In this case, members of the Presidential Protection Unit (PPU) of the SAPS arrested and detained Mr Maxwele for allegedly gesturing with his middle finger at a convoy of police vehicles reportedly transporting President Zuma. Mr Maxwele was also alleged to have resisted arrest.
The SAHRC, after conducting an investigation, subsequently found that the SAPS had violated a number of Mr Maxwele’s fundamental rights when they, among others,”forcefully bundled” him into a police vehicle, “head-covered“, “leg-tied” and “interrogated” him, whereafter they searched his home without a warrant or reasonable grounds. The SAHRC also found that the Minister of Police acted in an unreasonable and unacceptable manner by initially failing to cooperate with the Commission in its investigation. In addition, the Commission found that the Minister should be held vicariously liable for the acts of members and employees of the SAPS who are found to have been acting within the course and scope of their employment.
The SAHRC consequently recommended that the Minister, on behalf of the SAPS, formally apologise, in writing, to Mr Maxwele for their unlawful and unconstitutional behaviour and recommended that the Minister should provide a report to the Commission indicating his plan towards implementing the recommended remedies. Namely: that the Minister and the SAPS acknowledge the supremacy of the Constitution and the rule of law as well as the duty of the State in terms of section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights. More importantly, the Commission recommended that the Minister should indicate the steps he would take in terms of section 199(5) of the Constitution to ensure that the SAPS acts, teaches and requires its members to act in accordance with the Constitution and the law. The Minister and the SAPS unsuccessfullyappealedthe findings before the SAHRC whereafter he challenged the SAHRC’s finding in the High Court. In dismissing the Minister’s application to review and set aside the findings of the SAHRC – with punitive costs – the High Court found that the Minister displayed a disconcerting attitude which, if not blatantly contemptuous of the Commission, at the very least showed disrespect for the Commission’s standing as a body instituted by the Constitution, and tasked with a duty to investigate violations of human rights.
In October 2013, the Minister finally apologised in writing to Mr Maxwele for “the experience which [he] had with the South African Police Service and which related to the incident which led to the complaint“. Incidentally, the Minister reportedly also settled a civil claim by Mr Maxwele out of court. In addition, in a letter to the SAHRC, the Minister indicated that the National Commissioner of Police will “consider how to give effect to and implement” remedy 2.2 – the Commission’s recommendation that the Minister should indicate steps he would take in terms of section 199(5) of the Constitution to ensure that the SAPS acts, teaches and requires its members to act in accordance with the Constitution and the law. This is yet to happen.
The Minister’s apology is, however, a good start. The ongoing broad discussions between the SAHRC and the SAPS in relation to human rights issues can only add value to efforts to reduce human rights violations. Nonetheless, South Africa has witnessed a growing number of incidents involving excessive use of force by the SAPS – some of them widely reported by the local and international media. These include the case of Mr Maxwele, the alleged brutal killings of Andries Tatane and the Mozambican taxi driver, Mido Macia, the Marikana incident in which 34 protesting miners were killed, incidents in areas such as Mothutlung in Brits, Relela in Kgapane Limpopo and Bekkersdal in Gauteng and the more recent assault of a man in central Cape Town in broad daylight. These incidents are not unique or isolated and are not limited to any province. In the Independent Police Investigative Directorate’s (IPID) 2012/2013 Annual Report it was indicated that assaults by police officers increased by 218% from the previous year. Overall, 98% of all incidents involved the SAPS as opposed to municipal police services.
Apologies and settled civil claims may well serve a purpose, but can certainly not be the long-term solution for dealing with human rights violations committed by police officials. For that the Minister and the National Commissioner must ensure that policies, strategies and instructions of the SAPS are based, in no uncertain terms, on respect for the Constitution and the law. This includes the necessity for policies, training programmes and standard operating procedures to instil and maintain a human rights culture at all levels of the organisation. In this regard, the recently published draft Green Paper on Policing was possibly the ideal opportunity to provide for a strong and unambiguous policy aimed at enhancing and maintaining a human rights culture in the SAPS. Unlike the comprehensive section on “transformation” and the call for the development of “a clear strategy for transformation that does not exist as a separate or stand-alone strategy, but one that is incorporated into, and reflected in the overall strategy of the organisation“, a dedicated section and similar call for a strategy to instil a human rights culture in the SAPS, is absent.
Effective policing within the context of the Constitution and a human rights culture requires a concerted effort. The Minister and the National Commissioner have a constitutional duty to ensure that the SAPS acts, teaches, and requires its members to act in accordance with the Constitution and the law. In turn, individuals affected by police brutality must report such conduct to IPID and to the SAHRC. Alternatively, they should seek the help of civil society organisations such as the CFCR who can assist individuals in reporting matters to the relevant institutions. The role of the SAHRC in ensuring an effective human rights culture within the SAPS should, however, not be underestimated. The SAHRC has a constitutional duty to promote respect for human rights and a culture of human rights. It must also promote the protection, development and attainment of human rights, and monitor and assess the observance of human rights in South Africa.
As such, it is time for the SAHRC to be more proactive in fulfilling its constitutional mandate: First, the SAHRC should – in line with its constitutional and legislative mandate – review the extent to which SAPS policies (including current training policies), training programmes, training activities and standard operating procedures are effective in promoting respect, the protection and advancement of human rights within the SAPS. Secondly, the SAHRC should institute an inquiry and public hearings into growing police brutality – real or perceived. This should not be aimed at determining guilt or innocence, but rather to understand how human rights have been affected by police conduct. Thirdly, the SAHRC should, based on the findings from a policy review and inquiry, make recommendations to Parliament and the Minister on how to effectively enshrine human rights training in legislation and how to strengthen policy aimed at advancing human rights.
With police brutality – as with all forms of human rights violations – prevention is the best cure.
by Adv Johan Kruger, Director: Centre for Constitutional Rights