Big payouts, little sanction in SAPS wrongful arrest cases

By Edwin Naidu Time of article published Oct 18, 2020

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Johannesburg - An estimated R1.5 billion has been paid out by the South African Police Services in civil claims for wrongful arrests over the past five years, according to Gareth Newham, the head, justice and violence prevention programme at the Institute for Security Studies in Pretoria.

“This money would have been better used holding the police accountable for their misdeeds, but the ability to prevent police misconduct has deteriorated over the past five to six years with on average 4 500 disciplinary cases reported on a yearly basis,” he said.

Last year, R535 million was paid out by SAPS in wrongful arrests claims, but on average, only 120 police officers were found guilty, and in most cases, fined for misconduct.

“If they face sanction, in most cases, it is likely to be a warning kept in the officer’s file until it is removed six months later,” Newham said.

He said the annual claims lodged by civilians for wrongful arrests was around R330 million. In more than half the cases, according to Newham, when it has been recommended that an officer be dismissed for wrongdoing, the decision is overturned after an appeal to the police commissioner.

Newham says since 2015, on average, there have been at least 4500 disciplinary actions per year against policemen, while in the past two years there were open-ended cases against 1500 individuals against whom there was ultimately no sanction.

“It is not easy to hold a disciplinary proceeding against a policeman, often punctuated by long delays, and for some reason, witnesses fail to appear before hearings. “In addition, evidence goes missing. And, if the policeman involved is likely to be sanctioned, often it is a warning,” he says.

Only 8% to 12% of wrongful arrest cases against policemen have resulted in dismissal with serious cases resulting in criminal action. On average, only 215 policemen were dismissed annually. Most cases recommending dismissal against policemen, however, according to Newham, are overturned. “If one is fined for misconduct within the SAPS, it is not a deterrent.

“There have been crazy examples where one is found guilty in court but not in a police disciplinary hearing resulting in cases where one is convicted one can pay a fine and continue without punishment by SAPS,” he adds.

“Many repeatedly have cases against them, yet there is no action or accountability.”

Newham says there seems to be an absence of political will to address the situation regarding wrongful arrests.

For example, he says that the Independent Police Investigative Directorate, which is tasked with investigating complaints of alleged criminality and misconduct against members of the SAPS and the Metropolitan Police Department, has contributed to the malaise, with 95% of cases over the past seven years being closed without any action.

“Only four percent of cases have resulted in a disciplinary with two percent resulting in sanction. The system is completely broken down, victims of wrongful arrests are not going to the police or Ipid, they would rather go to court because there you would get something,” he adds.

Police officers are obliged to sign a code of conduct, and even if this is in place, there is no appetite to ensure the system supports good conduct.

“Otherwise, you would have a higher number of dismissals, a figure like R1.5 billion in wrongful arrest claims would be used for training and building of a truly professional police force,” he says.

Requests for comment to Minister of Police Bheki Cele over the past three months have been passed to SAPS, which did not answer the questions but shared its 2019 annual report in which according to the National Police Commissioner General Khehla glosses over the subject.

The SAPS report says the vast majority of police assault claims relate to wrongful arrest, illegal detention and negligent shooting incidents. Ill-discipline, inadequate training and a lack of compliance with standing orders have been identified as core reasons behind the spike in police brutality cases. It’s important to understand, however, that the fact that a prosecution hasn’t followed an arrest and detention doesn’t mean that you are necessarily entitled to recover damages.

According to Ipid, the SAPS received 4 812 recommendations, from 1 April 2014 to 31 March 2019 and initiated 4 670.

A total number of 118 recommendations were not initiated, due to service terminations. But Ipid referred requests for comment on what happens to policemen involved in wrongful arrests to SAPS – which did not comment.

But in its annual report, SAPS acknowledge that civil claims are caused by the conduct of members, saying that a decision was taken to appoint 300 paralegals at the level of constable, to do quality control on statements taken at police station level and to improve the court readiness of case dockets.

A monthly civil claims/litigation report has been launched to monitor and address trends – along with a management intervention project launched in 2016 to address the root causes, establish ownership and accountability for the prevention of incidents leading to civil claims – but details of its success – or failure – has not been made public.

* ANNUAL REPORT STATS

According to the SAPS Annual Report from National Police Commissioner General Khehla Sitole there were 2 246 disciplinary cases, of which 1 919 cases were finalised within 60 days, an achievement of 91.73% against the set target of 90%, within 60 days.

“A total of 134 cases were finalised beyond the 60 calendar days’ targets. There were 193 cases still pending, at the end of March 2019, including 154 pending within the 60 calendar days,” he says.

At the end of the 2018/2019 financial year, the establishment of the department was 192 277, including 150 855 SAPS Act members and 41 422 Public Service Act employees, compared to 193 297 personnel, at the end of the previous financial year.

Sitole adds that the trial-ready case docket rate for fraud and corruption by individuals within the JCPS (Justice Crime Prevention and Security) Cluster, increased from 74.15% (436 from a total of 588), in 2017/2018, to 82.37% (416 from a total of 505), in 2018/2019, against the planned target of 60%, an increase of 8.22%.

Against a set target of 18, a total number of 32 serious corruption- related trial-ready case dockets, where officials within the private and public sector are involved in procurement fraud and corruption was achieved, compared to 29 trial-ready case dockets, in 2017/2018, an increase by three trialready case dockets.

Disciplinary cases linked to Independent Police Investigative Directorate recommendations, in respect of alleged criminal offences by SAPS, are to be finalised within 60 calendar days. The target is to finalise 90%, within 60 calendar days.

A total of 558 or 86.78% disciplinary cases, from a total of 643 recommendations received, were finalised within 60 days.

Sunday Independent

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