In the recent court judgment dealing with brutality at the hands of law enforcement during the government’s Covid-19 lockdown, the Independent Police Investigative Directorate (Ipid) and the office of the military ombudsman came under serious scrutiny.
“Not one from any state agency medically examined the applicants nor interviewed the surviving victims or any witnesses until after the court hearing. This alone shows that the existing investigative bodies are either not competent or not committed to comply with Article 12 of the Torture Convention,” reads the judgment of Judge Hans Fabricius.
The court ordered the ministers of police and of defence and military veterans to establish within five days an easily accessible mechanism for civilians to report allegations of torture and degrading treatment or punishment at the hands of members of the police and army. This must be widely broadcast on television and radio in all the official languages.
In making this order, the court relied on a report by the United Nations Convention against Torture on South Africa’s capacity to investigate cases of torture by law enforcement. The report says the Torture Act has not been operationalised, in that there has not been a single case of torture brought against a police official in their independent capacity under the act since its enactment. This was concerning to the report’s authors, given the many instances of the use of force, torture and sexual violence, and the high number of deaths in custody resulting from the actions of law enforcement officials. Deeply concerning was the lack of investigation into these violations.
In 2017-2018, Ipid reported 217 cases of torture, 3 661 assault cases and 112 rapes committed by police officials, 35 of which were committed by police officers while on duty. An extensive report by Viewfinder, a journalism project that investigates abuses of power, exposed the inefficiency and corruption of the police watchdog.
Ombudsman falls short
The court said the Office of the Military Ombud does not have the institutional capacity to deal with matters and complaints. The office set itself a target in 2018-2019 of finalising 75% of complaints, but only processed 45%. The court went on to say that the army watchdog lacks impartiality as it is made up entirely of army personnel; one of the requirements to become a military ombudsman is having been in the army for 10 years. With more than 74 000 soldiers deployed across South Africa, the military ombud lacks capacity to deal with the complaints that might arise.
During the lockdown, there have been a number of reported cases of state brutality by members of the South African National Defence Force (SANDF), South African Police Service (SAPS) and municipal police departments.
The United Nations Human Rights Office raised the alarm about South Africa’s militarised lockdown. It said there were concerns that the force used by the police and military was disproportionate and so the need for a competent independent investigative body was more pressing.
The court said it was clear from the UN report that South Africa’s investigative bodies did not have the capacity to perform prompt and impartial investigations into law enforcement agencies, and the case of Collins Khosa bears this out.
Khosa died after being assaulted by SANDF members on Good Friday, 10 April. His partner, Nomsa Montsha, describes the events that led to his death in detail in her initial affidavit.
Two members of the SANDF approached Thabiso Muvhango, Khosa’s brother-in-law, who was outside their home in Alexandra. They questioned him about a camp chair and half-full cup of alcohol that were in the front of the house. Before he could respond, the two soldiers, armed with sjamboks, invited themselves into the house, where they found Khosa eating supper with Montsha, Muvhango’s wife and her two children. They accused Muvhango and Khosa of violating lockdown regulations.
The soldiers confiscated two beers and ordered Muvhango and Khosa outside. Moments after being escorted into the street, a number of cars said to be SANDF and Johannesburg Metro Police Department back-up arrived.
Muvhango and Khosa were forced to wait while one of the soldiers briefed the newly arrived army members. Without any questions being asked, Khosa was slapped, kicked and slammed against a cement wall. Beer was poured over his head and body. He died a few hours later. The cause of death was blunt force injury to the head.
Following his death, the Khosa family approached the Pretoria high court seeking the urgent suspension of those members of the army who were in the vicinity of his house during the assault. They demanded justice for Khosa and an end to what they called “lockdown brutality”.
Finding in favour of the family, Fabricius decried the lack of trust between the state and people of South Africa. He said the state has neglected the social contract that is the Constitution, causing the distrust.
The judge criticised what he called the turning of transgressors of lockdown regulations into criminals. The court noted that more than 20 000 people have been arrested and rendered as criminals for breaching regulations. Given the consequences of arrest – the inability to find employment or diminished chances of employment – administrative fines going to the solidarity fund would have been preferred over arrests. But this was not in the judge’s power.
“It is beyond my powers to make any order that an administrative fine would be sufficient, rather than making each and every transgressor a criminal … This is a matter for Parliament.”
The court implored the state to find alternative ways, other than arrest, to secure attendance in court as this would add to overcrowding in holding cells. It would also defeat the government’s attempt to deal with overcrowding in prisons through its recently announced release of 19 000 inmates.
The issue, the court emphasised, was not the rationality of some of the regulations. Though some are irrational, the court was not asked to deal with this.
Using force against impoverished people
South Africa adopted the United Nations Convention against torture through the enactment of the Prevention of Combating and Torture of Persons Act 13 of 2013. The act states that no exceptional circumstances, even a state of emergency, will be used as justification for torture. SANDF and SAPS legislation protects people against state brutality and the excessive use of force by their members.
The court said that use of force by the police is only permissible during an arrest and, even then, it is to be used as a last resort. Deadly force can only be used against a suspect that poses the threat of serious violence against the arrestor or another person, or a person who is reasonably suspected of having committed a crime that involves inflicting bodily harm and there is no alternative way of making the arrest.
The SANDF, when deployed in cooperation with the SAPS to maintain law and order, is expected to abide by these principles. The court said that in light of Khosa’s death, the fact that the army is trained in combat demands that its members be reoriented and re-educated on the use of force in a “non-military fashion”.
Fabricius said that “when the poor, the weak, the hungry and desperate are addressed by these security forces, this obligation requires even more restraint and is of even more of a moral imperative”.
“What we are dealing with in South Africa at this moment is the conduct of the security forces aimed at mainly the most vulnerable because of the socioeconomic situations that are existing throughout South Africa, for which the poor are certainly not to blame,” added the judge.
The court ordered the ministers of defence and the police, respectively, to suspend those involved in the assault and killing of Khosa within five days. The government contested this, saying it could happen once their investigations are complete and guilt has been established. But the court was of the view that by suspending those involved, the state cannot foster a culture of impunity.
In addition, the court ordered that all SANDF, SAPS and municipal police officers be directed within two days to adhere to the absolute prohibition on torture as well as cruel, inhuman or degrading treatment and punishment, and to use minimal force when dealing with members of the public. Failure to comply will expose members of law enforcement to criminal or disciplinary proceedings. The court also ordered the various enforcement agencies to submit a sworn statement within seven days that they had carried out the directive.
Bheki Cele and Nosiviwe Mapisa-Nqakula were ordered to finalise their investigations into the death of Khosa and any other person whose rights may have been violated during the national state of disaster and submit the report by 4 June.
The ministers also have five days in which to develop and publish a code of conduct and operational procedures regulating the police and army. This must be coupled with guidelines and all must be widely published.
Ipid has to file a report on its investigation into Khosa’s death by 22 May.