CHAPTER 2: Background and legislative framework

CHAPTER 2
Background and Legislative Framework


SAPS` COSTLY RESTRUCTURING
A Review of Public Order Policing Capacity

 


Monograph No 138, October 2007

 

Bilkis Omar




Background

 


The public order policing units of the South African Police Service (SAPS) are tasked with managing protest marches and events. They are also tasked with performing crime combating functions. The units have undergone considerable changes in the past 15 years. Operating as the notorious apartheid-era Riot Squads in the 1980s, then as the feared Internal Stability Division (ISD) in the early 1990s, the units had to be transformed after the democratic elections in 1994 to conform to international policing standards. They became the Public Order Police Units (POPU) in 1997 and their approach became more community-oriented, emphasising ‘crowd management’ as opposed to ‘crowd control’.


Public order units have a unique organisational structure. At the head of the unit is the Unit Commander. Next in line are the Operational Commanders or Company Commanders. As the managers in charge of the operational planning of the units and they decide, for example, how many members will perform crowd management in a particular area on a particular day, and how many will assist in crime combating duties. The Operational Commanders or Company Commanders also oversee the information office of the units, whose members are tasked to attend events and ‘golden triangle’ meetings (meetings between those seeking permission to march and law enforcement agencies).


The members of the information office, while falling under the ambit of support services, may also be tasked to perform operational duties. Each Operational or Company Commander has platoons that fall under his command. The number of platoons varies from unit to unit. While some units may have two platoons per command, others may have five. Ideally each platoon should consist of 36 members, but this number varies from unit to unit and according to the tasks that members are deployed to perform. Falling under each platoon are ‘sections’, with approximately eight to ten members in each section. Once again the number of sections and the number of members per section varies from unit to unit.


Organisational structure of Crime Combating Units (CCUs)

 

 

In 2002 the SAPS management made a decision to transform the Public Order Police Units into Area Crime Combating Units (ACCUs). The decision was based on the decrease in the number of protest marches since the demise of apartheid. In addition, the Public Finance Management (Act 1 of 1999) was demanding value for money in departments’ budgeting process; the implication being that the POPUs were not being utilised effectively. Under the post-2002 name of ACCUs, crime combating became the primary function of these public order units, while crowd management was relegated to a secondary function. The ACCUs were decentralised to the seven area policing levels in Gauteng, reporting to the area commissioner.


Then in 2006, the ACCUs underwent a further restructuring and were renamed simply as Crime Combating Units (CCUs) reflecting the fact that the previous decentralisation of the ACCUs had been reversed. Although reduced in size in comparison to the ACCUs, and operating from a smaller number of more centralised locations, the CCUs were still required to service the same population and overall geographical area. In effect, the restructuring meant that there were fewer CCU members doing the same work as the former ACCUs. Of equal importance was that, in terms of the capacity of the newly formed CCUs, this restructuring had taken place at a time when the number of crowd control incidents was escalating quite dramatically, due largely to the increasing number of demonstrations and protest marches.


The Regulation of Gatherings Act


Public gatherings in South Africa are regulated by the Regulation of Gatherings Act (205 of 1993). The Regulation of Gatherings Act (RGA) was developed in response to the findings of the Goldstone Commission of Inquiry which was set up ‘to investigate and expose the background and reasons for violence, thereby reducing the incidence of violence and intimidation’ (National Peace Accord 1991). The Goldstone Commission found that violence and police brutality were widely prevalent at mass marches and demonstrations in the early 1990s. It recommended that citizens be accorded the right to participate in peaceful public gatherings, and that the role of the police in these gatherings be changed.


Figure 2: Procedures of authorisation to gather or demonstrate

 

The legislative framework considers the role of the police and event organisers in the planning and execution of mass gatherings, reflecting on the practical lessons learnt in the 11 years since the Act was passed.


Procedures prior to an event


The Regulation of Gatherings Act requires organisations and associations intending to hold gatherings to undertake certain procedures before permission to gather can be granted. These procedures require a meeting, referred to as a ‘golden triangle’ meeting, between the convenor of the organisation making the application, the responsible officer (either a metro police officer or the local council representative responsible for authorising events), and the authorised member of the SAPS. At the meeting ‘the manner in which the gathering or demonstration will be carried out is discussed’ in relation to the planning and logistics of the event (A Guide to the Regulation of Gatherings Act 2007:6).


To obtain authorisation for a gathering or demonstration, convenors have to submit a notification form to the responsible officer of the metro police or to a local council representative. There is a limited period within which this application may be submitted: it may not be submitted more than seven days before the planned date of the event, and it must be submitted at least 48 hours before the commencement of the event. Within 24 hours of the responsible officer receiving the notice, the convenor is notified of a date that has been set for a meeting with the responsible officer and the authorised member of the SAPS to discuss the logistical issues of the gathering or demonstration. The decision to authorise or prohibit a planned gathering is made according to the outcome of this meeting.


If a gathering takes place without notice being given to the responsible officer, or when notice has been provided but authorisation to hold the gathering has been refused, then the gathering is regarded as unlawful. The court can impose a prison sentence of up to one year, or a fine of up to    R20 000, or both (The Regulation of Gatherings Act 1993:17). The point regarding the punishment is significant because many unlawful gatherings take place and the public is in general unaware of the punishment involved.


Planning the event


The golden triangle meeting includes the convenor of the organisation making an application, the responsible officer (either a metro police officer or the local council representative responsible for authorising events), and the authorised member of the SAPS. These meetings play an important role in creating a cooperative environment between the various parties. The meetings allow law enforcement agencies to plan adequately for the event, and they make each party responsible for the behaviour of their members.


In planning for an event (i.e. after authorisation), the SAPS Crime Combating Unit (CCU) information officer or designated person draws up a detailed operational plan. This includes:


  • A Joint Operational Command (JOC) list consisting of the SAPS Crime Combating Units (CCU), metro police, disaster management, emergency services, SAPS Visible Police (VISPOL), a member of SAPS legal services, a SAPS media officer, and the convenor of the organisation.

  • A situation report on the gathering, which includes the route for the march and the key points (point of assembly, start of march, time of handing over of memo, and time of dispersal). The number of participants, marshals, and the venue for parking buses and taxis is also included. Possible threats and factors relating to disruption of traffic, blocking of entrances, refusal to disperse, looting, and damage to property is also furnished. The situation report also provides information on whether counter-participants2 will affect the event. The document also has to reflect the number of SAPS CCU members, metro police officers and SAPS VISPOL members who will be present.

  • The operational plan states the mission of the SAPS which is ‘to establish uncompromising security measures, limit the probability of critical incidents occurring, and limit the impact of any critical incidents through contingency planning’.


  • The operational concept of the SAPS is also clearly laid out in the operational plan: to ensure a safe and secure environment, for VISPOL and CCU members to protect the public and property from any dangers that may result from the marchers, for members of metro police to regulate traffic along the designated routes, for members of SAPS Crime Intelligence to gather and collect intelligence regarding threats before, during, and after the event, and assist the management of operations to confiscate dangerous weapons. All arrests are to be coordinated via the operational commander and reported immediately. The operational commander is also responsible for tactical decisions regarding the use of force, unless force is used in self defence by a member (Van der Merwe 2006a).

The operational plan also provides information on procedures on the day of the event, as follows:


  • Execution or overseeing of the event is done by commanders of metro police, SAPS VISPOL and the CCUs. A Joint Operational Command is set up on the day of the gathering and each commander briefs his/her members prior to the event. The task of metro police is to patrol the area, assist with escorting marchers and regulate traffic. VISPOL members patrol along the route to prevent crime, and CCU members patrol, keep ready, escort, and if necessary, block the participants.

  • Coordinating instructions are instructions designed to follow the operational plan, which serve to synchronise all the parties. An element of coordination is the provision of situation reports after every movement and incident, utilising the same communication channels, and radio procedures, coordinating members’ posts, registering the incident on the IRIS system, and providing instructions to the media officer.

  • Admin and control instructions pertain to instructions regarding equipment, uniforms, arrests, casualties and evacuations, supplies, record keeping, command posts and coordinating lines (Van der Merwe 2006a).

The role of the police as defined in the Regulation of Gatherings Act


The policing of gatherings and demonstrations has improved considerably since the introduction of the Regulation of Gatherings Act in 1993 and the political transition in South Africa in 1994. While ensuring that the police operate in a manner consistent with the Bill of Rights, the Act does allow the police to take action if they have reasonable grounds to believe that people or property will be damaged as a result of a gathering or demonstration (Regulation of Gatherings Act 205 of 1993 Chapter 3 [subsection 9(2)(a)]).


The Regulation of Gatherings Act 205 of 1993 Chapter 3 (subsection 9(2) (a)) stipulates that police officers may take the following steps:


  • Ask the crowd to disperse.

  • In a loud voice and in two languages, order the crowd to disperse and depart from the place within a specified time.

  • If within the specified time, the crowd has not dispersed, a police member may order members under his command to disperse the participants and may for that purpose order the use of force, excluding the use of weapons likely to cause serious bodily injury or death.

  • The degree of force must not be greater than is necessary for dispersing the participant/s, and must be in proportion to the circumstances of the case and the object to be attained.

  • If any person participating in the gathering kills or seriously injures or attempts to kill or seriously injure any person, or destroys or does serious damage to or shows a manifest intention of destroying or doing serious damage to, any movable or immovable property, a police manager can order members under his command to take the necessary steps to prevent the action, and if he finds other methods ineffective or inappropriate, order the use of force, including the use of firearms and other weapons.

  • The degree of force must not be greater than necessary and be proportionate to the circumstances of the case.

Before calling for participants to disperse, ongoing negotiations between the police and the convenor have to take place. The police are also required in the interim to determine the level of threat based on available tactical information in terms of risk, discussions with the convenor, the history of the organisation, past experiences, aggravating factors, and the presence of weapons and firearms.


The use of force, as mentioned above, means the use of minimum force, i.e. the use of shields, tonfas (rubber batons), stun grenades, water cannons, and shotguns with rubber bullets. Maximum force is only to be used when there is a threat to the life any person including a police member himself/herself.

 

Training


The formal crowd management course for police members consists of Platoon Members Training (PMT), and a formal crowd management course for commanders called Platoon Commander Training (PCT). The duration of these courses is two to three weeks, and they have theoretical and practical components. (See Chapter 6 on key issues affecting the capacity to perform public order policing for details on the training).


The training course begins with theoretical work on crowd management. This includes an understanding of Act 205 and definitions and abbreviations. Other legislation includes the Constitutional Act, Road Traffic Act, and the relevant SAPS Standing Orders.


The research attempted to determine the extent of Crime Combating Unit members’ knowledge and practice of the Regulation of Gatherings Act in the course of their duties. Findings included that every member interviewed from both the Johannesburg and East Rand units had attended formal crowd management training courses. In addition, the contents and applicability of the Act were regularly studied during in-service training sessions. All the members stated that their units adhered to the requirements of the Regulation of Gatherings Act in their daily tasks. One manager stated that ‘the use and knowledge of the RGA is a skill and members use it all the time.’


Conclusion


The Regulation of Gatherings Act is an important piece of legislation, particularly in the light of past human rights violations in the policing of public gatherings. While not without problems (see Chapter 5 for challenges facing the police), the Act serves to guide both civil society organisations and the police in the regulation of marches and demonstrations. Current procedure and practice ensures that all the relevant role-players are included, a cooperative relationship is established, and the outcome is to the satisfaction of all parties. Having said that, practical experience suggests that the time is right for the Act to be updated and revised.