FREEDOM DAY 2021 : STILL NO FREEDOM FROM FEAR

The fear of violence, widespread before the April 1994 elections, remains,  with good reason, ingrained in the South African psyche.  Regular reports of home invasions, rapes, hijackings, and farm attacks fuel these fears. Those who are most vulnerable live in ‘traditional’ rural areas where well-armed assailants prowl bad roads, far from the nearest police station, at night. People now fear having their movements tracked by hit men, including if they assist in criminal investigations.  Rooted in the past, the current violence is fuelled by gross structural inequality, critical levels of unemployment, and the impunity with which criminal networks operate.  It is likely to get worse unless urgent steps are taken to address known contributory factors. While electoral reform is overdue there is also a crying need for civil society to strengthen its hand.

True democracy does not exist, for the poor rely on the largesse of politicians rather than holding them to account. Patronage, not democratic governance, drives our politics.  When promised service delivery does not happen because of corruption and incompetence powerlessness rears its ugly head in the form of protest, fuelled by criminals using it to their own advantage.

Iniquitous government policy fuels unemployment. Instead of providing training and jobs for shack and hostel dwellers, or serviced sites on which people can build homes, lucrative tenders are dished out to political cronies to provide sub-standard housing.   Patronage encourages a culture of entitlement and demeaning dependency, instead of the dignity of work. Unemployment facilitates recruitment to crime networks – drug running, or training as hit men.  No real effort has been made to deal with pre-1994 Organised Crime networks – including taxi mafia – and they have gone from strength to strength.  The taxi industry poses a threat to social stability, but there is no political will to deal with it. Taxi operators who have attempted to expose gross corruption and secretive government deals are murdered, and no one is brought to book.  It is common knowledge that the industry is a major source of well- armed, trained, hit men for hire.

The private security industry is badly regulated, with its regulatory body suffering from the same cadre deployment problems as other SOEs. It is probable that a large percentage of security companies are not registered.  Even when new companies register, and manage to show the competence to acquire guns, they may quietly disappear, with guns remaining unaccounted for.  Despite the legislation, people with criminal records may be employed.  Enforcing proper regulation of both the taxi and the security industry is not difficult, but it is not prioritised, raising questions about vested interests.  Yet it is in these networks that many of the guns used in crimes circulate.

The new government encountered obstacles in trying to transform the brutal and repressive police force it inherited, but these paled to insignificance with the policing appointments made by former president Zuma.  Grossly irregular promotions of incompetent people, and corruption, flourished for years, as did killings and torture by police members. For the first time in eight years, there was a perceptible improvement in accountability when a well-trained, experienced police member was appointed National Commissioner. As with other Zuma-era appointments it will take years to correct the damage done. Political meddling in the crime intelligence service has done inestimable harm to the fight against crime through the deployment of highly suspect operatives, some of whom had undergone sinister training overseas.  Public Order Policing (POP) has been deteriorating for years, suffering from ill-discipline and a poor standard of training not in step with international norms. Even more problematic than POP is the Tactical Response Unit(TRT), another Zuma-era spawn, whose hallmark is brutality. It is not clear why this notorious unit even exists, given the legislative mandate of Public Order Policing, and the well-trained National Intervention Unit. To make matters worse, police lacking the required identification may be accompanied by unknown security company employees while committing abuses, which is a major impediment to accountability.

Legislation requires that torture, abuse, and killings by SAPS members be investigated by the Independent Police Complaints Directorate (IPID).  IPID suffers from serious constraints, the most critical of which is its lack of independence from the Ministry of Police – an overt conflict of interest, obviated internationally by the appointment of completely independent reporting structures.  Despite lobbyists, supported by a Constitutional Court judgment, having pressed for legislation giving IPID independence for years, parliament – which has become a rubber stamp – drags its heels.

Of great concern is a marked deterioration in prosecution services.  In district courts, malicious prosecutions may clog up rolls instead of being pruned by prosecutors failing to provide guidance to investigators.  Decisions by the KZN DPP’s office not to prosecute apparently dangerous criminals, despite evidence, raise serious questions about whether this service is usurping the role of open courts, and overlooking the possible life or death implications for victims or witnesses. A recent decision not to prosecute POP and Dog Unit members, who seriously abused whistle-blower Thabiso Zulu when maliciously arresting him at his family home in July 2020, raises further concerns about his already perilous safety.  There was medical evidence of the abuse, and the identities of some members were known, yet they are not being held to account.  In October 2019 Zulu was shot and almost killed. In the July 2020 incident, he may well have been killed had he not managed to make a telephone call which led to the local station commissioner being informed of the raid. Zulu has fought tirelessly against corruption, and for justice, and not only has he been denied protection but the police themselves have now, in effect, been given carte blanche by the DPP to continue their campaign against him with impunity.  The matter is being followed up.

Complaints against magistrates, too, are increasing and it is obvious that some of those in this position should never have been appointed. Since it is virtually impossible to remove them when they have lost the confidence of investigators, prosecutors, and the public, it is imperative that far stricter criteria – and much greater transparency – be used in magisterial appointments.

Securing any form of justice for people who cannot afford good lawyers – the majority of South Africans – has become a virtually insoluble problem. It is also a major contributing factor to the escalation of crime.

The outlook is dire and likely to worsen. The situation requires political action,  but it will not happen unless far more South Africans involve themselves in the fight for social and criminal justice for the majority. Professionalism has been largely killed off by trade unionism, and voluntarism is no longer associated with well-heeled elites. While there are many admirable voluntary initiatives, far more of those who are lucky enough to have good jobs could give back in hours of their time – in education, trauma counselling and legal services – to build a more just society. As a collective, we have only ourselves to blame if we allow politicians to continue to ruin our beautiful country

TERROR RETURNS TO EMPEMBENI

At around 02h00 on the morning of 5th April armed men broke the lock on the door of the Ndlovu home at eMpembeni, KwaDube, stormed into the house and shot Mr Bruce Ndlovu dead with a rifle, in front of his mother, his young children, and the mother of his children.  The killers were police members, who arranged for colleagues to remove the ballistics evidence. The deceased’s body was also removed, leaving the relatives to celebrate Family Day in a state of shock in their blood-spattered home.

The dysfunctional state of management at the IPID KZN office was again revealed when it transpired that its Tollfree number did not work, and nor did the standby number obtained from a helpful staff member. Apparently, members of the public are supposed to surmise that they should report incidents after hours to the Flying Squad – the very people against whom complaints against SAPS are supposed to be lodged with an independent body.  The death had been reported to the management member on duty, but the standby duty investigator for the area was only informed about the incident eight hours after it had happened.  The rule that the crime scene should be left undisturbed until the IPID investigator is present was ignored –  as were clear instructions from the National Commissioner SAPS, in May 2020, about procedures to be followed during arrest.

The local Esikhaleni station commissioner could not explain to the brother of the deceased what had happened.  When challenged later in the day he only knew from a duty officer that there had been an ‘operation’.  The next day (Tuesday) he, reluctantly, admitted that the police involved were POP, TRT (Tactical Response Team) and the Flying Squad, and that two cases had been opened against the deceased.  However, even that information was incorrect as it subsequently transpired that the police from Empangeni were accompanied by members of TRT and a local Esikhaleni member. Unsurprisingly (since this has been a common theme in police killings since apartheid), it is alleged that the deceased had an unlicensed firearm.  This allegation is strenuously denied by the family, who maintain that the deceased had been accused of any crime, nor had any attempts been made to arrest him. From the case numbers provided, they had been recently opened in Empangeni – while the deceased was in steady employment in Richards Bay.

The context of the killing is crucial. A spate of killings by hit men occurred in 2018 and early 1019.  There were widespread allegations that they were orchestrated by a powerful, feared, local businessman. However, there were no arrests by the local Esikhaleni police, despite available information.  A team established by the National SAPS office, not reporting to the local police, arrested hit men and the businessman for three murders, all apparently corruption linked. The investigation was well done, and bail was denied in one of the cases.  Then, unexpectedly, the office of the KZN DPP declined to prosecute anyone – even the hitmen – months later.  Since this businessman has openly boasted about his prosecutor friends, and had apparently had to sell an expensive property in Durban, people believe there has been a serious miscarriage of justice.  An Appeal has been lodged with the National Director of Public Prosecutions. There are a string of allegations, some backed by evidence, of the businessman’s close relationship with local police, including the acting station commissioner.

In June 2019 members of the ORS team  (Operational Response Team) sent to the area to protect people, under POP command abused and tortured – by ‘tubing’ (near suffocation) residents, while wearing balaclavas.. Co-incidentally, the worst abuses were inflicted on relatives of the deceased for whose murders the businessman was then in prison.

A second crucial factor is that those abused, and the Ndlovu family, live in the Gebetuko area where people have been told they will have to move for ‘oil’. Although it is known that there are plans for this area, no government department will provide any details about them. It is almost certain that, given its proximity to the Richards Bay harbour, these plans relate to proposed gas/oil storage and pipelines.  As with the titanium mining in KwaDube, local tender beneficiaries will doubtless be hopeful of further lucrative income opportunities.

It is not only the Esikhaleni police who are culpable in this killing, so too is the King Cetewayo Cluster management under which Empangeni SAPS also falls.  This office has, consistently, been unhelpful in assisting this community, or even providing adequate vehicles to protect the team investigating the murders in a dangerous area. It was this office which also slandered with fake news Wiseman Hadebe, one of those for whose murder the businessman was arrested, after he had been tracked and killed in Ngwelezane where he was in hiding, and his respected eMpembeni family was grieving his death.

Co-incidentally, the murder of Bruce Ndlovu occurred amidst rumours of planned hits on his brother Sifiso, and others related to victims of the 2018/19 murders – especially the Dladla family – or who assisted the investigative task team which made arrests in 2020.  In January 2021 police arrived at the Ndlovu home at night and abused family members.  When they had left the nephew of the deceased had disappeared. According to the station commissioner, who advised the family to open a missing person case, he was not in police cells. Two days later he had turned up in the cells, but family members were not permitted to see him; he remains there, facing charges. This conduct is typical of policing in Esikhaleni, where a crucial Order Book covering the period of the 2019 abuses could not be located when the IPID investigator went to check it.

The Ndlovu family has suffered the loss of their loved one,  a breadwinner in steady employment.  The children will probably be traumatised for life by what they witnessed.  There are extremely serious concerns about the safety of Sifiso Ndlovu, and the police will be held responsible if he suffers harm.  The National office of the SAPS has assisted with arranging probes into grossly irregular POP conduct, including in eMpembeni.  Attention must now be given to dealing with the systemic brutality of the notorious TRT members. This police brutality must stop, and heads must roll.  Bruce Ndlovu’s death must not be in vain.

CONTINUING POLICE ABUSE AND TORTURE IN KZN : THE WAY FORWARD

Since the Covid-19 lockdown was implemented from 27 March, there have been reports of abusive, bullying behaviour by SAPS members towards people in the streets and, elsewhere in South Africa, even deaths. Such incidents should not surprise us because abusive police behaviour, ranging from damage to property to torture which may lead to death, is common in KZN and victims seldom experience justice. The Independent Police Investigative Directorate ( IPID) in KZN is riddled with problems and, at a national level, the Directorate is in a critical state following the assassination of one of its best investigators and the suspension of others with proven track records. Urgent legislative and structural changes are needed. Justice is also defeated because of the atrocious state of KZN forensic services, including mortuaries. After years of inaction, however, it is encouraging that national SAPS management seems to be taking gross police abuses more seriously.

IPID’s narrow interpretation of its mandate

As the death toll from the violence which erupted in Glebelands hostel in 2014 rose the evidence of police complicity grew. In  April 2015 an email to IPID management detailed how Sipho Ndovela had been instructed by a notorious Umlazi police member to alter a statement about a murder;  it was also sent a copy of an April letter to SAPS management about threats to Ndovela, stressing that the police would be held accountable if he were killed.  IPID referred the complaint back to the SAPS because defeating the ends of justice was not part of its mandate. On 18 May Ndovela was shot dead outside Umlazi court before he could make a supplementary statement. Despite mounting evidence of systemic police corruption IPID ignored Section 28 of the governing legislation and denied it was its job to investigate. At that stage around 25 people had died, but, with no constructive intervention, the death toll had escalated to around 100 by the time the alleged police kingpin and some associates faced the trial which is currently ongoing.

Protracted investigations and lack of feedback

Of the Glebelands abuse and torture cases reported since 2014 there have been no successful prosecutions, including in the K matter, in which the victim lost consciousness after being beaten and tubed in 2016.  Around the same time, V, living in a Durban shack area, had a near death experience when a police member sat on him (as demonstrated to the TRC by an apartheid era security policeman) and pulled a plastic bag over his face. Investigations should have been straightforward, and, amidst fears that the case has been closed, there has been a steady stream of tame excused about the lack of progress.  In the mean- time, the only witness, V’s brother, was almost killed by a criminal with a gun 2019; he was too scared to report the incident (and the gun possession) to the local police because those who abused his brother had operated from that station, and the family fears revenge.  Malicious arrest rates are extremely high, and may be accompanied by abuse, as in the case of M who suffered physical injury and financial loss. Nine months later he has received no feedback from IPID and, when contacted, the investigator sounded hostile.  There are many reports of serious abuses by the Ministerial Task Team established in 2018 to investigate political killings in KZN, including numerous malicious arrests frequently accompanied by abuse and tubing.

However, in one successful investigation, members of the Umhlali K9 unit were dismissed by the SAPS following an internal disciplinary hearing recommended by IPID.  These members (implicated in other tubing incidents) had gone to a rural home where they had tubed a man who had died. To try and cover their crime, they had put the body in a police van and crashed it.  Fortunately, a post-mortem revealed that the cause of death was suffocation.  Disciplinary action by the national SAPS office is pending against CIS members who were with the canine unit members, and the docket is with the DPP awaiting a decision about prosecution.

Police in balaclavas – and a positive SAPS response

In June 2019, following requests to SAPS management, an ORS (operational response) team headed by a POP (Public Order Policing) commander was deployed in eMpembeni (near Richards Bay), where a series of killings had led to a climate of intense fear.  Earlier ORS patrols had done excellent work in providing security, but the June team terrorised residents.  It is not unusual for SAPS members, without identification (let alone search warrants) to damage property and abuse people (and steal money) in rural areas. However, these members raided certain homes (apparently strategically) and beat and tubed residents while wearing balaclavas.  One man required hospitalisation for a week. Some people opened cases, others did not, and the matter was reported to IPID, with a great deal of information by way of leads.  A letter of complaint was also sent to the National SAPS Commissioner who ensured that this grossly irregular SAPS conduct was also investigated internally by a senior SAPS member who reported his findings to national management. This member also assisted the IPID investigator to acquire relevant information from the police. Nine months later victims await feedback, and the last two emails to the investigator remain unanswered.

Inadequate, shambolic forensic services

Due entirely to gross Department of Health mismanagement and corruption the province has a critical shortage of well qualified forensic doctors to assess torture victims properly, especially in rural areas, and very few experienced pathologists to conduct thorough post-mortems. It is imperative that bodies of gunshot victims be X-rayed, but machines may be out of order for long periods, and important forensic evidence is destroyed by unqualified, ill-disciplined mortuary staff.   In most cases in which police shoot and torture people crucial evidence is lacking to bring them to book, especially as poor people lack access to independent pathologists and lawyers.

The way forward

It is encouraging that SAPS management appears to be taking police abuse more seriously than in the past. Hopefully they will continue to do so.        However, an urgent overhaul of IPID is required, starting with a change of legislation to place the Directorate under an independent body (not the Minister), and a complete staff restructuring which does not allow former police members to manage it. For the sake of all victims of violent crime, it is absolutely essential that forensic mortuary services be removed from the control of the Department of Health and placed under an independent Board.

Note

Reports about the shooting of Ndovela can be found on this website for Nlovela (2014) and eMpembeni (2018 and 2019)

IS THE GOVERNMENT IN CONTEMPT OF THE CONSTITUTION FOR FAILING TO PROTECT THABISO ZULU AND OTHERS?

On 12 February eNCA’s Checkpoint ran a programme on the failure of the government to protect corruption whistle-blowers who are loyal comrades and to bring any successful prosecutions against those implicated by prima facie evidence in corruption. The programme provoked a flood of Twitter outrage about rampant corruption, and the failure of the government – especially the ‘arrogant’ Minister of Police, who was accused of ‘gambling with people’s lives’ to take remedial action. ‘Hall of Shame’ focussed on the consequences suffered by those ANC councillors and their associates to expose those involved in corruption totalling almost R38 million rand of taxpayers’ money which had been earmarked for the renovation of the Umzimkhulu Memorial Hall. Two councillors, including Sindiso Magaqa, had been killed, another had survived the attack which had resulted in the death of her colleague, and she and two of her ANC comrades, who were dedicated to serving their communities and exposing corruption, were living under constant threat of death. This whole saga raises extremely serious questions about the nature of governance in South Africa, including its commitment to the Constitution of the country, and to fighting corruption – and the failure of Chapter 9 institutions to fulfil their mandate.  

The Public Protector’s reports and the failure of the government to act

In her 2018 reports the Public Protector confirmed the veracity of corruption allegations relating to the supposed renovation of the hall. The matter was handed to the Special Investigation Unit (SIU) for investigation, but the unit has already closed its file.  One of the reports confirmed that the lives of whistle-blowers Les Stuta and Thabiso Zulu, who had taken up the anti-corruption baton of Sindiso Magaqa, were in grave danger. The Minister of Police was instructed to provide them with the security recommended by two State security threat assessments.  Both Stuta and Zulu had spoken out strongly at Magaqa’s funeral and Zulu subsequently went even further giving evidence at the 2017 Moerane Commission which pointed fingers at the involvement of senior regional ANC figures in the Magaqa death. It is believed that the National Commissioner of Police had already approved the protection, but it was blocked by his Minister’s immediate referral of the report for High Court review.  Continuing pleas to protect them fell on deaf ears and in October 2019 Thabiso Zulu was shot and injured, narrowly missing death. 

President Ramaphosa reneges on agreement

Soon after Zulu was shot he spoke telephonically with President Ramaphosa, who agreed that he would receive the necessary protection.  It has not materialised, raising questions about who really runs this country. Why does he retain in his cabinet a minister who is in clear breach of his constitutional obligations to ‘prevent, combat…..crime [and] ‘to protect and secure the inhabitants of the country’ ( Section 205(3).  It has been known for over two years that the lives of Zulu and Stuta are in grave danger since that was detailed in two, thorough threat assessments by state security agencies, including the police – and confirmed by the attempted murder of Zulu.  The question is why, especially as countless government functionaries, including in  municipalities rendered dysfunctional by corruption, are costing taxpayers a small fortune in excessive bodyguards?  What sort of government rewards rogues with perks but denies protection to those who are risking their lives by acting in support of its own stated fight against corruption?  Italy even provides protection to investigative journalists. There is no known animosity between Cele and Zulu, who are comrades of long-standing – so who in ANC leadership positions with grudges against Zulu are pressurising the President to backtrack on Zulu’s safety?  Zulu was fighting corruption before Magaqa’s murder, and in the process, has made political enemies outside of Umzimkhulu. Together with then Speaker of Sisonke municipality, Mandla Ngcobo, he exposed hundreds of millions of rand in irregular expenditure which, despite confirmation by the auditor, is still under investigation by the SIU and the Hawks.  Ngcobo was persecuted and removed from his position, and both men received death threats.  Zulu’s ongoing work has secured several court convictions, the most recent being that of a traffic policeman found guilty of fraudulently assisting learner license applicants to pass their tests.

The Chapter 9 institutions

Despite her report – which drew on existing threat assessments – the Public Protector has failed Zulu and Stuta by not challenging the review in court, her excuse being that her office has ‘financial constraints’.  It is thus puzzling that her office has found money for other high court challenges which do not involve life or death issues, such as the apparent vendetta against Minister Pravin Gordhan.

In terms of the powers given to it in Section 184 of the Constitution, the SAHRC is, among other things, mandated to ‘take steps to secure appropriate redress where human rights have been violated’ (Section 184(2)(b).  From the point of view of independent human rights defenders their performance has been disappointing, the perception being that it backs away from confronting the government.  The failure of the Department of Health (DoH) in KZN to service almost new oncology machines – which conduct reeked of corruption – resulted in the needless and painful deaths of countless hundreds of cancer victims. The SAHRC produced toothless reports, which apparently ignored, and failed to act on, a dossier sent to it by a medical rights advocacy group. The dossier detailed serious illegal and corrupt actions by DoH , and how parliament had been misled. Those responsible – senior government functionaries – have been let off scot free and remain in powerful positions,   while families who lost loved ones have been denied even the limited closure of the families of the Life Esidimeni patients.

Since the right to life is the most fundamental of human rights, will the SAHRC  use the constitutional powers given to it to take whatever steps are needed to protect Thabiso Zulu (and, by extension others in the same predicament) – especially as the Minister of Police is, himself, in clear breach of his constitutional obligations.  The Commission has already issued a public statement of concern and reportedly the Chairperson and the CEO have been very supportive of Zulu.   From previous experience, it is clear that one of the problems facing the Commission is that it is a cumbersome bureaucratic body and, if decisions are taken to offer legal assistance to Zulu (who has, after all, suffered, and continues to suffer, severe emotional trauma as well as  physical injury), they may even be undermined by people within their ranks who enjoy an unacceptably close relationship with government functionaries in the criminal justice system, including in the police.   Hopefully, the Commission will not be deterred by these potential pitfalls, but take appropriate precautions against them.  Given the intransigence – and contempt for the Constitution – showed by the most senior members of government – appropriate action by the Commission is our last hope.  Will it grasp the nettle and demonstrate to us that it is courageous enough to challenge the government on constitutional grounds?