Human rights lawyer says cops at times abandon the law when enforcing Immigration Act
|Published
Pretoria - Renowned human rights lawyer, advocate Gabriel Shumba has weighed-in on this week’s arrest of at least four Boksburg-based members of the South African Police Service (SAPS) on charges including assaulting and torturing a foreign national who could not produce his documents.
On Friday, the Independent Police Investigative Directorate (Ipid), which arrested the four at their workplace, said the accused police officers were in court.
Shumba told IOL that in enforcing South Africa’s Immigration Act, police officers have the right “on reasonable grounds” to request to see identification from community members.
“Section 41 of the Immigration Act of 2002 gives the police and immigration officials the power to request identification on "reasonable grounds" that a suspect is an illegal foreigner or a non-national.
“What is reasonable or not reasonable depends on the circumstances of each case. There are exceptions in that if the officials do not properly identify themselves, there is no obligation to comply,
“This power must also be exercised on the basis of reasonable suspicion, not arbitrarily or based on xenophobia and discrimination because if that happens, such action becomes unconstitutional and ipso facto reviewable,” he said.
Shumba said in other countries, the requirement for people to carry identity documents at all times has been declared unconstitutional and irrational.
“Identification should just be easily accessible when needed. This is of course different from a driving licence which has to be present when one is driving.
“In the main, proper procedures have to be followed, but unfortunately, there are reports of police destroying asylum documents and carrying out unauthorised stoppages, searches and detention,” he said.
Some residents of Pretoria have complained of “humiliating” random searches by members of the SAPS, who are also accused of demanding bribes.
“There is need for more education and training in order to cultivate a more human rights-friendly police force so that we wean ourselves from our apartheid past.
“There is absolutely no excuse for assaulting a suspect, unless there is resistance and the force used is proportionate to the threat,” he said.
The Nigerian Consulate in Joburg has welcomed the arrest of the four police officers who allegedly assaulted and tortured a Nigerian national identified as Clifford Iroka Onyedikachi.
The diplomatic mission said the torture of the Nigerian resulted in his hospitalisation and he remained in a coma for nine days, before he eventually regained consciousness.
Earlier this week, the Pretoria News reported that overzealous conduct of police officers in arresting a Congolese national on unsubstantiated charges of being unlawfully in the country and fraud, will cost the taxpayer dearly, after he turned to the courts.
The court ordered the police to pay him R300 000 in damages.
Geophonse Mabiala, who hails from Brazzaville, turned to the Western Cape High Court after he was unlawfully arrested and detained for a week.
He arrived in South Africa in 2004 and he held a lawful asylum-seeker permit to remain in the country. He worked as a firefighter and also studied in South Africa.
In June 2013 he went to a public service kiosk at the Cape Town Station, manned by the SAPS, to make an affidavit before a commissioner of oaths so that he could lawfully exchange the SIM card on his cell phone.
In the process of deposing the affidavit, it came to the attention of the SAPS officer on duty that he was a foreign national.
Believing that Mabiala might be an illegal immigrant and had fraudulently used a document to verify his identity, the SAPS officer ordered him to remain present behind the counter at the booth while the status of the document was verified with Home Affairs.
He was subsequently arrested and taken to the police station, where he was held. Mabiala was taken to court later, where the charge of being illegally in the country was dropped. He was, however, further detained for a few days on a charge of fraud, as he had an ID-size document in his possession, stating who he was and with the official stamp of Home Affairs.
The police said they believed this to be fraudulent, but it later turned out that Mabiala had legally obtained this document from a Home Affairs office.
Mabiala testified that he usually carried his permit in his wallet, but when he opened it that afternoon at the kiosk to take it out in order to verify his identity, he discovered that he had left it at home.
He explained that he also had a small, credit-card sized document issued to him by Home Affairs. He said that as he opened his wallet, a police officer spotted the card, grabbed it and accused him of being “a Nigerian fraudster”.
He protested his innocence, pointing out that he was from the Congo, had no criminal record, and that he had a permit to be in South Africa. According to him, he offered to fetch his permit at home, but the police were not interested. He was, instead, thrown in a police cell for a week.
The SAPS, on the other hand, insisted that he tried to use the Home Affairs card as proof of his identity. They insisted that this card was fraudulently obtained.
It later transpired that all was above board and charges were withdrawn.
He, however, had to endure a week in a tiny, filthy police cell, with very little to eat. He also told the court how his life was threatened by members of a notorious gang, with whom he had to share his cell.
Judge Patrick Gamble concluded that R300 000 was a fair compensation for the hardships Mabiala had to endure.
IOL