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Composite: Leila Dougan

The protectors turn on the people

By Chanel Retief, Greg Nicolson, Ferial Haffajee

The Covid-19 story has been one long story of police and army violence as lockdown policing turned nasty. Did the police emulate their leader? And has enough been done to hold perpetrators to account?

Video: Chanel Retief

Collins Khosa: Victim of a brutally implemented operation

By Greg Nicolson

Photo: EPA-EFE / Kim Ludbrook

Deploying thousands of soldiers to help the police enforce the lockdown had clear risks and potentially dire consequences. The authorities have been ordered to prioritise human rights, but it came too late for Collins Khosa.

Collins Khosa. Photo: supplied

Collins Khosa sat inside his home in Alexandra's Far East Bank on the afternoon of Good Friday eating a meal prepared by his partner Nomsa Montsha. His pregnant sister Ivonny Muvhango and her two children were also in the house while Khosa's brother-in-law, Thabiso Muvhango, was in the yard.

Hours later, the 40-year-old father of three who worked in a bakery, started vomiting and losing consciousness.

“I rested him on the bed. I sat on the side of the bed trying to comfort him. However, about three hours after the SANDF members had left, while holding my hand, I noticed that he was not moving,” said Montsha in an affidavit.

Khosa's death, and his family's subsequent court action, is the most high-profile case of abuse reported against the authorities during the lockdown.

It highlights how political and institutional leaders failed to sufficiently prepare soldiers and police officers to walk the line, to understand that while some rights are limited during a State of Disaster, others, such as the rights to human dignity, life and not to be tortured, are always absolute.

It started with an empty camp chair, half a cup of alcohol and an objection.

According to multiple affidavits, two soldiers were on patrol on Moeketsi Street at around 5pm on 10 April 2020 when they confronted Muvhango about the cup of alcohol and empty camp chair sitting in the yard. They ordered him inside the house. There, Khosa told them that drinking at home wasn't a crime during the lockdown.

The soldiers confiscated one beer from Khosa's fridge and another from Muvhango's before ordering the men outside, accusing them of violating State of Disaster regulations during the Covid-19 lockdown. Khosa objected when one of the soldiers closed the gate on his car.

During the lockdown, Defence Minister Nosiviwe Mapisa-Nqakula has repeatedly warned the public not to provoke soldiers. She hasn't clearly explained her comments and is perhaps only encouraging the public to adhere to regulations.

Photo: Youtube

But her warnings trigger past examples of abuse, often followed by impunity, by the authorities. After eight police officers murdered Mido Macia in 2013, six months after the Marikana Massacre, journalist Redi Tlhabi recalled a police acquaintance who advised against arguing with cops.

“A simple attempt to explain your position is seen as provocation. When stopped we must grovel and beg for our lives, even when we have not done anything wrong,” Tlhabi wrote.

The soldiers in Alexandra on Good Friday said they wanted to “prove a point”, according to Montsha. Noel Bongela, who rents a back room on the property, heard them say they want to “deal with” Khosa and Muvhango “because they have an attitude”.

The soldiers called for back-up. Members of the SANDF and Johannesburg Metro Police Department (JMPD) arrived. The soldiers poured beer on the two men. They allegedly held Khosa's hands behind his back while choking him, slammed him against a cement wall, hit him with the butt of a rifle, kicked, slapped and punched him.

“During the entire incident, I kept shouting that they must stop hurting Mr Khosa as they were going to kill him,” said Montsha, who was whipped with a sjambok. Neighbours who tried to record the incident were arrested and allegedly assaulted.

Khosa's sister Ivonny said: “I suspect that the only reason why I was not assaulted is because my husband kept on telling the soldiers that I am pregnant.”

Montsha said her family was now “emotionally obliterated” and had “lost complete faith in the security forces”. Khosa died from blunt force trauma.

On 26 March 2020, the eve of the lockdown, President Cyril Ramaphosa addressed SAPS and SANDF members. Days earlier, he informed Parliament that 2,820 soldiers would be deployed to help SAPS implement measures to curb the spread of Covid-19.

Wearing army regalia, the commander-in-chief urged the troops to lead with humility and compassion and to ensure rights were not violated, intentionally or unintentionally. It was not the time for “skiet en donder”, he emphasised.

In a press conference on the same night, Defence Minister Nosiviwe Mapisa-Nqakula also mentioned the need to respect people's rights, but her comments were more ominous: “It will only be skop, skiet en donder when circumstances determine that. For now, we're a constitutional democracy.”

Defence Minister Nosiviwe Mapisa-Nqakula. Photo: Gallo Images / Phill Magakoe

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

The grim toll of police violence – 11 dead and not a peep from the police watchdog

By Ferial Haffajee

Photo: EPA-EFE / Kim Ludbrook

South Africans are so inured to security force violence that the deaths of 11 people at the hands of the police and army during lockdown have barely caused a stir.

On 8 May, in a report by the Independent Police Investigative Directorate (IPID), interim head Patrick Setshedi revealed that 11 people (one of whom was a seven-year-old child) had died in police action between 27 March and 5 May, the latest reporting period.

Post-mortem results were delayed in nearly all the cases and members of parliament, who received the report in a committee meeting, sent Setshedi and his team packing for the poor quality of the reporting. All 11 died in the course of lockdown law enforcement, suggesting that the police have not yet mastered the art of policing a public health emergency.

In most of the cases (see graphic), the victims died after being chased, stopped or arrested by the police. In one case in Lenasia, Johannesburg, a man died in a police cell. Three other individuals died in clinics and a hospital which they were taken to by police. This suggests the injuries they sustained during their arrests were severe. In two instances, deaths occurred when police tried to stop protests – one in North West and another in Cape Town.

Graphic: Rudi Louw

An epidemic of police violence

IPID received a total of 828 complaints related to police misconduct between 27 March and 5 May, and it attributed 376 of those cases to the policing of Covid-19 regulations. Most of these cases are related to assaults (see graphics), suggesting a very high level of police violence as a key strategy.

Graphic: Rudi Louw

There were also six complaints of police corruption, on top of the 11 deaths reported to IPID in the period under review.

The chart comparing cases reported to IPID in 2019 to those in 2020 reveal that the disaster regulations have led to a 20% increase in police violence.

Graphic: Rudi Louw

Asked for comment on progress on the investigations, IPID spokesperson Sontaga Seisa said: “I am not in a position to comment on any stats that have not been verified by statisticians and or authorised or signed off by our principals.” This, despite the report being officially tabled in parliament by Setshedi and his team.

Asked about how and when IPID had engaged SAPS about the increase in police violence, Seisa said: “As always, IPID is advocating and expecting professional conduct from the law enforcement officials whenever they are enforcing the law. This professional code of conduct is always shared with police management.”

Not good enough, says judge

North Gauteng High Court judge Hans Fabricius has, meanwhile, delivered a smackdown to the security forces’ conduct during the lockdown.

In an urgent application after the death of Collins Khosa subsequent to his arrest by an army patrol in Alexandra, lawyers sought justice for his family and asked the court to order that the soldiers involved in his death be placed on compulsory leave.

The judge acceded and went further, ordering that the ministers of police and defence draw up and disseminate a new code of conduct for their members during the pandemic.

As journalist Carmel Rickard noted, the judgment is a far-reaching one that is likely to impact the jackboot policing tactics which the public has been subjected to. DM

Leaders should have made an example of abusive officers

By Greg Nicolson

Photo: Gallo Images / ER Lombard

There was always a risk the lockdown regulations could have led to abuses committed by the authorities, but experts say more should have been done to protect citizens.

Andrew Faull, a senior researcher on justice and crime prevention at the Institute of Security Studies (ISS), believes the soldiers and police officers deployed during the Covid-19 lockdown could have been the face of President Cyril Ramaphosa’s desired social compact.

Their role could have centred around supporting the medical response, distributing thermometers and sanitisers, helping to educate the public, and alleviating the socio-economic challenges by distributing food packages. They could have been used to build unity rather than prioritising forcing people back into their houses.

SAPS and SANDF members have faced a raft of allegations of abuse, particularly in the early days of the lockdown, as they were jointly deployed to enforce impractical regulations under the leadership of a police service not known for accountability, and with support from soldiers not trained for the job.

Academics from the University of Johannesburg have called for countries with high levels of poverty and inequality to implement physical distancing regulations using a harm-reduction approach that takes into account local context and focuses on guidance rather than force.

Noting that many people live in dense urban areas such as townships and informal settlements, they said, “Effective social distancing is impossible because of overcrowding and poor sanitation.”

Faull said that when the lockdown began in South Africa, the authorities focused on using force to achieve compliance. That didn't work as the regulations weren't practical, confining people to crowded rooms with a lack of basic services, but the authorities tried anyway, concentrating their attention on some of the country's poorest and most crowded areas.

The Independent Police Investigative Directorate (IPID) has received hundreds of complaints about police officers during the lockdown, and 32 members of the public have laid complaints with the Military Ombudsman about the conduct of SANDF members. Police Minister Bheki Cele said 253 SAPS members had been arrested during the lockdown for a range of offences.

An ocean kayaker is arrested for contravention of lockdown regulations in Cape Town. Photo: EPA-EFE / Nic Bothma

“There should have been stiffer condemnation and action taken against the people that were transgressors,” said Faull, on how abuse could have been curbed early in the lockdown.

He said that if the authorities were taking action against their own for abuses committed during the lockdown, they should have communicated their efforts. Instead, while most law enforcers had acted professionally, it looked like political and institutional leaders were defending flagrant abuse.

The joint operation has been criticised for failing to give clear guidelines on when and how members should use force. In its ruling on the Collins Khosa case, the North Gauteng High Court ordered the defence and police ministers to publish guidelines on when force can be used, and under what circumstances a person can be arrested, during the State of Disaster.

The role of the SANDF has also raised questions. The military can be deployed domestically in exceptional circumstances under the Defence Act to prevent and combat crime and maintain law and order. Soldiers can have the same powers as police officers, except for the power to investigate, but they must receive appropriate training and equipment.

While SANDF members receive some training that might be relevant during the lockdown, such as in crowd control, there's no evidence that they received specific training before the current deployment.

“From a legal point of view, the situation is worrying when the regulations issued in terms of the Disaster Management Act defines 'enforcement officer' as inclusive of a member of the SANDF without any requirement for prior and appropriate training,” said Dr Johan Burger from the ISS.

“This implies that members of the SANDF are authorised to enforce the Covid-19 related disaster management regulations without appropriate training and equipment,” he added.

The SANDF and police have worked on joint operations before, such as during elections and in combating crime, but they've had months to prepare for those deployments.

Burger has called on the Joint Operational and Intelligence Structure, which coordinates such joint operations, to deploy suitable officers and hold them accountable for their subordinates' actions.

“All allegations of unlawful behaviour by security officials must immediately be investigated and the resulting action communicated to the public,” he said.

Ramaphosa has authorised the deployment of up to 76,000 SANDF members to support SAPS, which has a staff of around 150,000, but there's a stubbornly persistent culture of abuse and lack of accountability within the police.

Photo: Youtube

Faull said SAPS members are relatively well paid in the South African context, but due to the country's high unemployment rate, officers have to support a high number of dependents and it's not in their interests to report abuse, ruffle feathers and risk their jobs.

“It makes sense not to jeopardise that situation,” he said.

The culture of silence is perpetuated by commanders who are meant to hold their members accountable, but sympathise with errant officers and the impact a dismissal could have on their families. SAPS leaders handling a member's disciplinary hearing often have a relationship with the accused, said Faull.

According to an analysis by independent policing expert David Bruce, cash-strapped watchdog IPID’s investigations “translate into very few convictions for torture and other cases of the use of excessive force by the police, or police brutality related to the performance of police duties, as well as police corruption”.

Brigadier-General Dolby Coetzee, the SANDF's commander of lockdown operations in Gauteng, was quoted in the Sunday Times suggesting the military was taking a more practical and understanding approach to implementing the regulations and reducing the spread of Covid-19.

“Key to that is not force, but education. Like with all of Gauteng's informal settlements, it's no easy task. You open your bedroom door and you are in the street. Here, a street is a person's backyard. To arrest them for being on the street is harsh,” said Coetzee.

The authorities will have to continue to enforce restrictions to prevent the spread of the pandemic, but they should be nuanced and practical.

Faull said the government needed to find a balance between the most effective regulations and those the authorities had the ability to enforce, without leading to widespread abuse and legitimising the lockdown. DM

Analysis: The Jackboot

By Ferial Haffajee

Did Bheki Cele’s skop, skiet en donner language instigate his cops?

Composite: Leila Dougan

The Covid-19 story has been one long story of police and army violence as lockdown policing turned nasty. Did the police emulate their leader? The loquacious police minister won’t take our questions.

The SARS-Cov2 virus and its attendant disease, Covid-19, are a public health emergency that requires a form of civilian policing which has never been ingrained in South Africa in spite of the name change from apartheid’s police force to a police service. Instead, the high rate of deaths in police action and of other forms of misconduct in the course of Covid-19 policing of national disaster reveal that the culture has not shifted.

And, has Police Minister Bheki Cele helped? That he loves his job is clear, but Cele has failed to distinguish his role as a minister from his previous role as a national police commissioner. He loved the power of that job and he has just about completely taken over the job of the national police commissioner Khehla Sitole whom most South Africans are unlikely to even be able to pick out in a crowd, he is that invisible.

Late in March as South Africa moved from lockdown-lite to full lockdown Level 5, Cele signalled how his cops were going to run things.

A man is arrested by the metro police for breaking the lockdown laws. Photo: EPA-EFE / Kim Ludbrook

“Restaurants shall not operate. There shall be no food at restaurants. Go and cook home (sic). There is no need to be on the road. There shall be no movement. If you break these laws, you are six months in (jail) or a fine or both. It’s not a fairytale to say the law will act and act very harsh (sic) on you,” he boomed at a press briefing to outline the policing of Level 5 lockdown.

His mini-me, the Transport Minister Fikile Mbalula chimed in: “You can’t think that shops and everything will be business as usual. You’ve got a spaza shop in your neighbourhood: buy there!” He also warned that “that thing of travel is over” and then changed taxi transport regulations three times in as many days.

Transport Minister Fikile Mbalula. Photo: Sune Payne

The commanding tone of the police minister had a copy-cat effect in the Cabinet or its grandly-styled National Coronavirus Command Council (which turns out is a simple cabinet sub-committee) – note, for example, his language of commandments “shall not operate, shall be no movement, the law will act very harsh”.

It, therefore, should be of little surprise that the police interpreted the Covid-19 more as a state of emergency giving them unfettered power (the police and soldiers are already protected by personal indemnity). From there, it was a short walk to jackboot violence.

A day after Cele’s commanding and fear-mongering presentation, President Cyril Ramaphosa had this to say as he sent the army and the police into the field: “Many of our people are fearful, they are doubtful, they are concerned. They will be looking up to you to give them confidence that everything will be alright. This is not a moment for skop, skiet en donner.” From this Jackboot series, it is clear which politician had the ear of the police and of the army.

Photo: Deaan Vivier

Judge Hans Fabricius’s take-no-prisoners judgment on the death of Collins Khosa insists on a constitutional interpretation of policing powers in a public health emergency and he has ordered both Cele and the Defence Minister Nosiviwe Mapisa-Nquakula to ensure a code of conduct is drawn up and widely circulated.

Daily Maverick put various questions to Cele’s office, but he failed to respond in time for publication. For the record, these were our questions:

1. Police action – assaults, deaths in custody or shooting or deaths by assault, appears to be out of kilter with preventive policing in a public health emergency. What is your view?

2. Have you been surprised and dismayed by the jump (about 20%) as measured by IPID in a single and short period (March 27 to May 5) in police-reportable misconduct?

3. What have you done about this?

4. Do you think our police are sufficiently trained in civilian policing methods and in policing of protests – two of the people who died as a result of Covid-19 policing were killed by the police during protests?

5. Have you instituted an inquiry into the deaths in police action (or straight after, either in custody or in hospital)? If not, why not? If so, what are the terms, especially the deadlines?

6. Have you instituted an inquiry into police abuse of the public in the course of policing the Covid-19 regulations? If not, why not? If so, what are the terms, especially the deadlines?

7. Has it been difficult (or additionally burdensome) to police the Covid-19 regulations?

We’ll let you know when we get some answers. DM

Sanctioning soldiers: The Military Ombudsman's role

By Greg Nicolson

Photo: EPA-EFE / Kim Ludbrook

Few people had heard of the Military Ombudsman before the lockdown. Now the institution is being called upon to deal with errant soldiers, but it has a limited role.

The SA Military Ombudsman has received 2,785 cases in the eight years since it was established in 2012, the office's head, retired Lieutenant General Vusumuzi Masondo, recently told the North Gauteng High Court. Only 197 of those were from members of the public.

The ombudsman has been touted as one of the avenues of recourse for civilians who have been mistreated by members of the military during the Covid-19 lockdown, but its capacity, experience and independence have been called into question.

Thirty-two complaints have been lodged with the institution by members of the public against the SANDF during the State of Disaster, including allegations of heavy-handedness, undignified treatment and unlawful confiscation of property.

“Some of these complaints have already been allocated for investigation,” the ombudsman said in a statement on Monday 18 May.

A number of complaints have been taken from social media and filed with insufficient details. Masondo said investigators are working hard to contact all complainants and intake officers have been assigned to help submit the required information.

The SANDF is rarely deployed domestically and most of the office's complaints come from current and former members of the military.

The ombudsman received 390 cases in 2018/19. The majority were grievances from members on issues such as remuneration, termination and working conditions. Only nine related to the conduct of SANDF members.

Photo: Brenton Geach / Gallo Images via Getty Image

Masondo told the court that “the Ombud is more than capable of managing the complaints that have been referred to it since the lockdown”.

But the institution isn't comparable to police watchdog IPID, which investigates alleged crimes committed by cops and refers matters for prosecution to the NPA.

After completing an investigation, the ombudsman makes recommendations to the defence minister, who instructs the SANDF to implement them. Only a high court can overturn the recommendations.

The Military Ombudsman doesn't investigate criminal cases and cannot investigate matters already before a civilian or military court. Such matters are referred to the SANDF or SAPS to investigate, but soldiers can be sanctioned as a result of the investigations.

SAPS and an SANDF board of inquiry are currently investigating the killing of Collins Khosa.

The role of the Military Ombudsman was raised during the Khosa case in the North Gauteng High Court, which found that neither it nor the Independent Police Investigative Directorate could sufficiently address allegations of abuse during the lockdown.

“In practice, therefore, it cannot investigate promptly, effectively and independently, which is also apparent from its own annual activity report for 2018/19,” ruled Judge Hans Fabricius.

That year, the ombudsman finalised 47% of complaints against a target of 75%.

The court also found that it lacked capacity as it wasn't designed to meet the current demands, and that it was “not institutionally impartial”.

There is no safeguard to prevent the president from removing the ombudsman before the end of his seven-year term and the defence minister, rather than Parliament, holds the institution accountable, the judge ruled.

Fabricius ordered the government to establish a new mechanism for reporting and investigating alleged abuses committed by SANDF and SAPS members during the lockdown.

Responding to the court ruling, Military Ombudsman spokesperson, Nthombikayise Mdluli Jacha said, “We are still in the process of studying the judgement in order to understand the reasoning behind the statements made by the court regarding the Office.” DM

Credits:

Graphics and design by Rudi Louw