Last week Dr Genine Josias, Principal Medical officer at Khayelitsha’s Thutuzela Forensic Centre, shocked the Commission when she testified that in 2011 the Children Protection and the Sexual Offences unit (FCS unit) within SAPS lost her centre’s sexual assault evidence collection boxes, which were eventually found “dumped in a field in Delft”. In her founding affidavit she added, “This was very disturbing, disappointing and shocking… all the work that had been put into collecting that forensic evidence, [the] meticulous methods used… went to waste” and as a result “our trust and faith in the work of the police in the Khayelitsha FCS unit was shaken considerably… [they] had failed miserably in their respective duties of discipline, control and management.”

Her damning oral submission didn’t end there. Josias went on to accuse the police of poor response times generally and gross incompetence in 2010, in particular with regards to properly investigating her claim that a serial child rapist was operating in Khayelitsha. After the Thutuzela Centre had attended to approximately five separate cases of young girls that had all been admitted with “severe bleeding and deep genital tears”, suggesting that they had been raped in a similar manner, and with all survivors reporting that the alleged perpetrator was an adult male who had coaxed them towards a bush in the same area, her hypothesis was called into question by the SAPS, who refused to see the pattern she and her medically trained colleagues had identified. Only after threatening to contact the media and risk her job in the process, police agreed to a meeting. The issue was escalated to the provincial commissioner but “a task team set up took 18 months for the perpetrator to be arrested. By that time twenty-one rapes and a murder had taken place,” she said.

A police officer stands guard outside Lookout Hill, the venue of the Khayelitsha Commission of Inquiry.

Josias questioned why the police took so long to solve the crimes perpetrated against the little girls and added, “The failure to listen and engage [the community] was reckless and went against their call of duty… [it was a] travesty of justice”.

According to last week’s testimony from Funeka Soldaat, founder of community based LGBTI rights advocacy organisation Free Gender, the Khayelitsha police’s response to her rape in 1995 was also inconclusive, insensitive and marred by homophobic stigma. According to a Mail & Guardian article published last Friday, after being told by officers at Khayelitsha’s Lingulethu West police station she would have to wait because there was no transport available to take her to the hospital – which she could not access anyway without a police letter – Soldaat eventually walked, barefoot, to the Khayelitsha Site B police station but “by the time it came for me to lay a complaint, a police officer looked at me from head to toe. He asked me what had happened. I told him I was raped… he didn’t take my statement and he went to talk to other police officers. They came and asked me what happened. It looked like they were considering my sexual orientation.”

Soldaat told the Daily Maverick that “for years the gay and lesbian community didn’t have any communication with SAPS, but then we held a conference in partnership with the police in 2011, after being in contact with the Deputy Police Minister [Maggie Sotyu], so we could identify cases that we have a problem with, to work together to make sure the many rape cases against black lesbian women would finally make it to court.”

However, Soldaat told the Daily Maverick that even though they were trying to get past so-called corrective rape cases prosecuted, this did not include her own case.

“No, I have left it alone,” she said.

Funeka Soldaat, raped in 1995, testified that she was mistreated by the police when she reported the crime.

Soldaat added that since Free Gender and other community members managed to create the platform, “the relationship with the police has been improved”, but although most of the lesbians she works with will now comfortably report instances of sexual assault and the issue is being given attention by some politicians and high ranking police officers,  “I don’t know if the change in attitude really sinks down… some police still seem interested in the way we are dressed [when we report crimes]; they are curious.”

She tells the Daily Maverick that another lesbian was raped this weekend in Gugulethu, but that she went to [Josias’] Thutuzela centre and “compared to how it was for me, at least it is better now… even if the bad comments still exist, you will still be assisted now.”

On the first day of the hearings, Justice O’Regan welcomed the Makeke family to the Commission. Sitting with other members of the public, Mr and Mrs Makeke – parents of Nandipha Makeke, a TAC activist murdered in Khayelitsha eight years ago – listened closely to the various legal counsels’ opening arguments translated into isiXhosa via the headsets provided by the Commission. Afterwards, accompanied by a translator, Daily Maverick visited them in their home in Harare section, where Nomthandazo Makeke told how Nandipha was out with friends on the 16 December 2005 when a group of men approached her and demanded at gun point that she come with them.

“They took her to an open field and after they finished raping her, she called out the name of the one man whom she knew and then he shot her in the forehead… and dumped her in a toilet,” Makeke said.

She went on to explain that she had to go to the police station twice, as the statement she gave the first time went missing. Makeke believes that the police did not do enough to collect evidence, and if it were not for the Treatment Action Campaign (TAC), who sent their members to hospitals to collect the evidence from the rape kit, she is not sure that the accused would have been sentenced. Furthermore, she said, “The way the police handled the case was a problem. Sometimes we [the family] were not notified of the trial dates… [On other occasions] we could not even get into the courtroom because the police did not tell the court who we were when the courtroom was full. I don’t think the police care about the victims’ families.”

Police officers sort through boxes of case files and other documents to be admitted as evidence before Justice Kate O’Regan and Adv. Vusi Pikoli.

After a number of postponements, the case took over four years to reach its conclusion and only two of the four suspects were convicted. Because some of the accused were released, Makeke told Daily Maverick, “I do not feel safe. They know where I live. What happens when the others get released? If they come here then the police might be delayed to respond to my call for help.”

Makeke ended her interview by saying that the best way to bring about more safety in Khayelitsha would be the introduction of mobile police stations.

In his opening statement on behalf of SAPS, Adv. Arendse told the Commission that the Makeke murderers were “apprehended, sentenced and brought to justice”. While this may be the outcome, one cannot ignore the fact that this is largely a result of public pressure and the advocacy efforts of civil society organisations such as TAC, including sustained protest action as well as assisting with the collection of forensic evidence.

Arendse’s often repeated argument that many of the police are doing their best in incredibly challenging circumstances such as badly lit, narrow streets rings true; also his suggestion following the oral submission by housing and development activist Josette Cole that three stations might not be enough to attend to the needs of the growing population in the area. Most witnesses and legal counsel’s involved in the Commission of Inquiry agree that the police are under-resourced and under pressure.

Nomthandazo Makeke, looking towards her husband and comforting a community member’s baby, attended the first day of the Commission’s hearings. Her daughter was raped and murdered in 2005.

On Monday, after suspended Cosatu General Secretary Zwelinzima Vavi sat in the public gallery listening to witnesses give testimony, he told Daily Maverick: “I am here to show support to the work done by my comrades in civil society… the Social Justice Coalition asked me to come and listen.” He added that that he also hoped to testify at the Commission about the police’s alleged inadequate response to the murder of a relative living in Khayelitsha.

Vavi explained that he was in Cape Town after attending the funeral of the daughter of his niece, Busiswa Sizaba (25 years old) this past Sunday after she was “stabbed to death three weeks ago” in the Harare section of Khayelitsha. While at the funeral Vavi said he listened closely to community and family members who spoke of the “frightening account of what they had to go though, why she was killed and by whom”.

After she died on the Friday night, Vavi claims that “the family were not told until the fifth day… the police only arrived at her granny’s/ my niece’s house on the Tuesday”. He went on to allege that the deceased’s boyfriend, “a well-known criminal”, is the primary suspect but despite there being blood in his house, suggesting that she was murdered there, “her body was thrown into the street” afterwards, where it was later discovered by the police.

Vavi maintains that despite the blood being evidence enough to make an arrest, the suspect is “still roaming the streets” and has not been taken into custody.

Reflecting on the funeral, Vavi explained that he had heard from a number of people that “firstly the community fear criminals, that they are a law unto themselves and that the police are unable to apprehend the perpetrators of crimes” and secondly that “they trust that justice will be done by taxi drivers”.

When Daily Maverick asked Vavi if he had any faith in the Khayelitsha police and their duty to uphold safety in the area, he responded: “None”.

With regards to the outcome of on the Commission of Inquiry, Vavi said, “This is just the tip of the ice berg; of a bigger problem… we can’t think about this happening only in Khayelitsha, it is happening throughout South Africa. The police stations here are the same as other places in the countries where police vans are not working, the police are absent, police stations are stoned by angry residents… We can only guess at what is going on in the deepest rural areas of the country”.

Vavi’s account of the alleged mishandling of his relative’s murder investigation bears a similar resemblance to that of a witness who testified last Thursday. The mother, whose name has been withheld to protect her safety, shared a harrowing testimony about the circumstances surrounding the murder of her 22-year-old son on the night on 9 November 2010. She alleged that her son’s girlfriend’s ex-boyfriend and three of his friends entered her family home armed with guns and “glasses from the tavern” in order to kidnap her son. While there, she claims they also stole steal their TV, DVD player and cellphones. The witness went on to testify that “they dragged my son outside; [with him] screaming ‘Mummy, Mummy, help me!’” and then the suspects drove away in three cars that were seen by eyewitnesses down the road.

After alerting the police to the kidnapping, it appears that they responded swiftly and a thorough investigation followed suit, resulting in the police tracking down the two of the cars driven by the suspects. After pulling them over the police found the suspects in possession of the stolen items and “a plastic bag of clothes” smeared in blood. Not long afterwards, the cops apprehended another suspect “wearing his same clothes covered in bloodstains” as well as his bakkie “with bloodstains on the top”.

The police then recovered her son’s lifeless body, riddled with five gunshot wounds.

All five suspects were charged, appeared in court and were sent to Pollsmoor prison. Despite the court case being delayed a number of times, the deceased’s mother testified that the original investigating officer assigned to the case kept her continuously up to date, even visiting her at her house. By all accounts, the physical evidence tying the accused to the murder should have resulted in swift conviction. Yet the next she heard the investigating officer had left the station in question and had been replaced by another detective.

The witness then explained that after a lack of feedback from the new officer she heard rumours that the parents of the main suspect [the ex-boyfriend] were attempting to bribe the investigating officer in order to get their son released on bail. The witness claims she called the investigating officer on his cell phone and he allegedly “promised me he would never do that”. Next, the witness heard a rumour going around her neighbourhood that all the suspects were due to be released on bail.  She called the investigating officer once again saying that she feared for her and her daughter’s safety if the suspects were released as they knew where they lived.

The next day all five suspects were released. The witness went on to explain that she tried to call the investigating officer once again “to ask him why her lied” but that he did not answer her call. From then on she struggled to reach him. She eventually laid a complaint with his supervisor at the police station in question, but all she was told was that the “the docket [pertaining to the case] was at the high court”. There was no further follow up or feedback from the police.

The witness then told the Commission that her family felt “if the law cannot take its course then they want to avenge [her son’s] death. I told them to calm down, that there is another place. That I am going to the Commission.”

As the bribery allegations made in her oral submission were not part of her founding affidavit and were criminal in nature, Justice O’Regan asked that the name of the officer implicated be struck from the record. When O’Regan went on to state that the matter will be investigated by the Commission, Adv. Arendse interjected, “I want to undertake publicly that the relevant case number will be taken up by the police at the highest provincial level… We will try to get some answers for you before this Commission of Inquiry ends.” Arendse then went on to say that the leads and evidence collected suggested that this case should have been successfully prosecuted and without so many delays.

In the meantime, the suspects are at large and the witness says that her daughter has seen the suspects loitering near their house, pointing at her. “We are scared for our lives”, she testified.

In his address to the Portfolio Committee on Police in Parliament last Wednesday, with regards to his nomination of McBride to head up the IPID, Police Minister Nathi Mthethwa referred to the current “perception in impunity” surrounding the police. Following the meeting, Daily Maverick caught up with him, just before he slipped into the elevator, to ask how he felt about the Commission – considering that he went to the Constitutional Court in an attempt to stop it.

He briefly replied, “The process, as far as I know, is going ahead at the moment… let’s give it a chance…” before getting into the elevator with his entourage.

The question now remains, ‘Who is policing the police?’ The Khayelitsha Commission still has some weeks of public hearings ahead of it and it will be some time before Adv. Pikoli and Justice O’Regan’s findings and recommendations are finalised. Time will tell if the IPID will have some teeth under the directorship of Robert McBride, and in the meantime one hopes that Vavi’s niece’s daughter’s murder won’t go the same route as that of the other witness’ deceased son. Or, for that matter, that any other Khayelitsha residents will not be afforded their full rights and the protection of the police if they are unfortunate enough to be the victim of a crime. DM

Read more:

• Police van hits child at GroundUp
• Khayelitsha Policing Commission at Daily Maverick