The past two weeks of the Khayelitsha Commission of Inquiry have seen detectives hauled over the coals and struggling to defend themselves for not delivering dockets to court and failing to investigate adequately serious and violent crimes such as rape, murder and gang violence. Plus it’s not like the IPID and the police top brass are exactly coming to the Khayelitsha community’s rescue, either. By KATE STEGEMAN.
After weeks of testimony from local NGOs, academics, forensic experts and Khayelitsha residents – many whose relatives have been murdered – members of the South African Police Service (SAPS) appeared before the Khayelitsha Commission between 13 and 21 February.
Based on a review of SAPS documentation before the Commission, evidence from retired SAPS officials Mr Martin Leamy and former deputy provincial commissioner Mr Glenn Schooling, found officers in Khayelitsha’s three police stations to be under-resourced and ill-disciplined. (Khayelitsha has three police sub-districts – Khayelitsha Site B, Harare and Lingelethu-West.)
The Schooling-Leamy report states, “There is a serious need for further training of detectives; ultimately if cases are not solved, it leads to the public losing faith in the police.”
Some weeks ago the Commission heard from Ms Rochelle Harmse, Senior Public Prosecutor at Khayelitsha Magistrates’ court, who testified about the seemingly entrenched and pervasive problem of detectives not bringing dockets to court, leading to numerous serious and violent crime cases being struck off the court roll – a practice which she said severely interferes with the administration of justice.
Photo: Commissioners Advocate Vusi Pikoli and Justice Kate O’Regan listen to witness testimony during the Commission
Her evidence is echoed by the Schooling-Leamy report, which states: “From the documents made available, it is clear that docket management and their referral to court is highly problematic. This is primarily due to incomplete investigations, or secondarily when dockets are not brought to court… a year on trend analysis shows an increasing inefficiency in the management of dockets and their referral to court.”
The first SAPS member to appear before the Commission was Lingelethu-West station commander, Colonel Michael Reitz. He oversees 175 staff members and 37 SAPS vehicles.
Much of Colonel Reitz’s testimony was punctuated with the refrain “no comment” and dedicated to denying that there was a crisis of policing in Khayelitsha, although he admitted: “We only have four people in the detective crime office so more would be good, but we are not overwhelmed.”
On Friday 15 February, the Legal Resource Council’s Advocate Peter Hathorn, on behalf of the complaint organisations, said that he felt it only fair to inform Reitz that at the end of the Commission he would be recommending that he be dismissed from the Lingelethu-West station commander position.
With reference to the Lingelethu-West station, the Schooling-Leamy report found “from a logistical support point of view there is a lack of computers, printers, telephones and hand radios… and there is no area for the public to use as a waiting room”.
Photo:Lingelethu-West station commander, Colonel Michael Reitz recently gave evidence at the Khayelitsha Commission
Reitz’s second-in-command, Lieutenant-Colonel Barend Swart, who manages the detective unit, gave evidence that suggested there was not just a shortage of resources such as computers, but that he would appreciate some technologically inclined training, considering that “my whole life I’ve been working outside… I can’t even properly work a laptop computer.”
During his testimony, some of the issues that came to light included his unit’s cases being struck off the court roll after an accused had been held in custody longer than the requisite 48 hours before appearing in court. Justice O’Regan asked Swart why those accused were not subsequently re-arrested and brought before court on another occasion, but her question went unanswered.
Later in Swart’s testimony, the Commission’s evidence leader, Advocate Thembalihle Sidaki, asked the detective head if he would concede that lost or delayed dockets were an indication of police inefficiency and tantamount to a dereliction of duty. Swart answered “No”, and that lost dockets were usually one-off cases – that it was often the prosecutors who had lost track of the dockets rather than detectives failing to deliver them to court.
When asked to rate his performance, Swart said that he generally gave himself “a three out of five”. Justice O’Regan, chair of the Commission, pointed out that Swart could only give himself a four if the detectives under his command successfully identified a perpetrator, but that in many rape and murder cases this did not happen.
Rather than being defensive, last Monday Site B station commander Brigadier Zithulele Ndladla admitted that his station was struggling as a result of staff shortages. “The RAG [resource allocation guidelines]… I don’t know how they do it. I’m not satisfied with the personnel I have. I need more personnel,” Ndladla said.
Photo: Evidence leader Adv Sidaki leads witnesses through their testimonies at the Khayelitsha Policing Commission
As only the RAG can determine the number of staff and resources needed per police station, Ndladla was unsuccessful in his appeal to Western Cape police commissioner Arno Lamoer for more officers.
Schooling-Leamy’s findings also pointed to the fact that at Site B SAPS in 2012, three detectives carried more than 300 dockets, adding: “[I]n our view no detective should have to deal with even 50 rapes or murders.”
Referring to the rest of his detectives dealing with an average of 160-180 dockets, Ndladla said, “In the movies you see a team of detectives descending on a crime scene. Here you have a team of dockets descending on a detective.”
Casting the spotlight at Harare SAPS, the Schooling-Leamy report found that there were 50 detectives, of whom 21 carried more than 200 cases each – and “that it appears that one investigator carried over 600 cases, but this may well have been an error in the documentation as we find this hard to believe… once again we question the data integrity.
“The statistics are worrying in that… ‘unsolved cases’, ‘cases not finalised in court’ and ‘cases on hand’ increased by 969 cases from 2010 to 2011”, states the report.
The report goes on to add that at Harare, “it is highly unlikely that proper investigative work can take place under these conditions and in our view the detective branch is dysfunctional”.
Schooling and Leamy conclude that “[t]he basic command and control elements of first and second level inspections at Harare SAPS are also not functioning effectively; this represents a sweeping pattern, between all three Khayelitsha SAPS stations, of ineffective supervision by the responsible commanders” that represents “a dysfunctional overall picture” which in turn “handicap[s] the SAPS from carrying out their basic crime prevention duties, exacerbated by ineffective accountability processes”.
Testifying before the Commission last Friday, Colonel Andrew Tobias, who served as Detective commander at Harare from March 2007 until December 2012, told of how he personally a developed a crime scene check list for his detectives, including what to do and who to call. Colonel Tobias went on to say that his door was always open to residents and that he was respected in the community.
Echoing Lingelethu West’s Detective Swart, Tobias testified that sometimes detectives are not to blame for delayed dockets that often pile up unnoticed on a prosecutor’s desk. He went on to say that on one occasion, when one of his detectives was ill and a docket was locked in his cabinet, Tobias himself broke open the lock and took the docket to court, adding that that was how much he cared about his work. “I put the docket first, not the cupboard,” he said.
Photo: Colonel Andrew Tobias, former detective commander at Harare station (centre) converses with SAPS colleagues after giving his testimony
Asked by Hathorn in his cross-examination why there were 70 case dockets “unaccounted for” in the report, Tobias said: “All the dockets are accounted for.
“It was just misplaced on a table… it wasn’t physically there for the inspection team to see,” he said, adding that “some were in court or on another officer’s desk”.
Colonel Tobias went on to confirm Advocate Hathorn’s assertion that only 23.48% of his station’s cases made it to court, adding that sometimes dockets are delayed because of “human mistakes” made by police.
In Colonel Tobias’ five years at Harare station, 829 murder cases were reported, with 440 making it to court and 66 resulting in convictions.
Tobias testified that when considering the number of cases reported versus the ones that went to court, “you need to ask which are solveable. We worked hard on those and we solved them.”
In 2011, 72 out of 154 of Harare station’s cases went to court. Representing SAPS, Advocate Norman Arendse SC said, “Nearly 50%… that’s quite high”.
According to a Cape Times report, Advocate Hathorn drew the Commission’s attention to a task team report by the late Sean Tshabalala, which highlighted 93 cases of “police-initiated crimes” at the Harare Police Station in December 2011 being withdrawn due to outstanding blood alcohol reports and inadequate investigations.
The Independent Police Investigative Directorate (IPID) investigated approximately 130 criminal complaints in the space of three years against Khayelitsha-based police officers. Last year alone there were 76 complaints against officers, yet IPID only recommended action in 11 cases.
According to the Social Justice Coalition (SJC), in an alleged case of police brutality, Adelaide Ngogwana, a woman in her 70s, was shot in the leg outside her home, when the police opened fire in a crowded area in Khayelitsha’s RR section. On her behalf, the SJC lodged a compliant with the Independent Complaints Directorate (now known as the IPID) and the case was subsequently referred to the Provincial Inspectorate (PI) – the province’s investigative body.
SJC’s Joel Bregman told Daily Maverick that Adelaide Ngogwana’s reckless shooting and subsequent lack of recourse from SAPS was one of the cases that prompted Premier Helen Zille to instigate the Commission of Inquiry into Khayelitsha Policing, which in turn faced a Cape High Court interdict and unsuccessful constitutional court challenge from Police Minister Nathi Mthethwa.
In April 2012, seven months after the incident, the SJC received a two-page report from the PI that the police had been returning fire while pursuing an armed suspect, that they had accidently injured Ngogwane and that the matter was now considered closed. Ngogwane is now deceased (from old age), but prior to her death she neither received any compensation for her injury, not was she contacted by the PI regarding the outcome of the investigation.
Gareth Newham, Head of the Governance, Crime and Justice Division at the Institute for Security Studies, told Daily Maverick that country-wide, of all cases referred to the IPID, “only 1% result in criminal convictions, with 99% of officers being acquitted”.
He added that complaints to the IPID have increased by 300% in the past few years. Furthermore, litigation against the police has risen to R18. 2 billion, a big jump from R7 billion 3-4 years ago. Of those court cases, very few crimes are being successfully prosecuted and a very small number of unfit police officers are being removed from their posts despite evidence of misconduct.
Newham says that Khayelitsha is but a small part of a systemic police problem, and violent crime escalating out of control, adding that the problems plaguing policing in the area are nothing new. They are not unique either, being experienced elsewhere in the country too.
Newham explained that a Police Advisory Council set up between 2006 and 2008 by then-police head Jackie Selebi to visit 75% of police stations around the country, showed that “losing dockets, high levels of ill-discipline and high levels of corruption… are not unusual” and that it as “quite remarkable that nothing appears to have come of those findings”.
“I don’t know where [the findings] have gone… a lot of money was spent on the study and it was a thorough investigation… the reports should have gone to the Minister [of Police],” says Newham.
When Daily Maverick asked Newham what was needed to address the country-wide dilemma, he said, “We need a fundamental overhaul of the senior leadership of the South African Police Service, in line with the recommendations of the National Development Plan, which recognises the crisis of leadership… the Khayelitsha Commission will address the consequences of that, but it won’t get to the root of the problem.”
He went on to add that there are many “good, hard-working and professional police officers that aren’t being recognised and promoted… However, under both Selebi and Cele, there were many appointments that were not suitable – people who lack integrity and technical know-how.”
Over and above that, Newham is concerned that the credibility of the police top brass are compromised by political loyalty and national interference, and there is a reluctance of officers from the top down to investigate their own.
He does not believe that appointing Commissioner Riah Phiyega was the right call, explaining that her experience is administrative rather than in the area of “strategic policing decisions”. Furthermore, no action has been taken to get to the bottom of the “serious allegations facing Richard Mduli”, he says.
Newham believes, however, that with a serious intervention, an improvement in accountability, stronger systems of support and overhaul of leadership based on proper recruiting, “South Africa could make some headway in fixing the police in three to five years”. DM
Main photo: A police officer stands guard outside Lookout Hill, the venue of the Khayelitsha Commission of Inquiry.
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