Presentation 2 Marikana Implications for professionalising the SAPS

1. Presentation 2Marikana Implications for professionalising the SAPS Presentation by David Bruce, Independent Researcher PorfolioCommiteee of Police, 9 February 2016, Cape Town

2. Introduction • This presentation : • Initially set down to follow IPID presentation on Marikana investigation on 2 February. • IPID presentation focused on criminal investigation against SAPS members in relation to Marikana. • Focuses on policing issues emerging from Marikana and the Farlam Commission report. • Key issues that are understood to be of interest include professionalising the police and Public Order Policing. • Structure of presentations: • Issue of administrative responsibility of the SAPS – disciplinary measures relating to SAPS members involved at Marikana. • Structural and systemic policing issues' which contributed to the Marikana incident: • Public Order Policing • Other issue of police professionalism • Based on the expert submissions and recommendations on these issues. • Presentation also speaks to questions that will confront the expert panel.

3. Fatalities at Marikana: basic facts Various incidents on 10th and 11th August are followed by 44 fatalities in six incidents over the following 5 days: • Sunday 12th Aug: 3 fatalities • Morning - Group of strikers kills two Lonmin security guards. • Night - A small group of strikers kill one man and injure several others. • Monday 13th: 5 fatalities - Confrontation between strikers and police on the Monday afternoon: Strikers kill 2 SAPS members and seriously injure at least one other. SAPS kill 3 strikers • Tuesday 14th: Small group of strikers kill suspected spy after impromptu trial. (Wednesday 15 August: no fatalities) • Thursday 16th August: 34 fatalities • Scene 1: SAPS kill 17 strikers. • Scene 2: Another 17 strikers killed by SAPS.

4. Division of responsibilities • SAPS - investigations relating to alleged criminal conduct by strikers (7 deaths). • IPID responsible for investigations relating to possible criminal conduct: • Killings by SAPS on 13th (especially Mr Sokanyile), and at Scene 1 and Scene 2 on the 16th of August • SAPS dishonesty before the commission • IPID indicated investigating some of this though not clear if this is comprehensive; • Investigation presumably under discretionary mandate (IPID Act S28(1)(h)) • SAPS also responsible for ‘administrative measures’ inter alia to ensure adherence by SAPS members to Constitution (e.g. Section 7(2)) and Code of Conduct. Include: • Disciplinary matters and compliance with firearms legislation; • Systemic issues - police training, regulations, management, resources.

5. ‘Administrative’ responsibility of SAPS –discipline and compliance with firearms law SAPS must address • Possible disciplinary violations related to use of force by SAPS members on the 13th and at Scene 1 and Scene 2. • Whether any SAPS members should be regarded as having demonstrated that they are unfit to possess and use firearms (particularly in an official capacity). • The evidence of systemic dishonesty by SAPS members in dealing with the Scene 2 crime scene after the killings (notably tampering with crime scene including planting of weapons on at least 6 victims). • The evidence of widespread dishonesty and lack of cooperation by SAPS members in providing evidence to the Commission.

6. Findings of the Marikana Commission pointing to possible criminal conduct or misconduct by SAPS members at Marikana • Includes findings relating to: • Scene 1 – ‘Some police officers may have exceeded the bounds of lawful private defence’ • Scene 2 – discussed in this presentation • Brigadier Calitz – discussed in this presentation • Major General Naidoo – discussed in this presenation • General Phiyega and Lieutenant General Mbombo relative to authorising the operation on the 16th • Lt General Mbombo, Major General Annandale and Major General Mpembe and Brigadier Calitz relative to their conduct during the Marikana operation – and allegedly dishonest evidence to the Commission on this point. • Various other SAPS commanders and members implicated in dishonesty.

7. Example 1: Scene 2 • 57 SAPS members discharged a total of 295 rounds of live ammunition (188 R5 rounds; 97 9mm rounds) resulting in 17 deaths over a period of 11 minutes. • Shooters were: 24 NIU, 11 TRT, 11 K9 and 11 POP unit members. • Commission findings regarding Scene 2 • The SAPS ‘provided no details of what happened with regard to the deaths of most of the deceased at Scene 2’ and • ‘Where [the SAPS] does provide evidence pertaining to the deaths of some of the deceased, their versions do not, bear scrutiny when weighed up against the objective evidence.’ • Implication is that the SAPS has not managed to demonstrate that any of the 17 strikers killed at Scene 2 were killed lawfully. • Until the contrary is proved there is therefore a reasonable basis for believing that all of the Scene 2 killings were unlawful • The killing of Mr Mpumza – Victim C – is the only killing on which this point is debatable. • Remarks of Commission: despite there being 2 SAPS shooters who acknowledged shooting at Mr Mpumza ‘There is no explanation as to who fired the other shots that inflicted the other wounds described as being caused by high velocity gun shots. This merits further investigation.’ • Under these circumstances it seems reasonable to contend that all SAPS shooters at Scene 2 should be suspended on the basis of the reasonable suspicion that many of them acted unlawfully. • Their firearms should also be withdrawn from them. • There should be a thorough disciplinary process that assesses whether they can be regarded as having acted lawfully and whether their evidence can reasonably be regarded as truthful.

8. Example 2: Brigadier Calitz Issues of concern with regard to Brigadier Calitz include: • Gross negligence in relation to his responsibilities as overall operational commander following the shooting at Scene 1 notably including: • Failing to bring a stop to the operation (along with Lt General Mbombo, Major General Annandale, Major General Mpembe — see Evidence Leaders, 427-431). • Neglecting to exercise proper control over the actions of police at Scene 2. • His address to SAPS members on the day after the massacre (see Evidence Leaders: 504-509 especially para 911-912) and other inaccurate information provided by him (see SAHRC page 69 para 1.2.6) • Concern that this was intended to encourage SAPS members to provide a dishonest account of the events at Marikana. • His evidence before the Commission (see inter alia Commission report, 263-268). • Inter alia, he claimed to have been unaware of shootings both at Scene 1 and Scene 2.

9. Example 3: Major General Naidoo Issues of concern with regard to Major General Naidoo include: • The Commission recommends that his conduct should be investigated with a view to possible prosecution in relation to: • ‘The delay in relation to the provision of medical attention at Scene 1 (Commission, 321) • The shootings in which he was involved at Scene 2 with members of the K9 unit (Commission, 318-319) • There are therefore two findings in the report explicitly relating to investigation with a view to possible prosecution of Major General Naidoo. • His evidence including his initial written statement to the Commission was prima facie dishonest (Commission, 318-319) • He is also criticised for his failure to exercise command and control at Scene 2 in an appropriate manner despite being the de facto Senior Officer at Scene 2 (page 312, para 11);

10. Other SAPS who prima facie gave dishonest or incomplete evidence to the Commission The systematic nature of SAPS dishonesty in providing evidence to the Commission the issue is not discussed comprehensively in the Commission report. Evidence in this regard pertains to: • Those responsible for compiling and approving the main SAPS submission to the commission (‘Exhibit L’) including General Phiyega and Lt General Mbombo. (Report: 513-516) • Lt General Mbombo, Major General Mpembe, Major General Annandale, Brigadier Calitz • Commission Report (262 – 268) – inter alia justified their conduct after Scene 1 on the basis that they had no knowledge of the fatal shooting at Scene 1. • Major General Naidoo • Various others SAPS members and commanders at Marikana and subsequently involved in preparing and presenting information to the Commission. • Also: Brigadier Malahlela for contravening section 4(1)(b)(dd) of the Protection of Information Act 1982 for neglecting or failing to take proper care of the memory stick. • Evidence relating to dishonesty is outlined more fully: Evidence Leaders: 476-480, 510-519, 520-528; 601-606; 608-613; 625-632; and elsewhere; South African Human Rights Commission: 60-119; Families: see for instance 385-388.

11. SAPS disciplinary obligations • SAPS needs to demonstrate that it has addressed these issues in a systematic way. • As a preliminary step members should be suspended pending completion of disciplinary process. • Where punitive measures are not justified there should at least be corrective discipline. • Even if IPID concludes that there is insufficient evidence to prosecute SAPS members or that prosecutions may only succeed on less serious charges: • Disciplinary process relies on a lower evidentiary threshold (balance of probabilities; • The report of the Commission itself is not comprehensive in dealing with the evidence. • To formulate approach SAPS should at least carry out systematic review of evidence presented in report of the Commission as well as: • Heads of argument of evidence leaders – lawyers appointed by the state to assist the Commission; • Heads of argument by other parties (e.g. Families, SAHRC) that address these questions in detail. • A necessary component of ‘professionalising the SAPS’. • Failure of SAPS to respond to these issues will undermine authority and credibility of other professionalisation measures.

12. Public order policing Marikana was partly a product of militarisation of police. Causes included: • The debilitated condition of the Public Order Police (POP) units; and • Elevated status of ‘tactical units’ and their increasing use in public order policing. Subsequent to Marikana: National Instruction 4 of 2014 addresses question of command and control in public order operations. Other questions remaining include but are not limited to: • Type of weapons and tactics used by police in dealing with armed and potentially violent crowds - Generalised use of the R5 rifle in SA policing including in public order policing • See ‘Systemic issues raised by Marikana Scene 1’ following. • Adherence by POP units to Regulation of Gathering Act principles. • The failure to make effective use of intelligence. Need for systemic approach to addressing deficits in POP. Approach that is called for is based on analysis and strategy rather than just ‘throwing money at it’.

13. Systemic issues raised by Marikana Scene 1 “[The operation was planned] so that a large crowd of people would [..] be confronted by [..] two consecutive lines of police officers, with the front line [..] armed with lethal weapons, each of whom had discretion to fire live ammunition whenever an imminent threat was perceived. The decision to configure the tactical units in a ‘baseline’ walking towards the protestors … represents a reckless attitude with regards to the potential for the use of lethal force and … the duty of care in respect of the safety of the officers..” (Gary White OBE, expert witness for SAHRC) High number of fatalities Scene 1 can be seen as the product of: • A type of weapon – the R5 • A configuration (the line of TRT shooters) – (reflects unsuitable planning and tactics), and • The reflexive response of members of this line once one or more members of the line started shooting as a result of believing they were being attacked (reflecting inadequate training and discipline).

14. Other issues regarding SAPS professionalism - 1 • The dominance of an ‘authority based’ as opposed to a ‘values based’ culture within the SAPS. • SAPS members need to respect the authority of their commanders. • However this needs to be based on respect for the fact that these commanders uphold the values that the SAPS is supposed to adhere to. • The ability of the minister of police to influence operational decisions by police management in a manner that is unaccountable. • ‘Open finding’ by the Commission with regard to the possibility that the Minister of Police may have influenced operational decision making. • Precedents in other countries for greater oversight of interface between the Minister of Police and the Police Commissioner. • The professionalism of the senior level SAPS leadership corps. • Issue given priority in the National Development Plan

15. Other issues regarding SAPS professionalism - 2 • The absence of a professional orientation to the use of force and a clearly defined policy that specifies that police have an obligation to minimise the use of force. • Need for a use of force policy (see discussion of McCann principle following). • The absence of meaningful accountability by police for the use of force. • Questions about formulation of Section 24(5) of the IPID Act and IPID’s use of this provision • The structure, mandate, composition, training and accountability of the ‘tactical units’ • Marikana exposes chronic problems with major tactical units (NIU, TRT) as well as K9 and POP. • Special Task Force did not fire a single shot despite being positioned in very close proximity to Scene 2. • The tendency to neglect the provision of first aid to injured suspects: • Problem may be one of police culture rather than standing orders.

16. Implication of findings with regard to the McCann principle • Commission report refers to what is called ‘the McCann principle • This ‘requires the planners of policing operations where force may possibly be used to plan and command the operations in such a way as to minimise the risk that lethal force will be used’. • The report indicates that the principle is part of South Africa law including the SAPS Act • The report says that the decision to launch the operation breached the McCann principle: ‘Put simply: a decision to implement a plan to use more force on Thursday than would probably be required on Friday will, in the absence of compelling circumstances requiring action on Thursday, be an illegal decision(p 521). • Acknowledgment by Commission that McCann principle is part of South Africa law requires that SAPS review Standing Orders etc regarding the use of force. • Highlights the value of a comprehensive use of force policy.

17. Summary Range of issues that require SAPS and government response include: • Disciplinary issues and questions of Firearms Control Act compliance. • Public Order Policing. • Other issues regarding police professionalism.

18. The end Thank you.