As allegations of abuses committed by cops and soldiers started streaming in during the lockdown, ranging from forcing people to do physical exercises for not staying at home to arbitrary arrests and assault, leaders distanced themselves from their members' actions and said complainants have recourse. They could report cases to SAPS, the Independent Police Investigative Directorate (IPID) or Military Ombudsman.
IPID had received 376 cases related to Covid-19 operations by 5 May and was investigating 11 deaths related to police action. After initially declining to take on Khosa's case, it's now investigating the JMPD officers who allegedly watched on as he was assaulted.
The Military Ombudsman told Daily Maverick that it had received 32 complaints from members of the public about the conduct of soldiers during the lockdown.
Among the deaths IPID is investigating is the case of Petrus Miggels who was allegedly assaulted by police in Ravensmead, Cape Town for buying beer on the first day of the lockdown. The police watchdog found he had a double heart attack and referred the case back to SAPS for inquest investigation.
Police in Isipingo, KwaZulu-Natal allegedly assaulted informal trader Adane Emmanuel on 2 April after accusing him of selling cigarettes and left him at a clinic where he later died. SAPS members are also accused of killing Sandile Sajini, shooting him with live ammunition in Samora Machel, Cape Town on 22 April during a protest for food where people tried to loot trucks.
Weeks after the first deployment, Ramaphosa put an additional 73,180 SANDF members on standby to help enforce the lockdown and provide medical, engineering and logistical support.
Few people, including the Khosa family when they went to court, questioned the decision to deploy the SANDF in a joint operation with SAPS to implement lockdown regulations, but there were clear risks and dire consequences if the operation wasn't carefully managed.
In 2018/19 IPID received 393 cases of deaths as a result of police actions and 214 cases of deaths in police custody.
The military has been deployed on multiple occasions within the country's borders but it tries to avoid local crime-combating operations because, according to SANDF Chief General Solly Shoke in 2018, “When we come in we skop en donder and we don't want ourselves to be in that situation where now we are seen to be fighting against our own people”.
The military was given a supporting role to SAPS in the lockdown but SANDF members can make arrests. Due to the unpredicted pandemic and rapid deployment, it's unlikely members of the military received any extra training before the lockdown operation, according to Dr Johan Burger from the Institute of Security Studies.
Key indicators for the police, meanwhile, have been in decline. Since 2012/13, detection rates for serious crimes have dropped, payouts for civil claims have increased by 84% and according to the Victims of Crime Survey public confidence in SAPS has plummeted.
In an analysis of police watchdog IPID's cases published earlier this year, independent policing expert David Bruce said: “Relative to investigations completed, the figure for criminal convictions is 1.7% and for disciplinary convictions 4.3%.”
Before the lockdown, the Military Ombudsman mostly dealt with complaints from members about their conditions of service.
After Khosa died, SAPS, IPID and an SANDF board of inquiry opened investigations but not a single state institution came to interview Montsha or other witnesses or medically examine them to verify their allegations of assault.
The Khosa family went to court calling for a proper investigation and to ensure human rights were at the centre of the authorities' enforcement operation during the lockdown. It faced an uphill battle.
The Constitutional Court said the matter wasn't within its jurisdiction and in the North Gauteng High Court, SAPS and SANDF leaders said they had condemned reported abuses, that there were clear directives on how members should uphold citizens' rights and use minimum force. Where mistakes happen, they said, people can report them for investigation.
“One cannot have a scenario where you have 78,000 soldiers deployed on the streets told that they should enforce the lockdown regulations and never told how to,” rallied advocate Tembeka Ngcukaitobi for the family.
Judge Hans Fabricius issued a scathing judgment against the authorities, suggesting the deployment was cavalier and leaders of the SANDF, SAPS and executive had failed to ensure that members upheld the law or took complaints of abuse seriously.
He said comments, such as those from Mapisa-Nqakula, “appear to defend and downplay, if not encourage the use of force”, in effect giving soldiers powers of punishment, which only the courts have.
Training was “solely inadequate”, said the court and a joint code of conduct between SAPS and the SANDF should have been issued, as well as detailed guidelines on the use of force. Fabricius ordered the authorities to establish a “freely accessible mechanism” to report abuses because IPID and the Military Ombudsman were inadequate to handle cases during the lockdown.
“We are a constitutional democratic Republic and it is essential that this be repeatedly brought to the attention of the security forces.”
The court declared that rights to dignity, life and not to be tortured must be respected during the lockdown. Members of society “are not objects, or subjects of some higher authority be it the President or the executive or the National Command Council,” said Fabricius.
“It is an ironic thought having regard to the history of this country that the very institutions that have been created to safeguard and protect the population from crime and violence, are the very persons who now fail to impose the appropriate internal remedies against the transgressors, but have the audacity to tell a court that it has no function in the matter and ought not even to hear it.”
The remarkable court order is intended to prevent further abuse. Nomsa Montsha welcomed the ruling but said it won't bring Khosa back. The family is suing the state for damages and the court has ordered the authorities to file their investigations into his death by 4 June 2020.
The 40-year-old was buried in Mawa, near Tzaneen, on 18 April.
“He can't just be killed and it means nothing,” his brother Lasta Khosa was quoted as saying at the funeral. “What are we going to do with his children?” DM