TRC Final Report

Volume 2

Chapter 3

Subsection 7

The legal framework for crowd control

56 The regulatory framework before the introduction of the Internal Security Act (1982) was extensive, severely limiting the opportunity to exercise freedom of assembly. The Riotous Assemblies Act (1930) enabled a magistrate, with the authorisation of the Minister of Justice, to prohibit a public gathering if s/he was of the opinion that it represented a serious threat to public peace. The Minister of Justice had wide (and practically unchallengeable) discretion to prohibit a particular public gathering from taking place or a particular person from attending a particular gathering. Further sections of the Act enabled the Minister to impose blanket bans on gatherings in any public place for such period as he specified. Once prohibited, mere attendance at such a prohibited gathering was not an offence, but all actions relating to the organisation of a prohibited gathering were criminalised. The Suppression of Communism Act (1967 & 1972) gave the Minister of Justice absolute administrative powers to prohibit a particular gathering or to ban gatherings in any area and for any period specified.

57 In 1976, the Minister of Justice imposed a blanket ban on all outdoor gatherings without permission of the Minister or a magistrate, renewed annually until April 1991. The Internal Security Act (1982) gave magistrates the right to prohibit all gatherings in their district for a period of forty-eight hours if they believed that the gathering would endanger public peace. Alternatively, the magistrate could allow a gathering to take place, but impose conditions on how it took place. The Minister used the Act to re-issue annual government notices prohibiting all outdoor gatherings except bona fide sporting and religious activities. Mere attendance at such a gathering constituted a criminal offence.

58 The Demonstrations In or Near Court Buildings Prohibitions Act 71 of 1982 was introduced specifically to prevent protests during political trials and against the treatment of persons held under security legislation. Other ‘technical’ pieces of legislation such as the National Roads Act 54 of 1971, the Trespass Act and by- laws introduced under the Black Local Authorities Act (1982) were used by state authorities to restrict protest, including the use of pickets during labour disputes. Various city councils passed by-laws requiring, in addition to magisterial permission, council permission (frequently requiring punitive warrants of indemnity) for marches and gatherings.

59 The Public Safety Act (1953) allowed the commissioner of police to declare ‘unrest areas’. Such declarations, widely used during the 1980s, gave the Commissioner the power to ban gatherings.

Legal provisions for the use of force on crowds

60 Under the Riotous Assemblies Act (1956), police were allowed to disperse a gathering by force, provided that a police officer above the rank of head constable had given three warnings to the gathering that force would be used if they did not disperse. It also required that the force used should be proportionate to the need and that lethal force could be used only if other means had not proved successful or if death, serious injury or damage to valuable property had occurred or seemed likely.

61 The Internal Security Act (1982) authorised a police officer to order a crowd to disperse and to use force to compel obedience to this instruction. This authority applied equally to legal gatherings if violence occurred or appeared imminent. The dispersal command was supposed to contain a time period before force was used and stated that, where a valid instruction had been given and was disobeyed, the police officer “may order the police under his command to use proportionate force, including ... firearms and other legal weapons”. Firearms and other lethal means “shall not ... be used to disperse a gathering”, unless lesser means had proved ineffective and actual or imminent violence by the crowd to persons or property was likely.

62 The enforcement provisions of the Internal Security Act did not allow for means other than dispersal to deal with a prohibited gathering, ignoring the use of other international public order norms such as negotiation to encourage crowds to disperse. The experience during that period suggests that the police interpreted the provisions narrowly and did not feel that they had the legal authority to negotiate or adopt proactive approaches.

63 Public Safety Act (1953) provided indemnity against civil or criminal prosecution for members of security forces acting in good faith. In effect, the “regulations amount[ed] to a conferring of a broad discretion to kill or injure without legal consequences. The onus on the victim to show that a policeman acted in bad faith when he fired recklessly into a crowd, or failed to fire a warning shot, or neglected to use less drastic forms of ‘coercion’, is nearly insuperable”.⁵

64 Lethal force in the context of crowds and gatherings could be justified on two other legal grounds – the common law right to protect person or property and the right to use deadly force to effect an arrest under the Criminal Procedure Act (1977). Since the prohibitions on gatherings criminalised mere attendance, arrests at gatherings and the use of force in such situations were justified. Similarly, the use of force by the police often provoked the use of violence by members of the crowd, thus enabling the self-defence argument to apply.

The use of force on crowds and gatherings

65 The SAP used riot control to enforce the restrictions on public assembly and association that were enshrined in the legislation of apartheid. The training and equipment of riot police and the deployment ratios of these police relative to the size of the crowds that they confronted were based on the assumption that crowds would be controlled and dispersed through the use of force.

66 Most victims of harsh police action were black. The SAP was associated with efforts not only to suppress political resistance, but to enforce the racist organisation of South African society. Moreover, state-controlled media assisted in promoting the view that a crowd of black people equated a ‘mob’, and a mob of black people was by nature barbaric and likely to engage in violence.

67 Submissions to the Commission have shown that political and police authorities actively encouraged the use of harsh and punitive methods and many police officers felt obliged to use maximum force. When police were accused of overstepping their extremely wide legal boundaries, they defended and covered up their actions. In addition to the indemnity provisions prevailing during the states of emergency, police accused of using excessive force could rely on the full support of their superiors, the silence of their peers (who would often be used as witnesses) and the indulgence of security-conscious judicial officers. Press restrictions ensured the absence of the media during dispersal and unrest situations, further shielding police actions from public censure.

ON THE BASIS OF THE ABOVE AND THE MANY HUNDREDS OF STATEMENTS FROM VICTIMS OF PUBLIC ORDER POLICING, THE COMMISSION FINDS THAT, IN RESPECT OF PUBLIC ORDER POLICING, THE SAP, SPECIFICALLY ITS CROWD-CONTROL DIVISIONS (THE RIOT AND INTERNAL STABILITY UNITS), DISPLAYED A GROSS DISREGARD FOR THE LIVES AND/OR PHYSICAL WELL-BEING OF BOTH THOSE ENGAGED IN POLITICAL ACTIVITY AS WELL AS THE GENERAL PUBLIC. THIS WAS MANIFESTED IN A TENDENCY, OFTEN THE RESULT OF HIGH-LEVEL POLITICAL PRESSURE, TO RESORT TO THE USE OF DEADLY FORCE IN SITUATIONS WHERE LESSER MEASURES WOULD HAVE SUFFICED FOR THE RESTORATION OR MAINTENANCE OF PUBLIC ORDER. THE CONSEQUENCE WAS THE NEEDLESS DEATHS OF AND INJURIES TO COUNTLESS CIVILIANS. THESE DEATHS AND INJURIES CONSTITUTED A SYSTEMATIC PATTERN OF ABUSE, AND WERE GROSS VIOLATIONS OF HUMAN RIGHTS.

THE COMMISSION FINDS THAT THIS USE OF DEADLY FORCE WAS THE PRODUCT OF THE RACISM AT THE CORE OF THE SOUTH AFRICAN POLITICAL ORDER IN THE MANDATE ERA, AIDED AND ABETTED BY INAPPROPRIATE TRAINING, POOR AND INAPPROPRIATE RESOURCING AND A WIDESPREAD LACK OF ACCOUNTABILITY ON THE PART OF THE SECURITY FORCES FOR ACTIONS DIRECTED AT BLACK SOUTH AFRICANS.

THE COMMISSION FINDS THE FOLLOWING TO BE DIRECTLY ACCOUNTABLE FOR THE GROSS VIOLATIONS OF HUMAN RIGHTS COMMITTED IN THE COURSE OF PUBLIC ORDER POLICING: MINISTERS OF POLICE/LAW AND ORDER; COMMISSIONERS OF POLICE; THE COMMANDING OFFICERS OF RIOT/INTERNAL STABILITY UNITS. FURTHER, THE COMMISSION FINDS THE CABINET DIRECTLY RESPONSIBLE FOR THE EXCESSIVE USE OF FORCE DURING THE 1976 UNREST AND INDIRECTLY RESPONSIBLE DURING OTHER PERIODS OF SOCIAL UPHEAVAL.