Excessive use of force by the police is still prevalent in South Africa and threatens law and order and respect for law enforcement, says the writer. Picture: Independent Newspapers Archive
Lennit Max
When South Africa became a constitutional democracy in 1994, it inherited, inter alia, the SA Police Force, commonly known as the SA Police (SAP), one of the most powerful instruments of oppression of the former apartheid government. In principle, the SAP was expected to maintain law and order.
In practice, however, the police symbolised an evil that constantly undermined and brutalised the majority of citizens in defence of the apartheid state. Opposition to the unjust laws of apartheid was routinely met with unimaginable force and violence.
Most were subjected to extreme violence and unfair treatment by police under the pretence of maintaining law and order. With the advent of democracy in South Africa in 1994, the SAP was prompted to undergo reform to align itself with the new democracy. It was important for a democratic South Africa to transform the SAP because it was perceived as an apartheid organ.
The Constitution of the Republic of South Africa, 1996, came into effect after passing the South African Police Services (SAPS) Act. The state was now legally obliged in terms of chapter 2 of the Constitution to ensure that systems are in place to protect the human rights of its citizens and those who live in SA.
Section 205 of the Constitution mandates that the police ensure safety while protecting human rights. However, the devastating effects of the violent actions of the apartheid SAP are still felt in democratic South Africa, and the continued use of excessive force (police brutality) by many police officials does not bode well for the public’s trust in and respect for the police.
The Independent Police Investigative Directorate (Ipid) reports for 2016/17 indicate 7 014 complaints against SAPS; in 2017/18, 5 651 and 2018/19, 5 829 and show a fluctuation in police abuse of force. Further, in 2019/20, Ipid received 5 640 complaints; in 2020/21, 6 122; and in 2021/22, 5 295.
In addition to the above, Ipid’s 2018/2019 annual report notes that 2 000 dockets involving police brutality were forwarded to the National Prosecuting Authority (NPA) for consideration. Of the 2 000 cases, 1 794 were assaults, 337 were discharging official firearms, 157 deaths as a result of police action, 154 deaths in police custody, 80 of torture, 60 for corruption, 57 for criminal misconduct, and 12 for rape while the victims were in police custody.
As a consequence of the above, and during the 2020/2021 financial year, the SAPS was civilly sued for an amount of R16 782 612 292.45 for assault, unlawful arrests and detention, among others. The above contributes to negative community perceptions.
Considering the annual reports of Ipid and the civil litigation against the police, it is clear that the state is under extreme pressure to protect its citizens’ rights against unlawful police infringements.
Since the advent of democracy, SAPS has undertaken various efforts to increase its legitimacy in communities.
This is evident in the current training policies. However, the indication is that communities’ mistrust is caused by how the police use force. Excessive force used by the police is still a prevalent phenomenon in SA and results in brutality and threatens the country’s law and order and respect for law enforcement.
In the 21st century, the police mandate is no longer restricted to just enforcing the law. On the contrary, it has become more complex. Laws on domestic violence, child protection, and elderly care, for example, now impose what may be termed “social work in the community” upon the police.
Law enforcement is nowadays “part art and part craft, part commonsense, part paramilitary and part social worker”. Hence, law enforcement training involves theoretical and practical work. Put differently, “theory teaches us to do the right thing, whereas practise teaches us to do things right”.
It cannot again be said that in South Africa, the police are often perceived as corrupt, untrustworthy, abusive, and aggressive and undoubtedly diminish the public’s trust in the police. Therefore, it would be justifiable to observe interventions in foreign jurisdictions. One such intervention was the training programme in Chicago, where 8 480 police officers adopted a procedural justice strategy.
This training strategy emphasised the importance of respect, neutrality, and transparency whilst executing their duties and simultaneously allowing the community to explain their experiences.
Police agencies must endeavour to respond proactively to challenges and not wait until a training deficiency is identified due to a high-profile lawsuit or serious injury or killing of an officer.
Being more proactive and transparent will eventually transmute into greater public trust in the police and increase its legitimacy.
A recent study found police officers in South Africa have no or limited access to non-lethal weapons or de-escalating equipment to fulfil their daily tasks. They are overwhelmingly dependent on firearms. It is, therefore, important to consider the benefits of less-lethal de-escalation technologies.
Regular training of police officers in the relevant law and technology is essential to protect themselves and others. Officers should know how to act and use their equipment (weapons, body-worn cameras, etc.) because they are continuously confronted with the profession’s social role and are often requested to manage conflict situations. Technological innovations profoundly affect the manner and content of policing in a democratic dispensation.
It must also be remembered that people’s behaviour changes over time.
The police must, therefore, adapt their interventions to society and technology. There is a need for police officers to receive training in the use of de-escalating weapons such as tasers and wearing body-worn and dashboard cameras. The use of tasers and bodyworn cameras must be incorporated into training to de-escalate conflict situations and ensure the use of lawful force.
* Max is an advocate, former Western Cape police commissioner and a Doctor of Laws – LLD candidate (The reasons for the police’s use of excessive force...)
This is the first of a two-part series.
Cape Times