7 October 2020
The draft South African Police Service Act Amendment Bill was published for comment last week by the Civilian Secretariat for Police Service (CSPS) in preparation for submission to Parliament. It includes proposals to amend the law regarding community police forums, municipal police services, the Directorate for Priority Crime Investigation, and public order policing, among others.
It also proposes amendments to provisions of both the 1995 SAPS Act and the 1993 Regulation of Gatherings Act, that govern police use of force. The proposals are to be welcomed. But, if put into effect, they will largely confirm established practise, and reiterate existing legal provisions.
They also do not address the need for police to establish internal “administrative” mechanisms to control the use of force. It is internationally recognised that, in the absence of such mechanisms, other measures to control the use of force will have limited impact.
The bill provides that automatic rifles may not be used in crowd management. This was a key concern of the Marikana Commission. More than 90% of the miners killed by the police at Marikana on 16 August 2012 —- 31 of the 34 killed — were hit by automatic gunfire.
Since Marikana, automatic weapons have effectively been prohibited in crowd management operations. Nevertheless, during a protest in August 2018, Katlego Monareng, a law student at Tshwane University of Technology, was killed by gunfire from an automatic rifle. This incident appears to have been an exception.
Other people killed by police during protests have been killed by rubber bullets, teargas, or police service pistols.
The bill also seeks to amend an anachronistic provision of the Regulation of Gatherings Act that allows for lethal force in defence of property during violent protests. Again this largely serves to confirm established practise and reinforce existing legal provisions. The principle that lethal force may not be used in defence of property is already embodied in judgments of the Constitutional Court and in provisions of the Criminal Procedure Act governing the use of force for arrest.
Several recent incidents of the misuse of force have highlighted the need for stronger SAPS systems of control over the use of force. But further changes to legislation are not what are needed to address this.
Legislation itself will not ensure better proactive management of the use of force by the SAPS. Currently absent are effective internal mechanisms to control the use of force. These should include a consolidated use of force policy that provides clear guidance to SAPS members on the legal and professional standards that they must comply with in using force.
Such a policy should emphasise a duty to protect life, and direct police to de-escalate potentially lethal encounters where this is possible.
In addition to a use of force policy, a more proactive approach would also require that SAPS monitor the use of force to identify members who are using force excessively.
Over recent months deaths at the hands of police and other security forces, like that of Collins Khosa, allegedly killed by members of the SANDF in April, and Nathaniel Julies in August, have received considerable public attention. The focus of attention in these cases has been on accountability, motivated by the concern that those involved in the killings should be held responsible.
There are serious flaws in the current system of accountability. But the misuse of force cannot simply be prevented through strengthening the accountability system. Even if it is strengthened, the system will only serve as an instrument for after-the-fact attempts to address the most blatant misuses of force.
On Monday 7 September police killed a young man, in Tembisa on the East Rand. According to his mother, Tshepiso Adoons, 22, was “mentally unstable”. He had been behaving aggressively and she had called the police to help her.
Instead of helping her to resolve the problems with her son, they killed him. His mother reportedly stated: “Instead of assisting us in taking him to a institution, they shot and killed him inside a shack, where he was hiding away from them.”
According to police, Adoons was charging at them with a knife when he was fatally shot. Unless they find evidence that contradicts the police account, the assessment of the Independent Police Investigative Directorate (IPID) and the National Prosecuting Authority (NPA) is likely to be that Adoons was shot justifiably.
This would be in line with the right of the police to use lethal force in self-defence when their lives are in danger. Accountability mechanisms will therefore likely clear the SAPS members involved.
But Tshepiso Adoons probably need not have been killed. Police could possibly have handled the situation effectively without using deadly force.
On the facts available Tshepiso Adoons probably died as a result of what is called “unnecessary force”. Unnecessary force is not a deliberate misuse of force, and is therefore not necessarily unlawful.
Unnecessary force occurs when, rather than taking steps to minimise the potential for violence, the police intervention escalates the situation. As a result, force is used where it need not have been. Or lethal force is used when a more skilful approach to the situation would have enabled the situation to be resolved non-lethally.
One of the clichés that is associated with discussion of the use of force by police is that of the split-second decision. There are split-second decisions in policing. There is also generally much more to situations in which police use force.
Police frequently can have a lot of influence, particularly through their manner of entry into the scene, over whether or not there is ultimately any need for a final-moment your-life-or-mine decision.
The other side of the coin of unnecessary force, is de-escalation. De-escalation tactics are proactive measures used by police, where feasible, to gain voluntary compliance and reduce or avoid the use of force. They include avoiding action that may escalate the situation, such as approaching the person too quickly, unless this is justified by the circumstances.
Dealing with situations where mentally ill people pose an apparent danger to others is a normal part of policing. The current context in South Africa, where substance abuse is widespread, increases the likelihood that police will encounter situations of this kind. Substance abuse may aggravate or trigger underlying mental illnesses.
De-escalation in these situations involves recognising that the person may not comply with police instructions. Difficulties in securing cooperation will need to be resolved if force is to be avoided.
Part of the current debate about policing in the US is about whether police should be involved in dealing with these kinds of situations, or whether other mental health professionals should rather be brought in. Nevertheless, in our current context in South Africa, police are likely to be part of the response to these situations for some time to come.
There are indeed serious risks to police in South Africa in the performance of their duties. In 2018/19 27 police were killed on duty (a further 49 were killed off duty).
As in the US, police in South Africa have invested in being prepared to defend themselves against armed assailants, through measures such as firearm training. But implementation of a use of force policy could save the lives of people like Tshepiso Adoons and strengthen police safety. De-escalation can reduce the risks of policing not only for their adversaries, but also for police themselves.
The killing of Tshepiso Adoons therefore raises serious questions. Could force reasonably have been avoided or the level of force used have been reduced? Could the SAPS members have done more proactively to reduce the risk that force might be used? Could the SAPS do more to ensure that its members protect human life, in a manner consistent with a concern for police safety?
The facts available suggest that police may have reacted over aggressively when called to the Adoons home. They may have confronted Adoons rather than maintaining a distance between themselves and him, and taking the time to resolve the situation less violently.
As a result, in the final moment, the police found themselves facing what they possibly believed was a life threatening attack in which they had “no-choice” but to use lethal force.
Had they instead focused on de-escalation, the confrontation may not have culminated in them facing apparently mortal danger.
The death of Tshepiso Adoons may therefore be the result of the fact that the SAPS have failed to embed a commitment to protecting life, and to de-escalation, in their approach to the use of force. One key step towards this would be adopting a clearly defined use of force policy.
A use of force policy was developed for the SAPS in 2017 by the Civilian Secretariat for Police. The policy foregrounds the protection of life and the principle of de-escalation and provides guidelines on how to uphold these principles.
But nothing has been done to implement the policy since it was finalised three years ago.
The failure to recognise the need for improvements in how it manages and controls the use of force reflects the SAPS’s failure to adapt in a meaningful way to the challenges of policing the democratic 21st century society that is South Africa.
Many SAPS members work in a violent environment. Despite knowing this, the SAPS has failed to modernise its approach to how it manages the use of force both to optimise police safety and avoid the unnecessary and unjustified use of force.
Now that the draft bill is on the table, the risk is that the SAPS will claim that it has to wait for the bill to be finalised before adopting new measures.
The version circulated last week is a draft bill. The CSPS is engaging in a preliminary round of consultation and revision of the bill. Only after this is complete will the bill be submitted to Parliament. Considering the complexity of the bill it is likely that the process of finalising it will last for an extended period of time.
When called on, in situations such as this, to make administrative changes, the SAPS will typically say that it needs to wait for the bill to be passed before moving forward.
The risk is then, that in the name of deference to Parliament, the bill will be used to obstruct changes which would enable the SAPS to better uphold the Constitution and human rights.
As important as the issues in the bill are, they should not divert attention from the need for critical changes to SAPS systems for controlling the use of force.
Views expressed are not necessarily GroundUp’s.