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Regulatory regime: Use of force by SAPS on Sassa queue...

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Regulatory regime: Use of force by SAPS on Sassa queue signals need for legal reform

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Abdirahman Maalim Gossar is a project and research officer at the African Policing Civilian Oversight Forum.

The use of water cannon by police on a Sassa grants queue in Bellville in January, and Ipid’s investigation results, illustrate the urgency with which we must move to develop a comprehensive legal instrument on the use of force. We need a law that will embody the universally recognised principles on the use of force, and promote lawful and expert use of force by the SA Police Service (SAPS).

In another blow to police accountability, in a year when complaints of excessive use of force by the police in Covid-19 regulation enforcement persists, the Independent Police Investigative Directorate (Ipid) has cleared the SAPS of any misconduct in the dispersal of South African Social Security Agency (Sassa) grant recipients for failing to physically distance.

In January this year, there was widespread public outrage when the SAPS’s public order unit used a water cannon to disperse recipients of relief grants for failing to observe physical distancing. The group was queuing outside the Sassa branch in Bellville, Cape Town, and included elderly people and other vulnerable grant recipients. 

Ipid’s exoneration of SAPS is based on the existing legislative framework on the use of force and crowd management, the national instructions and other relevant legislative instruments, such as the Disaster Management Act 57 of 2002.

The findings are as indicative of existing deficits and gaps in this legal framework, as of any weakness of the Ipid investigation itself. Currently, the regulatory framework on the use of force by law enforcement officials in the country is fragmented, with relevant provisions – which often contradict themselves and international legal provisions – dispersed across a number of laws. The result is a weakening of legal clarity on the general principles on the use of force.

As a result, the concerns raised regarding the Bellville Sassa incident – particularly in relation to whether the use of force was strictly necessary to successfully manage the crowd, and what, if any, measures were taken to plan, manage and execute the operation in a manner that minimised the risk of resorting to the use of force – are not sufficiently covered and addressed in law and other policy and regulatory documents that govern police use of force in the country to facilitate an effective inquiry and investigation.

While the ability to use force is essential to policing, among the more obvious challenges posed by the lack of legal clarity on the use of force in line with international law is the reduced ability of the SAPS to execute this according to the expectations of the public, and the concomitant impact this has on subsequent review of the action.

In the Bellville case, a more appropriate and organised SAPS response would have required reading the prevailing mood and circumstances beforehand, and using this insight as an early warning and risk-reduction mechanism. It was common knowledge that the situation in Bellville was tense with anxiety, which was partly caused by an inefficient grant administration and distribution system.

Similar incidents can possibly be prevented by a legislative reform and alignment of existing laws on the use of force with international standards, through the adoption of a consolidated legislative instrument on use of force. 

Indeed, the African Commission on Human and People’s Rights, the premier human rights organ on the continent, has expressed concerns about excessive use of force by the SAPS. It has called on South Africa to develop and implement measures that prevent and combat police use of excessive force, including through legislative and institutional reform.

The argument for the adoption of a law on the use of force is amplified by the observations and recommendations of the recently released report of a panel of experts on policing and crowd management – resulting from the Marikana Commission of Inquiry into the killing of 34 striking mine workers by law enforcement officials in 2012 – which concludes that the current regulatory framework on the use of force by law enforcement officials is inadequate in various ways, and recommends, in recommendation 35, that Parliament consider the adoption of a dedicated law on use of force.

Unfortunately, political leadership seems to continue to favour a piecemeal approach to the problem. It is particularly concerning that use of force provisions in the draft South African Police Services Amendment Bill, presented to the Parliamentary Portfolio Committee on Police in February 2021, do not adequately address use of force, and regrettably  seem to ignore many of the recommendations of the Panel of Experts.

The Sassa incident, and Ipid’s investigation results, illustrate the urgency with which we must move to develop a more appropriate and comprehensive legal instrument on the use of force, which will, among other things, embody the universally recognised principles on the use of force and promote lawful and expert use of force by the SAPS. The aim of this would be to minimise increasing instances of arbitrary and abusive use of force by the police, particularly in the management of crowds and gatherings and in the arrest and detention of suspects.

Legal clarity and guidance on key principles on the use of force, such as necessity, legality and proportionality, as well as precaution, are critical both to the proper and effective human rights-based approach to police use of force, as well as any subsequent investigations of arbitrary and aggressive use of force.

Unless this happens, and we implement a more coherent and coordinated regulatory regime on the use of force, it is likely that we will unfortunately continue to see the recurrence of incidents like the one in Bellville, and investigations by oversight bodies will simply confirm the basic legality of the actions. DM

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All Comments 5

  • I am grateful to read that there is an African Policing Civilian Oversight Forum… and I can only hope that, between them and others involved in this type of work, there is enough capacity and support to drive this work against the forces of inertia that we know. Good luck

  • So the smoke screen of changing the SAPF (Force) to SAPS (Service) is just that: a smoke screen. Perhaps this is part of police double speak. Force = Service. We don’t need more laws. We need a value driven society where integrity, dignity and ethical conduct are core principals that are understood.

    • True Gerhard. Actually, we need three measurable values as a pre-requisite for entry into any public leadership position: Competence, Integrity and Accountability. Once we have leadership with those values, gradually our society will start to function properly. Education and Healthcare will work. Laws will become more rational as the lawmakers will understand the short and long term consequensences of each legislative change.

  • A great recruitment advert for the London Police Force showed close-up, a protester spitting phlegm in a British cop’s face. It invites people able to stay calm in such situations to apply to join. Until SAPS stops recruiting bullies and egotists, police attacking pensioners will happen

  • What is it with SAPS? They seem to see a pensioner or other desperados and they think, walking stick = lethal weapon. SA’s rightly lost any/ all respect it had for the culprits in blue. THUGS IN BLUE.

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