Towards a Safer Khayelitsha

The Report of the Commission of Inquiry
into Allegations of Police Inefficiency and
a Breakdown in Relations between SAPS
and the Community in Khayelitsha
Click here to view the Final Report August 2014

All the documents that formed part of the Commission’s deliberations are now on the website under the ‘Bundles’ menu.

Inspection in Loco Conducted on 21 and 22 January 2014

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South Aftican Police Service Opening Statement

1.    The constitutional and legal context must be interpreted and applied in the factual, social and political context that will be emerging through various witnesses during the course of these hearings.

The South African Police Service (“SAPS”) has a key role to play in terms of protecting the citizens of the country, and in particular Khayelitsha which is the focus of this inquiry.  This is a difficult role that SAPS has to play.

2.    Since the dawn of democracy in 1994, the police have made great strides in promoting and protecting the rights of the citizens including many but not all of the vestiges of apartheid policing.  Before 1994, the police played an active political role in fomenting, encouraging and promoting drugs and gangs and vigilantes especially on the Cape Flats, including the Khayelitsha area.  This will emerge through the testimony of several expert witnesses.  This provides critically important contextual evidence.

3.    Although we have high crime rates in most if not all the poor and disadvantaged areas established under apartheid, we do not live in a lawless society.  Policing takes place in accordance with the Constitution, and the SAPS Act.

During the inspections, it should have been plain to the Commissioners, our colleagues and some prospective witnesses that policing does take place in the Khayelitsha area.  The inquiry is really about whether it is effective or not, efficient or not and whether the effectiveness and efficiency of the police can be improved.

To that extent, the SAPS welcomes the inquiry especially if its recommendations could assist in improving efficiencies and ensuring that the relations between the community is improved especially where this found by the Commission to be lacking.

4.    The police terrain in Khayelitsha is characterised by homelessness, lack of proper housing, under-housing, overcrowded informal settlements, lack of recreational facilities, and very serious and high levels of unemployment, and hopelessness, generally.

The residents of Khayelitsha live in an abnormal society.  So much was made plain by former President Mbeki in his famous and much-lauded speech titled “The Two Nations Speech” on 8 February 2008 when he announced the government’s war on poverty.  He highlighted the difference between the largely white advantaged areas, increasingly accessed by the black middle and upper-middle classes, and those poverty-stricken urban, pari-urban, and the rural areas inhabited by the overwhelming majority of black citizens.

These are apartheid designs, and they continue to be the case.  For many citizens who are here today, and those who will testify, they find that very little has changed.

When we did the inspection in loco, we witnessed how difficult or even impossible it is for the police to carry out their normal policing responsibilities in these communities.  The patrols conducted on foot are not only difficult but also dangerous for the police.  Lights and roads are in a state of disrepair or neglect and in some cases just absent.  Potentially the police are policing a community that is angry about poor service delivery including poor sanitation, and the absence of decent living conditions.

So when we judge the competence of policing, we need to take into account this particular terrain, judge them in the context of the challenges facing these communities.  Police officers working in Khayelitsha confront the faces of angry people; the police are not only the first line but also the last line of attack or defence or even comfort to the community of Khayelitsha.  Police officers, both men and women, have become priests, counsellors and social workers.

The only hope that crime will not engulf these communities is in fact the presence of the police.  Rather than be blamed, the police should be commended rather than being vilified.  Collectively, the Commission must take a strategic decision to ensure that the police service in the community of Khayelitsha becomes a beacon of hope, and safety.  We all need to take that leap of faith to ensure that people’s rights entrenched in the Constitution are protected at all times.

5.    We will, during the hearings, hear mothers who have allegedly been treated badly by the police; young men whose rights were allegedly violated by the police; and young women who felt alone and unsafe with the police.  If these instances are proved or found by the Commission to have occurred then the police deeply regrets these unfortunate acts by a few undisciplined members of the police.  These undisciplined members must be reported and they will be dealt with by the police in terms of their Disciplinary Code and Procedures.

6.    Community members must know that they have rights and that these rights must be protected by the police and any member of the police who violates these rights has no place in the police service.  Where there are problems with the police these will be taken note of and measures will be taken to improve the image and the capacity of the police in order to deliver effective policing.

7.    We do not belittle the feelings of community members who have allegedly been short-changed as far as their rights are concerned.  We also have to be fair however in terms of evaluating the work of the police in a community like Khayelitsha.  The test of whether or not these complaints collectively indicate general incompetence or a breakdown in community relations must be contextual, and objective.  In other words, we cannot use the standards of policing found in Constantia or Camps Bay or Rondebosch to be the same as those Khayelitsha.  We will therefor submit that there is no systemic failure of policing in Khayelitsha if one takes into account the social and economic conditions of the people of Khayelitsha.

8.    The issue of vigilante killings will feature prominently in these hearings and will be used as an example that people in Khayelitsha have lost faith in the police.  The police have a different view as regards some of these murderous actions.  Our Constitution enjoins all of us to play a role in ensuring that policing is effective in their particular areas.  There is also a duty on members of the community to report crime.  That duty goes further.  It includes the duty to carry out citizens’ arrests and to bring suspects to the police.  It involves giving evidence to the police and ensuring that witnesses come forward so that these accused persons are successfully prosecuted.  Members of the public with complaints against the police are entitled to lodge their complaints with the police inspectorate or with the Department of Community Safety and the Community Police Forums.

9.    The complaints before the Commission about vigilante killings are not supported by critical evidence that demonstrates a breakdown of community trust in Khayelitsha.

10.    For example, there is in fact am increase in reported crimes at police stations in Khayelitsha by members of the community.  We submit that that increase or that report as far as increased crime is concerned, is a show of confidence in the police.

Secondly, in the police’s view, killings by community members are not a regular feature and must be condemned.  If one takes the reported cases of murder which can be classified as vigilante murders within a general pool of murders, a number of conclusions can be drawn from these.  We submit that most of those result from pure criminal conduct.

11.    As regards a breakdown of trust between the police and the community, whether or not there is such a breakdown there will be evidence of these services by the police and we will show that the people do largely trust the police even where they make or have made mistakes.

12.    We will show that the police are members of the Khayelitsha community; they have a strategic alliance with the community organisations operating there; they share a common interest; they share a common objective; and that is to ensure the safety and security of the community in accordance with the Constitution.

13.    We will conclude that the complaints do not indicate or evidence police incompetence.  We will also conclude after the evidence that there is not a breakdown of trust between the police and the community.

14.    Consistent with the Minister’s approach in the High Court and Constitutional Court, our instructions have been to comply with all requests by the Commission that are in conformity with its terms of reference, and which would assist the Commission in carrying out its mandate.  Subject only to logistical and other constraints (some of which are beyond the control of SAPS) the Commission’s requests have largely been complied with, notwithstanding that grave reservations have been expressed as to whether some of the requests from the evidence leaders fell outside the Commission’s terms of reference.  In our cooperation we have spent extensive time and costs which will be made available to the Commission in due time.
15.    Accordingly, the approach adopted by the SAPS in the Commission is one of constructive engagement, and co-operation.
16.    SAPS’s co-operation in dealing with complaints regarding alleged inefficiency and a breakdown in police-community relations in Khayelitsha, Cape Town, already manifested itself in the so-called “Tshabalala Report” of August 2012 which featured so prominently in the aforementioned court case.  
17.    In that report, the primary complainant was identified as the Social Justice Coalition together with a group of non-governmental organisations operation in the Khayelitsha area.  The task team consulted with the provincial management of the SAPS in the Western Cape; conducted focused inspections at the three (3) police stations servicing the community of the greater Khayelitsha area, in particular focusing on the evaluation of the line function activities such as the attendance of complaints, crime prevention, sector policing and the investigation of crime, and the evaluation of police-community relationships; meetings with the NGOs concerned on 11 July 2012; meetings with the Chairpersons of the three (3) Community Police Forums (“CPFs”) of the three (3) police stations and the Khayelitsha Development Forum.  The task team, in relation to CPFs, found that “generally” the contribution that the CPFs are making to improve police-community relationships in the Khayelitsha area is “questionable” primarily because of the lack of participation by representatives of all the relevant community structures and inadequate involvement in community projects and community awareness programmes launched by the SAPS.  Save for the Lingelethu-West Police Station, the task team found that the CPFs at Khayelitsha Police Station and the Harare Police Station were not “functioning well”.  The task team found that sector policing was fully implemented in the Khayelitsha area but that it was hampered due to a shortage of resources at the Harare and Lingelethu-West Police Stations.  As regards the quality of investigations, the task team also found that the investigation of case dockets by the detectives “does not result in any extraordinary achievements or successes”, and that very little impact is made on serious crimes such as armed robberies and house break-ins.
18.    As regards the task team’s focus on the specific cases forming the subject matter of the SJC complaint in November 2011, the task team found that in a rape case during 2011, the investigation was found to have been conducted properly; in a murder case dated 4 February 2006, the accused were arrested, charged, found guilty and were sentenced to eighteen (18) years’ imprisonment, four (4) of which were suspended for five (5) years; in a robbery case of 1 May 2010, the case docket indicated that the matter was receiving attention; in a rape and kidnapping complaint dated 8 April 2010, the docket was found to be properly investigated; in an attempted murder on 3 October 2010, the case dockets were found to be poorly investigated, and subsequently the victim had passed away due to natural causes; in an attempted murder in 2010, the docket was withdrawn by the Public Prosecutor due to poor investigation, but was handed back to the investigating officer to finalise all the outstanding instructions of the Public Prosecutor; in a murder during 2005, the case was finalised in 2008, and the accused were found guilty and sentenced to fifteen (15) and five (5) years’ imprisonment, respectively; in a tavern murder where two people were fatally wounded, the five (5) suspects were arrested, and the case brought before court and postponed, and the task team found the docket to be properly investigated; and in a murder that took place on 13 December 2003, involving the brutal assault, rape and murder, the suspects had been arrested, convicted and sentenced in 2005, and imprisoned to ten (10) years, and life imprisonment, respectively although the Judge subsequently reduced the sentences.  It was found however that the matter was properly investigated.
19.    In other matters which formed part of the complaint dated 9 December 2011, the task team found that the docket had been transferred to the then ICD; in an assault case, the docket had been handed to the detective commander for further investigation; in a murder and attempted murder case, the suspects had been arrested, and the matter remanded in court; in a fatal stabbing of a husband, the docket was referred to court; in an assault GBH, the investigation was not completed, and the matter handed back to the detective commander for re-opening; in a rape matter, the matter was referred to court for a court date; in an assault case, the case had been withdrawn because of a lack of witnesses; in a rape matter involving a rape by a complainant’s husband, the matter was withdrawn by the complainant, and the task team found that the docket had been properly investigated; and in another rape incident, the task team found that the matter had been investigated, and had been remanded in court several times.
20.    In relation to so-called Bundu Courts, the task team had confirmed that they exist, and a study of cases for the period April 2011 to June 2012 involved seventy-eight (78) incidents reported at the three (3) police stations in the Khayelitsha area where murder dockets were opened, and were being investigated. As evidence will show not all 78 reported cases as referred in the report fall within the category of vigilante or bundu courts killings.  
21.    The task team dealt also with the evaluation of the performance of the detectives at the three (3) police stations; the rendering of services in a professional, ethical and impartial manner, and it pointed out that notwithstanding the high number of disciplinary steps instituted against members for various aspects related to unsatisfactory service, the registers perused at the three (3) police stations revealed an overall increase in the number of complaints against the SAPS reported during the six (6) month period from January 2012 to June 2012 compared to the similar period during 2011.
22.    The task team also considered the effective, economic and efficient use of human, material and financial resources.
23.    The task team concluded that it was evident that the SAPS could not claim that the services that are rendered to the community in the Khayelitsha area are of such a standard that the community does not have any reason for complaining.  On the other hand, it concluded that it was also “unreasonable” for any NGO to make a statement that “there is a total breakdown in police-community relations”.  Indeed, it found that despite the challenges that the SAPS were facing in the area, the SAPS “is executing its core function”.  
24.    In line with the abovementioned co-operative approach, the SAPS do not regard it as their duty to defend or protect inefficient or errant or undisciplined members of the SAPS.  Where there are instances of misconduct and indiscipline, the SAPS would welcome the identification of such conduct in order that the SAPS’s disciplinary measures may be pressed into service.
25.    Accordingly, the SAPS thus investigated the complaints lodged by the NGOs in November 2011, and did so in a manner that ought to have restored the public trust and confidence in the SAPS: the task team did not shirk its responsibilities, and made some damning findings against its own members.  
26.    Notwithstanding this, further and fresh complaints were lodged subsequent to November 2011, and some of these related to acts of vigilantism.  Although the SAPS deals with each and every murder as a murder, and indeed every crime as a crime, it does not dispute the fact that acts of vigilantism do occur, and that from time to time residents of Khayelitsha are “punished” by either street committees, and so-called “Bundu Courts”.  The issue before the Commission is whether these acts of vigilantism are because residents of Khayelitsha have no trust and confidence in the SAPS, or whether they are due to other factors.  We will contend that the acts of vigilantism are not due, alternatively not entirely due, to police inefficiency and/or a breakdown in relations between the community and the police in Khayelitsha.
27.    Indeed, it is clear from many statements and/or affidavits submitted to the Commission by parties other than the SAPS, that acts of vigilantism are due to, inter alia, acts of pure criminality; deeply-entrenched notions or systems of so-called “people’s justice”; a thirst for so-called “instant justice”; a culture rooted in our historical past of a distrust or even disdain for those in authority, including the police; and, of course, a host of socio-economic factors that contribute to this mistrust or distrust but which do not fall within the province or competence or jurisdiction of the SAPS.  These include poor service delivery; poor or non-existent streets/roads and street lighting at night; lack of basic infrastructure such as toilets; informal housing; gangs; substance abuse and drugs; shebeens; high unemployment; the high school drop-out rate, etc.
28.    There can be no doubt that conventional or “normal” policing methods or strategies cannot be deployed or used in many parts of Khayelitsha, particularly in areas exhibiting high density informal settlements.  The severe lack of proper or any infrastructure such as roads; electricity; street lighting, sanitation; and any sort of town planning, are the main contributory factors that make the informal settlements an ideal breeding ground for crime.  Those who bear the brunt of the extraordinary high levels of crime in these informal settlements are women and children, older people, and the handicapped.  This much was evident during the Commission’s inspections in loco conducted at various areas both during the day, and at night.  It only served to highlight, and indeed, reinforce, the very difficult (if not impossible) task confronting the police in effectively combatting crime, especially in the informal settlement areas.  None of the strategies proposed by the NGOs or by some witnesses will make any difference.  The only solution is to eradicate these informal settlements.  Proper housing and proper supporting infrastructure must be built in order to meet the demands of increased urbanisation.  The police must be involved in the planning and implementation of such housing and infrastructure.
29.    The Commission’s inspections in loco at the three (3) police stations and its questioning of the three (3) station commanders have shown that there is a properly functioning police service in the whole of the Khayelitsha area.  The area is serviced by dedicated and diligent police officers, both men and women, who are committed to ensuring the safety of the general public and its residents in the Khayelitsha area.  It is clear however, that policing in Khayelitsha particularly at night, and more particularly in the informal settlement areas, is highly dangerous, and that any forms of conventional policing cannot be deployed, let alone employed effectively.  The highly dense informal housing in several areas, the very narrow footpaths, and lack of roads, infrastructure and lighting makes policing virtually impossible.  The cordoning off of crime scenes and the pursuit of criminals cannot take place as it normally would in a suburban area.  Indeed, it is highly doubtful that the employment of additional or more police officers, of more police vehicles, and other provisioning, would be able to effectively address the problems.
30.    Notwithstanding, the SAPS does its best to deal with the many challenges it faces, and it does function effectively as a police service in the wider Khayelitsha area.  The crime statistics show high levels of crime, but it also shows that crimes are reported (which demonstrates confidence in the SAPS), are investigated, suspects are arrested, matters are referred to court, and accused are convicted, and sentenced.  The SAPS is therefore fully functional in the Khayelitsha area, and is constantly striving to improve the service it renders to the broader Khayelitsha community.
31.    It is clear that many of the problems that exist in the Khayelitsha area are of a nature that cannot be fixed by only the SAPS.  Political and socio-economic problems do not fall within the mandate of the SAPS.  However, they impact on the effectiveness of the police service, and in particular, service delivery protests take place from time to time which has the effect of diverting valuable police resources to areas other than the combatting of crime which is the SAPS’s core function.  Indeed, it should have been apparent to the Commission during its inspections that police officers spend much time having to commission certificates and forms required by other government departments and agencies.
32.    As regards the police-community relations, the evidence will show that such relations do exist, and have improved.  There is little the police can do where CPFs are boycotted or shunned by certain groupings within the community.  CPFs are established according to a statute, and should most desirably be reflective of the entire community.  Notwithstanding this, there is nothing that prevents NGOs or other residential groupings from approaching the SAPS to establish a dialogue that would contribute towards better policing in the area.  The SAPS are open to any such initiatives.
33.    Although many of the problems confronting Khayelitsha residents cannot be solved or resolved by the SAPS, the SAPS commits itself to being part of any attempts to find meaningful and lasting solutions that would satisfy the residents of Khayelitsha.  From its side, the SAPS is committed to improving inefficiencies on the one hand, and dealing with any indiscipline on the part of its police officers where these are identified and/or reported, on the other.  It is also committed to a lasting and constructive relationship with the community through the Community Police Forums and any other credible Forums established by the community.  At the very least, the community must maintain its trust in the police in order that crime may be combatted effectively.  As indicated in the SAPS’s statements/affidavits, a new police station to be built at Makhaza has been approved.  It is hoped that upon its completion, a new and additional police station will improve efficiency, and encourage trust and confidence in the police services.
SAPS’s recommendations
34.    If we are correct that the complaints do not indicate a general state of incompetence in the SAPS, then the commission must make that finding and submit the report accordingly.
35.    If we are correct that there is no breakdown of trust in the SAPS, then the commission must make that findings accordingly.  
36.    The recommendations that the SAPS would make, even if the commission were to clear it of these accusations is that there should be concerted effort by the local and provincial authorities to improve the conditions of living for the people of Khayelitsha.  There should be proper housing, roads, lights, job opportunities must be increased in Khayelitsha for the youth, and sanitation conditions must be improved.  

37.    The SAPS stand between these poor living conditions and the anger of the community.  If the development of Khayelitsha is accelerated, there will be an improvement in the policing methods and style.