[intro]Reforms to the police oversight system are long overdue. Forensic expertise and investigative skills are low, pathology services in disarray, and witnesses terrified of coming forward. Families from impoverished communities can’t afford expensive lawyers to challenge these shortcomings or the quality of evidence presented at inquests. An inquiry could become the catalyst for a much-needed system reset.[/intro]
In December 2011, I sat down with Johan Booysen several floors up in the South African Police Service (SAPS) provincial head office in Durban. He was the head of the Hawks in KwaZulu-Natal at the time and I was a member of the Sunday Times investigations unit. Joining our conversation on speaker phone from our newsroom in Johannesburg was my colleague, Mzilikazi wa Afrika.
Mzi and I, later joined by another colleague, Rob Rose, had spent more than a year investigating allegations that members of a specialist unit Booysen had set up in Cato Manor had committed extrajudicial killings and other human rights abuses.
By then we had conducted more than 40 interviews, often with people who had direct or expert knowledge of events. We spoke to former members of the unit or people close to them, human rights researchers, the family members of those killed and – most importantly – four witnesses to two of the killings.
Along with this testimony, we had gathered a mountain of evidence in the form of ballistics and post-mortem reports, affidavits, including from witnesses, and hundreds of photos. The evidence suggested that the unit was involved in at least 30 suspicious deaths in four and a half years, mostly of people living in poor townships or rural villages in KZN.
In my notebook, I had listed the details of seven specific shootings we wanted to ask Booysen about, along with another six questions, including about the pictures of killings we had obtained, and about a call for a judicial inquiry into the actions of the Cato Manor unit.
Booysen appeared reluctant to discuss specific killings, or the evidence we had gathered suggesting they were suspicious, such as photos of close-range head shots and witnesses who said they had seen executions. He said the only document that could be relied on to determine how a person was killed was the post-mortem report, pointing out the Independent Complaints Directorate (ICD), forerunner of the Independent Police Investigative Directorate (IPID), had investigated all the killings. He said witnesses should make statements under oath and the competent authorities, the ICD and the National Prosecuting Authority (NPA), be given the space to do their jobs.
But that was precisely the subject of our investigation. Witnesses were terrified of coming forward, and the competent authorities weren’t doing their jobs – it seemed Booysen’s men were running rings around them. I pointed out experts had told us many ICD investigations and post-mortems were sloppy or incomplete. Booysen said that wasn’t his problem.
Before our interview with Booysen, the South African Communist Party (SACP) had called for a judicial commission of inquiry into the conduct of the Cato Manor unit, which it accused of committing “Vlakplaas-style” executions rather than taking suspects to court.
The SACP said it was worried about the latest Cato Manor killing – that of Qinisani Gwala, an ANC Youth League branch chairman suspected of killing a police captain. The party also cited Cato Manor detectives having previously killed six men suspected of murdering Superintendent Zethembe Chonco, who headed a taxi-violence task team, and all the suspects wanted for the murder of Inkosi Mbongeleni Zondi, a former policeman close to Jacob Zuma.
Our research showed that 16 of the more than 30 suspicious deaths we looked at were of suspected cop-killers. I thought at the time that this was precisely the sort of suspicious pattern of killings that a judicial inquiry might get to the bottom of. At least it stood a better chance of doing so than a compromised or inept police oversight system.
I hoped that, by writing a story about the Cato Manor unit killings, we would create enough public awareness to pressure the government to convene such an inquiry. I asked Booysen whether he would support such a move.
As we wrote on the front page at the time, Booysen said he would have “no objection to something like that [an official probe] – it may prove once and for all that the picture created about Cato Manor is totally wrong”.
(Incidentally, Anton Harber, in his book So, for the Record, bizarrely states that “there was no indication in the story that Booysen … welcomed the idea of a formal inquiry”. This is one of numerous errors and distortions about our Cato Manor coverage that Harber makes in his book, as discussed here: https://bit.ly/3mqo26s.)
It never occurred to me at the time of writing that our story would spark off mass arrests for racketeering, including of Booysen, by a politically corrupted criminal justice system. Last year an NPA panel appointed to review the prosecution found it deeply flawed. The racketeering charges were withdrawn and more than 20 individual murder dockets referred back to the KwaZulu-Natal office, which declined to prosecute any of them.
This came as a great shock to IPID investigators, whistleblowers, witnesses and family members, some of whom were present during the shootings. They have supplied enough evidence to suggest that some of these detectives were involved in a large number of suspicious killings. Some have been targeted and victimised for blowing the whistle, or for simply doing their jobs.
I am absolutely convinced that the actions of the Cato Manor unit still merit a thorough, professional criminal investigation and, where warranted, prosecution – one that is not tainted by political manipulation. But this is unlikely to happen unless there are private prosecutions, which are beyond the means of most families of those killed.
Another option is to heed the SACP’s call for a judicial inquiry. This could provide a safe space for whistleblowers and witnesses who have lost faith in the criminal justice system to come forward to testify under oath, and in camera if necessary, without fear of victimisation.
Why not let a respected, impartial judge consider their testimony and evidence to decide on its weight? It would result in well-reasoned recommendations being made, informed by evidence, about which cases should still be pursued criminally.
There is a substantial body of evidence that has yet to be tested by means of a criminal trial.
In one case, for example, three ballistic reports concluded there were no shots fired from the inside of the victim’s car towards the policemen chasing him. The post-mortem showed his hands were stretched forward towards the steering wheel when he was shot from the side. Shell casings found at the scene showed he had been shot at close range, including by high-velocity bullets in the face after he was dead.
Then there was the evidence of a cover-up: the pistol that was handed in to the ICD only after the post-mortem found he’d been killed with a 9mm bullet, and the strange disappearance from the scene of the two Cato Manor detectives who’d fired the final shots.
The family of the person killed in that particular shooting has already won a civil suit against the police, with help from Amnesty International. Yet no criminal prosecution followed.
In another case, the police stormed the wrong house and shot an innocent victim. An expert analysis of the post-mortem report and crime scene photos suggest he was probably sleeping on the couch when shot, with no evidence to suggest he posed a threat. The policeman who fired the fatal shots with an assault rifle had mysteriously vanished by the time investigators arrived, and fingerprints couldn’t be taken from the pistol found at the scene because too many policemen had handled it. Yet no criminal prosecution is under way.
According to a human rights activist supporting the victim’s family, his relatives are still traumatised because they have been denied any form of closure.
This must surely be true for many others, too.
Some wrote to us shortly after we published our first story in 2011. By then they had already given up on a criminal justice system they felt was rigged against them.
One related the fatal shooting of a “very close friend”. He said four Cato Manor detectives armed with rifles had entered his friend’s room and locked the door. “After a while we heard a loud bang,” he wrote. Then one of the detectives emerged and “phoned the ambulance”. Next, the others came out and “phoned the newspaper to take photographs before we were let into his room”.
“These people have killed many of our loved ones, friends and family, and people we know,” he wrote. “We report these cases but nothing is done because they protect their own.”
Another reader related how she had lost three cousins who, it was later revealed in crime scene photos, had been lying on a bed and couch and were possibly asleep when shot. Another related how his cousin was killed “in front of his kids” and an acquaintance was “shot in the head while sleeping with his pregnant girlfriend”. Yet another warned that “ppl will be afraid to come forward with evidence to the killings of their loved ones cos [the detectives] have informers all over KZN”.
An inquiry may make it easier for these witnesses to come forward. It could also serve as a catalyst for long-overdue reforms to the police oversight system.
That these shortcomings remain a serious problem is illustrated by research done in 2019 by investigative journalist Daneel Knoetze. He revealed how IPID had rushed poorly investigated files through the system and closed them prematurely to inflate performance stats. Knoetze cited an internal IPID report from a site visit to KwaZulu-Natal, where an investigator described the practice as a “dereliction of duty”, declaring: “SAPS members are literally getting away with murder, assault and torture”.
The Cato Manor killings we examined exhibited severe shortcomings in ICD/IPID investigations and oversight.
For example, in several no scene reconstruction had been done by a ballistics expert. In some, detectives were allowed to take each others’ statements, which bore remarkable similarities. In others, those who fired the fatal shots were able to leave the scene before the ICD arrived.
In one case, a private investigator retrieved a bullet casing from the dashboard of the deceased’s car at the police pound. In another, a bullet was retrieved from under a bloodstained carpet five days after a shooting. The deceased’s girlfriend had found another bullet in a cupboard, and a cartridge and a bullet under the bed. Almost a year later the ICD had still not collected this evidence, yet the directorate cleared the police of culpability.
Respected veteran human rights researcher Mary de Haas has repeatedly pointed out over the years that the shortcomings of various incarnations of the police oversight body run deep.
In December 2011, she wrote a scathing letter to the KwaZulu-Natal ICD office that painted a portrait of a police watchdog in crisis.
She pointed out the police often “get away with murder” because the health department’s pathology services were in disarray and the ICD suffered from a chronic lack of forensic expertise and investigative skills – yet no one showed any interest in upping their game. She cited a case where no post-mortem report had been compiled for a Cato Manor shooting two or three years earlier thanks to a shortage of properly trained mortuary staff.
De Haas berated the ICD for its lack of interest in improving its skills levels, for not insisting that post-mortem reports be made available timeously, and for sometimes failing to take over dockets of police killings, allowing the police to investigate themselves.
When such compromised cases reached inquest magistrates, the magistrates invariably cleared the police of wrongdoing due to lack of evidence.
Another limitation is that in many cases the family of the deceased couldn’t afford proper legal representation at inquests to interrogate the quality of the evidence being presented.
The system is stacked against the poor, in favour of the police.
As with the TRC cases of apartheid-era crimes that are finally reaching the courts, the family of every person killed unjustifiably deserves justice one day too. The failure to acknowledge this can only encourage a sense of impunity among police officials accustomed to “protecting their own”. An inquiry may be just what’s needed to balance the scales.
* Stephan Hofstatter is an investigative journalist and author