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Explainer: Why the army got it so wrong with Collins Khosa

By Aarti Bhana 

South Africa’s response to the lockdown has been praised around the world, but the recent actions of law enforcers have put a stain on it. A number of allegations have emerged against the SANDF and police for using force and violence to enforce lockdown regulations.

Since the start of the lockdown there have been over 30 reported cases against the police, ranging from murder, assault and even rape, the Independent Police Investigative Directorate (Ipid) told City Press adding that eight people lost their lives at the hands of the police since the lockdown.

The case of one Collins Khosa brought this to light. From poor training to unclear guidelines of their duties, we unpack what’s gone wrong, and the way forward.

1. What happened to Collins Khosa

Collins Khosa, a resident in Alexandra, was allegedly brutally killed by SANDF members when they allegedly stormed into his house after seeing half a glass of beer outside. Khosa also had one single beer in his fridge that the soldiers questioned. SANDF members allegedly called for police backup. According to his family, the soldiers poured the beer over his head, choked and beat him, slammed him against the wall and hit him with the butt of a machine gun. Soldiers also allegedly attacked his neighbour and family members before leaving. Khosa’s wife said she brought him into the house and he died shortly after. The family took the matter to court.

The soldiers had a different account of events. In an inquiry they said, Khosa and his brother-in-law undermined two female soldiers, they were ‘provocative’ and failed to follow instructions. The two female SANDF members then called for backup. According to them, they only clapped and the pushed the men to comply with instructions and should not be blamed for Khosa’s death.

2. What did the courts say

On May 15 2020, Gauteng High Court Judge Hans Fabricus ruled that SANDF, SAPS and JMPD members who were present at the scene should be suspended and authorities need to complete the investigation into Khosa’s killing by June 4 2020. Basically, what they did was very wrong and they need to be held accountable. 

But this wasn’t all. The court also ruled that authorities need to issue and widely share a code of conduct for the SANDF and police to guide lockdown operations. Plus, in 2020, the court declared that the SANDF must publish their commitment to upholding the right to life, dignity and the right not to be subjected to torture and unusual punishment. 

That’s right, in 2020 the court has to tell the guys in uniform how to do their jobs, respectfully. 

3. Who governs the SANDF and police? 

Broadly speaking, the government, the SANDF and the police fall under the government’s rule. They are not private services, they are public services. Their rules and regulations and manner of conduct is dictated by the government, the Department of Defence and of course the law. 

And that’s why it’s a shame for the government that the court had to intervene and declare that everyone has a right to life, dignity and should not subjected to torture and unusual punishment… 

4. What is their role? 

The South African National Defence Force (post-apartheid) is primarily mandated to defend and protect South Africa, but they are also expected to:

  • To protect South Africa’s sovereignty and territorial integrity;  
  • To comply with the international obligations of South Africa and with regard to international institutions and other states;  
  • To serve in the preservation of life, health or property
  • To provide and maintain essential services 
  •  To uphold the law and order in South Africa together with the South African Police Service when the Police Service cannot maintain law and order on its own;
  •  And to support state departments for socio-economic upliftment

Additionally, national security policy and priorities imply that the government requires the SANDF to be involved in combatting non-military threats to security, which include crime, terrorism and the effect of natural disasters. 

This explains why they were deployed when the National State of Disaster was declared. 

5. What’s their role during lockdown? 

When President Cyril Ramaphosa addressed the army on the eve of the lockdown in March, he gave them a pep talk (the kind your coach gives you ahead of a game) to go out and defend the people against the virus. He said: 

“Your mission is Mission Save Lives…” 

He reminded them that they had taken an oath to protect and defend the Republic of South Africa, and to subscribe to the highest values in our Constitution, adding that the people of the nation will be looking to them with trust and confidence. 

But Ramaphosa said this does not mean they could ‘skop and donner… or skiet and donner.” (A term used in Apartheid, where army members would use violence almost immediately.) He said this was a moment to be supportive. 

He further reminded the troops that they would not be going into hostile territory and if they find the few who resist, only nudge them (not hit them) in the right direction. 

And finally, to “Execute your task to the best of your ability – but in doing so, do it in such a way that we do not violate the rights of our people either intentionally or unintentionally.”

Ramaphosa expressed his confidence and trust in the army in carrying out this ‘life restoration mission’, but things turned sour soon after. 

6. What do the rules say about using force? 

South Africa has a rule book that tells you more about this. It’s called Section 49 of the Criminal Procedure Act. (Don’t worry, we’re not going to drown you in legal jargon), but basically, here is what the latest, amended Act says: 

  • About breaking and forcing entry for arrest 

Authorities must first announce that they demand entry into the premises and should say why they are seeking entry. If they fail with their first attempt, then only can they break open, enter and search the premises to make an arrest.

  • About using force to make an arrest 

The arrestor can only use force when it is CLEAR he cannot do it without using force. That is when the suspect resists, flees or resists the attempted arrest and flees. 

But, force may be used as reasonably necessary and should be proportional to acts of resistance or to prevent the suspect from fleeing. 

  • The arrestor may use deadly force only if

(a) the suspect poses a threat of serious violence to the arrestor or any other person; or 

(b) the person is suspected of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest

According to the Act, ‘deadly force’ means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.

7. So, what went wrong? 

According to the judge presiding over the matter, Section 49 of the Criminal Procedure Act did not provide enough guidelines on how the police and SANDF should conduct themselves. 

In his own words, he said  “Section 49 of the Criminal Procedure Act is only a few lines long. It states principles. It does not describe how to use a particular weapon or instrument with minimum force. It does certainly not explain how to deal with the extraordinary circumstances of a lockdown.” 

Given his opinion on this, he gave the ministers of police and defence five days to develop and publish a code of conduct for their members during the lockdown. He said this was a requirement of the Defence Act. 

But at the same time, the Act doesn’t justify a soldier killing someone for doing something that wasn’t even wrong. 

(According to lockdown regulations, you are allowed to drink in your home.) 

8. So, does this mean that the soldiers didn’t get training before they were deployed? 

Soldiers undergo training when they are taken into the army. But an article published by the Institute for Security Studies (ISS) on April 20, found that it was only time before law enforcement would become a challenge during the lockdown, mostly due to the limited planning and training for troops before they were deployed. 

Like we mentioned, the SANDF were deployed to support the police. They are legally allocated all the powers of the police except for doing investigations. The shortfall is that the soldiers should have been appropriately trained for this purpose, ISS researcher Johan Burger said.

According to his article, the operational instructions for the police and SANDF were unclear when Police Minister Bheki Cele announced the troops would be deployed. But from the minister’s briefing, it appeared that they would be focusing primarily on operations such as patrols and roadblocks.

The regulations applied to the SAPS, metro police and SANDF, but their ability to enforce the regulations was a concern, Burger said. 

“The requirements for training, planning and preparation must have presented major organisational challenges for the joint forces. Given the nature and complexities of lockdown, the addition of new law (the regulations), and the need for joint forces to enforce the law fairly, it was a huge risk to deploy officials in this role without training,” according to the report. 

“Some were bound to get it wrong,” Burger said. 

Read the whole article here 

9. So, where to from here? 

The Department of Defence is expected to release its code of conduct for the army troops. 

Plus, we’re awaiting the outcome from the investigation into Khosa’s death as well as seven other people who died at the hands of the army during the lockdown.

President Cyril Ramaphosa acknowledged the errors of the SANDF in his recent address, saying that ‘enforcement has sometimes been harsh’. He said they will amend mistakes and shortcomings on their end.

Once the Code of Conduct is published, everyone will have access to it. It will provide guidelines for the army. And will ensure soldiers are held accountable for their actions, that they uphold the values of our Constitution and restore our trust and confidence in them as Ramaphosa expected. 

NOTE: We updated point 1 with information from the SANDF inquiry and the soldier’s account of events.