On 22 October 2018, the Independent Police Investigation Directorate (IPID) released a media statement concerning an incident that occurred during a protest at TUT University on the evening of 23 August. Police, who had been called to assist, claimed to have fired warning shots, from R5 rifles, into the ground during that protest. A student was injured and later died in hospital from gunshot wounds.
Following an initial investigation by IPID, two police officers have been arrested and charged with murder.
It is important to properly understand this charge. To convict on a charge of murder the court must establish three elements:
- First: the victim has died; and
- Second: an act of the defendant’s has contributed significantly towards the death — it does not have to be the sole cause, or even the main cause of death; and
- Third: the defendant intended to kill the victim or inflict grievous bodily harm, or knew that it was probable his/her act would cause death or grievous bodily harm, or puts another person in danger with reckless indifference to the life of the person.
The italics above are mine and are meant for emphasis. It is crucially important that police authorities fully understand the capacity of the weapon used at this incident (as well as for the future) to cause death or grievous bodily harm. It is for the Court to establish whether the officers involved meet the third element of the offence. But there can be no doubt, in my mind, of the accountability of police leadership for this senseless, tragic loss of life. Also, SAPS are under an international legal obligation to prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk.
Serious concerns about the use of R5 rifles in crowd control were first raised during the Marikana commission of inquiry. The capabilities of the R5 rifle are well documented. It fires a 5.56mm round, with a full metal jacket, that dispenses so much kinetic energy at close range, ie distances less than 100m, that the bullet fragments on penetration of human tissue, causing a massive wound cavity. Fired at centre body mass, at close range, the resulting damage to soft tissue and internal organs will be catastrophic and virtually always fatal. A victim would probably bleed to death, even if specialised medical assistance was immediately on hand.
During my testimony before the commission, in September 2014, these facts were highlighted and documented. They made their way into the final report of the Commission. I have held then, as I do now, that assault rifles have no place in law enforcement, and that the R5 rifle must not be used in crowd management operations. In such operations it is immaterial whether the user of the R5 belongs to a POP unit or any other police unit. It is about the employ of the rifle itself. The Commission endorsed that view and recommended that the R5 be withdrawn from public order operations.
It is easy to understand that the effects of the R5 rifle at close range, when death or serious injury does occur, present a reality then where its user knew that it was probable his/her act would cause death or grievous bodily harm, or puts another person in danger with reckless indifference to the life of that person.
That in turn creates a serious concern for any and all use of the R5, by police, against persons.
For police to use potentially lethal force, including the use of firearms, there needs to exist a situation involving an imminent threat to life or serious injury. In such a situation, and before having recourse to firearms, less extreme means must have been tried and been proven to be ineffective.
The intentional taking of life is only permitted in circumstances where an imminent threat to life or serious injury cannot be averted in any other way.
It is not hard to see that the employ of the R5 rifle creates a serious problem for SAPS. Because a shot fired with an R5 at close range at centre body mass, abdomen, or even legs produces such horrific injuries -as the use of the R5 at Marikana has proven- that death is virtually inevitable. Inevitable, also in situations where to avert an imminent threat to life or serious injury, the deliberate taking of a life cannot be justified.
And this still leaves aside the issue of risk to innocent bystanders in an urban environment in case a shot fired from an R5 at close range fails to find its intended target. The incidents at Marikana produced one case where an individual was killed by an R5 round fired some 280m away at scene 1.
IPID’s decision to charge two police officers with murder, over their use of the R5 rifle at TUT university, drives home the ugly truth that is the R5 rifle.
Judge Ian Farlam, on 10 September 2014, asked then national commissioner Riah Phiyega whether the continued employment of the R5 by SAPS, counter to advice given to her (by me) in early March 2013, was irresponsible. She argued not, on the basis that SAPS were in the process of exploring alternatives to the R5 and could ill afford to dispense with it in the meantime.
I beg to differ. I think it is criminally negligent as well as irresponsible, of SAPS as an organisation, to continue the use of the R5 in the face of its well-documented and disastrous track record at Marikana now six years ago.
The unnecessary death of the TUT student, Katlego Monareng, is yet another tragic case in point. In continuing the use of the R5, SAPS are not only failing the South African public, they are also failing their own officers who are inappropriately armed. To protect the public and to protect its members from future murder charges, as well as the organisation from, no doubt, costly liability for wrongful deaths, it is now more urgent than ever that SAPS withdraw the R5 from all operations and find an acceptable alternative. DM