On 12 July 2021, President Cyril Ramaphosa announced that the South African National Defence Force (SANDF) has been deployed in parts of the country that have become hotspots of violent protests, in an effort to support the South African Police Service (SAPS). This was followed up by a press statement made on the morning of 13 July 2021 by the Minister of Police Bheki Cele who stated, inter alia, and in very broad terms that:
- Criminal intelligence officers have acquired and used intelligence to quell further looting and criminal activity in unaffected areas.
- The Police Ministry is confident that law enforcement agencies are capable of effectively shutting down criminal activities and maintaining law and order in affected areas.
- Gauteng and KwaZulu-Natal in particular, and South Africa in general, are under strong surveillance and law enforcement agencies are prepared to act should further acts of criminality take place.
- Law enforcement agencies have been instructed to double their efforts at preventing crime and ensure that there is an “increase in deployment on the ground”. This would be done through:
- The deployment of SANDF soldiers to support the police in their efforts to maintain law and order.
- The recalling of some SAPS members from leave to increase police visibility.
As noble as these interventions may seem, they have not resulted in concrete results on the ground and have provided neither comfort nor assurance to citizens that there will be an immediate abatement of the level of looting, destruction of property and public violence. The rampant looting, acts of violence and incitement of violence persists. We are effectively still in the same position we were in when the actions began on 10 July 2021, the consequence of which has been residents in various communities opting to take matters into their own hands, subsuming the role of the police. This is not the type of action any citizen of a democratic state should have to take to discharge a responsibility entrusted to the State.
Only 2 500 SANDF soldiers have been deployed to KZN. Given the crippled state of SAPS, this number is not sufficient to deal with the ongoing level of violence in the province.
The Legal Resources Centre condemns the current acts of violence and incitement to commit public violence that have caused irreparable harm to our constitutional democracy and are an affront to the rule of law . The LRC welcomes the statement by Advocate Mthunzi Mhaga, spokesperson for the National Prosecuting Authority on behalf of the National Director of Public Prosecutions Shamila Batohi, that the office will prosecute the acts of criminality to the fullest extent of the law and will work in collaboration with law enforcement agencies to ensure speedy prosecutions.
To be effective in its response, the state must ensure that all law enforcement agencies are adequately capacitated to restore calm, and peace is maintained while adequately protecting citizens and communities from further threats of harm and violence. Furthermore, crime intelligence must have mechanisms in place to monitor and identify potential hotspots as well as ensure that disaster management protocols are immediately implemented to manage the security and humanitarian concerns of the public. Municipal councillors, traditional leaders and religious leaders must be mobilised to assist in providing effective leadership to the communities they serve in order to restore calm and peace in this highly volatile environment. The LRC therefore urgently calls upon government to devise a tangible plan of action that addresses these interventions.
Whilst acknowledging the government’s responsibility and duty to ensure the safety of its citizens by means of law enforcement agencies, the LRC appeals that the government, through its law enforcement agencies, intervenes strategically with the ultimate purpose of protecting the lives and livelihoods of citizens. We have seen law enforcement agencies deployed to areas where looting has long taken place – making their presence in those areas ineffective. We have also seen law enforcement officials quelling pockets of looting or violence as they arise – instead of being more in ensuring that the violence and destruction of critical resources is stopped.
The effectiveness of this stopgap approach to control these issues must be questioned. It is deeply concerning to hear reports of civilian casualties at a time when police and the SANDF should be present. While law enforcement presence is appreciated, their intervention must follow proper planning towards an immediate, effective and sustained solution. Furthermore, such intervention must not be allowed to devolve into violence between the SANDF, communities and innocent people. This intervention therefore requires the measured and proportionate response with minimal use of force that will not provoke further violence and, criminality and the loss of lives. The LRC thus believes that the government should, with immediate effect, develop and implement an intervention strategy to restore and maintain order . This intervention strategy should be made public to the extent that it fosters transparency and assures citizens that the government is using its resources to maintain peace and protect citizens.
Regarding transparency, a command council must be established to report to the country daily on the government’s interventions to maintain order. The intervention strategy should further include a publication of the rules of engagement for law enforcement officers in line with the guidelines outlined in Khosa and Others v Minister of Defence and Military Defence and Military Veterans and Others.
In this regard, the LRC calls for a collective effort from relevant key stakeholders to adopt and implement a plan of action and intervention strategy arising from their obligation to serve and protect the lives and livelihoods of the citizens of this country, in particular:
- The President of the Republic Cyril Ramaphosa.
- The Minister of Police Bheki Cele.
- The State Security Minister Ayanda Dlodlo.
- The Minister of Defence Nosiviwe Mapisa-Nqakula
- The Premier of each Province.
- The MEC’s of each Provincial Department of Community Safety.
In the interim the LRC requests a detailed response by the above-mentioned stakeholders to the following:
- Upon approval for the deployment of the SANDF, did the Minister of Police and Minister of Defence agree on the rules of engagement? If so and to the extent necessary to avoid publishing sensitive security information, what are the terms of reference for this deployment? How many soldiers have been deployed in Gauteng and KwaZulu-Natal and for how long? Was the number of soldiers deployed proportionate to the incidents of looting and violence in those two provinces or based on the resources available to the Minister of Defence at the time?
- How may police officers are available for deployment in the most affected provinces?
- What is the plan of action? Specifically:
- How does the government plan to restore and maintain law and order as well as protect its citizens?
- What are law enforcement agents doing to prevent continuing contraventions of the curfew and other lockdown regulations?
- Given that some community members have also resorted to vigilantism, how do you plan to increase policing in areas where members of the community have assumed a policing role?
- What mechanism has government put in place to strengthen law enforcement and crime intelligence and security agencies to effectively monitor and identify hotspots?
- Why has intelligence failed in averting the threats of violence and looting?
- We are not aware that as a result of civil unrest, looting and public violence in Gauteng and KwaZulu-Natal, both these areas have been declared provisional disasters outside the current National State of Disaster related to the Covid-19 pandemic. Have the Premiers of these two provinces considered declaring provincial states of disaster? If not, why not? Without such declarations, provinces are not able to avail themselves to any disaster management protocols and a rapid response mechanism to manage the security and humanitarian crisis affecting these provinces. What alternative mechanisms has the government put in place to address the emergency and humanitarian needs of residents in these provinces?
- What is the government’s plan to ensure that there is no shortage of food supplies and essentials, which is now a grave risk?
- Does the government have plans to make available social relief of distress grants or any other measures, particularly for those that are unemployed due to criminal acts taking place?
Finally, whilst we acknowledge that the primary responsibility to maintain law and order lies with the state and the police, we call upon all community, traditional and religious leaders, civil society organisations and leaders of other organisations to stand in solidarity, condemn all forms of violence and criminality, stand in defence of our constitutional democracy and the rule of law, and to foster peace within the affected communities.
Issued by the Legal Resources Centre