14 Jul 2008: ISS Today: Cops Versus Cops In Johannesburg: What Happens To The Law?

14 July 2008: Cops Versus Cops In Johannesburg: What Happens To The Law?

 

The shootout that ensued between protesting officers of the Johannesburg Metro Police Department (JMPD) and the South African Police Service (SAPS) late last month that led to the protest spilling over onto the Johannesburg M2 highway, has raised much concern about governance and law in the country. In as much as the incident may be perceived as an altercation between two police agencies, it must be seen against the backdrop of JMPD officers as protestors and SAPS members as performing their duty. In a matter of this magnitude, law and procedure is of paramount importance.

 

Public gatherings in South Africa are regulated by the Regulation of Gatherings Act(205 of 1993). The Act requires organisations intending to gather to follow certain procedures before permission to gather can be granted. One such procedure is a written notice to be submitted to the local council representative responsible for authorising gatherings. If a gathering takes place without the required authorisation or if permission to gather has been refused and it still takes place, the gathering is regarded as unlawful. The court can then impose a prison sentence of up to one year or a fine of up to R20 000, or both.

 

In respect to the JMPD/SAPS incident, it has been argued that the gathering “…..was not a public gathering……workers had a right to convene at their place of work” (The Times, 01 July 2008). Notwithstanding this, the protest did spill over onto the M2 Johannesburg highway and traffic was disrupted. Incidents of assault by JMPD officers on commuters who were prevented from going home were also reported. These factors alone amount to obstruction of a public road and common assault – matters that JMPD officers can be criminally charged for. The issue of a legal or illegal gathering is a matter to be decided by a court of law.

 

A response from the police in an incident like this is obligatory. The degree of the intervention, of course, must be in proportion to the circumstances of the case.
The Johannesburg Crime Combating Unit (CCU) or Public Order Police Unit as they were previously known, were the unit of the police that responded to the above incident given that part of their mandate is the management of crowds and events. Also governed by the Regulation of Gatherings Act,as well as the SAPS Act (68 of 1995), on arrival at the incident, they would have been obliged to follow procedure as prescribed by the Act. The first step would have been to negotiate with the convenor of the gathering. The operational commander of the CCU would also have done a threat assessment of the situation based on tactical information in terms of risk, discussions with the convenor, the history of the protestors, past experiences, aggravating factors, and the presence of weapons and firearms. If the commander in his assessment determined that the protestors were disruptive or a danger to person or property, he would then ask the crowd to disperse. He would again in aloud voice and in two languages ask the crowd to disperse within a specified time. If the command failed to disperse the protestors, the commander then has the authority to order the use of minimum force to disperse the protestors. Minimum force is the use of shotguns with reduced rounds (rubber bullets) fired at a forty-five degree angle, tonfas, water canons and stun grenades. The degree of force must not be greater than is necessary for dispersing the participants and must be in proportion to the circumstances of the case and the object to be attained.

 

The circumstances of the incident are important to unpack in order to determine if procedure was followed by the police in this instance.

 

A newspaper report (The Star, 26 June 2008) of the incident verifies that procedure was indeed followed by the CCU before the shootout ensued: i.e. the CCU’s attempted to negotiate with the protestors; a public road (highway) was blocked by protesting JMPD officers; commuters were prevented from going home; the CCU had asked the protestors to disperse, and the protestors refused. At this point, minimum force as prescribed by the Regulations of Gatherings Act, was used.  A stun grenade was thrown into the crowd and police thereafter fired rubber bullets to disperse them. JMPD officers retaliated by shooting at CCU members using service weapons (live rounds). According to the Act, this would justify the use of maximum force against the protestors. Fortunately, the altercation did not amount to this, and the incident was eventually quelled.

 

While the incident can be seen as damaging to policing and police relations in the country because of the open exchange of fire between the two law enforcement agencies, and would naturally cause concern with the general public in terms of respect for the law, it is unfair to allow one incident to result in a loss of confidence in the law enforcement agencies. This altercation should be seen in the context of JMPD as civil servants protesting a wage dispute, and SAPS as law enforcers performing their duty. Although serious, subsequent developments indicate that this was an isolated incident and that the relationship between the two agencies was not damaged. This incident should also not be seen as an indication that this kind of confrontation is likely to repeat itself.

 

Bilkis Omar, Researcher, Crime, Justice and Politics Programme, ISS, Tshwane (Pretoria)

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