In Pursuit of Equality in South Africa

Khayelitsha Commission of Inquiry: Police Losing the War on Rape in Khayelitsha

MANDIVAVARIRA MUDARIKWA

 

In S v Chapman1 the Supreme Court of Appeal stated that:

‘[t]he rights to dignity, to privacy, and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilization. Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.’2

In South Africa, one of the major disruptions to women’s abilities to enjoy constitutional rights is the high prevalence of gender-based crime, especially in low-income areas and informal settlements. Statistics on rape in South Africa released by the South African Police Service (SAPS) illustrates that 44,751 rapes were reported between April 1994 and March 1995. About ten years later this number had increased to 64,514 rapes in 2010/11, and 62,649 in 2013/14.3 It is, therefore, not surprising that the United Nations Office on Crimes and Drugs statistics show that South Africa has had the highest rape rate since 2004.4

The experiences of women living in Khayelitsha, a township on the outskirts on Cape Town, of violence, especially rape, are gloomy and highlight the continued struggles with rape in the area and in South Africa generally. As the Commission of Inquiry into Allegations of Police Inefficiency and a Breakdown in Relations between SAPS and the Community of Khayelitsha (the Commission) stated in their report:

‘Khayelitsha has very high rates of contact crime, which mean that people feel unsafe much of the time. Feeling unsafe, coupled with the debilitating effects of deep poverty, make Khayelitsha an especially hard environment for all who live and work there. Nevertheless, it is important to understand that Khayelitsha is made up of a patchwork of neighbourhoods, with different conditions and varying levels of its socio-economic disadvantage. Perhaps most importantly the history of Khayelitsha in the early years was one of conflict and violence, in which the South African Police, the predecessor of SAPS was implicated in a manner that did not forge a relationship of trust between the police and the residents of Khayelitsha. This history casts a long shadow over the present.’5

Within this context and other policing inefficiencies in Khayelitsha, five civil society organisations (CSOs) – Social Justice Coalition (SJC), Equal Education, Treatment Action Campaign (TAC), Ndifuna Ukhwazi and Triangle Project (the complainant organisations) – lodged a complaint with the Premier of the Western Cape in 2012. In their complaint, the complainant organisations alleged that there were policing inefficiencies and a communication breakdown in relations between the SAPS and the community of Khayelitsha. Subsequently, the Premier established the Khayelitsha Commission of Inquiry (the Commission) to investigate the complaint in terms of section 206(5)(a) of the Constitution. Retired judge, Kate O’Regan, and Vusi Pikoli headed this Commission. The Legal Resources Centre (LRC) represented the five complainant organisations at the proceedings of the Commission.

The complainant organisations alleged that members of the Khayelitsha community routinely experience violations of their constitutional rights when they require the services of the SAPS. They further alleged that the SAPS in Khayelitsha are overburdened and under-resourced; investigating officers and prosecutors appear not to cooperate effectively; investigating officers often do not communicate with victims of crime regarding the progress of investigations or prosecutions, including informing them about court dates and bail hearings; and investigations and securing of crime scenes, gathering of forensic evidence, interviewing of witnesses and other basic procedures are often not complied with or are performed incompetently. Additionally, the SAPS had failed to adequately address the issue of vigilante killings, as well as develop a policy that provides guidance as to how police could visibly patrol informal areas in Khayelitsha.6

Specific to gender-based violence, the organisations reported that girls and women were frequently beaten and raped while walking to and from communal toilets, or when fetching water from communal taps close to their homes, and that domestic abuse posed a threat to the safety of many women within their own homes.7 A victimof this violence was Nandipha Makeke, who was raped and murdered while using a communal toilet.8 The complainant organisations also noted that, in December 2003, Khayelitsha was the scene of the sexual assault and murder of 22-year-old Lorna Mlofana by a group of young men who learnt that she was HIV-positive. Lorna Mlofana was the leader of the TAC for her area. At that stage, the community and CSOs began calling upon the State to provide improved police and other services for rape victims.9

During its proceedings, the Commission heard that, in 2010, the national branch of the SAPS gave an instruction that each police cluster – of which there are 25 in the Western Cape – must have a Family Violence, Child Protection and Sexual Offences Unit, commonly known as FCS units.10 The Khayelitsha FCS Unit serves the eight police stations in the Khayelitsha cluster, which includes a number of other stations. Principally, the Provincial Commander: Family Violence, Child Protection and Sexual Offences Unit (the Provincial Commander) placed evidence about the Khayelitsha FCS Unit before the Commission.11

In her evidence, the Provincial Commander identified challenges facing the Khayelitsha FCS Unit, including that FCS Unit staff members suffered from low morale due to the nature of the cases that they dealt with, as well as that the unit was understaffed.12 Although the national instruction regulating the FCS Unit requires that unit members, including the officers, go for debriefing sessions every six months, this is often not observed. 13

The evidence put before the Commission revealed that incomplete or poor police investigations conducted by the FCS Unit resulted in some cases being struck from the roll or withdrawn by magistrates.14 Further, FCS investigators pursue unstructured, unfocused and therefore ineffective investigations.15 It was further noted that the FCS Unit did not have crime intelligence capacity in the way that police stations do, and it was suggested that the appointment of a crime intelligence officer to the Unit would be valuable, especially in dealing with serial rapist cases.16

The policing inefficiencies experienced by the Khayelitsha community causes the community serious frustration, which was argued as one of the main causes of vigilante killings. The Commission heard from SJC of an incident in where AT’s17 three-year-old daughter was raped and the incident was reported to the police. For two days following the crime, police failed to take her statement or assist her and her child in any way. AT’s neighbour even contacted the police at Site B Police Station and provided AT’s address, but the police failed to arrive. Following the inaction by the police, community members went to the home of the person suspected to have committed the crime home to confront him. The suspect ran to the police station and handed himself over.18 Without the community confronting the suspect, he would have continued to walk free without facing the consequences of his actions.

An inspection of the Khayelitsha FCS Unit highlighted some of the inefficiencies that had motivated the complainant organisations to lodge a complaint. An inspection of the Khayelitsha FCS Unit conducted by the Police Inspectorate in June 2013 revealed that members of the Unit were not registering their informers, despite this requirement being included in members’ job descriptions.19 Additionally, although the Provincial Commander had attempted to ensure that their workload was reduced, the two officers at the Unit were not managing the office adequately to achieve their purpose. It was found that the Khayelitsha FCS is the worst performing of all units in the province.20 The Inspectorate, ‘concluded that the Khayelitsha FCS is the worst performing unit and is bringing the whole FCS component down, that the unit is not performing well, although they receive fewer cases than [other units] … that the unit needs “new blood” … “willing to work” and that management of the unit “continues to be in a pathetic state”.’21

In light of the evidence placed before the Commission by the complainant organisations, community members, experts and the SAPS members, the Commission concluded that the FCS Unit in Khayelitsha was performing very poorly. The Commission found that there were policing, ‘inefficiencies in the manner in which it investigates cases, in the way in which it liaises with other stakeholders such as the Thuthuzela [Care] Centre, and the prosecutors at the Khayelitsha Magistrates Court.’22 The Commission found that the reasons for these inefficiencies included poor quality management, understaffing of the FCS Unit, low morale among members and possibly burn-out of some members. The Commission recommended that these issues be addressed as a matter of urgency to ensure that the FCS Unit performance improves.23

The final report of the Commission details a number of recommendations and findings of policing in Khayelitsha, some of which would impact on the operational efficacy of the FCS Unit in investigating rape and other sexual offences, including:

  • The three police stations in Khayelitsha and the FCS Unit must be monitored to ensure that inefficiencies are eradicated24, including monitoring the implementation of the Domestic Violence Act and crime statistics for the twenty most serious crimes, including rape;
  • Urgent Change of Management Process by Leadership of Khayelitsha Cluster, Khayelitsha FCS Unit and Three Khayelitsha Police Stations 25 to address policing inefficiencies; and
  • Urgent Strategic Review of Detective Services at all three Khayelitsha Police Stations and the FCS Unit26 in order to ensure that the detectives are equipped to investigate crimes effectively, including rape.

Since the final report and recommendations of the Commission were published in August 2014, it is not clear what will come from this report. The National Police Commissioner in her letter to the Premier of the Western Cape doubted the legitimacy of the report and questioned the appointment of Vusi Pikoli as the Western Cape Police Ombudsman.27 Generally, the text of the letter by the Police Commissioner on the findings of the Commission either dismisses the findings or defensively argues that the recommended measures are already in place within SAPS.28 It is worth noting that a year after the report was published, a joint task team, including the Western Cape government and SAPS, was set up to work through the implementation of the Khayelitsha Commission of Inquiry’s recommendations.29 It is not clear what is envisaged for the joint task team, as their terms of reference have not been made public and the timelines for their operation are uncertain.

What will come from the report and recommendations of the Commission continues to be unclear despite the setting up of the joint task team, and women living in Khayelitsha continue to live in fear of violence, including rape.

It is well recognised that as one of the most visible and powerful organs of the State, the police have a very significant and determining role to play in promoting, building and upholding democratic rights and principles.30 Equality, non-sexism, human dignity and the advancement of human rights are some of the founding values as entrenched in the South African Constitution. Further, the Bill of Rights in Chapter 2 of the Constitution is described by the Constitution as the, ‘cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.’31 The State is obligated to respect, protect, promote and fulfil rights as entrenched in the Bill of Rights. The SAPS have an obligation to uphold and promote these values.

In this constitutional framework, it must be emphasised that SAPS’ single most important role is the reduction of crime.32 If SAPS understand their most important role to be crime prevention, then SAPS members are required to anticipate what criminal activities may occur in the future and prevent them from happening. However, if SAPS understand their role as maintaining order, then their role and interventions are mostly reactive to the events and incidences of crime, geared towards addressing the outcome of the particular crime.33

As noted to the Commission by Dr Chris de Kock, there is a link between the reduction of crime and the creation of a safer environment. In his report he used the example of Alexandra in Gauteng:

‘… in Alexandra, Johannesburg there was a street bordering an informal settlement with many toilets. When ladies went there in the middle of the night, rapists were waiting. Many years back the late Minister Steve Tshwete visited Alexandra and when he received a crime briefing he was informed about this. He personally intervened and convinced the Metropolitan Council to move the toilets closer to the shacks. This had the result of a very significant decrease in rape in Alexandra. The late Minister after that became a very strong supporter of the idea of analysis and even on various occasions asked the SAPS management to strengthen the Crime Information Analysis Centre.’34

This understanding of the role of police in Khayelitsha and other areas where women are routinely raped could positively impact the daily experiences of women and girls in such communities. This would be the difference between women having the right to equality, privacy, bodily integrity, and freedom and security, and women actually living equally, free from violence, with privacy and with the right to enjoy their bodily integrity. Ensuring that communities are safe is one of the ways of ensuring that women in Khayelitsha can use a toilet without fear of rape and/or violence. It is hoped that this understanding is infused in the work of the Joint Task Team, as well as the SAPS, which will hopefully see the recommendations of the Commission implemented.


 

  1. S v Chapman 1997 (3) SA 341 (SCA) 344
  2. bid para 4.
  3. ‘Crime situation in South Africa’ available at http://www.saps.gov.za/resource_centre/publications/statistics/crimestats/2014/crime_stats.php, accessed on 12 October 2015.
  4. ‘South Africa Crime Stats’, NationMaster. Retrieved from http://www.nationmaster.com/country-info/profiles/South-Africa/Crime, accessed on 12 October 2015
  5. ‘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’, page 46, available at http://www.khayelitshacommission.org.za/images/towards_khaye_docs/Khayelitsha_Commission_Report_WEB_FULL_TEXT_C.pdf, accessed on 12 October 2015.
  6. Ibid Chapter 1 of the report.
  7. Ibid pages 98, 227.
  8. Ibid pages 82–83.
  9. Ibid pages 83–84.
  10. Ibid page 247.
  11. Ibid pages 247–251.
  12. Ibid pages 248–248.
  13. Ibid page 250.
  14. Ibid page 250.
  15. Ibid page 250.
  16. Ibid page 249.
  17. Anonymised to avoid revealing her identity.
  18. Evidence before the Commission, Bundle 1(5), File E, Document number 30 at para 84.
  19. Ibid page 212.
  20. Ibid page 212.
  21. Ibid pages 212–213.
  22. Ibid pages 382–383.
  23. Ibid page 383.
  24. Ibid page 444.
  25. Ibid page 446.
  26. Ibid page 447.
  27. ‘Text of the letter from SAPS National Commissioner Riah Phiyega to Western Cape Premier Helen Zille, Jun 5 2015’, available at http://www.politicsweb.co.za/documents/saps-response-to-khayelitsha-commissions-recommend, accessed on 27 November 2015.
  28. Ibid.
  29. ‘Western Cape and Police establish Khayelitsha Commission of Inquiry joint task team’, available at http://www.gov.za/speeches/khayelitsha-commission-inquiry-joint-task-team-be-established-24-aug-2015-0000, accessed on 12 October 2015.
  30. Evidence before the Commission, Bundle 12, Expert reports, Gareth Newham’s Report, page 31.
  31. Section 7 of the Constitution of South Africa.
  32. Evidence before the Commission, Bundle 12, Expert Report, Dr Steinberg’s Report, page 6.
  33. Ibid page 6.
  34. Chris Paul de Kock ‘Is Crime Combating Intelligence Led and Is It Effective in Greater Khayelitsha?’ (2014), para 19.