~ ~ ~ ~
Report on 16 days of activism
~ ~ ~ ~
Paper on prevention of police torture
~ ~ ~ ~
Briefing to the PC on Safety and Security (pdf)
~ ~ ~ ~
Annual Report 2000/2001 (pdf)
~ ~ ~ ~
Budget Vote Speech
~ ~ ~ ~ |
|
EXECUTIVE SUMMARY
1. COMPLAINT IDENTIFICATION
| 1.1 |
Complaint Control No CCN: |
00GT000008 |
| 1.2 |
Incident Description Code: |
409/507 |
| 1.3 |
Type of report: |
Final case report |
| 1.4 |
Date of report: |
14 January 1999 |
| 1.5 |
Complaint class: |
IV |
| 1.6 |
Date of incident: |
30 December 1999 |
| 1.7 |
SAPS CAS Number: |
Brooklyn 1189/12/99 |
| 1.8 |
Suspect Identification: |
National Commissioner
Jackie Selebi
Wagthuis
Polley’s Arcade
Pretorius Street
PRETORIA |
| 1.9 |
Reporting officer:
 |
Neville Melville
Executive Director
Head Office |
2. IDENTITY OF THE ICD
The Independent Complaints Directorate (ICD) is an independent
statutory body under civilian control, created in terms of Section 50(1)(a) of the
South African Police Service Act (68 of 1995).
Its principal function (in terms of Section 222 of the Interim Constitution Act (200 of
1995)), is to ensure that complaints in respect of offences and misconduct allegedly
committed by members of the South African police Service ("SAPS") are
investigated in an effective and efficient manner.
3. SOURCE OF THE COMPLAINT: Referral on instruction of National Deputy Commissioner Chetty
after consulting with Provincial Commissioner Maharaj by Area Commissioner Naude.
4. ALLEGATIONS OF COMPLAINT
4.1 Summary of allegations
It is alleged that the suspect, during the course of a
conversation at the Brooklyn Police Station charge office on 30 December 1999, called the
complainant a "bladie voken chimpanzee" and told her to "shut-up" her
mouth.
4.2 Identification of possible offences /
misconduct committed:
| i) |
crimen injuria (criminal
insult) |
| ii) |
defamation |
5. ICD RESPONSE TO COMPLAINT
5.1 Type of action taken:
Accepted for full investigation by ICD and allocated to
Executive Director. Asst. Commissioner M W Ngobeni co-opted to assist with making all
necessary arrangement/obtaining documents and Shadrack Mahlangu to co-ordinate taking of
witness statements.
5.2 Summary of ICD action:
| 5.2.1 |
Copies of Occurrence book, SAP 14
and SAP 15 from Brooklyn Charge office obtained. |
| 5.2.2 |
Statements were obtained from the
following witnesses: |
| 1 |
Jeanett Mothiba |
(A1A) |
| 2 |
Frans Mathipa |
(A2) |
| 3 |
Amos Nhlapo |
(A3) |
| 4 |
Angelina Kgomo |
(A4) |
| 5 |
Johannes Booysen |
(A5) |
| 6 |
Andre Pienaar |
(A6) |
| 7 |
Gerhardus Naude |
(A7) |
| 8 |
Caroline Thenjekwayo |
(A8) |
| 9 |
Jabulani Mahlongu |
(A9) |
| 10 |
Andries Mashilo |
(A10) |
| 11 |
Warning Statement: J Selebi |
(A11) |
| 12 |
Willie Ngobane |
(A 12) |
| 13 |
Dirk van Eeden |
(A13) |
5.3 Photographs,
video taping and plan of scene.
5.4 Attempts made to trace and/or obtain statements from other possible witnesses.
6. INVESTIGATIVE FINDINGS
6.1 Summary of evidence:
Evidential matter withheld in this summary to avoid
prejudicing any possible litigation.
6.2 Analysis of evidence
It is necessary to evaluate carefully the available
evidence, particularly in light of the suggestion received from different sources during
the investigation that there was an attempt to discredit the new Commissioner.
It is common cause the Commissioner Selebi entered the Brooklyn charge office with a
view to arranging for a vehicle and driver for himself and that this was eventually
accomplished. Further, he was at cross-purposes with the person who attended to him and,
after having been referred to the complainant, spoke "strongly" to her. Some of
the witnesses suggest that he was initially dealt with in a dismissive fashion.
Some of the witnesses who were present at the time state that they did not hear any
offensive language being used. The others alleged that they did hear the Commissioner use
such language. However, they differ in their recollection of the words used. The only word
that they agree upon is "chimpanzee".
All but one of this group of witnesses are members of the SAPS. The variations in their
versions, particularly in respect of the actual words used, as well as the limited
opportunity to do so, make the possibility of them having conspired among themselves
unlikely. This conclusion is strengthened by the fact that they mention certain things
that portray each other in a negative light. The complainant herself indicated, during the
course of an interview, her preparedness to withdraw the charge if a suitable alternative
manner of resolving the issue could be found. In any event, the allegations made by them
would amount to a pretty feeble conspiracy. On the whole, the versions of these witnesses
are consistent with each other as well as the Commissioner’s version, but for his
denial of the alleged use of offensive language.
As far as the witnesses who make no mention of offensive language are concerned, it is
possible that they were not present at the time it was used, that they did not pay
particular attention, that they did hear it but do not want to say so or that it was not
used.
6.3 Legal considerations
Criminal
Although the docket cover refers also to defamation, crimen injuria is the more
appropriate charge to consider. In so doing, there are two issues that need to be
considered:
- does the conduct complained of amount to an impairment of the complainant’s dignity
and, if so:
- is it of such a serious nature that it merits punishment in the interest of society
(Snyman, 1995 : 433)?
The test relating to impairment has both subjective and objective elements (Snyman,
1995 : 430). The only utterance in respect of which there was consensus among the
witnesses was the word "chimpanzee". It is permissible to consider common public
usage (Ciliza v Minister of Police and another 1976(4) SA 243 (N). Unlike
"baboon", chimpanzee is not commonly used as an insult. The definition in the Collins
Concise Dictionary and Thesaurus, "an intelligent small black ape of central
W-Africa", does not really assist. However, it seems safe to accept that under the
circumstances alleged, the use of the word would amount to an insult.
Whether such an insult is serious enough to warrant prosecution is a value judgement,
in light of the morality and behavioral norms of the community (S v Bugwandeen 1987
(1) 787 (N)). Obviously, the right to human dignity recognized in section 10 of the
Constitution of 1996 is a relevant factor. It is not uncommon for charges of crimen
injuria to succeed where police members have been insulted. See S v Bugwandeen
(supra).
It is also necessary to consider the context in which the incident occurred. The
Commissioner is under immense pressure to ensure that the level of public service rendered
by the police, particularly at a charge office level, is dramatically improved. On the
versions of at least two of the state witnesses, the behavior of the complainant and her
colleague could, in the eyes of the Commissioner, have been seen as provocative (See
Burchell & Milton, 1997: 281; Snyman, 1995: 224).
While it might be said that if prosecution is declined, the impression will be created
that the Commissioner is receiving preferential treatment, it would be unfair to subject
him to a trial merely because of his rank and position.
Departmental
In terms of sections 8 and 9 of the South African Police Services Act of 1995, the
Commissioner is not subject to the SAPS disciplinary regulations. Instead provision is
made for a board of inquiry headed by a judge to deal with allegations of misconduct
relating to him. From the fact that provision is made for a judge to head such a board of
inquiry, it can be assumed that misconduct of a serious nature that would impact on the
Commissioner’s continued tenure of the post was contemplated.
6.4 Conclusion
From the above analysis it is concluded that there is prima facie evidence to
the effect that the Commissioner called the complainant a chimpanzee while addressing her
in an angry fashion. There are, however, some weaknesses in the case.
The complaint is accordingly considered as being substantiated for the purpose
of ICD’s classification system.
7. Recommendations
The Director of Public Prosecution’s office is vested with the discretion in this
matter. It will be guided by considerations such as the prospects of success and the
public interest. Without purporting to undermine that discretion, it is my
recommendation that no prosecution be instituted but rather than other, more appropriate
measures be taken as outlined below:
I have already submitted that the procedure set out in the SAPS Act of 1995 applies
only to serious misconduct. It seems to me that, if that is so, in the absence of any
provision to deal with less serious misconduct of the nature complained of here, the most
appropriate action would be for me to refer the matter to the Minister for Safety and
Security, the political head of the department, for him to counsel the Commissioner
regarding professional and effective means of dealing with staff. I recommend that,
should the DPP decline to prosecute, the matter be so disposed of by the Minister.
Of course, the Minister would still be at liberty to institute an inquiry as outlined
above, or take such other steps to harmonize the relationship between the Commissioner and
his subordinates as he deemed necessary.
Citation of Authorities
Burchell J and Milton J: Principle of Criminal Law (2nd Ed) 1997
Snyman CR: Criminal Law (3rd Ed) 1995
ADV N J MELVILLE
EXECUTIVE DIRECTOR
INDEPENDENT COMPLAINTS DIRECTORATE |
