As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Politicians, the leadership of the South African Police Service (SAPS) and many members of the chattering classes claim to be surprised and shocked by video footage showing a man being dragged behind a police vehicle. The man (a Mozambican taxi driver) was then allegedly beaten and left to die in a police cell. The only surprising thing about this incidence of police brutality is that the politicians, members of the chattering classes and the SAPS leadership are not congratulating the police on a job well done.
It is reported that Mozambican taxi driver Mido Macia lay for hours bleeding to death, alone in a cell at a police station in Daveyton, on the East Rand, without medical attention. For nearly four hours, the 27-year-old — the sole breadwinner for his one-year-old son, Sergio, and 23-year-old wife, Jacquelina – lay dying in a crumpled heap, in his own blood and faeces. His alleged crime: refusing to obey police officers who ordered him to stop blocking traffic with his vehicle in Daveyton township’s main street.
The Presidency issued a statement condemning the brutal killing. “Members of the South African police service are required to operate within the confines of the law in executing their duties. The visuals of the incident are horrific, disturbing and unacceptable. No human being should be treated in that manner,” said President Zuma. National Police Commissioner Riah Phiyega also expressed het deep concern about the incident. Her spokesperson Brigadier Phuti Setati, said: “The matter is viewed by the National Commissioner in a very serious light and it is strongly condemned.”
However, as the Council for the Advancement of the South African Constitution (CASAC) pointed out in a submission to the Marikana Commission of Inquiry, under the government of President Jacob Zuma there has been a “deliberate policy” that involves encouraging greater use of force by members of the SAPS. This policy has beens advanced through the promotion of a semi-formal and illegal doctrine of “maximum force”. CASAC points to several statements and actions to back up this claim, pointing to a statement made by the then Deputy Minister of Safety and Security, Susan Shabangu on 9 April 2008 to the effect that:
You must kill the bastards (criminals) if they threaten you or the community. You must not worry about the regulations. I want no warning shots. You have one shot and it must be a kill shot. I want to assure the police station commissioners and policemen and women from these areas that they have permission to kill these criminals. I will not tolerate any pathetic excuses for you not being able to deal with crime, you have been given guns, now use them. If criminals dare to threaten the police or the livelihood or lives of innocent men, women and children, then they must be killed.
Deputy Minister Shabangu’s words were not repudiated by the South African government. In fact on 11 April 2008, two days after Shabangu made this statement, Mr Jacob Zuma (then President of the ANC) said:
If you have a deputy minister saying the kinds of things that the deputy minister was saying, this is what we need to happen. What the deputy minister was saying is: what we are to be doing is dealing with the criminals rather than talking about it.
Minister of Safety and Security Nathi Mthethwa told Parliament’s Select Committee on Security on 12 November 2008 that people involved must be dealt with.
We don’t believe that, when you are faced… with criminals armed with sophisticated weaponry, the police’s task would be to take out some human rights charter. Because we are in the field, we are in the killing field, where criminals are killing law-abiding citizens. Now we are saying to the police that we ourselves have an obligation as well to strengthen the arm of these task forces. So that they are able, on the field, to teach those people a lesson — fight fire with fire. There’s no other way on that.
Soon afterwards, Minister Mthethwa, proposed amendments to Section 49 of the Criminal Procedure Act, the legal provision dealing with the use of lethal force “for arrest”, in order to make it easier for the SAPS to shoot and kill people suspected by the Police of being involved in crime. The amendment to Section 49 that came into force at the end of September 2012, broadened the powers of the police to use lethal force and contributed to an atmosphere of impunity.
In a subsequent press interview Mr Mthethwa also presented the fact that large numbers of police were being killed as one of the reasons why it was necessary to amend Section 49 despite the fact that the law already authorised the use of lethal force in self-defence. As CASAC points out, no evidence has been presented at any point to demonstrate that amending Section 49 will improve the safety of police. “We are at war with criminals,” Mthethwa is quoted as saying.
When Bheki Cele was appointed as National Commissioner of the SAPS in July 2009 he already had a reputation for advocating the aggressive use of force and continued to openly do so during the initial months after he was appointed. CASAC again:
For instance, in an address to the Pretoria Press Club in September 2009, Mr Cele is reported to have said that “criminals were heavily armed with R5 assault rifles” and that “The only language that R5s understand is R5s. The police do not have to think twice and lose their lives”. The statements made by President Zuma at a specially convened meeting [in September 2009] with more than 1000 police station commissioners to the effect that police should not have to fire warning shots when they were faced with an immediate threat to their lives. (President Zuma’s statements reflected his ignorance of the issue. There is no requirement anywhere in South African law or police regulations for warning shots to be fired when facing an imminent or immediate threat to one’s life.)
These were not the only members of government who encouraged the use of maximum force by the SAPS. During this period the then Deputy-Minister of Police, Fikile Mbalula, stated that the SAPS will show “no mercy” to criminals and will be “taking the war to the criminals”. The police should “shoot the bastards” and it was unavoidable that civilians would be killed in the cross-fire between police and criminals.
After a public outcry resulting form the increasing lawlessness of the SAPS, in particular two killings by police during this period — that of Olga Kekana (11 October 2009) and a three year old boy, Atlegang Phalane (7 November 2009) – the government seemed to tone to down its rhetoric. Government ministers began to use less crude rhetoric, but there was no change in the policy to use maximum force. But it continued to be the policy of government to promote more aggressive use of force by the police and this was accompanied by a sharp increase in the number of deaths of people at the hands of the police.
For example in late November 2009 Minister Mthethwa indicated that he maintained the view that what was called for was a “fight fire with fire” approach. A decision was also taken to re-militarise the ranks of the SAPS. The decision was implemented early in 2010. On 13 September 2012 President Zuma told Parliament that the militarisation of police ranks “had empowered the police to act decisively” and that this had resulted in a lower crime rate.
It was in the wake of this enabling environment that the Marikana massacre took place. No wonder Amnesty International has expressed concerns about police brutality, including torture and extrajudicial killings, in South Africa. Its 2012 annual report documented allegations against the South African police of excessive force, torture, rape and “extrajudicial executions”. There has also been concern about brutal training methods for the police. According to Peter Jordi from the Wits Law Clinic “[Police] Torture is spiralling out of control. It is happening everywhere.” No wonder that the Institute for Security Studies in Pretoria has reported that the number of people shot dead by police doubled in the four years to 2010. Deaths in police custody or resulting from police action numbered 860 in 2009-10, against an average of 695 deaths a year from 2003-2008.
Of course, middle class people who are fearful of crime and do not bear the brunt of the violence and lawlessness of the SAPS, tend to ignore the belligerent statements by politicians and the invisible war on the poor conducted by an insecure, sometimes corrupt, and often badly trained Police Service. It is only when the brutality that has become endemic is captured on video that members of the chattering classes and the politicians who serve their interest suddenly express outrage and shock at the police brutality.
Spare me the hypocrisy.
PS: I borrowed heavily from the excellent CASAC submission to the Marikana Commission of Inquiry when writing this piece.BACK TO TOP