COMMISSION OF INQUIRY INTO ALLEGATIONS OF POLICE INEFFICIENCY IN KHAYELITSHA AND A BREAKDOWN IN RELATIONS BETWEEN THE COMMUNITY AND POLICE IN KHAYELITSHA PHASE ONE

Zackie Achmat

Date: 10 February 2014 Source: Pages 2351-2409 of Commission transcript

COMMISSIONER: Ms Bawa, who are we going to call next? Perhaps that is question I need to put to Mr Hathorn. Mr Hathorn who is going to be called next? MR HATHORN: It is Mr Achmat up next, Commissioners. COMMISSIONER: Okay. Good afternoon Mr Achmat. I am correct that you are going to testify in English? MR ACHMAT: Yes. COMMISSIONER: And you are aware of course that these proceedings are public and that the testimony that you give may well be made public both through the proceedings of the Commission and through the media and you have no objection then? MR ACHMAT: No I don’t, thank you. COMMISSIONER: Good, and do you have any objection to taking the o ath? MR ACHMAT: I will do an affirmation. COMMISSIONER: An affirmation, good. ZACKIE ACHMAT: (Affirms) COMMISSIONER: Thank you, Mr Hathorn. MR HATHORN: Thank you Commissioner. EXAMINATION BY MR HATHORN: Mr Achmat you are employed as the d irector of Ndifuna Ukwazi. Can you tell us briefly what is Ndifuna Ukwazi and what work you do for them? MR ACHMAT: I just want to first say thank you to the Commissioners and to everyone here and I want to acknowledge my colleagues who are here today a nd I was told by my colleagues from Ndifuna Ukwazi to say “Forward to socialism” so... (Laughter) COMMISSIONER: You have limited terms of reference Mr Achmat. MR ACHMAT: I respect the terms of reference but at Ndifuna Ukwazi what we do is our primary work is to build leadership. We have a fellowship programme; we give support to organisations like the Social Justice Coalition, the Treatment Action Campaign and Equal Education and so on. We also - there is a number of things we do but primarily my wor k at the moment is based on safety and justice. We also have a Local Government research programme which looks at budgeting and so on. MR HATHORN: Mr Achmat you have provided the Commission with an affidavit which details your extensive practical exper ience of police brutality and the wrong end of the policing system under apartheid. Your affidavit is an important and powerful document and it is clear from it that you have lived through a significant part of our country’s history over the past 40 years . We are not going to be able to do justice to your life story in the limited time remaining this afternoon but could you tell us about your experiences of the police as a child and place that in the context of your childhood? MR ACHMAT: I think the first thing to say is that I grew up in a working -class neighbourhood and my family were garment workers. As far as domestic discord and so on goes I wish that we had the domestic violence laws that we have today. It was very difficult and in those times be yond one’s family, my first memories of police violence was I lived with my grandparents in Cape Town and my family lived in Johannesburg, my mom and dad lived in Johannesburg and one of the first bit of violence I saw was against African women and childre n and I can still name two of the women. One was called Sis Beauty and the other one was Auntie Emma and the child whom I played was Nomvula and the police would come and actually beat people up, chuck them in vans and take them away on pass law raids and that is an image that has stuck with me throughout my life. The second area of police brutality is my family lived in a place called Fietas and that area was destroyed by bulldozers under the guard of the police. The third area was in 1969 I was a k id and I think I was in Sub B and Imam Haroon was killed. He was a Muslim leader who was close to the liberation movements and he was killed in detention and I specifically remember the name of the policeman, Inspector Van Wyk, who was one of the people w ho later, many years later would be torturing me. MR HATHORN: And you have had personal experience of detention and torture at the hands of the police under apartheid. Perhaps can you just describe briefly what that experience entailed? MR ACHMAT: Well in 1976 I was part, a very small part of a very large generation of people who rebelled against apartheid and we joined the liberation movement and my first direct contact with the police during that time was being beaten up by what we called the “riot police” now known as the “public order policing unit” and it was very violent, very brutal, and the reason we rebelled was because of the violence in Manenberg, the way they shot down children in Bonteheuwel on Modderdam Road and so on and in Langa and apa rt from Soweto itself which had obviously made many of us just angry and so on. In 1977 I was one of the kids who tried to burn my school down. I only succeeded insofar as the administration block was concerned, which was the principal’s office but the - and I think it is good thing that I did not go further than that, I did not succeed any further than that but I was arrested along with two other colleagues with mine, Azaam Mohammed and Faida Abrahams and she wasn’t arrested, but Azaam and I were and we were held under the Internal Security Act in solitary confinement and tortured by Major Lourens and other, Captain Visser and so on, but the fact of it is in 1977 later in that year I was also detained under Section 6 of the Terrorism Act and spent three months in Sea Point Police Station which I note from the Rag has a very good ratio of police compared to Khayelitsha. MR HATHORN: Mr Achmat I would like to - you did have further experiences of police brutality, of being detained and police brutality. W ould you like to touch on those briefly or would you ... (intervention) MR ACHMAT: Sorry? MR HATHORN: You did have further experiences of police brutality and detention. Could you just touch on those briefly? MR ACHMAT: Well when I was sent to a reformatory I was among kids who were very badly beaten and at times - yes, I was also then detained in 1979 when I was held in solitary confinement, convicted and held in solitary confinement for six months in Pollsmoor. Again I went through the same process of being beaten by police, being handcuffed, not being given food and so on, so that is my experience of the apartheid police and I wouldn’t mind if we can move off it, if you don’t mind. MR HATHORN: Mr Achmat you have been involved very closely and involved in the founding of four of the five complainant organisations that lodged the complaint that led to the establishment of this Commission. Can you tell us about; we have heard people speaking on behalf of their diffe rent organisations so just outline the objectives of those organisations and the values that they share in common. MR ACHMAT: Well I think the first place I would start is to say that the history of all the organisations I work in go back to a range of activist histories from my colleagues, people like Mark Haywood, Sharon Ekambaram, Dina Bosch and Siphokazi Mthathi and Vuyiseka Dubula and many others and most of them have a history at some level or another going back to the anti -apartheid and freedom struggle and what I believe in is that or at least the way I see it is that all our organisations what we have in common first and foremost is an understanding that our organisations are about people and their rights and what I mean by that is that rights are not something that a Constitution gives to you. A right pre -exists. The right to life pre-exists; any codification of it. So fundamentally our organisations are based on everyone’s rights. The second area is that we believe that when you campaign o n any specific issue that the primary interests we represent or try to represent to the best that we can is the interest of working class and poor communities and that interest needs to be based on evidence and research. The third area is that we educat e ourselves. We try to educate ourselves as leaders; our organisations. We further go further and believe that our community needs to be educated. There needs to be awareness of very complex issues because if you take policing for instance it is a very, very complex set of questions that we have listened to here. Any community police forum will not be able to cope with that vast amount of information so having the education to educate ourselves and to educate others and to educate the community is absol utely vital. Then a critical area is engagement with the appropriate authority. If it is a corporation you deal with the corporation. If it is Government there are a range of organisations, there is a range of institutions that we deal with for instan ce Parliament is vital. We try to engage Parliament. We try to engage ministers, directors general, we try to engage a range of agencies and the first process of engagement is write a letter or before even writing a letter if you know someone you go and speak to them and then you write a letter and if that does not get a response then you petition. If a petition doesn’t work, so I think you get the idea of what I mean by engagement. Vital to all this is alliances. It is indispensable to organising that we work with religious leaders that we work with trade unions and so on. So all our organisations understand that we have to mobilise but we can’t do it by ourselves. We have to do it with other people and if you look through the record I remember - yes, I will come to that in a minute. MR HATHORN: Mr Achmat the roots of this Commission of Inquiry in many ways can be traced back to the work that the Treatment Action Campaign started in Khayelitsha in the late 1980s. Can you tell us a little bit first ly the nature of the Treatment Action Campaign and then how it came to be involved in Khayelitsha? MR ACHMAT: Okay the first thing I would say is the Treatment Action Campaign was started on the 10 th of December 1998 and we based our work on the fact th at everybody had the right to life, to dignity and to health and at that time antiretroviral therapy had become available to anyone who could afford it and it was saving lives in Europe, in North America and in places like Brazil where the state was making it affordable. Our main campaign was against the drug companies. TAC’s three areas of work was first and foremost to ensure that Government instituted a mother -to-child prevention programme of HIV. The second area was to ensure that Government treated opportunistic infections and the third area was to ensure that drug prices came down and the difficulty was that multinational companies then as they are today tried to undermine people’s health by excessive profiteering to patent abuse and regrettably our Government went into an era of denialism which made our battle much harder and I don’t think today is the day to go into that, but essentially what our work involved TAC’s heart was Khayelitsha and still is Khayelitsha. The heart of Equal Education is Khayelitsha as is the heart of the Social Justice Coalition and the reason for that is very simple. Khayelitsha was the place where the first mother-to-child prevention programme was established and together with Dr Eric Goemaere and MSF TAC leaders like Mandla Majola and Thembeka Majali, Herman Wright and Sipho Mthathi and among them myself, we would spend time educating ourselves about the science of HIV because prices were high it was vital for us to educate ourselves about the law. It was indispensabl e to us to understand patent law and trade rules but it is not simply for us as leaders. It is when someone doesn’t even have formal education that anyone can understand international trade law if it is explained and if it is dealt with and that was what TAC was based on. TAC organised at branch level and still does organise at branch level and by what I mean there is that TAC has I think about twenty branches in different areas of Khayelitsha today. My comrade Mandla Majola’s affidavit explains that i n more detail. What it does, a branch meets weekly and educates members about the issues. I am not sure but I think still today TAC distributes about a million condoms a month to schools, to taverns, to a range of places. It has educators within clinics. It goes to schools to educate people about HIV and it goes to support groups and adherence clubs and so on and that is what TAC did but around 2002 and 2003 it became very clear that one of the biggest problems that led to HIV transmission was sexual vi olence in particular rape and at that time MSF together with TAC and I think this was about September 2003, campaigned to establish the centre called Simelela and Dr Josias spoke about it and that came out of a campaign that TAC and MSF undertook jointly t o establish that centre. The tragedy then was that people weren’t receiving post -exposure prophylaxis for HIV but it very soon became clear to all of us that a much bigger problem was secondary victimisation and I am not an expert but my understanding of reading and of having worked with some of my comrades who are rape survivors and so on is that secondary victimisation is when you go for help and you get asked questions that cause damage to you, questions that are invasive of your privacy, questions that invade your dignity and when you are not treated as a human being who has had the most awful trauma undertaken, and at that time one of the things that we started educating ourselves, I think it was close to the time - no, a little bit before then, the Carmichele case came out in the Constitutional Court and it became very evident that there was one woman who had stood up to the system. What was vital to us, whether that was an individual remedy, it wasn’t a remedy for all women. It wasn’t a remedy tha t addressed the systemic difficulties that women as rape survivors or women who face gender -based violence face, so it became vital to us to look for a systemic solution and that systemic solution related to developing a comprehensive plan on rape which I will come to as we speak. MR HATHORN: The rape and murder of Lorna Mlofana in December 2003 is an event which is all - it is a seminal event as far as this complaint, the complaints that were lodged by the five complainant organisations are concerned. Can you tell us who Lorna Mlofana was and about the campaign that was launched around the circumstance in which she died? MR ACHMAT: My colleague Vuyiseka Dubula is in the audience today. She has just come back from the University of Natal. She was a v ery close friend of Lorna Mlofana. Like Lorna, Lorna was an educator at branch level and across Khayelitsha. She educated people. She lived openly with HIV and she educated people within the community. She was a friend to many people. She had one child. She went when we closed for the year she went to a tavern and she had a few drinks. She as far as we know she was raped and when her assailants found out that she had HIV she was kicked and beaten to death. I remember Vuyiseka telling me that when her body was found at Tygerberg Hospital they did not think to do forensic tests as to whether she was sexually assaulted because it looked like a truck had run over her body. That is how badly she was assaulted and there was anger in the community and th ere was anger in TAC and I remember a march that we went to and we marched from the shebeen where she was killed to the alleged perpetrator’s house and people in the community and our own members would have burnt that place down and if it wasn’t for the fact that we said that we wanted justice, not vengeance, because that we wanted the police to deal with this people would have taken the law into their own hands, but what came afterwards was horror and travesty because Lorna’s family, particularly her brother suffered an enormous injustice when time after time after time the case was postponed, mostly people weren’t explained. No -one explained to his family what was happening until TAC went and spoke to the investigating officer, spoke to the station comman der and I remember it was - I don’t know what his rank is but it was certainly probably a lieutenant or a brigadier or whatever, Peter Jacobs. I don’t know what his rank is but I remember he was very happy to have our support and to help them trying to fi nd the perpetrators which our colleagues did and we had a very good relationship but that relationship was not enough to address the shortcomings in policing. I want to just remind the Commission here that in Mandla’s affidavit there is an annexure called MM12. I am not going to ask people to read it now because it is on the record. It is part of the record of the High Court and on the 13 th of December 2004 we had a joint rally of TAC, MSF and we had there representatives of the Provincial Government, Dr Fareed Abdullah. We had the - I think he was called superintendent or commissioner station commander Peter Jacobs and we handed over a memorandum to the station commissioner and to Dr Abdullah and what we asked for at that point was for Simelela to bec ome a Thuthuzela Centre and that meant, as Dr Josias explained, that it would have police, the NPA and a whole range of resources that would be present and it took a number of years before that happened as Dr Josias explained, but what was vital was that w e explained that the police could not do this alone. It required all of us and it required an integrated strategy. MR HATHORN: In General Lamoer’s affidavit before the High Court in the High Court case that preceded the establishment or followed the es tablishment of this Commission he stated at paragraph 222 in relation to the case of Lorna Mlofana: “The task team studied the docket, they found that the two suspects were convicted and sentenced on 8 December 2005. One of the accused was sentenced to 10 years imprisonment for attempted murder while the other accused was sentenced to life imprisonment for murder. The task team concluded that the docket had been properly investigated.” Would you like to comment on that conclusion? MR ACHMAT: W ell all I can say is that I was with my colleagues when the prosecutor told us that the ‘tekkies’ of the accused number 1 which had blood on it was never sent to the forensic lab for testing. I will also say the following: that case may have been at a certain stage finalised with a conviction but there was an appeal in the High Court which was heard in 2009. Neither the victim’s family nor our members were told about this and they found the perpetrator on the street. He had been convicted or the conviction had been overturned to one of assault with intent to commit grievous bodily harm and the rape conviction was also overturned, but what was fundamental here is that the victim’s family was not approached by either an investigating officer or the NPA or in fact anyone else and the first time my colleagues knew about this was when the person was on th e street. This comes after at least 15 postponements of that case and more than two years of people spending time in jail. Now if those two people and I assume - I know that they were found guilty, but assume they were innocent, it is not only what happe ns to victims, it is also what happens to the accused spending such a long time awaiting trial so our experience was that the investigation was not done properly. The postponements were - there were too many postponements that caused enormous heartbreak within the family and anger among our colleagues and also trauma among our colleagues and last the fact that no -one took it seriously to go and visit the family and tell them that there was an appeal or that the perpetrator would be released just showed the callousness of the system towards victims. MR HATHORN: What were the causes of the postponements? MR ACHMAT: I would have liked to see. Some of them were related to the docket not being at the court. Some of them were related to the defence not bei ng ready to plea. Some of them were related to - there were any number of reasons, but we had asked several times in this complaint to see the docket and I hear it was given to us on Friday. I haven’t had a chance to look at it to see what the reasons we re that all the postponements - the official reasons that are noted on the charge so I can’t give a reason for that specifically but let me say this, yes. General Lamoer - I think he and the task team did not do a good enough job and I think he before making that statement under oath should have looked at the charge sheet. MR HATHORN: You said that Lorna Mlofana’s family were not told about the appeal. What was the feedback from the police prior to that point at which it went on to appeal? MR ACHMAT: It was - the difficulty is that in all the cases that I will mention and discuss it is always us who go to the police. It is always the victims or their representatives who have to go to the police to get information. It is never proactive or rather it is rarely proactive that the police come to us. I remember just - sorry - about Lorna’s case, there was one witness who died before she could evidence (indistinct). She died before she could give evidence and she wasn’t brought to court. MR HATHORN: Mr Achmat the next case I would like to discuss is that of Nandipha Makeke whose parents were present at the first day of the Commission’s hearings. Can you tell us about Nandipha’s case and what happened to her, how she died and the campaign that was cond ucted to ensure that justice prevailed? MR ACHMAT: You know I am one of those people who forget that I was young once and so when 12-year-olds pitch up at meetings and rallies I think what are they doing here, they should be at home. Nandipha Makeke join ed TAC when she was 12 years old and she became a branch leader when she was 18. She was a phenomenal young woman with enormous promise, the promise that you have seen demonstrated by witnesses here like Phumeza Mlungwana, Sifiso Zitwana and so on and she was raped by a gang of boys and she was murdered in a toilet and the difficulty is that for me I will never forget the pain demonstrated on her elderly father’s face every time he had to go to court or in fact when we had to address press conferences to talk about the fact that they were not getting justice. Nandipha Makeke did not simply die a horrible death but her comrades, people like Phumeza Mlungwana, Amelia Mfiki, and Vuyiseka Dubula and so on. Welcome Magele spoke here and gave evidence to the ef fect that they had to go in hiding when one of the perpetrators were released and if we hadn’t used taxi drivers to help arrest him the police wouldn’t have arrested him even though there was a High Court interdict, sorry, a High Court restraining order an d a warrant of arrest for him. If we hadn’t got the taxi drivers to arrest him, the police would not have arrived to arrest him. We had not only marched and demonstrated outside the police, outside the courts and outside the police stations but we had ev en marched to the provincial legislature and to the National Parliament on these cases. MR HATHORN: Again with regard to the case of Nandipha Makeke General Lamoer concluded in his affidavit that: “The task team perused the docket and found that the case docket was properly investigated.” Would you like to comment on that conclusion? MR ACHMAT: If General Lamoer says that that was properly investigated then I think there is a serious problem in accepting culpability and trying to give immunity to the police or the criminal justice system in general. I think that there is a serious problem as we have heard here and General Lamoer’s affidavit to me, I felt it is a personal insult and if I felt it is a personal insult I can’t believe what Mr Makeke must have felt if he would have heard that and I am glad he is not here to hear what General Lamoer said or that he read the court papers. MR HATHORN: What were the shortcomings in the investigation? MR ACHMAT: There was the case, Nandipha Makeke died, if I am not mistaken, in December 2006. It was only in 2008, late in 2008, I think July 2008 that her murderers were found guilty. Again there were more than twenty postponements and I think if I just off the top of my head I would say it is MM20 or MM22 that gives a list of postponements and I believe that many of it had related to dockets not being available, witnesses not being available, legal aid lawyers not being available and never once did the police actually go and visit the family to say this is the situation. If it wasn’t for my colleagues in the Treatment Action Campaign the police would never have actually visited or never have actually gone there and the family would not have known what was happening to the case of their daughter. MR HATHORN: Mr Achmat the last murder and campaign for justice around that murder that I want to refer you to, is that of Zoliswa Nkonyana. Can you tell us what happened to Zoliswa and describe the nature of the campaign. MR ACHMAT: Before I go on to Zoliswa I just want to refer you to I think it is Mandla’s affidavit again, on the 23 rd or 22 nd, the 23 rd of May 2008 the Treatment Action Campaign had a march in the City of Cape Town with 5000 or more than 5000 young people, mainly women, again gender -based violence and we presented a memorandum to the National Minister of Police, the National Minister of Justice, the Minister of Social Development and the Minister of Health and we asked for a plan to be developed around rape and specifically a series of demands that said end victimisation of rape survivors by police and court officials; establish more rape crisis centres along the Simelela Khayelitsha and Thuthuzela Gugulethu model; speed up the rollout of sexual offences courts; scale up programmes that empower rape survivors and improve community awareness; sensitise police to barriers faced by women reporting cases; improve investigation especially forensic evidence and collection in rape cases; forensic evidence collection in rape cases; give more resources to the court system so that prosecutions can be speeded up and carried out more efficiently; add more financial and human resources to the police including victim empowerment centres, so when I read that Harare Police Station had a victim empowerment centres but there was no-one trained to do the work or that you the people who were trained had to stand guard at the police station I was shocked; faster identification of criminals and their arrest; ending harassment of sex workers and decriminalising sex work and one of the demands that was crucial at that point because Equal Education had been founded, already at that point we were identifying safety in schools as a problem and we said programmes to ensure the safety in schools. To this day, to this day no -one responded to us and I can’t remember where in the documents but either in the provincial commissioner’s documentation or in Docs documentation there is a copy of that complaint, which is a re -send by us saying “we expect you to act urgently.” To this day there hasn’t been a response to us in relation to that memorandum or addressing the problem comprehensively. You wanted me to speak about the death of ... (intervention) MR HATHORN: Yes, of Zoliswa. MR ACHMAT: Zoliswa Nkonyana. I think again Funeka Soldaat gave really moving evidence here about how lesbians and transgender men, gay men are treated both in the communities and by police. Now the first thing we should always remember whether it is rape or whether it is homophobia that is not crimes th at the police commit. That is part of our culture and it is part of a culture that needs to be changed. It is about patriarchy but when a crime is committed we expect the police to act in a manner than exemplifies Section 195 of our Constitution, which talks about professional ethical public service that puts people first. Zoliswa’s case, she was killed around the same time as Nandipha Makeke. Her case went on until 2012. It was after the complaint was with - well, we made the same complaint several times, so to the Provincial Government, to the National Government and everyone. We made the same complaint several times so by the time of 2012 when the Premier had decided that she would consider a Commission of Inquiry Zoliswa Nkonyana’s killers were sen tenced. In between that time and the time of her murder the case was postponed more than fifty times; more than fifty times and her mother Monica Mandindi suffered an enormous amount. My comrade Lumkile Sizila spent an enormous amount of time having to co mfort her mother along with Funeka Soldaat and I would say that what we have to take seriously is how police treat people. In that case not only was it postponed time after time after time and the docket wasn’t here and the witnesses did not arrive and so on, but two things stand out for me about that case. The first is some of the perpetrators were children of about 14 or 16 when they were detained. They were kept in jail for four or five years, maybe longer, and they were released at the end of it in I think it was 2011. Yes, 2011 they were released after being detained in about 2006 / 2007. They were released on this basis, that they had made confessions without a lawyer or a parent being present and what shocked me was that neither the prosecutor nor the police nor even their lawyers picked it up until after they had spent five years in jail and they have been part of the perpetrators but that is an injustice not only against those people but also an injustice against Zoliswa’s family. The second thing that stands out for me about that case is that a policeman helped some of the perpetrators escape from Khayelitsha Court and what I would like to know is what has happened to those policemen and I am sure that Zoliswa’s family would want to know wh at happened to that policeman who helped the people escape and that is something that people in Khayelitsha face on a daily basis - dockets not being at the court; police being rude to them and so on. I can go on, but for me it was. There was a campaign g lobally against corrective rape. More than 600 000 signatures were collected on one of the internet sites against corrective rape and that was inspired by the murder of Zoliswa Nkonyana. It became an international issue. The Minister of Justice set up a n anti-hate crimes task team as a result of that case and because of the international pressure. MR HATHORN: I come back to General Lamoer’s affidavit at paragraph 203 dealing with the case of Zoliswa Nkonyana he says: “To the best of my knowledge the case of Zoliswa Nkonyana was not raised with the SAPS by the complainants before they lodged the complaint with the Premier.” Shall we just pause there, would you like to comment on that statement? MR ACHMAT: I think the difficulty of General Lamoer’ s response again brings home to me the callousness that goes right to the top of the South African Police Service and I say that not because of vindictiveness. I say that because I would have wanted the General to look at the docket. I would have wanted the General to speak to Zoliswa’s mother and to find out. I would not want him to go on oath and say that a case that got international attention throughout the world people signed a petition that a case like that where somebody was brutally beaten to death because she was a black working -class lesbian that it did not form part of the complaint or that he did not know about it. MR HATHORN: In the next sentence he says: “The complaint relates to delays in the prosecution of this case. The reasons cited for the delay related to the fact that the family changed attorneys and the addition of new witnesses. Concerns were also expressed about the failure to obtain DNA samples.” MR ACHMAT: I think that relates to a first case that Zoliswa had when her stepfather or an uncle had raped her and that wasn’t the case that was the major one. MR HATHORN: Mr Achmat, I would like to move on to the question of the recommendations that the complainant organisations would like to be made by the Commission of Inquiry in the event of there being a finding of inefficiencies, but before I do that can you just comment briefly on the finding of the Social Justice Coalition and Equal Education which preceded that - sorry, which preceded the lodging of the complaint. They are obviously part of the complainant organisations. MR ACHMAT: As my colleagues testified previously the Social Justice Coalition was formed in 2008 and it came after the wave of xenophobic violence and the main reason it was formed was to ensure that not only - it was to ensure that everyone in South Africa is safe and that there was accountable Government, responsive Government, and for us safety had become a primary focus whereas at that time TAC had concentrated and still concentrates on monitoring individual cases particularly of rape survivors of children who are raped and so on because the majority, almost the majority of cases, I think 49 or 40% of cases of rape in Khayelitsha are minors so supporting the families where people come to TAC or to the SJC is a vital part, following individual cases, but what we realised is that you needed a strategy of support; a strategy that looks at safety in a broad sense and again here we base ourselves on looking at the case, the Metro Rail case where the Constitutional Court found that Metro Rail had a duty to protect its commuters from harm done to them on the trains and I was still living in Muizenberg at that time and my train became safe enough for me to use it on a daily basis and we saw guards on the train for the first time and unlike in the Carmichael matter what you had is you had something that was systemic that brought systemic change and so safety as a question for the SJC became a question of looking at infrastructure; looking at the question of saf e toilets; when my colleagues went to speak to people in the informal settlements and said what is the worst problem, there were several problems. One was that you could not get to a clinic if you had asthma at night because you could beaten up, but the m ost common problem, the most common problem that people like Angy Peter and so on found out, was that people were not safe at toilets. People who had to relieve themselves in the bush and I am shocked that the City of Cape Town says that there is 100% cov erage of sanitation in Cape Town. People here in Khayelitsha actually get stabbed when they use the bush to relieve themselves and in such a rich City it is very sore for me. Sorry, I must get off the soap box and just say something in relation to someth ing else here. The difficulty is that unless one has a comprehensive safety approach the question of safe communities - we will still have crimes and we will have a reduced crime rate if we deal with the police. We will. There is no doubt in my mind. If only the police gets fixed the crime rate will be reduced, but the vulnerabilities of people being exposed to crime will still remain and that we have to address as well so safe schools and so on became part of the agenda of the SJC; safe streets; street lighting and so on. MR HATHORN: In order to make recommendations one has to first look at the inefficiencies and who is accountable for those inefficiencies. Now we have had an enormous volume of evidence pointing to far -reaching inefficiencies in p olicing in Khayelitsha. I don’t want you to try and canvass that but the question of accountability, where in your opinion does the accountability need to start? Who should be accountable for the failings in the police? MR ACHMAT: Well I think one has to start right at the top. The reason the Social Justice Coalition supported the public protector when Commissioner Bheki Cele had the police go to raid her office when she exposed corruption in relation to the policing headquarters, the reason we supporte d it was because our members said you cannot expect a police member at community level to do their work properly if at the top it is rotten and that was vital to us and the same reason we joined in dealing with the crime intelligence boss Richard Ndluli wh o was charged with rape and the matter is before the court so I won’t go into detail on it, but I heard here evidence that the police still don’t have electronic case dockets and in my work and in my colleagues work here, Craig Oosthuizen and so on, we mon itor the Parliamentary Portfolio Committee and I want to tell the Commission you have to look at that evidence. There has been for fifteen years SAPS has been having a programme to make electronic case dockets available. They only have - in 15 years they have only made available electronic systems at 180 police stations and they could not tell the Parliamentary Portfolio Committee which of those stations actually use them so the question for me is it goes right to the top. Accountability has to start at the top. It cannot start elsewhere. In Khayelitsha I believe, as the previous witnesses said, the station commander is responsible. If the station commander does not hold people accountable the members who serve under her or him, then there is a problem . If the cluster commander doesn’t hold people accountable then there is a serious problem. Similarly if the provincial commissioner doesn’t hold people accountable there is a serious problem. If there is a problem with the Metro Police if SAPS does not hold Metro Police accountable and look into the problems then SAPS is accountable. Similarly there is oversight by the provincial legislature and by Docs and the province has oversight so there is a complex web of checks and balances to ensure oversight but in my view and in my experience I believe that it is broken down at every level. It is not simply the SAPS chain of command that is a problem and they have the most serious problem but there has also been a failure in oversight from the province and t o some degree I believe the City, but that is a different matter. MR HATHORN: I would like to move on to the recommendations that you propose at the end of your affidavit and the first one is a five year plan involving safety policing and justice. Can you outline what you envisage there? MR ACHMAT: Equal Education had a member called Sithembile Sitsha. He was a very, very bright young man. He was knocked dead by a car late at night when there was no electricity. I think it was a bakkie that knocked him down; no lights in the street. For us a five year plan for safety would include understanding that safety involves infrastructure. It involves a whole range of questions related to that, making our streets safe, our homes safe and having a whole ran ge of programmes like that but when it comes to policing the questions of accountability in the police, the questions of training and retraining the police, the question of doing a skills audit is vital so what we would like to see is not a thousand priori ties in a plan but the four or five or maybe six issues that will force all of us to work together, not simply the City on its own or province on its own or SAPS on its own, but the SJC, the community police forums and so on, having four or five priorities that could be followed through that can act as levers. I think the experts need to identify which are those levers and perhaps those are the ones that we need to look at. The problems that one normally finds with strategic plans is there are 280 priorities and I wouldn’t be able to follow 280 priorities and I don’t expect the station commander to be able to follow 280 priorities. I think that one of the things, if you look at the safety and security budget for the City it has increased significantly but the City also has the responsibility for early childhood development and every bit of international research shows that having early childhood programmes keep kids out of reach of criminals but also helps install the possibility of responsibility, of educ ation and so on, so I believe that there should be comprehensive early childhood development. I believe that province and this is what I am mandated to say, is that province has a duty to ensure that there is a universal out of school care programme. By that I mean not just relying on a few NGOs who help people and we only reach between us 5 000 or 10 000 young people but a universal programme that covers every school so that when children are out of school in the afternoons they have activities that they can engage in. The question of distances to get into the police stations need to be addressed and I know Makhaza has been on the list of having a police station for a number of years and Lingelethu -West needs more support and so on but the question of small satellites so that people can urgently get to a police point where they could lay complaints or get assistance needs to be looked at. We need to look at. MR HATHORN: The next recommendation that you deal with relates to visible policing. What would the proposal be in that regard? MR ACHMAT: Again the question has been raised numerous times by all the evidence, people who gave evidence. We hardly ever see proper police patrolling both in the informal settlements and in the formal areas of Khayelitsha and I am not simply saying SAPS but Metro Police too. We don’t see enough visible police and I think the resources that are allocated to visible policing may be too few and from what I saw and what I have read in the papers and so on visible policing is not just having people visible. That also mean that it is people who should know people in the community so if I have a neighbourhood - the police know where there are CPFs and street committees and so on. Those communities ought to be brought in. The police need to know who they are. They need to get to know the police so visible policing is not just about a policeman driving around in a car or a policewoman driving around in a car. It is actually about getting to know the community and that is protection both for the police and for the community because if the community knows so and so is a policewoman or man coming to the community to patrol people will be on the lookout for gangsters and say to the police “watch out there is a bunch of bad skollies over there...” and that is what happens when any of us go into an informal settlement to do work or so on, people know where not to go. MR HATHORN: In terms of victim support, what is proposed? MR ACHMAT: Sorry? MR HATHORN: In terms of victim support what would you propose? MR ACHMAT: I think as far as the Thuthuzela Centre is concerned there is a lot of support and they obviously clearly need more support for t he survivors of rape and so on. I think people / victims of assault, assault GBH, robbery and the families of people who have been murdered require a place where they can go and complain where they are not faced with a station that is full of people, wher e they can sit and the police - it is not simply a comfortable space but it is above all the attitude of the member of the South African Police Service who serves you and that is vital and I can't remember the gentleman’s name here, but he gave evidence ab out how his cousin was killed. I think it was the first or second day of the Commission and how he was treated by the investigating officer. I have heard that complaint many, many times, and that person is a victim because he or she has seen a family member being killed, or not seen it, but know about it and they need to be treated with dignity. MR HATHORN: In terms of station commanders we had evidence from General Schooling and Mr Leamy about how they must be held accountable for their responsibility. What is the recommendation there? MR ACHMAT: Well the most shocking thing I heard at the Parliamentary Portfolio Committee on police is that people get appointed to be station commanders and afterwards they get training and that there is a waiting lis t for people who are allocated to police stations to be trained. The first thing I would like to know and it hasn’t become clear throughout all the evidence is whether the station commanders at Khayelitsha Police Station have actually been trained to be s tation commanders because from everything we see the station commander or I would like to say station commissioner because I hate those military terms, but the station commander is the person who is responsible for everything. I can’t say in my workplace that if I am the director we don’t have enough funds to pay our rent that it is the responsibility of someone else. I have to take responsibility for that. If someone is not performing I have to make sure that either their supervisor supports them, support is first and foremost, but also if they don’t perform and continue not to perform to take the relevance steps so I believe station commanders have a key role to play and from all the evidence and our experience my conclusion is that there needs to be a performance audit done of the station commanders in Khayelitsha. MR HATHORN: Mr Achmat you also propose a skills audit of all three police stations. What would that entail? MR ACHMAT: You know when we were analysing when over Christmas, just after Christmas all those dockets came, all the papers came in from SAPS and I looked at the resource allocation guide and I saw so many constables but not enough sergeants, not enough warrant of ficers, not enough senior police in positions or vacancies along there. What shocked me was - well I knew, you know, you knew that there was a problem but the biggest problem is putting an untrained person onto the street and the Harare task team report p ointed out that 16 of the detectives in Harare was trainee detectives and I promise you that in an area where crime is so serious you need the best detectives. You need the best station commanders and therefore everything from driving licences, my comrade Nontembeko gave evidence about what happened to her niece. My question is did that policeman have a driver’s licence, was he competent to drive, and I think it was a “he”. What has happened to him? So a skills audit needs to be given to ensure that the police are trained properly. MR HATHORN: And in respect of discipline of police officers who fail to discharge their duties? MR ACHMAT: Last year at national level 420 people died in police custody. I think 117 of them committed suicide with material s that they should not have had in their cells. It is very rare that a police officer is punished for criminality. It is even more rare to find that a police officer is punished for misconduct so discipline is a serious problem but I also know that the p olice have the most difficult job. Let’s be frank about this. The police have the most difficult job. If I look, I looked at the National Instructions or one of those things and there was something about an employee assistance programme, a wellness prog ramme and what struck me was that (a) it was voluntary, which is fine. I don’t have a problem with that, but it only assisted the individual member. There was nothing about the member’s family. For me the biggest problem of policing is how they take it out on their families and if you look at the evidence in one of the stations was about two policemen who committed suicide and killed their wives before they committed suicide so the question about support, it is not just about discipline. It is also about support for the police and if you put untrained people into a position like that and they end up beating their wives or raping their girlfriends what do you expect when they are faced with horror all the time. MR HATHORN: The release of crime statistics what is proposed there? MR ACHMAT: You know Chairperson of the Durbanville Police Forum was here and I am sure he can tell you, he gets crime statistics on a monthly basis. It may be because he is a former policeman but he certainly has the connectio ns so, but I know that Cape Town where I live, that policing forum, our Chair just said that she has never felt so safely in her life. That policing forum also gets monthly statistics and I think it is vital that SAPS looks at making statistics available not simply look at the data integrity issues which is important but make crime stats available to communities to assist the police; not because we want to inflate and go cross about it and toyi-toyi about it but it is essential to support the police. MR HATHORN: And it is becoming increasingly clear as the Commission hears more and more evidence that there are resource problems at the three Khayelitsha stations. What recommendations do you propose with regard to those resource constraints? MR ACHMAT: Well if you have a situation where there is one computer for 60 detectives and they don’t have proper places to store their files how do you expect a detective to work properly, so my sense from reading, again reading the evidence, is there is no methodology as to how a station commander says: “I need fridges, toilet paper or I need computers”, and there is no follow -up to see from province, provincial SAPS that is, as to whether those are the real needs or whether people need more or less of a particular is sue. There is a serious problem with resources and infrastructure and the Commission really needs to make recommendations on those and those are things that can be fixed but they can’t be fixed if the system is not in place to look after, if the supply ch ain management is not fixed or there is not people to assist in supply chain management. MR HATHORN: And Mr Achmat we heard evidence from the senior prosecutor at the Khayelitsha Court that she would make a complaint or a prosecutor would make the complaint, there would be an intervention from whatever level, and then you would see an improvement for a short period of time and then after a few weeks or a few months things would lapse back to the normal inefficient state that they were beforehand. Do you have any proposal or recommendation that should be made to ensure that assuming that the Commission makes certain recommendations that those recommendations are not implemented for six or eight or twelve months and then we revert back to the level of polici ng that we have had over the last ... (intervention) MR ACHMAT: I think it is really vital that monitoring of the recommendations be put in place and I also would recommend from all of our organisations we would recommend that in five years a judge be as ked to look at progress on the plan again and to make further recommendations because none of us believe that this can be fixed in a day, really we do not believe that. we want to help SAPS in whatever way we can to fix this. We want to help City in what ever way we can to fix this and we want to help the province and National Government fix it, but it is not going to fixed in one day. It needs a monitoring process and it certainly needs a review and I believe the one thing the Commission has shown us is that it is given the stature for a serious review and you know what struck me when Commissioner Phiyega sent down the task team it was really wonderful to get the response from a Commissioner for the first time, it really was and it was very sad that we did not get the task team report before but what struck me even more is that she wanted to put Joel Bregman on an independent panel to review the police and have decisions to prosecute and all sorts of things, but what she pointed out in there is that the Khayelitsha example of having an independent review she did not, she was not in favour of a Commission. She said SAPS should appoint and independent review panel and she said that SAPS could use that not simply to turn around Khayelitsha but as a model to t urn around in other areas too and I believe that if there is a five year plan it is properly monitored it could look at all the high burdened police stations such as Manenberg, high crime burdened police stations like Manenberg, Mitchells Plain and Nyanga but definitely here we need it. MR HATHORN: You say a judge should be appointed in five years time to do a follow-up investigation. What do you envisage; a similar inquiry like this, or do something more low key? MR ACHMAT: Definitely something more low key. I hope we are not in a situation where we have to argue and go to the Constitutional Court and all funny things. I really would like to see a very cooperative agreement that has all of us working together, but without a judge we will have the pr oblem of different agencies and different departments and different spheres of Government saying “it is not my responsibility if they haven’t built the roads; no, we’ve built, we have given you this.” So it would be good to have someone. That gets us all in line, the SJC and me too. MR HATHORN: Mr Achmat, Joel Bregman is going to be giving evidence next and he is going to be talking about the commitment that the SJC and the other complainant organisations have made to engage with the CPFs and participat e in the CPFs and to engage in a constructive fashion to try and deal with crime in Khayelitsha going forward. I don’t want you to go down that road. Mr Bregman will deal with that, but I would like to ask you what do you and the organisations that you represent expect from SAPS in response to the Commission’s recommendations? MR ACHMAT: Well I would like SAPS to - I think Mr Arendse has been very helpful over the last few days in accepting that there is a very serious problem and that police data shows that there is a very serious problem and he also said that when Mr Zitwana, Sifiso - if I call him Mr Zitwana his head will go. (laughter) When Sifiso spoke he also said and I heard he took Sifiso out for breakfast afterwards, but one of the things that I would like us to do is I would like SAPS and us to get together and for there to be a ceremony where SAPS says sorry to the family of Lorna Mlofana, of Nandipha Makeke, of Zoliswa Nkonyana, of Adelaide Ngogwana, Sithembile Sitsha, and there are many othe rs, but it would be really good if we can have a moment like that where the community is brought together and we all speak. I hope there would be some money in the budget to put up a memorial to at least those three women who brought us here today because their families have had so much suffering and their comrades have had so much suffering and it is symbolic of what has gone wrong in our community and it should be a start of turning the situation around. MR HATHORN: Thank you Commissioners. I have go t no further questions. NO FURTHER QUESTIONS BY MR HATHORN COMMISSIONER: Thank you very much. Ms Bawa have you got any questions? CROSS-EXAMINATION BY MS BAWA: On your last request one of the suggestions that has come out of the Schooling and Leamy report was a suggestion of a renewed public pledge to the community as a form by which you fix community relations that may be tenuous or may be broken and the idea behind that as I understood it was it would also be an encouragement to say to the communi ty “have faith in us so that you come to us to report your crime.” Would you agree with that? MR ACHMAT: I think a public pledge without an apology for what has gone wrong will not be enough because then it will be one of the routine pledges so I think a public pledge is essential but it should also have an element of acknowledging that serious mistakes were made. MS BAWA: My second question is we have heard your wish -list of what you want from SAPS. Now if I was SAPS what do I want from the community? I have a shortage of reservists who come. Your organisation and a number of other organisations haven’t been part of CPFs. SAPS have a difficulty in setting up a network of informers. What would your organisation and others like yours or the community offer SAPS as part of this partnership arrangement? MR ACHMAT: Well as you heard from the previous witnesses that informers come from criminal networks and I hope we don’t have any criminal networks that we are part of so we won’t be able to give them informers, but what we can offer and what we have always offered is serious support in terms of research, community networks linked to community networks, equal education is mobilised in every high school in the community, TAC is active in 22 branches and we want to make those networks available to SAPS. When it comes to community policing forums Advocate Bawa I think the difficult has been that community policing forums are very difficult and contested political spaces and for me I believe that it is also based on a lack of resources to community policing forums. There is a systemic question and a question that they often become politicised and what I think we need to look at is a plan for community policing forums that as sists the community policing forum to get the resources that they need in terms of knowledge first and foremost and then the financial resources to be able to do their work properly and from our side we definitely would join and Joel will speak more to you about it, and Welcome spoke about the attempts that had been made. Welcome Magele spoke about the attempts that have been made to work with, but I think we certainly have to do a lot more from our side. MS BAWA: I am not going to take you off on a tan gent of what is difficult political spaces but the other suggestion that emerged today was a notion of a community policing forum which is used to build the relationship between the community and the police and a civilian oversight akin to Civoc which is w hat the Commissioners raised in relation to the SAPS Act, similar to Civoc which operates in the City. It has a completely different function of a civilian oversight. Now we can go around in circles but there is actually no civilian oversight of SAPS. Do you agree with that? MR ACHMAT: That is absolutely true. The experience largely and I have been in countless workshops of the SJC of TAC and so on; the experience largely is that very often community policing forums see themselves as extensions of the police so they see themselves as a neighbourhood watch or joining neighbourhood watches and so on which are a very, very important task to do, but also they have to have oversight. There is no real independent civilian oversight over SAPS. There needs to be - you are right that the two things as Mr Loonat explained the two questions are in tension with each other, the one to build relations between the police and the community and the other one to be the body that has some oversight role and some monitori ng role. There is a real tension there and I don’t have the answer as to how to fix it. I do know that one needs an independent body to be able to do the oversight. If it is not independent it cannot do the oversight. MS BAWA: I have no further questions. NO FURTHER QUESTIONS BY MS BAWA COMMISSIONER: Thank you. Mr Arendse I think we allocated you fifteen minutes to question this witness. CROSS-EXAMINATION MR ARENDSE: Mr Achmat just a few comments and I don’t have too many questions. I think firstly just in terms of your personal experience, there are many of us who laud and applaud you for the leading role that you have played and you would be the first to say that it is not only you but many other people but the role that you have played we all acknowledge. The path that you have walked, one can even share a personal experiences of that, I think we come from the same community and shared the same experience and the role that you play for me after 1994 is even more critical. I think we know we need a vibrant active participatory NGO sector that can highlight the things that you have highlighted through your organisations and that has brought us here today so that is the first thing. Secondly just having spoken and consulted very recently w ith the national commissioner and the provincial commissioner a ceremony of that nature would be welcomed. Having gotten to know them both on a personal level, they deeply regret what has happened here and if it is established and there has been some evidence that the police played a role but then they are prepared to offer those apologies. Thirdly I think it is important to understand and the PC will obviously come and testify here himself and convey some of these and other sentiments of his own. It must be understood in the context of a court case. As you know the national commissioner was not insensitive to the complaints and in fact within record time after having been appointed on the 12 th of July 2012 and with Marakana happening just about a month after that within record time she had appointed the Tshabalala task team. We know from the evidence today and it is common cause that Tshabalala was a hard -hitting report. You quite rightly made much of it. It was in the media. It was in the court cas e and we have heard today confirmation that Tshabalala identified in fact many, many of the problems that we face in Khayelitsha so it did not hold back and it is a critical document. We also know from the court case that and of course Tshabalala then dea lt with the eight cases that form the subject of the complaint. I speak subject to correction but the complaint certainly did not give the kind of graphic detail that has come from the evidence and that you have also articulated today so the PC’s response was a purely formalistic response to say look, these cases went to court. They were dealt with, people were sentenced. It is not as if people got away and what is important and I think to be fair Mr Hathorn must do this, there was a full response from your comrade Mr Majola in answering to that formalistic response. If you look at the reply it is uncontested so we accept what you say. We accept that there were many problems and this is what by bringing the complaints this is what you attempted to highlight and so on but it is important to understand it in that context. Another issue is this, as you fairly said, the national commissioner again was sensitive to the situation and I think if I recall you got close to getting an agreement on this independent task team. I think it fell down on the terms of reference and I think the powers of the task team and then if I recall there was also another task team that was being proposed by the Minister when there was that inter-governmental exchange between the Minister and the Premier so the point is and obviously you are free to comment, that there wasn’t - this is not a case where there was complete and utter insensitivity on the part of the police to the many complaints that were raised. Thankfully the matt er went to court and quite rightly because the version that was put up in the opposing affidavits on your behalf, I am talking about SJC and the other organisations, it was accepted and the Constitutional Court found quite rightly that this is a matter tha t warrants the appointment of a Commission of Inquiry and a Commission of Inquiry cannot be a Commission of Inquiry if you cannot subpoena the police. Now you know from the opening statement our approach to this case. We have embraced all of that and we have also said that where we have heard almost daily of abuses, of violations, we are not here to protect undisciplined police officers, men and women and where this has happened. We have gone back. We have come back to the Commission to the evidence leaders with the dockets with the cases. So in the spirit of that cooperation we also want to move forward and we welcome. I have heard several of your recommendations which you know, which is important so we take what you on behalf of your organisation say very seriously. MR ACHMAT: Can I comment on some of that? MR ARENDSE: Yes. MR ACHMAT: I think just I am very glad to hear that the Commissioner and the Police Minister regrets what has happened and what is coming out but I do think people ought to accept responsibility. The biggest problem in our country is that we don’t accept responsibility and that comes down from the TRC where the TRC recommendations was that certain police should be prosecuted for crimes, gross violations of human rights. Th at has never happened and similarly over the last twenty years the police - it is not a case of rotten apples; the whole orchard is rotten. There are a few good apples and we have to find those good apples and work with them. The question is to what exte nt the provincial commissioner showed that sensitivity. He did not show sensitivity in court. He showed a ruthless response which I believe if one goes back to reading that court record that court record actually shows a political approach and not a lega l approach to the way people responded to the Premier and I am not saying the Premier is without blame. What I am saying here is that that court case was unnecessary and secondly we did not see any response from the national commissioner. We did not receive even a letter. We sent the national commissioner a letter saying - if I can just state the facts. We met with the task team and we gave the task team extra time. They asked us to drop the idea of a Commission and we said “no, but that is the only bullet we have, you can’t give up your ammunition and then expect...” So we said to them, “But we will keep an open mind as to whether a Commission is necessary pending depending on what sort of report you give us.” We also said: “We hope the Commissioner would come and speak to us.” To this day the Commissioner hasn’t come to speak to us. I was on a television programme with her and you know even then I extended an invitation to her, so the question is we haven’t seen evidence of that regret except what yo u are saying here. We have to see the evidence of it and it is not simply expressing regret but it is the question of accepting responsibility and fixing so we want to see the thing fixed and that is vital. MR ARENDSE: But just in terms of fixing it, you r complaint and it remains your complaint that it is about a failure of justice. Your complaint is against the entire criminal justice system. You know, so yes, the police and that is what I am doing today, they accept that responsibility and that is wha t we are discussing in the Commission is how we are going to carry out, it is clear that in many instances it is not being carried out. There are many plans and strategies and all kinds of documents before the Commission. The problem is implementation. The problem is will. So we accept our part of the responsibility but our gripe is also with the criminal justice system as a whole. The police they prevent, they detect, they investigate crime. Then there is a line. When a prosecutor gets hold of a doc ket and you must take the responsibility for the case, so yes, there are 20 -30 withdrawals. It is unbelievable, but it happens, so where do you draw the line? They are not before the Commission. MR ACHMAT: I think Advocate Arendse you know, you like cr icket, and when one plays cricket and I only became a cricket fan when I was sick and I had to watch television, so when you play cricket and there is a bowler and there is a batsman and there is a whole bunch of people fielding and a wicketkeeper, when yo u bowl and you bowl badly what is going to happen? MR ARENDSE: Sometimes you get a wicket. (laughter) MR ACHMAT: Oh sometimes, but most times ... (intervention) MR ARENDSE: With a full toss or a long hop! MR ACHMAT: In this case, in this case you a re the bowler and if you don’t get that bugger out no-one is going to get them out, you and your wicketkeeper and every other person who is on the field has a responsibility but when it comes to crime investigation the police are the most important part of it and I remember you asked my colleague Sifiso Zitwana a question about the death penalty. No, it wasn’t you. It was Advocate Masuku. MR ARENDSE: Advocate Masuku, my colleague, yes. MR ACHMAT: And Sifiso made the point perfectly that if the polic e were visible, if the police apprehended suspects, if they investigated properly, if that investigation led to a prosecution which means not simply a trial record docket that is ticked off but a trial record docket that has a post -mortem report in it and ends up with a conviction that will go the furthest in dealing with the situation and I agree with you that we have prosecutors who are not good. We also have prosecutors who are overburdened. We also have prosecutors who are not competent but let’s star t with the police and let’s also put the pressure on Minister Radebe to make sure his house is in order in the criminal justice cluster they call it, I think. MR ARENDSE: I think it is accepted by all that we need an integrated approach which involves all the role players. MR ACHMAT: But you’ve got to get your good bowlers? MR ARENDSE: Yes, no we will see that from Saturday onwards at Centurion. You were critical of or Ms Bawa asked you about the civilian oversight. Are you saying that the current civilian oversight of Docs is a failure or is also inadequate? MR ACHMAT: Independent civilian oversight is not Docs. Docs is an arm of Government. Docs is an arm of the executive. Independent civilian oversight is when you have a Committee or a genuinely independent community oversight body and I wouldn’t even say that the City’s body is genuinely independent because I have never of elections to it, so and I read the papers regularly so you know genuinely ... (intervention) MR ARENDSE: But they are appointed by the City to inter alia also oversee their own Metro Police. MR ACHMAT: Yes, so what I would like to see is a genuinely independent body. You are probably aware of the judicial inspectorate into prisons. They exist quite independently and they have prison monitors. For instance to give you an example, awaiting trial cells or rather cells in prisons are never visited by anybody other than police and sometimes the CPF or a few times CPF people go in but prisons have prison visitors so I believe a genuinely independent civilian oversight cannot be housed with the police. A genuinely independent oversight has to be external to the police. MR ARENDSE: Now I don’t want to go into this debate and I am also looking, it is five minutes before close of play, which is also a very important part in cricket. You send in your night watchman or your tail-ender but what is your brief comment on the new provincial act that has been enacted pursuant to the court case which will now give the provincial authorities more powers and functions and for example the office of an Ombudsman, what if the Ombudsman is appointed? I speak subject to correction but it could be a judge or a senior lawyer. MR ACHMAT: First let me say I think that there has been a spectacular failure in provincial oversight, a spectacular failure and that failure comes out of the following. Dr Lawrence’s evidence here pointed out that in relation to the resource allocation guide they had not really considered the disparities between say Camps Bay and Khayelitsha. Constitutionally, constitutionally the province is requ ired to determine priorities and needs and to give that to the National Minister. If the National Minister does not follow that there is any number of mechanisms in terms of intergovernmental relations that can be used. Secondly the Constitution mechanisms that existed and exist which the Constitutional Court has properly affirmed, I believe that the province needed to do that oversight long ago. Now again Dr Lawrence gave evidence about their previous access to the police station to be able to - the fact that Docs officials could get cards and go into the police stations at any time unannounced and visit and he said that stopped in 2010. Now I don’t like to play a political card here but we simply have to look at what the facts are. In 2010 there was a different political administration here and the entire question of policing became politicised and it became politicised from both sides, because in my mind province should have looked at resource allocation guides long ago and similarly when the biggest problem for us was that we had gone in 2010 to the then MEC Albert Fritz who promised us that he would set up a Commission and he even brought Adv De Kock, he brought any number of officials. City wasn’t present and SAPS wasn’t present. Now it took us ma ny follow-ups only to discover that he said UWC would investigate and the firm thing that we’d agreed in that meeting is you can’t have a bunch of academics telling police what to do because they would override them very quickly because that possibility wa s canvassed. What we wanted was a judge that could hear from prosecutors, could hear from magistrates if necessary, could hear from the police and that did not happen so even in 2010 I believe that our complaint could have been escalated to national level properly following procedures. That did not happen so it is not simply the question of a new act. It is also the question of taking seriously what is in the law as it exists and the Constitution already gave the province sufficient oversight powers. That it may not have been clarified in law was another matter, but province never tested it until our complaint. SAPS resisted our complaint so my comment is that there is much improvement in the current Community Safety Act as it is from the province. There is much improvement in it but again the oversight is not independent. MR ARENDSE: Are you concerned that it will continue to be politicised? MR ACHMAT: From both sides yes. MR ARENDSE: I meant from both sides. Sometimes it is close of play but because there is a mandatory 90 overs then sometimes you just go. I have got one last question. COMMISSIONER: One last question, as long as it is not another 90 overs as with Mr Lawrence. MR ARENDSE: Madam Commissioner if you are dealing with a witness who is sort of articulating so powerful his answers, then it takes up your time. He has taken up all my time. (Laughter) I have asked him three questions. COMMISSIONER: I won’t tell you how long I timed your first question, but anyway, keep going. MR ARENDSE: Well the first question ... (intervention) MR ACHMAT: Commissioner if I can say ... (intervention) MR ARENDSE: The first question wasn’t a question, it was a statement. MR ACHMAT: Commissioner if I may just say something, you know when A dvocate Arendse opened it was like an opening address; not questions. (Laughter) MR ARENDSE: Absolutely and you then responded in style! Just lastly, I think you rightly mentioned and the question is who then plays this oversight role because coming through from your complaint and which has now been excluded from the terms of reference is the role of the City’s anti -land invasion unit. You actually described them in your complaint that they terrify people. The people are in fear of this unit. Now who is keeping that unit in check? MR ACHMAT: Well the first thing I would say is that SAPS has oversight over it too; SAPS has oversight over municipal police in terms of the Police Act. MR ARENDSE: Well any unlawful ... (intervention) MR ACHMAT: Yes, so SAPS should have done some oversight but we also made a complaint and the sad thing is I would have hoped that City would have come here with a much more positive attitude as to what they can bring to solve questions, both infrastructural questions but a lso examining how they deal with Khayelitsha and working class areas. To give you an example when the service delivery protests happened a couple of years ago the councillor responsible for safety and security says, “We keep on having to give resources to a place where people don’t pay taxes and we can’t send Metro Police in to do that.” Now to me that is indicative of an attitude and in his response to Premier Zille which I don’t regard as an exhaustive response to our complaints on the anti -land invasion unit Councillor Smith says Khayelitsha gets more than its fair share of resources but we know that when Advocate Bawa cross -examined Mr Bosman that 14 cameras were given under the Mbeki administration by National Government. We know that there are no speed bumps in the streets and yet traffic police are here. We know that traffic police are not as evident as they should be here. I must say to you, you mentioned your tyre got - you have to replace your tyre. I am shocked. It is the first time working in Khayelitsha since 1999 that I have seen potholes being fixed. I am very glad that we have the Commission and we have elections so that all these things are getting fixed, but for me, I don’t believe that our complaint was properly investigated. It was given to the MEC Dan Plato from whom we have heard absolutely nothing in a formal letter as to this was investigated. In a meeting on I think it was the 6 th of March in 2012 when we met with the Premier and Councillor Smith I personally handed over to Ms Stewart and the Premier a case before the court at that time of the anti -land invasion unit which LRC had to bring to stop violent evictions. Now I would have loved to see the anti -land invasion unit because there are two of them. There is the one in Mr Bosman’s office which works with SAPS and there is the other one in the housing directorate which actually does policing work. I would have liked to see both of them here to explain how to ensure that people living in Khayelitsha who came here through th e most violent methods of forced removal of beating up and so on aren’t referred to as invaders in this land and I mean I am not making a speech. What I am saying is there is an attitude that people who come in migrants, a flow, a steady flow of people, we need to take as a province and as a City we need to take seriously that we are forcing people black African people and coloured people further and further out of the City instead of creating an integrated City and that has an impact on policing. It has an impact on education and it has an impact on service delivery and I hope Mr Katz is not going to ask further questions about that. COMMISSIONER: Yes Mr Katz. MR KATZ: Madam Commissioner I am not going to ask Mr Achmat a question. I do think it is only fair to the City that I be given an opportunity to at least say something in response to the evidence he has given. He has gone way outside his statement and his High Court affidavit and there are many things that he said that the City will contest if necessary. COMMISSIONER: Mr Katz, the anti-land invasion unit, both Mr Achmat, Mr Arendse and yourself all know don’t fall part of the terms of reference. MR KATZ: That is the point. COMMISSIONER: I really think, at five past five, we don’t need to go beyond that. My view was to let Mr Achmat finish his answer to what I understood was the ultimate question from Mr Arendse and then to adjourn proceedings. Can we not proceed on that basis? MR KATZ: Madam Commissioner I would be only to happy if you did that subject to making it quite clear, because there are many people here who are listening, there are television cameras there are press, there will be coverage of the kinds of wonderful evidence that Mr Achmat has given today and I think it is o nly fair to say that the City has provided five volumes of evidentiary material which I made the point in my opening address. We don’t intend, the City doesn’t intend to cross-examine this kind of evidence. I think it is only fair to place on record the kind of evidence and the context in which it had been given and the fairness to the City. There are many things that are said which just simply aren’t true and I don’t think it is - I don’t intend to cross-examine Mr Achmat. I don’t have instructions to, but I think it must be made clear that what he has said should be struck from the record effectively. It should not be noted and he should not have said it. It is not part of the terms of reference and it is grossly unfair. COMMISSIONER: Well thank you for your comment Mr Katz. It has been noted. MR KATZ: Thank you. COMMISSIONER: As is a habit I gather in SAPS quite often. Mr Arendse, are you now done? MR ARENDSE: I am done, thank you Madam Commissioner. Thank you Mr Achmat. NO FURTHER QUESTIONS BY MR ARENDSE COMMISSIONER: Thank you very much Mr Achmat for your evidence and for the statement that you put into the Commission. We are very grateful to you. It has been most helpful. You may now stand down as a witness. MR ACHMAT: Thanks very much Commissioner. WITNESS EXCUSED