THE STATE RESPONSE TO VIOLENCE ON FARMS
A fundamental concept in the South African bill of rights is the right to human dignity: "Everyone has inherent dignity and the right to have their dignity respected and protected." (434) The importance of this right in the South African context flows out of South Africa's particular history, in which the apartheid state daily violated the dignity of the majority black population through segregation, arbitrary detention, and various forms of abusive policies based on racial discrimination. (435) The right to freedom and security of the person is also protected by the bill of rights, in particular the right "to be free from all forms of violence from both public and private sources," the right "not to be tortured in any way," and the right "not to be treated or punished in a cruel, inhuman or degrading way." (436) The constitution also prohibits unfair discrimination against anyone directly or indirectly on the basis of race, gender, sex, pregnancy, marital status, and other grounds. (437) Although the right to family life is not explicitly mentioned in the constitution, the Constitutional Court has ruled that it is nevertheless constitutionally protected. (438) These provisions clearly place limitations on the manner in which all persons are to be treated by the various agencies involved in the criminal justice system. In addition, the right "to be free from violence from both public and private sources" places a positive obligation on the security forces to take all possible steps to protect all persons from assaults by private individuals, including vigilante violence, and can be argued to place a positive obligation on private actors to refrain from violence.
Under international law, governments have a duty to guarantee equal protection of the law to all persons without discrimination, and to prosecute serious violations of physical integrity, including cases in which the perpetrator is a private citizen. (439) The Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR, ratified by South Africa in 1998), has made it clear that human rights protections apply regardless of nationality or statelessness, and that states have a responsibility to guarantee basic human rights equally for both citizens and aliens (including for example, migrant workers from other countries). (440) The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), also ratified by South Africa in 1998, calls on national governments to take steps to eliminate racial discrimination and to prohibit discrimination under the law as well as to guard against discrimination arising as a result of the law. CERD defines discrimination as conduct that has the "purpose or effect" of restricting the enjoyment of rights on the basis of race. The same international law principle of non-discrimination was strengthened in relation to women by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which South Africa ratified in 1995. CEDAW reaffirms women's right to enjoy all human rights, and details states' obligation to ensure non-discrimination on the basis of gender and to ensure equal protection of the law for women. (441) States' obligations in relation to violence against women in particular were clarified by the 1993 Declaration on the Elimination of Violence Against Women, which provides that states must "exercise due diligence to prevent, investigate, and, in accordance with national legislation, punish acts of violence against women whether those acts are perpetrated by the states or other private persons." (442)
South Africa's constitution also provides protections for a wide range of social and economic rights, including the right to education, housing, and health, as well as protection for property rights and certain rights in respect of land (see above, under "Land Reform since 1994"). Section 26 of the constitution provides that "Everyone has the right to have access to adequate housing," that "the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right," and that "No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances." A groundbreaking decision of the South African Constitutional Court handed down in 2000, concerning an application brought by a group of people evicted after they illegally occupied land, ruled that the South African government has an obligation to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations. (443)
The U.N. Commission
on Human Rights has declared that "the practice of forced eviction constitutes
a gross violation of human rights, in particular the right to adequate
housing" and urged governments to undertake immediate measures aimed at
eliminating the practice, as well as to "confer legal security of tenure
on all persons currently threatened with forced eviction and to adopt all
necessary measures giving full protection against forced eviction, based
upon effective participation, consultation and negotiation with affected
persons or groups." (444)
The Office of the U.N. High Commissioner for Human Rights notes that many
other rights may be violated by forced evictions in addition to the right
to adequate housing: "the right to security of the person ... means little
when evictions are carried out with violence, bulldozers and intimidation.
Direct governmental harassment, arrests or even killings of community leaders
opposing forced evictions are common and violate the rights to life, to
freedom of expression and to join organizations of one's choice. In the
majority of eviction cases, crucial rights to information and popular participation
are also denied." (445)
Violent crime on South Africa's farms must be seen partly in the context of the fact that South Africa is in general a very violent country. Although the murder rate, which escalated sharply during the years leading up to the 1994 elections, has reduced somewhat since its worst levels, at least 23,823 people were murdered in 1999 among South Africa's population of about forty-two million, one of the highest rates in the world; 51,249 cases of rape were reported in the same year, and figures for other violent crimes are also very high. (446) Moreover, contrary to what might be expected, crime rates in South Africa are similar in rural and urban areas. According to the results of South Africa's first national victim survey, carried out by the national statistical office, Stats SA, and published in 1998, 29.9 percent of those living in urban environments experienced at least one crime during the period 1993 to 1997, and 6.6 percent experienced at least one violent crime; of those living in rural areas, 26.1 percent had experienced at least one crime, and 6.4 percent at least one violent crime over the same period. As many as 4.7 percent of rural respondents reported a murder in their household. (447) According to police statistics, 185 police were murdered during 2000, sixty while on duty, from a total force of approaching 130,000, and suicide rates among police are also high. (448)
In the face of this violence, and in common with other countries undergoing transition from autocratic rule, South Africa's criminal justice system is under severe strain. (449) A rise in crime has been matched by a collapse in discipline and morale among the "old guard," especially within the police who were called upon to defend the old order--many have left on "medical grounds." Despite efforts to demilitarize policing and instill a commitment to community service and human rights, the government has yet to be able to create an effective force devoted to the ideals of the new constitution.
Since taking office in 1994, the ANC-led government has engaged in a broad-based attempt to restructure and improve the criminal justice system in South Africa. As regards policing, a green paper (a policy discussion document) and draft bill published in July 1994 emphasized the importance of democratic control and community participation, and led to the passage in October 1995 of a new South African Police Service Act. (450) The act symbolically renamed the police "force" to the South African Police Service (SAPS) and established new national and provincial structures for the police (amalgamating the police forces of the ten black homelands into the national police service, and at the same time devolving a significant degree of political control to provincial level). The new law demilitarized the rank structure of the police, gave statutory backing to the community police forums created on an ad hoc basis over the previous years, and set up a national civilian secretariat for safety and security (mirrored at provincial level) to advise the minister and to monitor the implementation of policy and directions set for the police service. In line with the bill of rights in the new constitution, the police legal department prepared a human rights training programme for new recruits and existing members of the force, and affirmative action processes have been attempted in the promotion of police officers. A comprehensive National Crime Prevention Strategy (NCPS) was adopted in 1996 by the Department of Safety and Security (responsible for the SAPS) in conjunction with other government departments. The NCPS sets out a four-pillared approach to fighting crimes: (1) ensuring effective law enforcement through the criminal justice system; (2) reducing crime through environmental design; (3) ensuring public education against crimes; and (4) ensuring a transnational crime prevention approach. In 1998, the Department of Safety and Security published a white paper (a statement of government policy) on safety and security to direct the next five years. (451) The white paper emphasized the importance of crime prevention, improving criminal investigations, improving the quality of service to victims of crime, as well as strengthening systems for civilian control of the police. In November 1998, a comprehensive police policy on the prevention of torture was published. The police have also established a number of specialized units to deal with sexual and domestic violence. (452)
The Police Act also established an Independent Complaints Directorate (ICD), to oversee investigation of criminal offenses and other misconduct committed by the police, and investigate directly all cases of deaths in police custody or otherwise as a result of police action. (The ICD does not have responsibility for investigating misconduct by members of the army when carrying out policing duties.) In practice, due largely to resource constraints, the ICD is unable to fulfil its mandate effectively, or investigate even all cases of deaths in police custody or as a result of police action. (453) The 1998 Domestic Violence Act expanded the ICD's duties to include monitoring of police enforcement of that act.
Despite these positive developments, the period since 1994 has also seen serious problems within the police service, perhaps inevitable in a body facing such huge changes in orientation and priorities. Racism in the force remains a serious problem. In KwaZulu-Natal and the Western Cape, where political and gang violence continue to threaten the overall maintenance of the peace, some police officers maintain links to those organizing the violence that were developed during the apartheid years. In Gauteng Province and elsewhere, police officers have been involved in car-hijacking rings and other high visibility crimes. Brutality and corruption remain depressingly common among police officers. The ICD reported 681 deaths in custody or as a result of police action during the year to March 2000 (a slight decrease on the previous year). (454) As of August 2000, there were 1,165 police members in court facing charges of corruption, and 2,551 dockets (files) opened by the SAPS anti-corruption units against 2,061 members to investigate corruption. (455) Moreover, the police have severe resource constraints. A three-year moratorium on police recruitment was lifted in May 1997, but in April 2000, Minister for Safety and Security Steve Tshwete stated that the SAPS still had a shortage of 7,000 personnel and 371 vehicles; additional recruitment was planned to address the shortage over the next four to five years. (456) A high percentage of police are illiterate or barely literate, many of them formerly members of the homeland police forces, who were integrated into the new SAPS.
Government efforts at improving police response have largely been devoted to urban areas, where the demands have been most pressing. The NCPS does not specifically address the needs of rural people, including farm workers. Though the White Paper on Safety and Security did consider rural areas, it focused on the former homelands. Neither the NCPS nor the White Paper looked explicitly at the needs of people working or living in commercial farming areas.
There have also been significant initiatives to improve the delivery of criminal justice, starting from the development of a comprehensive five-year-plan known as "Justice Vision 2000," formally launched in September 1997. Under this plan and in line with the constitution, the government states that its aim is to "provide fair and equal access to justice for all South Africans, regardless of their race, gender, marital status, ethnic or social origin, sexual orientation, age, economic status, disability, religion, belief, culture, language, or any other attribute." (457) One of the most important pieces of legislation adopted since 1994 to improve the justice system is the National Prosecuting Authority Act (No. 32 of 1998), which establishes a new prosecution system in South Africa, headed by a National Director of Public Prosecutions (NDPP). As for the police, the transition to a new order has been difficult for the court system, and delays in the criminal justice process have vastly increased the backlog of cases awaiting trial, while there are a disturbing number of cases in which dockets (case files) go "missing," apparently as a result of corruption among police or court officials. The NDPP has appointed task groups to clear the backlog in some rural magistrates courts. Among both police and court officials, continuing racism is a huge problem, with hostility or lack of understanding between white and black police or court staff remaining prevalent--though not universal.
With regard to women, the Department of Justice adopted a Gender Policy Statement recognizing the historical discrimination suffered by South African women, especially black South African women, and aiming to implement the values underpinning Justice Vision 2000, including gender equity. (458) The NCPS highlights the need to prioritize gender-based violence in national strategies to combat crime in South Africa, and the Department of Safety and Security has expanded its policy initiatives to include violence against women. (459) However, rather than applying all the strategies proposed by the NCPS in the case of other crimes to combating violence against women, the NCPS limits strategies to end violence against women to classifying them under a single section on "victim empowerment and support." (460)
Despite efforts at reform, it is clear that the criminal justice system is not delivering the service it is mandated to carry out--there is a low probability generally of reported crimes resulting in a conviction. A study on sentencing policy in the criminal justice system carried out by the South African Law Commission, for example, found that "a mere 5.4% of more than 30,000 randomly sampled cases reported to the police resulted in a conviction." (461) Once a prosecution is launched, however, three quarters of prosecutions for "more serious offenses" result in convictions. (462) A survey of attitudes to policing in rural areas (mostly the former homelands) carried out in 1998 found that more than a third of those questioned felt that policing had declined in quality in the previous few years; more than 40 percent believed the police were ineffective in curbing crime in their area. (463)
Many see the
response to all violent crime--including that on commercial farms--as inadequate.
In this context, vigilante violence has assumed a high profile, with groups
such as Mapogo a Mathamaga (discussed above) or People Against Gangsterism
and Drugs (PAGAD), a largely urban Western Cape group, rapidly becoming
as much of a problem to society as the criminals which they originally
The new vulnerability of a group previously shielded from violent crime, as well as the perceived political basis for "attacks on farms and smallholdings," has given the issue of violent crime on farms a high media profile--murders on farms (of owners, or of workers by owners) are given an individual attention that many other killings are not--and a high level of political focus. In particular, protests from organized agriculture about "farm attacks" led first to the implementation of a "rural protection plan" in October 1997, after consultation with a variety of interested parties by a security force task team, and then to a "rural safety summit" in October 1998 called by then President Nelson Mandela. (464) The aim of the summit was to "bring all role players together to find a common strategy to step up the fight against crime, especially violent crime in all farming communities." (465) Participants included representatives of the government departments for safety and security, defense, and agriculture and land affairs, as well as the office of the president and deputy president; organized agriculture, trades unions, NGOs, and the Business Against Crime initiative. The summit adopted a set of resolutions condemning criminal activity affecting rural communities, recognizing that the causes of such crime are complex, accepting that "the Rural Protection Plan should be utilized as the operational strategy to combat and prevent violent crimes against farming and rural communities," but calling for a comprehensive policy framework to be developed "to ensure long term safety in rural and farming communities." (466)
The rural protection plan uses the nationwide structures that coordinate the activities of the police and army, seeking to ensure effective cooperation among all relevant parties, but in particular the SAPS, SANDF and organized agriculture. These structures are headed by the National Operational Coordinating Committee (NOCOC) based in Pretoria. Each province has a Provincial Operational Coordinating Committee (POCOC); and within provinces there are Area Operational Coordinating Committees (AOCOCs) and Groundlevel Operational Coordinating Committees (GOCOCs) headed by SAPS station commissioners and SANDF commando commanders. Each of the committees has its own priority committees on different types of violence; priority committees on rural protection were added to these in October 1998, after the rural safety summit. (467) At police station level, the GOCOCs usually meet once a month.
established a Rural Safety Task Team made up from the groups that had participated.
The task team in turn had three working groups, on communication, information
and research; on operational interventions (effectively consisting of those
role players involved in rural protection under the NOCOC); and on rural
safety policy (developing long term strategies). These working groups have
now been wrapped into the NOCOC priority committee on rural protection:
in February 2000, representatives of Agri-SA met with President Mbeki over
the issue of violent crime against farm owners, and the president committed
the government to a re-activation of the rural safety task team, which
would in the future function within rather than outside police structures.
Under the rural
protection plan, police are supposed to visit commercial farms on a regular
basis. Resource constraints mean that this is not an effective strategy
in practice: understaffing and lack of vehicles are a significant problem
in most rural police stations. A detective at the Mid-Illovo police station
in the KwaZulu-Natal Midlands identified the key problem facing the police
station as lack of manpower "Nineteen or twenty people work out of these
premises, of which five are detectives, with four vehicles. We are responsible
for a huge area with more than 200 farms and smallholdings, though no former
KwaZulu areas. When we visit farms we go to the farm owner or manager and
then the induna [headman].... About once a week to each farm is the best
we can do.... Farm owners usually phone us when there is a problem in their
workers' compounds, because we do not have the manpower to talk to everybody
on the farm." (469)
At Levubu police station in Northern Province, Human Rights Watch found
in April 2000 that there were only seventy-two police officers responsible
for policing approximately 45,000 people.
(470) This police station used to be responsible for policing
a small geographical area occupied by white farm owners under the former
government, but with the new government in 1994, its geographical jurisdiction
was increased, although this was not also matched with a meaningful increase
in staffing and vehicles. At Louis Trichardt police station each farm out
of 400 in the area might only be visited once a month, due to lack of better
resources. The farm owner, or person in charge--many owners live in the
cities and have a manager to run it on a day to day basis--must sign a
register and note any remarks in it. "We are visiting them and giving them
hints; the farmers themselves make their own plans, but we advise them."
(471) Similarly, Pietersburg police station was responsible for
more than 100 farms, with only two men and one vehicle available for the
visits. (472) The
small Ingogo police station, near Newcastle, in northern KwaZulu-Natal,
has thirteen officers serving an area of 576 square kilometers, about 250
farms, with three vehicles, which means they are able to visit about fifteen
farms a day. (473)
Because of the infrequency of the visits, many farmers see this system
as more or less useless.
In practice, due to resource constraints and other weaknesses, of more importance than the police initiatives in most cases is the system, set up both under the rural protection plan and independently, of joining farmers together in "security cells" of geographically close farmhouses, linked by radio, often known as the "farmwatch" system. "We must protect ourselves. There is no way that the SAPS or SANDF can protect us. They are the legal force of the government, and we must make use of them, but we can't expect them to protect us: they don't have the capacity, the knowhow, or in some cases the will." (474) Accordingly, in many farming areas, farm owners living along one road or within easy reach of each other will form a committee and if something untoward happens will call a neighbor for assistance. "In some areas you find Farmwatch is operating as a virtual police force, insisting that everybody carries ID all the time, because no one else will. The farmworkers feel safe and cooperate." (475) Informal patrols take place to deter strangers: "though there have been no farm attacks here, when they hear of a murder the farmers are getting together and discussing what they must do. The young men drive around in bakkies [pick-up trucks] and make sure that there is nobody on the farm who must not be there, and so it stops." (476)
level, farmers' representatives have sought to strengthen such self-protection.
In August 1999, Agri-SA launched the Agri-Securitas Trust Fund with the
aim of "generating funds to protect farming communities throughout South
Africa and reverse the growing trend of rural crime." The commercial farmers
union stated that the fund would directly benefit the "85,000 commercial
and small scale farmers, their families and their workers," and indirectly
benefit the whole country "by assisting to manage the high incidence of
farm-related attacks." (477)
The fund was co-sponsored by Mercedes Benz Commercial Vehicles and Nortel
Dasa, a provider of satellite network technology, both companies within
the DaimlerChrysler Group.
These initiatives are closely linked to the commandos, a system of army reserve units which has its origins in the nineteenth century, when Afrikaner commandos fought against the British in the South African War of 1899-1901 (the Boer War). (478) Drawing on this history, the National Party government continued to use the commandos during the apartheid era, especially for border defense. Until the early 1990s, all white men in South Africa were required to do compulsory national service in the army, and many farmers therefore have military training, making the organization of a military security outfit at local level a relatively easy task. In many areas of the country, commandos are no longer very active, but they remain strong along the borders with Zimbabwe, Swaziland, and Lesotho. Many of their members are farmers--though the percentage participating varies widely (479)--and some commando units have been revived specifically for policing duties in response to current concerns about security in the commercial farming areas. Many farmers involved in farmwatch initiatives are also commando members. The level of activity of the different commandos and of their subunits, however, varies considerably, according among other things to the motivation of the individuals in charge of them. In the most active areas, there will be several vehicle patrols a night, roadblocks once or twice a week, and checkpoints looking for illegal weapons even more frequently. There are also systematic efforts to obtain information about illegal weapons and stock theft through the use of informers. In other areas, a commando subunit can exist in name, but in practice carry out very few activities; the same is true of the private farmwatch systems. Several farmers involved in the farmwatches or commandos commented to Human Rights Watch that, despite fear of violent crime, it was difficult to get their neighbors to participate in these organizations.
Today, there are 186 commando units in South Africa, with a total of about 82,000 members. (480) Membership has declined since 1994; many white members who did not want to work for a black government left the system when the ANC came to power. The commandos are governed by the Defence Act, and members are subject to disciplinary control in the same way as the regular army when on active duty. (481) In each province they fall under the overall command of the relevant SANDF group headquarters (of which there are two in each province, except for Gauteng, which has nine, and KwaZulu-Natal, which has three). In practice they operate quite autonomously. While there are procedures under the Defence Act for allotting individuals to the commandos in some circumstances, members today are volunteers. Volunteers must serve up to twelve days in any calendar year, as called upon, though they can serve for longer if they wish. Volunteers are entitled to receive an annual allocation of free ammunition for target practice, and may be allowed the temporary use of a government firearm while carrying out target practice, and temporary use of other items of military clothing or equipment. They may also buy military rifles from the government at cost price, or obtain one on loan, subject to conditions such as payment of a cash deposit.
The army divides up the commando system into different types. There are "area-bound reaction force commandos," who can be called up in an emergency and are paid for the hours they work; "home and hearth protection reaction force commandos," staffed by farmers and smallholders and their workers, who go into action only if an attack has occurred, until the area-bound reaction force commando arrives and takes over from them; and "house and hearth protection commandos," similarly staffed, who are only responsible for protecting their own farm or smallholding and themselves. (482) The commandos vary in size, but each generally has several hundred members. When deployed on SANDF business, members of commandos are supposed to be clearly identifiable as such. If they do not have time to dress in full uniform, they should put on a jacket that is issued to them that clearly identifies them as members of the army, with their name and rank. They are not allowed to wear military uniform unless they are officially on commando duty.
The commandos operate theoretically under the control of the police when they carry out patrols and are supposed to have a member of the police with them at all times, either a full time officer or a reservist, who is responsible for arresting suspects and carrying out policing duties. The commandos themselves do not have powers to arrest suspects, or to search vehicles or people. "The police are playing mostly a prosecution type of role, they are not so much involved in prevention. The whole operation involves mostly the military and the commandos, working with the farmers, though the police are pulled in to make the official arrest. (483) In practice, the commandos often operate independently, simply keeping the police informed as to their movements: "They inform us in advance if they will conduct farm patrols or other operations." (484) If the police do patrol with the commandos it is usually in a subordinate role, and often a reservist rather than a full time officer. "They always come to the charge office and let us know they are in our area, and as far as possible they will then work with a reservist or permanent force member." (485) Some commando members are themselves also police reservists.
The South African government's 1996 White Paper on Defence recognized problems with the deployment of military units to undertake policing duties, though it stated that such deployment was necessary in the short term because of the high level of crime and the shortage of police. (486) The 1999 draft Defence Bill accepted that the SANDF should be deployed in cooperation with the SAPS, and provided for soldiers to have "all the powers" that are conferred by law on police officers in similar circumstances, though this provision was reportedly amended following parliamentary hearings on the bill. (487)
There is no
system for independent investigation of civilian complaints against the
commandos. The Independent Complaints Directorate, set up to monitor and
investigate complaints against the police, has no jurisdiction over members
of other branches of the security services, even when they are carrying
out policing duties. If there is a complaint, then the army legal department
is supposed to inform the member accused, investigate the complaint, and
then hold a disciplinary board of inquiry. If the internal inquiry finds
that there is a case of assault, the case is then handed to police for
follow up, and from moment of arrest is handled as a civilian matter.
South African farmers--like South Africans generally--have increasingly turned to commercial private security companies to safeguard their property and personal safety. There are, for example, as many as forty private security companies operating in the KwaZulu-Natal midlands area alone. (488)In 1995, those employed in the private security industry were estimated to outnumber the total number of police by about five to one, and the industry has seen continuing growth since then. (489) In 1996, there were 240,000 registered security guards, of whom 100,000 were active within the 3,000 registered companies; by the beginning of 1999, there were 350,000 registered guards, of whom 147,000 were active in more than 5,300 companies, and another 60,000 security guards were estimated to be working "in house" and not registered. (490) Many of those working in the private security industry are former members of the South African security forces or, especially in urban areas, of the armed wings of the liberation movements--tending to reinforce a militarization of the industry already developed in the course of a close collaboration between private security companies and the state under the National Party government. (491)
The private security industry is currently governed by legislation dating from 1987, amended in 1997, which provides only a weak regulatory framework. (492) In practice, private security companies can operate virtually as vigilante groups. Although private security companies must be registered with and can be deregistered by the Security Officers' Board, a self-regulatory body formed of industry representatives, none had ever been deregistered by 1996, despite investigation of numerous disciplinary charges and widespread reports of abuse. (493) The Security Officers' Board also oversees training of security officers, who are graded according to the level of training they have received; most receive only the most basic level. The training requirements have been heavily criticized. For example, a minimum of five hours of firearm training is required for guards to be allowed to carry firearms while on duty, but licenses are provided to security companies, not to individuals, and the company itself is reponsible for ensuring that the training is effective. (494) There is no requirement for the police or courts to notify the Security Officers' Board if a case is opened against a private security company; though, as one court official put it to Human Rights Watch, "the Security Officers' Board is free to ask us if we have heard of any problems." (495)
In February 2001, the government published the Security Industry Regulation Bill, which will greatly strengthen the system for regulating "security service providers," requiring them to obtain accreditation from and to allow inspection by an independent Security Industry Regulatory Authority. The authority will be appointed by the minister for safety and security, and will not include representatives of security companies. (496) The bill sets out criteria for the registration of security service providers, including training requirements, a clean criminal record, and compliance with a legally binding code of conduct to be prescribed by the minister. It provides that accreditation of a security service provider may be suspended or withdrawn in the event of a criminal conviction or of improper conduct, though this will not be mandatory. It does not provide for the police to report to the regulatory authority alleged offenses involving security service providers. Human Rights Watch believes that the bill should be amended to require the police to notify the regulatory authority where they have information concerning alleged criminal behavior by a security service provider.
At national level, the police recognize that private security companies have a role to play, where they are properly regulated and trained and working within the framework of the law, though they are concerned that companies can spring up overnight with no intention of following the rules. "These people would not be there if there was not a need." (497) Locally, too, overstretched police stations often rely on the private security companies for assistance. "We have good relations with the Farm Protection Unit [a private security company]. Many times we are in a fix with manpower and vehicles and they have assisted us, for example, by attending complaints like assaults where they are contracted to the farm. They go to the scene and if someone needs an ambulance they can arrange for that, and if the suspect is there they can bring him to us with witnesses and then we can handle the matter." (498)
reliance, there can also be conflict between the police and private security
companies where the private companies take over police responsibilities.
In Greytown, for example, there have been problems relating to the control
of the crime scene in cases of violent crime against farm owners; such
as cases where the private security have followed a trail with their dogs,
meaning that the police have not been able to find the same evidence later.
(499) According to Dave Carol, a commando unit commander and
the coordinator of the Greytown 911 Centre (described in the next section),
"Those guys in the private security companies have no more rights than
any private citizen, but they see themselves as a pseudo police force,
or above the law. They can be called in by the farmer and beat the hell
out of the laborer, no questions asked; and the laborer is too nervous
to do anything because it's a guy in uniform, so it must be official. We
have good security companies and, shall we say, not so good security companies.
We have good relationships with the good companies, and not so good relationships
with the others." (500)
In Greytown, as elsewhere, the burgeoning number of private security companies
have also been brought into the rural protection plan, to resolve potential
points of conflict or misunderstanding as they arise. Private security
companies are usually invited to attend the GOCOC meetings at which rural
safety issues are discussed; at Greytown, the first such meeting involving
private security companies was held in March 2000, and was due to be held
monthly thereafter. (501)
At Estcourt police station, also in the KwaZulu-Natal midlands, the police
meet at least once a week, and sometimes more often, with the two private
security companies operating locally. The police, private security and
commandos cooperate in, for example, conducting joint raids searching for
stolen livestock. (502)
The mix of different security systems mobilized for rural safety varies across South Africa for reasons of historical tradition (farmers in the areas bordering South Africa's neighbors have always been more militarized) and for reasons of economics and geography. In wealthier areas, for example, the KwaZulu-Natal coastal belt where sugar cane is grown and the farms are relatively small, farmers tend to employ private security. In remote areas, where rainfall is low, farms very large, and profit margins small, private security is prohibitively expensive, and the commando system is used instead. In yet other areas, for example in Gauteng, where commando units tend to be less under the control of farm owners and to have more black members, farmers tend to rely more on private farmwatch initiatives, integrated into the rural protection plan through the GOCOCs: "Without the cell group there would be a vacuum. The police and the commandos can't cope. The cell group fills a big gap, and is there first when anyone is attacked.... The commando will give you a uniform and a rifle, and a vehicle for patrols, but then the vehicle must be kept secure in a garage all the time, rifles must be signed for and kept at a police station, and so you must go there to get the vehicle and the rifle. It makes it more difficult. It's better just to use your own vehicle and your own gun. The commando is a good system, but it can't meet the need. They are better as a support system, to do an organized raid for illegal immigrants or for illegal weapons." (503)
The GOCOCs established under the rural protection plan join other structures at police station level designed to increase public participation and confidence in policing, including the Community Police Forums (CPFs) which began to be developed in the early 1990s and are provided for in the 1995 South African Police Service Act. (504) The aims of the CPFs, which are to be "broadly representative of the community," as well as including police representatives, are to promote communication and cooperation between the police and the community regarding policing and to improve the rendering of police services. (505) The CPFs have had some successes in improving police-community cooperation, especially in urban areas, but have had limited success overall. In particular, there has been a conflict between community attempts to gain influence over police decision-making through the CPFs, and the police vision of the CPFs as purely a source of information and support for their operations. (506) Many officers in police stations visited by Human Rights Watch identified lack of community interest in these structures as a problem. Police often find themselves outnumbering civilians both at the CPFs and at the GOCOC meetings for the rural protection plan. Community leaders interviewed by Human Rights Watch, on the other hand, stated that they had ceased attending CPF meetings simply because they felt that there was no response from the police to their efforts at support or demands for action; and, indeed, that the police were themselves involved in crime. More systematic studies suggest that CPFs have also been ineffective in former homeland areas. (507)
In many areas, it seems that there is an effective racial division between the GOCOCs and the CPFs: the GOCOC structures are perceived as being focused on the needs of white farmers, the CPFs directed at the black community. This perception is partially recognized by some police: "Unfortunately the rural protection plan committee is not very representative; just the farmers and some indunas [headmen], but not enough to make it really worth while, since many of the black people don't come. Some have said they have difficulty with transport, and though we can try to help we can't promise to bring them." (508) In some areas, the GOCOCs are entirely white, and farmers have objected to any attempt to broaden membership to include, for example, chiefs from the tribal areas adjoining commercial farmland, on the basis that to include any blacks (other than members of the security forces) would constitute a security risk. (509) In other areas, chiefs from the former homelands have been involved in the GOCOCs, but this involvement is often focused on obtaining cooperation with efforts to prevent or punish crime on the white farms, rather than issues which might cross the borders of land tenure.
A declaration following the October 1998 Rural Safety Summit recognized that "all initiatives to ensure greater safety and security, in particular the rural protection plan, need to be more inclusive of all people in the farming and rural communities by inter alia strengthening and expanding the commandos and police reservists so that they become more accessible to the whole rural community." (510) Moreover, there is widespread recognition that it is in the interests of farm owners to bring farmworkers and residents into crime-fighting activities. As noted by a senior SANDF officer involved in the rural protection plan, "Any farmer not involving his workers in security is dumb; if they are well trained, they can be his first line of defense." (511) But, in practice, it seems that few, if any, blacks are involved in security structures on an equal footing with whites. One coordinator of a local farmwatch system noted to Human Rights Watch that, though there had been talk of involving farmworkers in the nightly patrols, it was not practical since most could not drive, "and you can't trust all the people working for you. Sometimes they are involved and also they are intimidated very easily." (512) The farmwatch cell had begun to include some black people in the system, including a local school principal who had asked for help after several break-ins, but noted the need for trust to be established. "You must be careful not to take in someone not truly committed to preventing crime, or all the inside information on how the cell group works could be exposed." (513)
Similarly, there is only one commando unit in the country that has a black commanding officer; this unit is in the Eastern Cape, in the former homeland area of Transkei. (514) Elsewhere, whites, usually commercial farmers, are very firmly in control of the commando system. Some commandos, for example those in Piet Retief, Mpumalanga, and (rural) Ixopo, KwaZulu-Natal, have only white members. Although others have substantial black membership, for example the Umvoti commando in the KwaZulu-Natal midlands, which has one-third black membership, mostly unemployed young men, the inclusion of black members need not in itself create the common crime fighting agenda that is hoped for. Most commandos with substantial black membership are in urban areas, and their patrols restricted to towns or townships. Although some commando units claim to have made genuine efforts to widen the commando membership to include farmworkers, and to send black members away for training to enable them to be promoted into officer positions, black members of the commandos are often not from the local community, being recruited from far afield, or if they are local they may be coerced into participation. In the case of the Wakkerstroom commando, for example, black members are usually farmworkers and they are very firmly subordinated to the commanding officers, often the owners of the farms where they work or live. In some cases, refusal to serve in a commando can result in victimization by those who are members: young men who were former farm residents from Driefontein near Piet Retief in Mpumalanga spoke to Human Rights Watch about assaults by the Wakkerstroom commando, which they believed were provoked by the fact that they had refused to sign documents saying they would join the commando. (515) A representative for one of the farmworkers' unions noted more generally: "There may be farmworkers participating, but they are not at the core of the structure; they are just footsoldiers who are sent out if there is a problem, they are just following orders." (516) In other cases, the black members of the commandos are not local people; many farm residents told Human Rights Watch that those wearing military uniform did not speak the local language. (517)
There are some attempts to break down these barriers. At Levubu police station, Northern Province, for example, which is responsible for policing areas of commercial farmland and the former homeland of Venda, the GOCOC involves both farmers and chiefs in the implementation of the rural protection plan. While, as in other locations, the primary focus of the rural protection plan appears to be visiting farmers, an inspector at the police station responsible for the Community Police Forum informed Human Rights Watch that chiefs also attended the GOCOC meetings and passed on information to the police regarding crime in their areas. (518) Similarly, in Paulpietersburg, the army reservist in charge of the local commando subunit (part of the Northern Natal commando), while acknowledging that "usually the commandos are seen negatively," explained that "here we are trying to help. We get calls to assist with problems in the tribal areas, where people don't trust the police either; in fact we do more in the tribal areas than in the commercial farming areas." (519) The white farmers and commando members have bought a house, which they intend to turn into a twenty-four hour operations center, also functioning as a community center, and as a base from which the white farmers can offer assistance to black farmers trying to break into commercial farming. In the Umfolozi policing area, the farmwatch system has supplied radios to the rural areas as well, linking them into the rural protection plan, even though in practice there have been problems with ensuring that there is effective cooperation. (520) Nevertheless, in general, the commandos and farmwatch cells operate only in the commercial farming areas, not attempting to engage with any homeland areas, except for the purpose of conducting raids for illegal weapons or in "hot pursuit" of a suspect. "If there is a serious problem in the tribal areas we do go, but not generally. The police cover all areas, but the private farmwatches don't." (521) Yet, in several places, Human Rights Watch heard of black farmers approaching the white officers of the local commando unit to assist them to counter stock theft, which affects farm owners, labor tenants, and subsistence farmers in the tribal areas, and is often carried out by organized gangs operating from outside the district: to a large extent frustration with the police exists across all racial groups.
In at least
one district, the rural protection plan has become highly organized, bringing
farmers, police, and commandos together in a very structured fashion, and
also making efforts to reach out beyond the white community. In Greytown,
a formerly "white" town with associated commercial farmland surrounded
by impoverished and historically highly militarized chieftaincies of the
former KwaZulu homeland, all security structures are linked to a "911 center,"
a control room in the center of the town. The system grew out of the local
Umvoti commando, but was based on a recognition by its prime movers that
the different security services were competing rather than cooperating,
especially as white suspicion of the police grew after 1994.
(522) The center, still supported primarily by SANDF resources
and personnel, is in daily radio contact with 200 farms, and is also linked
to relevant police units and emergency services, to the SANDF Group 9 headquarters
in Pietermaritzburg, and to the Umvoti commando. The control room has the
capacity to reroute incoming phone calls to any one of its linked services,
and indeed functions as the police station switchboard. It has a ten-person
rapid reaction force from the commando at its disposal, twenty-four hours
a day, and a twenty-person unit that conducts regular patrols.
(523) Among the primary roles of the commando is to conduct raids
for illegal weapons. Notably, those running the 911 center have made efforts
to reach out to other sectors of the community than simply the white farm
and business owners, though it is the farmers who are the principal funders
of the effort; in particular, chiefs from the surrounding tribal areas
have been approached, and the center will provide security for events taking
place in the black areas where it can.
(524) Community leaders in the area note that, while in the past
the commando had regularly harassed or assaulted community leaders and
farm residents, including assisting in illegal evictions, and had failed
to curb the abusive actions of private security companies, the situation
had significantly improved in recent years.
(525) The police station itself has sixty-three uniformed officers,
eleven detectives, and a total of twenty-one vehicles; with which it covers
more than 320 farms, an area of about 1,500 square kilometers. Each one
is visited every week or two weeks.
has made the laws, the constitution is there, but to implement them is
the problem. The farmers don't want to accept the changes, and there is
no one to force them. Most things that are happening here, it doesn't show
that it is the new South Africa.
Although presented as a broad-based initiative on rural crime, the Rural Safety Summit was seen by groups representing farm workers and residents, including the agricultural workers' unions and the National Land Committee and its affiliates, as dominated by farm owners and the security force hierarchy, who have shown little concern for the violence facing the groups they represent. (528) These groups and many ordinary black farm residents believe that violence against farm workers and residents has not received the same priority from the government as "farm attacks." According to one community leader, "The farmers are under threat from criminals, but they don't organize to protect all who live on the farm, just themselves. If it were inclusive it would be OK, but it seems just to be for the white farmers. As a result the criminals have an easy time, because the workers say we don't care, and if someone is killed no one on the farm will come forward." (529) Even though laws have been adopted to improve the lot of farm residents, there is a frustration at the failure to implement them forcefully.
many advocates for farm residents are concerned that illegal, and often
violent, evictions are continuing apace despite legislation to prevent
this practice. Even officials within the Department of Land Affairs complain
that it is difficult to enforce the legislation:
are not properly investigated, we struggle to get the police to open a
docket. If we send people to the police, they tell them to go back to Land
Affairs, but Section 23 of ESTA makes clear that it is a criminal offense....
Speaking to the people on the front desk is a waste of time, you have to
go to the station commissioner and get him to give instructions; I have
had experiences where people on the front desk have even run away.... Many
of the people we are helping are illiterate, and the police are very intimidating,
asking aggressive questions, when their duty is to take a statement, investigate,
and let the prosecutor do the work. There was a case here a man had been
to the police three times to say that he was being intimidated to leave
his home, but he was still threatened. Eventually we went with him to the
police station and asked for the station commissioner. They eventually
opened a charge and we got a police escort to his place, where we found
everything upside down: he had been chased away and they had taken his
belongings, and then apparently the police had told the farmer we were
coming and they had replaced them, but everything was in chaos.
The Legal Resources
Centre in Pretoria, which handles many cases of illegal evictions, stated
to Human Rights Watch that despite approaching police and prosecutors to
charge those carrying out evictions with an offense under the act, they
have been repeatedly turned down.
(531) The police themselves often continue to talk of farm residents
using the terminology of apartheid era legislation which referred to "illegal
squatting," even when claiming to enforce the new laws: "We have a very
good relationship with the farmers. They usually ask us to attend to their
squatter problems; but there is very little we can do, we tell them they
have to follow the procedure. They used to phone often to tell us they
want squatters removed, but now most of them know the procedures."
(532) There have been virtually no prosecutions under section
23 ESTA, which criminalizes illegal evictions: "Originally, I did affidavits
for my clients to take to the police to open a case, but it was never successful,
so I gave up. I don't believe the police even know about the law."
(533) Human Rights Watch heard of no more than two prosecutions
under this power in the country.
Similarly, advocates for farm residents are concerned that violent crimes against those living or working on commercial farms are not properly handled by the police: "The great majority of eviction cases we handle are accompanied with violence and intimidation, threats with guns and other types of harassment, and when poor occupiers of land try to lay charges, the police refuse to do anything; sometimes we have to force them to open a case." (534) Again, officials working for the Department of Land Affairs also find themselves unable to ensure a proper response: "Cases of assaults are reported to the authorities, including to our offices, but we are not the police and can only refer them. Then the attitude of the police is that they don't want to record cases; if they are recorded it is often through the intervention of our offices, but even then you find there is strong resistance and we have to talk to the station commissioner." (535) One paralegal working with farm residents told Human Rights Watch, "There are a lot of cases that are not followed up. I don't know of any cases where the police have investigated and someone has been prosecuted. Not one. But I have heard of up to twenty or more cases of assault in the past year. Of these about five were reported to the police, and then the prosecutor says the witnesses are not sufficient and the case is closed down." (536) Often particular police stations are problematic, while their neighbors may be more responsive: a union worker based in Randburg, for example, noted that the Muldersdrift police station consistently failed to respond satisfactorily to complaints. (537)
Women farm residents interviewed by Human Rights Watch near Naboomspruit, Northern Province, told of a case involving a farmworker on the neighboring farm who had been reported to the police by the farm owner following a difference over his wages. He was allegedly tortured by police at the police station, and arrested on several other occasions: "A white policeman said, 'so long as the farmer calls us there is nothing you can do; when the farmer says we must come and arrest you we must do so. You must complain to your boss and not to us about your arrest.' They were harassing him to leave the farm." (538)
In some cases, the police themselves confess to difficulties in investigating cases against powerful local interests. As one black detective noted to Human Rights Watch: "It's difficult to investigate cases involving the commandos. Before we are allowed to speak to them we have to have permission from SANDF Group 12 at Camden. Then most members of the commandos are not giving us statements; they come with a legal adviser but refuse to say anything. They are not accepting that they have to change. Then the prosecutor always declines to prosecute, none of the cases have gone to court, though there have been some arrests. There have been no convictions since 1998 when I joined the detective branch. Most of the time they come to people in the night, so it is hard for the victims to identify their attackers." (539) A policeman based at the Ixopo police station, who is involved in investigating cases against soldiers, said he was struggling to get information from SANDF members. He had attempted to find out which soldiers were based in Ixopo at any particular time, to find out which might have been involved in assaults, but the army had refused to provide the patrol report which contains a list of people deployed. (540) In one case in which members of the Umkomaas commando based at Ixopo had been charged with murder and attempted murder, the SAPS alleged that they initially received no cooperation from the legal adviser representing the SANDF members, who registered cases of unlawful arrest at Ixopo police station instead of talking to the investigating officer. (541) In some cases, farmers lock the gates of their farms to deny police access, refuse to speak to police officers, or deny their employees permission to speak with the police--all in violation of the law. One farmer in an assault case from a farm in Citrusdal, Western Cape, refused to speak to junior police officers and wanted to speak to the station commissioner only. (542)
At police stations visited by Human Rights Watch during research for this report, station commissioners and others we spoke to could often refer to all recent cases of "farm attacks" by the name of the victims, but were unaware of similarly serious cases of assault or murder of black people on the same farms. At every police station visited, we were told that when visiting farms police visited either the farmer or someone designated by him, and occasionally also the headman of the workers; in no case did the police consult with workers on the farm as to their concerns. While "the farm owner may also involve workers in gathering information," the police did not consult farmworkers separately. (543) A police inspector at Levubu police station near Louis Trichardt told Human Rights Watch, "We [the police] trust farm owners. If they say there are no problems on the farm, then it means the situation is okay." (544) At Ingogo police station, near Newcastle in KwaZulu-Natal, for example, the station commissioner could name half a dozen cases where farm owners had been assaulted, burgled or killed in the four years he had been at the police station. He was unable to name any cases of assaults against farmworkers or residents, although Human Rights Watch had spoken to a large number of people who had been assaulted by farm owners or security, often in the course of an eviction. There had also been one case of murder, in which a farmworker responsible for looking after cattle had gone to work one morning and not returned; his body was found on the farm some days later with a bullet wound. The wife of the victim had been informed of the death of her husband by the police. (545) Often, police officers reported that assaults on farm workers were unknown in their area: "We don't get cases where white farmers are assaulting their employees; they are too important to him." (546)
The police note that reported assaults by farm residents against each other are far more common than reported assaults by farm owners. But even though common assault is often the most common offense reported to the police, property crimes among the more affluent are usually targeted as the priority for police response. (547) Understaffing is another obstacle. A police officer will often handle tens of cases at the same time. "At the end one would have to 'prioritize' which case to attend to because you can't deal with them all." (548) Although prioritization may be a necessity, given resource constraints, the message sent is that crime among farm residents, even quite serious crime, is not important. "When a person was stabbed on the farm and seriously injured when they had been drinking, the police didn't do anything. They said they would come back for statements from witnesses but they never did. The man who did it ran away and we haven't seen him again." (549) The Vryheid-based Farm Eviction and Development Committee (also known as Isikhalo se Africa, the Cry of Africa) wrote to the KwaZulu-Natal deputy director of public prosecutions in July 2000 to complain of a series of cases that had not been properly followed up by police, several of them relating not to evictions or assaults by farmworkers, but to general assaults in the community. (550) A station commissioner in the Western Cape noted that, in cases of common assaults reported from the farms "the prosecutor often declines to prosecute all of them because they are not serious cases." (551) A white farm owner in Gauteng also noted to Human Rights Watch that farmworkers reporting crimes to the police--for which they would usually use the telephone in the farmhouse--got very poor service: "they come and take statements and then nothing happens. The police are trying to look after us because of our structures, but I don't think the black worker on the farm is getting any response." (552)
The police assert that they are wholly impartial in handling complaints by farm owners or residents. At Estcourt police station, in the KwaZulu-Natal Midlands, Human Rights Watch was told that "Every docket that comes in is personally taken by the branch commissioner who makes a note of what should be done and given to the investigating officer. There would be nothing shelved in this area; we treat people equally. Even if a case was reported against Graham McIntosh [then the Democratic Party spokesperson on land and agricultural issues and former president of KWANALU, who owns a farm near Estcourt] we would charge him." (553) Yet Estcourt is the police station responsible for the area including a farm where multiple assaults were reported to Human Rights Watch, some of which are described above, and had also been reported to the police but not taken forward.
Where farm owners and their representatives see an inadequate police response to their concerns over "attacks on farms and smallholdings," farm workers and residents often see a hostile force: "We are the victims of the farmers and the police; the farmers and the police are working together." (554) The assessment of police response does vary significantly by individual police station, or according to the officer currently in charge: "We were having OK relations with the police for some time; we would take people to the police station and ask the police to call the farmers to a meeting to negotiate. But then Breytenbach came as station commissioner in 1998, and said he would not work under those conditions. When we tried to talk to him if someone was evicted, he refused because he said we want him to work the way we want not the way he wants. The big evictions started then. In one case he was even directing the traffic so that the farmer who was evicting someone could have free use of the road. Then they removed him at the end of 1999.... The current commissioner, we do at least communicate." (555)
insist that the victim must be able to identify the assailant positively,
for a docket to be opened. This causes problems not only in murder cases,
where the victim is dead (see, for example, the case described above of
Jabulani Simelane, allegedly killed by members of the Wakkerstroom commando),
but also if he or she is incapacitated, or if an assault took place in
the dark so that identification is difficult.
We have lived
on the same farm since 1951. In 1998, my husband said to the farmer that
he was old and too tired to work any more and that his son should work
instead. The farmer said he was not interested, and the next day he wrote
a letter saying we must leave. We disregarded the letter, and after some
time he called my husband to the farmhouse, where he met three of the family,
who asked him why he was not leaving. My husband said he wanted his son
to take over the work, and then the younger brother beat him up. He told
me they were using their fists and they kicked him on his eye. He was badly
affected; one week later he had a stroke and since then to today he has
not been able to speak and his hand on one side is not working and he can't
walk. They took away our six cows on that day also. We reported the case
to the police, and they gave us a case number, but there has been no progress.
They took a statement from my husband before his stroke, and they wanted
a doctor's letter. I came back with a doctor's letter, but then they said
they needed the victim himself if they were going to go further with the
case. They came to visit him, and finding he could not speak, they said
they would wait for him to be able to speak, so that's the end of the story.
Alternatively, police may insist on an official medical report confirming an assault, even though this is not a formal requirement to open a docket. An elderly man told Human Rights Watch of an incident in which his son-in-law had been assaulted by a farmer, and later badly beaten by private security personnel who came to his house alleging that he was keeping stolen goods there. He was then taken to the local police station, where he was kept in the cells for two months and refused permission to see a doctor for his injuries. He was charged with theft and eventually released on bail. When asked if his son-in-law had laid a charge of assault against the individuals working for the private security company, the man told Human Rights Watch, "We tried to open a case, but the station commissioner said 'where have you been beaten, we can't accept that kind of case; it is better you have a doctor's letter.' My son-in-law said, 'how can I have a doctor's letter, since I was in the cells.' There is a strong connection between the security and the police, there is no point reporting anything." (557)
In some cases, parallel offenses are held to cancel each other out. A farm owner may lay a charge against a farm worker or resident who has brought a charge of assault against him, in order to obtain this result. A woman living on a farm near Estcourt told Human Rights Watch: "During 1998, [the farmer] was burning the grass for a fire break and the fire jumped to my house and burnt the roof. He didn't allow us to repair the house with more thatching; he said he didn't want people to build houses on the farm. We started arguing because I was insisting I wanted to rebuild it, and he pulled me out of my hut, pushing me up against the fence and assaulting me until he tried to throw a stone at me but I ran away. He was hitting me with a big coil of wire for fencing, he was kicking me, and he pulled my hair. I went to the doctor and to the police station; the doctor gave the police a letter, but the matter was not investigated. Some time later the police came to arrest me for cutting grass on the farm to thatch my hut and they took me to the police station in Estcourt. At the police station the investigating officer said that 'you have assaulted him and he also assaulted you, so we are not going to investigate.' They kept me overnight. I don't know if any charge was opened against me. After this incident he fired my daughter who was working on the farm." (558)
As a consequence of poor police work in cases of assaults against farmworkers, even very serious charges can take years to come to court, if they reach trial at all. Newspaper reports pick up on some of these cases. For example, farmworker Jantjie Sebako was reportedly shot in 1993 by two white men, believed to be part of a police stock theft unit, who came to his house after he asked for money that had been deducted over many years from his salary as savings by his employer, a farmer near Groot Marico, North West Province. He was paralyzed by the shooting. Five years later, no one had been brought to court for the shooting. (559) Sometimes, low amounts for bail are set for individuals accused of murder. For example, three men, Johann Potgieter, Christo Coetzee, and Joost Heystek, appeared in the Potgietersrus magistrates court in 1997 after Joyce Mbedzi, a forty-five year old woman farmworker, was kicked and beaten to death on a Northern Province farm. The three, who had been hunting, allegedly attacked a group of farmworkers returning from a neighboring farm. They were released on R2000 (U.S.$264) bail each. (560)
Watch was shown numerous letters addressed to local station commissioners,
provincial commissioners, or those in charge of prosecutions complaining
of failures to investigate or prosecute cases against farm owners. For
example, on January 13, 1999, members of the Farm Eviction and Development
Committee (Fedco), a support group, met with the SAPS area commissioner
in Vryheid to express concern at delays in investigating cases of assaults
against farmworkers. A written list of fourteen cases, including two murders
and several assaults, was handed over, and followed up by letter some months
later, when no feedback had been received. The police responded on July
7, 1999: in six of the cases referred by the police to the magistrates
court, the prosecutor had declined to prosecute, one case had been closed
as "undetected" because there were no known suspects, and in only two was
a trial due to take place.
(561) In July 2000, Fedco wrote to the KwaZulu-Natal deputy director
of public prosecutions listing many of the same cases, and requesting that
the DPP look into the failure to investigate the cases reported.
(562) In some cases, it seems that the same farm owner can commit
repeated assaults, which are never followed up by the police.
Like the police, many prosecutors are unaware of cases of assault against farmworkers in their area: "For the last year or two there have been no reports of assaults by farm owners against their workers in the Louis Trichardt area itself." (564) Sometimes this is the case even when when there have been prosecutions in such cases; assaults on white farm owners simply make a deeper impression. The control prosecutor at Vryheid magistrates court, an area where Human Rights Watch received numerous reports of assaults against farmworkers, including a murder the previous month in which the security guards responsible had been charged with murder and several others that had been reported to the police and charges laid, stated that she did not know of any cases of assaults against farmworkers being reported to the court. She was aware, however, of a few cases of farm owners being attacked and killed. (565) Similarly, the control prosecutor at Piet Retief magistrates court, the heart of the area where most brutality against farmworkers by the commandos was reported, could recall only one case of assault against a farmworker during the three years she had been at the court, though she was aware of several attacks against farm owners. She did know, however, of one charge pending against a private security company for an alleged assault on a black farm resident. (566)
A prosecutor at New Hanover district magistrates court, KwaZulu-Natal, when asked by Human Rights Watch about how the court handles cases of assault against farmworkers even appeared dismissive of such reports, "You mean a white man assaulting his employees, it is very difficult to prove these cases. Farm workers also exaggerate some of these cases. A person may allege that he had been assaulted with an iron bar and sustained serious injuries, but the person just has minor bruises. When the medical affidavit does not state that the victim sustained serious injuries, we decline to prosecute the case." (567) The prosecutor added that in some cases where farmers assault their farm workers this was, in his view, an "assault perpetrated under the auspices of an interrogation or discipline." (568) The magistrate at the same court, however, recognized that the power imbalance between farmers and farmworkers had a significant impact: "farm workers easily accept that when the 'baas' beats you, it's OK. They are so caged and solely dependent on the farm owner. Moreover, when they come to court with cases against their employers, they are easily 'grilled' by the defense lawyers and left to appear like liars before the court." (569) The court officials at New Hanover also told Human Rights Watch that some cases of violence against farm workers could not be successfully prosecuted at court because of intimidation or threats of eviction by farm owners: "Witnesses are subjected to serious intimidation by the farm owners prior to the court date. In some cases, even when witnesses appear in court, they change their testimonies because they have been threatened with eviction from the farm, if they testify against the farm owner." (570)
Where convictions are obtained, the sentences handed down have sometimes appeared grossly inadequate. In the past, suspended sentences or fines were common, even where convictions for homicide were obtained. (571) Admission of guilt fines are still common in lesser assault cases, for example at Louis Trichardt magistrates court, where they usually amount to a few hundred rands. (572) In 1997, a Free State farmer, Wessel Wessels, was convicted of kidnapping and assault for severely beating his employee, Samuel Mohapi, and chaining him to a workshop table, the previous year. He was sentenced only to a R3,000 (U.S.$395) fine (R2,500 for the kidnapping, and R500 for the assault). (573) In March 1999, a judge imposed only a suspended sentence on smallholder Nicholas Steyn after he was convicted of culpable homicide. He had shot dead a baby, Angelina Zwane, while she was being carried in her elder sister's arms across his land near Johannesburg. The judge in the case, which was heard amidst considerable media attention, found that the killing had been an accident and that the farmer had fired over the heads of the children and the baby had been killed by a ricochet. (574) The Independent Complaints Directorate (ICD), charged with investigating police misconduct, looked into police handling of the case, and recommended that disciplinary proceedings be instituted against the officers involved for failing to arrest Steyn promptly. (575) In another case, a farmer was convicted of culpable homicide in a case where he shot dead a woman walking near his farm on the West Rand near Johannesburg, and given only a suspended sentence. (576) In February 2000, Mpumalanga farmer Frederick de Beer was found guilty of assault with intent to do grievous bodily harm for painting a farmworker silver, from top to toe, for allegedly trespassing on his farm near Balfour the previous year. He was sentenced to eighteen months in prison, suspended for four years, and a fine of R3,200 (U.S.$422); his employee and accomplice, Andries Majola, was sentenced to eight months and was suspended for four years. (577)
Recently, there have been reports that some more appropriate sentences have been handed down. In August 1999, Pieter van Heerden Henning and Johann Potgieter were sentenced to prison terms of sixty-three years and twenty years, respectively, for the murder of Sibusiso Sibisi, Sipho Mkhize, and Mandlenkosi Ernest Mabaso in 1996. Mkhize was killed for calling his employer "Piet" instead of "baas" at a barbecue held on the farm; Mabaso after he tried to run away when he was shown the body of his co-worker. This trial followed a reported reign of terror by the Henning family on their farm near Dundee in northern KwaZulu-Natal, in which repeated deaths had gone uninvestigated and those believed to be responsible uncharged. (578) In September 2000, Henning's father, Cooks Henning, was found guilty of attempting to hire a hitman to kill Potgieter, who had testified against his son. In November, Pieter Henning's brother Eiker was sentenced to twenty-five years imprisonment for the murder of farmworker Ndelwa Kepisi Mgaga in January 1997 after he allegedly stole some farm tools. (579)
stiffer sentences are still not the rule. In February 2001, Parys farmer
Chris van Zyl was found guilty of assault and fined R19,000 (U.S.$2,500)
for brutally assaulting two workers for Eskom, the state electricity parastatal,
whom he tied to a motorbike and dragged around naked saying "I will show
you how I killed kaffirs." The (white) magistrate refused to declare van
Zyl unfit to hold a firearm, saying that it would amount to a passport
for those who wished to enter the farmer's property with criminal intent.
(580) Racial solidarity appears still in some cases to trump
the state's obligation to provide impartial justice and protect its citizens.
It is difficult for women farm workers and residents to access other state mechanisms for assistance. Programs and services to provide support for victims of gender-related violence are limited and mostly concentrated in urban areas. (581) In cases in which measures have been taken to bring some of these services to rural areas, the programs are ad hoc and ineffective. For example, while the police have introduced specialized units to handle crimes committed against women and children, known as Family Violence, Child Protection, and Sexual Offenses (FCS) units, these units are more established in urban than in rural areas. (582) As of September 2000, there were thirteen FCS units, thirty Child Protection Units (awaiting transformation into FCS units) and two Indecent Crimes Units (also to become FCS units) nationwide, situated in the main urban centers. Specialized individuals attached to the detective service were in charge of policing crimes against children in another 156 smaller towns. (583) FCS units based in more rurally located towns visited by Human Rights Watch were mostly fragmented, uncoordinated, ad hoc, and therefore also ineffective. The senior superintendent responsible for overseeing all FCS units told Human Rights Watch that because of a lack of resources, there were no plans to open more FCS units in rural police stations, much as she would like to be able to do so. She told Human Rights Watch, however, that plans were underway to improve existing FCS units and train more police on how to investigate cases of violence against women. (584)
The rural protection
plan initiated by the SAPS in response to rising rates of crime on farms
was not initiated with female farmworkers and residents in mind. A police
commissioner in KwaZulu-Natal told Human Rights Watch how police find out
if there are problems of rape of women on farms: "The farm owner has to
phone us; if he doesn't, then tough luck."
(585) In most cases, police will remain unaware of crimes committed
against farm residents, especially women farmworkers and residents, unless
they take measures to speak directly with the women and hear their perspectives
about the security situation on farms.
Human Rights Watch found that many police did not recognize the problem of rape of women farmworkers by farm owners, creating a false impression that such rapes were not taking place. Some police officers interviewed by Human Rights Watch held condescending views about women farmworkers. Others readily dismissed the fact that farm owners were raping their employees. They told Human Rights Watch that "no farm owner ever raped women farmworkers." (586) This assertion was contradicted by those working with farmworkers and by women farmworkers themselves, who said they or others they knew had been raped. (587)
Women farmworkers are more likely to report to the police cases of rape by other farmworkers or residents than by farm owners. Women attempting to seek police assistance, however, complained to Human Rights Watch that in these cases too they faced bias and obstruction from officials. In some cases, police dismissed complaints, either refusing to believe the woman's allegations or failing to recognize intra-family violence as a crime. Police demonstrated a simplistic and biased understanding of the dynamics of rape, a lack of knowledge and experience as to the range of circumstances in which rapes of women occur, or a lack of sensitivity in dealing with rape victims.
Human Rights Watch found that the police in rural police stations had little understanding of the circumstances constituting rape. Police officers Human Rights Watch interviewed admitted that they had dismissed complaints after finding out or suspecting that there was a previous intimate or emotional relationship between the suspect and the complainant. For example, fifteen-year-old Busani Nsingo that alleged she was raped by a farmworker at Rosedale farm in the Estcourt area of KwaZulu-Natal. The rape occurred while Nsingo was on her way home from the same farm where she had a temporary job. She reported the case to Estcourt police in May 1999. The suspect was arrested in May 1999, but the investigating officer closed the case without any further investigation after the suspect told him that the victim was once his girlfriend. (588) Similarly, the investigating officer who dealt with the case of Sylvia Malele closed the investigation of the case against Philip, the farmworker who allegedly raped Malele, his friend's wife. The investigating officer suspected Malele to have consented to having sex with Philip. (589)
In some areas,
it seems that police routinely dismiss reported rape cases without further
investigation where the complainant was allegedly under the influence of
alcohol when the incident occurred. In the Citrusdal area of the Western
Cape, police attributed the problem of rape and other crimes on farms almost
solely to alcohol. The police commissioner at Citrusdal police station
estimated that 99 percent of women on farms in Citrusdal get raped while
under the influence of alcohol. He added, "If there was no drop of liquor
in Citrusdal, there would be no crime. Often, the victim of rape gets herself
drunk to the extent that she would not even know of the incident, unless
someone else tells her about it. There is a lot of illegal sale of wine
and alcohol on the farms."
(590) Similarly, the station commissioner at Piketberg police
station in the Western Cape told Human Rights Watch that a lot of rapes
reported at Piketberg police station "were not genuine rape cases." He
Once you start
the investigation you will realize that the victim was drunk when the incident
occurred. Its only when her boyfriend or husband finds out about the incident
that she runs to open a case of rape against the person whom she had sex
with. This is not what we call rape.
In the case of Kasy Mwale, reported above, the investigating officer dismissed the cases simply because he believed the word of the suspect over that of the complainant. Thirteen-year-old Mwale alleged she was raped by a man she identified as a farmworker from Thomson farm in the KwaZulu-Natal province. She reported the case to police and her assailant was arrested. The police took Mwale to the government medical officer in Dalton for a medical examination. The results of the medical examination confirmed that she had been raped. The investigating officer however, released the alleged rapist, when he denied during questioning that he raped Mwale. (592)
Women farm workers also complained about the harsh and unfriendly attitudes of some police officers when they attempted to open cases of rape or sexual abuse. In some cases, victims of rape and other crimes said they just were sent away by police without their cases being recorded. (593) In others, victims were required to give their statements in public under circumstances which compromised their privacy and confidentiality. (594) For example, a staff attorney with Lawyers for Human Rights told Human Rights Watch that some police officers tended to "interrogate victims of rape in the reception area of the police station while talking loudly so that others waiting for attention can hear what is going on." (595)
Like the police,
many prosecutors and magistrates Human Rights Watch interviewed were dismissive
of cases of rape of farmworkers in their areas. As one commented:
We get a lot
of cases of rape from the farmworkers, but most of them are reported by
prostitutes who don't get their money. They come to court without a single
injury recorded on their J88 form [used by the district surgeon to record
injuries for use in the court case]. How can a woman be raped without even
a scratch on her body? I would never say it is rape, I believe very few
of these women. (596)
Another obstacle is a lack of easy access to medical services for women farm workers. Medico-legal evidence is especially important in cases of sexual assault to corroborate the evidence given by the victim in court. (597) In South Africa, medico-legal services are provided free to the public. Although medico-legal services are therefore accessible in terms of cost, the distances to reach government medical officers or other medico-legal facilities still preclude women farmworkers from undergoing medical examinations. In addition to the problem of transportation and the critical shortage of accessible medico-legal services in rural areas, some women farmworkers are denied permission by farm owners or managers to visit medical facilities when they experience rape. (598) The victims' failure to undergo medical examinations seriously compromises the outcome of their cases in court. (599)
Obtaining accurate information about the extent of medico-legal services provisions country-wide is difficult, since they are provided on a provincial basis, and different methods are used to calculate the services provided. However, in most cases doctors providing medico-legal services (known as district surgeons) are based in towns. Mobile clinics of the type that visit farms do not have staff capable of carrying out a medico-legal examination. Victims of rape in rural areas and farms often take a long time before reaching a government medical officer who is qualified to examine them. (600) A timely examination of a victim can yield significant evidence in rape or other sexual or domestic violence cases. Such evidence is lost if it is not recorded within a short period of time after the attack. (601)
Another problem relates to the handling of specimens collected during the medical examinations. While police are supposed to collect all specimens from the government medical officers and pass them on to forensic medical laboratories for further analysis, police often do not actually send these specimens to the forensic laboratories. A government medical officer complained to Human Rights Watch that many specimens "sit in police stations" for months and never reach the forensic laboratories for analysis. In many rape cases, the suspect is not convicted because the medical evidence is incomplete, even if government medical officers "have done their part, only to be let down in the process by police." (602)
rape often need support when they visit medico-legal facilities for examinations.
While police often accompany victims to the government medical offices,
police often "dump" victims without informing them about why they need
to undergo a medical examination.
(603) In some cases, government medical officers also carry out
the medical examination without explaining the process to the victim and
obtaining her consent to an examination for legal purposes. Programs to
assist traumatized rape or assault victims with counseling and other support
services before and after undergoing medical examinations are not available
to most women farmworkers.
Lack of resources and trained police officers also severely limits the effective investigation and prosecution of rape and other crimes against farmworkers. Mercy Ndhlela, a fourteen-year-old girl living with her mother on Mdotsheni farm in KwaZulu-Natal, was raped by an unidentified person who broke into their house while she was sleeping at night. Her mother reported the case to police but the police failed to follow-up the case due to lack of transportation. (604)
In other cases,
police could not cope with the level of crime in their area. Many police
station commissioners interviewed by Human Rights Watch complained that
they lacked sufficient and trained officers to respond to crime in general
and in particular rape and other crimes against women.
(605) For example, the Citrusdal police commisioner told Human
Rights Watch that police officers had to handle large numbers of cases
at the same time. (606)
In April 2000, the station had twenty-three police officers, including
detectives responsible for conducting investigations, to cover an area
of approximately 1300 square kilometers, including about 150 farms. Seventy
percent of the crimes handled at this police station occurred on the farms.
(607) Only one police officer at Citrusdal had attended a course
on investigating rape cases, for one week only.
(608) Similarly, when Human Rights Watch visited Piketberg police
in September 2000, there was only one female detective trained to investigate
cases of rape. (609)
If you took
the farmwatch and the reservists out of the system, there'd be nothing
left. There are some good police out there, but there are no vehicles.
The private farmwatches are vital. We have an arrest rate of 90 percent
in KwaZulu-Natal for farm murders, and though we can't say how many of
those result in convictions, we've had a couple of good results recently.
Everything is in chaos, the police, the justice system. Dockets are going
missing, and there is corruption everywhere. Some guys are doing the best
they can working in a system that is bloody difficult.
The rural protection plan has ensured that the arrest rate in cases of violent crime against farm owners or managers is very high by comparison with crime in South Africa generally. According to police information, 40.6 percent of the "farm attacks" reported during the first six months of 1998 had already led to arrests by July of that year. (611) For "attacks" on farms rather than smallholdings, the arrest rate is higher, estimated at up to 80 or 90 percent. (612) Key to this success, at least in some areas, is the rapid response time of the farmwatch and commando system: "Cell members invariably arrive on the scene long before the security forces." (613) Part of this speed of response is due to regular patrols: in one case in August 2000, for example, burglars broke into a house one Sunday morning, apparently believing it was empty, and attacked an elderly woman, chopping off four of her fingers and breaking her pelvis and her arm. Even so, she was able to hit the alarm. Within a few minutes, members of the farmwatch were on the scene. One of the perpetrators was caught in the house, one in the getaway vehicle, and one an hour later; two more were arrested a few weeks later. (614) Speed is crucial to the chances of apprehending a suspect. As a study by the Institute for Security Studies noted, "Senior police management in the area [Piet Retief] openly acknowledge that, when a suspect is not apprehended within a couple of hours of the attack, the chances of making an arrest are close to zero." (615) However, where local police detective units are effective in following leads, especially outside their area, it can also make an important difference. In Greytown, where 74 percent of "farm attacks" result in arrests, the rapid reaction unit operating from the "911 center" is responsible for the arrests in only 35 percent of cases; the remainder result from standard police detection work. (616) In the Utrecht area, northern KwaZulu-Natal, the police, rather than farmwatch or commando units, have arrested suspects after the few murders of farmers that have happened in the district. (617)
There is some acknowledgment of government attempts to improve the response to the threat of violence against farm owners from organized agriculture. One farmer, formerly responsible for monitoring security issues for the KwaZulu-Natal Agricultural Union (KWANALU), noted that "The rural protection plan isn't perfect, but it has gone a long way." (618) Another representative of KWANALU commented to Human Rights Watch that "the rural safety plan has been successful in terms of building relationships with the police." (619) He added, however, that "the main beneficiaries have been those farming areas that have of their own accord achieved a high level of organizational capacity around crime containment," which excluded the areas where the union's small scale members predominate (that is, the former homelands). (620) Lourie Bosman of the Mpumalanga Agricultural Union, though critical of the government on this issue, in particular of the slowness of police response to many cases of violent crime against farm owners, acknowledged that "Where farm attacks take place it is one of the areas, funnily enough, where police are doing their utmost to solve those cases. I don't have examples where they have not been followed up." (621)
Generally, white farmers' representatives consider the government response to be inadequate: "The government response has been zero, a little bit of lip service but nothing happened after that. The rural safety plan is just an academic exercise, a coordinating mechanism, but there are no proactive plans. The feeling is that it is not a priority for the government. You can see that if there is a human rights problem where a laborer is involved the minister is there, but if a farmer is killed there is no response. The whole story creates mistrust. Our message to the farmers is that if you don't protect yourself then no one else is going to do it for you." (622) The Transvaal Agricultural Union has called for farmers "to behave as if a national state of emergency is in place," accusing the government of "a lack of will ... to look after the safety of farmers." (623) Others call for equal protection of the law, in accordance with their rights under the constitution: "The point is that farmers should not be seen differently from any other section of the community; all of us deserve the protection of the rule of law and that is what we are demanding." (624) From the police side, there is frustration at the harsh response of organized agriculture to the best efforts of the service: "The farmers have unrealistic expectations of what the security forces can do; they would like to see a member of the police permanently stationed at each farm, which is impossible. We have a problem of resources." (625)
Many white farmers feel that the police service has deteriorated since 1994. (626) Commercial farmers are used to privileged treatment, and--perhaps inevitably as the police have taken on duties to the wider community, while farm owners have faced a real threat of violent crime for the first time--farmers perceive that their problems now receive less attention: "The quality of police services have gone down tremendously. That is why questions are being asked. There are many incidents where dockets are removed, people are not prosecuted, or the police don't even have the facilities to come to the crime scene." (627) Others are more explicitly racist: "Affirmative action is the biggest problem. You take a tea girl and give her a rank. We don't want to lower our standards, and you are putting people in place who can't write a statement." (628) Dave Carol, the driving force behind the Greytown 911 center, noted frankly that "there is a lack of confidence in the police. People feel that the police force has become more black than it was--and in South Africa we have reservations when dealing with the other race color. Though I think it will break down, if we can build more trust." (629) Indeed, in one case, a white farm owner and commando member noted that his relationship was better with the new black station commissioner than with his Afrikaans-speaking predecessors. (630)
The most common complaint is of poor police response time. According to a representative of a private security company benefiting from this frustration, in one case the police had arrived a day after a burglary happened: "The farmers have a lot of complaints about the police; they are not answering the phone at night, and then you can't get through during the day, or they say they have no vehicle. So most farmers are phoning us first; though we also contact the police to let them know what we are doing." (631) Farmers belonging to the Northern Natal commando based in Vryheid commented to Human Rights Watch, "There aren't any police in South Africa. When you phone them, it takes two, three, four hours, a week, to respond. Their excuse is no vehicles, but some are drunk on duty, or they don't answer the phone. And if you speak a little hard to these people you are accused of racism.... We don't see anything from the rural protection plan. We pay ourselves to protect ourselves against criminals." (632)
And yet the
same group of people, when asked to tell of particular cases where the
police had been slow in responding, were unable to do so. Of seven "farm
attacks" since the beginning of the year, at least four had resulted in
arrests. One farmer, who had been the victim of a violent burglary, stated
that he "couldn't fault" the police in their response:
We were attacked
by persons unknown. They waited for us to drive off the farm and then held
us up on the road and forced us to drive back to the house and open the
doors. We opened the safe and everything, and then they tied us with wire.
They were dressed military style; one in brown, another in uniform. When
we got free we radioed a neighbor. The neighbor came over and alerted other
neighbors, the police, commandos, everyone. But by that time they had got
away, and nobody was caught. The neighbor was there in five minutes, the
police dog unit in about half an hour, and the last police about two hours
there is recognition of policing efforts among white farmers, there is
a strong sense that the criminal justice system generally is failing: "The
police and the commandos are overwhelmed, they try their best and we are
grateful, but then if a suspect is caught he does a short period and then
is out again. There may be arrests, but there are too few convictions,
and they stay there too little time."
(634) In other cases, victims of violent crime commented that
the police responded professionally enough in the first case, but then
little was done to find the perpetrators if they were not caught at the
It took us
about half an hour to untie ourselves. The phone lines had been cut. They
hadn't been able to start my wife's car, so I took it and phoned the police
from a neighbor. They were here very quickly, within half an hour. They
were very professional, I must say, we were well handled. I guess because
we are high profile people around here. They took a lot of statements.
But we've heard nothing since then. I've phoned a couple of times, but
they say they are still investigating, and the firearms have not been recovered....
They never even spoke to my workers. I have the feeling that they felt
that they'd done their duty when they came and took the statements. The
initial response was good, but then there was no follow up; they didn't
even take up the offer of my wife, who is an artist with a very good visual
memory, to draw up an ID kit.
The high arrest rate in cases of violence against farm owners is seen as little comfort: "What concerns us about the farm attacks is the justice system. In over 90 percent of cases the perpetrators get caught, but then what is worrying are the escapes and the cases not being followed through. The absence of a deterrent factor of being caught and punished is worrying." (636)
In this context, many feel it is understandable if farmers take direct action outside the structures of the criminal justice system. Responding to a survey of commercial farmers conducted on behalf of Agri-SA in early 2001, 65 percent "agreed" or "wholeheartedly agreed" with the statement that "famers will take the law into their own hands if farm murders are not curbed." (637) Graham McIntosh, when president of KWANALU, commented in an interview that, "What is needed is not just that the government should provide greater security and the rule of law in the countryside but that it should provide leadership and education.... It is simply irresponsible for them to say nothing or to half justify what is going on. You can't be surprised if farmers take the law into their own hands in such circumstances." (638) Though deploring such responses, McIntosh said he could understand why "many people will simply shoot first and ask questions afterwards," adding that "farmers can get away with this now if they simply say that the man was attacking them. The police will lay charges, of course, but on the charge sheet they will put down self-defense and nothing much will happen." (639) Individual farmers have been even more forthright: "We must run after them because next time they will come back and kill us.... Let me tell you, if there is someone to be caught I will help to catch him, and if he is running away I will shoot him." (640) Several farm owners stated that cases alleging assault against farm owners seemed to be more enthusiastically prosecuted than those against the person assaulted, accused of committing a crime: "There was a case where poachers were caught redhanded. They were assaulted, which is wrong. But then the poaching case was dropped, and the assault case continued." (641) One Vryheid farmer seemed genuinely bemused that he had been charged with assault when, after some "gentle persuasion," a young man resident on the farm that he said was known to be a thief confessed to stealing from the farm shop but complained to police about his treatment. Another asked, "What is an assault? If we discipline our children, is that assault? If we discipline our laborers, is that assault?" (642)
Others feel that the bill of rights in South Africa's constitution gives too many protections to those suspected of perpetrating crime: "You can protect yourself only if your life is threatened, if there is no other way but to shoot, and in the South African situation with isolated farmhouses it is very difficult to abide by the law.... The law is in favor of the criminal, not the ordinary citizen." (643) In one case, two people had been caught after they broke into a farmhouse. Both of them escaped out of prison and within a month went back to the same place and robbed it again, taking the safe while the owners were away. Only one was rearrested. "The criminals see that whatever they do they will pretty much get away with it." (644) This belief, shared by many South Africans, has led to the rise of vigilante groups such as Mapogo a Mathamaga. In October 1998, as part of a nationwide week of protest, KWANALU handed a petition to the KwaZulu-Natal secretary for safety and security, calling for a state of emergency or proclamation of martial law, and arguing that criminals enjoyed unprecedented rights in terms of the constitution, while victims' rights were ignored. (645)
deepest concern of farm owners is a sense that, despite the Rural Safety
Summit and other assurances from the government, they have effectively
been abandoned by the new non-racial democracy. White farmers interviewed
by Human Rights Watch repeatedly complained that the government paid more
attention to "isolated" assaults on farmworkers rather than ongoing white
There is a
perception of racism in the government's response to farm attacks. Even
for minor incidents on farms where the victim is black the minister will
go and visit, but there have been 924 white farmers murdered since 1991
and the minister has never visited. Not responding to these attacks means
a condonation of what is happening.... We launched a campaign to 'stop
farm attacks' earlier this year and asked the government to condemn farm
murders, but there have done nothing since the October 1998 plan of action,
which is just a piece of paper.... If they do have the opportunity they
say it is wrong, but then they also say farm owners must stop torturing
laborers, and we think it is just a predetermined piece of propaganda.
The government is now in power and must be there for all its citizens,
but we see they are there for their supporters only.
In February 2001, labor minister Membathisi Mdladlana was strongly criticized by opposition parties for warning farmers in a comment shown on television to "adapt or die," which they asserted could be interpreted as hate speech, against the background of violent crime against farm owners. The Democratic Alliance said that "under the circumstances, Minister Mdladlana's statement can only be seen as an instigation for farm killings." (647)
Yet the ANC has issued statements condemning violent crime against farm owners. The October 1998 Rural Safety Summit was a more high profile response to "farm attacks" than any similar initiative focusing on black farm residents. Although government officials have condemned assaults on farm residents, they have also continued to speak out on violent crime against farm owners. In September 2000, for example, the Western Cape ANC stated, following the killing of a farmer in Klapmuts, that the party was "deeply shocked at yet another killing and robbery of a farmer in our province." After calling on the community to assist in finding the killers, the statement went on "The ANC is deeply concerned at attacks on farmers in our province. The whole issue of security for our people on the platteland needs urgent attention. We need to join hands with those in the landbou [agricultural] sector and develop new ways of creating a safe environment. The decisions taken at the national summit on farm security must be actively implemented." (648) Similarly, in October 2000, Minister of Agriculture and Land Affairs Thoko Didiza addressed the Agri-SA annual congress and called on landowners to work with the government to create sustainable rural communities and end arbitrary evictions. "Let us with equal vigour denounce the continuing farm killings that are overtaking our country. Farm murders and evictions show a lack of recognition of another's dignity and humanity." (649) Deputy President Jacob Zuma stated in response to an October 2000 parliamentary question that the government continued to take very seriously the issue of violent crime against farm owners, and condemned racist and inflammatory statements by any politician. (650) In November 2000, safety and security minister Steve Tshwete stated, in response to allegations that the government gave higher priority to white police brutality against blacks than to the murder of commercial farmers, that "we are deeply worried about this wave of farm murders. We want to warn the perpetrators that we are going to pursue them vigorously, wherever they want to hide." (651)
2001, Tshwete agreed to commission further independent research into the
motives behind crime against farm owners, and in April 2001 a former attorney-general
of the Northern Cape was appointed to chair a seven-person committee investigating
such crime. (652)
While this announcement was welcomed by Agri-SA, the Transvaal Agricultural
Union threatened again that farmers would take "drastic action" to protect
themselves if the government did not stop murders of farm owners.
(653) In February 2001, Tshwete announced to parliament that
the government would purchase four new helicopters to fight rural crime,
and expand the capacity of the commandos. The announcement was welcomed
by Agri-SA, though TAU said that only security forces on the ground could
stop murders being committed.
Many farm residents have been unable to benefit from the laws intended to protect them from eviction and give them other rights because they cannot afford or otherwise obtain legal assistance. South Africa has a legal aid system, administered by the Legal Aid Board, an independent statutory body established under the Legal Aid Act (No. 22 of 1969). In recent years, the system has virtually collapsed, though efforts to revive it are just beginning to be put into effect.
Before 1994, the expenditure of the Legal Aid Board was, like other government expenditure, mostly directed to white recipients. After 1994, the demands on the system increased substantially, as South Africans invoked constitutional rights to legal representation at state expense, when they are in detention or accused of a crime, "if substantial injustice would otherwise result." In most cases, the board paid private legal practitioners to represent individuals on a case by case basis (known as the "judicare" system); though there have also been experiments with a public defender system, and support to legal aid clinics at universities. By 1998, the Legal Aid Board was in crisis, weighed down by increasing demands on legal aid funds and suffering administrative collapse. In January 1998, a "national legal aid transformation forum" convened by the minister of justice recommended the appointment of a "legal aid transformation team" to propose long term reform. In the meantime, the forum recommended that the amount spent on legal aid through the judicare system be substantially reduced, and that a national infrastructure of legal aid centers be established as soon as possible to replace the expensive and inefficient judicare process. The transformation team subsequently endorsed these recommendations. As a crisis measure the Legal Aid Board decided in November 1999 to make severe cuts in the rates paid for legal aid work, to a level most lawyers considered uneconomic. Other accounts submitted by lawyers were simply not paid.
In late 2000, the government finally approved the appointment of a new chief executive officer and other management positions at the board. The new officers, who started work in February 2001, have the brief to establish the proposed national system of legal assistance for the poor through one-stop "justice centers." (655) The first of these centers opened in Benoni, Gauteng, in February 2001; the first in a rural area in Phuthaditjhaba in the eastern Free State in April 2001. (656) However, the justice centers will handle mainly criminal matters, and a ceiling of 15 percent has been placed on the amount of civil work (including eviction cases) that each center is authorized to handle. (657)
collapse in the legal aid system has severely affected farm residents faced
with eviction, as many lawyers have not been prepared to take cases under
the Extension of Security of Tenure Act and the Labour Tenants Act. Those
organizations that are still able to offer some assistance since they have
other sources of funding, such as the Legal Resources Centre, an NGO, are
Officials working for the Department of Land Affairs have also come under
pressure. "The legal aid crisis has had a huge impact. The inability to
act once people have been informed of their rights by DLA campaigns has
meant that a far heavier burden has fallen on DLA officials; we have acquired
a paralegal function in adjudicating cases, for lack of any other alternative.
People start distrusting government because we can't do anything to protect
their rights in practice. We have set up training for lawyers on the land
legislation, a legal roster; everything is in place. But we are constrained
by finance." (659)
According to those supporting farm residents facing eviction, farm owners
have taken advantage of the collapse of the legal aid system to carry out
illegal evictions: "Since the farmers have seen that the Legal Aid is no
longer helping the workers they have been pushing to evict people. Innocent
people with no homes are driven out."
During the negotiations that led to South Africa's first elections on the basis of universal suffrage in April 1994 and the transition from a minority regime to a democratically elected government, much emphasis was placed on the need for new constitutional arrangements to ensure that the human rights abuses of South Africa's past could not be repeated. The interim constitution, which was adopted in December 1993 and came into force following the elections, accordingly provided for the establishment of a range of bodies to monitor government compliance with human rights standards. Chapter 9 of the final constitution, which was drafted by the parliament elected in 1994 sitting as a constitutional assembly and came into force in February 1997, confirmed the position of the South African Human Rights Commission (SAHRC) as one of the "state institutions supporting constitutional democracy," along with the Commission on Gender Equality, and other bodies. (661)
The Human Rights Commission Act, No. 54 of 1994, came into force in September 1995 and the commission held its inaugural meeting in October 1995. (662) The Commission on Gender Equality (CGE) was formally established on April 1, 1997. (663) In accordance with their constitutional independence, both the SAHRC and the CGE report their findings directly to parliament. Most other government-funded local and provincial women's programs, for example, report rather to the Office on the Status of Women (OSW) in the office of the president. (664)
Among other issues, the SAHRC has examined the failure of the criminal justice system to protect the rights of particularly vulnerable groups of people in South Africa, including farmworkers. In an initiative led by the South African National NGO Coalition (Sangoco), the SAHRC and the Commission on Gender Equality held hearings on poverty throughout the country in early 1998. Following on from the poverty hearings, the SAHRC held hearings in August and November 1998 in the Messina area of Northern Province about abuse of farm workers in the region. In February 1999, it released a report in which it referred several cases to the provincial director of public prosecutions for further action. (665) The report was, however, criticized by NGOs for being too legalistic, rather than examining the systemic issues under consideration. (666) In June 2001, the commission launched a year-long national enquiry into the human rights situation in farming communities. (667)
The CGE has produced a "Working Women's Manual," a publication that targets domestic workers and women farmworkers who are within the lowest paid sectors of formal employment. (668) In 1999, the CGE worked with the Centre for Rural Legal Studies to assess the government's compliance with CEDAW in relation to the labor rights of women farmworkers in the Western Cape, and carried out similar studies in KwaZulu-Natal and Northern Province. (669) However, the CGE was unable to complete this joint survey, due to budgetary constraints and internal difficulties within the commission. (670) In an interview with Human Rights Watch, the CGE's deputy chairperson commented that rape of women farmworkers by farm owners is "a layer of abuse that tends to be ignored," but that the commission was prevented by lack of resources from giving it the attention it deserves. (671) As of September 2001, the CGE had five provincial offices, including Gauteng. Most of the provincial offices were seriously understaffed and could not function properly in accomplishing their expected goals. (672)