapons linked to the recent history of political violence in the province that have never been adequately accounted for. For example, of six truck loads of weapons delivered from Vlakplaas before the 1994 elections, only two truck loads, at most, have been accounted for. These weapons included anti-personnel mines, hand grenades, RPG-7 rockets, mortars and rocket launchers.[6]

 

It is against this background of alleged political partisanship on the part of police members in some areas, and unaccounted for weapons caches, that paramilitary training in the province, in the 2006-2008 period, took place (it may well have continued for all anyone knows), In 2006 it was taking place in the Macambini area, north of uThukela river, and trainers were reportedly seen wearing hats with the old South African flag on them. It was linked to the local traditional leader (Mathaba), who was implicated in gross human rights violations by the TRC, and who continued a campaign of violence against the ANC until fairly recently (when he reportedly joined the ANC).  In 2007 following threats to her from both this leader and the trainees, local teacher and ANC stalwart Mrs Sibongile Zungu’s house was attacked by gunmen who were also armed with incendiary devices. Miraculously the family escaped with only the nightclothes they were wearing, but lost everything, including their house. Two grandchildren were injured by shrapnel.  The point is that the police had been warned, repeatedly, about the likelihood of Mrs Zungu being attacked. They had also been told about the paramilitary training. They failed to take any preventive action.

 

In 2008 three young men were being held at the Mlaba camp near Mahlabatini against their will. They had travelled there thinking they were being offered jobs, but found themselves subjected to paramilitary training and alleged political indoctrination. Despite KZN Monitor interventions with senior police members at both the provincial and local station level, it took almost twenty hours before the police went to the camp and took the men away. However, they allegedly failed to assist them, including with travel to their home in the southern part of the province.  Photographs of the men who were being trained, together with their trainer (who is known to me from the days of the north coast hitsquad operations) show them wearing paramilitary uniform, which is illegal in terms of PSIRA legislation. A police vehicle is parked near where the trainees are standing. The local station commissioner was one of those approached on the Saturday evening with a view to freeing the young men – but action was only taken late on Sunday morning. She is now the Provincial Commissioner in KZN.

(this matter was reported nationally, and to the Secretariat for Safety and Security, at the time; other matters referred to were also reported nationally)

 

These examples have been used to show why there is a lack of confidence in the police, and how, given the type of problems described, these examples raise questions about the likelihood of this type of information being classified for purposes of covering up police complicity/failure to act against illegal activities.  It is also raises questions about possession of information which could be classified (Section 15). If this type of information was passed to the police (which is the norm when human rights defenders hear of illegal activities, or the threat of violence) and they decided to classify it, would those providing the information be expected to refrain from talking about it – even if the classifiers failed to take action and thus further endangered people’s lives.  Quite apart from the question of being in possession of information one had gathered oneself, classification could be used to justify not supplying information when it was requested – allowing violence and abuse to flourish in secrecy.

 

In the written presentation, parallels were drawn between what was happening in the 1980s and what could conceivably happen if this Bill was passed in its present form. In the 1980s most people who did not live in the areas, or have contact with people in affected areas – mainly, but not exclusively, townships and informal settlements pre-1990 – did not know what was really happening, and how the violence was apartheid state sponsored using surrogates. They believed that Inkatha (as it was then known) was simply defending itself against ‘terrorists’. Of course, the SABC was the voice of the apartheid state, and most newspapers had problems of their own (infiltration, e.g. by apartheid agents, or simply ignorance of what life was like for black people under apartheid because of decades of enforced racial separation). However, there is no doubt that the Emergency regulations also stifled reporting initiatives. There were some courageous editors and journalists who did their best to cover what was happening, but their hands were tied by Emergency regulations. The then Natal Witness, e.g. gave good coverage of what was happening around Pietermaritzburg, which became toned down because of threats of legal action from the state intimidated the editor and journalists concerned. As a consequence of the combination of brainwashing and control over information there was no informed public outrage about what was really happening demanding that action be taken. Secrecy about the reality of the violence facilitated its continuation.

In other words, if the classification process is abused – and  it is easily open to abuse – this legislation could achieve the same purpose as the Emergency Regulations of the 1980s.

 

3.Excessive penalties and lack of Public Interest defence

 

Punishment : The written submission refers to similarities between this bill and the Official Secrets Act of Malaysia – including over-broad wording, categories of classification, information being useful to foreign countries,  the absence of a public interest defence, and harsh penalties (although, ironically, most of the penalties spelled out in this Bill are even more punitive than those of Malaysian  legislation)

Compare the provisions of this Bill with the penalties spelled out for transgressing the Canadian legislation (which distinguishes between espionage and the passing on of information classified as, e.g. ‘special operational; this legislation is far more specifically worded, e.g. about harm to Canada, than the SA bill) For example, in terms of section 13(1) a person permanently bound to secrecy who commits an offence by intentionally communicates or confirms information that, if it were true would be special operational information, penalty is five years less a day (it matters not whether true or not). For intentionally passing on special operational material maximum imprisonment is fourteen years.  However, Section 15 of the legislation allows for a Public Interest defence for disclosure of such information.

Regarding penalties in the UK, the written submission referred to the case of foreign office clerk, Sarah Tisdell, who leaked information about American naval activities, who was sentenced to six months imprisonment, of which she served three months.  In the matter of the leaked memo relating to the Bush/Blair meeting referred to earlier in this presentation, Keogh was sentenced to six months, O’Connor to three.

The punishments referred to regarding Canada and the UK relate to those who are bound by secrecy and who leak information (who are those, in the UK, who were imprisoned).

By comparison, the punishments contained in this Bill are excessive and unduly punitive, especially in terms of international norms (even, as indicated, in some instances in excess of those laid down in Malaysian legislation)

)

 

The written submission refers also to comparative sentences handed down for other crimes in South Africa. Take, for example, the case of the policemen who killed Mr Ngwenya (tortured him until he died), and then covered up their crime by lying to his widow and their superiors about his having escaped from custody (they would have got away with it had an informer not come forward and indicated where the remains had been buried). Convicted of culpable homicide they remained out of prison while their appeal, which was unsuccessful, proceeded, and then served approximately four years of their longer sentence (they were released recently, much to the dismay of the family of the deceased). Two siblings who were found guilty in the Durban High Court recently of killing their parents (the Lotter case) will each serve only several years in prison . Compare these prison terms with those detailed in the legislation for possession classified information (which vary according to level of classification, but are excessive in all cases).

To make matters worse, it is well known that, despite the South African constitution, the rights of prisoners are regularly breached through, e.g. rape, or even killing by members of prison gangs.

The punishments detailed in this Bill are clearly, in terms of the Johannesburg Principles (24) ‘disproportionate to the seriousness of the actual crime’

 

Inadequate controls and lack of public interest defence

While the role of the parliamentary portfolio committee in appointing the envisaged review panel is acknowledged (Chapter 7), as is the fact that this panel would report to parliament, it is probable that it would not be sufficiently independent because the numerical balance of power in parliament lies with the governing party, which has taken a unified stand in promoting this bill (i.e. no free voting by party representatives supposed to have been allowed).  There is a need for built in, independent review of a judicial nature(see Principle 14, Johannesburg Principles).  Nor are there sufficient checks and balances for classifying information in the first place, since the Minister for State Security may delegate to other organs of state – and heads of Departments may delegate further.

Also of concern is that this legislation takes precedence over PAIA

A public interest defence for leaking and possessing classified information should be mandatory. As Article 19 (Global Campaign for Freedom of Informaiton) puts it in its critique of the Malaysian legislation :

Protection for disclosure in the public interest should not only extend to the media. Those who, in the course of their employment, come across classified material that discloses wrongdoing should also benefit from protection if they decide, in good faith, to release it. Protection for so-called ‘whistleblowers’ is a vital element in freedom of information and

encourages good administrative practices at all levels of the civil service

 

Principle 13 of the Johannesburg Principles, too, emphasises the need for a Public Interest defence as a primary consideration.

Conclusion

This legislation is out of step with international trends in democratic countries and creates the unfortunate perception that it is closer to that enacted byMalaysia, where similar legislation is used to suppress dissent.Malaysia, according to Amnesty International’s 2011 report, still has detention without trial and the death penalty, and canes prisoners (including women).

 

The world looks up toSouth Africabecause of its constitution – but this legislation is not worthy of our constitution. Countless people gave their lives, especially inKwaZulu-Natal, for this constitution. This presentation has drawn attention to problems with the legislation, and has argued that it is easily open to abuse by people in positions of power, including in the police. As a consequence, the work of human rights defenders may become more difficult, and increased secrecy could not only cover up violence, but make it more difficult to deal with. It is impossible to over-emphasise the importance of openness and freedom of information when there is a risk of violence, and people’s lives are at stake.

 

While there is a need for legislation for legitimate national interest it should be minimal, and follow the type of international norms and guidelines referred to. Our constitution, and the safety of all South Africans, demand nothing less.

 

[1] Richard Norton-Taylor, ‘The Pursuit of Secrecy’ Index on Censorship Vol 39, no 2, 2010 pp14-23.

[2] Ibid

[3] David Sobel, ‘The urge to classify’, in Index on Censorship, Vol 40, no 1 pp 29-31

[4] Ibid

[5]  de Haas M  ‘Social and cultural issues in human tissue use in South Africa’ South African Journal of Bioethics and Law  2011 (on line).  Products developed by the taxpayer-funded scientists working on apartheid’s chemical warfare programme were patented elsewhere in the world. Research in the 1990s by an advocate who is an authority on money-laundering, Jennifer Wild, showed that the patent for the Tracker device used in vehicles, which was developed; by the SADF, was then held by, among others,  the head of the police forensic laboratory Gen Lothar Neethling

[6] See KZN Monitor report ‘The Scorpions : Trial by Innuendo and the Media’ 2003

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GivenSouth   Africa’s rapid transition from a repressive, authoritarian regime to a democratically elected government it was obvious that building the type of human rights culture enshrined in the country’s constitution would take time. However, the past few years have seen a weakening, rather than a strengthening, commitment to human rights on the part of the government.  An apparent contempt for the rights of members of the public, combined with administrative malfunctioning, is conspicuous in the fields of land reform, health, the rights of women and foreign asylum seekers, and – especially – the criminal justice system. Compounding problems is a growing culture of secrecy – an unwillingness to divulge information to the public – which has serious implications for democracy.

 

The stated intention of the government to ‘review’ Constitutional Courtdecisions is ominous. What is needed, urgently, is a review of the failure of government departments to implement Constitutional Court decisions. The blame for lack of transformation must be laid at the door of the government, not the court, as the Mangete example demonstrates.  Almost ten years after a land claim was supposedly settled the claimants have not benefitted, since control over the trust which was established was given to the local chief, who was not a claimant, and his associates. In 2010 the Master’s office removed these trustees because of their irregular handling of trust affairs. When those who had been removed tried, irregularly, to hold new elections for trustees the claimants were obliged to obtain an interdict against them.  Claimants’ committee members are currently have good reason to fear for their lives since they are trying to hold elections for new, credible trustees. Despite the local incumbent being in serious breach of traditional leadership legislation, the provincial government ignores calls to suspend him.

 

Many of the claimant families continue to live, illegally, on privately owned farms, and could be removed at any time, in terms of a high court interdict – and this is where the Constitutional Courtjudgement relating to a similar situation on the Modderklip farm is relevant. While not under claim, Modderklip, in the PWV area, had been subject to the same type of massive land invasions as Mangete. Fearing the consequences of removing such a large number of people, its owners sought Constitutional Courtrelief. The court ruled that it was the job of the state – not the landowners – to take action against the illegal occupants, and that it should act in the interests of both the occupants and the owners (and this in the absence of a settled claim). Apparently ignoring this judgment, the Department of Land Affairs has wilfully infringed the rights of the land owners and the claimant alike despite the supposed settlement of the claim..

 

The Department of Health in KZN also rides roughshod over people’s rights, as the sorry saga of the male circumcision drive in KZN shows.  Based on highly questionable science,[i] men are exhorted to undergo circumcision to reduce the risk of female-to-male transmission of HIV. Those opting for circumcision are not provided with the full information which is ethically mandatory before undergoing a medical procedure, and nor are they are not given a choice of procedures. The notorious Tara Clamp is used, which is not only painful but has been linked to injury (a press article has alleged that it is distributed by a man with close connections to the ANC).  The breach of these ethical rules by doctors is actionable through the HPCSA.  This department is also responsible for the shambolic state of forensic services, which infringes the rights of bereaved relatives of deceased people taken to mortuaries, and severely compromises the quality of forensic evidence. The Department steadfastly refuses to answer questions about these human rights issues, and approaches to provincial and national portfolio committees – who are supposed to monitor ministers and MECs – appears a fruitless exercise.

 

Among the most repressed women in South Africa are those living in rural areas, and their position will deteriorate further if the government goes ahead with enacting the Traditional Courts bill, which is discriminatory and insulting to black people, especially women. Women everywhere continue to suffer because of the failure of the too many police members to take the Domestic Violence Act seriously.  The treatment of victims of rape and domestic violence by police based at Umbilo police station is well documented. In one recent case, that of Nokuthula Cele, police failed to arrest a former boyfriend who was terrorising her, and stealing her goods, despite her having a Peace Order against him. He then attempted to kill her, and she needed thirteen stitches in her head. Despite this case against him he has not been locked up, and continues to threaten her and steal from her. Physically and emotionally traumatised, and financially drained, she lives in constant fear of her life.

 

There has been a noticeable shift in government policy towards asylum seekers fleeing their countries of origin because of threats to their lives. From narratives of those trying to engage with Home Affairs Refugee Reception Centre in Durban, due legal process set out in governing legislation are being observed. As a consequence, refugees are being rounded up and placed in Westville prison prior to repatriation to countries where they may face torture or death.  Prisoners inSouth Africa, too, suffer gross abuse (e.g. rape), and even death, at the hands of the prison gangs who operate with impunity. Double standards are evident in special treatment offered to high profile accused such as British national Shrien Dewani.

 

Police brutality is rife, and is accompanied by a conspicuous absence of strong leadership and management in the service plus a growing lack of accountability. From the Ministry down, relatively few members of management have the courtesy to respond to queries sent on behalf of crime victims.  Most victims of abuse fear to open cases because of high levels of intimidation. In the Port Shepstone policing cluster a group of TRT (Tactical Response Team) members have beaten up an unknown number of people, without provocation, One brave young community leader who did open a case has had to go into hiding because of threats to his life, and there are fears for the safety of his family. The conduct of police management in obstructing due legal process in this matter has been disgraceful. There are, however, encouraging signs of improved investigation by the Independent Complaints Directorate.

 

The failure of government departments to respond to issues raised by human rights defenders, and to provide relevant information, makes it increasingly difficult to prevent abuses and to deal with them constructively when they occur. Even in parliament, increasing numbers of questions put to ministers remain unanswered. The government’s growing obsession with secrecy – its failure to provide information (e.g. about a house purchased with taxpayers money for an executive member, or presidential travel extravagance), and the witch-hunts for those who leak information to the media, borders on paranoia.  The free flow of information, the rule of law, and the independence of the courts are the lifeblood of democracy – and any threat to democracy places the rights of all citizens in jeopardy.

 

 

 

 

 

 

                                                                                                    

                              

  

There seems to be no let-up in the abuse of community members by those who are supposed to protect them, the SAPS. Members of various policing units are implicated in cases of assault and torture, but thuggish tactics appear part and parcel of Tactical Response Team (TRT) operations. To make matters worse, there seems to be an absence of any proper control over these ill-trained and ill-disciplined members, as evidenced by what has been happening to community members in the Creighton/Donnybrook/Ixopo area during the past few weeks.

 

The TRT is a relatively new unit, established in 2009, and described as the ‘brainchild’ of suspended national commissioner Bheki Cele. It is described as an elite unit, with the recruits supposedly receiving similar training to that undergone by the National Intervention Unit (NIU). Platoon members are trained for eight weeks, and unit commanders for ten. It is not clear whether recruits to this unit have completed basic SAPS training. They wear a distinctive uniform with a beret, and are deployed in different policing clusters (i.e. areas comprising a number of stations) to deal with medium to high risk policing demands (e.g. crowd control), where they fall under the ultimate control of the Cluster Commander.[1]

 

The activities of a group of approximately eight TRT members deployed in the areas served by the Ixopo, Creighton, Donnybrook,   Himeville, Umzimkhulu stations were reported to Monitor in January. According to Mr Timothy Maduna, a licensed tavern operator, a group of police members (they did not identify themselves) came to his tavern on the evening of 12 January and, he claims, without provocation, assaulted patrons and himself, and broke furniture. His elderly mother was allegedly among those assaulted. It transpired these men were TRT members, accompanied by local station members. Mr Maduna was extremely reluctant to open a case, especially after he allegedly received threatening, anonymous phone calls about what would happen to him if he did. He did eventually open a case, as did one of his patrons, but other locals who claimed assault feared to open cases – perhaps with good reason in the light of subsequent developments.

 

The local station commissioner was helpful, but was not responsible for these TRT members, whose deployment was done through the Cluster head at Port Shepstone. An officer at the Donnybrook SAPS (name known) and a colonel (name not provided) were apparently responsible for local level operations.

 

One of those who was allegedly assaulted around the time of the tavern assaults was prominent youth leader Thabiso Zulu.  He too initially declined to open a case. Then, on 27 January, Zulu was assaulted for the second time by the same group of TRT members, in front of a number of people at a garage in Donnybrook. He recognised these men as being the same group who had assaulted him previously – but they were not in uniform. Zulu needed medical attention for his injuries.  He believes that he was assaulted because he had complained about the conduct of the group, and had encouraged others to open cases. Although he had little confidence that justice would be done he did, however, open a case.

 

He then started to receive information that his life was in danger. The investigating officer contacted him about attending an ID parade, but it could not be held because whoever was in charge of these TRT members did not supply the list of members who were on duty at the time of the assault, which is the standard requirement for an ID parade.[2]  The Cluster Commander was immediately contacted (1 February) and asked to make sure that the information was provided for the ID parade to go ahead.

 

By 8 February, no ID parade had been held, allegedly because those responsible for the TRT members had not supplied the list of persons on duty on 27 January. In the mean time, Mr Zulu has received information that he may be killed to prevent him identifying those who assaulted him, and has received anonymous threatening calls. He has had no option but to move his family away from their home, and has paid someone to guard it for him. He is in hiding himself. Concerns about the safety of Mr Maduna, too, remain. There are reports of witnesses being harassed by the same group of men.

 

People’s reluctance to open cases against thuggish police members is thus shown to be understandable. These TRT members appear to be operating exactly as they please, without any proper supervision whatsoever, with the threat of violence and assault of innocent community members being part of their modus operandi. What is completely unacceptable is the failure of police management to intervene, since – wherever the blame lies – placing obstacles in the way of an ID parade is tantamount to defeating the ends of justice. The failure of management to remove the suspects from the area, where they are free to intimidate complainants and witnesses alike, is placing people’s lives at risk.

 

While it has not been confirmed, there are allegations, including from a friend of the deceased, that Skhumbuzo Mkhwenazi, the brother of the acting national commissioner of the SAPS, had been harassed by TRT members before he died. Hopefully, these allegations will be interrogated.

 

The Independent Complaints Directorate (ICD) has been requested to intervene in the matter of TRT conduct in the Ixopo area, and it remains to be seen whether the unit will do so.  What is needed is a full investigation into the training and supervision – if any – of TRT members country-wide. The fact that the TRT is engaged in the type of work that established units (such as the National Intervention Unit and Public Order Policing) are tasked with begs the question about why this unit was established in the first place, and whether it should simply be disbanded.

 

From corruption in high places to increasing authoritarianism, the ANC government has been moving ever closer to the Nationalist Party’s apartheid state. Even at the height of repression, however, when that government was fighting what it termed a Total Onslaught, there was space for those who dared to report on the state’s involvement in township violence to do so. If the Protection of Sate Information bill is passed in its present form reports about such nefarious state activities could well be classified in the name of vaguely defined ‘national security’. To make matters worse, democracy has not yet taken strong root in South Africa, and there is a conspicuous overlap between the state and the ANC. Driving the bill through
parliament is a governing party paying only lip service to transparency, whose
preoccupation with secrecy verges on paranoia.

This legislation is a betrayal of the Constitution’s commitment to human rights. The impression is that much has been cut and pasted from legislation elsewhere, such as Canada. Unlike legislation in established democracies, however, it is short on specifics, and fails to provide adequate checks and balances, such as the public interest defence included in the Canadian legislation.

Despite improvements relative to the first draft, the current version of the bill still places far too much power in the hands of a small group of political appointees, especially the Minister of State Security. This agency, it should be noted, exists by virtue of a 2009 Presidential Proclamation, and the relevant legislation is not yet before parliament. Apart from being informed that it includes the different arms of what was previously known as National Intelligence Agency the structure of the entity being given this awesome power is not known.

Although classification and declassification now applies only to the security services (intelligence, police, military) and this power has been removed from other organs of state, the Minister of State Security may override this provision. It is these organs of state at different levels of government which will formulate policies about what information in their departments should be classified. The context in which these policies are formulated is one in which political deployment is rife, as is abuse of power and failure to disclose financial interests. It is an environment in which potential whistle-blowers often fear for their lives.

It is the heads of departments in the security services (defined in chapter 11 of the Constitution) who will take the decisions about classification, or delegate others to do so. Consider the unedifying conduct of some of these heads. Former Commissioner of SAPS Selebi has been found guilty of corruption and defeating the ends of justice.  His successor has been suspended following a damning report by the Public Protector. That the intelligence arm of the state is used to serve ANC factions is clear from a secret report about a supposed plot to unseat President Zuma, which had been declassified by Crime Intelligence head Richard Mdluli. Mdluli claims that his suspension from the police, and the criminal charges levelled against him, are linked to his ‘political enemies’ in the police.  One of those named in this ‘plot’ report, Minister Sexwale, reported fearing for his life. There have also been reports of politically-linked conflict between the Minister of State Security and his top staff, especially Gibson Njenje, head of the State Security Agency’s domestic arm. Njenje is alleged to have placed the Gupta family, which is known to be close to President Zuma, under surveillance.

Consider the social context in which these faction-ridden departments will make the classification decisions. There has been re-militarisation of the police, and attempts to militarise Home Affairs by recruiting SANDF members. It is already often difficult to access information held by the state, even when using the Promotion of Access to Information Act. From the Presidency down, there are complaints about the courts infringing on decisions by the executive – despite their Constitutional imperative to do so. That the media is a thorn in the government’s flesh is obvious from its utterances and defamation actions, and its harassment of journalists. Abuse of power by the state in illicit interception of communications is also alleged.
Intimidation is ubiquitous, and those wishing to expose corruption usually fear for their lives; they often rely on journalists and human rights defenders to do the follow up on corruption allegations and protect their identities.

Increasingly, the movements of the executive, and government ministers, are shrouded in secrecy, with the failure to disclose details of travel or accommodation being justified on the grounds of threats to security.  Bodyguards and blue light escorts are the order of the day for functionaries at all levels of government. In detailing the penalties for possession or disclosure of classified information the bill makes constant reference to its beneficial value to a foreign state. The public could be forgiven for assuming that the country is facing some sort of external threat.

However, according to the Head of Communications in the Ministry of State Security, Brian Dube, in a  media release dated 2 June 2011, there are’ no
discernable threats to the constitutional order’. On the same day, his minister, Cwele, during his budget vote, waxed lyrical about ‘prevailing peace and security’, and the country being ‘stable and secure’.

Dube’s media release was headed ‘The nation safe’. Minister Cwele’s recent diatribe against those opposing his infamous bill – accusing them of spying for foreign governments – begs the question about whether the nation is safe from its government. The inescapable conclusion is that this bill is aimed at South Africans, including within the ANC, who are critical of those who wield power.

By international standards, the penalties proposed for various categories of offences are outrageously high – especially given the vague wording of the bill and the absence of a public interest defence. In the UK, for example, there is a maximum of fourteen years imprisonment for supplying information to the enemy, with a recent amendment to the Official Secrets Act stipulating a fine and/or two years imprisonment for disclosure of security-related information.  The penalties outlined in the secrecy bill reveal the government’s twisted priorities : Four policemen who tortured a man to death, and then actively defeated the ends of justice, recently walked free after approximately four years in prison, yet those in possession of classified information face up to twenty five years imprisonment.

Instead of following the direction of democratic countries, South Africa,
it seems, has chosen to follow the route of countries which do not subscribe to its own constitutional values – such as Malaysia, which stands accused of
classifying documents without good reason, and using its Official Secrets Act to stifle dissent and reduce transparency. Indeed, as Nobel laureate Nadine
Gordimer has so aptly put it, this bill is taking South Arica beyond apartheid

 

Main References

Republic of South Africa: Protection of State Information Bill
(updated, as at 22 November 2011)

Press reports from Mail & Guardian, Sunday Times, Sunday Tribune, City Press, Times,Witness, Mercury, Daily News

Internet sources include www.justice.gc.ca (Security of Information
Act), www.legislation.gov.uk(Official Secrets Act) Act), www.bbc.co.uk/onthisday….(Secrets Act gags whistleblowers)  www.en.wikipedia.wik/official_secrets_act

Media release Ministry State Security dated 2 June 2011 and www.ssa.gov.za/Minister_Budget……(Minister Cwele’s budget speech 2 June 2011)

 

 

In a severe blow to the training of doctors, and to the cause of justice  in KZN, Prof Steve Naidoo, Chief Specialist (Forensic Pathology) and head of Forensic Medicine at the Nelson R Mandela Medical School in Durban, has resigned from his university post. He is unable to effectively carry on teaching undergraduate medical students and postgraduate registrars (trainee specialists) because of the untenable situation at the Magwaza Maphalala (Gale Street)mortuary, which is a consequence of the failure of the Department of Health (DOH) to deal with the mortuary mafia. While he has not been personally threatened – although there have been attempts to sabotage his work – Naidoo has been warned by concerned insiders that he may jeopardise his personal safety by continuing to work there. Naidoo’s resignation is a symptom of the terminal decline into which mortuary services have fallen since being taken over by the Department of Health from the SAPS.

In terms of breadth of experience Prof Naidoo is the province’s leading forensic pathologist. He enjoys international recognition, and has extensive experience in the field of forensic pathology applied to human rights, including his work with the TRC in South Africa and with the United Nations in the identification of genocide victims in Bosnia, Croatia and Kosovo. He is currently Chair of the Academic Sub-Committee of the Department of Health’s National Forensic Pathology Service Committee. He is also Chair of the continent-wide African Network of Forensic Medicine and a member of the Forensic Advisory Group of the International Committee of the Red Cross  (ICRC. There is a dire shortage of forensically trained doctors in the province, and Naidoo is the seventh to have left the service in the past two years. The former Chief Specialist of the KZN DOH Forensic Services also left the service following harassment by mortuary workers and lack of support from provincial management. The blame for this state of affairs lies squarely with the MEC and staff of the Provincial Department of Health, who have apparently taken the side of unqualified, ill-disciplined mortuary staff (some of whom are guilty of criminal activities) against highly qualified professionals, who they have continued to undermine. A perceived manipulation of the health department’s management by the industrial union/s representing the mortuary technical workers needs to be investigated.

Magwaza Maphalala Street mortuary

Criminal activities by staff at this and other mortuaries hit the headlines in 2010 and early 2011 when, during illegal strikes and go-slows (they are classified as emergency workers) workers sabotaged operations by switching off fridges, muddling bodies, hiding dissection tools or gluing shut cupboards in which they were kept. Their grievances stemmed from not being paid on the same scale as workers elsewhere in the country – the reason being that most have no real qualifications for the jobs they are doing. The Department of Health is, in fact, breaking the law by employing people without the requisite qualifications in the positions they occupy (and there is no shortage of properly qualified personnel). These mortuary workers have now been given the increases they were demanding, and to which they, lacking qualifications, are not entitled. If it is true that mortuary technicians are now paid Level 7 salaries it is an insult to those health professionals (e.g. nurses, paramedics) with degrees and diplomas who receive a Level 6 salary. The current go-slow or strike at Phoenix morgue this past week is again evidence of the attitude of morgue technical staff who are prepared to subject the community to such inconvenience and travail where the next-of-kin cannot receive the bodies of loved ones for funerals, now on the basis that they have not been paid for their overtime claims.

Even when they were not striking the workers behave in a generally ill-disciplined manner – arriving late for work, coming and going as they pleased, and refusing to take instructions from doctors. Proper procedures for the identification and release of bodies are not necessarily observed, facilitating irregular disposal of unclaimed bodies and opening the doors to insurance fraud, and possibly to illegal trade in body parts. National protocols relating to the treatment of unidentified bodies are not adhered to. Appeals to the DOH for errant workers to be disciplined have fallen on deaf ears. Given the lack of proper management, and the failure of the DOH to ensure adequate maintenance, there are serious concerns about health and safety levels to which those who work in the mortuary – including trainee specialists and medical students – are exposed. The arrogance of the workers has extended to their objecting to the teaching of medical students at the mortuary. What the University of KZN is doing about this appalling state of affairs, given the crucial repercussions for the training of doctors, is unclear. The HPCSA has already noted the inadequate exposure of undergraduate medical students at UKZN to autopsies. Attempts by Prof Naidoo to insist on acceptable standards at the mortuary had led to the staff claiming that he is ‘harassing’ them. He has noted that some of the goings-on could amount to a violation of human rights of not only families of the deceased and members of the public in most cases, but also of those innocent and hardworking staff members belonging to the health establishment and police.

For the past few years the DOH had been made aware of the conditions at the mortuary, including the contents of a detailed internal audit done in January 2008, and have been apprised about what steps are necessary to rectify matters. Their response has been for from instructive, for it suggests contempt for professional staff and support of the ill-disciplined workers. For example, when it spoke of ‘re-structuring’ it was the mortuary technicians, not the doctors, who were consulted. In November 2009 a memo to the Health Dept by the mortuary staff questioned Prof Naidoo’s position, claiming he had no authority over them because he was employed on university conditions alone. However, the position he occupies is, in fact, a joint University of KZN/Department of Health one. In June 2010 Naidoo was effectively removed from exercising any control over the mortuary and medical functions by a senior employee who has since left the DOH under a cloud. He was not afforded the courtesy of being informed about this move, made in a letter from Dr SSS Buthelezi to Dr Sageren Aiyer, Naidoo’s colleague and deputy head, appointing him as caretaker manager for Clinical Forensic Pathology services in the province.

A province-wide crisis in mortuary services

Mortuary services all over the province have gone from bad to worse since being taken over by the Department of Health in April 2006. There is a lack of qualified staff at all the mortuaries, and their failure to follow proper protocol in the identification of bodies has been reported. Unnecessary trauma is caused to bereaved relatives by the way they, and the bodies of their loved ones, are treated. At Port Shepstone, for example, if cleaning is taking place an exterior door is left open so, if the cold room door is opened the bodies which are piled up there, which are not necessarily shrouded, are clearly visible to passers-by. This not only impugns the dignity of the dead, but is potentially very traumatic for those in the vicinity, especially children.

Most mortuaries lack essential equipment and even when new mortuaries are built they are not properly equipped and lack trained staff. The new Pietermaritzburg Fort Napier morgue does not have an x-ray machine, nor the services of a specialist pathologist to perform autopsies. Controls over equipment are lacking. According to an eye witness, new body trolleys at Fort Napier were being sold, by staff, to undertakers.

The neglect of forensic services : Defeating the ends of justice?

The services provided by government mortuaries play a vital role in providing evidence in court, but the way they are currently being mismanaged by the DOH, which has had every opportunity to fix the service, could be construed as defeating the ends of justice.

Its failure to provide up-to-date x-ray machines at all mortuaries, which are
essential for x-raying the bodies of gunshot victims, means that bodies from
most other parts of the province have to be brought to Durban – which, given
the logistics, generally does not happen, even when the circumstances of the crime make it imperative for this procedure to take place. Failure to X-ray bodies where deaths have occurred in certain circumstances such as gunshot injuries and child abuse cases, among others, also constitutes a miscarriage of justice.

The lack of training plus the bad attitude of mortuary workers – and the absence of any proper supervision – has potentially dire consequences for the handling and storage of evidence. Bodies are supposed to be sealed in decent quality bags and not opened until the doctor is about to begin the autopsy, and the proper handling of the deceased’s clothing is also very important. Evidence is easily contaminated when (as often happens) these procedures are not observed, or when tissue samples taken are not properly stored. The failure of the DOH to employ properly trained and supervised staff means that valuable evidence is routinely lost to the court.

The shortage of properly qualified doctors is critical, yet the Department seems to value the services of its ill-disciplined and unqualified work force above those of the highly trained forensic specialists it has lost in the past two
years. Autopsies, especially in rural areas, are frequently performed by doctors who have little or no forensic training, with potentially serious consequences for evidential purposes.

The Premier of the province had been apprised of the seriousness of the situation, yet nothing appears to have been done. There is clearly a need for intervention by the National Department of Health – possibly in consultation with the Department of Justice which is a key stakeholder – to ensure that the problems relating to staffing and equipment are sorted out immediately. Also
needed urgently is an audit into how the considerable amount budgeted for
the takeover of the mortuaries by the health department has been spent.

Long-term, there is need for informed debate aboutwhether the Department of Health is a fit and proper body to retain control over these facilities.

 

….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 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].

 

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.

 

 

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)

 

 

         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.