An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The shock and outrage which have followed the brutal assault and killing of Andries Tatane by the South African Police Service during a service delivery protest at Setsoto, in Ficksburg, eastern Free State, yesterday is surprising, to say the least. Perhaps because this incident of police brutality was caught on camera and broadcast on SABC TV news, people are suddenly claiming to be shocked by something that happens every day. Almost a thousand people are now killed every year due to police action, but this hardly makes the news anymore.
Unless the police shoots and kills a blond girl from Houghton or a foreign tourist from Europe, one is not likely to hear about it at all.
We all know that most police officers are badly trained, that quite a few of its members are corrupt (including the former Police Commissioner) and that some police officers assault, torture and sometimes kill innocent civilians. We all know that if one happens to be a foreigner from elsewhere in Africa, if one is poor and black and not well-connected, if one is a member of a social movement involved in protest action, or if one gets in the way of the VIP blue light brigade, members of the SAPS is highly unlikely to treat you in a way that is consistent with the law and the Constitution.
Many people living in South Africa have reason to fear the SAPS and not to view it as a police service whose members serve and protect the community, but rather as a police force whose member enforce their will on others and are at war with the very community they are supposed to serve. It often seems as if some members of the SAPS either do not know the law or wilfully ignore it and that the victims of this lawlessness are not only criminals but ordinary civilians who happen to get in the way. If one happens to be in the wrong place at the wrong time — like Andries Tatane – one might very well be humiliated, maimed or killed for no good reason at all.
Often police officers use extreme force and humiliate and assault innocent civilians because they feel humiliated and scared and see this as the only way to retaliate. They see civilians like Andries Tatane as easy target on which to take out their frustration which festers because of the humiliation, fear and confusion they experience because they are ill equipped and badly trained to protect themselves and members of the community against dangerous criminals and are often unable to solve the many serious crimes that occur every day.
We also know that the problem is getting worse. Since politicians and members of the police leadership started talking about the need for the police to shoot and kill people who they happen to think might be criminal suspects, the number of civilians killed by the police has risen steadily to numbers last seen during the apartheid era. Cabinet recently approved draft legislation which would make it even easier for police officers to shoot and kill civilians first and then to ask whether this was a good idea or not.
Legal claims paid out by police for 11 months of last year showed an increase of about 30% over the claims paid out in the 2009-10 fiscal year. When Congress of the People MP Leonard Ramatlakane asked the minister Nathi Mthethwa what the cost of litigation against the South African Police Service was in the past two years and what charges against officers were involved, Mr Mthethwa said:
An amount of R87,2m was paid during 2009-10 financial year as far as claims for compensation are concerned, and an amount of R115,9m has been paid during the current financial year as on February 28 2010. The claims involve the following types of compensation: false arrests, assaults and shootings, collision damages to vehicles, damage to property and other issues such as crimen injuria.
If the proposed amendments to section 49 of the Criminal Procedure Act – which would clearly be unconstitutional — is passed by Parliament later this year, these numbers might go down, but this will not be because the police will shoot and kill less civilians but rather because the law will then justify even more extreme forms of extra-judicial killing of our people by trigger happy members of the police force.
Section 119(5) of the Constitution states that the security services — which includes the SAPS – “must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic”. What happened yesterday was not in accordance with our Constitution or the law, nor with international law. It is unclear whether the action by the police officers yesterday would have been lawful had they acted in terms of the proposed amendments to section 49 of the Criminal Procedure Act.
When Dr PAJ Waddington was asked to investigate the Boipatong massacre which occurred in the early nineties, he concluded in a wide-ranging report that the apartheid police had a confessional style of policing (in other words, the police arrested suspects and then tortured them until they had extracted confessions from them). The Waddington Report found the apartheid police to be “woefully inadequate” and “incompetent”, and suggestive of “an unaccountable police force.” Complicity aside, the nature of security force behaviour at an official level frequently confirms an active promotion of destabilisation and violence beyond the “legal limits”, the report found.
In the heady days after the fall of apartheid there was much talk about transforming the police force at war with the population into a police service, working with communities to prevent and solve crime. But the Zuma administration, in another populist turn to the right, decided to embrace quick-fix solutions to the crime problem by remilitarising the police and by encouraging police officers to shoot and kill civilians and to show them who was the boss by acting like bullies. This is increasingly turning the police away from a service that has to help safeguard our democracy into a force that threatens the very existence of our democracy.
Where the police becomes a law unto itself, where it sees itself as at war with the community, where it is politicised and sees its task a protecting the leaders of a specific faction of the governing party (as the apartheid era police did), then the police becomes a threat to democracy. Instead of working in partnership with communities to solve crimes, they take sides and see any kind of political protest as illegitimate and as part of a plot to overthrow the government. When that happens the police stops being an institution in service of democracy and starts being an institution in service of itself and of that faction it serves.BACK TO TOP