Saturation media coverage of the stand-off between the SAPS and Nkandla crowds ignoring lockdown regulations raise questions about double standards in imposing sanctions. There were good reasons for that initial SAPS inaction, but there is cause for concern about the way in which Covid-19 regulations have been implemented since March last year, exacerbated by the promulgation of new, unnecessarily draconian, criminal offences during the current level 4 lockdown.
Although the Nkandla gathering was a super-spreader, attempts by the SAPS to arrest people would probably have led to a blood-bath, given the climate of incitement by well-armed Zuma supporters. The SAPS reportedly have images and video footage, so the immediate imperative is to arrest all leaders and organisers of the gathering, and travelling from Gauteng, and inciting and firing guns (a criminal offence).
By the July 7 arrest deadline well-trained SAPS members from around the country were prepared for any eventuality, but thankfully Zuma left the complex in the nick of time, averting likely bloodshed had he and his supporters resisted.
The response required of the police at Nkandla was necessarily different to that in routine enforcement of lockdown regulations. Since March 2020 abuse of the powers given to the security forces has been rife, and unnecessary. It has ranged from arrest for trivial offences like walking on beaches to killings.
Although alcohol was banned the black market flourished, often with police complicity. There have been extremely high levels of abuse by the police, including torture and killings, for many years (peaking during “shoot to kill” years), so it was a foregone conclusion that those inclined to this type of conduct (many are not) would relish their increased powers.
In May 2020 the SAPS National Commissioner, in an attempt to stem abuse, sent a detailed circular to all SAPS members, through management structures, warning against the use of force and torture, and detailing procedures for implementing and enforcing the Regulations and Directives of the Disaster Management Act.
Commanders had to ensure all members were regularly cautioned against any unnecessary violence, and warned that any inhumane treatment or punishment, or excessive use of force or torture, would be dealt with in terms of criminal law and SAPS disciplinary processes.
Specific details were given about arresting procedures, together with reminders of circumstances allowed for by the Criminal Procedure Act 1977 whereby even authorised arrests could be avoided. In such instances, police would work with prosecutors and magistrates, and ensure proper record keeping. Torture was condemned in the strongest terms as an extremely serious offence.
These explicit instructions, and others such as those governing public order policing, have continued to be ignored, with serious, even lethal, consequences. Since June 28, new regulations criminalise a range of lockdown offences, allowing rogue police to expand their abuse. One risks prison for leisure travel to and from Gauteng, attending or persuading others to attend gatherings, or even sitting down at a restaurant.
Such severe punishment is unnecessary and risks spreading Covid-19 through confinement in a police van or prison cell. Alternative procedures are detailed in the circular of May 2020, when more appropriate punishments such as fines or community service could be imposed by courts.
Gatherings still occur during service protests, and serious public order policing problems remain, as remedial actions suggested in the 2016 expert panel report following Marikana (only released by the Minister in March 2021) remain unaddressed, and Public Order Policing discipline is often poor.
For example, rubber bullets may be used only in “extreme” conditions, yet their regular use continues, leading to deaths and serious injuries. Remedial tactics are urgent given the regularity of protest action. National SAPS Commissioner directives are ignored with impunity because of the shocking state of management and discipline permitted during the Zuma years. Far too many incompetent people were appointed, unnecessarily, to very senior positions, especially station and district. Serious abuses (torture, murder) must be investigated by the Independent Police Investigative Directorate (Ipid), which, especially in KZN, is riddled with problems.
The clean-up of the police has started, with complaints promptly attended to, but it will take years to clear dead wood. Ipid needs to be far better resourced, but legislation giving the directorate complete independence under a board is overdue and urgent.
Action against injustice, including lockdown abuses, should start at community level or, in those many disempowered communities, with outside support from rights’ defenders. All Community Police Forums should access copies of the May 2020 circular at their stations and assist the vulnerable they are supposed to represent. This circular explicitly encourages persons who have suffered “excessive use of force, inhumane treatment and punishment” to report it to the SAPS by opening cases, and assures the public they will be investigated. However, community structures will need to engage and monitor.
Finally, everyone who stands for democracy and constitutional values should take notice of – and call a halt to – the creeping authoritarianism facilitated by Covid-19 lockdowns, which now further facilitate police abuses.
* Mary de Haas is an honorary research fellow at the University of KwaZulu-Natal’s School of Law and a member of the Navi Pillay Research Group focusing on justice and human rights.
** The views expressed here are not necessarily those of IOL and Independent Media.