International Human Rights Law Review (2022) 1–24 Who Will Watch the Watchers? A Critical Perspective on Police Brutality in Post-Apartheid South Africa Clarence Itumeleng Tshoose Professor, Dept. of Mercantile & Labour Law, School of Law, University of Limpopo, Sovenga, South Africa itumeleng.tshoose@ul.ac.za Mashele Rapatsa Acting-Director, School of Law University of Limpopo, Sovenga, South Africa mashele.rapatsa@ul.ac.za Abstract Police brutality is a highly charged topic which has been prevalent both locally and internationally. Scholars contend that theory-based research has recently emerged to precisely explain this police behaviour. There are theorists from several schools of thought who seek to attribute causality for police violence. In this article, three of the more popular existing theories will be examined: social conflict theory, symbolic interactionism, and the control balance theory. To this end, the article has three objectives. Firstly, it scrutinises the relevant theories dealing with the issue of police brutality. Secondly, it discusses the relevant domestic and international instruments that seek to address the problem of police brutality. Lastly, this article makes recommendations regarding how the system of policing in South Africa can be revamped. Keywords police brutality – constitution – police service – accountability – civilians – universal human rights © Koninklijke Brill NV, Leiden, 2022 | doi:10.1163/22131035-11020003 2 1 10.1163/22131035-11020003 | tshoose and rapatsa Introduction In the work entitled ‘Principles of Law Enforcement’, Sir Robert Peel, “the founder of modern policing”, clarified and juxtaposed the concept of policing by consent in a democracy.1 Peel argued that the police need public approval in order to retain the respect of citizens and perform their jobs effectively. In the author’s view, they also need to use force in proportion to the situation and in such a way that public favour is preserved.2 In this way, the police will be considered a legitimate law enforcement agency through adherence to procedural justice, the law and principles of fairness.3 Accordingly, the police service ought to be the guardian of constitutionalism and the rule of law. Unfortunately, in some South African communities, it can be argued that this policing model is no longer being adopted. Despite the lack of trust in the police by communities, the police service is constitutionally mandated to protect the community while upholding their constitutional rights. This is of critical importance when one considers the persistent outcry over increased cases of police violence against civilians. Furthermore, the issue of police brutality is closely linked to South Africa’s past, which was filled with police callousness and the violation of basic human rights. This can be traced back to the historical tradition of politically sanctioned racial segregation,4 when the police were utilised as an instrument to rule and oppress Black South Africans.5 As such, the aim of this article is to explore the 1 Sir Robert Peel, ‘Principles of Law Enforcement 1829’ <https://www.sjpd.org/home/ showpublisheddocument?id=284 >accessed 30 September 2022. 2 Keith Williams, ‘Peel’s Principles and their Acceptance by American Police: Ending 175 years of Reinvention’ (2003) 6 The Police Journal 97–119. 3 Tom Tyler, ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’ (2003) 30 Crime and Justice 298–301. 4 Douglas Sharp, ‘Who needs Theories in Policing? An Introduction to a Special issue on Policing’ ‘who Needs Theories in Policing? An Introduction to a Special issue on Policing’ (2005) 44(5) Howard Journal 449. 5 Julia Hornberger, ‘We need a Complicit Police: Political Policing then and Now’ (2014) 48 SA Crime Quarterly 19; Matthew Wills, ‘The South African experience with Changing the Police from Within’ (JSTOR Daily Newsletter, 22 June 2020) <https://daily.jstor.org/the-southafrican-experience-with-changing-the-police-from-within/>accessed 30 September 2022; Patrick Egwu, ‘South African Police are Undertrained, Uncontrolled, and Deadly’ (FP News, 31 May 2021) <https://foreignpolicy.com/2021/05/31/southafrica-police-brutality-julies/ >accessed 20 June 2021; Tanya Magaisa, ‘The Legacy of Racism in South Africa’ (Human Rights Watch, 09 March 2021) <https://www.hrw.org/news/2021/03/09/legacy-racismsouth-africa>accessed 30 September 2022.The Guardian ‘Police Fire Kills 63 Africans’ (The Guardian, 22 March 1960)< https://www.theguardian.com/world/1960/mar/22/southafrica. fromthearchive>accessed 30 September 2022. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 3 issue of police brutality in South Africa. Amnesty International defines police brutality as the excessive use of force by a police officer against a victim or victims that is deemed to go beyond the level required to sustain life, avoid injury, or control a situation.6 In light of the above, the first section of this article unpacks the theoretical underpinnings on police brutality in South Africa. The second section discusses the incidents that undermine a human rights-based approach to policing in South Africa, while the third section focuses on the legal aspects of the role and powers of the police service. The fourth section examines selected international and regional instruments and reports that denounce the use of force by police. The fifth section addresses the research findings on incidents of police brutality and the last section presents the conclusion and recommendations of this article. 2 Problem Statement The problem addressed in this article relates to the issue of police brutality. It is argued that since South Africa transitioned into democracy, police brutality has been a significant problem.7 In dealing with the issue of police brutality, the post-democratic government introduced measures aimed at reducing the incidence of police brutality. For example, external oversight agencies such as the Independent Police Investigative Directorate were established to 6 Amnesty International https://www.amnesty.org/en/what-we-do/police-brutality> accessed 30 September 2022. 7 Mwangi Githahu, ‘Western Cape Police Brutality during Lockdown Scrutinised in Legislature’ (IOL News, 2021) <https://www.iol.co.za/capeargus/news/western-capepolice-brutality-during-lockdown-scrutinised-in-legislature-6a122132-bd47-4e75-b5c2883ecf521077>accessed 30 September 2022; David Bruce, ‘Are South Africa’s Cops Accountable? Results of Independent Police Investigative Directorate Investigations’ (APCOF Research Paper, 2020) 8–14<http://apcof.org/wp-content/uploads/025aresouthafricascopsaccountable-resultsofindependentpoliceinvestigativedirectorateinv estigations-davidbruce.pdf>accessed 30 September 2022). See also, William Pruitt, ‘The Progress of Democratic Policing in Post-apartheid South Africa’ (2010) 4(1) African Journal of Criminology & Justice Studies 120–126. Solomon Arase, ‘Police Organizational Capacity and Rights-based Policing in Nigeria’ in Alemika Etannibi et al, Policing Reform in Africa: Moving Towards a Rights-based Approach in a Climate of Terrorism, Insurgency and Serious Violent Crime (African Policing Civilian Oversight Forum, Cape Town, 2018) 163; Andrew Faull, ‘Oversight Agencies in South Africa and the Challenge of Police Corruption’ (Institute for Security Studies, 2011) 1–17<https://media.africaportal.org/documents/Paper227.pdf> accessed 30 September 2022. International Human Rights Law Review (2022) 1–24 4 10.1163/22131035-11020003 | tshoose and rapatsa ensure accountability in the South African Police Service. Furthermore, the National Crime Prevention Strategy was introduced,8 which is premised on a four-pillar approach. The first pillar is based on the criminal justice process and aims to make the criminal justice system more efficient and effective. Accordingly, the criminal justice system ought to be a strong deterrent for criminals and reduce the risks of re-offending. Secondly, pillar two aims to reduce crime through environmental design. This pillar focuses on designing systems to limit the opportunity for crime and enhance the detection and identification of criminals. Pillar three seeks to merge public values and educational initiatives aimed at changing how communities react to crime and violence. It involves programmes which utilise public education and information in order to facilitate meaningful citizen participation in crime prevention. Lastly, pillar four focuses on transnational crime programmes aimed at improving control over cross-border traffic related to crime and reducing access to international criminal syndicates by offenders. Despite these noble initiatives by government, violence against civilians continues to be at the epicentre of post-democratic policing.9 The statistics on police brutality have steadily increased.10 According to the Independent Police Investigative Directorate (‘ipid’), in terms of the offences allegedly committed by national or municipal police between 2018 and 2019, the number of torture cases increased from 217 to 270 and 3,661 cases of assault were reported during 2017/18. These figures increased to 3,835 in 2018/19.11 Considering these concerning statistics, it is clear that the issue of police brutality has far-reaching consequences for society.12 It extends to the following 8 9 10 11 12 The South African National Crime Prevention Strategy, 1996. David Bruce, ‘How to Reduce Police Brutality in South Africa’ (Institute for Security Studies Report, 17 October 2020) <https://issafrica.org/research/southern-africa-report/how-toreduce-police-brutality-in-south-africa>accessed 30 September 2022. Paul Clarke, ‘Police killings: How Does South Africa Compare?’ (2021) <https:// africasacountry.com/2021/03/police-killings-how-does-south-africa-compare > accessed 30 September 2022; David Smith, ‘South Africa Reports of Police Brutality more than Tripled in the Last Decade’ (The Guardian, 22 August 2013) <https://www.theguardian. com/world/2013/aug/22/south-africa-police-brutality-increase> See also the recent statistics on police brutality released by IPID in its Annual Report of 2021/22, IPID ‘Annual Report 2021/22’ 38–39 <https://static.pmg.org.za/IPIDs_Annual_Report_2020_21.pdf> accessed 30 September 2022. ipid, ‘Investigations of Public Complaints of Police Misconduct during the Lockdown Period’ (2020) 4–5 <https://static.pmg.org.za/200429IPID_Investigations_during_ Lockdown.pdf> accessed 30 September 2022. Baxolele Zono, ‘The Black Poor still bear the Brunt of Police Brutality’ (Daily Maverick, 2020) < https://www.dailymaverick.co.za/opinionista/2020-07-23-the-black-poor-still-bearthe-brunt-of-police-brutality/> accessed 30 September 2022. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 5 offences: execution-style killings in custody,13 deaths linked to torture14 or other assaults,15 reckless or accidental shootings,16 including killings during demonstrations, unlawful detention of suspects involved in petty offences,17 and other non-fatal assaults on persons at the point of arrest or outside of custody, cases of rape18 and other assaults on persons in custody and even those reporting cases to the police,19 and lastly, cases dealing with rowdy crowds.20 As will be shown in this article, various court judgments and domestic and international law instruments make provision for the protection of civilians against police brutality. 3 Theoretical Underpinnings on Police Brutality Policing is a critical component of governance, especially for every rightsrespecting and democratic state. It is for this reason that policing ought to be predicated on principles and values that encompass the ideals of safeguarding established civil liberties and human rights, and of enhancing human wellbeing 13 14 15 16 17 18 19 20 Shimon Barit, Lorraine du Toit-Prinsloo and Gert Saayman, ‘Deaths due to Police Action and Deaths in Custody – A persistent problem in Pretoria, South Africa’ (2020) 69 SA Crime Quarterly 2–21. Daneel Knoetze, ‘Gauteng Police have Killed Hundreds, but saps leaves Brutal Cops Unchecked’ (News24, 15 July 2020) <https://www.news24.com/news24/SouthAfrica/ News/gauteng-police-have-killed-hundreds-but-saps-leaves-brutal-cops-unchecked20210705>accessed 30 September 2022. Saferspaces, ‘Police Brutality in South Africa’ <https://www.saferspaces.org.za/understand/ entry/police-brutality-in-south-africa > accessed 30 September 2022. Martha Bellisle, ‘ap Exclusive: Accidental Shootings show Policing Training Gaps’ (AP News, 10 December 2019) <https://apnews.com/article/accidents-ar-state-wire-ia-statewire-wa-state-wire-iowa-009ac6cf0a174a58d88d9d01308aedd6 >accessed 30 September 2022. Mdlankomo v Tanyane and another (23008/09) (2013) zawchc 141 (8 May 2013). Iavan Pijoos, ‘Police Sergeant Arrested for ‘Raping Teen’ Who was Walking to a Shop’ (Sowetan, 18 June 2021) <https://www.sowetanlive.co.za/news/south-africa/2021-06-18police-sergeant-arrested-for-raping-teen-who-was-walking-to-a-shop/>accessed on 16 July 2021; Romi Sigsworth et al, ‘Policing rape in South Africa’ (2009) 89 Agenda: Empowering Women for Gender Equity 39–48. Timeslive, ‘Cop Arrested for Molesting Victims – While Investigating their Rape Cases’ (Sunday Times, 12 November 2020) <https://www.timeslive.co.za/news/south-africa/202011-12-cop-arrested-for-molesting-victims-while-investigating-their-rape-cases/ >accessed 30 September 2022. Mandy De Waal, ‘Rustenburg’s Platinum Belt Draws more Blood’ (Daily Maverick, 12 October 2012) <https://www.dailymaverick.co.za/article/2012-10-12-rustenburgs-platinumbelt-draws-more-blood/ >accessed 30 September 2022. International Human Rights Law Review (2022) 1–24 6 10.1163/22131035-11020003 | tshoose and rapatsa and capabilities.21 According to Yach, the aim of the police service in a civil society is to support and protect democratic rights, so that all sections of the community are able to live in a safe and secure environment.22 Furthermore, a police service ought to be premised on ensuring that all citizens can have fullest confidence in terms of receiving necessary protection, especially when it comes to the protection of human rights.23 Regrettably, not all police officers seem to espouse these values and be committed to serving communities without fear or favour while upholding the law. To this end, we explore some of the theories that might explain the violent conduct of police towards members of the community or civilians. As mentioned earlier, a quick glance at South Africa’s historical archives on policing reveals that the erstwhile police force subscribed to authoritarianism.24 Such authoritarianism thrived on unleashing terror, instilling fear25 and eroding fundamental freedoms of civilians in order to obtain civil obedience. This unpalatable state of affairs regarding the conduct of police is premised on the social conflict theory. According to Holmes et al, in terms of the social conflict theory, the main function of the police is to preserve the status quo of inequality and to assist the powerful to exploit the powerless.26 The authors aver that the intersection of race and class determine police-civilian dynamics. Supporting this school of thought, the conflict hypothesis, when tested against the number of police homicide incidents, suggests that “the police were most likely to use deadly force in the most unequal states,” which indicates that the police act as control agents in minority communities.27 Whether this theory postulates what is happening in reality is a moot point. However, this article demonstrates the impact of this authoritarian attitude on post-1994 policing trends. This is justified by the fact that an authoritarian attitude appears to be one of South Africa’s policing traditions, and this legacy 21 22 23 24 25 26 27 David Bruce, ‘Killing and the Constitution: Arrest and the Use of Lethal Force’ (2003) 19(3) South African Journal on Human Rights 430–550. Dianna Yach, ‘Revisiting Democratic Policing in Action’ (1999) 72(2) The Police Journal 296. Ibid. Knud Larsen, ‘Authoritarianism and the Attitude Toward police’ (1968) 23 Psychological Reports 349. Siboniso Mngadi, ‘Police Brutality during lockdown has caused citizens to live in fear of the men in blue’ (iol News 2020) 17 August <https://www.iol.co.za/sunday-tribune/news/ police-brutality-during-lockdown-has-caused-citizens-to-live-in-fear-of-the-men-in-bluecee5307f-0df1-4460-bea7-b2ad98dd2d24 >accessed 30 September 2022. Malcolm Holmes et al, ‘Minority Threat, Crime Control, and Police Resource Allocation in the South Western United States’ (2008) 54 Crime & Delinquency 128–152. Jacobs David and David Britt, ‘Inequality and Police Use of Deadly Force: An Empirical Assessment of a Conflict Hypothesis’ (1979) Social Problems 403. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 7 seems to derive its major influence from age and education.28 In the South African context, this means that the incidence of police brutality is possibly influenced by the past system of apartheid policing.29 Because apartheid policing was primarily an authoritarian force reacting to protests and demonstrations,30 post-1994 democratization efforts needed to be augmented by a clearly defined paradigm shift. Such change would be epitomised by a departure from state protection and a shift towards community or civilian protection, under which both the police and communities would pursue a common objective of safety and security. The fact that South Africa’s police service has been unionised supports the view that democratic policing is a widely embraced concept. As a result, a direct relationship exists between this view and the growth of regional and international networks on police unionisation, even in countries associated with authoritarianism.31 The first fundamental element of social democratic policing is that it must not be detached from the democratic processes that apply to the rest of agency government.32 As part of an accounting mechanism, police functionaries must, at the very least, perceive their functions in the context of safeguarding the security of the state and civilians in a democratic setting. Furthermore, the theory of social democratic policing assigns critical elements that have practical implications for the police. In addition, symbolic interactionism addresses unit and segment variations and explains why only some officers become “bad apples” while others do not, which is the second pillar of the interconnected whole. The targeting of certain civilians (i.e. the politically marginalized) will be examined in the context of this theory in the next section. Symbolic interactionism emphasises the subjective meanings and significant influences of socialization in explaining the patterns of micro-level social interactions.33 The symbolic interactionism theory maintains that interactions between people, which include violent encounters between civilians and police officers, 28 29 30 31 32 33 Alexander Smith, Bernard Locke & Abe Fenster, ‘Authoritarianism in Policemen who are College Graduates and Non-College Police’ (1970) 61(2) Journal of Criminal Law and Criminology 314. Riad Azar, ‘Neoliberalism, Austerity, and Authoritarianism’ (2015) 15(3) New Politics 97. William Pruitt, ‘The Progress of Democratic Policing in Post-Apartheid South Africa’ (2010) 4(1) African Journal of Criminology & Justice Studies 120. Monique Marks, and Jenny Fleming, ‘Having a Voice: The Quest for Democratic Policing in Southern Africa’ (2008) 21(4) Journal of Organisational Change Management 456. Barry Friedman, and Maria Ponomarenko, ‘Democratic Policing’ (2015) 90(6) New York University Law Review 1832. Manning Peter ‘Producing Drama: Symbolic Communication and the Police’ (1982) Vol. 5(2) Symbolic Interaction 223–242. International Human Rights Law Review (2022) 1–24 8 10.1163/22131035-11020003 | tshoose and rapatsa are reciprocal on the part of two connected parties, as each party embodies its own mirrored appraisal of the self, which consequently influences their behaviour when engaging in social relationships.34 The theory also “stresses that people help to create their social circumstances and do not merely react to them”.35 In the context of police-civilian interactions, consistent with the social conflict perspective, members of minority groups and police officers are likely to be viewed by one another as “rule violators” and oppressors respectively. The exclusivity of the occupational culture encourages the police to serve as an officer’s situationally dominant reference group when a problem emerges while on duty.36 In other words, when police officers who have submerged the controller identity deal with minorities who have subsumed the victim identity, tension and conflict between the two groups is unavoidable. In addition to the symbolic interactionism theory, police officers are required to take control of the intricate relationship between them and civilians when they discharge their duties. This general concept of control is important to policing because officers’ roles in maintaining social order and controlling the populace for law enforcement go hand in hand with a state-granted monopoly over the legitimate use of force.37 They are allowed to exercise a significant degree of authority, but are also subject to a high degree of internal and external controls and balances (i.e. those exercised by the media and the public).38 There are several important concepts in the balance of control theory that need further elaboration in relation to police violence: seriousness, desirability of balance of control, control ratio, opportunity, limitations, and self-control.39 Severity refers to the possibility that a deviant action will create potential crosschecks that result in the overall level of control being reduced. It is “an inherent quality [of] deviant action” itself, but the theory also recognizes perceptual differences and subjective interpretations between individuals when calculating the degree of seriousness associated with an action.40 “Desirability of balance 34 35 36 37 38 39 40 Matsueda Ross, ‘Reflected Appraisals, Parental Labeling, and Delinquency: Specifying a Symbolic Interactionist Theory’ (1992) 97(6) American Journal of Sociology 1577–1611. Ibid. Cf Bethan Loftus et al, ‘From a Visible Spectacle to an Invisible Presence: The Working Culture of Covert Policing’ (2016) 56 (4) British Journal of Criminology 631–632. Fry Louis and Leslie Berkes, ‘The Paramilitary Police Model: An Organizational Misfit’ (1983) 42(3) Human Organization 225–234. Harris David, ‘The Interaction and Relationship Between Prosecutors and Police Officers in the U.S., and How This Affects Police Reform Efforts’ (2011) 19 Legal Studies Research Paper Series 1–11. George Higgins et al, ‘Control Balance Theory and Violence: An Examination of Contingencies’ (2005) 38 (4) Sociological Focus 242–246. Tittle Charles, ‘Refining Control Balance Theory’ (2004) 8(4) Theoretical Criminology 403. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 9 of control” refers to a continuum that includes “aspects of deviant behaviour related to maximizing control manipulation that implies long-term outcomes and effectively escapes cross-control.” This can be assessed objectively or subjectively when deciding whether to commit a deviant act.41 Control ratio, opportunity, limitations and self-control are the four variables that determine the desirability of control balance. The first variable consists of personal and social control factors that an individual seeks to maximise. It is, Charles argues, the strongest determinant of imbalance, since it predisposes a person or social unit to be motivated to deviate.42 The variable opportunity recognises the basic fact that deviant actions cannot occur when they are not possible. Within a range of possible behaviours that satisfy the desirability of control, police brutality is only feasible when there is a situation that presents an opportunity to victimize a particular unit. In light of the above theoretical analysis of police brutality, it is also important to reflect briefly on the social democratic policing theory. According to Yach, the social democratic policing theory requires the police to be protectors of human rights, upholders of the constitutional injunction of equality, promoters of cooperation in society, bearers of care and support, and to be open and accountable for their deeds, as well as to empower communities.43 Furthermore, the police must be politically neutral, subject to democratic control and socially impartial.44 Given the existing theoretical connotations of social democratic policing, what interaction may be discerned between South Africa’s historical policing trends and the ongoing incidences of police brutality? Are there any specific socio-ideological considerations when conceptualising the postmodern policing philosophy? In addition, how should this relate to or influence government’s legislative and policy imperatives in terms of giving new meaning to policing? These questions will be addressed later in this article. 4 Findings on Incidents of Police Brutality The findings of the research revealed that civilians suffered multiple forms of violence in their daily lives, which included being subjected to dehumanising practices at the hands of the police. Williams argues that the attacks against 41 42 43 44 Higgins et al (n 39). Charles (n 40) 411. Yach (n 22) 297–303. Liqun Cao, Lanying Huang, and Ivan Sun, ‘From Authoritarian Policing to Democratic Policing: A Case Study of Taiwan’ (2016) 26(6) Policing and Society 648. International Human Rights Law Review (2022) 1–24 10 10.1163/22131035-11020003 | tshoose and rapatsa civilians by persons tasked to enforce and protect them have long shaken faith in police institutions, but the loss of public faith is particularly acute when those acts involve the police.45 In the author’s view, this is primarily because society relies on the police to uphold the law, protect the community and assist in times of need.46 Consequently, the issue of police brutality has recently been in the spotlight, not only in South Africa, but also in other parts of the world.47 Media reports on police brutality across various jurisdictions point to the lack of accountability and proper investigations into the use of excessive force by the police.48 The plaque of police brutality continues unabated, despite efforts by government and relevant institutions to quell its rampant effects on the lives of communities and families. The weakness of police accountability systems in South Africa contributes to widespread brutality by law enforcement officers. Walkers avers that accountability is a vital element of policing.49 According to the author, both individual officers and law enforcement agencies should be held accountable for their actions. In the author’s view, effective accountability procedures are essential if the police are to achieve their goals of lawfulness and legitimacy.50 Although the South African Constitution has been labelled as one of the best in the world, the reality of recent events paints a different picture. The extent and systemic nature of police brutality against civilians has consistently violated the latter’s basic human rights as enshrined in the Constitution. Below are just a few examples of the findings from across South Africa over the last decade. 45 46 47 48 49 50 Hubert Williams, ‘Core Factors of Police Corruption across the World’ (2002) 2(1) Forum on Crime and Society 85. Ibid. Stephan Schwartz, ‘Police Brutality and Racism in America’ (2020) 16(5) Explore 280–282. Edwin Makwati, ‘Police Brutality in Botswana: Why it persists’ (Aljazeera, 17 March 2021) <https://liberties.aljazeera.com/en/13985/>accessed 30 September 2022. Batandwa Malingo, ‘Police Brutality: Nearly 60,000 Cases opened Against Cops in 10 years’ (Times live, 09 April 2021) <https://www.timeslive.co.za/news/south-africa/202104-09-police-brutality-nearly-60000-cases-opened-against-cops-in-10-years/ >accessed 30 September 2022; Samuel Walker, ‘Police Accountability: Current Issues and Research Needs’ (2006) Paper presented at the National Institute of Justice Policing Research Workshop: Planning for the Future, Washington, DC, November 28–29, 1<https://www.ojp. gov/pdffiles1/nij/grants/218583.pdf >accessed 30 September 2022; Hannah Gold, ‘Scenes from Police Brutality Protests around the World’ (The Cut, 01 June 2020) https<www.thecut. com/2020/06/scenes-from-police-brutality-protests-around-the-world.html>accessed 30 September 2022. Walker (n 49) 28–29. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 11 On 16 August 2012, South African police opened fire on a large crowd of men who had embarked on a strike at a platinum mine in Marikana, about 80 miles north of Johannesburg.51 They shot 112 miners, of which 34 were killed. The Marikana massacre recreated images of massacres by the state in the old apartheid era, with one brutal difference: this time it was predominantly Black police officers, with Black senior officers working for Black politicians, who were doing the shooting.52 In February 2011, Bongani Mathebula, a 21-year-old boy, was shot and killed when police began firing on protesters in Ermelo, Mpumalanga province.53 To make matters worse, Lucas Lebyane, a 15-year-old boy, was shot and killed in a protest over the provision of services in 2015, which aimed at demanding the supply of water to the municipality of Bushbuckridge, Mpumalanga province.54 Furthermore, in July 2020, a 9-year-old boy by the name of Leo Williams was shot during a service delivery protest in Laingville, Western Cape province, and passed on later in hospital.55 In 2020, Khollins Khosa was brutally assaulted by members of the South Africa National Defence Force and the Johannesburg Metropolitan Police Department. In the court papers, it was shown that Khosa was strangled, slammed against a cement wall and hit with the butt of a machine gun.56 In another case, two South African police officers were arrested over the fatal shooting of a 16-year-old boy, Natalia Julies, which had sparked violent street protests in Johannesburg’s Eldorado Park suburb.57 According to Unkanjeni, 51 52 53 54 55 56 57 Rehad Desai, and Jim Nichol, ‘The Marikana Massacre and the Contradictions of South Africa’s Non-Racial Capitalism’ (International Socialist Review, 2014) <https://isreview. org/issue/101/marikana-massacre-and-contradictions-south-africas-nonracial-capitalism >accessed 30 September 2022. Cf Bill Dixon, ‘Power, Politics and the Police: Lessons from Marikana’ (2019) 57(2) Journal of Modern African Studies 203–220. Mandla Khoza, ‘Police Quiet on Son’s Death Probe’ (The Star, 2011) < https://www.iol. co.za/the-star/police-quiet-on-sons-death-probe-1147748> accessed 30 September 2022. Sunday Times, ‘Police Kill Boy in Mpumalanga Protest’ (Timeslive, 27 February 2015) < https:// www.timeslive.co.za/news/south-africa/2015-02-27-police-kill-boy-in-mpumalangaprotest/> accessed 30 September 2022. Lauren Isaacs, ‘Leo Williams, ‘The Laingville Boy Shot in Service Delivery Protest, Dies’ (2020) <https://ewn.co.za/2020/08/17/leo-williams-the-laingville-boy-shot-in-servicedeliery-protest-dies> accessed 30 September 2022. Franny Rabkin, ‘sandf Inquiry Clears Soldiers of the Death of Collins Khosa’ (Mail&Guardian, 27 May 2020) <https://mg.co.za/coronavirus-essentials/2020-05-27sandf-inquiry-clears-soldiers-of-the-death-of-collins-khosa/ > accessed 30 September 2022. Azarrah Karrim, ‘Nateniël Julies Shooting: Eldorado Park Detective Arrested as Third Suspect’ (News24, 1 September 2020) <https://www.news24.com/news24/southafrica/ news/nathaniel-julies-shooting-eldorado-park-detective-arrested-as-third-suspect20200901>accessed 30 September 2022. International Human Rights Law Review (2022) 1–24 12 10.1163/22131035-11020003 | tshoose and rapatsa police officers allegedly shot Julies after he failed to respond to police’s questions. The victim’s family indicated that he was at a tuck shop buying biscuits when this incident occurred.58 Furthermore, during student protests at Wits University in Johannesburg, members of the police force reportedly shot dead a bystander, Mthokozisi Ntumba, while leaving a nearby clinic in Braamfontein.59 In another case, Mr Andries Tatane died on 13 April 2011 after the police used rubber bullets and batons to subdue him during a service delivery protest in Ficksburg. It is important to note the findings of the South African Human Rights Commission (‘sahrc’) regarding the Tatane incident.60 The sahrc identified the following troublesome facts related to the issue of police brutality, acting in pursuance of their mandate in terms of section 205 of the Constitution: – Firstly, it was found that members of the police ignored the provisions of the Regulation of Gatherings Act,61 by using excessive force resulting in the injury and/or death of one protestor; – Secondly, the police used a degree of force that was disproportionate to the factual circumstances of the case, and in so doing, unduly limited and violated the deceased protestor’s right to life in terms of section 11 of the Constitution and/or freedom and security of the person in terms of section 12 of the Constitution; and the protesting public and deceased protestor’s right to peacefully (unarmed)assemble, demonstrate, picket and present petitions; – Thirdly, the police were not suitably equipped to quell public disorder and failed, under the circumstances, to devise a plan to regulate and monitor the gathering; – Fourthly, the police failed to authorise a suitably qualified and experienced member to represent police during consultations or negotiations contemplated in accordance with section 4 of the Regulation of 58 59 60 61 Unathi Nkanjeni, ‘Justice for Natheniël Julies: What you Need to Know about the Teen’s Death’ (Times Live, 28 August 2020) <https://www.timeslive.co.za/news/southafrica/2020-08-28-justice-for-nathaniel-julius-what-you-need-to-know-about-the-teensdeath/>accessed 30 September 2022. Unathi Nkanjeni, ‘Mthokozisi Ntumba: Know the Man who was Killed in the Wits Protest Crossfire’ (Sunday Times, 12 March 2021) <https://www.timeslive.co.za/news/southafrica/2021-03-12-mthokozisi-ntumba-know-the-man-who-was-killed-in-the-wits-protestcrossfire/> accessed 30 September 2022. South African Human Rights Commission, ‘Report on the Findings of the Investigation into the killing of Free State Activist, Andries Tatane’ (2012) <https://www.sahrc.org.za/ index.php/sahrc-media/news-2/item/184-report-on-the-findings-of-the-investigationinto-the-killing-of-free-state-activist-andries-tatane >accessed 30 September 2022. Regulation of Gatherings Act 205 of 1993 (as amended). International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 13 Gatherings Act. It was further resolved that if a suitably qualified person had been chosen, such member would have reasonably foreseen that the demonstration in question would degenerate into violence and prepared for that eventuality; – Fifthly, the police failed to ensure that adequate numbers of police officers were deployed to minimise or avoid the destruction of public property.62 In July 2021, we witnessed the sluggish conduct of the police service in dealing with anarchism and the state of security in South Africa. The July unrest that occurred in parts of Gauteng and Kwa-Zulu Natal (kzn) in July 2021 was premised on lawlessness, which culminated in violence, destruction and looting from 8 to 17 July 2021. This unrest resulted in 354 deaths and an estimated cost to the economy of about R50 billion due to the damage and destruction that took place.63 In its findings, the report of the expert panel into the July 2021 Civil Unrest, inter alia, found that; (a) the security cluster, including the police service have respectively failed to protect the country;64 (b) the security services are understaffed and under-resourced and are therefore thinly spread on the ground. According to the Report, this can be attributed to the fact that there are inefficiencies within the security services which, if addressed, could certainly go a long way towards overcoming the resource constraints, as would smart partnerships with the private sector and more effective community engagement; and (c) neither the politicians nor the security services anticipated that the violence would take the form that it did, that is the looting and destruction of malls, warehouses and other suppliers in the food value chain. In its recommendations, the expert panel emphasised that the capacity of the security services needs to be strengthened to respond effectively to all situations. Furthermore, the security services must use all the lawful levers available to them, particularly the need to intercept communications, in a lawful manner, where the security of the State is at stake, as well as to strengthen their technological capacity. The panel of experts also recommended that policy pronouncements on the responsibilities and powers of the police need to be streamlined and communicated clearly to police officers. 62 63 64 South African Human Rights Commission (n 60). Report of the Expert Panel into the July 2021 Civil Unrest, <https://www.thepresidency. gov.za/download/file/fid/2442> accessed 30 September 2022. Ibid. International Human Rights Law Review (2022) 1–24 14 10.1163/22131035-11020003 | tshoose and rapatsa These incidents of police brutality and maladroit are just a few examples that highlight the need to reconfigure and invest in improving the methods and techniques of policing.65 5 Legal Consideration on the Role and Powers of the Police Service 5.1 The Constitution of the Republic of South Africa, 1996 In terms of section 205(3) of the Constitution, the objectives of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.66 It is important to note that in exercising their powers and functions, the police service is required to adhere to the prescripts of the Constitution. For example, section 12 of the Constitution provides that everyone has the right to freedom and security of the person, which includes the right to freedom from all forms of violence from either public or private bodies. This right protects an individual against invasions of physical integrity through arbitrary arrest, violence, torture, cruel treatment or punishment. Furthermore, section 12(1)(c) imposes positive duties on the state to protect individuals from the use of an unconstitutional degree of force by the police. Similarly, section 13(3)(b) of the South African Police Service Act67 provides that where a member who performs an official duty is authorised by law to use force, he/she may use only the minimum force which is reasonable in the circumstances. In addition, section 49(1) and (2) of the Criminal Procedure and Evidence Act (‘cpa’)68 empowers the police to apply force in circumstances where a suspect attempts to flee, or is posing a danger or threat to the lives of the police. In considering the constitutionality of sections 49(1) and (2) of the cpa, the Supreme Court of Appeal in Govender v Minister of Safety and Security,69 held that this section ought to be interpreted restrictively to survive constitutional scrutiny. In S v Walters,70 the Constitutional Court confirmed the unconstitutionality of section 49(2) of the cpa and the provision was declared 65 66 67 68 69 70 See, in general, International Association of Chiefs of Police, ‘Crowd Management’ (2019) <https://www.theiacp.org/sites/default/files/2020-08/Crowd%20Management%20 FULL%20-%2008062020.pdf>accessed 30 September 2022. See also chapter 2 of the White Paper on Policing, 2016 <http://www.policesecretariat.gov. za/downloads/bills/2016_White_Paper_on_Policing.pdf>accesed 30 September 2022. South African Police Service Act 68 of 1995. Criminal Procedure and Evidence Act 51 of 1977(as amended) (hereafter ‘the cpa’). Govender v Minister of Safety and Security (2001) 2 sacr 197 (sca) paras 23–24. S v Walters (2002) 2 sacr 105 (cc) para 77. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 15 invalid, albeit not with retrospective effect. The amended section 49 of the cpa reads as follows: Use of force in effecting arrest 49(1) For the purposes of this section(a) “arrestor” means any person authorised under this Act to arrest or to assist in arresting a suspect; and (b) “suspect” means any person in respect of whom an arrestor has or had a reasonable suspicion that such person is committing or has committed an offence. (2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him/her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he/she believes on reasonable grounds: (a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm; (b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or (c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm. In light of the above, it is evident that the existing section 49(2)(b) of the cpa allows the use of potentially lethal force simply because there is a suspicion of the commission of a crime involving the infliction of, or the threatened infliction of, serious bodily harm. Nevertheless, section 49 of the cpa ought to be applied circumspectly by the police. This means that they should only use force if there is a substantial risk that the suspect will cause someone’s imminent or future death or grievous bodily harm if the arrest is delayed. Furthermore, they can use force only if the offence for which the arrest is sought is in progress, is of a forcible and serious nature, and involves the use of life – threatening violence, or if there is a strong likelihood that it will cause grievous bodily harm. International Human Rights Law Review (2022) 1–24 16 10.1163/22131035-11020003 | tshoose and rapatsa Grappling with the matter of the use of force in effecting an arrest, the Constitutional Court in Ex parte: Minister of Safety and Security: In re S v Walters,71 citing the judgment of the United States Supreme Court in Tennessee v Garner,72 in the context of the history of police violence and brutality from which South Africa emerged, stated the following: ‘[o]ur Constitution demands respect for the life, dignity and physical integrity of every individual. Ordinarily this respect outweighs the disadvantage to the administration of justice in allowing a criminal to escape’.73 Consequently, section 49 of the cpa was amended by aligning the words of the proviso, for example, the criteria for the use of deadly force in order to effect the arrest of a suspect, with the criteria tabulated in S v Walters.74 Subsequently, these guidelines were adopted by the South African Police Service under section 13(3)(b) of the South African Police Service Act.75 In addition, section 49 of the cpa ought to be interpreted in line with other relevant provisions of the Constitution. For example, section 205(3) of the Constitution provides that members of the police have a duty to, among others, maintain public order, protect and secure inhabitants of the Republic, and uphold and enforce the law. Section 7(2) of the Constitution requires the State [and therefore the police] to respect, protect, promote and fulfil all fundamental rights enshrined in the Constitution. With regard to the protection of the freedom and security of the person. Section 12(1)(c) of the Constitution requires the State to protect individuals, both negatively and positively, by refraining from such invasions itself and by restraining or discouraging private individuals from such invasions.76 The State is required to take appropriate steps to reduce violence in public and private life. In cases dealing with persons assembling peacefully, demonstrating, picketing, and protesting, the Regulations of Gatherings Act77 empowers the police to quell protesters’ anger and outbursts of violence by using force appropriate to the prevailing circumstances. The object and purport of these sections is to protect the safety and security of all persons and not to unduly threaten and undermine the rights of persons to assemble, demonstrate, protest and picket. In protecting civilians against the brutality of law enforcement agencies, the Constitution affords any person the right to take a dispute to the relevant court 71 72 73 74 75 76 77 Ex Parte: Minister of Safety and Security and Others: In re S v Walters 2002 (2) sacr 105 (cc). Tennessee v Garner, 471 US 1 (1985). Ex Parte: Minister of Safety and Security and Others (n71) para 44. Phillip Burring and Managay Reddi, ‘Section 49, Lethal Force and Lessons from the De Menezes Shooting in the United Kingdom’ 2013 (46) De Jure 943. South African Police Service Act 68 of 1995. Christian Education South Africa v Minister of Education (2000) (4) sa 757 (cc) para 47. Regulations of Gatherings Act. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 17 and/or tribunal to be settled.78 It is therefore not unusual for persons whose rights have been infringed to sue the Minister of Police for restorative measures and monetary compensation for the misfortunes and harms they have endured because of the conduct of police.79 In Mahlangu and Another v Minister of Police,80 the court dealt with the issue of the police’s failure to perform their constitutional obligations. In this case, the Minister of Police was ordered to pay an amount of R550 000 to Mr Mahlangu and R500 000 to Mr Mtsweni for their unlawful arrest and detention. Commenting on the role of the police in society, the Constitutional Court in K v Minister of Safety and Security,81 held that: Our Constitution mandates members of the police to protect members of the community and to prevent crime. It is an important mandate, which should quite legitimately and reasonably result in the trust of the police by members of the community. Where such trust is established, the achievement of the tasks of the police will be facilitated. In determining whether the minister is liable in these circumstances, courts must take account of the importance of the constitutional role entrusted to the police and the importance of nurturing the confidence and trust of the community in the police in order to ensure that their role is successfully performed. Toni AJ in Sibuta and Another v Minister of Police and Another,82 where the court dealt with an issue relating to police conduct, said: Police officers have, in keeping with public policy considerations, a public law duty to assist a detained person by advising him/her of his/her right to bail on his/her first appearance and inform the court of circumstances that militate in favour of granting a detained person bail to ensure that 78 79 80 81 82 Section 34 of the Constitution. For further reading. see Chuks Okpaluba, ‘Prosecutorial Negligence and Negligent Police Investigation: An analysis of Recent Canadian and South African Case Law (1)’ (2018) Speculum Juris 34–53; Christopher Roederer, ‘The Constitutionally Inspired Approach to Vicarious Liability in Cases of Intentional Wrongful Acts by the Police: One Small Step in Restoring the Public’s Trust in the South African Police Services’ (2017) South African Journal on Human Rights 575–606; Chuks Okpaluba, ‘State Liability for Mutinous Acts of Police and Military Officers: A Critique of Lesotho and Zimbabwe Cases in Light of the Modern Test for Vicarious Liability in South Africa’ (2018) Obiter 317–344. Mahlangu and Another v Minister of Police (cct 88/20) (2021) zacc 10 (14 May 2021) paras 56–57. K v Minister of Safety and Security (2005) (6) sa 419 (cc) para 52. Sibuta and Another v Minister of Police and Another (ECG) (unreported case no 3709/2016 and 3710/2016, 15-1-2020). International Human Rights Law Review (2022) 1–24 18 10.1163/22131035-11020003 | tshoose and rapatsa their right to a fair trial enshrined in the constitution is not infringed. This is the basic tenet of the rule of law… [which ought to] be adhered to at all times. By their failure to uphold their public law duty, police officers make themselves, and so their employer, vulnerable to delictual liability on the ground of causation which could have been avoided had they acted lawfully and within the bounds conferred upon them by the law and the Constitution. In De Klerk v Minister of Police,83 the Constitutional Court in its minority judgment ordered the Minister of Police to pay R300, 000 for the wrongful arrest of Bryan de Klerk in 2012.84 In other cases, for example, between January and May 2021, it was reported that saps was ordered to pay more than R140 million in wrongful conduct claims.85 Despite the number of claims brought against the Minister of Police and the quantum of compensation paid out, it seems to have had little effect on the overall performance of the police, and the systemic implications of similar types of violations do not appear to have been taken to heart.86 6 Selected International and Regional Instruments and Reports Denouncing the Use of Force by Police The issue of excessive use of force by law enforcement officials is addressed in various international and regional instruments. Article 3 of the Universal Declaration of Human Rights87 recognises the right to life, liberty and security of the person, and places the duty on the state to protect the life of its inhabitants. Within a regional framework, the African Charter on Human and People’s Rights88 provides in article 6 that “every individual shall have the right to liberty 83 84 85 86 87 88 De Klerk v Minister of Police (2019) (12) bclr 1425 (cc). Ibid paras 8 and 96. Linda Lensor, ‘saps’s Misconduct Bill for Five Months totals More than R140m’ (Businesslive, 20 June 2021) <https://www.businesslive.co.za/bd/national/2021-06-20-sapss-misconductbill-for-five-months-totals-more-than-r140m/?utm_term=Autofeed&utm_medium= Social&utm_source=Facebook#Echobox=1624203208 >accessed 30 September 2022. Rinda Botha, and Jo-Mari Visser, ‘Forceful Arrests: An Overview of Section 49 of the Criminal Procedure Act 51 of 1977 and its Recent Amendments’ (2012) 15(2) Potchefstroom Electronic Journal 356–365. Universal Declaration of Human Rights, G.A. res. 217A (iii), UN Doc A/810 at 71 (1948). African Charter on Human and People’s Rights, adopted 27 June 1981, 21 ilm 58 (1982). International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 19 and to the security of the person. In addition, that no one may be deprived of his freedom except for reasons and conditions previously laid down by law’. Furthermore, General Comment No. 3 of the African Commission on Human and Peoples’ Rights on the right to life provides that the primary duty of law enforcement officials is to protect the safety of the public.89 The African Commission enjoins States to take all reasonable precautionary measures to protect life and prevent excessive use of force by its agents, including the provision of appropriate equipment and training, as well as, wherever possible, careful planning of individual operations. In addition, States must adopt a clear legislative framework for the use of force by law enforcement agents and other actors that complies with international standards, including the principles of necessity and proportionality. Moreover, the Human Rights Committee in its General Comment No. 37 on the right of peaceful assembly90 provides that States are responsible under international law for the actions and omissions of their law enforcement agencies. In light of the above, it is clear that acts of police brutality are against the Constitution, other relevant pieces of legislation and the international human rights treaties that South Africa has ratified, in particular the International Covenant on Civil and Political Rights91 and the African Charter on Human and Peoples’ Rights.92 The above instruments protect the right to life, the right to not be subjected to torture and other cruel, inhuman or degrading treatment and the right to peaceful assembly, and stipulates that the dignity of every individual should be respected. To this end, States have an obligation to investigate, in an effective, impartial and timely manner, any allegation or reasonable suspicion of unlawful use of force or other violations by law enforcement officials. In addition, the United Nations Code of Conduct for Law Enforcement Officials directs law enforcement officers to protect the dignity of all persons and uphold the human rights of all individuals when carrying out their duties.93 89 90 91 92 93 The African Charter on Human and Peoples’ Rights, General Comment No. 3 <https:// www.achpr.org/legalinstruments/detail?id=10>accessed 30 September 2022. General Comment number 37 of the U.N. Human Rights Committee, adopted by the Committee at its 129th session (29 June to 24 July 2020). International Covenant on Civil and Political Rights, 1966, 999 unts 171. African Charter on Human and Peoples’ Rights, (n88) 1981. Article 2 of the United Nations Human Rights: Code of Conduct for Law Enforcement Officials, resolution 34/169 of 1979 <https://www.ohchr.org/en/professionalinterest/pages/ lawenforcementofficials.aspx >accessed 30 September 2022. International Human Rights Law Review (2022) 1–24 20 7 10.1163/22131035-11020003 | tshoose and rapatsa Recommendations for Dealing with Cases of Police Brutality, Especially Related to Large Crowds In order to reduce the incidence of police brutality in cases relating to large crowds, the Farlam Commission report recommended that:94 – The Ministry of Police must implement a training programme where all Public Order Policing members are extensively and adequately trained in such measures and methods; – The government should publicly commit itself to the professionalisation of the police by appointing highly trained and skilled personnel, establishing a body to set and regulate standards, and enforcing the code of conduct and a police code of ethics; – The code of conduct/ethical code should emphasise the fundamental duty of the saps to be accountable for the use of force, and to account honestly to the public; – The saps should demonstrate by word and deed that failure to comply with this duty has materially negative career consequences; – The saps should review the adequacy of the training of members who use specialised equipment (e.g. water cannons and video equipment), and ensure that all members who may use such equipment are adequately trained to do so; – Public order policing must always be appropriately staffed, equipped, and maintained in an appropriate state of readiness. Furthermore, the public order policing capacity of the saps needs to be brought up to the level that is appropriate in terms of the scale of the public order policing problem. In addition, democratic policing requires that the police simultaneously stand outside of politics and protect democratic political activities and processes (e.g. freedom of speech, public gatherings, and demonstrations). When intervening in conflicts, the police must be guided by the principle that everyone shall be subject to such limitations as are determined by law solely for securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society; – Lastly, the Commission acknowledged that the saps needs to respond to protests in a fashion that does not result in needless bloodshed, hence the need to revisit training regimes and adequately equip police officers for crowd control. 94 Farlam Commission Recommendations 2015 <https://pmg.org.za/files/15081919Farlam Commission.pdf> accessed 30 September 2022. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 21 It is submitted that without the strong political will to implement the above recommendations for improving public policing in South Africa, the scourge of police brutality will persist. 8 Recommendations for Mapping the Way Forward 8.1 Challenges to Police Service Delivery In general, challenges to police service delivery exist from time to time, but when the lack of service delivery is experienced over long periods, it points to deeprooted issues that need intervention, not merely observation. Consequently, the discussion below provides some recommendations that will assist the police service to better discharge their duties and obligations. Firstly, there is a need to reinforce and capacitate the police service, as this will enable them to discharge their obligations effectively. Furthermore, the police should work towards rebuilding the trust of the communities and build or strengthen formal and informal relations between themselves and the communities they serve, including community leaders. Secondly, police officers at station level should receive adequate training in crowd control and should participate in exercises to simulate what to do in situations of extreme violence. Thirdly, the public order police unit needs to be properly capacitated and equipped, and their methods and training should be revised to deal with largescale operations. 8.2 The Need for Proactive Policing Shibley and Liber acknowledge that the factors contributing to the incidence of police brutality are numerous and complex, and in many instances, probably not entirely understood.95 According to the authors, some of the problems that contribute to a culture of police brutality include, inter alia, improper training, lack of accountability and prosecution, inadequate institutionalised training, and the overall stress of the job.96 Consequently, there is a need for the police force to be predictive and proactive. Meijer and Wessels define predictive policing as the collection and analysis of data about previous crimes for the identification and statistical prediction of individuals or geospatial areas with an increased probability of criminal activity, 95 96 Spangenberg Shibley and Liber llp, ‘What are the Main Causes of Police Brutality?’ (Spanglaw, 2020) <https://www.spanglaw.com/blog/2020/december/what-are-the-maincauses-of-police-brutality-/ >accessed 30 September 2022. Ibid. International Human Rights Law Review (2022) 1–24 22 10.1163/22131035-11020003 | tshoose and rapatsa in order to facilitate the development of policing intervention and prevention strategies and techniques.97 The term “proactive policing” encompasses a number of methods designed to reduce crime by using prevention strategies.98 By definition, it stands in contrast to conventional “reactive” policing, which for the most part responds to crime that has occurred.99 The elements of proactivity include an emphasis on prevention, mobilising resources based on police initiative, and targeting the broader underlying forces that may be causing crime and disorder.100 Predictive policing attempts to predict when and where crimes will occur again in the future, by using sophisticated computer analyses of information about previously committed crimes.101 8.3 The Need to Improve the Psychological Support Offered to Members of the Police Service Over and above the need to introduce proactive policing, it is important to note that psychological support for members of the police service will assist them to deal with emotional and psychological issues associated with their daily work activities and personal problems. When police officers are better able to manage their emotions in stressful situations, understand which emotions they are experiencing, and communicate effectively despite being in high-stress situations, they will be in a better position to de-escalate complex scenarios rather than resorting to the use of excessive force.102 In other words, there is a tipping point at which excessive force begins to be used, and this can be eliminated if police officers receive adequate support for their mental health needs. In addition, post-traumatic stress disorder can be a risk factor for the use of excessive or deadly force. Therefore, providing swift and adequate support to officers who have experienced trauma on the job seems to be a prerequisite for preventing the use of excessive force.103 The first step is to provide adequate 97 98 99 100 101 102 103 Albert Meijer, and Martijn Wessels, ‘Predictive Policing: Review of Benefits and Drawbacks’ (2019) 42(12) International Journal of Public Administration 1032–1033. Christopher Sullivan, and Zachary O’ Keeffe, ‘Evidence that Curtailing Proactive Policing can Reduce Major Crime’ (2017) 1 Nature Human Behaviour 730–737. Lawrence Sherman, ‘Attacking Crime: Police and Crime Control’ (1992) 15 Modern Policing 172–173. David Weisburd et al, ‘Proactive policing: A Summary of the Report of the National Academies of Sciences, Engineering, and Medicine’ (2019) 14 Asian Journal of Criminology 147–148. Meijer, and Wessels (n 97). Kevin Sweeney, ‘Understanding Emotion as a Strategy in Policing’ (2021) The Police Journal:Theory, Practice and Principles 2–5. Russell Jones and Ashraf Kagee, ‘Predictors of Post-Traumatic Stress Symptoms among South African Police Personnel’ (2005) 35(2) South African Journal of Psychology 209–223. International Human Rights Law Review (2022) 1–24 who will watch the watchers? | 10.1163/22131035-11020003 23 funding to support the mental health needs of police officers, as well as reducing stigma and encouraging police officers to come forward when they are struggling with mental health issues. In most societies, mental health is still surrounded by stigma, which means that it is important for police officers to feel that it is acceptable for them to talk about their mental health struggles.104 Rather than feeling isolated with their trauma, stress, or unmanageable emotions, police officers should be made to feel that they know exactly who to speak to and that this support will be easily accessible when it is most needed.105 9 Conclusion This article looked at police brutality through the lens of three broad theories: the social conflict viewpoint, symbolic interactionism, and control balance theory. In addition, the article provided a theoretical framework for explaining police aggression. The main objective was to demonstrate why just a few ‘bad-apple’ officers are responsible for such heinous deeds, and why, given the political background of the country, they choose to employ excessive force against civilians. Furthermore, this article attempted to show that the problem of police brutality has an inherent adverse effect on the realisation of human rights and the enhancement of human freedoms and capabilities. Considering the above discussion, it is clear that the issue of police brutality in South Africa has far-reaching consequences for the rule of law and respect of civil liberties as enshrined in the Constitution. Consequently, the retraining of police officers on how to manage rowdy crowds ought to be a priority of government. In addition, there is a need to revamp the intelligence system on policing. In other words, national intelligence personnel should work together with the police, communities, and community policing forums, so that they can quell violence before it reaches unprecedented levels. Findlay highlights the need to invest in changing the police culture and improving the service function.106 To conclude, Sir Peel Robert eloquently remarked that: 104 105 106 Makhawukana RV et al, ‘Stress and Coping Mechanisms of Officers of the South African Police Service based in Tzaneen, Limpopo Province, South Africa’ (2019) 25 South African Journal of Psychiatry 1–7. Carolyn Burns and Marla Buchanan, ‘Factors that Influence the Decision to Seek Help in a Police Population’ (2020) 17 Int. J. Environ. Res. Public Health 14–16. Mark Findlay, Introducing policing: Challenges for police and Australian communities (Oxford University Press, Australia, 2004) 172. International Human Rights Law Review (2022) 1–24 24 10.1163/22131035-11020003 | tshoose and rapatsa Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.107 107 Peel (n 1). International Human Rights Law Review (2022) 1–24