Delivered by Commissioner Danny Titus: Report on the findings of the investigation into the killing of Free State activist, Andries Tatane

The South African Human Rights Commission has completed and made a finding following its investigation into the 2011 killing of Andries Tatane, an activist from Ficksburg in the Free State Province. The report we are releasing today, contains findings pursuant to an investigation into allegations that human rights of a citizen were violated in the course of a public protest.

The complaint was brought by the Council for the Advancement of the South African Constitution on the 15^th April 2011. They alleged that members of the South African Police Services,Respondents in this matter, assaulted and/or caused the death of an unarmed civilian on the 13^th April 2012, Tatane, who was one of a group of community members in Ficksburg, engaging in a public protest against poor service delivery, fraud,

The Complainant further alleges that, in the result, the actions of the police amounted to a breach of a number of human rights, including the right to life, right to assemble as protected in the Bill of Rights of the Constitution of the Republic.

In determining its role in this matter, the Commission determined possible causes of action: Criminal action in respect of assault and/or murder, Civil action in respect of damages arising from loss of support to dependants of the deceased citizen or Human Rights investigation into possible violations of Chapter II of the Bill of Rights.

The Commission determined that the parameters of its interest in this matter was a very specific and narrow one; it was strictly limited to declaring and determining the nature, if any, of the human rights of parties that may have been violated in the course of this incident.

Accordingly, this report should not be construed as making any legal conclusions on the criminal culpability or civil liability of the Respondents. Where conclusions of fact or law are made in this Report that overlap or coincide with the conclusions made by the appropriate authorities in respect of civil and criminal actions, such conclusions are incidental similarities and should not be construed as pre-judging the outcome of either of these judicial processes.

Preliminary Assessment of Complaint

Upon receipt of the complaint, the allegations were assessed by the SAHRC to determine whether a prima facie case existed for further investigation to be conducted into human rights violations arising from the alleged facts.

As an outcome of the assessment, the Commission determined that the complaint gave rise to:

• a criminal cause of action that fell outside the Commission's mandate. The Commission referred this aspect of the complaint to the Independent Police Investigative Directorate (IPID), a statutory body entrusted with the duty to investigate a myriad of criminal offences committed by members of the South African Police Service including police brutality.
• a civil cause of action in respect of a Dependants Claim for damages for loss of support and other ancillary relief. The Commission referred this aspect to the Legal Aid Board of South Africa.

The residual cause of action was that of the investigation into possible violations of human rights. It was this aspect that the Commission decided to accept jurisdiction over, with a limited, and specific interest in declaring the ambit of the rights of the deceased and public protestors, measured against acceptable limitations to these rights, and making a finding of fact and law regarding any possible violation of same.

Motivation for pursuing investigation

There are a number of reasons that motivated the Commission to undertake the investigation:

• During pre-constitutional era public protests and demonstrations against the violation of human rights were often met by the use of force by law enforcement agents on defenceless citizens, frequently resulting in the loss of life;
• In post-democratic South Africa, the Commission noted rise in the incidence of community protests within the Republic due to public discontent with municipal service delivery;
• A growing policy inclination of the police in post-democratic South Africa towards the use of force to maintain public order.
• Drawing the strands of the afore-going reasons together, the Commission deemed it just and equitable to investigate the extent of violation of human rights by the conduct of the police, if any, as an essential feature of a democratic society.

Analysis of the Complaint

The complaint before the Commission was that the human rights of the protesting public, and in particular those of the deceased, were unreasonably limited when the police applied undue force on unarmed citizens in the course of a public protest.

In the conduct of its investigation, the Commission conducted interviews with random community members in Ficksburg, researched the legal framework governing Bill of rights to identify if any were trampled upon.

We also reviewed Video Footage of the incidents that happened on that day.

We also approached the Ministry of Police and senior management of the SAPS to provide us with reports into what happened on the day, and to respond to the allegations.

As the Commission we are disappointed that the police and the ministry both failed to co-operate with us in this regard, and have failed to provide the Commission with a positive response.

In analysing the available factual evidence, against the applicable legal framework, the Commission considered the rights of the protesting public as set out in Section 10, Section 11, Section 12 and Section 17 of the Constitution of the Republic of South Africa. Section 205(3) of the Constitution provides that members of the police have a duty to inter alia, maintain public order, protect and secure inhabitants of the Republic, and to uphold and enforce the law. Section 7(2) of the Constitution requires the State, and in this case the Respondent, to respect, protect, promote and fulfil all fundamental rights.

In evaluating the reasonableness of the Respondent's action, the Commission, took into consideration this onerous responsibility of the State to protect the life and safety of its people.

Finally, in analysing the evidence and making legal conclusions there from, the Commission utilised the standard of proof on a balance of probabilities.

Findings

Based on the investigation conducted by the South African Human Rights Commission and the analysis of the Constitution, reports and the applicable law, the Commission finds that:

• The Respondent's members, acting in pursuance of their mandate in terms of section 205 of the Constitution, neglected provisions of RGA by using excessive force resulting in the injury and/or death of one protestor;
• The Respondent's members used a degree of force that was disproportionate in the factual circumstances of the case, and in so doing, unduly limited and violated the deceased protestor's right to life in terms of section 11 of the Constitution and/or freedom and security of the person in terms of section 12 of the Constitution; and the protesting public and deceased protestor's right to peacefully and unarmed to assemble, demonstrate, to picket and present petitions;
• The Respondent's members were not suitably equipped to quell public disorder and failed, within the circumstances, to devise a plan to regulate and monitor the gathering;
• The Respondent failed to authorise a suitably qualified and experienced member to represent police at consultations or negotiations contemplated in section 4 of the RGA; If a suitably qualified person had been chosen, such member would have reasonably foreseen that the demonstration in question would degenerate into violence and prepared for that eventuality;
• The Respondent failed to ensure that adequate numbers of police officers were deployed to minimize or avoid destruction of public property.

Recommendations

In terms of the Human Rights Commission Act, the Commission is entitled to "make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and the Constitution."

The Commission recommends accordingly that:

• The Respondent to improve training of police officers in managing and regulating gatherings to ensure that future police interventions in public protests result in a more peaceful and non-violent outcome;
• The Respondent to develop a training manual for the Public Riot Unit together with the Commission's Advocacy Programme; The Respondent should put more focused attention to specialised training for the Public Riot Unit;
• The Respondent should actively engage in communication with communities where there are popular protests;
• The Commission requires the Minister of Police and Minister of Cooperative Governance and Traditional Affairs to collectively report every six (6) months on measures it has put in place to address the phenomenon of increasingly violent community protests.
• The latter Minister of Traditional Affairs should also report on measures to ameliorate systemic failures in local government that often lead to service delivery protests, and to report to the Commission on meaningful engagement on such concerns so as to avert these protests.

The respondent has the right to appeal this finding in writing within 45 days of the date of receipt of this finding. We have sent this to them today.

Issued by the SAHRC, October 31 2012

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