After two days of in loco inspections at Khayelitsha’s three police stations, the first day of the public hearings kicked off on Thursday with an address by Chair of the Commission, former Constitutional Court judge Justice Kate O’Regan, where she explained that the Commission was rooted in two parts of the South African Constitution, namely Section 11’s guarantee that everyone has the right to freedom and security of person, and secondly that our democracy’s law creates a range of checks and balances to hold public power to account.

O’Regan reminded all assembled that the Commission would be informational, rather than adversarial. The aim of the Commission was less about grilling SAPS per se and more about investigating and understanding policing in the area.

Amid the legal arguments and legal to-ing and fro-ing, it would notably be the testimonies of the Khayelitsha residents themselves that mattered the most.

Testifying in front of Justice O’Regan and former National Prosecuting Authority’s Advocate Vusi Pikoli, as well as a handful of savvy legal teams representing the Western Cape Province, City of Cape Town, South African Police Service (SAPS), complainant organisations such as the Social Justice Coalition (SJC) and the Women’s Legal Centre, Friday saw Khayelitsha resident Mzoxolo Tame tell of the ordeal he faced at the Harare Police Station with regards to the investigation of his cousin’s murder.

Commissioners Justice Kate O’Regan and Advocate Vusi Pikoli listen to opening arguments at the commencement of the Khayelitsha Policing Inquiry on Thursday 23 January 2014.

Tame lives in Harare settlement in Khayelitsha. On 19 Jan 2013 he went to the police station after identifying his cousin, Xolisile, in the Tygerberg morgue. While at Harare police station and in an attempt to find out more about the circumstances and details surrounding his cousin’s death, he knocked on the door of the detective assigned to the case. Responding in what Tame describes as a “harsh tone”, the investigating officer in question did not waste any time in allegedly informing Tame, “The laaitie was caught halfway through a window, breaking in, and he was moered”.

Watch: Mzoxolo Tame – Khayelitsha Resident – Khayelitsha Commission

The investigating officer then told Tame he was rushing as he had a court date. When asked about the legal recourse Tame’s family had and the case against the three suspects who has allegedly murdered his brother, the detective responded that they would get bail because they did not have a previous record and that he “would be wasting [his] time” in court as his cousin was “caught in the act”.

“I didn’t believe I was treated with the respect we deserved as a grieving family… The tone of his voice, the manner in which he conducted himself… he was doing other things, I was not even offered a seat. I was given less than 10 minutes of his time,” Tame said.

Tame claims he made appointment with supervisor to lodge a complaint, where he was assured that the detective was “the right guy to investigate the case”.

“That was the last communication between myself and Harare Police station.

“[We received] no feedback from [sic] the complaint. I don’t know what happened with the court case. I felt it was the police’s responsibility to contact us,” Tame testified.

When asked by the Commission’s evidence leader, Adv. Sidaki, what his impressions of Harare police station were, Tame replied, “I don’t think they understand the fundamentals of what they are doing… [it is] like they are doing the community a favour”.

In his cross-examination, Norman Arendse SC, representing SAPS, informed Tame that his grievance was under investigation.

After his testimony, Tame told The Daily Maverick, “I was surprised and shocked when Arendse said [the investigating officer] was suspended and would be facing disciplinary charges”.

“[SAPS] should understand justice, how it applies to victims, the innocent as well as the criminals. The police are the most important part of the justice system. Their role is to gather information and take it to the courts,” said Tame.

He added, “[Our family] are not condoning what my cousin did, but a court of law should have been the ones to determine if he was innocent or guilty, not SAPS.

“I believe the conduct of the investigating officer was biased towards the accused. When he indicated that [the alleged murderers] would get bail, he should have taken the seriousness of their crime into account… that they were first-time offenders and had a permanent address is not the only criteria that is used [for bail applications] in a section 6 murder charge.

“I lost hope on [sic] the system,” he continued. “I never attended the court dates because they had our [family’s] contract details but they never got back to us…

“The last I heard the bail case was postponed until March 2013. Then there was no feedback,” Tame said.

In his opening statement on Thursday, Adv. Arendse said, “Residents of Khayelitsha live in an abnormal society, one that is poverty-stricken as a result of its Apartheid design.” He added that the in loco inspections had revealed that Khayelitsha police “operate in difficult and dangerous circumstances” with a lack of lighting, roads and a high density of shacks. He drove the point home that the “socio-economic context is essential” and that the province needs to rectify this.

Norman Arendse SC (left) is representing the South African Police Service (SAPS).

He went on to argue, however, that “the Police Service is fully functional in the Khayelitsha area”.

“Rather than blaming police, the police should be commended… we will submit evidence to show that there is no systematic failure… that there is an increase in the number of crimes being reported, that shows confidence in the police.”

The Khayelitsha Commission got off to a halting start after Police Minister Nathi Mthethwa first took to the Cape High Court in 2012 and then The Constitutional Court in 2013, in a failed attempt to stop Helen Zille’s inquiry in its tracks.

While agreeing that Khayelitsha faces rampant and systemic underdevelopment with residents’ socio-economic rights being continuously violated from Apartheid up until now, Ndifuna Ukuwazi’s Zackie Achmat neither believes that Arendse’s argument is mutually exclusive with that of poor policing, nor that it lets SAPS off the hook.

Achmat told The Daily Maverick, “Khayelitsha represents a microcosm of the problem [with our police force]. For the first time, this Commission is laying bare what is wrong at the station level. We are seeing how national decisions are impacting at the station level in terms of resources, but also a culture [of policing].  We needed an investigation into how the stations are an interface between the police and the community.”

To show community solidarity with those testifying in the Commission, on Thursday afternoon the SJC and partner organisations such as the Treatment Action campaign (TAC), Equal Education and others led a march through Khayelitsha that ended at the Commission’s venue, Lookout Hill.

Khayelitsha residents listen to the simultaneous isiXhosa-English translations in their headsets during the first week of the Commission’s public sittings.

Making an oral submission on Friday, 25-year-old Khayelitsha resident and General Secretary of the primary complainant organisation, The Social Justice Coalition (SJC), Phumeza Mlungwana told how she used to get robbed on her way to school and that her family once discovered a dead body in her backyard – but that “we were never questioned by the police about the body”. She went on to highlight how dangerous it is to use a public toilet at night, as residents often get robbed and sometimes assaulted, raped and even murdered.

In her testimony she conceded that SAPS couldn’t act alone; that the community needed to play a role in ensuring a safer community.

Speaking to The Daily Maverick of her experience and involvement in the Commission, Mlungwana said,  “It was a bittersweet experience… it was good to finally be able to sit there after years of pickets and being in court.”

Mlungwane explained, “There are some good police, but hopefully the Commission will put the bad apples under the magnifying glass… I hope we get resolutions that both the police and leaders from all levels of government, from the city to province and national level will learn from and adopt. But also ordinary residents themselves have a very important role to play, to keep tabs and help bring about more safety in Khayelitsha.”

One such resident is Bishop Mtsolo. As the first witness to testify, on Thursday Mtsolo explains he spends a lot of his time visiting schools in the area in an attempt to get youth gangs to stop being violence and taking their weapons to school. He is also involved in a neighbourhood watch program.

With regards to youth gang fights, he told the Commission that the police do arrive but that “they need to improve their turn around time”. He added that if the police were “more visible”, had “bullet proof vests, more patrol vehicles” then “I can tell you the crime will go down… people have forgotten the law”. Mtsolo wants the law to deal more “harshly with criminals” so that they are not “behind bars today and out tomorrow”.

On both Monday and Friday the Commission took an emotional turn. Prior to Tame’s oral submission, Nomakhuma Bontshi, aunt of deceased Andile Mtsholo, gave her submission in isiXhosa (simultaneously translated through the headsets provided by the Commission).

She explained that after receiving a call from a family member on Friday night, 18 May 2012, community leaders requested her presence at a meeting at her nephew’s house. Upon arrival and seeing one of bedroom doors broken down and the sliding door open with residents inside, she was told that the residents wanted to remove Andile (30 years old at the time) from Khayelitsha because he was “giving them problems, they were complaining he was stealing people’s cell phones…” and also that he was allegedly supplying youth in the area with drugs.

“They said they would pack his bags and chase him out of Khayelitsha that night… some people were very angry…”

The family felt they had no choice but to agree with the community’s decision. Their main concern was that “Andile should get out of the house” so that “he [was] not harmed”.

The community leaders agreed that the family would be called to watch him chased out of the area. In the interim, Bontshi returned home and went to sleep. Her family did not receive a call notifying them of when they could return. The next morning Bontshi received a call from another family member informing her that Andile had been found “in a field and burnt to death”.

“We did not report it to the police as we did not think they could do anything,” she testified.

There was a crowd gathered around his house, not far from the field where his lifeless body lay. She stood far from the crowd, but could see that “Andile was burned, his face was black. All I could say was Tixo (God), oh God.”

Afterwards she turned away, heartbroken, and asked herself, “Why would people be so cruel?” Some of the people gathered around the body had attended the meeting the night before. She was already back at home by the time the police arrived at the scene.

When asked by the Commission’s evidence leader Adv. Sidaki if she ever spoke to the police ever again after that, she replied: “Hayi (no)”.

“Did you ever find out if anyone was arrested, in relation to this incident?” asked Sidaki.

“Hayi (no)”, Bontshi answered.

Bontshi started crying before Adv. Arendse began his cross-examination. O’Regan offered her the option of taking a break, saying, “I know this is very difficult for you,” but Bontshi opted to continue.

Arendse began by saying, “What you experienced was unacceptable. On behalf of my clients, the police and everyone in this room, I say to you this should not have been allowed to happen.”

He prefaced his questions by saying that he didn’t intend to be insensitive but later seemed to try to establish whether Bontshi knew who the perpetrators of the vigilante killing might be. O’Regan interjected, explaining that his line of questioning seemed to be determining guilt or otherwise, and that was not the purpose of the Commission.

Again, on Monday, one of the witnesses broke down. When asked about the circumstances surrounding an apparent criminal event on New Year’s Eve in 2012, Zolani Magadla began crying. The Commission’s secretary Amanda Dissel had already confirmed to The Daily Maverick on Thursday that they had trauma counsellors on standby.

Also on Monday, GroundUp reported that both Advocate Pikoli and Justice O’Regan expressed frustration at the SAPS’ inability to provide the necessary documents and requests to cross-examine those giving oral testimony in a timely manner.

Rebuking Adv. Arendse and the SAPS legal team, Chairperson Justice Kate O’Regan said, “I think your self-assessment of your progress so far is unduly glowing. It has been your client, again and again, who has not complied with the rules.”

Achmat told The Daily Maverick, “So far we have seen that there is a large degree of openness. The police are providing documents, even though there are delays. This is essential for the right of access to information in South Africa… Just by speaking in front of a former Constitutional judge, former NPA head and senior lawyers from the province, SAPS and city, with the media there, this Commission is giving people a sense of justice.”

SJC’s Phumeza elaborated that while the recommendations of the Commission would be Khayelitsha-specific, she believed that that the challenges facing Khayelitsha were not unique. “I hope this will be a starting point for other commissions or at least a broader strategy for safety through the country,” she said.

The Commission of Inquiry is due to hear testimony from a number of other residents, including academics, gender activists and black lesbians about the police’s investigations into rape and other crimes, throughout the course of its first sitting. The public sittings for phase one of the Commission will be held until Friday 21 February 2014.

On Tuesday, Funeka Soldaat told the Commission of her experience of being brutally ‘correctively raped’. Like many of the other black lesbians assisted by Soldaat’s community-based Free Gender organisation, her rape was made worse by the blatant homophobic stigma and casual insults she contended with when she reported the crime at her local police station.

Mzoxolo Tame ended his interview with Daily Maverick by saying that that the Commission had given him a renewed sense of hope. “I am going to call the Harare police station this week to get an update on the case against my cousin’s alleged murderers,” he said. DM

Main photo: Kate Stegeman.