POLICE CONDUCT: What We Should Expect & What is Happening-

Please note the police were certainly justified in arresting, detaining and locking the joker up. Gotham did not deserve the moral games which the joker was subject the citizens of Gotham. This post centres on moments werein the police have conducted themselves in a manner that does not justify and correspond to the standard expected from an official positioned to serve and protect.

A CASE LAW COMMENTARY ON 2 CASES INVOLVING POLICE CONDUCT BEING IN QUESTION:

It is sad to point out, but i believe that most of us, as people of color have had a not so pleasant experience with police official. And by unpleasant experience i dont meant you did something wrong and got put behind a police van, because that can be unpleasant. By unpleasant i mean, where police conduct themselves in a manner that violates your rights and your dignity in ways that would not expect something put in that position to do. Now dont get me wrong, i am not saying that every police personel is guitly of these acts, nah, but there are those who have abused their powers and show disregard to the role which comes with being a police officer.

In this legal commentary i will be taking a look at the 2 cases, which outline perfectly what citizens should expect from police in terms of their behavior and actions, as provided for in the AK case. I will be going into the latest happenings in relation to how police have acted in ways which make one very doubtful of the police institutions in the country as i read with the DAVID case. 

Please understand, this isnt a bashing commentary on the man in blue. Nah, these people wake up with the possibility that they might not come back home because of the nature of their job and they still go out and fight bad dudes and get involved in shoot out with bad muh fuhs. This is more of bringing awareness that these are the challenges that we sometimes face when it comes to police official, especially in marginalized communities.

1) AK v Minister of Police 2022 ZACC 14:

This is a matter that spans over 10 over being disputed in court. And rightfully so because it deals with a very problematic issue in society which is GBV, rape and femicide. This is one of the cases which i believe takes society towards the right direction in terms how it has the potential to implement the change that are pronounced in legal courts. Usually court order, do not bring real change on the ground, in the real lifes of people because most people are not privy to what those order are and how they impact their lives, so therefore they are unable to apply those judgment in their lived realities. And thats why i believe that this judgment is one that, if communities were to become privy to it and what it means to their lives, then it change lived realities. I will explain how that is so in due course.

Let me get to the facts of the case: 

In 2010, AK was on a business trip and having a visit to her mothers place.On the day when she was to go back to johannesburg, she went to the beach as the weather was good and she had a couple of hours to spare before her flight was to arrive. She takes her car, drives to the beach, finds a parking spot, and begins her walk. Not far away from her car, it happened. An unknown man accosted her and assaulted her and robbed her of her personal belonging. The man after having taken her valuables, decides to be an evil son of a.... and wants to do more. So he gives her two option whether she wants to die or come to bushes with him and keep her life. Now Ak took the decision that we all would have take which is to live, and most of time its not you deciding but its just your human instinctual needs to self preserve against non-existence. So she went with him and he had her take her clothes off and then proceeded to blind fold her. What is done to her makes one lose hope in the so called human race, like nigga why you do that, this yound lady did nothing to you or anyone you know, she has nothing to do with your life and you do that to her. The man proceeded to keep her in captivity for approximaely 15 hours(14:30-06:00), during that period he raped her, beat her and stripped her of her humanity and dignity. He did shit only primitive savages with no conscious and any sense would do. She ended up escaping the ordeal, came across a jogger and seeked assistance. The jogger escorted her to the police station where she reported the case

During the time of her captivity, her uncle, if am not mistake, went to the police and reported her missing at the night of day in question. The police took their time with the shit(which is something that has become a norm with South African police when it comes to cases where people of color are in distress). Then at arround 23:30 her car discovered at the beach where everyone knew was at. This is when fuckery begins with the SAPS, the first officer does a shitty jobs at begining to look for her, he actually didnt do his job because he arrived, saw that the car was broken into and went and called his superior. My guy, the broken into vehicle represent that she was here,and was probably taken not far from here, look for her. The superior arrives with a drug sniffing dog in order to begin the search, found "bush dweller", asked them whether they had seem some shit or someone, they said nah. The first dude who arrived there should have conducted that search and asked those bush dweller whats the deal, he just waited at the car for his superior like he didnt learn about search procedure in the police academy. Helicopters were involved, they to did a shady job at actually using their airiel advantage to cover more grounds. That airiel search only lasted for 20min and then they called it quits, citing some reasons which i did not understand given the veracity of the situations. As a result of the force conducting the search with lack of committment, dilligence and care, the AK "endured several hours of rape, trauma and torment. The investigation begins, also some not so great work was done in the investigation, CCTV tapes viewed after 3 days, they asked the victime to look at about 25 bush dweller in a line and see if she can identify her tormentor without even considering that she was blind folded and she obviously would not be able to know how the person looked like. More time being wasted. The investigation till this day has yielded nothing, no perp, no prosecution, no justice.

So Ak, as within her rights, decided to institute action proceedings against the police on grounds that their search and investigation fell short of the standard required from them by the Constitution. 

I dont wanna spend too much words on how the court proceedings wents, so i will just provide a brief summary of the journey the case went through in order to reach a judgment which makes us appreciates this outcome of the matter. First case was in the high court, if am correct-i stand to be corrected. But yeah first the court a quo, which is the court of first instance, the court that hears the matter, pronounced that the police did not their standard required from them by the act and the constitutionin conducting their work in the search and investigation. This was a delictual matter by the way. So yeah court of first gives out a judgment that yes the police where negligent in their search and investigation of the AK matters and that negligence in the search led to her extended ordeal with her tormentor. The Minister police, then goes on and uses tax payers money to take the matter on appeal to the Supreme Court of Appeal, where i must some strange things where said by the court in its judgment. I dont want to get in too deep about how the SCA could have done things differently or reasoned differently in this, thats a topic for another post. But yeah, matter goes to the SCA and the SCA upholds the appeal and finds that the police did everything in accordance to the standard and that they were not negligent nor wrong nor is their lack of action linked to the extended torment to AK. The one thing i would like to mention about the SCA order was that they ordered cost against AK as the SCA found that the litigation was not on constitutional grounds which according to the Biowatch principle, litigation on grounds of constitution, cost are not ordered against applicant/complanant. The court reasoned that its a delictual matter and cost will be ordered based on the normalacy. The matter goes to the Constitutional Court and this where what our blog post is about. The judgment found in favour of AK and the reasoning behind the ConCourt judgments informs us as the public what we should expect from the police and the standard we need to hold them in regard and accountable.

What the ConCourt Says We Should Expect From Police When dealing with Out Complaints:

There has been a thing going arround that police in recent time have been particular discompassionate in their approach to complaints of Gender Based Violence and Rape. They seem to try and grill the victim and disregard their experiences.

The first thing the ConCourt says is how the police are under a duty to take reasonable, practical and appropriate measures to pprotect women against GBV and investigate GBV crime and ensure they give effect to the values of the Constitution. Protection of womens rights are of public interest in this country and police need to handle issue related to such in manner that reflects th Constitutions concern on protecting and promoting womens rights, in particular their right to dignity, equality, freedom physical psychological integrity. In accepting the appeal, the ConCourt looked at how this matter is in the interest of justice that it be before these courts expertise and the court also considered the prospect of success.

One of the friend of court(an amicus curae) made a important statements in that the police need to deal with matters of rape and gbv from a victim centred approach not from a structural cold appraoch off grilling the victim. That one of the things the court agreed with and we should take from. Us as citizens, especially women in these situation what expect police to deal with their complaints in a more victim centred approach- that means they need to have more compassion, more considerate of what this women has just went through, understanding and just a little more humane instead of being dismissive. CALS also made a statement which the court agreed with that police have a duty to mitigate secondary victimisation. In the case of AK, the police was under a duty to prevent the extended victimization of AK from happening by just being thorough and dilligent with their search for her and in their investigation. When looking at how a police dealing with your complaint has to act, you have to think of it from a perspective of whether a reasonable police official would have dealt with you and complaint that way. The judgment also informs use that we shoudl expect police to investigate our complaints with promptness and care and dilligence which is required from a skilled officer. 

It is important that we know that police official have a obligation to safeguarding and protecting our rights against violations. And if we feel that police are not matching up to the standard which the constitution places on them, we have the power to hold them accountable to that standard and demand that they act in accordance to that level. Now access to court, although a rights, is not accessible to everyone so it is very important that we remind police official of their duty and how their conduct aggrives us when they fall short of that standard of conduct.

The next case outline the realities of our Police force in South Africa:

The David case show the conduct of our police which fall extremly short to the duty they are bound to as provided for in the constitution. I will begin with the commentary on the David Case:

2) David V State 2022 ZASCA:

As as lover of crime, action, gangster movies, this case provided me with great enjoyment to my imgination because it was legit a film. Like "yiFilm" as the people would say. This case had moments which you only see in these movies. It had betrayal, stupidity, shooting, car chase, the whole nine yards. The judgment i read was a Supreme Court of Appeal judgments which was basically about whether circumstantial evidence constitute sufficient evidence in order for one to catch that conviction. DNA evidence was the evidence in question as to whether it was enough to convict said accused person, now convicted person.

The Facts of the Case:

The day is question is December 2015, David and 3 other brothers, after days of planning, decided to get dressed in female clothing, armed to the tee-broke into a G4S premises(thats where they keep money and shi). They 'bludgeoned the security door and the garage door. Got in the plek and removed 11 miilion cold cash from the place. The job, according to camera's lasted for 30 minutes(I am not a expertise in criminal activities or heist but i can fosho tell you that, a job like that cannot last a group of 4 people 30 minutes to complete, that is legit a whole episode of your favourite soapie, a whole episode of isibaya, but hey that is just me). Anyway the job lasted for 30 minutes and after they mayhem they cause, got in different vehicles, fled the scene and fired gunshot. I dont understand the need to firing gunshots, i am thinking they were firing at some cause the facts as outlined in the judgment does not specifity who the gun firing was directed at. I think they were just firing gunshot at the air on some unprofessional shit, drawing attention to themselves given the time it took for them to get this job done. Am sorry but 30 minutes is too long.

Aight cool the job is complete dudes go their seperate way. Now here is where this shit get a lil funny. The job took place 9 December 2015, David one of the robbers gets caught and arrested the night of the very same day they hit the lick. Now you might be asking where did he get arrested and how so quick. Well my guy here got arrested at a police station, get this, where he is employed. So my dude here is a police officer who after hitting a lick of a lifetime(11 miilion), decided to go clock in at work and keep up appearence. My dawg you just stole 11 million rand in a very reckless and loud job. Ohh there is also traditional/spiritual healers in this shandis, where David once he was caught, snitched and directed the police to where some of the money was taken, i guess he was trying to get a deal or for the purpose of mitigating circumstances during sentencing proceedings. I dont know.

The next facts that am about to provides, like, when i read them, i knew that this shit was going to south. There was a part where they suspected there was a rat in the group but still carried on with the job. But yeah let me carry. The two other dude get knicked a day later after the job on the 10th of December through a set up from one of the guys who was part of the planning committee. The dude who set them up, is the same dude they suspect of being a rat and was actually accused in of the meeting of being a rat. Like when i read that fact, i knew that wait man, the fact that people in the job suspected there was a rat and still carried on with the job, was like a indication to me that this was meant to go south. There was no other outcome than everyone getting pinched and arrested at the end with such sloppy coodination, planning and just verification of who is in this job.

But yeah everything came crumbling down, David, the dude who took the matter to the Supreme Court of Appeal, caught that case, Shit went to the high court, dude got 18 years for his crimes. The other two dudes, it is said according to the SCA judgment that they later got indeminity in terms section 204 of the Criminal Procedure Act and turned state witness. So David, given the time he was set to spen as given by the High court, he took his matter on appeal. In his appeal the issue became whether he should have been convicted on the confession/DNA and pointing out evidence. One thing which i never forget about this judgment is how the court said that DNA evidence on its own is not adequate to secure a conviction, all the evidence have to be look at as a whole, 'considered in totality; sort of like looked at with the intention of seeing whether the big picture comes together which points to the accused having committed the crime beyound a reasonable doubt. And thats what happen in this case. Also some of the evidence was not obtained through legal means, the confession was not obtained in accordance to procedure in that it was not reduced in writing and signed by a peace officer/magistrate. But the other remaining evidence was still enough for the judge to see the big picture which clearly points to david being guilty beyound a reasonable doubt.

What is Happening: Our Reality with the Police Force

This case, given the fact that some of the participants involved where police official, is reason why little faith is put on the police institution and even criminal justice system, because how can the very same people tasked with catching bad dudes, be the bad dudes they suppose to catch. But also it is important to have empathy and try understand why police would go to such lenght to committ such crime. Maby the fact that they dont get paid that much relative to the risk they are taking is something that could lead one to have a side gig. But yeah thats also a topic for another blog post, where i could talk about the features of capitalism that make no sense.

To conclude, me personally, i think we have a long way to go before institutions like the police function with pure morality and just steadfast goal protecting and serving. I feel maby in 50 years, the generation that will be running things will be better than the generation that is running things now. All we can is keep the hope cause rights now thats all we have