Tuesday, February 07, 2012

South Africa: The South African Constitutional Court Extends Police Accountability

Source: ISS

The South African Constitutional Court Extends Police Accountability

Chandre Gould and Gareth Newham, Senior Researcher and Programme Head, Crime and Justice Division, ISS Pretoria

Should the police be more trustworthy than any other citizen? And if they are not, can you hold the Minister of Police to account? In an important unanimous judgement penned by South African Chief Justice Mogoeng Mogoeng and handed down on 15 December 2011, the answer to these questions was a resounding “yes.” This judgement has effectively set new legal precedent by extending the basis for civil claims against police officers who break the law and cause injury or damage to citizens. Most importantly, this judgement holds that even when off-duty, if there is enough of a connection between their employment as police officers and their illegal acts, the Minister of Police may be held liable.

This ground-breaking case began 14 years ago in 1998 when Allister van Wyk, a police officer, raped a thirteen year old girl outside the town of George in the Western Cape. The incident started in the early hours of the morning when the girl had needed a lift home from a night-club. Mr van Vyk offered to give her a lift home as he was doing the same for two of his friends. He was driving an unmarked police vehicle at the time that had been allocated to him as he was on standby duty and would need to be able to respond quickly if he was called to pace himself on duty. Knowing he was a police officer and was driving a police vehicle, the girl felt that it would be safe to accept a lift from him. After leaving the night club, van Wyk first dropped off his friends, but then, instead of driving her home, he drove out of town towards an area known as ‘the Wilderness’, stopping in the Kaaimans pass at a dark and secluded picnic spot alongside the estuary.

The girl, realising that he wasn’t driving her straight home as promised, became afraid and jumped from the car as soon as it stopped. She managed to get away and hide amongst the trees and bush until he left. Then she made her way back to the main road with the intention of hitchhiking back into George. She didn’t wait long before a vehicle stopped for her. To her surprise it was the same car she had just escaped from, driven by van Wyk. Although reluctant to climb back in, van Wyk assured her that he would take her home unharmed. Given that there were very few vehicles on this road at that time of the morning, she felt she had little choice but to accept. Van Wyk drove a short way up the road before stopping, assaulting and then raping her. He then drove her home and threatened to hurt or kill her if she told anyone what he had done.

She bravely defied his threats and reported the incident to the police who arrested van Wyk and charged him with rape. He was later convicted of the crime and was sent to prison. Shockingly, at the time of the rape van Wyk was head of the George detective unit, this was in spite of having four previous criminal convictions against him.

In 2005 the girl, now a young woman, brought a civil claim for damages against van Wyk and the Minister of Police. She held the Minister liable for van Wyk’s action and sought to claim damages from the police. Although the High Court ruled in her favour, the police appealed the decision which was subsequently overturned in a majority judgement by the Supreme Court of Appeal on the basis that van Wyk was off-duty at the time of the incident and that the Minister could therefore not be held liable. She then appealed that ruling in the Constitutional Court.

The question the Constitutional Court was called on to answer, was whether the Minister of Police could be held accountable for the actions of police officers, who were not on active duty; and whether police officers should be more worthy of our trust than any other citizen. The Institute for Security Studies was the first of three civil-society organisations to apply to act as amicus curie (friends of the court) by bringing expert testimony in the matter. We did so because this case offered an opportunity to strengthen police accountability by putting in place additional legal measures that citizens could use to hold the state liable for criminal and abusive behaviour by police officials.

The Court’s finding, that the Minister of Police, is indeed accountable for the actions of officers, represents an important milestone in the effort to ensure that the police act to project, rather than harm citizen’s even when they are not on active duty. It means that the Minister of Police has a responsibility to ensure that the officers who are recruited, appointed and employed by the police are not criminals themselves. Fortunately, the current Minister of Police, Nathi Mthethwa has already publicly committed himself to professionalising the South African Police Service (SAPS). This finding is particularly important in the light of the increase in recent years of cases of human rights violations committed by the police. For instance, the Independent Complaints Directorate (ICD) reported 45 allegations of torture in its 2010-2011 report, the highest number reported since 1999.

Towards the end of 2011, the Parliamentary Portfolio Committee on Police heard that during the 2010-11 financial year, contingent civil claims against the SAPS, mostly arising out of police criminality and misconduct, had increased to the substantial amount of R11bn or about 20% of the total police budget. In the short-term the Constitutional Courts ruling is likely to mean that the police will face additional civil claims and will therefore have to allocate even more of their budget to cover the potential cost of these claims.

To prevent this, it is going to be necessary for the Minister to ensure that SAPS management put proper measures in place to ensure that the people they recruit, train and employ understand, accept and are held accountable to the burden of professional service that being a member of the police requires. If SAPS management is able to do this, it will result in better policing while costing the state less in civil claims in the long run.