Opinionista Axolile Notywala 6 November 2017

The People vs the Minister of Police: The struggle for safety in poor black communities continues

Violence should not be the norm in our communities. We shouldn’t have to wake up to screams. Poor, working-class, black communities have been subjected to too many kinds of violence for too long and this needs to come to an end – Social Justice Coalition.

There are screams every morning, and that’s not even far from a police station. And there’s no point of reporting, because there’s nothing that’s going to materialise out of that.”

These are the opening lines of a documentary chronicling the Khayelitsha Commission of Inquiry, taken from testimony given by the then General Secretary of the Social Justice Coalition and Khayelitsha resident Phumeza Mlungwana during the commission.

Mlungwana’s testimony wasn’t just the norm, but was also one of the least violent and horrific pieces of testimony the commission heard. Three years later, black, working-class residents of informal settlements are still subjected to almost constant fear and violence.

With the release of the 2016/2017 crime statistics this reality has yet again been affirmed. Across the Western Cape 17,289 incidents of street robberies were reported. Street robberies, according to Statistics South Africa, are one of the crimes most feared by communities. Nationally 219 street robberies were recorded per day. These robberies disproportionately affect poor and working-class people as they typically target those who travel on foot and who need to use public transport. A response to the crime statistics must foreground vulnerabilities like these. These vulnerabilities are found at the intersection of class and race, that the persistent structural apartheid-era imbalances in policing are not addressing.

Our attempts to address these structural imbalances have consistently been thwarted or delayed by government and in particular by SAPS. First, the Minister of Police attempted to stop the establishment of the commission and went all the way to the Constitutional Court. On 1 October 2013, the Constitutional Court handed down a judgment which allowed the commission to continue its work and investigate allegations of inefficiency at the police stations in Khayelitsha as well as a breakdown in relations between the Khayelitsha community and the South African Police Service (SAPS). The judgment was as a direct result of SAPS challenging the powers of the Commission, delaying its work and ultimately justice for communities. The judgment against the police was the first of many that would compel them to allow processes aimed at ensuring accountability from them to proceed unimpeded.

The establishment of the commission was a result of a 10-year struggle for safety and justice in poor, black communities that had been led by the Treatment Action Campaign (TAC). In 2011 the Social Justice Coalition (SJC), together with the TAC, Equal Education (EE), Ndifuna Ukwazi (NU) and the Triangle Project, lodged a complaint with the Premier of the Western Cape for the establishment of the Commission based on section 206 of the Constitution, which gives the Premier powers to do so. This complaint documented cases where Khayelitsha residents had resorted to taking the law into their own hands through vigilantism because they had lost faith in the police.

The Constitutional Court judgment was significant not only for confirming the powers of the Premier to establish a commission of inquiry, but it was a momentous occasion for the people of Khayelitsha. Some important work has been done by the leadership of the local police stations in Khayelitsha in implementing the recommendations of the Commission which finished its work in August 2014. Over the same period leadership at a national level has, however, been lacking. Since the commission tabled its report South Africa has had two Ministers of Police, a National Police Commissioner that was declared unfit for office and two acting commissioners, with one of the two currently under investigation.

This has meant that discriminatory policies in the form of what is called the Theoretical Human Resource Requirement (THRR) used by SAPS persist to the detriment of poor, black communities. In their report Towards a Safer Khayelitsha, commissioners Advocate Vusi Pikoli and former Constitutional Court judge Kate O’Regan said the following:

One of the questions that most troubled the commission is how a system of human resource allocation that appears to be systematically biased against poor black communities could have survived 20 years into our post-apartheid democracy.”

The Commission in this regard recommended that “a task team be appointed to investigate the Theoretical Human Resource Requirement with the aim of formulating a new and more workable method that can be phased in over a period of three years”. Three years on nothing has been done by SAPS to undo this apartheid-era formula of distributing police resources in the country.

On 31 March 2016, the SJC and EE launched a court application at the Equality Court to address the ongoing inequitable, irrational and discriminatory allocation of human police resources across the country. The application was later joined by the Nyanga Community Police Forum (CPF) following repeated failed attempts by the CPF to raise issues of police resources with SAPS. SAPS challenged the Nyanga CPF’s application to join the case saying that the CPF as an organ of state should not be challenging another organ of state.

Nyanga is the murder capital of South Africa and recorded the highest number of murders of any police precinct in the country: 281 in 2016/2017. For comparison, over a four year period, Nyanga had 16 times more murders per 100,000 people than Camps Bay, but Camps Bay had seven times more police personnel per 100,000 people than Nyanga. This is the case for many other communities across the country. SAPS prioritises rich and middle-class white areas over poor black communities.

The SAPS challenge failed and in September 2016 the court granted Nyanga CPF leave to join the case. This would prove to be the first of many deliberate delays by the SAPS.

After the failed SAPS challenge on the Nyanga CPF application, a court order setting out timelines was issued by Judge Boqwana in the Equality Court. SAPS was supposed to file their responding papers by 30 November 2016 and this would have allowed the case to be heard in February 2017. SAPS failed to file their papers and was in breach of the court order.

The applicants then filed a chamber-book application to compel SAPS to file their responding papers. SAPS finally filed the first of seven affidavits in February, with the last affidavit being filed a month later in March. The affidavits contradicted themselves in what they were asking of the court in relation to the matter brought by us.

This back and forth, indecisiveness from SAPS and delays in providing information requested during the exploratory phase of the matter contributed to further delays. The case is currently set to be heard on 28, 29 and 30 November 2017, more than a year and a half after the SJC filed the founding affidavit.

Every delay in this case has meant, and means, that the discrimination on the basis of race and class persists in the police’s allocation of human resources. The lives most at risk as a result are those of people in poor black communities.

The Commission also recommended that SAPS develops guidelines for policing informal settlements. It came as a shock to many that over the period of our democratic government, no policing guidelines exist for policing informal settlements, which make up about 13% of the country’s 16.9-million households. This recommendation has yet to be implemented by SAPS.

Their failure to implement the commission’s recommendations and the deliberate delays of a court case that has overarching implications for the whole country is not only disrespectful to the communities SAPS is mandated to serve and to the court, it is also costly. It is costly in terms of public funds, and it is costing people their lives.

The current Minister of Police is quick to respond and engage on social media, yet allows systematic discrimination against the poor to persist and prolonging the burden placed on police officers working in South Africa’s under-resourced, crime-burdened, urban, black African neighbourhoods. This must end.

The minister has to publicly commit to seeing us in court at the end of November. Delaying the court case any further means denying the right to safety of poor black people in this country.

The scale of the safety issues poor, working-class, black communities are facing seems to be lost on the SAPS. We are unsafe in our own homes and on our way to work. Our children fear for their safety when they walk to and from school. They are afraid while in school.

Violence should not be the norm in our communities. We shouldn’t have to wake up to screams. Poor, working-class, black communities have been subjected to too many kinds of violence for too long and this needs to come to an end. DM

Axolile Notywala is the General Secretary of the Social Justice Coalition

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