It is often said that the best time to fix a leaking roof is winter where there are no storms and heavy rains. This has proved to be true with the South African law enforcement agencies as their inabilities have been exposed amid the COVID-19 outbreak.
The incompetence exposure follows a national lockdown which started on 26 March 2020. The incompetence and brutality of our Police is not a new thing – as there are thousands of civil suits against the Minister of Police on a yearly basis, resulting from incompetence and/or brutality.
Members of the public often institute claims for unlawful arrests; unlawful detention; claims for being subjected to brutality and ill treatment, etc. One can reasonably postulate that there will be a rapid rise in claims of this nature as well as claims against the Minister of Defence Force post COVID-19 lockdown.
Not only do the police fail to execute their duties as mandated by the law, they also commit crimes themselves. It was reported during the weekend that IPID has released statistics of the police's non-compliance during the lockdown recording – 14 assaults; 11 counts of discharge of firearm; 2 deaths in police custody and 6 deaths due to police action. These statistics paint a clear picture of the incompetence and brutality by the SAPS.
THE LAW, PRESIDENT AND MINISTERS' PLEA
The law relating to peoples' security is regulated at the national, regional and international level – this is a clear indication that peoples' bodily integrity; safety and their protection is pivotal. Below is the explanation of what rights and protection do members of the public have amid the continuing police brutalities:
President's and Ministers' Pleas
The President of the country pleaded with the law enforcement officers that they should not be violent and that they should protect the lives of people. He publicly expressed that the officers are not "entering a hostile territory". The same message was echoed by the Ministers of Police and Defence, respectively. Amid the growing number of complaints regarding the police brutalities, the Minister of Police has come out more than once to reiterate the importance of non-violent strategies by police during this period.
The Constitution of the Republic of South Africa, 1996, protects the peoples' rights to bodily security. From the preamble to the objectives, purpose and spirit of the Constitution, dignity, fair treatment, security, amongst others, are of great importance. The Constitutional Bill of Rights affords people rights to, inter alia, dignity, equality, right to life; freedom and security of the body, etc. Implied in our Constitution, as our courts have often held, is the right of Ubuntu – "I am because we are". To safeguard these rights, the Constitution in terms of Section 200(2) forms and mandates the SANDF to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating use of force. Further, the Constitution forms and mandates the Police Services to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic.
There are various legislations which promote and protect the security of persons, including the Criminal Procedure Act. When people breach the lockdown regulations, they are committing a crime and they should be arrested, accordingly. However, as per the said Act, excessive force should not be used unless there is a need to do so and, even then, force should be reasonable and proportionate.
The has been a lot of court cases previously stipulating how Police and law enforcement officers need to conduct themselves – cases such as Carmichele v Minister of Safety & Security; Fose v Minister of Safety & Security; etc. In all the relevant cases, constitutional rights (as depicted above) have been priotitised; polices' behavior has been severely reprimanded. When the law enforcement officers subject people to inhumane treatment and physically abusing them, they do not only risk leaving them disabled, they risk also taking their lives. The gravity of right to life is well explicated in the infamous case of Makwanyane.
VICTIMS' LEGAL RECOURSE
A victim, depending on the circumstances surrounding and leading to the incident, may sue for damages. If a victim dies as a result of law enforcement brutality, the dependents may sue for loss of support. If the victim is injured, s/he can also sue for various heads of damages such as: past medical expenses; future medical expenses; loss of earnings (or loss of capacity to earn); general damages; severe emotional stress and trauma and, potentially, constitutional damages (albeit slim chances of success). The applicability of these heads of damages will be determined on a case-by-case basis. Also, it is important to note that the monetary worth of the claim will depend on the personal circumstances and nature and extent of the injuries of the victim.
Amid the COVID-19 lockdown, the competence of our law enforcement officers has been cast to light and, in line with what we have been seeing all over the years, they are failing to execute their duties in accordance with the law and the simple directives of the President and Ministers. Although there have been numerous court decisions against police conduct, there seems to have been no drastic measures and action implemented to curb violations of law by police and, therefore, this period may be "an eye opener" for the government that there has to be drastic and aggressive changes and an urgent need to "fix the leaking roof". While victims can and should sue for damages, criminal charges and proper action have to be taken against the relevant officers, otherwise they will keep breaking the law and subjecting people to inhumane treatment without fear of repercussions.
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