Text of the submission by DA Shadow Minister Dianne Kohler Barnard to President Jacob Zuma on National Commissioner Riah Phiyega, August 4 2015

 04 August 2015

His Excellency J. G. Zuma

President of the Republic of South Africa

Private Bag X152

Pretoria

0001

Dear Mr President,

RE: DEMOCRATIC ALLIANCE SUBMISSION ON NATIONAL POLICE COMMISSIONER, RIAH PHIYEGA, TO FITNESS BOARD OF INQUIRY & PRESIDENT JACOB ZUMA.

INTRODUCTION

1. Noting, that the Marikana Commission (the Commission) of Inquiry, established by Proclamation No. 50 of 2012, recommends that steps be taken in terms of Section 9 of the SAPS Act to inquire into the fitness of National Police Commissioner (NPC) of the South African Police Service (the SAPS), Ms Riah Phiyega, to remain in her post and whether she is guilty of misconduct in attempting to mislead the Commission; and

2. Further noting that the relevant provisions of the SAPS Act require the establishment of a Board of Inquiry, I submit that the specified board ought to be established.

3. Further, I submit that the specified board be mandated to inquire –

(a) Whether the National Commissioner’s role in the events at Marikana on 16 August 2012 and the conduct of both herself and that of members of the SAPS, under her stewardship, at the Commission of Inquiry was such as to render her unsuitable to hold the office of the NPC; and

(b) That the inquiry include a comprehensive investigation into the conduct and competency of Commissioner Phiyega during her tenure as the NPC and Accounting Officer of the SAPS as a whole.

4. Accordingly, I, Dianne Kohler Barnard MP, on behalf of the Democratic Alliance, in my capacity as Member of Parliament and a member of National Assembly’s Portfolio Committee on Police, hereby make the following formal submission to the President of the Republic of South Africa for his consideration and the consideration of such Board of Inquiry which may be established as per the relevant sections of the SAPS Act.

INVOLVEMENT OF COMMISSIONER PHIYEGA IN THE MARIKANA MASSACRE AS HEAD OF THE SAPS

5. These matters are well traversed in the Marikana Commission’s own report but bear reference as to the current NPC’s fitness to hold office and the severity to which the matter must be addressed.

Politicisation

6. The Marikana Commission of Inquiry, established in relation to events at Marikana Mine, in Rustenburg, in the North West Province, South Africa, on or about Saturday 11 August 2012 to Thursday 16 August 2012 made several findings with respect to the caliber of leadership provided by the NPC and indeed the SAPS’ cooperation with the Commission.

7. The Commission was in agreement with the Commission’s evidence leaders that the SAPS’s evidence before the Commission showed not only that the North West Provincial Police Commissioner, Lieutenant General Mbombo, acting under the NPC’s supervision and seemingly sharing her views, took irrelevant political considerations into account in conducting operations at Marikana. Additionally, the Commission’s determination was that the NPC herself participated in inappropriate discussions about political considerations regarding the operation.

8. These considerations - a complex matrix of irrelevant political motives influencing SAPS’ intention to act against the strikers – comprised considerations as to –

8.1. interventions by the now Deputy President Mr Cyril Ramaphosa and the then Minister of Police, Nkosinathi Mthethwa, who were perceived to be politically influential;

8.2. SAPS leadership’s desire to end violence at the mine before Mr Julius Malema arrived in Marikana and was given credit for defusing the situation;

8.3. the intention to put an end to a situation where an opposition member of Parliament (Mr Themba Godi) was involving himself in the community at Marikana;

8.4. that a perception not be created that mining companies were acting so as to undermine the National Union of Mineworkers (NUM); and

8.5. that mining companies not be seen to be supporting the Association of Mineworkers and Construction Union (AMCU).

9. Indeed, the Commission’s evidence leaders point to the fact that Lieutenant General Mbombo’s testimony was at pains to indicate that she and the NPC discussed the possibility of Mr Malema coming to Marikana and taking credit for defusing the situation.

10. Further, the Commission’s evidence leaders’ submission, which the Commission wholeheartedly supported, determined that the NPC’s assertion during her testimony that she was unable to recall her conversation with Lieutenant General Mbombo was both unsatisfactory and unconvincing.

Further, in her testimony, the NPC did not dispute the testimony of Lieutenant-General Mbombo.

11. The above thus serve as a prima facie indication that Commissioner Phiyega, both as a result of her office and given her level of commitment in the operation, failed to not only ensure that policing operations at Marikana were conducted in an impartial and unbiased fashion, as required by our constitutional and regulatory framework, but was also complicit in undermining that duty.

12. Indeed, the Commission took a dim view of the current NPC’s approach to her role when it said –

“…Other senior officers and rank and file members of the SAPS can hardly be expected to see the need for the SAPS to act in a non-political manner, and to act accordingly, if the example set by their most senior leaders is exactly the opposite”

Appreciation of function and ancillary duties

13. Supplementing the above, the Commission found that the SAPS, in exercising its public policing function at Marikana, on 16 August 2012, implemented a tactical plan which the commission found was defective in numerous respects.

14. Further, the Commission characterised the exercise of discretion by senior SAPS officers, to implement the tactical plan as, “frankly reckless,” inexplicable and with no real attempt made to justify the decision.

15. Further, the Commission found that the decision to implement the plan, undertaken by Lieutenant-General Mbambo and endorsed by the NPC, was made by two senior officers who lacked the necessary policing expertise and experience, and thus the competence to make any decisions at all bearing on police operational matters.

16. Indeed, the Commission itself stressed Commissioner Phiyega’s inexperience in policing when it stated -

“The National Commissioner…had been appointed to head the SAPS just a few months earlier, after receiving professional training in social work and having had a professional career focused largely on human resources and on the management of state enterprises. She had no policing expertise and experience whatsoever.” [Emphasis added]

17. I submit that the Commission is correct in its analysis in relation to the need for high ranking police officers to have the required training to perform their duties and functions.

18. The Commission further states –

“The tragedy at Marikana illustrates the need [for] operational officers with the necessary training, skills and experience, to have control over operational decisions. We accept that in a major operation of this kind, there is an appropriate decision-making role for the police officers at the top level. However, that must be subject to two qualifications. First, the officers at the top level need to have training, skills and experience in policing. Running a police service is not simply a managerial job: it requires a high degree of skill in policing operations. This was totally absent in the two key positions at the time of this operation. Second, they should not take operational decisions. Those matters should be decided by the operational officers on the ground.” [Emphasis added] 6

19. I submit that the Commission’s statement in the above respect is important for three reasons. Firstly, by inference, it speaks to the need that a career police officer, who has expertise and experience in policing and so understands the institutional nature of the SAPS, be at the helm of the SAPS. In essence, that appointments be non-political and be based on skills and expertise.

20. Indeed, the recommendations made by Mr Cees De Rover, an expert in policing who has been involved through the United Nations in advising governments on policing, submitted to the Commission, that South Africa falls short of the international standard in this respect –

“In most modern democracies the appointment of police leadership is an executive function – ensuring an appropriate separation from the political process. Most modern democracies also require that police leaders are experienced law and justice practitioners…South Africa has taken a rather different approach: senior police appointments are highly politicised, non-experts are appointed…‟

21. Mr De Rover continues to argue - “It is well beyond my remit to make a judgment on the success or otherwise of that approach. However the Commission’s work may have provided some insight into issues around leadership that could be usefully addressed in its recommendations. As a minimum, SAPS requires consummate professionals [in] key strategic positions to provide the organisation with the effective leadership it desperately needs.”

22. Secondly, by necessary implication, said person must be expected to have the requisite knowledge and skill so as to fully appreciate the function and duties which their office requires.

23. Indeed, it would appear that, in excess of the matters already traversed herein, there are other indications that the current NPC lacks this essential appreciation.

24. A National Prosecuting Authority (NPA) record of decision into the investigation of Commissioner Phiyega as a result of allegations that she was responsible for defeating the ends of justice by advising the Western Cape Police Commissioner, Arno Lamoer, of an ongoing investigation against him states that –

“…the disclosure was in dereliction of Phiyega’s duty to respect the confidence that the monitors, the investigators and the Provincial and National Heads of the DPCI (Hawks) were entitled to expect of her.”

25. Despite the NPA’s inability to establish an intention by the National Commissioner to defeat the ends of justice, the NPA nonetheless recommended that “the dereliction of duty on the part of the National Commissioner of Police is sufficiently well-founded on the evidence and serious to merit recommending departmental disciplinary steps…In the present matter negligence, if not gross negligence, appears.”

26. Thirdly, and more specifically within the context of events at Marikana, the Commission’s comments indicate that both the National and Provincial Police Commissioners ought not to have been involved in operational decision making in relation to on the ground events during police operations in the given period – particularly given their inexperience. Indeed, I would submit their direct involvement in key decisions during the operation had the effect of hampering the operation at Marikana resulting in the tragic loss of life experienced on that day.

Failure to provide strategic leadership following events at Marikana

27. Of central importance to the public following the events at Marikana was the question of accountability in relations to the SAPS’s involvement. Key in uncovering the truth behind the events at Marikana was the full participation of the SAPS and the leadership of SAPS by the NPC in providing guidance so as to achieve accountability.

28. As the Commission illustrates at length, the SAPS’s conduct during the Commission’s sitting spoke only of a lack of accountability. In its report, the Commission endorsed the view of Mr Gary White, an expert at the Commission, who was of the view that the attitude of the SAPS,

“at a corporate level adopted a defensive approach, setting out a justification for the deaths caused, before a full investigation was conducted into the facts.” He contended that this approach in the aftermath of the shooting incidents may have set a tone which discouraged proper reflection and internal examination of what had gone wrong, and, “potentially encouraged the adoption of a robust defensive stance.”

29. From the view of the both Mr White and the Commission, there seems to have been no attempt by the SAPS’s leadership to encourage rank and file members of the SAPS to fully cooperate with the Commission in a frank, open and detailed manner.

30. As noted by the Commission, this, in and of itself, is a breach of the SAPS’s duty to public accountability.

31. The Commission contends, that this lack of accountability must have been fueled by the National Commissioner’s statement at the police parade on 17 August 2012, following the shootings at Marikana when she said –

“Whatever happened represents the best of responsible policing. You did what you did, because you were being responsible.‟

32. In the given circumstances, the ill-conceived statement had the effect of communicating to members of the SAPS, to which it was directed to, that

SAPS members were absolved from accountability and “was calculated to effect a closing of the ranks, encouraging those who had participated in the operation to withhold contrary information from the Commission and indeed to deny that mistakes had been made and things had been done that could not be described as, ‘the best of possible policing’.”

33. This attitude, fostered by the conduct of the NPC had broader implications which resulted in conduct that had the effect of (a) misleading the public and (b) severely hampering the work of the Commission due to members of the SAPS withholding information.

The SAPS’s misrepresentation of deaths at Marikana

34. The first matter is well traversed by the Commission from pages 392. When the shootings took place, the President was at the time at a SADC meeting in Mozambique. A report on the events at Marikana was prepared and made available to the Department of International Relations and Cooperation (DIRCO) for delivery to its Minister and to the President by the early hours of 17 August. The same report, compiled and collated by members of the SAPS communications team, was also used as the basis for the statement read by the NPC later that morning.

35. The two documents were substantially identical (apart from the different death toll figures – a function of information available when the documents were drafted) except that there was a material divergence with regards to how many shooting incidents occurred. The first document that was delivered to DIRCO and the President, details two shooting incidents, while the statement released to the media failed to disclose this.

36. The material effect is to create an impression that there was one shooting incident, where members of the SAPS, faced with a violent and armed enemy, were left with no option but to defend themselves with the maximum force available to them.

37. The public, who only had access to televised scenes from the shooting at Marikana, would understandably conclude that all the deaths had occurred while the police were defending themselves against the group of workers who appeared to storm towards the police. As the Commission finds, the changes were clearly not accidental because, and as has been said, the wording of the relevant parts of the statement were otherwise virtually identical. A clear intention to mislead the public was present.

38. Indeed, evidence of the intention to create this impression is reinforced through the insertion of an allegation in the press statement that at the end of the engagement the police had to deal with the militant group which stormed at them, firing shots and wielding dangerous weapons.

39. The NPC during testimony failed to explain the reasons for why this misrepresentation had been deployed, however, she did take political responsibility for the matter at the Commission.

The deliberate suppression of key evidence by the SAPS

40. Having due regard to the Commission’s report, an underlying theme is clearly present throughout the report: SAPS’s unwillingness to transparently cooperate with the Commission or various other persons and institutions seeking to determine the truth of events that lead to the deaths of 44 people at Marikana.

41. Indeed, evidence leaders at the Commission, with the Commission’s agreement, point to several instances where crucial information was deliberately omitted from discovery or misleading information from SAPS was provided so as agree with the SAPS’s tailored version of events.

42. Both the Commission’s evidence leaders and the Commission agree that National and Provincial Police Commissioners had seen the representations made by the SAPS prior to being submitted to the Commission and they would have been well aware of some of the omissions and misleading information contained therein.

43. In this knowledge, I submit, it appears inconceivable that the Ms Riah Phiyega can be permitted to continue to serve in her present role.

ADDITIONAL MATTERS PERTINENT TO THE FITNESS OF MS PHIYEGA TO HOLD OFFICE AS NATIONAL POLICE COMMISSIONER OF THE SAPS

44. It is submitted that Ms Phiyega as National Police Commissioner of the SAPS is responsible for the control and management of the SAPS in accordance with the national policing policy and the directions of the Minister of Police, in terms of section 207(1) and (2) of the Constitution.

45. Accordingly, it is submitted that in the evaluation of her fitness, cognisance must be taken of additional matters. These matters fall outside of those issues traversed by the Commission but nonetheless speak to her fitness to hold office.

46. Following the tenures of Mr Jackie Selebi and Mr Bheki Cele, the tenure of Commissioner Phiyega, as the SAPS’s Accounting Officer, served only to compound financial mismanagement at the SAPS. This is indicated by –

46.1. Irregular expenditure at the SAPS which stabilised at R76 million for the 2010-11 financial year has, since the current NPC’s tenure, steadily risen to R150 million. Almost R7 million of that was spent irregularly in just two years of her management;

46.2. Measured against the 2010-11 financial year, contingent liability projections rose from R11 billion to R21.1 billion in the 2013-14 financial

year. Of the R21.1 billion, R20.5 billion is the projection for civil claims against the SAPS arising from the deaths of persons and destruction of property resulting from the conduct of SAPS members. The projections of liabilities for 2013/14 are as follows: Assault – R853 292 000, Police actions – R16 587 235 000, Shooting incidents – R1 474 767 000, Vehicle accidents – R175 996 000, Legal expenses – R492 282 000, Damage to property – R2 354 000, Damage to State property – R8 594 000, Other – R 947 763 000;

46.3. R40 million was reportedly spent on entertainment performances and recreation-related activities - non-core SAPS activities;

46.4. The alleged abuse and spurious use of pension payouts for SAPS members under section 35 of the SAPS Act which amounts to R33.3 million in the last 5 years which Commissioner Phiyega either seems unable to arrest or has actively participated in; and

46.5. The lack of basic services, including water, electricity and sanitation, at 153 police stations across the country which was uncovered following an investigation by the Public Service Commission at the request of the DA.

47. As NPC of the SAPS, Ms Phiyega’s critical focus should have been to address the real needs of the SAPS. These include:

47.1. Ensuring that every single police station in this country was provided with water, sanitation facilities, electricity and generators; and addressing the needs of the 153 stations where police officers in the line of duty are going without such basic services;

47.2. Reintroducing and strengthening the specialised units controversially disbanded by Jackie Selebi including, but not only, the Family Violence, Child Protection and Sexual Offences Units, Anti-Hijacking units, the Narcotics Bureau and anti-Gang units;

47.3. Demilitarising the police service, as recommended by the DA and the Cabinet approved National Development Plan (NDP), to ensure that a culture of service returns to the SAPS which puts people first;

47.4. Enhancing station management skills to ensure that professional police stations were properly managed and resourced with the right expertise;

47.5. Introducing mandatory specialised training and fitness requirements to ensure that the police were not only fighting fit, but also skilled in combatting violent crime;

47.6. Enforcing performance agreements in the SAPS and recognising and rewarding exceptional performance;

47.7. Empowering station commanders to encourage local initiatives at the station-level to develop innovative and localised policing strategies which responded to the specific needs of communities; and

47.8. Introducing mandatory psychological debriefing for officers who had fired their firearm or been involved with violent or disturbing incidents of crime before allowing them to be rearmed and return to duty as a means to cut down on police suicides.

48. As the NPC of the SAPS, Ms Phiyega’s conduct with regards to the management of the police service indicates that she is not fit for the position:

48.1. The annual crime statistics release has now been bungled twice in the past two years. Two years ago the incorrect census data was used, skewing the figures, and last year the wrong data was used for both KwaZulu-Natal (KZN) and Limpopo, with nonsensical data being reported, handed out and put up on the SAPS website. One is hard pressed to find a South African who believes anything but the fact that the annual murder rate is once again up;

48.2. Mr R Mdluli, the Head of Crime Intelligence, remains on suspension, leaving the Crime Intelligence Unit relatively directionless. She then both hired and then suspended a new head of Crime Intelligence after he laid charges against her having intercepted communications of her allegedly advising the Western Cape Police Commissioner of an investigation against him. He, too, remains on suspension.

48.3. The Court ordered the NPC to hold an internal disciplinary hearing against Mr Mdluli, to determine culpability in terms of the massive looting of the crime intelligence slush fund. This has not happened.

48.4. The NPC has driven what may only be considered a taxpayer funded witch-hunt against the head of the Directorate of Priority Crime Investigation in KZN, Major-General Johan Booysen. The Major-General has on several occasions been cleared of any wrongdoing yet Commissioner Phiyega continues in her relentless waste of taxpayers’ money taking various decisions under review, and placing Booysen on special leave.

48.5. The NPC has signed a further five year contract for the KZN Commissioner despite her being under investigation for her role in the Johan Booysen matter and her close personal relationship with the accused in this matter, Mr Toshan Panday.

48.6. The NPC has announced the appointment of a provincial commissioner who had a criminal record and faced additional charges, has another provincial commissioner in court, and yet another under investigation; and has chosen to sideline expertise and promote inappropriately.

48.7. No progress has been made in addressing police brutality and criminality;

48.8. She has failed to rectify the resourcing crisis in the SAPS which sees barracks that should be condemned and stations and support offices which equally are not fit for human usage, such as the Central Firearm Registry;

48.9. No decisive action has been taken against members of the SAPS who have been found to have criminal records – Commissioner Phiyega’s interventions in this regard have been unsatisfactory. The Boards of Inquiry established to address this problem were found to be unlawful and the 1448 convicted criminals remain in the ranks of the police service; some have been promoted, one to as high as Brigadier-General; their crimes include rape, fraud, and armed robbery.

48.10. On an operational level, the NPC has failed to address the 39 000 operational SAPS members without firearm competency certificates - a massive increase from the 21 000 in 2012. There are also at least 20 000 operational SAPS members without driver’s licences;

48.11. Following closures of all specialized units as instituted by former NPC, Jackie Selebi, the SAPS is without anti-hijacking units, a narcotics bureau, or the anti-gang units. International best practice shows that these are crucial in gang- and drug infested areas;

48.12. The impact of the militarisation of the SAPS was seen at Marikana as well as with the increasing levels of police brutality. The re-introduction of Apartheid-era military ranks and the concomitant “shoot-to-kill” mentality by Mr Cele, and retained by the current NPC, has led to a situation where our police now treat the public as the enemy rather than serving to protect them. Commissioner Phiyega stated at the Farlam Commission in 2012 that the SAPS would be demilitarised but failed to say when;

48.13. Performance agreements have not been instituted within the SAPS and a fair promotion policy has not been implemented. Indeed inexplicable promotions of juniors over seniors, the inexplicable promotion of non-qualified personnel, and the non-promotion of senior staff has seen a mass-exodus of expertise from the SAPS coupled with an increasing juniorisation of the Service coupled with the concomitant decrease in professionalisation; and

48.14. Empowering Station Commanders to be innovative with their policing strategies has become more pertinent but has not been done.

CONCLUSION:

49. Given the seminal role of the SAPS in combatting rampant incidents of serious crime in South Africa it is imperative that the management, control and accounting of the SAPS be undertaken by a National Police Commissioner that is, beyond question, fit to hold that office.

50. Considering the information and evidence outlined above, the DA believes that Ms Phiyega is unfit to occupy that office.

51. Accordingly, the DA trusts that the any inquiry which takes place will be holistic in assessing the competencies and performance of the current NPC.

52. I, Dianne Kohler Barnard MP, hereby, in good faith, make this formal submission.

Dianne Kohler Barnard, MP

Issued by the DA, August 4 2015