Report written for Phase Two of the the Inquiry into Allegations of Police Inefficiency in Khayelitsha and a Breakdown in Relations between the Community and the Police in Khayelitsha By: Gail Super (PhD) Research Associate Centre for Criminology University of Cape Town I Introduction 1. This report draws on evidence given at the hearings in respect to vigilantism and highlights some key issues for consideration. 2. I start by discussing the argument that vigilantism occurs because of an inefficient criminal justice system. II Vigilantism and an inefficient criminal justice system 3. According to mainstream discourse vigilantism is caused by police inefficiency and a weak criminal justice system. Vigilantes are presented as functioning in opposition to the formal criminal justice system and as constituting a threat to the rule of law (H?efele, 2008; Sekhonyane and Louw, 2002; Tabane, 2013). Consequently, the 'culture of violence' that arises when vigilante organizations and ordinary citizens are given the space to act - because of the perceived failure of the state to deal with criminal violence - will only be solved if the state asserts its authority in 'poor urban neighbourhoods, informal settlements and deep rural areas such as the former homelands' (H?efele, 2008: 10). The solution is to: o Improve the functioning of the criminal justice system as a whole 1 o Improve the conviction rate o Improve service delivery to the public o Enact laws that are `tough on offenders` and, o Assist the police and courts through crime prevention partnerships (Sekhonyane and Louw, 2002: 3). 4. In the remaining part of the report I argue that this explanation is not only partial but also dangerous insofar as it narrows the debate considerably. The logical outcome of a more efficient criminal justice system - with the focus on increased arrest and prosecution rates and fewer releases on bail - will be higher rates of imprisonment and pre-trial detention. Yet, there is widespread research to the effect that prisons don't work. 5. Clearly, vigilantism speaks to the 'limits of state power' (Garland, 2010: 36) but this is not all it speaks to. It is crucial to understand how dynamics - between the state and social organizational structures, between various local organizations and between various government agencies (local, provincial and national) - shape and promote this phenomenon (Huggins, 1991: 16). 6. The 'structural conditions' that enable 'collective violence' do not only encompass macro-socioeconomic conditions (such as inequality), although this is obviously of crucial importance, but also factors such as the extent 'popular sovereignty', the power struggles between 'local actors', group relations, levels of violence, and the presence of 'despised low-status outsiders' (Garland, 2010: 36). These outsiders include exprisoners, people released on bail, foreigners and, of course those accused of criminality. 2 III What is vigilantism? 7. Buur and Jensen (2004: 148) call for an approach that studies vigilante practices as opposed to vigilantism since the latter is not an object of analysis with clear-cut conceptual and empirical boundaries. Huggins (1991: 8) refers to a 'vigilantism continuum' ranging from an informal pole (very spontaneous, less internally organized, ... only indirect state involvement') (Huggins, 1991: 8), to a formal pole ('extralegal violence by on-duty police' (Huggins, 1991:9)). Huggins argues that it is also important to understand the relationship of states to vigilantism (Huggins, 1991: 10). 8. For the purposes of this report, it should be noted that there is a whole host of punitive practices for dealing with crime and deviance in Khayelitsha that don't make the front pages of the Cape Times, or for that matter raise any eyebrows whatsoever. For example, smacking (also referred to as 'massaging') is accepted across the board and regarded as a legitimate form of discipline. These many forms of punishment play out in multiple spaces and on many levels so the line between legitimate and illegitimate is blurred (indistinct and easy to cross). IV Blurred boundaries 9. Although there is a common reference to 'criminals' and how they transgress boundaries of the 'moral community' (Buur and Jensen, 2004: 144), in fact it is more difficult in practice to separate the 'mob' out from law abiding society, and the legal from the illegal. 10. During my research I heard many variations on the theme that 'it is the mob which kills'; 'we can't stop the community so we run away'; 'whereas the street committee has 15 members the 'community members are 600 and that's why we say "community" not "committee"'; 'if you lead the community you can't not agree to a decision because 3 the community is stronger than the committee'; 'you know the community they beat him...we try to say you can beat but not to kill him'. 11. According to Seekings (2013) Khayelitsha consists of a cluster of suburbs: as such it should be disaggregated in terms of its complexity and we should not assume too much coherence. So, what exactly do we mean when referring to the 'community'? In one sense the term functions as a distancing technique with specific people (ie individuals) being subsumed under the group rubric. 12. Members of neighborhood watches and street committees may be, or may have been, the same people who become part of a 'mob' - the point is that neither the 'mob' nor the 'community' are fixed concepts and there is slippage between the way that these terms are deployed. Because of this I argue that 'the community' is a contested site which is referred to in mainstream discourse, by both the state and NGOs, as if it is some pre-existing objective entity. 13. To give an example: one of the people that I spoke to was a member of three different committees, all with varying relationships with the state: the local neighbourhood watch, a community patrol group and the Khayelitsha Community Police Forum. He had also been a participant in the demolition of three houses in an informal settlement, after a decision to this effect was taken at a 'general council' gathering of the street committees in his area. It also seems that the term 'street committee' is used very loosely, to apply to any body of people who live in a particular street, without necessarily being affiliated to SANCO. V Community versus state 14. It is not always clear what the state looks like, nor who its agents are. Thus, when the Department of Community Safety offers free training to neighborhood watch members as a condition for donations of equipment, it seems (at least to outsiders) that 4 neighborhood watches have some official status. When volunteers wear coloured bibs their work is somehow formalized. 15. Tshehla (2002: 52) describes how, when the secretary of the Khayelitsha CPF was robbed she: took it upon herself to mobilise other people and looked around for the culprits until they found two of them in possession of stolen property. When these suspects were granted bail she took it upon herself again, with the assistance of the KCPF chairman, to confront both the police and a senior prosecutor. The result was that the investigating officer was changed and a warrant of arrest was issued for the suspects to be rearrested. Throughout she kept the investigating officer under tremendous pressure to ensure arrest. 16. Her research (2002: 52) also revealed that the Khayelitsha CPF ran neighbourhood watches as a 'crime prevention strategy' although, according to the evidence given by Mr. Salie (on 4/02/14), in those instances where the CPF is not 'well-organized' then 'the community' runs them. Unless one is aware of local politics and the intricacies of a bureaucratic administration it will be difficult to distinguish state sanctioned (therefore legal) from illegal spin-offs, that were once legal. VI Police complicity 17. The police have admitted that they tacitly permit violent community based ordering processes. See for example the De Kock report which referred to taxi associations as being 'in control of vigilante actions', stating that: 'They [the taxi associations] even went as far as imposing a curfew after 21:00 in the evening. Everyone (including the police) was very happy with decrease in crime'. Although this was admitted in the 5 context of what happened six or seven years ago, police complicity is still evident. Thus a witness testifying before the Commission stated that the police had witnessed him driving with suspects in the back of his truck in order for them to show him where the goods that they had allegedly stolen were being sold: the police made no effort to charge the suspects and commence with investigations (testimony of school principal Mr Mjonondwana given on 28 January 2014). 18. In the case referred to in the table below the police advised a school principal to go to the alleged perpetrator's homes to see that the stolen item (a stove) was there, prior to the police taking action. 20 CK 12/10/20 Khayelitsha Break-in Site B Police Theft Station Inefficiency and Breakdown in relationship between the police and Khayelitsha residents. Deponent is a school teacher and has reported on two occasions, break-ins that have happened at the school. They stole a stove on both occasions. The school has security cameras and was able to provide the police with pictures of the perpetrators and the address of the perpetrators. Police advised the school to go to the perpetrators house themselves and make sure the stove is at the perpetrators house, before Due to their frustration with the police they give the information to the Taxi Association and a few days later the stove is returned. VII Perceptions about what the police should do 19. There is a widely held perception that the police should a) punish and b) retrieve stolen goods. This results in a sense of futility insofar as it is regarded as pointless to report incidents to the police because they will not be able to retrieve stolen goods. Yet, police 6 rarely retrieve stolen goods. The difference between the well-off and the poor is that the former have insurance. The poor have greater expectations in re the police and these aren't fulfilled. 20. Often the expectation is that the police will mediate between two parties to retrieve stolen goods. For example, the cousin of a murder victim contacted the investigating officer with the specific expectation that the investigating officer would ask the accused to pay for the funeral costs (64 MT 13-02 64 pdf) and a woman whose modem had been stolen approached the police to accompany her to fetch it (See redacted community statements, 63 VG 13-02-63 pdf). In this sense then the police are called on to resolve disputes that aren't strictly speaking within their domain. 21. When suspects are arrested and released a week later the perception is that there has been a failure of justice - there is no clear understanding that people cannot be held in pre-trial detention indefinitely. In this sense then there are unrealistic expectations of what the police can do (both legally and illegally). 22. There is a constant call for visible patrols or 'visible policing': yet this is already receiving attention from the police. See for example the Lingelethu-West Performance Plan 2010/2011 which lists outputs as being weekly operations against shebeens, 'zero tolerance approach to 'b' crimes, riotous behavior, drunk in public, urinating in public, abusive language'. Visible policing does not address the causes of crime (including petty crime such as operating a shebeen outside of operating hours) and is often blamed for displacing crime onto other areas. VIII Watering down Social Crime Prevention via 'Partnership Policing' 23. In 1998 the SAPS, in line with the National Crime Prevention Strategy, defined Social Crime Prevention, as aimed 'at reducing the socio-economic and environmental factors conducive to criminality through the targeting of particular causal factors conducive to 7 crime' (Department of Safety and Security 1998: 44). The idea, at the time, was to focus on improving socio-economic conditions and thereby address root causes of crime. 24. This lofty ideal has been considerably watered down. The SAPS now conflates 'social crime prevention' with visible policing, victim support, anti domestic violence initiatives, CPFs and even mobilizing the community to oppose bail (See the Lingelethu West Performance Plan 2010/2011 : p. 10). This is an ironic twist. 25. In essence social crime prevention is presented as liaising with the community, 'maintaining partnership with the community' and 'ensuring sound partnership policing'. This includes projects where the police liaise with the community around child justice, domestic violence, victim empowerment, substance abuse, youth at risk, sexual offences; neighborhood watches; business forums; street committees and; safer schools (See Lingelethu West Performance Plan: 2011-2012, p. 16 and the SAPS Provincial Performance Plan). 26. The SAPS consistently argue that the socio-economic 'hurdles' are the biggest problem to policing in Khayelitsha but that these are out of their control and that it is not the duty of the police to improve socio-economic conditions. Instead the call is for the 'community' to take responsibility and for moral regeneration. 27. According to De Klerk (1999: 51), where the police encourage the public to engage in partnership policing, to join neighbourhood watches, to establish community patrols, to observe and report crimes, they also create the expectation that they will be available to assist in instances when crime is detected. However, given a scarcity of resources, which has been starkly testified to before this inquiry, this promise cannot be fulfilled. See also Hornberger (2013: 12) who argues that by seeking legitimacy from the community the technology of community policing is vulnerable to being 'penetrated' by 'forms of local justice' that rely on 'illegal violence'. In this sense then the state (and 8 here I include the Department of Community Safety) is complicit, precisely because on the one hand it calls on the community to take responsibility for combatting crime and, on the other, it adopts a punitive rhetoric towards crime and criminals. 28. In the next section I discuss prevailing misconceptions about imprisonment and the necessity for a harsher criminal justice system. IX Imprisonment 29. It seems that a substantial proportion of the victims of vigilantism are in fact awaiting trial on other offences and/or are ex-prisoners. See for example the 'Bundu Courts' report compiled by the Khayelitsha Cluster, which records 78 'vigilante incidents' in Khayelitsha between April and June 2012. (See also 66A PB23 Nov 2013 Ref 13-2-66A). According to the 'Bundu Courts' report most of the victims of vigilantism were young men, between the ages of 18 and 30, with at least half having either been caught in the act of stealing/robbing/housebreaking and/or suspected of same, with ten reflected as having either been released from prison and/or remand detention. 30. There also seems to be a general misperception about how the legal system functions: for example one of the witnesses - the mother of a child who had dropped out of school because of gangs - testified that 'if they were arrested at least they would be rehabilitated'. Apart from the fact that rehabilitation is the responsibility of the Department of Correctional Services, and not SAPS, social workers, psychologists and other professionals who are key for rehabilitation are in woeful short supply (Judicial Inspectorate for Correctional Services, 2010: 25; 2013: 81). In fact, in overcrowded prisons, prisoners only have 1.2 sq m in which to eat, sleep and spend 23 hours of the day (Judicial Inspectorate for Correctional Services, 2007:16). The conditions are, to say the least, appalling. 9 31. There is a widely held perception that the criminal justice system is not harsh enough and that this results in vigilantism. See in this regard an excerpt from Major General De Kok's report: The Criminal Justice System in South Africa is currently considered by many as very democratic, but extremely weak and biased in favour of criminals. An intelligence report issued on 31 July 2012 mentioned a suspected rapist who was stoned to death ....A group of 150 people killed him after suspecting him of wanting to rape a 19 year old woman. The report also mentioned that "the man was a suspect in a murder case, two rape cases, one attempted rape, one robbery and three housebreaking cases." The fact that were so many cases outstanding against this suspect and that he was free to walk the streets and again endeavor to rape a victim is not unique at all. Particularly in robbery cases, it is not an exception but is actually the rule that suspects commit other robberies while out on bail. In South Africa bail is an enshrined right and only withheld in the most exceptional of cases. I have literally seen many hundreds of profiles of suspects with long lists of CAS numbers either pending against them, but in most cases areas withdrawn. Under such circumstances it will not be strange for robbers to continue with impunity, because their risk assessment tells them that the chances of being arrested and subsequently imprisoned have diminished ('Serious Crime in Khayelitsha and surrounding areas' (Crime Research and Statistics, Crime Intelligence, 3 August 2012, Maj Genl De Kock, 22). 32. This is a dangerous discourse because it sidesteps the liberal minimalism which is enshrined in the Constitution. 33. The effect of imprisonment on communities is consistently left out of the equation: none of the affidavits, not even from the complainants, referred to the effects of imprisonment on people living in Khayelitsha. This lacuna should be specifically addressed by concrete research. The notion that a prison sentence arising out of a conviction equals a successful criminal justice system is shared across the board, yet there is an abundance of research about the negative effects of imprisonment. 10 X Recommendations (a) Further research 34. The Department of Community Safety in combination with SAPS should facilitate research into what is going on in the realm of crime prevention and punishment in Khayelitsha (and in other marginalized communities) - what are the technologies used? Who are the agents? What are the consequences? 35. What are the micro power structures? How do street committee's operate? What are the other governance structures in Khayelitsha: both formal and informal? Who are the 'community leaders'? What is the relationship between 'vigilante mobs' and 'communities' and how they are intertwined in practice? In other words: what are the dynamics - between the state and social organizational structures, between various local organizations and between various government agencies (local, provincial and national) - in shaping and promote vigilantism? (Huggins, 1991: 16). (b) Resource allocation 36. Resource allocation should receive particular attention and the average income in particular suburbs should be taken into account by both DOCS and SAPS in resource allocation decisions. The playing fields between Camps Bay and Khayelitsha are not level and this needs to be remedied as a matter of utmost urgency. (c) Victim's Compensation Fund 37. The state should, in conjunction with private insurance companies, facilitate some sort of victim's compensation fund for those who are financially needy and don't have insurance. Clearly, the victims of property crimes want their goods back: they expect the police to help them and when this doesn't occur they proceed on their own, sometimes using violent means. 11 XI References 1. Buur L. and Jensen S. (2004) 'Introduction: Vigilantism and the Policing of Everyday Life in South Africa', African Studies, 63, 2, Dec, 2004: 139-152. 2. De Klerk, J. (1999), Community Policing Forums - inducing vigilantism, Servamus. 3. Department of Safety and Security (1998), 'White Paper on Safety and Security. In the Service of Safety, 1998-2003, September. 4. Garland, D. (2010) Peculiar Institution: America's Death Penalty in an Age of Abolition, Cambridge, Massachusetts: Belknap Press of Harvard University Press. 5. H?efele, B. (2008) 'Vigilantism in the Western Cape', Department of Community Safety, Provincial Government Western Cape. 6. Hornberger, J. (2013) 'From General to Commissioner to General--On the Popular State of Policing in South Africa' Law & Social Inquiry, Volume 38 , Issue 3. 7. Huggins, M. (1991) 'Introduction : Vigilantism and the State - A Look South and North' in Vigilantism and the State in Modern Latin America, Essays on Extralegal Violence, Huggins, ed, New York, Westport, Connecticut, London: Praeger. 8. Judicial Inspectorate for Correctional Services, Annual Report for the period 1 April 2006-31 March http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202006.pdf (accessed on 16 April 2014). 12 2007, 9. Judicial Inspectorate for Correctional Services, Treatment of inmates and conditions 'Annual Report for 2010/2011. in correctional centres', http;//judicialinsp.pwv.gov.za/Annualreports/ (accessed on 20 September 2012). 10. Judicial Inspectorate for Correctional Services, Annual Report for the period 1 April 2012-31 March 2013, http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202012%20%202013.pdf (accessed on 15 April 2014). 11. Seekings, J. (2013), 'Economy, Society and Municipal Services in Khayelitsha, Report for the Commission of Inquiry into Allegations of Police Inefficiency in Khayelitsha and a Breakdown in Relations between the Community and the Police in Khayelitsha, Centre for Social Science Research, University of Cape Town. 12. Sekhonyane, M. and Louw, A. (2002) 'Monograph 72: Violent Justice, Vigilantism and the State`s Response', 1 April. 13. Tabane, R (2013) 'Brutality prevails when hope is lost', Mail & Guardian, November 814. 14. Tshehla, B. (2002), 'Non-State Justice in the Post Apartheid South Africa - A Scan of Khayelitsha, African Sociological Review, 6(2). 47-70. 13