South Africa has a long history of police brutality during protests and the SERI report shows that the FMF protests were no different. South Africa’s newly appointed Commissioner of Police, General Khehla Sitole, has vowed to work towards mending the relationship between the police and civilians. This sentiment is seemingly softer than those expressed by previous ministers and commissioners of police, who have called for police to use excessive force – and even “shoot to kill” – in public operations. The Wits Justice Project (WJP) spoke to victims of police brutality during the FMF protests.

In October 2016, images of Father Graham Pugin of Holy Trinity Church in Braamfontein, with a bloodstained white beard and robe, made the rounds in the news and social media. His church had been turned into a safe space and First Aid base for injured and traumatised protesters. A few moments before the priest was shot at close range by members of the South African Police Services (SAPS), a young female student took a rubber bullet to the eye. Unlike the priest, her injury was only documented in the SERI report.

The report details the incident, noting, “[S]ome part of the eye tissue had mushroomed out onto her face, bleeding. The patient was unable to close the upper eyelid of her right eye and she was hysterical.” The report further attests that the student was not participating in the protest but was merely passing by when she was shot.

Final year medicine student and first aider, Mtwakazi Bula, attended to the injured student on that day. Almost a year later, Bula described the incident to audiences at the launch of the report, hosted at the Holy Trinity Catholic Church. “I remember the young girl who was shot through the eye, who came (into the Holy Trinity Catholic Church) completely hysterical.” Bula said that with the help of other first aiders she had to assist the injured student while the rest of the team attended to her friends who, she said, were having panic attacks.

“There was very harsh police brutality, especially at the stage where the campus was handed over to the police,” said Bula. “Students were incurring a lot of injuries and there was no emergency care.”

According to the National Instruction 4 of 2014 – a set of rules and regulations which govern the conduct of police – it is unlawful for police to use indiscriminate force when they are trying to control a crowd. While the national instruction looks good on paper, there is a disjuncture between the theory and practice of policing in South Africa.

“There are some very basic principles of how force can be used. They are legality, necessity and proportionality,” said human rights researcher, Dr Mary Rayner, who was one of the panellists and researchers responsible for the compilation of the SERI publications. “According to best police practice, crowd dispersal is the last thing you do,” she said. The Police Act states, “[T]hey (police officers) must use only the minimum force necessary when performing an official duty requiring the use of force.”

The police are only allowed to use legal weapons (stun grenades, rubber bullets, tear gas and water cannon) in accordance with the stipulations of the United Nations Code of Conduct for Law Enforcement Officials and the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (LEOs), when all other means of negotiation have failed. The use of these legal weapons must be in proportion to the threat. This is in line with international human rights law and South Africa’s National Instruction 4 of 2014 which states that “[a]pproved rubber rounds may only be used as offensive measures to disperse a crowd in extreme circumstances, if less forceful methods have proven ineffective”.

Heavy-handed Policing

Xoli Matomela, former executive producer at the Wits Radio Academy, said she observed the protests and marched with students and this allowed her to understand their grievances. Matomela was injured during the 2016 FMF protests when a member of the SAPS threw a stun grenade directly into a crowd of students who had convened in front of the Wits Great Hall. Matomela said a stun grenade landed on her knee and burnt the flesh on her knee. She still bears the scar of that injury. Wits Justice Project is in possession of pictures of the injury she sustained. She said that FMF 2016 saw a ramp-up in heavy-handed policing. “We saw a marked difference from 2015 when it (FMF) broke out last year,” she said. “There was quite a severe clampdown. The police was patrolling the entire campus.”

An estimated 1,368 police officers were deployed to Wits during FMF 2016, according to Gauteng Department of Community Safety spokesperson Thapelo Moiloa. By the end of October 2016, a total of 831 people had been arrested in relation to FMF protests.

On 16 October 2016, the police arrested Arthur Muhanelwa. Muhanelwa, like the student who was shot in the eye, was at that moment not directly involved in the protests. He is a third-year Actuarial Sciences student at Wits. He was a participant in the FMF protests and part of the movement’s logistics team. At the time of his arrest, a Sunday afternoon, he was making his way from his Wits residence in Hillbrow to a local supermarket when he noticed police vehicles on the streets. One of the officers allegedly beckoned him to come to them, which he refused to do. Instead, he decided to walk in the opposite direction. Muhanelwa recalls that at the time, a number of FMF leaders were seemingly being targeted by the police and a few of his close friends, including ex-Wits Student Representative Council (SRC) president Mcebo Dlamini, had been arrested. He says he figured he too had been targeted.

As he entered a parallel street, he noticed another group of police and alleges that they started driving towards him. The same happened when he tried the next few streets. Eventually, he decided to run and reached Newtown (a suburb in the Johannesburg CBD) and rested there under a bridge.

According to Muhanelwa, a few minutes later the police had tracked him down and arrested him. He says he was ordered to lie on his stomach in the back of the police vehicle after they stripped him naked. He abided and alerted his comrades of his arrest via text message. Muhanelwa says he assumed he would be taken to either Hillbrow or Cleveland police station as some of his fellow students who had been arrested were taken to these police stations. When Muhanelwa realised that what he had expected to be a short drive to a police station was turning into a lengthy one, he says he raised his head to peer through the window of the speeding police vehicle and soon found himself being carried past the Nyl Toll Plaza in Limpopo. Muhanelwa continued to update his comrades along the route.

Muhanelwa alleges that he was assaulted by police several times during the journey. The police officers parked at several locations and allegedly tortured Muhanelwa. “They got out the car and locked the door. I thought they were going to smoke,” he says. “Then they opened a window and threw in stun grenades and tear gas and closed the window.”

Muhanelwa says he rubbed his eyes with his saliva to protect them from the sting of the tear gas. However, the amount of tear gas in the vehicle was too much for him. “While I was focusing my eyes, my whole body was (absorbing) the tear gas […] it was burning.” He says he is not sure how long he was left to stew in the harmful gases before the police reopened the door wearing protective masks and removed him from the vehicle.

“They started holding me down. One was holding my legs and one was holding my arms while the others (the other four officers) started beating my joints with fists.” Muhanelwa says his face had swollen and he struggled to walk after they reached an open veld where the assaults allegedly continued. The Wits Justice Project is in possession of medical records and photographs taken by Muhanelwa’s doctor seemingly confirming the injuries he described.

Eventually, at approximately 04:00, Muhanelwa says the police got back into their vehicle, leaving him stranded in Thohoyandou (a town in Limpopo) while he waited for assistance from his fellow students. He says he wanted to pursue criminal charges against the police and Wits University, but changed his mind when he was threatened with academic exclusion by the university. Meanwhile, his family members were also being targeted by police who had taken to camping at a park across from his family home. Muhanelwa said this further dissuaded him from pursuing a case against the police as well. He said he still has nightmares of the evening of his arrest and often his family members were awakened by his cries at night.

WJP approached SAPS to comment on this article but they have yet to respond.

Police and Accountability

When it comes to prosecuting the police for assaults and abuse, a number of challenges arise. The first stop on the bureaucratic route to pursuing justice is the Independent Police Investigative Directorate (IPID), whose mandate it is to investigate any cases brought against the police.

Head of the Governance, Crime and Justice Division at the Institute of Security Studies (ISS), Gareth Newham, says the police are not held accountable adequately and this leads to a sense of immunity against indictment. “Most police officers in South Africa operate within the context and a culture in which the chance of you being held accountable for breaking your own code of conduct, disciplinary regulations or the law, is extremely rare,” he says. “And you can see this from the figures.”

IPID published shocking statistics in their 2016 half-yearly report which revealed that of 714 cases of firearms discharged by members of police, 59 were forwarded to the National Prosecuting Authority (NPA) and only two resulted in convictions.

IPID National Spokesman, Moses Dlamini, said, “The role of IPID is to conduct independent and impartial investigations of specified criminal offences allegedly committed by SAPS members.”

Dlamini further explained that upon completion of an IPID investigation, the case is referred to the NPA which is then left with the choice to either institute criminal proceedings or decline to prosecute. However, according to Newham, the prosecuting authority is unlikely to pursue cases brought against police officers.

“The NPA is far less likely, just statistically, to want to prosecute police officials […]. Prosecutors often rely on police evidence to help them win cases and prosecutors who are seen as doing good jobs at prosecuting police officers might find themselves not getting the kind of investigative support they need from other police officers going forward. So there certainly does need to be an investigation into why the prosecuting authority sometimes doesn’t take decisions that would lead to a better prosecuting outcome.”

“It is the National Commissioner’s legal responsibility in the Police Act to ensure that there is a functional disciplinary system in the police and that the police act in an accountable manner,” says Newham. While the newly appointed National Commissioner has had plenty to say about improving policing to ensure public safety, the list of commissioners and ministers of police that have set up a disparity between human rights and policing in the past has been a constant.

A number of high-ranking government officials have made public calls for police to use lethal force against criminals. In 2008, then Deputy Minister of Safety and Security, Susan Shabangu, appealed to police to “kill the bastards” and to pay no mind to the regulations that govern the discharging of firearms by police. Soon after, this call was publicly endorsed by President Jacob Zuma. Less than a year later, the then Commissioner of Police, Bheki Cele, reiterated the call to used “deadly force” against criminals. Eight years after Cele’s heedless outcry and five years after the Marikana massacre, the latest carrier of the baton is the newly appointed Minister of Police, Fikile Mbalula.

“I don’t want to use that word ‘Shoot and do whatever’, but I’m saying we use fire with fire. You are not given those guns as toys. You are given those guns to use them to protect the nation and protect yourselves,” said Mbalula earlier in 2017. “The Human Rights Commission will find us on the way.”

While police officers often get away with using unlawful force, the number of civil claims against SAPS has grown increasingly, reaching R14.6-billion over the 2015/16 financial year.

SERI’s “A Double Harm” report observes that the presence of police during FMF protests has resulted in long-term trauma – both physical and psychological – rendering public spaces unsafe for protesting individuals and bystanders alike. While the new police commissioner has resolved to remedy the relationship between the police force and the public it aims to serve, only time will tell if this consideration is extended towards the constitutionally enshrined right to protest. DM

Sumeya Gasa works as an investigative journalist for the Wits Justice Project. The WJP investigates human rights abuses and miscarriages of justice related to the criminal justice system. See: www.witsjusticeproject.co.za

Photo: Police take action during the fees must fall protests at Wits University. Photo: Greg Nicolson