Tuesday, June 4, 2013

Nathi Mthethwa Drops The Ball

Hot on the heels of exhorting police officers to police their colleagues so that the image of the police is not negatively perceived, the Minister of Police, Nathi Mthethwa appeared before the Police Committee of the National Assembly. He flew in to explain police brutality and wrongdoing to the members of Parliament who waited patiently for him to arrive, fashionably late, at the Old Assembly Chamber.

Speaking in the soothing tones of a school nurse attending to a gaggle of children with scraped knees from a minor playground mishap, the Minister delivered himself of an underwhelming performance. For the best part of half an hour, he managed to say absolutely nothing new about the problems facing the police service and the symptoms of dysfunction in its ranks.

As the responsible Minister, it was to be expected that he would seek the moral high ground, roundly condemning the excesses emanating from Marikana to Daveyton; announcing stern remedial measures and generally reassuring the public that the "rotten apples" have not taken over in the police. Instead he mouthed platitudes and skilfully ducked any and all questions that might require him to actually grapple with the issues posed by the deplorable track record of the police in recent times.

The Minister did concede that there is a problem with the command and control of the police. This much has been clear to any objective observer for years. It is a good first step that the Minister has brought himself to the point at which he is able to make the necessary concession. Former police chiefs Jackie Selebi was convicted of corruption, Bheki Cele was dismissed for mismanagement of the grossest kind. Present incumbent Ria Phiyega is currently on the carpet at the Farlam Commission of Inquiry into the Marikana massacre. It requires no genius to divine that the command and control problems in the SAPS go right to the top and have done so for some considerable time.

The ANC policy of cadre deployment in all centres of power in society, including SAPS - which is indubitably a centre of power, did not even warrant a mention in the discussion in the Old Assembly Chamber. Yet, cadre deployment is at the root of the problems, not only in SAPS but elsewhere in the public administration where labour intensive activities (think Home Affairs) are the required functions of the day. The ANC has persisted, despite all its bad experiences, in appointing politicians and non-police personnel into the leadership (jargon: command and control) of SAPS. The Constitution expressly requires a high standard of professional ethics of our police, and of public servants in general. The promotion and maintenance of these qualities is a primary task of government. Appropriate leadership is a sine qua non for the attributes of effectiveness, efficiency and the economical use of resources which are at the core of any successful police operations. These criteria are also constitutionally prescribed in section 195(1) of the Constitution. In the top structures in the police there is widespread cadre deployment with the results that are there for all to see. The fact that cadre deployment in the public administration is illegal and unconstitutional is conveniently ignored. Even by the Parliamentary Committee. When the Public Service Commission is publicly challenged on this, the answer is "prove it". Phiyega refused to admit her cadre status on being appointed, it was unnecessary to ask the question of her last two predecessors.

Cadre deployment's illegality has actually been proved in court in the famous case of Molokoti v Amathole District Municipality in which the Eastern Cape High Court sent a deployed cadre packing and replaced him with the candidate for municipal manager who should have been appointed on merit. The case was not appealed and remains good law. The feral elements in the administration continue to ignore its applicability in human resource management in the public administration with the sort of results we now see in the police. This is lamentable. It is also unacceptable that the use of proper recruitment methods, involving psychological assessment to weed out the socio-paths and psycho-paths before training starts and a functional literacy test to weed out the illiterate, are not in place. These simple measures do not occur to the Minister. Instead he suggested that the public should have a say in who should and should not be accepted as a police recruit. This is both novel and unworkable. It is a tacit admission that the police human resource personnel are not up to the job of recruiting suitable staff themselves and an invitation to all manner of shenanigans on the part of the public. The notion should be dumped unceremoniously.

The reason for the need for functional literacy testing lies in the dysfunction in evidence in the basic education system. Far too many young people are given a matric certificate in circumstances and at a pass rate that leave their functional literacy open to doubt. The private sector has long been wise to this and does not regard a matric certificate as evidence of functional literacy. The SAPS say a driver's licence and a matric certificate are the basic requirements. Those who have these two pieces of paper and are unable to find work elsewhere tend to gravitate toward the police, who employ a relatively large cohort each year, whether they have any interest in police work or not. This the Minister, to his credit, did recognize at question time. Literate constables would at least be able to take down a statement.

The National Development Plan's (NDP's) recommendations to "demilitarise" the SAPS were fudged away by the Minister on the same day that his Chief of Police is quoted as saying "It is difficult for me to say I agree or I don't agree [with the NDP recommendations]. With certain reservations and discussions we will embrace the recommendations". Perhaps she has not been told that the ANC has adopted the NDP as policy; perhaps she thinks her management and control of the SAPS gives her the power to second guess official policy. It ought to be deeply worrying to the ANC that its own resolution adopting the NDP is not whole-heartedly embraced by both the Minister and the Chief of Police. The Constitution contemplates a police service that protects and secures the inhabitants of the country and their property. It does not envisage a police force that perpetuates the unfortunate power relations that existed between police and public under apartheid.

The Minister did make a concession that will have Bob Glenister and the Helen Suzman Foundation cheering in the aisles in their challenge to the constitutionality of the new legislation governing the Hawks unit of SAPS. At question time he solemnly said: "Negative perceptions envelope whatever is there and they matter in issues of crime". The issue of public perception of policing is one of the hottest topics in the pending litigation. The Constitutional Court is already in full agreement with the sentiment expressed by the Minister. The new legislation is however out of kilter with this notion. All good South Africans should thank the Minister for this important concession, however unconsciously it may have been made.

Paul Hoffman SC
27 March 2013.


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