Transvaal Road Police Station Rape Allegation: SAPS & ICD briefing & National Conventional Arms Control Amendment Bill: deliberations

NCOP Security and Justice

08 October 2008
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
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Meeting Summary

The South African Police Service and the Independent Complaints Directorate briefed the Committee on the allegations of a rape occurring at the Transvaal Road Police Station, where a female detainee had alleged that she had been placed in a male cell and raped by four male detainees. The South African Police Service and the Independent Complaints Directorate noted that they had conducted an internal investigation that had exonerated the on-duty police officials from any wrongdoing, although one official had admitted that he failed to record that he did check on the cell at 4 am on 24 August 2008. The Directorate had noted that it would have been impossible for the complainant to be placed in a male cell, as three other women that had been detained on the same night had stated that the complainant had been placed in a cell with them and not with the males as she had claimed.

Members were not satisfied with the responses given by the South African Police Service and the Independent Complaints Directorate. They accused the management of the Transvaal Road Police Station of being incompetent and the Independent Complaints Directorate of protecting the police. They noted that it was unacceptable for a female to be placed in a male holding cell and called for urgent action from the Provincial Commissioner.

The Chairperson noted that the Department of Defence had previously given a briefing on the National Conventional Arms Control Amendment Bill, and that Members could have the opportunity to ask further questions. Members expressed their appreciation to the Department for its briefing and efforts on the Bill. Further questions were raised around the tabling of the Annual Report to Parliament, the issue of confidentiality around the Report, and what would be published on the website and what made available in hard copy format to Members. It was confirmed that the Report would be made to both houses. Questions were asked around the Wassenaar List, and whether this would be included with the Bill, how the Department would compile a list of controlled items when the items were in the hands of other people, and what was included in the List.

Meeting report

Allegations of a rape occurring at Transvaal Road Police Station: South African Police Service (SAPS) and Independent Complaints Directorate (ICD) Briefing
The Chairperson introduced Commissioner M Mbombo, Provincial Commissioner, SAPS, Northern Cape, Comm J Van der Westhuizen, Station Commissioner, Transvaal Road Police Station, SAPS and Mr Dan Morema, Head of the Independent Complaints Directorate, Northern Cape. He noted that they had been asked to brief the Committee on an alleged rape incident that had occurred at the Transvaal Road Police Station on 23-24 August 2008. It was reported that a 19-year-old woman had been placed in a male holding cell, where she was subsequently raped, and that no police officers came to check after she had screamed for help.

Commissioner Mbombo noted that at 3:10 am on 24 August 2008 two police officers had been instructed to apprehend a drunken man and woman. This was not unusual as the SAPS routinely picked up drunken people and kept them in holding cells for two hours to sober up. This strategy was particularly important for SAPS Northern Cape as many of these drunken people ended up either being raped or murdered, and it was decided that it would be best to keep them in safe custody to allow them to sober up.

A female police official searched the woman in question, and noted that she was not wearing underwear, after which she was placed in Cell 8, a female cell. The woman was released at 5:05 am. At 8:15am the Transvaal Police Station received a call that a woman had checked herself into the Kimberley Hospital and alleged that she was raped in the holding cell. The Independent Complaints Directorate (ICD) was called in to investigate the matter and concluded that they did not have a mandate to investigate the matter, as the alleged suspects had been civilians. A criminal investigation was also opened and DNA samples were sent to Cape Town for analysis. The SAPS was still waiting on the outcome of these DNA tests. Commissioner Mbombo noted that the results were expected on 10 October 2008, and that the new Minister of Safety and Security had intervened in the matter to speed up the process, as it was of national importance.

Mr Dan Morema added that the woman had alleged that the police officials on duty had branded her as “a tomboy” and that she had been locked with males, where she was allegedly raped. He confirmed that the ICD conducted an investigation but handed the docket back to the Transvaal Road Police Station as the woman had identified four members of the public as the alleged rapists. The physician who examined the complainant concluded that he did find evidence that “suggested forceful penetration”. This news was received with suspicion as three woman that had been detained with the complainant had stated that the complainant had been locked up with them in cell 8, which was a female holding cell.

He added that the complainant had identified one of her neighbours as one of the alleged rapists and that he and three other men had been charged with rape and released on bail.

The ICD could find no conclusive proof that the on-duty police officials had been involved.

Discussion
Mr N Diale (ANC, National Assembly Member) said that if this was true then it illustrated the inhumane treatment by some police officials, and that he was shocked to hear of this. He added that he had been detained in prisons for a long period during the apartheid era, and that he had never heard of a woman being placed amongst males. If that was so, then the officials responsible should be punished severely.

Commissioner Mbombo noted it was unacceptable for a female to be placed in a male cell, and that the SAPS would take the appropriate action, as determined by the predetermined regulations that governed disciplinary procedures, if this did occur.

Dr F van Heerden, FF+, Free State, noted he differed from the views expressed by Mr Morema. He noted that the woman could have been raped before she was locked up. If the DNA results showed that she had been raped, then the only conclusion would be that she was placed in a male cell.

Commissioner Mbombo replied that the DNA results would provide clarity on who was responsible for the alleged rape.

Ms F Nyanda (ANC, Mpumalanga) asked whether Cell 8 was a female holding cell, and what a “tomboy” was.

Commissioner Mbombo replied that Cell 8 was a female cell. She confirmed that she was not sure what interpretation could be attached to a “tomboy” and if that word had been used, then this issue also would be addressed.

Mr S Mahote (ANC, National Assembly Member) asked why the cells had not been checked on hourly basis as was expected, and how often the ICD conducted inspections of the cells.

Director Morema replied that the ICD envisaged visiting 30 stations per quarter, and that so far 14 investigations had been conducted in July, 15 in August and 5 in September.

Mr Mahote noted that during public hearings in Kimberley it was discovered that a minor had been held at the Transvaal Road Police Station for 48 hours. He asked whether the drunken man and woman had been apprehended on the streets or in a house.

Commissioner Mbombo replied that the closed circuit television cameras operators had alerted police of the whereabouts of the couple.

Mr Mahote asked whether there had been any senior staff on duty that supervised the police reservist and the student constable.

Commissioner Mbombo replied that a constable had accompanied the reservist constable.

Mr M Mzizi (IFP, Gauteng) asked when the police officials had noticed that the woman had no underwear.

Commissioner Mbombo replied that according to the statements that had been taken, the female constable had searched the complainant, as no detainee was allowed to enter the large cells with personal belongings on them.

Mr Mzizi asked whether the woman was sober when she had been released.

Mr Morema replied that according to police records the complainant had been apprehended at 3:10 am and released at 5:05 am, but that no information had been received as to whether the complainant had been sober or not.

Mr Mzizi asked whether the complainant had identified the suspects in the presence of the police officers, and why the docket had been passed around.

Director van der Westhuizen replied that nine males had been placed in the identity parade line up. Of these, seven had been detained that same night of the alleged incident. Four of the seven males had been identified as the rape suspects.

He added that after the docket was received a preliminary investigation was conducted, which prevented the ICD from arresting the four suspects, as they were not members of the SAPS. The docket was left with the police, but the ICD continued to monitor the situation. The criminal docket was not yet complete as there was still an outstanding statement from one woman.

Mr J Le Roux (DA, Eastern Cape) said that the SAPS image had been seriously damaged. He condemned the incident and called on the SAPS to give this matter their urgent attention.

Commissioner Mbombo agreed that the allegations had really tarnished the image of the SAPS and that the investigation was received top priority.

Mr Z Ntuli (ANC, Kwazulu Natal) asked whether the statements had been taken before or after the media uproar.

The Commissioner replied that the statements had been taken before the media uproar.

Mr Ntuli noted that it appeared as if the ICD had protected the police, and asked who had reported the case to them.

Mr Morema explained that the ICD was an independent body, and had to ensure that investigations conducted against the SAPS had been objective. The ICD had not been established to conduct a witch hunt against the SAPS. He added that statements had been taken from the three females with whom the complainant had been detained, the people with whom she was released, and the people with whom she had been drinking before her detention.
He added that the docket had been given to the ICD as they had been mandated to investigate the behaviour of the police and that the first internal investigation was conducted on 24 August.

Mr A Manyosi (ANC, Eastern Cape) asked what constituted “members of public”.

The question went unanswered.

Mr B Mkhaliphi (ANC, Mpumalanga) asked how many people had lined up for the identity parade and whether any precautions had been taken before the identity parade.


The Commissioner replied that the Transvaal Road Police Station did have an identity parade room with a one-way mirror that allowed a complainant to identify a suspect without being recognised or seen.

Mr A Moseki (ANC, North West) said that the ICD had concluded that the SAPS could not be held liable for what happened; yet they were proposing disciplinary action against the police.

Mr Morema noted that the ICD only made recommendations as to what had to be done and that in fact no conclusions had yet been reached.

The Chairperson noted that the service delivery track record at the Transvaal Road Police Station was appalling, as there had been poor management and leadership as well as several other problems highlighted by the Parliamentary Oversight Report at that Station. 

Commissioner Mbombo noted that she had taken notice of the concerns raised by the Chairperson. However, before any steps could be taken against the police officials, prima facie evidence had to be presented as to any wrongdoing on their part. If the DNA results did indeed show that the woman had been raped whilst in custody, then SAPS would take the necessary action against the officials, as this would show that they had been negligent.

She added that the complainant did not look like a “tomboy”. She noted also that all male suspects had been detained in cells 1, 2 and 5, whilst the complainant was detained with three other females in cell 8.

She said that all the suspects had been detained in cell 1, which was also a major bone of contention in this matter. Statements had been taken from the three other females in cell 8, from the seventeen people who had been released in the early hours of the morning together with the complainant, and her drinking companions earlier on the evening of her detention.

Mr Mahote asked how far the cells were from the charge office.

Comm van der Westhuizen replied that that the cell was at the back of the charge office and that if the complainant had indeed screamed, as she claimed, then the police officials would have been able to hear her screams.

Mr Ntuli asked whether the seventeen people that had been released with the complainant had also been apprehended for being drunk in public. He questioned the motives of the police in releasing people from custody so early in the morning, as it was still dark and thus dangerous.

Commissioner Mbombo replied that there were several taverns in close proximity to the Transvaal Road Police Station. One in particular had become a problem as it posed a threat to public safety, as many people had been found murdered or raped in the surrounding areas. It was for this reason that the decision was taken to apprehend all drunken people to protect them. It was important to note that the complainant had been very drunk after consuming hard liquor.

The Chairperson asked whether the police officials on duty that night had been suspended.

The Commissioner noted that they had not been suspended, and that different investigators had interviewed the on-duty police officials at the same time. One official had claimed that he did check the cell at 4 am, but forgot to record this in the register.

The Chairperson asked how ICD arrived at the position that SAPS was not involved, whilst the results of the DNA tests were still outstanding.

Mr Morema noted that the ICD only made recommendations as to what had to be done, and that no conclusions had been reached as yet. If the allegations proved to be true then criminal charges could be brought against the police officials for defeating the ends of justice.

The Chairperson said the ICD and the SAPS should stop colluding. He noted that many political parties had called for the abolition of the ICD, as it was considered to be ineffective. He questioned the sincerity of both the SAPS and the ICD in this matter. He urged the SAPS and the ICD to imagine that this woman was their sister or daughter. He added that the manner in which the ICD had presented their report was incorrect, as it tried to shift the blame to the complainant although the ICD had noted that some procedures had not been followed that night.

Mr Mahote noted that the presentations given by the SAPS and the ICD reflected the chaos that reigned at the Transvaal Road Police Station. He lambasted Director van der Westhuizen for his indifference and inadequate responses. He added that Commissioner Mbombo had admitted that the police official did not record that he did conduct the routine checks on the cells, and expressed his dismay at the police only being able to obtain DNA samples from one suspect.

Comm van der Westhuizen replied that hourly check-ups had to be conducted. The on-duty police official responsible for these check-ups had checked, but he had failed to record the fact of the check.

Mr Mahote stated that he found it strange that the Provincial Commissioner had indicated she did not know what a ‘tomboy” was and yet she later had stated that the complainant did not look like a “tomboy”.

Mr Mahote asked whether the Provincial Commissioner believed that the Transvaal Road Police Station management was competent and capable of conducting the jobs assigned to them.

Commissioner Mbombo said that it was a very difficult question to answer and that she preferred  to give a response either in writing or in a closed meeting. She added that that the SAPS had internal process that determined management abilities, as well as performance enhancing programmes. She noted that to err was human and that the SAPS accepted the fact that its mistakes could still be rectified.

Mr Mzizi said that it was very important for this matter to be clarified. He asked what had happened to the complainant’s underwear.

The question went answered.

Mr Mzizi was very critical of the ICD for questioning the validity of the doctor’s report, saying that it appeared that the ICD was attempting to convince the Committee that the complainant was not raped.

Dr van Heerden objected to the Mr Mzizi’s line of questioning and noted that it was not up to the Committee to investigate the rape.

The Chairperson noted that Members were allowed to ask any questions they deemed fit and that he could not dictate to Members which questions they may or may not ask.

The Chairperson agreed with the Commissioner that humans could err. However, he urged her to deal with the problems at Transvaal Road Police Station and tasked her with reviewing the decision not to suspend the police officials pending the outcome of the investigation. He added that the Committee expected a report on the corrective measures taken by the Commissioner by the end of October.

He stated that the ICD should address the deficiencies in its own unit.

He noted that no matter how the complainant may look, her rights must be respected and it seemed that in this case they had been grossly violated.

National Conventional Arms Control Amendment Bill (B45-2008): Further deliberations
The Chairperson noted that the drafters of the Bill had earlier given an accurate presentation on the Bill and had explained everything in detail. He asked Members to pose further questions arising from that presentation.

Discussion
Dr van Heerden asked whether the Department of Defence (DoD) would only inform the National Assembly on the issue of the new Section 17 that dealt with the demands of confidentiality by certain clients.


Mr Dumisani Dladla, Director of Conventional Arms Control, Department of Defence, said that Section 17 had been discussed at length in the Portfolio Committee on Defence, and that it had been decided that from time to time confidentiality was needed, and that Parliament would receive all the relevant information by way of a report. Section 23(4) of the National Conventional Arms Control Act was quite clear on the involvement of Parliament.

Dr van Heerden asked whether it would not be convenient to include the Wassenaar List in the Bill.

Mr D Worth (DA, Free State) noted that the Bill was very vague on what “controlled items” entailed, and suggested that a separate section be inserted that contained the Wassenaar List.

Mr Dladla replied that the entire Wassenaar List could not be inserted into the Bill as it dealt with various components, some of which had no bearing on the Bill. The Bill would only include the component that dealt with conventional arms and related items, as the Non-Proliferation Committee administered the component that dealt with weapons of mass destruction. The Wassenaar List was an important document as it set out the various relevant methodologies.

Mr Mzizi noted that Parliament consisted of both the National Assembly and the National Council of Provinces and that the report had to be tabled in front of “Parliament”.

Mr Dladla replied that the DoD did not make a distinction between the houses in Parliament, and confirmed that the report would be tabled to both Houses.

Mr Moseki commended the drafters of the Bill for their excellent work and asked whether the Annual Report that would be published electronically would also be made available as a hard copy and distributed to Members.

Mr Dladla noted that this would only be published after Parliament had considered the Report, and that confidential information may or may not be made available on the website due to security and defence interests.

The Chairperson asked how the DoD would compile a list of controlled items when the items were in the hands of other people.

Mr Dladla replied that control items referred to three items namely; conventional items, dual-use goods, and services and technologies and that there had been some disagreement on what this constituted. The list would define what was in international documentation, such as the Wassenaar list, and which had provided direction on this issue. This List would be adapted to make it suitable to the needs of South Africa.

He added that the publication would go beyond mechanics, as it would be updated annually as new technologies came to the fore, as it had to reflect the realities of advances in technology.


Mr Sizwe Njikela, Legal Adviser, Department, added that the DoD had decided not to refer to the Wassenaar List as it had been considered to be too wide, and that a published notice would document all the items that had been classified as conventional items.

Colonel T van Aps, Technical Expert, DoD, noted that the Wassenaar List had been an arrangement between forty countries, including South Africa. These forty nations met annually in Geneva where they discussed issues that were relevant to the Wassenaar List, such as licensing and new conventional weaponry.

He noted that currently the Wassenaar List consisted of two separate lists, one for dual-use goods and one for hardcore military weaponry such as submarines, submarine engines, armour plated tanks and cars, as well as engineering equipment. The rationale behind the dual-use goods list was the fact that much of the equipment and technologies contained on this list could be used by “terrorist” organisations. The focus was thus on controlling the production and sale of conventional weapons.

He added that the flares mounted on to presidential jets and residences had also been placed on the list, as these were now also manufactured for commercial gain. It was decided that the minute these commercial flares hit the ground then they would burn out as they could be used by “terrorist” organisations. Industrial machinery such as the three cutting machines and laser sensors had also been included on this list. Mr Dladla said that Section 27(3) specified which items had been classified as conventional and related items.


The meeting was adjourned.

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