The South African Civil Society Information Service

Getting Away with Murder

By Jane Duncan · 8 Apr 2013

Picture: Lost in Transit [Keep St Joe Weird]/Flickr

Many people were shocked by the judgement in the Andries Tatane case, who was killed by police rubber bullets in a service delivery protest in Ficksburg, and are even more shocked that the National Prosecuting Authority has decided against appealing the judgement. The fact that his fatal shooting had been caught on camera led many to assume that it would have been an open and shut case, and the responsible police officers would be found guilty of murder, convicted and sentenced.

But this was not to be. What went wrong with the Tatane case? The state could not prove that the seven police officers charged with his murder were responsible beyond a reasonable doubt. The police wore helmets, making it difficult to identify them, witnesses changed their testimony, including a witness testimony, which was ruled unreliable, and a crucial statement was taken incorrectly. The use of rubber bullets made it difficult to trace the fatal shots back to particular guns. The case could be considered a comedy of errors if it weren’t so tragic. 

This is not the first time that police have been acquitted for a protestor’s murder. In 2006, after numerous postponements, three policemen were acquitted for the murder of seventeen-year-old youth Tebogo Mkhonza, who was shot dead in a service delivery protest outside Harrismith. The Independent Complaints Directorate (ICD) investigated and recommended prosecution in both cases.

In 2011, Mkhonza’s guardian, Violet Nqongwane, was quoted by City Press newspaper as saying that ‘I feel sorry for that family in Ficksburg. I know what they must be going through. I just pray that their case doesn’t end up like Tebogo’s case’. Tragically, it has.

These events suggest that there is a serious problem with convicting police members for protestor killings. Something is clearly very rotten in South Africa’s criminal justice system.

The most serious test of the system, though, will be the Marikana massacre. The terms of reference for the Farlam Commission, which is hearing evidence on the massacre, are quite broad when it comes to the police’s role, and include whether by any act or omission the police directly or indirectly caused loss of life or harm to persons or property.

There are significant differences between the Tatane and Marikana cases, that may make the latter easier to prove. The police on the frontline of the clash weren’t wearing helmets, so several of these police could well be identified. Furthermore, live ammunition was used, which makes it more likely that ballistics tests will yield more evidence than it did in the Tatane case. But it is in relation to this aspect of the massacre where the police argument of having acted in self-defence is strongest, as there is documented evidence of at least one miner having used live ammunition on the police.

But, the prospects of being able to identify the police responsible for the allegedly more premeditated killings behind the frontline, close to and at the second ‘kill site’ that has now become known as ‘small koppie’, are looking less certain. With the exception of one police cell phone video, no videographic evidence of what happened behind the police lines has emerged. One miner who testified about himself and others being shot at point blank range by the police, Mzoxolo Magidiwana, has had his credibility called into question. Testimony of the crime scene investigators has been largely poor, with them coming across as being uncertain of what happened. Whether they were being devious or simply incompetent is unclear.

So far, few miners have testified and the Commission has less than two months left to hear evidence. In this regard, perhaps the strategy of intimidating the miners through parallel legal processes, torture and other forms of harassment has worked. The police’s strategy at the Commission has been to say as little as possible, while punting the self-defence argument, and no doubt they must be even more convinced of the correctness of their strategy after the Tatane acquittal.

What it’ll come down to if the matter goes to court, is can it be proved beyond reasonable doubt that particular policemen killed particular miners, or that they shared a common purpose to kill, even if Farlam finds the police responsible for loss of life?

Much depends on Independent Police Investigations Directorate (IPID), whose investigations may well make or break the case. IPID was re-established from the ashes of the ICD, as it was widely acknowledged that the ICD was relatively ineffective. IPID was given a broader mandate and a larger budget, which was implemented in 2012.

But is IPID any more effective? Their brief track record as a new organisation is not encouraging. When IPID presented their 2011/12 annual report to Parliament in October last year; Parliamentarians lambasted them for achieving such a low conviction rate. Of the 2 912 cases and 608 criminal cases recommended to the police for investigation, only 23 were in fact investigated and prosecuted successfully.

The Chairperson of the Portfolio Committee on Police, Annelize van Wyk, attributed this to the poor quality of investigations in all underperforming provinces, and argued that IPID would have to ‘seriously question’ whether it was adequately focused on the human-rights issues that should underpin its work.

From this report and the ensuing Parliamentary debate, it would appear that IPID has a problem in preparing cases that can withstand judicial scrutiny. Furthermore, IPID admitted in the Parliamentary debate that it doesn’t have the capacity to investigate all cases referred to it individually, although it remains to be seen whether the additional resources have made any difference to its capacity problems. And this is the institution on which the future of the Farlam Commission may well come to rest.

There have been laudable attempts to recalibrate the police oversight system, but it is difficult not to conclude that this system remains weak and has even been set up to fail. Granted, the system has the look and feel of accountability, but violent police have also learnt how to run rings around it.

If this is a fair assessment, then an unavoidable question presents itself even before Farlam completes his work, and it’s a question that requires urgent thought. What is ‘plan B’ if insufficient evidence emerges from the Commission to hold the police responsible for the killings to account?

‘Plan B’ could involve looking to journalists to uncover the truth. But if journalists continue to rely on the Commission for their stories at the expense of conducting their own independent but parallel investigations, then they may unable to rise to the task. The country could be left with insufficient information to assess the Marikana events independently of the evidence led at the Commission.

Unless ‘Plan B’ is found, and found soon, then there is a very real possibility that the more violent elements in the police will continue to get away with murder, and because of that, they will continue to murder, and probably murder more often.

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