The transcripts of the public sittings of the Khayelitsha Commission now run to over 6,000 pages. They are pages which are by turns harrowing, poignant, frustrating and – at points – unintentionally farcical. Try this Inspector Clouseau-like exchange between advocate Peter Hathorn, representing complainant organization the Social Justice Coalition (SJC), and Colonel Andrew Tobias, who spent almost five years as head detective at the Harare police station in Khayelitsha, and described his time there in upbeat, successful terms.
Hathorn presents Tobias with a table laying out criminal conviction rates for cases from the Harare station during the first quarter of 2011. “Colonel, can I just make sure that I understand the information in this table correctly,” he says. “Of the cases that are reported, for every 100 cases that are reported it is just over three of those cases will result in a conviction, is that right?”
“It is absolutely not right,” Tobias responds, presumably stirring hope in everyone shocked by that chillingly low conviction rate. Tobias has been at pains to defend the reputation of the SAPS, six times invoking an excuse for various forms of police malpractice along the lines of: “We are working with humans who make mistakes so there will be mistakes”.
“Then can you explain to us what that conviction rate is?” Hathorn asks.
Tobias explains that he will get to that. “I just want so that all of us understand where that 3% comes in,” he says. “That 3% is cases that went to court and was convicted.”
Hathorn: “So you are saying that of every 100 cases that are reported at the Harare SAPS the percentage of cases [which go] to court, the figure that we get there is 23.46%, is that correct?”
Tobias confirms that this is correct.
“And so of those 23.46% of cases that get to court you only get convictions on 3.38% of those cases, is that what you are telling us?” Hathorn presses.
“That is 100% correct,” Tobias responds.
“So in other words it is a fraction of 1% of every 100 cases that are reported that you are getting convictions?” Hathorn asks.
Tobias: “If I look at it like that, it is correct, Commissioners.”
Hathorn: “So it is even worse than I thought it was, I thought it was – I thought that just over 3% was bad enough. Now you are telling us that it is substantially worse than that.”
It reads like a dark satire, except that it’s all true. Numerous witnesses throughout the inquiry have stated that although there are factors which make policing in Khayelitsha particularly difficult – high density of dwellings, lack of lighting, inaccessibility to vehicles – the problems which community members have experienced from police are far from unique to this township. This is one of the reasons why the record of the Commission’s proceedings is invaluable: has such a detailed picture of policing in one area in South Africa ever been previously drawn on this scale?
The criminal case currently receiving unprecedented attention in this country – the murder trial of Oscar Pistorius – has drawn expressions of shock and horror due to the exposure of police bungling at various points of the investigation. What the Khayelitsha Commission’s hearings have made clear, however, is how magnificently efficiently police have handled the Pistorius matter compared to a quotidian criminal case in Khayelitsha. It is poetic irony that the Pistorius trial and the Khayelitsha Commission have been playing out simultaneously, in fact, because the contrast in what is coming out of both exposes yet again the two-tiered criminal justice system in South Africa: one for the rich, one for the poor.
Testifying early on, SJC general secretary Phumeza Mlungwana said she had been told by an associate that she could never expect Khayelitsha to be like Rondebosch (one of Cape Town’s upmarket, leafy suburbs).
“For me it is sad because I do want Khayelitsha to be as safe as Rondebosch, as safe as it is, but I am not saying I want Khayelitsha to be like Rondebosch,” Mlungwana told the commission. “I want the police service in Khayelitsha to understand what they are dealing with, to understand the nature of different communities they are dealing with, to understand both informal settlements and formal areas and the challenges that exist in those communities.”
Many of the witnesses at the commission have evinced this same poignant pragmatism: we understand that this township may never be as safe and well-resourced as formerly ‘white’ areas, but could we get just a little bit of help from police? Others expressed a more certain fatalism.
“The police do not care about people,” witness Malwande Msongelwa testified. “They don’t care about what happens to a person…They don’t even care if you are injured. They come and they don’t even touch you with their hands. They don’t even help you when an ambulance hasn’t arrived. They just stay inside their cars to wait for an ambulance.”
The commission heard, over and over again, tales of police failing to respond to phone calls unless a personal contact was invoked; of police failing to barricade crime scenes and letting onlookers contaminate evidence; of police losing dockets and neglecting to communicate any case progress to the mothers of murdered children; of police robbing and extorting money from the very people they are tasked with protecting.
It’s hard to pick one example as more egregious than others, but a stand-out incident – initially exposed by Cape Town tabloid Die Son – was relayed to the commission by Genine Josias, head of Khayelitsha’s Thuthuzela Care Centre (a one-stop-shop catering to the needs of survivors of sexual violence). In 2011, sexual evidence kits – containing panties and vital DNA evidence – were found abandoned in a field in Delft. It emerged that the kits had been dumped after being kept at the home of an investigating officer who had subsequently died. Because the evidentiary value of the kits had been destroyed, the cases could no longer be investigated.
Josias told the commission, too, of her belief that a serial rapist was operating in Khayelitsha in 2010. Josias drew the similarities between a number of extremely violent rapes to the police’s attention, but for a long time her concerns were simply not acted on. The rapist committed at least 21 rapes, many on young girls, before he was eventually caught. The community was never warned that there was a serial rapist at large because the police did not want to compromise their investigation.
“We are failing our people,” Josias told the commission. “We are failing helpless kids, children that are innocent. They did not ask to stay in Khayelitsha. They did not ask to go to school with a bus and a taxi and they get raped on a taxi because there are no – not enough schools.”
Indeed, children in Khayelitsha are being “incubated in violence”, to use the words of UCT Psychology Professor Debbie Kaminer. A 2008 study found that 46% of children aged between 10 and 19 had witnessed a stabbing in their community. Kaminer showed the commission pictures taken from media reports which featured very young children witnessing, or even participating in, acts of vigilante violence in the township. While “violence exposure will not always result in negative mental health outcomes for children”, Kaminer said, the greater number of incidents witnessed does raise the chances.
Kaminer testified that studies suggest that more than 20% of Khayelitsha children may suffer some form of PTSD (Post-Traumatic Stress Disorder). To put this into context, equivalent rates for American kids are between 1 and 4%. This can have an effect on school performance, later aggressive behaviour, substance abuse and more.
CEO of the DG Murray Trust, Dr David Harrison, took it back a step – suggesting that even being conceived in a place as violent as Khayelitsha can negatively affect a child’s development. Due to the conditions in which their mothers live, foetuses may be exposed to stress hormones in the womb at far higher rates than elsewhere. Before they even take a single breath of air, these children “are already at higher risk than the children being conceived in Constantia”, Harrison said; at a higher risk of “metabolic disease, of health disease and for propensity to psychiatric disorders”.
The commission’s hearings are making clear that it is not just policing that is failing Khayelitsha’s residents. It is a complex interplay of various forms of deprivation, many of which foster the conditions which give rise to crime. Unemployment is rife, in a community where almost 50% of the population is under the age of 24. Enforced idleness among the youth means that illegal shebeens proliferate and drug use flourishes. Both are fingered as contributors to crime.
Anger levels, too, are high. Representing SAPS, advocate Norman Arendse told the commission: “Essentially, the police are policing a community that is angry about poor service delivery including poor sanitation, the absence of decent living conditions.” In such circumstances, he suggested, an already overstretched police force must become priests, counsellors and social workers, in addition to their protection role.
“The only hope that crime will not engulf these communities is in fact the presence of the police,” Arendse claimed.
But the testimony of many residents made it clear that they have given up on the police. In explaining why they had, at points, become part of a vigilante justice attempt rather than turning suspects over to the police, witness after witness testified that they simply wanted their possessions back, and saw no hope of achieving this if they just surrendered the accused to the police. One of the only property crimes that witnesses said they would report was the theft of a cellphone – because they needed a case number to have the phone blocked, or claim insurance.
“If you are robbed you will just want your items back and you want to make sure that you get your items back, because if you go to the police the police will only laugh at you and ask you many questions, so that’s why we only want our items back,” witness Mayedwa Simelela told the commission.
UCT social scientist Professor Jeremy Seekings relayed the results of a 2009 survey of young people which described a scenario of neighbours catching a young man stealing a radio, and asked whether it was right or wrong to beat him. Roughly 25% said it was right. When asked whether it would be right for police to beat up the criminal, roughly the same percentage responded in the affirmative. What residents wanted to see, Seekings suggested, was the effective punishment of criminals – by whomever necessary.
Social worker Sonja Basson, whose attempts to build a residential care facility for street kids in Khayelitsha were delayed by years due to violence, confirmed this perception in her testimony.
“The lawlessness in this society was just so bad that in the end you were glad if something happened, you know, so if a policeman at least caught up with a criminal and started klapping [smacking] him around at least you – I think in your heart you thought at least the police caught up with him, and I am feeling very guilty as I say that and I wish I didn’t have to confess that, but I have to be honest,” Basson said.
In a situation where police are perceived as ineffective in bringing criminals to book, an alternative, informal security force has developed comprised of taxi drivers, who patrol in vehicles in the evening sometimes carrying whips. Gangsters, witnesses testified, fear taxi drivers more than the police at this point. Justin du Toit, of Mthenthe Research, quoted a respondent as saying: “Taxi drivers are now the go-to group; they are quick to respond to crimes”.
Parents weary of their children’s involvement in gangs will allegedly approach taxi drivers for help in disciplining them, too. Witness Nokuzola Ncaphancapha, mother of a 17-year-old son who dropped out of school due to the fear of gangs, said that she told a group of taxi drivers: “To me it is better if you beat them than to bury them, because if we do not beat them we are going to bury them.”
In cross-examination, lawyers for the police have consistently sought to extract from witnesses the acknowledgement that Khayelitsha’s problems are not solely down to a weakness in policing: that they are being failed by a range of government services ranging from education to health to urban planning. Few witnesses have been so inflexible that they refused to concede this, though there seems little doubt at this point that the quality of police work on offer to Khayelitsha residents is particularly poor.
But it’s hard not to sympathise, too, with police members working under some of the most arduous conditions imaginable. Genine Josias told of wanting reflexively to offer the investigating officers entering the Thuthuzela Care Centre a cigarette, as they came to take the statement of the umpteenth young rape survivor of the month. Many of them have young daughters of their own, she said, and the strain of their work is visible.
In some cases they lack the most basic resources necessary to perform a job at any level of efficiency: airtime for their phones; a petrol card. Detectives elsewhere may have 100 pending investigations; in response to one witness’s testimony of an unresolved case, Arendse mentioned that the detective involved was dealing with 382.
One factor beyond dispute is the necessity for the existence of the commission, and the vital information it is bringing to light not just about the state of policing, but – in a very real way – the state of the nation, in its most underprivileged urban form. It was noteworthy that one witness referred several times to the Khayelitsha Commission as the “Truth Commission”, and had to be corrected. But it is, of course, a “Truth Commission” in its own way – and one that witnesses clearly are attaching a great deal of hope to, to expose the reality of their circumstances to the world.
“My family is still saying that if the law cannot take its course then they want to avenge my son’s death,” testified witness Beauty Thosholo. “[I told them] I have heard of another place which is called the Commission, and for now I am still in that Commission and I am just waiting to hear what is going to happen.” DM
Photo: Western Cape Provincial commissioner Arno Lamoer seen testifying on Tuesday, 1 April 2014, the last day of phase one of the Khayelitsha Commission of Inquiry into alleged police inefficiency in the area. The commission was set up by Western Cape Premier Helen Zille after complaints of police inefficiency in Khayelitsha. Picture: Nardus Engelbrecht/SAPA
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