COMMISSION OF INQUIRY INTO ALLEGATIONS OF POLICE INEFFICIENCY IN KHAYELITSHA AND A BREAKDOWN IN RELATIONS BETWEEN THE COMMUNITY AND POLICE IN KHAYELITSHA PHASE

TWO

Gail Super

Date: 16 May 2014 Source: Pages 7884 - 7922 of Commission transcr ipt

COM M I S S I O NER: Just for the legal represen tativ es and others pres ent jus t so that you kno w what we're working with in ter ms of our t imeframe for the morning our next witness will be Dr Gail Super and she will be led in chief f rom now until 11 : 05 then SAPS hav e as ked for 15 minu tes to put questions to her and the Commiss ion Enquiry hav e asked for 15 minutes to put questions with her so we'll start with the Commiss ion Enquiry and then go to to SAPS and that means we should f inish at just around about 11: 40 , we'll take a short morning adjournment then and then we'll have Mr Huxham who will be led in c hief for half an hour f rom 11 :50 to 12 : 20 something li ke that and then 15 minutes each for the L egal Resources Centre and SAPS start ing with the Legal Resources Centre and SAPS so we should f inish just before one when of course we will be mov ing to the City for the v ideo conferenc ing of our las t two witnesses in this phase of the proc eedings thank you very much Dr van Eyk. Dr Super are you present, thank yo u. W ho is going to be lead ing Advocate Super, Advocate Mayos i . I'll do the preliminary, welcome Dr Super thank you very much indeed for being here and for your r e p o r t which we've all had an opportunity to read. You are aware that the proceedings of the Co mmission are in public and th at your na me and testimon y ma y be made public both through the media and through the Co mmission's report? DR S U P E R: Yes.

COM M I S S I O NER: Do you hav e any objection to that?

DR S U P E R: No.

COM M I S S I O NER: No, in order to testify yo u need to be put under oath or aff irmation do you have a p reference?

DR S U P E R: I'll ta ke an aff i rmat ion.

GAI L S U P E R (affir ms)

COM M I S S I O NER: The acoust ics are not goo d so you might find that the earphones are helpful and i t 's also quite helpful i f you'd speak as c los e to your microphone as you can thank you very much. Advocate Mayosi?

EXA M I N A T I O N BY M S M A Y O SI

MS M A Y O S I: Dr Super you submit ted a report to the Commission a we ek or two ago i s that r ight?

DR S U P E R: Tha t 's correct .

MS M A Y O S I: You als o submitted your CV to the Commiss ion?

DR S U P E R: Tha t 's correct .

MS M A Y O S I: Do you conf irm the correc tn ess of the contents of your CV? DR S U P E R: Yes .

MS MAY O S I: Right, in your report you wish to speak to your report and present i t in terms of the documenta ry you have prepared is that r ight? DR S U P E R: Yes .

MS M A Y O S I: Perhaps just to start you off on the topic at hand you do say in your report that according to mainstream discourse v ig i lantism is caus ed by police ineff ic iency and a wea k c r iminal justice sys tem. Can you just explain to the Co mmission why you s ay that and what your own v iews are as to the causes of v igi lantism? DR S U P E R: A mains tream dis course pres ents v igi lantes asfunct ioning in opposition to the formal criminal justice system and as const i tut ing a threat to the rule of law. I think i t 's impor tant to understand that this explanat ion is partial a nd that it narrows down the debate cons iderably. The logical outcome of a more eff ic ient criminal justice system with the focus on increased arrests, increased prosec ution rates and fewer releases on bail will be high rates of imprisonment and pre- trial detent ion. From the outset I hav e to say that I don't think that widespread impris onment is going to solve our crime proble ms i t 's actually going to create more.

COM M I S S I O NER: But presumably yo u 're not s aying tha t being killed at the hands of v igilantes is a better outcome? DR S U P E R: No not at all I'm defin i te ly not saying that.

COM M I S S I O NER: It wasn't entirely c lear to me from your report so i t 's a question I wanted to put to you.

DR S UPE R: Sorry yes, perhaps I could embroider on that by stating that wh y i t 's a pa rt ial ex planation because there are man y other explanat ions that also need to be c onsidered and hopeful ly I'll raise some of those issues in this presentat ion.

MS MAY O S I: Before you c ontinue i f I ma y just ask for yo ur comment on something that Profess or Gobodo Madikizela about the caus es of the v ig i lant ism that she observed or heard about in Khayel i tsha. She too I th ink l i ke you say in your report says that i t 's a co mplex problem and to say that i t ’s merely caused by police ineff ic iency and by that alone is perhaps over- s impl is t ic and i t's not acknowledging the broader complex i ty of the social circums tances of bo th the perpetrators and the v ic t ims. She spoke at length to the Commission about the trauma of the condit ions that communities such as Khayel i tsha experience l iv ing in those communities and l inked to that the humiliation and how this could perhaps spark off or tr igger reactions s uch as the mo b v iolence or v igilante reac ti ons. W hat is your comment t o those v iews of hers as being part of the cause of i t? DR S U P E R: Yes I 'm not a psychologis t but I do agree with her I mean I think def in i te ly the marginal isat ion that res idents in Khayel i tsha experience both in terms of the state and in terms of their t reatment by the police, in terms o f their socio- economic c i rcums tances i t all has to be taken into account so clearly v ig i lant ism does speak to the l imits of state power and in th is sense one could include police ineffic iency as being one of the cause but i t 's not all that i t speaks to. There are other factors such as the ma cro struc tural conditions such as inequal i ty which I thin k is really pretty one of the most impor tant factors. Then the extent of popular sovereignty his tor ical ly speaking, the power struggles between various local ac tors that are taking pla ce, the levels of v io lence and the presence of Dav id Garland refers to as 'desp ised low status outs iders '. In this case here we could refer to people who are ou t on bail, ex- pr isoners , foreigners and those who have been accused of criminality, whether they've been caught in the act or whether they're just suspected. So I think all of these go into the contex t of f raming what caus es i t . I'll start out by talking about what is v ig i lant ism. Now it ’s not easy to define and I'm not going to actually attempt to do so here suffice to say that the Co mmission has heard various terms, you've heard bundu courts , mob justice, kangaroo courts, instant justice, informal jus t ice, people's justice etc., etc. Martha Huggens a Brazil ian wo man she refers to a 'v ig i lant ism cont inuum’ which ranges from an informal pole whic h would be very spontaneous less internal ly organised and with only indirec t state involvement and that would be the spontaneous acts of mob justice to a formal pole which includes extra - legal v iolence by on duty police which unfortunately we also hav e seen here. I think that this def in i t ion can be fles hed out by looking at s o-called c ommunit y based crime prevent ion practices and where they f i t

into this. So there is a whole host of punitive practices for dealing with crime and deviants in Khayelit sha that don't ma ke the front pages of the Cape Times or fo r that matter raise any eyebrows whatsoever. For examp le smacking which is also referred to as 'massaging' is acc epted across th e board and regarded as a legit imate form of d isc ipl ine. Mr Giles from the VPUU tes ti fied that a neighbourh ood watc h had reported that its me mbers had made a pers on who s prayed them with water do 36 push- ups for punishment. On another occasion the me mbers had seen some men carrying big s to nes, they had enquired as to the reason and I'm now quoting 'the people started swear ing and shouting at us and throwing stones at us. We s tarted throwing stones back at them X fell down we called the van to check on him'. So there are many forms of punishment that pla y o ut in multip le spaces and on man y lev els so the line between what i s legit imate and what is i l legi t imate becomes very blur red and indistinc t and easy to cross.

COM M I S S I O NER: Just to pause there I mean ho w blurred actually is i t in our const i tut ional frame work i t 's a crime to assault a nybody and an assault is a very mild form. I unders tand that there may be people who don't think i t should be a crime and who don't believe i t but certainly from a legal pers pective is i t very blurred? DR S UPE R: It 's not blurred from a legal perspect ive but the proble m is that the law, the wa y the law operates in practice is completely di fferent to what i t is in the const i tut ional frame work and i t 's this gap that I 'm r eally sort of interes ted in explaining. Wh at is the law down on the ground in Khayelitsha and why is i t so di fferent to what's in the Const i tut ion. To giv e ano ther examp le Colonel Nel at page 4635 of the rec ord he tes ti fied that apart f rom mob justic e incidents he kne w about formal meetings which had resulted in a decision to evict people from their homes due to a crime. As he puts i t: ‘It might be a child molestat ion case or i t might be housebreaking cas es where formal meetings have taken place but none o f these were accompanied by violence. These people were just mot ivated to leav e which they then did’. Clearly, a l though there might not be ov ert v iolence there i s a form of coerc ion, there's a subtle or implicit threat of v iolence that will occur s hould the person not leav e voluntar i ly. This is very cle ar in Mr Simelela's ev idence where he tells Advocate Masuku that: ‘The bo ys who allegedly s tole his niece's money, leather jacket and cell phone got into the car voluntar i ly because they were asking us not to assault them saying that their parents were going to pay back the money'.

Similarly No ma khuma Bontshi tes t i f ied how when the communit y had called her to a meeting demand ing tha t her nephew leave the area due to alleged c r iminality the family didn't arg ue and they didn't think of any other options 'our ma in concern was his safety'. So in this way the notion of violence is actually narrowed down c ons iderably to only include those so- called s pontaneous acts of mob jus t ice. I'm saying this is what Colonel Nel did when he s aid there was no violence involved. I a m not going to discuss the blurred boundar ies . During my res earc h I came ' the blurred boundar ies between what is mob and what is the lawful la w abiding c ommunit y and the legal and the i l legal. I came across man y var iat ions o n them that i t is the mob which kil ls we can't stop the commu nity so we run away. W hereas the street communities have 15 me mbers the communit y me mbers 600 and that's why we say communit y and not committee. If you leave the community you can't not agree to a decision b ecause the commu nity is strong er than the commit tee. Y o u k n o w t h e community the y beat him, we t r ied to say you can beat but you can't kill so those are various things . What exactly do we mean when we refer to c ommunit y? In one sense I think the term f u nctions as a distancing technique with specif ic people i.e. indiv iduals being subsumed under the group rubric. Members of neighbourhood watches and street commit tees may be or ma y have been the very same people who become part of a mob the point is that neither the mob nor the community are f ixed concepts they are ( indis tinc t) between the way the terms are deplo yed. Because of this I argue that ac tually the term 'co mmu nity' is contested an d i t 's a c ontested s ide but i t 's referred to by NGOs and the s tate as if it is s ome pre- existing objective entity. So the evidence by Mr Busakwe the chair of the Harare CPF in answer to a question by Adv ocate Bawa about who the me mbers of the CPF were he stated 'it 's SANCO, polit ical parties and NGOs'. What about ordinary residents in Khayel i tsha? Let us pause for a mo ment to reflect on the v ery term ' community' and ‘community police forum' what do we ac tua l ly mean?

On of the people that I spoke to wa s a me mber of th ree diffe rent committees all with varying relat ionships to the s tate. The one was a loc al neig hbourhood watch, then i t was a communit y patrol group and the Khayelitsha Community Police Forum. He had also been a par t ic ipant in the demolit ion of th ree houses in an informal settlement after a decision to this effect was taken at a general council of street committees. And then to quote f rom Gen Mlenga's testimony: ‘Mob justice occurs when the respectable person that was arres t ing this person was overwhelmed b y some other groups around, and wh en we t rack i t down, we f ind that no, man, there a re other skollies taking adv antage a nd ki l ling the people. So I

would say the reason is that other skoll ies were taking advantage of the s i tu ation'.

So, in other words , the law abiding affect the rest and the skollie or criminal perpetrate the mu rder. This binary between law- abiding, respectful c i tizen and the skoll ie is a common theme which then leads the police to blame vigilantism on pure criminality. This has happened in certain instances. But there is no such thing as pure c r iminal i ty; there's a contex t to all of this. It's not it 's also not always c lear what the State looks like, nor who it 's agents are, s o when the Depar tment of Co mmunit y Safety offers pre- training to neighbourhood watch me mbers as condit ion for donations o f equipment, then i t seems, at least to outsiders , as i f the neighbourhood watches have some kind of formal off ic ia l status. And when volunteers wear coloured bibs, you kno w, th e same happens. Their work is somehow formal ised. Tshela descr ibes h ow, when she was the Secretary 'no ' in her research, she describes how the secretary of the Khayel i tsha CPF, when sh e was robbed, she mobil ised people to go and find her stolen property. She found i t. W hen the suspects were granted bail, she then took i t upon herself to mobil ise the chairperson of the CPF to go and put a lot of pressure on the prosecutor to get the inv estigating officer ( indis t inc t) this in fact happened and the bail was revo ked. She also her research als o revealed that the Khayel i tsha CPF ran formal neighbourhood watches, but then Mr Sali s ays that in those instances where the CPF isn't well organised, then the community will just run neighbourhood watches . And this is what I mean about the blurred l ines. But also, unless one is aware of the local polit ics and the intr icac ies of the bureaucrat ic adminis tration , i t 's going to be di ff icul t to distinguish what is State sanctioned and what isn’t. And in this case the sec retary of the Khayel i tsha CPF was empo wered to go and get b ail revoked, and she got her s tuff back. But most people don't have that form of power.

Oka y. Now I want to talk about police complic i ty. The polic e have admitted that they tacit ly commit v iolent communit y- based ordering processes. See for example, the de Koc k report, whic h referred to taxi assoc iat ion as being in contro l of v ig i lante ac tions, and that everyone, including the police, was very happy with the decrease in crime. This was after the Taxi Association had impos ed an informal curfew. Now, a l though this was admitted in the context of what happened s ix or seven years ago, police compl ic i ty is sti l l evident. Ms Mayosi, during her cross- examination of Dr Gi l lespie, stated that a SAPS Colonel bas ed at Site B had said that they didn't regard a partic

ular taxi rank as a hot spot, partly bec ause the taxis maintained the law. So i t 's not an a bsence o f law that we're seeing, but i t ’s law reconf igures with lit tle bits of formalit y and infor malit y happening together and reinforc ing each other. To get more examples, the school pr inc ipal, Mr Mjononondwana who testif ied in January, stated that the police had s een him, driv ing out of the school grounds with suspects in the back of his bakkie in order for them to show him wh ere the goods were. They hadn't made an effort to charge the suspects or to arrest them. The y kne w that he was taking them, you kno w, to f ind the goods. And in another case the police advised a school principal to go to the suspect 's house to see i f the s tolen i tem, which was a stove , was actually there. And, you know, the Affidav i t is to the effect, well, I ac tual ly went to the Taxi Association instead because I was so frustrated I wanted ' you know, we wanted our stove back. MS MAY O S I: Dr Super, s orry to disturb your stride, but in this issue of police complic i ty, what do yo u ma ke of the ev idence of Magnus Persson ' you kno w, he's the Norwegian intern who witnessed what appeared to him to be a v igilan te attack. DR S U P E R: Yes.

MS MAY O S I : Ja.

DR S UPE R: W ell, that's you know, that's another sort-of more expl ic i t example where the police were actually there. They were ' I think they were hav ing lunc h in the restaurant and, you kno w, the y jus t ignored i t. They ignored what was going on.

COM M I S S I O NER:So yes, the n I'm going to just I mean, I found i t very interest ing, what you ha d to say. I was less c lear as to ' you obv ious ly propose d further research and, I mean, we unders tand the power's ve ry layered, as i t's actually multi-d irec t ional, although overall the overa l l direction of power ma y be in one way. All s orts of d i fferent agencies exercise power. You made the point about the CPFs and so on. But wha t was missing to me is some c larity about where you should go what the Commiss ion s hould do about i t . And, I mean, to me, all of what you s ay is correct but what mostly concerns me is that effec t ively, by and large, young black men are being killed and completely d isproport ionately, v ery often, for committing petty crime which , rea l ly, we would never tolerate in the formal legal system, and I think there nee ds to be a very c lear me ssage about that from S APS. There needs to be c lea r message about that from this Commiss ion, that is 'it may be v ery diff icult to operat ional ise on the ground , but it doesn't mean that the message shouldn't be

absolutely c lear. And that didn't come out of your report, and I'd be interested in your response.

DR S U P E R: No I can't speak with t hese on!

COM M I S S I O NER: Ja.

DR S UPE R: I totally agree with you. I'm sorry that i t didn’t come in my report ( intervent ion) .

COM M I S S I O NER: No, no, no, I'm n ot c r i t ic is ing you , but I’m just wanting to make sure that you do agre e. DR S U P E R: No, I totally agree with you, and I think that the proble m is that actually punitive responses have been encouraged at all levels. I'm going t o get to this you kno w, I was going to get to this. So you'll have pol i t ic ians, basically, totally other end c r iminals , and I've got a whole lot of quotes whic h I, you kno w, I c an tell you i f you want me to. And the way ja. So criminalit y in its elf is is , ja. You kno w what I 'm saying? COM M I S S I O NER: I didn't meant to stop you halfwa y through. Plea se please don't feel that you can't continue in your train. I had read what you had s ent to us , which is very much what you've said, which is very interest ing. But, please, don't let me interrupt you. DR S U P E R: Just let me say one mo re th ing, though, because also i t seems f rom court cases that there seems to be a lot of unders tanding about v igi lantism because of high level crimes. Now, what you've said, i t 's coming f rom the opposite way, that it 's young men who are actually the perpetrators . So I thin k ev en the courts made this kind of excuse, thinking well, we won't giv e you a prison s ente nce ' and I 'm not saying that I agree with prison sentenc es ' but i t 's because of, oh, there's high level crime lev els in Khayel i tsha, so i t someho w excuses this. Oka y. I'll cont inue now.

There's a widely held percept ion that the police should (a) retrieve the stolen goods , and ( b) that they should punish. This

results in a sense o f fu ti l i ty insofar as i t 's pointless to report incidents, because they're not going to be able to retrieve the stolen goods.

The difference between the well- off and the poor is that the well- off hav e insurance. So the poor have greater expectat ions regarding the police, a nd thes e aren't fulf i l led. Often the expectat ion is that the police will mediate between the parties to retr ieve stolen goods. So, for example, the cousin of a murder v ic tim ' in fac t, it was an incident of v ig i lant ism ' he contacted the the specif ic expectat ion that the investigating off icer

would ask the accused to pay for th e funeral costs . And the wo man whose mode m had been stolen approached the polic e to accompan y her to fetch i t . And this is all in the reductive communit y s tatements , and I've referred to it in my repor t . So in this sense the police are called upon to resolve disputes that aren't, s tr ic t ly speaking, within their domain.

And then, s imilarly, with police being released on bail, there's ' there's not an acceptance or unders tanding of the fact that suspects can't be held in p re- trial detention indef in i te ly. And i f you loo k at the Bundu Courts' reports you'll see that there were 10 out of 78 who had actually either been released on bail or were ex- prisoners . And I think th at's quite a substant ia l minority, those people ' you know, that the v ic t im profiles that the police started doing on v ictims of v igilantis m. Another thing is , there's a constant call for visible patrols or v is ible policing. But i t seems that this actually receiv ing attention f rom the police. If you lo ok at the Lingelethu W est Per formance Plan of 2010 to 2011 , i t l ists outputs as being wee kly operat ions agains t shebeens. Zero tolerance approaches to crimes such as being drunk in public, urinating in public, and abuse of language. And this is ' this is a discourse that's been imported from A merica, the whole zero toleranc e, broken window s tory, that i f we crack down on the petty crimes , then the bigger crimes won't happen. But i t 's also quite a problematic it ’s been heavily c r i t iqued there. And i t 's also often blamed for displac ing c r ime onto other ' onto other areas. So are you really going to s aturate completely. Oka y. So I just want to talk about watering down social crime prevent ion v ia the notion of partnership policing. In 1998 , SAPS, in l ine with the National Crime Prev ention Strategy, defined social crime prev ention as aimed at reduc ing the s ocio- economic and env ironmental factors conducive to cr iminal i ty through the targeting of par t icular causal factors conducive to crime. The idea was to focus on improv ing socio-economic condit ions, and thereby address root causes of crime. This lofty ideal has been cons iderably watered down. SAPS today conf lates social crime prevent ion with v is ible policing, v ic t im s upport, a nd domestic v iolenc e in i t iat ives, Co mmunit y Police Fora, and even mobi l is ing the community to oppose bail. So once again to refer to the L ingelethu W est Per formance Plan 2010 /2 011 , page 10 , mobi l is ing the communit y to oppose bail is regarded as a form of ' an o utput of social crime prevent ion.

So, in ess ence, soc ial crime prev ention is presented as l ia is ing with the community, maintaining partnership with the communit y. Ev en the VPUU's Social Crime Prevent ion Projec t was init ial ly called the

Neighbourhood W atch Coordination . Now, SAPS also consis tently argues that i t 's socio- economic hurdles whic h are the biggest problem to pol ic ing in Khayel i tsha, and that these are out of their control a nd that i t 's not the duty of the police to improv e soc io- economic condit ions.

So I think this is a bit of ' although there is some t ruth in this, and I think i t's als o quite a pol i t ical explanation, because espec ial ly in terms of the Province here where the allegation is, well, actually i t 's not us; you mu st f ix th e toilets. It 's the Prov ince. But I think i t 's dangerous. And the call is also on for the c ommunit y to take more respons ibi l i ty to combat crime and for moral regeneratio n. So in this sense the State, and here I'm inc luding both SAPS and DOCS, is complic i t , because on the one hand i t calls for the commu nity to take respons ibi l i ty for combating crime, and on the other i t adopts a punitiv e rhetoric towards crime and c r iminals . I'm not going to go into this, what exactly it s ays, but if you want me to I will. I think I 'll ac tually f inish th ere ( intervent ion).

COM M I S S I O NER: W e 're actually short of t ime. And there’s one thing that I thought was v ery interest ing thinking, not I think ' probably beyond our terms o f refe rence , but i t 's really this focus on what the community wa nts is to ge t their property back, and in commu nities that hav e v ery l i t tle property, property is terribly important. And your s uggestion is this idea of some sort of national insurance plan which is a possibil i ty, but I als o wondered whether we ought to be rethinking about the way in which we police property crime. I mean, we had the benefit of seeing exhibit stores in the three police s tations when we did the the places where exhibits are s to red in the three police s tat ions, which are f i l led with a v ariety of forms of property whic h probably were quite prec ious to whoever lost them for the exhibit store purpose. And I wondered i f we shouldn't be rethinking this . Is th ere any reason why, i f i t 's very important to me mbers of the communit y that they need their stolen cellphone bac k, i f it is rec overed by the polic e, why it has to go into a n exhibit store for 12 years and then be destro yed? And I hav en't looked at the International practice on this, but I can't imagine that this is n 't an issue in poor commu nities around the world. Hav e you thought about ' I mean, i t 's often that SAPS don't recover the i tems so, yo u kno w, that isn't ' bu t cer tain ly we saw an awful lot of recov ered i tems and I can't really think of what the ev idential v alue of actually seeing the cel lphone o r the television is in a cour troom as an exhibit. I mean, i f the SAPS off icer comes and along and testif ies we recovered the telev is ion; this was the serial number, i t c learly was , and we returned i t to the compla inant, wh y does the Court need to see the telev is ion?

DR S U P E R: I haven’t yes . I haven't actually thought of i t, but I totally agree with you. It 's great ' maybe, you kno w, ma ybe that really should be a rec ommendation, to change that. COM M I S S I O NER: Ja. MS MAY O S I: W hat further rec omme ndations do you hav e , Dr Super, regarding the problems that you've iden ti f ied?

DR S U P E R: W ell, I thin k that there needs to be a lot of furthe r res earch to be c onducted by the Department of Communit y Safety in combinat ion with SAPS about what is really going on in the realm of crime preven tion and punis hment in Khayel i tsha, and in o ther marginal ised co mmunities. And I've raised various questions ' for example , what are the mic ro power structures that operate? How do street committees operate? W hat are the governance structures? Who are the communit y leaders? What is the re lat ionship between vigilante mobs and communit ies? In other words, what are the dyna mics between the State and s ocial organisat ional s tructures, between v arious local organisat ions and between various Govern ment agencies, local, v ig i lant ism, because I think, you kn ow, we're ma king policy without ac tual ly preceding i t by really looking at the nitty gritty. Then i t 's never going to really do anything. COM M I S S I O NER: It 's a there's a paradox here, becaus e in one level the State is very present in Khayel i tsha, but on another level one has a sense that in fact the State has penetrated very l i t t le, so that there are systems of author i ty and polit ical control which are comp letely outs ide of the democratic polit ics of the day. And mainly that is a t rans it ional proc ess, maybe that is s omething that just takes t ime in a sense for the inevitable logic, one imagines, or one hopes, perhaps, of democratic pol i t ics , will actually root i tself. But I do thin k we kno w relativ ely l i t t le about this paradox between a pretty apparent penetration, but actually a lot of the things we've seen in the Commis sion s uggests paral le l , much less visible, sys tems of control whic h we don’t really unders tand, and I imagine SAP S doe sn 't entire unders tan d but has to accommoda te in the wa y in which they police Khayel i tsha. DR S U P E R: Yes. I absolutely agree with you. I mean, I really do think that inequal i ty is kind- of the elephants in the room, you kno w, that that can explain a lot of ' a lot of what's going on. Unfor tunately, the Commiss ion's terms of reference are too narrow to, you kno w, ma ke recommendat ions about that. Ja. And then I only had two more recommendat ions, and the one was resource allocation which ' well, which I just kind- of referred to. I mean, i t's ' you kno w Jean Redpath 's evidence sort- of spoke to that. And then the last thing wa s the Victims Compensat ion Fund which you also…

COM M I S S I O NER: Pres umably you’re not aware of any internat ional ex amples of this? DR S U P E R: You know, v aguely I mig ht have heard. I hav en’t actually applied myself to looking into i t. But, I mean, I just think i f we're talking about a whole of society approach, and these insurance c ompanies that are getting such high premiu ms ev ery month for s omebody you know, l ike, ho w man y t imes, i f you've got an insurance c laim, how many t imes you ac tual ly c laim. I really d o think that the insurance companies should actually be called to account here and, you kno w, to put a l i tt le bit o f mon ey ' or ma ybe not a l i t t le bit, but, l ike ' and also one could 'the insura nce premiu ms of people l iv ing in, l ike, r ic her, well- off areas can be loade d a l i t t le bit, spec if ical ly to go to that. I mean, I don't kno w, i t might be idealistic.

COM M I S S I O NER: It 's cer tainly o ut of the box thinking, which would require a l i t t le further examination before i t was adopted'But out of the box thinking is always good. Thank you v ery much. NO F U RTH E R Q U E S T I O N S B Y M S M A YOS I COM M I S S I O NER: Mr Sida ki, ha ve you got questions here? MR S I D A K I: Thank you, Mada m Chair.

CRO S S - EXAMI N A T I O N B Y M R S I D AKI: Dr Super, just what i f , you've mentioned about you say they needs to be further rese arch on Khayelitsha and that seems to be the c ase, that there seems to be a need to unders tand exactly what causes v ig i lant ism an d all the c ircumstances that lead to i t , and i t seems l ike i t 's a phenomenon that's not so well understood.

DR S U P E R: Yes. Yes, I totally agree with you. And also not only is i t a phenomenon that's not so well unders tood, but we don't even really kno w what i t is , so that’s in my report I refer to Buur and Jensen, who talk about v igi lante prac tices as opposed to v ig i lant ism as being this , like, thing , that we kno w what i t is .

MR S I D A K I: Yes. And, I mean, t he firs t misunders tanding about what is happening in Khayel i tsha seems to be on the one hand the police who tes ti f ied before the Commission seemed to believ e that a lot of these attacks are, you kno w, borne out of jus t spontaneous reac tions, yet the Commission has received quite a lot of ev idence suggest ing that there seems to be certain in certain quotas of Khayel i tsha proc esses that lead to, you know, people being dealt with extra- judic ia l ly. DR S UPE R: Yes. I defin i te ly don't agree with the notion of spontaneity. I think, you kno w, that really does need to be looked at. So when you talk about that ev idence, tha t's really important, and ma ybe i t is also a ma tter o f police intel l igence doing a better job to actually get at ' you kno w, well, what a re these, l ike, commonalit ies . I also think that, you know, ev en when there's a spontaneous outburst of mob justice, i t 's been shap ed by, you kno w what's happened down the l ine, which we don't kno w about either. MR S I D A K I: And of course you had a look at the Bundu Court report that was compiled by the Khayelits ha Clus ter Co mmander. W hat was your take on that report? DR S U P E R: I thought i t was interesting that the deceased is getting profi led. You kno w, I 'm k ind- of always interested in, like, what's going into the s tat is t ics . So in this case ' half wa y through the report, they started l isting attributes of the dece ased, l ike the person had a huge charge sheet against him so, you kno w ' so I thought that that was very

in terest ing. And as I mentioned in my testimony, that 10 out of the 78 cases were, you know, were out on bail, or they had or they had they'd been released 'they were ex- prisoners . I think there's a lot of s t igmat isat ion that takes place. And then the other thing is that they were all predominant ly young men between th e ages of 18 and 30 who had been either c aught in the ac t of committing proper ty crimes ' you know, this is ' Jeremy Seekings mentioned in his report this whole thing on ' there's a b ig discrepa ncy between Khayel i tsha and other areas in Cape Town in ter ms of property crimes, part icular ly about fa i lure to report to the police. Other things do get reported to the polic e #

MR S I D A K I: Yes. DR S U P E R: But i t 's these property crimes that don't and, you kno w, that's really a ref lec t ion on the impor tance of property when you're a poor person and you've got nothing, and you save, you kno w, forev er to buy your TV and you're sti l l paying it on a credit agreement and then it's stolen. MR S I D A K I: And c ertainly this profi l ing of the deceas ed in the this profi l ing of the deceased in the Bundu Court report, i t seems, as you s ay, i t sort- of puts a stigma to the person that was ki l led as i f , you know, he was to blame for what happened to him. DR S U P E R: W ell, I think there definitely is an element of that. There's a big element of that, a nd that's coming f rom all ov er. But I thin k ma ybe i f that intel l igence was used to sort- of have some kind of, I don't know, protect ion of people who are out on bail. You kno w, i t 's kin d- of bizarre that the Criminal Procedure Ac t, the bail prov is ions, ac tua l ly prov ide that in certain instances a perso n won't be released on bail due to the reac ti on of the communit y. Ja I could go on about that, but I won’t. MR S I D A K I: And, of c ourse, there's the thre e policing precincts of Khayel i tsha, Khayel i tsha, Lingelethu W es t and Harare. And i t seems most of these v igi lante activit ies seem to come from part icular ly the one precinct, being Harare. Is i t something that you noticed? And what was your take on that? DR S UPE R: That is interest ing. I hav en't really kind- of, l ike, noticed that. I did see that Lingelethu W est se ems to be doing oka y. But what I did notice in my research, i t se ems that often someone will be hounded f rom one area to another area and will, i f there is a kil l ing, the ki l l ing will take place in that area and then the community me mbers will s ay, well, i t wasn't us who kil led him; i t was people f rom outsid e. So ja. I don't know i f but I suppose i t would s ti l l be within the same police prec inc t , because they won't be chased for a long time. MR S I D A K I: Yes. And, again, getting to, you kno w, fo r the la w enforc

ement authorit ies in Khayel i tsha, getting to really apprec iate and understand the ex tent of the problem, you kno w, the Commiss ion went on an inspection in loco and i t also came out in the ev idenc e of Professor Go bodo- Madikizela yesterday about an open f ield in the Macassar area where i t is kno wn that that is where, you know, v igilante kil l ings take place. And there are ' there are tyres that are lying on the fringes , or in some instanc es in the middle of the field. And yet n othing seems to be done about i t . The field is there, the tyres are sti l l there ' if you go there now you'll probably sti l l find them. And there seems to be no action being taken to diminis h th e opportunity of another v igilante kill ing take place on that same field. Yo ur comment on that?

DR S U P E R: Right, well, you kno w, i t could be tha t i f the police if there's a strong police presence in that f ield then i t will ta ke place on another open f ield, but I do agree with you that i f this field is being used or is this the 'kil l ing fi eld'? i t ’s in Macassar, not in Enkanini? MR S I D A K I: Yes. Yes, that's i t that's the one.

DR S U P E R: Oka y, I've been to one in Enkanini where people were kil led there.

MR S I D A K I: Yes. And so what would be your recommendat ions as to what should be done to minimise the oppor tunity for these acts of vigilantism taking plac e. DR S U P E R: That's a really di ff icul t question, and i t 's complex. I'm not s ure I can answer i t. Obv ious ly, the easy answer, and i t certain ly is an answe r, and i t is one ' it's an action that should be taken, i t 's well, then you should hav e police ' better police intell igence about these so- called 'about these so- called spontaneous inc idents , and ' well, I suppose having people at the f ield, you don't know I mean, i f is there ev idenc e that it happens between certain t imes of the day, at certain t imes of the day? I don't know. I think Ms Mayosi told me that there was that kind of ev idence. Then i t c ould be at certain t imes of the day. But I do sti l l think that i t 's really a much broader and more complex thing, so one should really look at this whole host of v iolent practices for dealing with crime in the communit y, not just when i t e rupts as, you know, as a spontaneous mob kil l ing. MR S I D A K I: And cer tainly, I mean, you need ult imately you need the community me mbers to hav e enough courage and trust in the police to hand ove r whoever they sus pect of crime, ov er to the po l ice and not take the law into their hands. I suppose that would be the ultimate goal. DR S U P E R: W ell, that would obv iously be one factor.

MR S I D A K I: Yes.

DR S U P E R: But then, of cours e, i t 's also, l ike, well, how are they going to get the i r stolen goods b ack, because I thin k that's, l ike, a major thing, is that violence in the retr ieval of stolen goods.

MR S I D A K I: Than k you. Thank you ma 'am, thank you Mada m Chair. Nothing further. NO F U RTH E R Q U ESTI O N S B Y M R S I D AKI

COM M I S S I O NER: Than k you, Mr Sidaki. Adv ocate Arendse?

MR A R E N D S E: Mada m Chair, to the extent that we've engaged on this topic quite ex tens ively and quite r ightly, given the importance of the topic and the terms o f reference of the Commiss ion so I'm not going to dwell on that too much. CRO S S - EXAMI N A T I O N B Y M R AREND SE:

Dr Super, are we ever g oing to address this issue of v ig i lant ism which you also accept is a complex topic? Are we ev er going to address that, when, at the end of the day, our society, ie wh ere people l ive and get together and c o-habit and so on is sti l l based on an Apartheid construct? You have we stil l hav e group areas. Th e majority of our people sti l l l iv e in the Homelands, former Homelands, and migrate to the c i ties. We know how Khayel i tsha has gro wn exponent ia l ly ov er ten, fifteen years, when people are thrown together under the conditions that they have to l iv e in. Is i t going to help to come up with these theories? DR S U P E R: Sorry which theories?

MR A R E N D S E: Theories of wh y acts of v igi lantism ta ke place. Why we can't trans form our cricket teams and our soccer teams when , at the end of the day, you know, i t 's a question of where people l ive, i t 's a question of fac i l i t ies , and i t 's a question of access. Are thos e not the fundamental iss ues that one must address? DR S U P E R: W ell, i t 's very complex . It 's complex . I think one can address many issues, maybe not a l l by the same by the same players, but I think i t 's kind- of d is ingenuous to say, well, we can't do anything until we've solved these broader macro-societal problems. I thin k that's a bit of cop- out really, ev en though I 'm not arguing with you I 'm n ot d isput ing the fact that we have ( interve ntion). MR A R E N D S E: I kno w, I'm acting for the cops, but I'm not copping out! The police during this enq uiry and with me and my col league, Adv ocate Masuku, who's not here, that that's never ever been the approach, that the police must not take some respons ibi l i ty. The approach has bee n that the police cannot take sole res pons ibi l i ty. And I thin k you accept that. Yesterday Prof Gobodo- Madikizele accepted that, and I thin k i t 's the right approach. It 's a complex issue. And we accept that.

The police here in Khayelitsha have accepted that there are s hortcomings that they themselves have iden tif ied, and they need to improv e their policing to perhaps assis t in f ighting this scourge. But we kn ow that, even as the Commiss ion is s i t ti ng, i t 's sti l l happening. One would hav e thought now that the you kno w, the focus is here on Khayel i tsha and i t 's on the Co mmission, you know like with the W orld Cup where there was a reduct ion in crime becaus e ev erybody was watching footba l l , even the robbers and the cr iminals . All watching footba l l . And there was more intell igenc e, etc . One would have thought that at least for this period of the s i t ting of the Commission since the beginning of this year that at least crime would abate and acts of v igi lantism c ertainly would either abate or just not take place at all . But i t sti l l has. How do you explain that? DR S UPE R: I'm not quite sure why one would have thought that just by v i rtue of the fact that a Co mmission is s itt ing in a room in Look- out Hill that people sort- of l iv ing in the marginal ised area would feel that all that their problems are going to be s olved. MR A R E N D S E: Exactly. Exactly. Because i f one ' because the terms of reference of the Commis s ion is about the ineffic iency of the police, s o one wo uld have thought that me mbers of the communit y would say i t 's being addressed, it's in the newsp aper every day; every day, every second day, there's headlines in the Cape Times and other newspapers about the police. So, you kno w, i f that is the cause of the problem, i t is now being addressed, and we are hopeful that the Commission will come with recommendat ions to a ddress the problem. That's what I mean. DR S U P E R: Yes. I don't think ( intervent ion) .

MR A R E N D S E: But your answer suggests that there's a bigger problem than that. DR S UPE R:Yes. I don't think yo u know, I do n 't think that anybody's arguing that the police are the sole cause police ineff ic iency is the sole cause of v igi lant ism. But I think, you kno w, there has been a lot of tes timony giv en at the Co mmission about ineff ic iency on the s ide of the police, and so ' and I guess you've also admitte d you ' you kno w, you've said our cl ients accept that we c ould improv e ours elves. And so i t 's just that l i t t le s mall you know, that l i t t le s mall bit. But obv iously, as you yes, you're correct , i t 's a ve ry complex issue. MR A R E N D S E: Polic e ineff ic iency is a contributory factor, l ike i t is in any society. But, I mean, th at’s just scratching the surface. There is one piec e of ev idence which suggests, or which sh ows unfortunately I could never through my instruc tions identify the police officers involved 'but the ev idence of what's his name # the ev idence of Persson, that's the o nly evidence where which sugges ts that the po l ice just stood by and did nothing. A lot of the other evidence is ' like the example that was quoted yesterday by Prof Gobodo- Madikizela, was just a spontaneous inc ident where people ran out of a house, shouted s omeone had snatched at bag and i t happened. How can i t physically be poss ible for the police to be there? DR S UPE R: I thin k in the Hen dricks case there was an other bit of testimony giv en about how the police had - had an opportunity to do something but then hadn't, and I don 't have the record in front of me; ma ybe yo u do. You could go back and look at that. But, I mean, my argument is a lso tha t there's police complic i ty. That doesn't necess arily mean ' the most obvious case would be the Norwegian guy's evidence, the most obvious case where the police were in the res taurant and they just sort- of let i t happen. But in other cases where they have sort-of see n the people in the back of the school princ ipal's bakkie and let him drive off. I mean, that c ould open up the potential for v iolence and ' I've heard anecdotally that police actually have set v ig i lant ism because i t helps ' it helps them do a better job. But also, even de Kock, in his report, talks about tha t. And then the SAPS Colonel that I referred to in my ev idence, he says, well, the Taxi ' the Taxi Assoc iat ion is doing a good job of maintaining the law ' maintaining the law at the taxi rank. Those are instances of police comp l ic i ty that I believe are highly problemat ic . I mean, I can see why ' I can see wh y it happe ns, I can understand it because, you know, i t 's d i ff icult to kind- of polic e all ov er wh en you've got such unequal res ources and no c ars, etc, etc, etc. But I think i t opens up the potent ia l for

danger. So i t's not just the sort- of grossly obv ious s i tuation of where ' there's a person being burnt to death and I'm a police officer in my vehic le and I 'm eating my sandwich. You kno w, that might be an outl ier, but there's other #

MR A R E N D S E: Yes, there are others, and even Advocate Sida ki 's suggest ion that ' or his statement that there's a spot that is well kno wn or notorious for v igilante kil l ings taking place, dubbed the Kil l ing Fields. Is he suggest ing to you I can't recall what your answer is that somehow i f the police are s tat ioned there that i t 's go ing to stop i t? DR S UPE R: Look, I'm not really sure about that. I haven't you know, I hav en't sort of researched that intens ity like ho w often do inc idents happen at that part icular field, what times do they happen, what is the intel l igence. So I can’t answe r I can't give an answer to that. MR A R E N D S E: I'm not sure whether the evidence came fro m a Colonel. I do kno w, and I always s tand corrected with these things, we've heard a lot of evidence, and wading through the ev idence in t rying to prepare our f inal submiss ions, but I can’t reme mber one of o ur Colonels says that he's happy with what the taxis are doing. I do re me mber that commun ity me mbers are quite ' and that is worrying, surely, tha t they s ay they're happy that the taxis are doing a good job, because what the taxi drivers and owners are doing is also unlawful. They beat up people. They threaten people. Yes, you ma y get your cel lphone back, or whatever was stolen, but that's also wrong. So that surely indicates to you that there is a bigger problem. And, las tl y, I just want to ask you, i f you accept that there's a bigge r, more complex problem because the communit y the mselv es are vic tims in this thing and perpetrators at the same t ime, s o we've heard, and i t mu st be the case, hav e you looked at Barbara Holtmann's plan to address this in a sort- of mult i - d imens ional approach, departmental with all kinds of people being involved who can deal with this problem more effectively? DR S U P E R: Sorry, you've made quite a few things there that I'd l i ke to respond to. MR A R E N D S E: I tend to.

DR S U P E R: J a.

MR A R E N D S E: The Co mmiss ioner pres iding h as always and thankfully i t 's the last day.

DR S U P E R: The f irst is ( intervent ion) .

MR A R E N D S E: So I'm taking l iberties today.

DR S U P E R: O ka y.

COM M I S S I O NER: Christmas has gone out the window!

DR S U P E R: The firs t is that question that Ms Mayosi put to, it was put to Dr Gi l lespie in cross- examination about the Colonel who'd said that the Taxi Assoc iat ion’s actually they maintain the law at the taxi rank, i t 's on the rec ord, and I'm surpr ised that none of ' there was no objec t ion from any of the SAPS Co unsel, because i t 's down there now. You kno w, nobody obje cted to the fact that this Colonel had actually said that, so that kind- of confuses me. MR A R E N D S E: But you didn't re ad that evidence.

DR S U P E R: I did read the evidence, of course.

MR A R E N D S E: No, you read what Ms Mayo s i put.

DR S U P E R: Yes. Yes.

MR A R E N D S E: Yes.

DR S U P E R: W hic h wasn't disputed at the time, yes.

MR A R E N D S E: So that may be ou r fault as legal practit ioners. DR S U P E R: It could be. I don't know.

MR A R E N D S E: But you haven't read the ev idence where the Colonel said that, that's what I 'm t rying to tell you.

DR S U P E R: No, I hav en’t read the evidence where the Colonel said that.

MR A R E N D S E: No, you didn't.

DR S UPE R: I hav e I have read other you know, as I referred to other instances of police complic i ty. Barbara Holt mann, I hav en't actually seen, you kno w, I'm kind-of familiar with he r work, but I hav en't seen this particular report that she gav e to the Commission. So I c an't 'I can't answer to that. MR A R E N D S E: Thank you. Thank yo u, Madam Chair. NO F U RTH E R Q U E S T I O N S B Y M R A R E N DSE COM M I S S I O NER: Than k you Mr Arendse, any re- examination Ms Mayos i? MS M A YOS I: No. I hav e no further questions, Ma'am.

NO R E - EXAM I N A T I O N B Y M S M A YOS I

COM M I S S I O NER: Adv ocate Pikoli?

MR P I K O L I: J ust one issue, Dr Super. In your rec ommendat ions, there seems to be missing any referenc e to police complicity that you referred to in page 5 of your report. DR S U P E R: Yes. I 'm sorry because I'm an academic and I focus on my research, I'm not really that focused on making rec ommendat ions, policy recommendat ions. So I 'I probably should have put in

someth ing about that, because I do believe that this police complic i ty really is ex tremely ' it's extremely important; i t goes to the heart of the matter. COM M I S S I O NER: But does i t not go back to wh at I put to you earl ier, which is c lear messages? There needs to be a c lear message that we don't ' we don't turn a blind eye to various forms of assaults that are related to people who have been perc eived to hav e been rightly or wrongly to have been perpetrat ing crimes. The polic e don't to lerate that. They're not going to turn a blind eye to either whether i t 's taxi assoc iat ions or other organisat ions, or individuals in the community, ta king the law into their own hands to become punitive agencies without any State authority. And bas ical ly in breach of human r ights . DR S UPE R: Yes, I agree with you. That message possibly hasn't been c lear enough. Maybe i t 's been made at a polit ical lev el, but actually down on the ground pract ical ly, it hasn't it actually hasn't been made. And the other thing is that there's not a clear message about ' about criminals and their humanit y. And I thin k, you kno w, criminals in polit ical discourse have been incredibly de- humanised and we've h ad very, very punit ive things coming out of polit icians and policy- ma kers and things l ike that. So when, you kno w ' obv iously i t 's going to f i l ter down. It's the shapings, i t shapes the way people perceive criminals in terms of a very punitiv e, either in ' you know, I think i t was in Dr Gi l lespie 's ' she referred to someone who said everybody's a vic tim; i t 's the victim who become s a v ictim.

COM M I S S I O NER: Ja. You kno w, one of the thin gs Advocate Pikoli and I have discussed is that, in one of your very ear l ies t Const i tut ional Court judgments, Chief Jus tice Langa, former Chief Justice Langa, talked about the impor tance of the State actually being a role model. This is a transformat ion we're trying to achiev e against a very complex and di ff icul t and unjust history. But the State can't let go of the moral high ground, because that's really the role model that we need. And I think that's a v ery important me ssage that needs to be spread, even though i t 's hard. I mean, I thin k the job of pol ic ing in Khayel i tsha is really hard. But that mes sage seems to be reinforced again and again and again. DR S U P E R: Yes. You're totally right.

COM M I S S I O NER: Thank you. R ight. That bring us to a tea adjournment, I 'm happy to say. W e 'll take a break until quarter to 12 , and then we'll hav e Mr Huxham. Than k you v ery much, Dr Super. WIT N E S S E X C U S E D