What Is The Law Regarding Police Brutality in South Africa?

Few issues have captured global media attention like police brutality in recent years. Stories of police brutality around the world have put a spotlight on policing techniques and protocols. These events have also led many South Africans to question how things are done in their own country. What does the Law say Regarding Police Brutality in South Africa?

On a constitutional level, section 12 of the bill of rights prohibits torture, cruel and inhumane treatment, and violence. In theory, the laws regarding police brutality in South Africa are clear and effective. There are also many independent authorities that exist to monitor and regulate the actions and activities of the police.

Institutions such as the Independent Police Investigative Directorate (IPID), frequently prosecute members of the police service who are found guilty of corruption and misconduct. The rules on the books then seem to adequately identify and forbid any types of police brutality, unfortunately, when put into practice, there seem to be many issues plaguing the system of law enforcement in South Africa.

What Is The Law Regarding Police Brutality in South Africa?
What Is The Law Regarding Police Brutality in South Africa?

The Truth Regarding Police Brutality

Sadly, it must be noted that there are often between 3000 – 4000 cases of alleged assault reported by citizens to the IPID every year, sadder still is the fact that the counts of alleged torture have been steadily increasing.

YearReported incidents involving torture    Reported incidents involving assault
2011/12  801145
2012/13  504131
2013/14  783916
2014/15  1453711
2015/16  1453509
2016/17  1733827
2017/18  2173661
2018/19  2703835

Obviously these figures might give cause for concern, however, before making any broad-sweeping statements regarding policing we should first consider the way in which these numbers are determined and the inherent issues with their tabulation.

What Is The Law Regarding Police Brutality in South Africa?
What Is The Law Regarding Police Brutality in South Africa?

How Can We Determine Instances of Police Brutality?

There are many factors that go into data collection and instances of police brutality are especially tricky to work out. Some of the problems one might face when trying to figure out the extent of the issue include –

  • Lack of evidence/witnesses – Not every altercation with the police takes place in broad daylight, in fact, many happen in areas with few witnesses. As such, many situations occur in which a person reports an instance of assault or torture but it is denied by officers. If there are no other witnesses it may be hard to know which account can be trusted.
  • Body Cameras – While there has been much talk about equipping police officers with body cameras to help provide video evidence in cases, there has still been no official date given by which this change is expected to take place, thus most cases still devolve into a he-said-she-said situation where each testimony is contradicted by the other party.
  • Flawed systems of reporting – After experiencing an instance of torture or assault, most people would think to go to the police station and report it. You can see how complex the issue becomes when the police are the alleged offenders in this case. While there are multiple independent institutions available for such reporting, it’s understandable that many victims may not know about them and thus feel powerless and discouraged.
  • Issues with categorisation – At what point does assault turn into torture? This is a question statisticians must ask themselves when considering the data. Many cases could involve extremely serious instances of abuse but may be reported or listed similarly to less severe assaults.
  • Determining police brutality – Most people understand that the police have a job to do and that it can get quite rough. From time to time they are compelled to use force to subdue a criminal, especially when these individuals pose an immediate threat. This then leads to the issue of figuring out when a suspect has been abused and when they have simply suffered injuries that could be expected in such a scenario.

Clearly, figuring out precisely how many cases of police misconduct have taken place is no easy job, but once we’ve done it, how do we go about punishing offenders?

How is Police Brutality Punished?

According to SAPS spokesperson Brig Vish Naidoo, misconduct by police officers such as torture and excessive force, “is unacceptable and will be dealt with in terms of criminal law and disciplinary processes”.

As you can imagine, police officers are not above the law and if they engage in instances of misconduct they can be fired and even imprisoned depending on the severity of their actions.

There are, however, detractors who argue that there is a discrepancy between the number of allegations made against officers and the number of dismissals and imprisonments that follow. The basic argument is that officers accused of misconduct are not punished as seriously or as frequently as they should be.

The following graph published by Lukas Muntingh and Gwenaëlle Dereymaeker in their paper, “Understanding Impunity in the South African Law Enforcement Agencies” seems to highlight this discrepancy –

What Is The Law Regarding Police Brutality in South Africa?
What Is The Law Regarding Police Brutality in South Africa?

There is obviously a huge gap between the total number of disciplinary actions taken against police officers and the number of actions that end with dismissal, though it should be noted that the fine details of many of these actions are unknown and, for all we know, dismissal could’ve been much too extreme.

How is Police Brutality Viewed in South Africa?

When trying to determine the South African view on police brutality and misconduct, it is important to focus on two main groups, namely, the public and the police themselves.

Living in a country with such a high rate of crime can make anyone pessimistic about policing, even so, South Africans seem to show a steadily decreasing level of trust in their criminal justice system.

The percentage of households that were happy with the police in their area was as follows –

  • 57,3% in 2016/17
  • 54,2% in 2017/18

While the percentage of households that were happy with the work of the courts when dealing with criminals was –

  • 44,9% in 2016/17
  • 41,1% in 2017/18

Clearly, the general populace has not got the most favourable view of the country’s institutions of justice but we should also consider comments made by authorities within the policing system to better understand the internal view on the matter.

What Is The Law Regarding Police Brutality in South Africa?

Police minister Bheki Cele has, on multiple occasions, encouraged the use of deadly force by police services when dealing with hostile criminals.

He has additionally called for harsher punishments to be handed out to individuals convicted of crimes against police officers. 

Depending on how you view the topic, you may interpret these comments as a perfectly reasonable response to police killings within the country. On the other hand, many citizens might view it as encouraging a ‘wild west’ mentality amongst the police force and potentially inflaming the tensions felt throughout the country.

In Conclusion – What does the Law say about Police Brutality in South Africa?

Generally speaking, the law applies to the police in the same ways as it applies to the average South African. If a police officer is accused of misconduct or corruption they can be reported to their superior officers or to one of many independent prosecuting authorities.

Theoretically, an officer found guilty of a crime such as assault or torture can be dismissed or even imprisoned depending on the severity of the violation. There are however many criticisms of the disciplinary process along with accusations that officers are oftentimes not properly punished for their crimes.

Some sources claim that the rate of officers fired for misconduct does not align with the number of misconduct reports levied against the police services.

It is also important to remember that there are many difficulties when trying to determine if an instance of police brutality has taken place, for example, it is normally accepted that resisting arrest may lead to some injuries for the suspect, but how extensive can these injuries be? How do you decide if injuries have been inflicted during the arrest or afterwards while the subject was in police custody?

These questions along with the lack of evidence in many cases usually make it difficult to accurately pinpoint how many cases of police brutality have actually taken place and how many should be punished via dismissal.

Lastly, there have been comments made by Police Minister Bheki Cele in response to the killing of police officers by criminals that could be seen as a tacit endorsement of certain forms of misconduct, although there is an argument to be made that these comments are justified given the nature of the country’s crime rates.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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