Minister goes to court

Public hearings planned for this week in the commission of inquiry into policing in Khayelitsha, in Cape Town, have been cancelled. This comes after Police Minister Nathi Mthethwa, national commissioner General Riya Phiyega, provincial commissioner Lieutenant-General Arno Lamoer and others filed papers in the Western Cape High Court on 6 November to have the commission temporarily suspended, pending a review of the decision to establish it.

 

The commission, which is headed by retired Judge Kate O’Regan, a Corruption Watch board member, was announced by Western Cape Premier Helen Zille on 24 August. It is investigating allegations of police inefficiency in Khayelitsha and a breakdown in relations between the community and the police, and comes after at least 18 vigilante killings in the township this year.

 

In view of this court application, the commission said, it would not proceed with the public hearings which were to run from 12 November to 14 December. Hearings would resume, but the date would depend on the outcome of the litigation.

 

The premier’s spokesman, Zak Mbhele, issued a statement on 8 November saying the provincial government would oppose the application. “Our lawyers are currently studying these papers to prepare our responses to their legal arguments.”

 

He said an agreement had been reached between all parties, including the Women’s Legal Centre – which initially raised the issues with the authorities in November 2011 and called for the inquiry – and the commission, for the hearing of the application to be postponed to 10 December. This agreement was made an order of the court on 12 November and “will give our lawyers adequate time to study the application and prepare a comprehensive and detailed reply”, Mbhele said.

 

Part of this agreement was that the public hearings would not proceed on Monday and no effect would be given to the subpoenas issued to the South African Police Service. But the Premier’s Office stressed that this did not mean that the commission itself had been suspended. Its other investigative work was not affected, and would continue.

 

Civil society responds

 

Sanja Bornman, of the Women’s Legal Centre, is disheartened at this latest turn of events. “It is resulting in a substantial delay in the work of the commission,” she said. “This is not in the best interests of the people in Khayelitsha.”

 

Right now, the parties are focusing on the minister’s interim relief application, which will be held on 13 December. The more substantive phase of his case will be heard at a later date. But for the people on the ground, the minister’s court application is not unexpected.

 

“Given the fact that the minister has failed to co-operate with the commission, it is not surprising that there is now this challenge,” Bornman said. “We lodged our complaint in November 2011, and the minister was copied on every correspondence. We have not received a single formal response; his first response to the possibility of a commission of inquiry was in the press.”

 

“For the minister to launch a challenge now, almost a year after our clients’ initial complaint, is too little too late,” said Bornman. “It is time for all the role players to publically account for what is happening in Khayelitsha.”

 

She stressed it was not a witch hunt. “We want to know what the problems in Khayelitsha are and how to resolve them. A commission would help everyone, including SAPS. Our clients are apolitical, and only want to see improved policing in Khayelitsha – something they have advocated for almost 10 years.”

 

But Mthethwa begs to differ, saying in his court papers that the establishment of a commission is “politically motivated”. One of his contentions is that the metro police – which is run by the DA city of Cape Town – is not included in the commission’s terms of reference.

 

Bornman agrees they should be included, but not for the same reasons: “The city’s safety and security directorate should be included. We want all parties included. [The directorate is] implicated in some of our clients’ complaints. Also, ordinary people don’t distinguish between metro police, SAPS and law enforcement. The directorate is a part of the puzzle.”

 

According to a police report that emerged at the weekend and that is part of the police’s court papers, there were 78 “mob justice” murders in Khayelitsha in the space of 14 months. The report is the work of a task team sent by Phiyega to investigate the Khayelitsha police following the complaints by NGOs. The task team carried out its investigation in July.

 

But writing a report and seeing change on the ground were two separate issues, Bornman pointed out. The police were pushing for their own inquiry – essentially for the police to investigate the police – which was not ideal.

 

“A commission of inquiry is independent, which is of paramount importance to our clients, who have lost faith in the police,” she said. “It will investigate and unpack the problems, and experts will draw up recommendations for change. It will be an open platform that will involve the public, so nothing can be swept under the carpet.

 

“Our concerns with the minister’s plan for an internal police investigation are that it could not be independent. Also, there is no indication of the public’s involvement. Ultimately, this is about ordinary people who live in Khayelitsha, who go to the police and who don’t get help, people who still don’t know, for example, what happened to their rape case, their family’s murder case and so on.”

 

Bad policing uncovered

 

The report lends a great deal of weight to the NGOs’ complaints. It found there were high levels of misconduct, absenteeism, and criminal cases not being adequately investigated. It showed that over 14 months, 78 people were killed by vigilante mobs, more than four times the number originally estimated.

 

There were 656 staff at three police stations and over a year there were 701 disciplinary cases, some of which involved repeat offenders, including high-ranking officers. Shifts at the three police stations in the township had the minimum number of staff because officers were absent on sick leave, leave or rest days.

 

It was found that suspects were arrested and released without being charged, and that witnesses and complainant statements were often not recorded. In effect, it found that the complaints ordinary citizens and NGOs had brought to the attention of the authorities over months, if not years, were indeed true.

 

The police had not responded to requests for comment at the time of publication.