TOWARDS A SAFER KHAYELITSHA

Report of the Commission of Inquiry into Allegations of Police Inefficiency and a Breakdown in Relations between SAPS and the Community of Khayelitsha

SUMMARY

[1] The Khayelitsha Commission was asked by the Premier of the Western Cape to investigate complaints of allegations of inefficiency at the three Khayelitsha police stations (Khayelitsha Site B, Lingelethu West and Harare) as well as an alleged breakdown in the relationship between the Khayelitsha community and members of the South African Police Service (SAPS) based in Khayelitsha.

The Premier appointed the Commission in August 2012 in response to a complaint she received from a group of non-governmental organisations, the Social Justice Coalition, the Treatment Action Campaign, Equal Education, the Triangle Project and Ndifuna Ukwazi ("the complainant organisations"), who asserted that there were "widespread inefficiencies, apathy, incompetence and systemic failures of policing" in Khayelitsha.

[2] The Commission approached its mandate on the basis that its task was investigative in character, not adjudicative. Moreover, the Commission considered that its work was primarily forward-looking in that, if it did identify inefficiencies or a breakdown, it was to provide recommendations to remedy the inefficiencies or breakdown. In this sense the task of the Commission was quite different from a criminal or civil trial that seeks to determine whether the conduct of a person or organisation gives rise to criminal or civil liability.

The investigative and forward-looking character of the Commission's mandate was key in determining the processes adopted by the Commission. Another key determinant was the fact that the Commission sought to act in accordance with the constitutional values of accountability, responsiveness and openness. The Commission's procedures were adopted by way of a system of Notices which were published on its website (www.khayelitshacommission.org.za) and provided to the parties before the Commission.

The Notices determined, amongst other things, the procedures of the Commission, the issues to be traversed by the Commission, the admission of documents to the documentary record, hearing plans for sittings, including times for cross-examination, and the admission of expert witnesses. The general practice of the Commission was to afford parties an opportunity to propose revisions to its procedures before they were finally adopted.

[3] The work of the Commission was delayed for approximately a year by a court application challenging the Commission's establishment and powers. A unanimous Constitutional Court dismissed the case on 1 October 2013. Since then, the Commission has held two phases of public hearings at the Lookout Hill Hall in Khayelitsha. The first took place between January and March 2014, and the second in May 2014. The Commission heard closing arguments on 29 May. The transcripts of the public sittings of the Commission are available on its website. More than 100 witnesses testified before the Commission in approximately 40 days of hearings.

[4] The Commission has collated a very substantial documentary record which is available electronically on its website that includes documents and statements from, amongst others, SAPS, the complainant organisations, the Department of Community Safety (DOCS) in the Western Cape, the City of Cape Town, the Independent Police Investigative Directorate (IPID), and the Civilian Secretariat for Policing Service.

The record is in electronic format and has never been printed or paginated. The record is in thirteen Bundles, and the index to those Bundles is also electronic and available on the Commission's website.

[5] The Commission has examined a wide range of aspects of policing in Khayelitsha, given that the complainant organisations asserted that there was a systemic failure of policing in Khayelitsha. The Commission's investigation has focussed on the three Khayelitsha police stations and the Khayelitsha Family Violence, Child Protection and Sexual Offences Unit (the FCS Unit) as these were the units of SAPS in respect to which the complaints related. The issues investigated by the Commission include - * the history, demographics and socio-economic conditions of Khayelitsha;

* recorded crime levels in Khayelitsha over the last decade;

* the manner in which visible policing is undertaken in Khayelitsha, including the question of patrols in informal neighbourhoods;

* the response of SAPS to calls for assistance;

* the efficiency of the Community Service Centres (CSCs) at the three police stations, and the burdens borne at the CSCs in relation to the attestation of documents;

* the quality of the investigation and detection of crime undertaken by detectives at the three police stations and the FCS unit;

* the co-ordination between SAPS and the prosecutors at the Khayelitsha Magistrates' Court, particularly in relation to SAPS' role in ensuring that dockets are delivered to the court;

* the number of cases struck off the roll or withdrawn in the Khayelitsha Magistrates' Court either because of incomplete police investigation or because the dockets have not been brought to court;

* the manner in which crime scenes are protected and investigated in Khayelitsha;

* the system of crime intelligence at the three Khayelitsha police stations;

* the use of the City's CCTV cameras for the detection and prevention of crime in Khayelitsha;

* the experience of policing in Khayelitsha of vulnerable groups, including LGBTI people and foreign nationals;

* the eight individual complaints annexed to the complaint forwarded by the complainant organisations to the Premier in November 2011;

* other individual complaints made by members of the public, which the Commission has investigated by calling for dockets from SAPS;

* the role played by SAPS in the partnership established to assist survivors of sexual violence, located at the Khayelitsha Thuthuzela Care Centre;

* the manner in which specific policing challenges are addressed in Khayelitsha, including vigilante or vengeance attacks by members of the community, youth gangs, domestic violence, and illegal liquor outlets;

* arrest and detention of people in the holding cells of the Harare and Khayelitsha Site B police stations;

* the extent of the perception of corruption in the SAPS units in Khayelitsha;

* the manner in which complaints made against members of SAPS based in Khayelitsha have been handled by SAPS, DOCS and IPID;

* SAPS' internal systems for inspecting police stations, and the steps taken following on such inspections;

* the role of Community Police Forums in Khayelitsha, their effectiveness, and factors that constrain their effectiveness;

* levels of staffing at the three police stations and the FCS Unit, and the SAPS methodology for allocating human resources to police stations;

* human resource issues including absenteeism, performance evaluation or performance enhancement, as SAPS calls it, discipline, recruitment and the filling of vacant senior posts;

* the infrastructure at the three Khayelitsha police stations;

* SAPS' station performance management tool, the EUPOLSA index;

* SAPS' use of information technology; and * the role of other organs of state who have oversight responsibilities over SAPS, especially DOCS, and the relationship between SAPS and DOCS.

[6] It is clear to the Commission that policing in Khayelitsha is profoundly challenging. Deep levels of poverty, poor levels of infrastructure and very high crime rates make Khayelitsha a particularly difficult place for SAPS to operate.

[7] The Commission has concluded that there are inefficiencies at the three Khayelitsha police stations and at the Khayelitsha FCS Unit. The Commission has identified a wide range of inefficiencies but the key findings of inefficiency include -

* there are no established guidelines for patrols of informal neighbourhoods, and by and large, these do not seem to take place in Khayelitsha, partly because of personnel shortages, and partly because there is no requirement that they should take place;

* many crimes reported to the three Khayelitsha police stations and the FCS Unit are not investigated properly or at all. Moreover, feedback is very rarely provided to complainants or bereaved family members relating to the progress of criminal investigations. Cases are often withdrawn or struck off the roll in the Khayelitsha Magistrates' Court because of incomplete police investigation or because dockets are not brought to court.

The Commission considers the quality of detective services at the three police stations to be close to a crisis point. There are many reasons for the failure in the detective branches including far too few detectives carrying far too many dockets, especially at Khayelitsha Site B, Harare and the FCS Unit as well as under-trained and inexperienced detectives who are unable to function effectively in the difficult circumstances in Khayelitsha;

* the system of crime intelligence is not functioning according to SAPS national guidelines at any of the three Khayelitsha police stations;

* crime scene management in Khayelitsha is often not in accordance with the prescribed protocol, partly because of environmental difficulties but also because of the lack of basic equipment and training;

* management at the three police stations, the cluster office and the FCS Unit is ineffective, this is illustrated by the fact that although widespread inefficiencies have been identified in policing at these SAPS units by the SAPS Provincial Inspectorate over a number of years, they have not been properly and successfully addressed by managers;

* SAPS has no strategies in place to deal with two acute policing challenges in Khayelitsha - (a) vigilante or vengeance attacks by community members on people perceived to be criminals; and (b) youth gangs;

* SAPS does not comply with the obligations imposed upon it by the Domestic Violence Act in relation to incidents of domestic violence in Khayelitsha;

* SAPS makes no effective use of the CCTV cameras located in Khayelitsha for the purpose of prevention and detection of crime;

* Suspects are often detained in breach of the 48-hour rule at the three police stations, and at times, arrests are made despite there being no reasonable suspicion that the person arrested has committed a crime; and

* SAPS in Khayelitsha is an unreliable partner in a range of team networks, particularly the network centred at the Thuthuzela Care Centre that seeks to assist care for survivors of sexual violence and further the prosecution of perpetrators of family violence, sexual offences and child abuse, and the Khayelitsha Magistrates' Court network that seeks to promote co-ordination between various stakeholders to ensure the successful prosecution of crime.

[8] The Commission has also concluded that there is a breakdown in relations between the Khayelitsha community and the SAPS members stationed in Khayelitsha. In reaching this conclusion, it should be noted that the Commission does not find that there is an irretrievable or irreparable breakdown, but a breakdown that is characterised by a significant level of distrust amongst members of the community in Khayelitsha. Reasons for the breakdown, in the view of the Commission, include the following -

* Khayelitsha's difficult history and the burden of poverty it still bears;

* widespread perceptions that SAPS does not respond promptly to calls for assistance; and does not investigate crime properly or at all;

* Community Police Forums in Khayelitsha have not contributed significantly to improving relations between the community and SAPS for a variety of reasons;

* complaints against members of SAPS in Khayelitsha have not been dealt with thoroughly, fairly or promptly, by either SAPS or IPID (and its predecessor the ICD) - and there is a worrying pattern whereby most complaints are found to be unsubstantiated after very little investigation even where the complaints are very serious and involve injury to a member of the public caused by a SAPS member;

* many SAPS members do not act consistently with an understanding that policing is a "service", and members of the public are often not treated with respect by SAPS members;

* vulnerable groups such as LGBTI people and foreign nationals report particularly high levels of discourteous and discriminatory treatment by SAPS members;

* there appears to be a worrying perception at least in some quarters that some members of SAPS in Khayelitsha are corrupt; and * each SAPS station performance tool does not include any measure to asses community perception and attitudes to SAPS.

[9] In the light of its conclusions, the Commission has made a range of recommendations. Key recommendations include -

* Each Khayelitsha police station adopt a Community Policing Commitment in consultation with members of the community in which SAPS pledges, amongst other things, that its members will treat people with respect, to respond to calls for assistance within specified times; to provide feedback relating to the process of criminal investigations regularly to complainants; to conduct visible policing patrols in both formal and informal neighbourhoods, as well as providing support to Neighbourhood Watch patrols; recognise that vengeance or vigilante attacks by community members constitute criminal offences and will be dealt with by SAPS accordingly. Each member of SAPS must pledge to work to support the Commitment and systems of discipline and reward should reinforce it.

* SAPS adopt a procedural justice model of policing in Khayelitsha in which SAPS acknowledges that the manner in which policing is performed is important to building a relationship of trust with members of the public, and that accordingly, SAPS will take steps to ensure that every interaction between a member of SAPS and a member of the public will be respectful of the rights of the member of the public; that policing strategies will be assessed to ensure that they are procedurally just; and that SAPS will treat its own members fairly and with respect.

* The establishment of an oversight and monitoring team to ensure that the inefficiencies identified at the three Khayelitsha police stations are eradicated. The team will comprise senior SAPS officers from the province, the police stations, the cluster command and a member of DOCS as well as an independent policing expert from civil society or academia.

The team will report both to the SAPS National Commissioner and to the Western Cape legislature.

* A change management process for leadership within the Khayelitsha cluster, the Khayelitsha FCS Unit and the three Khayelitsha police stations to develop a 3 - 5 year strategic plan to address inefficiencies and the breakdown in relations between the community and SAPS in Khayelitsha.

* A strategic review of detective services in Khayelitsha by the Provincial Commissioner, as well as the urgent redeployment of at least five experienced detectives to Harare and Khayelitsha Site B police stations, as well as backlog teams to be allocated to all three police stations and the FCS Unit.

* The review of the SAPS mechanism for determining human resource allocation (the THRR) to be initiated by the National Commissioner immediately. The allocation system that is adopted must be published in the SAPS Annual Report and be available to key oversight agencies, including Parliament, the Civilian Secretariat, and provinces.

* The review of the SAPS station performance chart to ensure that it contains external measures of public confidence in SAPS, and reduces its weighting of crime reduction targets.

* Various proposals relating to human resource management, including provision of isiXhosa language training for SAPS members in Khayelitsha who do not speak isiXhosa, accelerated processes for appointing senior managers in Khayelitsha to avoid long periods where acting leaders are in place; and close oversight of disciplinary processes at the three Khayelitsha police stations and the FCS Unit by the cluster.

* The development of provincial guidelines in relation to the visible policing of informal neighbourhoods.

* The development of a policing strategy to deal with vengeance or vigilante attacks in Khayelitsha based on the premise that such attacks constitute criminal offences, aimed at preventing such attacks and prosecuting perpetrators of such attacks;

* The establishment of a multi-sectoral task team to address the problem of youth gangs in Khayelitsha to be convened by DOCS;

* A provincial task team to survey community attitudes to liquor licensing, unlicensed liquor outlets and the distribution of liquor generally in residential neighbourhoods with a view to developing a policy to regulate liquor outlets;

* Various recommendations to improve the policing of domestic violence;

* A recommendation that SAPS appoint a strategic task team in the province to investigate the use of information technology in relation to identified issues;

* Review of the procedures by which complaints against members of SAPS are dealt with both by SAPS and IPID, and in particular that complaints against members of SAPS in Khayelitsha be investigated by the Khayelitsha cluster office rather than the police stations or units operating in Khayelitsha;

* A memorandum of understanding to be entered into between DOCS and SAPS to facilitate DOCS carrying out its constitutional mandate to monitor police conduct and oversee police efficiency and effectiveness, especially to regulate police station visits by DOCS and the investigation of complaints of police inefficiency by DOCS;

* An investigation by SAPS, the City of Cape Town and the Metro Police at to the optimal use of CCTV cameras in Khayelitsha take place as a matter of urgency; and

* SAPS takes steps urgently to improve the physical infrastructure of the Lingelethu West police station; and also prioritises providing further office space to the Harare and Khayelitsha Site B police stations.

* SAPS build the Makhaza police station as a matter of urgency, and ensure that the building of the Makhaza police station will result in a considerable increase in SAPS in greater Khayelitsha, and not merely a reallocation of personnel from Harare to Makhaza.

[10] The Commission reminds those who read this report that the most important consideration in assessing this report is the need to improve the safety of people who live and work in Khayelitsha.

The Commission urges readers to debate its recommendations in the light of what will promote the safety of the residents of Khayelitsha rather than unrelated and irrelevant concerns. The Commission hopes that that the shared object of enhancing the safety of Khayelitsha residents will be the only object that informs the response to this report both at national and provincial level and within SAPS itself.

[11] The Commission points out that the fact that there are serious inefficiencies in the three Khayelitsha police stations and the Khayelitsha FCS Unit does not mean that there are not many committed and diligent members of SAPS posted in Khayelitsha who are seeking to perform their duties to the best of their ability with available resources.

The Commission accordingly requests that those who read the report should bear in mind that the Commission has, as its mandate requested, focussed on identifying the inefficiencies of policing in Khayelitsha.

That there are such inefficiencies does not mean that there are not aspects of policing that are efficiently performed, nor that there are not members of SAPS, of every rank, who strive to provide a professional policing service in Khayelitsha.

[12] It is also clear from the painful testimony heard by the Commission that members of SAPS in Khayelitsha have not provided many of the residents of Khayelitsha with professional, respectful and efficient service. That is simply not acceptable. All inhabitants of South Africa are entitled to a police service that will protect and secure them. The task may be hard, but the obligation is clear.

The text of the full report can be accessed here - PDF.

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