Quis custodiet ipsos custodes? How the SA Police Service’s disciplinary system neutralises the watchdog
The model for police accountability requires the watchdog and SAPS management to play a mutually reinforcing role to improve police conduct. But it can only work if the government and the SAPS ensure the disciplinary system adheres to professional standards.
David Bruce is an independent researcher. This article forms part of work on policing conducted on behalf of the Institute for Security Studies.
Police Minister Bheki Cele last week released statistics on Independent Police Investigative Directorate (Ipid) recommendations to the South African Police Service (SAPS) for disciplinary action against its members.
The statistics indicated that the Independent Police Investigative Directorate (Ipid) has referred 10,086 cases to the SAPS for disciplinary actions since the Ipid Act of 2011 came into effect in April 2012. But the figures released by the minister said little about the final outcome of these cases.
However, data provided in a joint SAPS-Ipid presentation to the Portfolio Committee on Police in August show that few Ipid recommendations translate into sanctions, or other accountability, for SAPS members.
The data show that the SAPS disciplinary system largely serves to neutralise the potential for police to be held accountable as a result of Ipid’s investigations.
Provided for in Section 206(6) of the Constitution, Ipid is supposed to ensure that specific categories of cases involving SAPS members are independently investigated. Where there is sufficient evidence, Ipid should submit a recommendation to the SAPS for disciplinary action to be taken.
By law, the SAPS must “initiate disciplinary proceedings” within 30 days of receiving such a recommendation. These proceedings should take place whether or not Ipid investigations result in the National Prosecuting Authority (NPA) instituting criminal charges against SAPS members.
The SAPS-Ipid presentation, on 17 August 2021 dealt with 686 cases where Ipid recommended disciplinary action against SAPS members. Close to 70% (477) were cases of alleged assault, including cases of torture. A further 10.2% (70) dealt with complaints regarding non-fatal shootings by police. Deaths as a result of police action or deaths in custody accounted for another 9.6% (66). There were 25 disciplinary recommendations regarding alleged rape by a police officer, and 16 of corruption.
Of the 686 cases, 41 (6%) culminated in a SAPS member receiving a disciplinary sanction.
SAPS responses to Ipid recommendations vary considerably across provinces. The national picture conceals four major disparities in how provinces respond to recommendations.
Cases ‘finalised’ and ‘not finalised’
Rather than highlight the figure of 6% of cases that culminated in sanctions, the SAPS-Ipid presentation gave prominence to 550 (80%) cases that are said to have been “finalised”. As discussed below, “finalised” cases include a large number in which the SAPS decides not to charge members despite the Ipid recommendation. In addition to guilty findings, they also include not guilty findings, cases withdrawn after charges have been laid, and cases where members who are facing disciplinary proceedings resign from the SAPS.
Finalisation rates vary between the provinces. Notably in KwaZulu-Natal, Ipid disciplinary cases appear to be treated with a degree of indifference. KZN accounts for 16% of police in the country. The province is characterised by high levels of police violence but generated only 5% (34) of the 686 Ipid recommendations for disciplinary action against police in 2020/21.
Despite the low caseload of Ipid disciplinary recommendations that it was required to respond to, the KZN SAPS finalised a paltry 44% (15 of the 34).
No charges because of ‘no prima facie evidence’
Second, SAPS disciplinary regulations require the SAPS to re-investigate cases that are submitted to it by Ipid. Many of these internal SAPS investigations lead to cases being “finalised” without anyone being charged.
In 2020/21 the SAPS disposed of 42% of the “finalised” cases (229 out of 550) on the basis that, in direct contradiction to Ipid’s finding, there was “no prima facie evidence”. In the Eastern Cape, North West and Limpopo, more than 50% of cases received from Ipid were finalised in this manner.
One question that requires an urgent answer is why the SAPS contradicts Ipid’s findings in such a high proportion of cases. Ipid disciplinary recommendations are presumably made on the basis that there are sufficient grounds for disciplinary action.
SAPS members found guilty
A third contributing factor to the low rate of sanctions is the percentage of guilty findings. As revealed in a recent Viewfinder investigation, where SAPS disciplinary hearings do take place, officials may collude to ensure that the accused member is exonerated.
The SAPS-Ipid report shows that, of 299 cases nationally that culminated in a disciplinary hearing, 60% (179) resulted in guilty verdicts. In Limpopo, two out of five cases (40%) resulted in a guilty verdict (two were found not guilty. One accused member left the SAPS before the hearing was completed). KwaZulu-Natal again stands out for low performance, with a guilty verdict in only 44% of hearings (five out of 11). In Gauteng, only 17 out of 34 (50%) culminated in a guilty verdict.
Members are found guilty but not sanctioned
Finally, for cases that conclude with a guilty verdict, few result in a disciplinary sanction.
In line with South African labour law, the SAPS disciplinary regulations provide for non-punitive progressive (or “corrective”) disciplinary measures. These involve either a warning (verbal, written or final written) or “corrective counselling”.
Warnings expire after six months with the consequence that, in the unlikely event recipients are convicted a second or third time, even repeat offenders face little risk of adverse consequences for their actions. There is no evidence as to whether or not progressive discipline contributes to correcting the conduct of SAPS members who are linked to abuses.
The SAPS disciplinary regulations provide for two sanctions that may be imposed after members are found guilty. One is dismissal. The other is suspension without pay for up to two months. The SAPS imposed sentences of progressive discipline on 138 (77%) of the 179 found guilty. It imposed sanctions in 41 (23%) of the 179 cases.
Provinces that stood out on this measure included the Western Cape, where 48 members were found guilty but 47 of them received progressive discipline and one was sanctioned (dismissed). Likewise in Mpumalanga, 20 members were found guilty. One of these received a sanction (suspension without pay) with the balance (19) sentenced to progressive discipline. As indicated, in Limpopo only two members were found guilty. Neither of them received a disciplinary sanction (both received written warnings).
Sanctions were therefore imposed in 41 of all cases. This represents 6% of the total of 686 cases that Ipid referred to the SAPS. Of the 41 sanctions imposed, a combined 66% (27) were in the Eastern Cape (10), Free State (10) and Gauteng (seven).
The data suggest that many allegations of excessive force are treated with indifference. A slightly firmer approach is apparently taken in respect of certain categories of offence. The 25 cases of rape by police officers resulted in six guilty findings, with five of these cases leading to dismissal (a disconcerting fact is that the other received a written warning).
For the 550 cases finalised during the 2020-21 year, 28 resulted in dismissal. In addition to the five cases where members were dismissed for rape, nine were linked to deaths as a result of police action, seven to the discharge of a firearm and three were cases of corruption.
In 13 cases, SAPS members were sentenced to suspension without pay, five of these being cases regarding the discharge of a firearm. For the 105 cases of torture or assault where members were found guilty, two culminated in a dismissal and three resulted in suspension without pay.
Relative to the poor overall performance of the disciplinary system, provinces that provided a marginally better picture included the Northern Cape, where 12% of cases (four of 34) culminated in some sanction, and the Free State, where 10% of cases (10 of 97) were finalised with a sanction. The national office imposed sanctions in 17% (five out of 29) of cases received.
The disciplinary system in KwaZulu-Natal requires specific attention. Relative to the size of the province, it dealt with a very small proportion of the national caseload. It also stood out for low percentages of cases finalised in the province (44%) and of cases that proceeded to a disciplinary hearing and culminated in a guilty verdict (46%). Overall, 6% of the cases in the province (two out of 34) culminated in a sanction.
But other provinces performed worse than KZN in respect of the percentage of Ipid cases they received that culminated in disciplinary sanction. As indicated, in 2020/21 no SAPS members in Limpopo were sanctioned as a result of an Ipid investigation.
Of 38 cases in North West, seven culminated in a guilty verdict, but only one (3%) resulted in a sanction (suspension without pay). In Mpumalanga, a sanction (suspension without pay) was imposed in one (2%) of the 49 cases received from Ipid.
Measured in these terms, another of the worst performing provinces was the Western Cape. The province accounted for 48 guilty verdicts, which was 27% of the 179 guilty findings nationally. This was far more than any other province. However, only one of the 160 cases (0.6%) resulted in a sanction (dismissal).
Implications for police accountability
Over the last decade, the SAPS disciplinary system has been steadily declining in its effectiveness. This not only applies to cases received from Ipid, but to all categories of disciplinary cases that it receives.
Some believe the solution is to contract out the entire disciplinary system to Ipid. This would create a parallel system for controlling the conduct of SAPS members, absolving police management of responsibility.
It is clear that the current system is not working. But outsourcing discipline to Ipid is likely to reinforce the problem. Shortcomings in Ipid investigations are likely to make some contribution to the poor results achieved.
There are likely to be valid reasons for some of the conclusions reached by SAPS officials in these cases. Differences in the profile of cases dealt with in the various provinces are also likely to account for some of the differences between them.
But the overall picture is that SAPS officials do not consistently uphold professional disciplinary standards in dealing with recommendations received from Ipid.
The approach to police accountability in South Africa involves a “hybrid” model. External oversight and internal management should reinforce each other to improve police conduct. This model is appropriate, but can only work if there is a recognition by government and the SAPS that the police disciplinary system must uphold and adhere to professional standards. DM