The Gauteng High Court judgment on 15 May 2020 in response to the court application on behalf of the family of the late Collins Khosa is an important judicial intervention.
Khosa died shortly after allegedly being brutally assaulted by South African National Defence Force members on Good Friday, 10 April 2020. The SANDF members had been deployed by President Cyril Ramaphosa to assist police in enforcing the national lockdown announced in response to the Covid-19 pandemic.
The judgment provides cause for concern about the standards of discipline and accountability that are applied in the SANDF.
But the judgment ultimately highlights the failure of the South African Police Service (SAPS) to take adequate steps to ensure that police in South Africa adhere to high standards when using force.
As our national police service, the SAPS should be able to provide an organisational template for how to ensure human-rights-compliant professional use of force, which SANDF members and metro police should have been able to follow.
Instead, the SAPS continues to neglect its responsibilities in this regard.
The available information about the circumstances leading to Khosa’s death is that SANDF members allegedly choked him, slammed him against a cement wall and steel gate, hit him with the butt of a rifle, and hit, kicked and punched him in his face, stomach and ribs.
But notwithstanding these shocking allegations, the SANDF in their court papers opposed suspension of the members involved. It was therefore necessary for the court to order that the SANDF members implicated in the killing should be suspended.
The SANDF response may be seen as following the lead provided by the SAPS. It is reminiscent of the SAPS response to the Marikana massacre in August 2012. Despite the fact that 34 men had been shot dead by SAPS members, and that evidence indicated that some police had acted recklessly, not one of the SAPS shooters was subsequently placed on suspension.
In fact, there is no publicly available evidence that the SAPS ever conducted an internal investigation into the possibility that any SAPS members involved in the massacre may have acted unlawfully or taken any action against any of them.
Likewise, there is no indication that a single SAPS member has as yet been suspended for alleged brutality during the lockdown despite evidence of serious violations in some cases.
An important aspect of the order issued by the Gauteng High Court was a declaration that the rights provided for in the Constitution remain in force, and that the provisions of the Constitution are binding on the security forces, notwithstanding the declaration of a State of National Disaster.
The fact that the Gauteng High Court was requested, and regarded it as valid, to issue such an order does not reflect well on the SANDF. But it is most telling in what it says about the SAPS.
The skill of policing
Police work involves the continuing prospect of confrontation. Even where they do not face violent physical resistance, police members face a multitude of other interactions varying from those with people who are disrespectful and dismissive of their authority, and possibly under the influence of drugs or alcohol, to people who simply question the reasonableness of police actions and whether they are indeed acting in terms of their lawful authority.
There is therefore a latent risk of violence that is inherent to policing. The American policing theorist Egon Bittner stated that “the skill involved in police work… consists of retaining recourse to force while seeking to avoid its use, and using it only in minimal amounts”.
But this skill is not easily learnt. There is a continual risk that police, or soldiers performing a policing role, will fall back on punitiveness which is a typical reflex of many people in positions of authority who are faced with apparent non-cooperation. It is only through training, discipline and accountability by police organisations that this type of impulse can be reliably restrained.
In a professional police service, elaborate steps are taken to ensure this. These police services know that the fact that a disciplinary process does not lead to a conclusive finding against a police officer does not always imply that the officer’s conduct has been appropriate. Principles of natural justice dictate that disciplinary penalties only be imposed if a complaint is proved. But the investigation of many complaints merely generates two competing versions of events, neither of which is inherently more credible.
Police services in democratic countries that are orientated towards professionalism therefore closely monitor the use of force with a view to identifying police members who have a use of force “problem” reflected in the frequent use of their firearms or repeated complaints of brutality against them.
In the absence of clear grounds for disciplinary measures, re-training or other corrective steps may still be taken. These emphasise to the police officer the duty to comply with minimum force principles and assist him or her in strengthening the verbal and physical skills required to avoid unnecessary uses of force.
Nothing like this happens in the SAPS or in any of its metro police junior partners. The SAPS does not even monitor the use of firearms by its members, not to mention the far more frequent and routine non-lethal encounters which are where the vast majority of instances of excessive force take place.
During training, SAPS members are now told that they must adhere to human rights standards and SAPS members are required to sign a code of conduct in which they commit to “uphold and protect the fundamental rights of every person”. But in most ways, the SAPS’s internal systems for managing the use of force are simply those carried over from its apartheid era predecessor, the South African Police Force.
The existence of the Independent Complaints Directorate (ICD) and its successor, the Independent Police Investigative Directorate (IPID) has served to compound the failure by the SAPS to engage purposefully with how force is used by its members. The SAPS does not account to Parliament in any way for how members use force. Instead, responsibility for this accounting has been farmed out to this under-resourced oversight body.
Reading a SAPS annual report one would have no idea that during the seven years to March 2019, the SAPS was involved in close to 3,000 fatal shootings, and the subject of 6,000 complaints relating to the non-lethal discharge of firearms, as well as over 1,000 cases of torture.
Court order and directive
The Gauteng High Court judgment ordered the government to “publish a code of conduct and operational procedures regulating the conduct of the SANDF, SAPS and MPSs in giving effect to the State of National Disaster”.
In conformity to the order the SAPS National Commissioner, Khehla Sitole issued a new directive to SAPS members on 20 May 2020.
A particularly remarkable aspect of the instruction provides that “members may not use private equipment or equipment not issued by the SAPS such as a ‘sjambok’, etc” (sic). This constitutes an inadvertent admission by the SAPS that the lockdown has been accompanied by a serious breakdown of organisational discipline.
Use of force policy
The directive largely replicates, and in some instances expands upon, the current legislative and regulatory framework relating to the conduct of arrest and the prevention of torture. The directive, however, falls far short of the full statement of SAPS policy in respect of the use of force which is necessary if the SAPS is going to effectively manage and control the use of force by its members.
In fact, a fuller use of force policy has already been developed for the SAPS by the Civilian Secretariat for Police. The Marikana panel of experts, established by Minister of Police Nathi Nhleko in 2016, was asked by the Secretariat to give input on the policy. The policy was revised and submitted by the panel to the Secretariat in June 2017.
The report of the Marikana panel, completed in mid-2018, recommended that the policy should urgently be adopted. Minister of Police Bheki Cele apparently signed off on the policy in November 2018, but it is unclear what has happened to the policy since then. This gives one cause to wonder if the implementation is being expedited or deliberately delayed and obstructed.
The policy includes an annex titled “Use of force by members of the SAPS – Legal standards and professional guidelines” and the Marikana panel’s report recommended that this should be adopted as an internal directive by the SAPS. This annex is intended to serve as a consolidated and accessible directive to guide the police involved in day-to-day policing in respect of the use of force.
When compared with the use of force policy, the new SAPS directive is deficient in many respects. In line with the provisions of Section 7 (2) of the Constitution, which provides that organs of state must respect, protect and promote the rights in the Bill of Rights, the SAPS should seek to ensure that its members’ actions embody the protection of rights, most notably the right to life.
There are numerous gaps and silences in legal provisions. Issues such as the need to pay attention to the risk to bystanders when considering the use of lethal force, which are not addressed in the law, should be provided for in a use of force policy.
The use of force policy also provides an opportunity to address other key issues such as when, if at all, warning shots should be fired or whether gunfire should ever be directed at a moving vehicle taking into account factors such as the risks involved if a driver loses control of a vehicle. Details such as these are unlikely to be addressed even in a detailed legislative provision on the use of force.
In the wake of Marikana, it would also be particularly appropriate for a SAPS use of force policy to address the issue of how to respond to shots from an unidentified source. Reckless gunfire, precipitated by confusion about the source of gunfire, was apparently a major factor in contributing to the deaths at Marikana, notably at what is known as Scene 2.
One of the myths of the human rights field is that the law, external oversight agencies, and the courts are adequate mechanisms for ensuring that police adhere to appropriate standards in respect of the use of force. But even if cases are investigated effectively, the courts rarely find police culpable for anything other than the most egregious violations.
The use of force policy, along with the monitoring of police use of force by police organisations, is therefore an essential component of the control of the use of force. But for their effectiveness, these measures, in turn, require that there be a police leadership that is invested in ensuring that police adhere to professional standards grounded in respect for human rights.
The SAPS has previously adopted measures of this kind. In 1998, for instance, it adopted the prevention of torture policy. But torture by the SAPS still continues. Policies and directives of the kind ordered by the Gauteng High Court and use of force policies can, therefore, serve a largely presentational purpose, in which they are prominently displayed to outsiders, but have limited impact internally.
The use of force policy is therefore only of real value if there is a police leadership invested in ensuring that police meet professional standards when using force. This is not to say that the law and the courts should not be the final arbiter of whether force is used appropriately. But police departments that take the management of the use of force seriously will seek to hold their members to higher standards thereby avoiding the need for any of their members to be brought before a court for misusing force.
A key focus of criticism in the Gauteng High court judgment were various statements made by the Minister of Defence and the Minister of Police. Ill-advised statements regarding the use of force have been a recurring feature of South African politics over the last 20 years and appear to be an ever-present risk of democratic political life.
It is partly because of the tendency for senior members of government to make statements such as these that the SAPS, as the national police service of South Africa, should be obliged to ensure that proper guidance and support is provided to police, or any others performing a policing function, in respect of the manner in which they use force. DM
David Bruce is an independent researcher specialising in policing, crime and public security. Bruce will be speaking at a Nelson Mandela University webinar this morning, Friday 22 May, on the topic ‘The lockdown, police violence and democracy in South Africa’. Further details available here.
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