Western Cape Police Ombudsman 2018/19 Annual Report; Western Cape Police Ombudsman investigative report into policing in the Oversstrand area

Community Safety, Cultural Affairs and Sport (WCPP)

17 October 2019
Chairperson: Mr R Allen (DA)
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Meeting Summary

2018/19 Annual Reports

The Standing Committee on Community Safety met with the Western Cape Police Ombudsman to discuss its 2018/19 Annual Report and for the Ombudsman to brief the Committee on the Report on an unresolved investigation regarding policing in the Overstrand area.

The office of the Ombudsman was commended for their reports and inclusive organisational structure. Questions and concerns were raised on the outreach programs of the Ombudsman. The Ombudsman was requested to conduct outreach programs in more rural areas because that was where they were needed most.

The number of complaints concerning communication was very high and the Committee recommended that the Ombudsman request a commission of inquiry. A request was made for the police stations where there were complaints regarding communication to be made known.

The Chairperson made it clear that abalone poaching was an extremely important issue and the poaching was linked to crime syndicates. The abalone poaching was described as a complex issue that required all government spheres to work together to resolve the issue.

The limited amounts of reservists were raised and the Department said that the South African Police Services (SAPS) was offered R5m for the call up of reservists in the Western Cape but did not accept the offer.

The Public was allowed to raise questions, issues and concerns before the Committee. The Committee felt that crime and poaching was not only a SAPS problem, there were also underlying socio-economic issues at work which needed to be addressed. The Committee agreed to invite the Department and SAPS to their next engagement on the matter.

Meeting report

Mr J Brand (Western Cape Police Ombudsman) said that the office of the Ombudsman was there to ensure that they could improve policing. The Ombudsman’s aim was to make a difference and ensure service delivery in the Western Cape. The office was open for complaints from the Committee, because that was part of the legislation and the Ombudsman would like to assist where it could, should the Committee raise issues.

Annual Performance Report 2018/19
Ms N Arabi, Deputy Director: Western Cape Police Ombudsman, went through the report page by page.

The investigating officers went through examples of cases that the Ombudsman had by illustrating the type of cases, how they carry out their mandate and the impact that their investigations have on the community.

Ms D Foster, Deputy Director: Western Cape Police Ombudsman, went through the outreach services conducted by the Ombudsman.

Discussion
Ms A Bans (ANC) commended the document and the Ombudsman for its organisational structure, because it was rare to see female representation and in this case the female representation was amazing. The way the outreach programs of the Ombudsman were done was also commended. The question was whether the appointed positions were addressing the needs and whether the Ombudsman was happy with the appointments they made. The need for outreach programs by the Ombudsman was very high in the rural areas, so the focus on rural areas had to be intensified and the Ombudsman’s outreach programs should be more present in the rural areas.

Mr F Christians (ACDP) said that the report was a very good document and he was very impressed with the investigators, as they had presented well. There were three main languages in the Western Cape; English, Afrikaans and isiXhosa. He questioned whether the investigators could speak these languages, because people felt comfortable communicating complaints in their own language. What was the Ombudsman doing to do to retain their skilled people, because they were losing them. If there was no career progression, people would leave for greener pastures. The Ombudsman could have capable people now but if they were lost, the Ombudsman would be back at square one.

Ms L Botha (DA) said that one of the investigators spoke about an Act changing, so that the Ombudsman could do their own investigations without waiting for a complaint to be lodged. Would the Ombudsman have the staff and capacity to do that?

Mr P Marais (FF+) asked if the Ombudsman considered the option of asking the Premier to appoint a commission of inquiry on why there was poor communication and if not, then why not?

Mr M Kama (ANC) asked if the Ombudsman investigated complaints of misuse of police resources, whether it was municipal or South African Police Services (SAPS).

The Chairperson asked for input from the Department on the modernisation process and how it affected the Ombudsman’s office and also for a brief explanation on how complainants were received and which mechanisms were in place to protect someone who had laid a complaint.

Ombudsman’s Response
Mr Brand noted that the Ombudsman had invited the entire Committee to their office because the Ombudsman would like the Committee to experience what they were doing, the layout of their office and the service they provided.

In reply to Ms Bans, he said the two appointments that the Ombudsman received at the time, addressed the need at that stage, because as indicated in the report, the Ombudsman received the same number of complaints in six months that they had received in the previous financial year. At that point, the two appointments were specifically for addressing the backlog in complaints. The Ombudsman agreed that they needed to go to more rural areas, as more complaints were generated from the rural areas, because in the metropole there were at least different police agencies and security companies that work in partnership with SAPS. The Ombudsman was open to going to more rural areas.

Replying to Mr Christians, the Ombudsman said it was trying to be as diverse as possible, in order to address the need of people, but unfortunately some of them could only speak a bit of isiXhosa and they could speak Afrikaans and English. However, when the Ombudsman made appointments, they looked at the diversity of the office in order to address people in the three official languages.

Replying to Ms Botha, he said the Ombudsman had requested a legal opinion as this was recommended by legal services.

Replying to Mr Marais, he said one of the things that the Ombudsman was trying to look at were systemic issues and once they had identified all systemic issues they would then show the Committee the substantiated complaints, and try to use the Committee to also recommend a commission of inquiry.

Replying to Mr Kama, the Ombudsman said he had unfortunately decided not to investigate more complaints because it was a known fact that there was a shortage of resources in the Western Cape.

Discussion
Mr Christians said that his question about retaining staff was not answered.

Mr Kama said that he was not asking about whether the police had enough resources or not but, on whether the misuse of those resources by the police was investigated.

Mr Marais said the Ombudsman could liaise with the National Cabinet Minister. They did not even have to go to the provincial one. That question had been posed to the Premier and his answer was “No, I will not liaise”, and so the question to the Ombudsman was, would the Ombudsman liaise with the National Cabinet Member responsible for policing regarding crime and policing in the Western Cape? Could the Ombudsman, in terms of its power, recommend that to the Provincial Cabinet Minister?
 
Ombudsman’s Response
Replying to Mr Christians, he said that the Committee could see that the Ombudsman had a very small staff and the Ombudsman was very proud of the staff as they were all very professional, dedicated and well trained members. Once the modernisation process kicked in, and based on the Committee’s recommendations, the Ombudsman would have to look at the expansion of the office of the Ombudsman. Only then would the Ombudsman have a retention strategy.It was difficult to have a retention strategy when there was such a small staff, but the Ombudsman would love to keep all staff members until they retired. 

Replying to Mr Kama, he said that if the Ombudsman’s mandate was to investigate service delivery, so if the misuse of resources related to service delivery, then the complaint would be accepted by the Ombudsman and be investigated. The Ombudsman also had a steering committee. Complaints were submitted to this Committee and the Committee then decided whether the complaint fell within the Ombudsman’s mandate.

Replying to Mr Marais, he said that when it came to the recommendations of the commission of inquiry, it could only be done directly from the Ombudsman to the Premier, not to the National Minister. It must be remembered that the Ombudsman’s office did not have a national mandate.

Input from the Department of Community Safety (DOCS)
Ms Y Pillay, Chief Director, DOCS, addressed some issues relating to the structure and modernisation process. Members might recall that at the Department’s briefing to the Committee the previous week, the Head of Department mentioned that the Department was undertaking a very lengthy modernisation process and it was going on for many years, but the Department was engaging with the centralised corporate services in the province to fast track the process and the Ombudsman’s office was part of this process. Despite that, the Department had attempted to assist the Ombudsman’s office with additional capacity wherever the Department could, like for example, making available funded or unfunded vacant posts that the Ombudsman could use to appoint investigators and the Department would continue to support it in line with the Premier’s recent announcement of 3 000 law enforcement officers and 150 investigators. The Department envisaged and were planning for some of the investigators to be based with the office of the Ombudsman.

Discussion
Ms Makamba-Botya asked how the Department’s role differred from the IPID and the NPA. She asked whether or not the Committee could get an idea of the cases that were not finalised, per area, because the report did not indicate that and it was crucial to know which areas were having problems with cases that were not finalised. She said the report was very silent on turnaround time for reported cases. How did the Ombudsman monitor the performance of departments, if there were no timelines included, as indicators? The Ombudsman could not check the lifespan of cases if there was no indication of turnaround time. She said communication was a serious problem and the reason for poor communication in areas where crime was bad, like in Khayalitcha and Nyanga, needed to be understood as one of the reasons could be the problem of resources.

Ms Botha asked what would constitute poor communication. Based on the community and stakeholder interaction, specifically the Vredendal Consulting Workshop, did it include both Vredendal and Vredenberg Cluster and how far was the invitation set in terms of those communities? How did the invitation get to whoever was invited and who were the invited?

Ms Philander asked what the outreach entailed and how could she be informed about these outreaches. She said that the amount of outreach for the period mentioned seemed a little, given that it was for the entire province and there was no outreach in the Cape Winelands. How did the Ombudsman determine where they needed to go? Who did they inform and who did they invite to these outreaches? How did they make communities more aware of their existence and what was it that the Ombudsman did to make communities react the way they did?

Mr Marais asked if the Ombudsman’s recommendations were not accepted, since only 54 out of 93 were resolved. He asked which police stations were the complaints mentioned on page 23 from, because it might be the same police stations that were the culprits every time. Only figures were given and no mention was made about the police stations involved.

With reference to page 32-34, Ms Bans asked how one linked the graph with the strategy objective.

Mr Kama asked, with reference to page 17, how the Ombudsman ensured effective communication with complainants and how did the complainants know what was happening right up until the matter was finalised? Were there mechanisms to evaluate if the complaints were substantiated? He said the SMS outreach might be a more effective and less costly exercise. How effective had the outreach been and which areas had the Ombudsman targeted?

Mr Christians asked what was done to address the risk assessment of the lack of cooperation by SAPS on the issue of communication and were all cases that came to the Ombudsman recorded and reported? He said the Committee should visit the Ombudsman’s office, because what was being done, given the huge population, was only scratching the surface.

Ombudsman’s Response
Replying to Ms Botha, he said the categories of complaints were on page 10 of the report. He said the Vredendal outreach was not the same outreach as the Vredenburg outreach. He said that if the Ombudsman was required to travel to Vredenburg, they would gladly do it.

Replying to Ms Philander, he said that primarily the Ombudsman would receive requests from people who were in contact with the Ombudsman, like for example people who picked up brochures, community policing forums, neighbourhood watches etc. The Ombudsman wanted to do four outreaches per quarter. When the Ombudsman did not go to areas, they relied on their radio campaign where listeners could call in and lay complaints.

Replying to Mr Marais, he said section 74 of the Community Safety Act allowed the Ombudsman to refer complaints to other bodies for investigation. Part of the strategy to address the backlog was to refer some of the minor complaints to SAPS for investigation. SAPS then investigated and sent the matter back to the Ombudsman who checked whether the Ombudsman agreed with SAPS’ finding. Those were the ones that were substantiated and resolved and SAPS then immediately instituted action. The Ombudsman was currently busy highlighting which police stations the complaints were from.

Replying to Ms Bans, he said the strategic objective was to investigate inefficiencies and the breakdown of relations that were in place. What the Ombudsman had identified as a risk, was their resources and if they did not have resources they would not be able to carry out their mandate.

Replying to Ms Makamba-Botya, he said there were no complaints outstanding for the first quarter, so the turnaround times had since changed, because as the office expanded, the Ombudsman needed to develop a standard of service promised to communities and to complainants. The current turnaround time was three months. Within 90 days the complaint was concluded.  The Ombudsman received a lot of complaints that they did not register, because the complaints were not within their mandate and it was then referred in terms of the Act. This was why the Ombudsman had a screening committee. The Independent Police Investigative Directorate (IPID) investigated criminal cases against SAPS in terms of the IPID Act while the Ombudsman investigated service delivery complaints and the break down relations in service delivery. The Ombudsman had a very close relationship with IPID in the Western Cape. The National Prosecuting Authority (NPA) was prosecuting on criminal matters.

Replying to Mr Kama, the Ombudsman said he had a portfolio of evidence in a complaint file and the complaint file indicated how the Ombudsman communicated. All the Ombudsman’s communication was in writing, so they have proof that they have communicated.

Replying to Mr Christians, he said that in general the Ombudsman received very good cooperation from SAPS and the Metro Police. There were no problems. It was agreed that the Ombudsman was only scratching the surface of complaints.     

Report of the Ombudsman on an unresolved investigation regarding policing in the Overstrand area, Western Cape
The Chairperson said that the briefing would deal with the Ombudsman’s investigative report in the Overstrand area. It was a known fact that abalone poaching in the area was linked to crime syndicates. This was a real issue and something that needed to be addressed. It was a complex problem that was multi-faceted and the approach that should be adopted was to see how the Committee could bring all government spheres together. The Ombudsman had done amazing work in terms of the report. The Committee had agreed to allow the Ombudsman to brief the Committee on the investigative report into the Overstrand.

Mr Brand went through the report page by page.

Discussion
The Chairperson thanked Mr Brand for the work that went into the report. After visiting Pringle Bay and listening to Mr Brand and understanding that the matter was extremely complex. When it was said that SAPS was understaffed, under-resourced, under-trained and under-equipped, it was clear and evident in Overstrand. It was a matter that the Committee would take forward. The Committee noted the recommendations, but it was difficult to understand a situation where someone was caught with abalone which went to a storage facility which was then broken into. The taxpayers had paid for that facility to store the abalone and then it got burgled. This was serious and in speaking to residents, he said it was clear that people were threatening people who spoke out on the matter. The Committee highly appreciated that the Ombudsman kept sensitive information and did not disclose it publicly, because it was peoples’ lives that were at risk.

Ms Pillay said that the Department welcomed the comprehensive report by the Ombudsman and his team. The Department acknowledged the recommendations that had been made, especially those that the Department had to carry forward. The Department also acknowledged and noted the limited number of reservists that were in the Overstrand area, as well as in the province as a whole. As a reminder, the Department did avail R5m for the call up of reservists in the Western Cape, but unfortunately that offer was not taken up by SAPS.

Ms Botha requested that members of the public be allowed to give their input and ask questions first on this report because they had travelled from far.

The Chairperson said that he would support it with the indulgence of members of the Committee.

Mr Christians said that he wanted to agree with Ms Botha, but wanted to add that the input of the public was recommendations to the Committee, together with the feedback that was provided by the Ombudsman and input from the public.The Committee had to schedule a meeting and look at what they are going to do going forward and how the Committee can assist. This looked like the best solution, because the Committee could then also call in the police Commissioner to appear in front of the Committee on this matter and the Committee could go and look at the precincts themselves, if they wanted to do that.

The Chairperson said that they would be proceeding with the recommendation of Ms Botha.

Input of Members of the Public
Mr H Potgieter (Schulphoek Action Group) thanked Mr Brand for his extensive work and he complimented the high visibility of the Ombudsman in Hermanus. The severity of the crime and the impacts that it had on the greater Hermanus was extreme, ranging from local house breaking occurring on a daily basis from the Schulphoek area where the land invasions had taken place and where they had destroyed almost 25 hectares of the highly protected white Milkwood tree species. These were the rarest forms of Milkwood trees on Earth. This Milkwood estate was classified as the twelfth largest Milkwood estate by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) on Earth and it was destroyed in its entirety. There was a little piece left and it could be reconstructed and rehabilitated, provided that the people who were illegally occupying it were removed. There was still some skulduggery between the municipality and the landowner, who was effectively hiding the eviction order from the sheriff. The land invasion gave rise to the abalone poaching because from the Schulphoek illegal occupation area, teams of divers were seen going into the water around 5pm when law enforcement officials left the area. The divers all had headlamps and were highly visible in the sea from anywhere across Schulphoek and the Sandbaai area and they operated until almost 10pm when they exited the water. The stamina these divers had was quite miraculous and it also reflected their sense of desperation of harvesting the sea and stripping it of its resources. The burning and destruction of the Milkwood trees was going on daily, despite stakeholder agreements which all stakeholders had signed. The onslaught of the Schulphoek area continued. He said that in terms of reported crimes that were backed up by evidence, the police just said that they would add it to the Schulphoek file and they were not going to action it, because they were too scared to operate and cause a riot in town. SAPS was not responding at all and there was a lot of finger pointing going on. SAPS pointed to the sheriff and said they would not act until the sheriff gave them an order. It was not understood why SAPS needed to be ordered to perform their task, which should be a statutory obligation.


Mr W Van Zyl (New Harbour Precinct) thanked the Ombudsman for the presentation and said he believed that the problem would escalate very dramatically within the next two years. There had been six incidents on his property and he had only reported one incident. None of the people reported these incidents because they did not believe that anything would be done about it and because of this the statistics were not a reflection of the reality. In terms of what was happening now, he said that in the next two years there would be an escalation in crime, specifically in relation to housingand the occupation of properties. The main reason for this appeared to be the fact that there would be a local election in two years’ time and there were certain parties within the Zwelihle area that were vying for councillor positions and the only way that they could have councillor positions was if they had support.

With regards to what is happening to the business environment, he said about 40% of Hermanus businesses were going under. There were companies that had been in operation for 20 years that were no longer there. These businesses were shutting down very fast, especially in the smaller areas. New businesses could not come to Hermanus and tourist buses were no longer coming through because of the risks.

When looking at Hermanus Beach Club, which was right next to the impacted area where they were burning the trees, the properties there could not sell. There were people who came from overseas and arrived at the gates and refused to go in or got a refund. There was a R600m development that was supposed to take place but it could not even be started because it could not be marketed, due to the influx of people directly opposite where the development was due to take place. The people were there probably because the properties belonged to the municipality and the municipality refused to do their duties.

The Milkwood tree was a protected species yet the municipality removed branches and trees that had been cut off as opposed to exercising their duty to prevent it. When police officers see that trees are being harvested or cut off completely by people, they say that they cannot arrest anyone when requested to do so. If a colonel was scared to do it, it was understandable, but it was still their duty to go back and get a task force to do the arrests and stop the effect that was taking place. It was expected that development of the New Harbour area, which includes Schulphoek, would take place over the next six years, but people wanted other things, like housing, in the area and there would be a huge escalation in recurring crime, arguments, and traffic problems because everyone had different requirements. There was a need for a very large increase in policing effort and also more committees, in terms of ratepayers’ action. Without the support of the police, this area would deteriorate.

Ms R Diedrichs (Whale Coast Business and Community Forum) said that her community was in a really bad state at the moment and it needed assistance. The land invasions needed to be dealt with. Everything had been done to try and stop the illegal occupiers erecting shacks and burning the Milkwood trees and when the Department of Agriculture, Forestry and Fisheries (DAFF) was called, they passed the problem onto the SAPS. A question was raised as to who was going to be accountable for all the Milkwood trees that were destroyed. The issue was not just poaching; it was also the destruction of the Milkwood trees and the land invasions that needed to be rectified.

Discussion
Mr Christians said the report was quite comprehensive and that it was very disheartening to see all the attempts the Ombudsman had made come to a dead end and people refused to give them a hearing. The Committee would have to strategize and see how the Department, the Ombudsman and the Committee could ensure efficient and effective policing.


When it came to policing, there were problems in the greater Western Cape and the one thing that could be pushed was Neighbourhood Watches and accreditation, in which the Committee has a direct input. Engagement with the Department had to take place, because long term solutions could be worked on, but immediate action was needed from the Committee. The criminal activities were done in a professional manner. It was an operation and people were too scared to speak because it would risk their lives. This was a very serious problem and the Committee needed to sit down and plan because there was a lot of effort in the report and Justice would be finding a way to assist and resolve the issue.

Mr Kama said he welcomed the effort that has been put into the investigation report. Another engagement would be of assistance because there was a struggle in understanding the argument of SAPS that this problem was not their primary responsibility, which led to the question of how crime was prioritised, because if SAPS believed that this crime was not their primary responsibility, then this crime would not be pioritised. The fisheries control officers did not have investigating powers and a question on whether or not these control officers did their jobs was raised. There had to be an officer present to prevent the crime at all times. There was a disagreement with the view that SAPS must prevent crime alone. Three minutes was not enough time to respond to what was presented in the report. Beyond policing, businesses must also be looked at, because, as was mentioned, there was a high potential for crime and the response to that could not just be deploying more police. The response to that should also be “what are we doing as businesses to respond to the socio-economic challenges that the people invading that land are going through”

Ms Bans said she agreed with Mr Christians that the Department and the police commissioner be involved because the Ombudsman had done their part. The last part of the report was appreciated for the proposals that were given. It must be taken to a platform where something could be done.

Mr Marais said that based on what he has heard in the meeting, he could only come to one conclusion and that was that the ministry should be renamed “the Ministry of Lawlessness and Disorder”. It was war and if the army could be sent into Manenberg, then the navy should be sent to Hermanus because they are there to protect citizens of this country. If China came to South Africa and wanted to steal our fish, we have a navy and patrol boats that should stop them. A question was raised on why the police was relied on to catch poachers and not the navy instead. The Premier was serious and sent the army to fight crime in the townships, and now the other wing of the army, which was the navy, should be called on to stop poaching, because if the police ministry could not protect peoples’ lives, what would they care about fish if they did not even have enough policemen to protect citizens. This debate was far from over, and the issue of the Milkwood forests should also be taken into account. The public should be listened to.

Ms Makamba-Botya said she agreed with the notion that poaching was not a SAPS matter alone. The issue of socio-economic challenges had to be emphasized because one could not separate the challenges that were faced by the communities which were initiated by inequalities in our societies. Criminal acts were not being condoned, but if the issue of economic challenges was swept under the carpet, the problem would remain. The Committee needed to dig deeper on Overstrand issue and conduct a socio-economic assessment of the households within the jurisdiction of Overstrand. South African unemployment was at 29% and in Overstrand it was sitting at 23%. It was clear that policing was not the only issue, it was also the matter of how these people were living in these environments. The question of who the beneficiaries of tourism and agriculture in that area was raised. If these matters were shoved under the carpet, the crime issues would remain because people were hungry.

Ms Botha questioned why SAPS was not invited to the session.

Ombudsman’s Response
Replying to Mr Kama, the Ombudsman agreed that crime was not a SAPS responsibility alone, but SAPS remained the primary crime prevention institution according to the South African Constitution. If a need was identified in a specific community, that need should be addressed but there could not be a ‘one size fits all’ approach to crime. Different approaches had to be followed.

On the fisheries control officers, he said there should be synergy between the different law enforcement agencies because there should be cohesion between the different agencies. There was agreement that SAPS always arrived late and the problem with that was the response time of SAPS caused things to go out of control.

Replying to Ms Botha, he said it was not the Ombudsman’s place to invite SAPS.

Closing Remarks by the Chairperson
The Chairperson thanked the Ombudsman and said due to the extensiveness of the report, the Committee should resolve to invite SAPS in terms of the reports that were discussed. The sentiment echoed was that the situation was huge and a lot of work was needed.

Concluding Remarks by Department
On Mr Christians question on Neighbourhood Watch accreditation, Ms Pillay said there had been some developments since the report. There was an application that was received for a neighbourhood watch in Zwelihle and that application for accreditation has been approved and an application for the Stanford neighbourhood watch was pending because of some outstanding information, but the officials were actively following them up so that accreditation could take place.

The meeting adjourned.
 

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