Problems of deliberate police inaction in the face of criminal thuggery were often reported in the mining areas of Mpumalanga, according to the province’s Judge President, Frans Legodi. In a new decision dealing with two cases before him, Legodi said the problem raised by these cases was far from unusual.

It had become a feature of the weekly urgent motion roll that urgent applications were made accusing the police of refusing to intervene even when faced by ‘clear criminal activity’, unless they were given a court order directing them to act. Such an attitude by the police would be wrong and would encourage lawlessness, he said.

When the same allegations were made in the two matters before him, he had granted the urgent orders sought, but also ordered supplementary affidavits to be filed. Now that he had read the additional material, he had found it necessary ‘to write a judgment dealing with the complaints made against the police’.

One company, iMpangele Logistics, is a transport company that moves coal, chrome, lime and sand, among others. The second is Mbali Coal, based in Witbank. Both complained of interruption to their work, hijacking of their vehicles, threats to staff and other illegal activities. In the case of iMpangele Logistics, members of the All Truck Drivers’ Foundation (ATDF), targeted their trucks and staff. This was part of their demand that all ‘foreign’ drivers should be barred from driving trucks. ATDF members impounded, detained or otherwise obstructed trucks; they trespassed onto the property and threatened to burn and damage the vehicles.

A number of photographs were included for the court, showing that the SAPS were at the scene but did not act even when it was obvious that the ATDF members were hijacking vehicles. Also shown in the photographs, taken from inside the truck cabin, were armed members of the ATDF in the act of forcing the driver to block the road. Another photograph showed a driver, who refused to give in to the ATDF threats, being threatened while his truck was stoned and the windscreen damaged. The last picture mentioned by the court shows two people driving in the truck cabin. Neither is an employee, and one was armed with the same weapon used to hijack the truck. These were all clearly criminal activities, and should have been acted on as a priority by the police, said the JP.

Reacting to the reported comments by the police that management should first get a court order before the SAPS would act, Legodi said it was not the responsibility of the courts to ‘prevent, combat and investigate crimes’. Nor was it the function of the courts to ‘maintain public order, secure the inhabitants and their property’. The Constitution gave this power to the police.

One affidavit spoke about approaching the police at the Middelburg police station in connection with another incident, but the police ‘simply refused even to open a docket and investigate the matter’. Someone was not doing their job, said the judge and it was necessary that the provincial police commission investigate the complaints raised in these two cases.

Repeated hijacking of trucks was not surprising. The ATDF got away with taking the law into their own hands in August 2019 and so they did the same in September, ‘still with no consequences’. In his opinion, if police stood back and took no action it promoted crime instead of combatting it.

The Mbali case was no different. Again, a large group of people threatened people, damaged property, equipment and vehicles. When management asked the police to intervene, they were told that they were short-staffed and without vehicles. The staff and vehicles were said to have gone to Ogies to ‘control unrest’ there.

It had become common for police to refuse to help, citing inadequate resources, said Mbali management. It was also common for police to refuse to arrest the perpetrators, even when they were identified. Mbali therefore asked that the court should ‘encourage’ the stations commanders of SAPS to ‘perform their duties’.

Legodi said letting people take the law into their own hands on the grounds that there were too few staff or vehicles would ‘never be a justification in law’. Contingency arrangements had to be made in time of need.

As for ‘encouraging’ the police to do their duty, the court was mindful of maintaining the separation of powers. It was for the provincial commissioner of SAPS – and not the courts – to encourage members to do their duty. ‘It is for this reason that these matters have to be brought to the attention of the commissioner.

Legodi said there was clearly a cry for help by those for felt the police were not doing their job, and he hoped the provincial commissioner would hear it. He ordered that his judgment should be brought to the attention of the commissioner who would then consider an inquiry.

Judgment

– Carmel Rickard from Legalbrief.