Dr Lennit Max: To save SAPS, purge the politics…

The only way to save the South African Police Service (SAPS) is to “sanitise” it from political interference and put proper management in place. So says former Western Province Provincial Police Commissioner, Dr. Lennit Max. He points out that currently, the National Commissioner, his deputies and the nine provincial commissioners are black. He says in terms of current regulations, the National Commissioner can only appoint from Major General upwards in consultation with the Minister. “that… is in itself political interference where the Minister must agree to an appointment”. Dr Max describes a breakdown in trust between Minister Senzo Mchunu - now on special leave - and National Commissioner Fannie Masemola - and says one of them will have to leave otherwise it will “affect the rest of the police and ultimately negatively affecting service delivery to the people”. He estimates that public trust in the police has dropped below 20% following the explosive allegations of police capture made by General Nhlanhla Mkhwanazi. Dr Max also outlines the various legal mandates of the police as SAPS faces civil claims of more than R14 billion for unlawful arrests and detentions and another R741 million for shooting incidents involving members of the public..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..Watch here.Listen here.Edited transcript of the interview.Chris Steyn (00:01.579)The South African Police Force faces civil claims of more than 14 billion for unlawful arrests and detentions and another 741 million for shooting incidents involving members of the public. We speak to former Western Province Provincial Commissioner, Dr. Lennit Max. Welcome, Sir. Dr Lennit Max (00:24.334)Good morning. Chris Steyn (00:27.275)Well, I think you know a lot about the use of force by the police and abuse of police powers. You did that thesis for your doctorate. Dr Lennit Max (00:39.254)Yes, of course, Chris, thanks for the question. Let me say, you know, it is regrettable to see that the police, you know, have so much so many claims against them for things they could prevent. Now, my thesis, doctoral thesis was about the reason for the police's use of excessive force and the dwindling confidence in their ability to protect human rights in South Africa. Now, the police is, in terms of the Constitution Section 205.3 mandated to use force. Meaning that three states that the police should enforce the law and protect the citizens of this country in their property. Now once you enforce the law you get some resistance and you can use force. That is what the constitution put that obligation on the police to create a safe environment for the citizens of South Africa and in doing so they might use force. But that force is not unlimited. The force is regulated by Section 39 and Section 49-2 of the Criminal Procedure Act, which regulate that force to what extent can the police use force. That means that once the police use force, there's certain criteria that they have to comply with. First, the use of force must be necessary, it must be reasonable, and lastly, it must be proportionate to the threat. Now it means in simple terms that you can't use a sledgehammer to crack a nut. You understand? So as simple as that. So there are cases before the criminal procedure was amended in the old pre-democracy, that the police could kill somebody who just stole a lemon or orange because it falls within the criteria of Schedule One of the Criminal Force Act. Dr Lennit Max (03:03.936)So, and it was problematic. There were two cases which actually led to the amendment of the criminal procedure. And it was the Walter case where the son and father cornered a thief in the shop and he ran and they shot him and killed him. And the other one was the Govender case where the police officer chased a youngster with a stolen vehicle. The youngster jumped out and he ran away from the police and the police shot and killed him. Now the SCA at the time before the Constitution Court actually intervened disagreed with the Court of First Instance to say that the crime was committed within the schedule and the Police Act within the time frame of their responsibilities and within the confines of the law. So they said no, there must be a threat towards the officer or towards other people. If the person runs away, there's no need to kill him. However, there is an additional requirement to give permission to the police that in instances where somebody runs away but still have the risk to endanger other people, then the police can shoot. But if the police can arrest that person on another day at another event without killing or shooting at that person, then the police must follow that option. So it is a critical thing. And as you know, that the police officers who's been enlisted, they've got only a Matric certificate. Now, judges in this country, even the Chief Justice, they don't have the authority in law to impose the death penalty. But here, responsibility to take a life is then cascaded down to a Matric, or even less Matric in law enforcement, to decide… Dr Lennit Max (05:29.546)…when to take a life. In a split second, once their lives are under threat or other people's lives are under threat and they have to act and they use their weapons and they shoot and might kill that person. But you see it is very difficult for that person because the judges can take months, even years to decide whether that police officer acted within the confines of the law and did not exceed the limitations of the use of force. So it's a very precarious situation and these police officers and law enforcement in general finds themselves…but on the other hand, we must not allow as ordinary citizens, there's a lot of criticism in the KwaZulu Natal where people got killed and so on. And it's also clear, it's common cause, that the community celebrated those killings because they are sick and tired of criminality. But the problem is that there are also those who criticize it. But we must be careful that we don't place our...theoretical and sanitizsed world of our imagination to replace the difficult and complex world that the police are facing on a daily basis. That is very important. Now, that in 2021-22, financially, the police had outstanding civil claims of 112.1 billion rand in total. Dr Lennit Max (07:24.694)Not one financial year, that financial year and all other outstanding financial years, claims together was 112.1 of which a significant amount of that civil claims was for unlawful arrest and detention, assault and killings of people. So, and that place a a huge burden on the police financial resources. And as you actually indicated that 14 billion was for the 2023-24 financial year, you know, instituted against the police. But it's not to say that the whole amount is going to be paid out because there are negotiations, are some sort of bargaining, you know, settlements discussions for lesser amounts to fast track the finalisation of the civil claim. Now, that is so that police officers act within the scope of their employment. They then create a vicarious liability. The police have got a vicarious liability because of those police officers who acted in the scope of their work and responsibilities. But as a result of these unlawful arrests and detention, the question which arise is how much trust got the police in them from the trust in the police. Now in 2021, the Human Science Research Council survey indicated at that stage, the trust in the police was 27%. And last year in the 2024, yeah, 2024, the Human Science Research Council survey indicated that those 27% decreased to 24%. And that was even before those Mkhwanazi llegations. Now you can imagine. Now, that's right. So, that's right. Well, what I wanted to say is, Chris Steyn (09:32.791)Sorry to interrupt you, General. I want to go to those allegations now made by the KwaZulu-Natal General, Mkhwanazi Dr Lennit Max (09:46.766)You can expect that as a result of those allegations that public trust in the police is less than 20%, 22% as indicated last year. Yeah, as far as the Mkhwanazi i issue is concerned, it's very serious allegations. You must understand we are used to… as a new normal that the police are involved in corruption. But in this case, the allegations involved the judiciary as well. So that made it very very problematic and on the other hand he referred to a cartel which is now infiltrating the criminal justice system and you must understand that South African Police Service is the primary entry point to the criminal justice system and if and then if if something things goes wrong in the police that it does have a domino effect on the rest of the criminal justice system. So it is very important that these allegations are properly investigated and find that whether there is any substance to it, whether there is prima faca evidence which needs further investigation and the whole issue should be dealt with thoroughly without fear. Yeah, so all eyes are actually on this commission who's actually appointed by the President to see what is the outcome thereof. Chris Steyn (11:29.323)Meanwhile, what do you make of that letter written by the Police Minister - now on special leave -to disband the Political Killings Task Team? Dr Lennit Max (11:39.404)You know, the letter which was circulated on social media and purports to be the letter coming from the minister Mchunu is in my view a bit confusing and problematic in the sense that I studied the letter and nowhere in the letter could I find that the minister refers to that he received a briefing by this Political Killings Task Team, which put him in a position to evaluate them and to assess them whether they are still productive or not. And then the mere fact that they wrote the letter to instruct the National Commissioner to close it, I think that was actually an operational interference in my view and the Minister in my view acted beyond the purview of his responsibilities. You must understand that the Minister's powers arise from section 206.1 of the Constitution which states that the Minister is responsible to develop policy consulting with the nine emissaries in the country in the provinces and then develop a policy. Now the policy which means it's a policy, a document which has been drafted and placed before Cabinet, discussed and approved. That is policy. Policy is not a letter which you send out to follow. On the other hand, Section 207.1 states that the President, the head of State, can appoint a man or woman as National Commissioner to control the police. It means management as well as operational functions. And that is the responsibility of the National Commissioner. Now, what is problematic with that letter? The National Commissioner, once he was interviewed about certain operational and management issues, and he was questioned about this letter and the closing of the Political Killings Task Team… Dr Lennit Max (14:05.738)…and he said that he did not give any instruction for the closing thereof. He didn't sign any letter. That was more or less his words. Now, in other words, he defied the Minister and ignored the Ninister's instruction, which is instruction. Now, that create problems in itself. It appears the fact that the National Commissioner didn't act against commissioner Mkhwanazi, Lieutenant-General Mkhwanazi, inferred that he sided with General Mkhwanazi. He supported his view because there's no action taken for the press conference which is unprecedented of police officers, you know, conducting such press conferences. Now the refusal to execute the instruction of the Minister or the request, whatever way you interpret it, creates a problem of a relationship, trust relationship between the Minister and the National Commissioner. Now, the national commissioner is now temporarily on so-called special leave, which is in the powers of the President to place the Minister on special leave. Now, my question is, if the Minister comes back, the two of them is not going to work together properly. The one is not trusting the other one. Now, my view in this instance is one of them have to leave. Dr Lennit Max (16:06.114)They have to leave. One of them has to leave. Either it's the Minister who's not returning and the new Minister become permanent or the Minister returns and the National Commissioner and Mkhwanazi exit. So that either one must happen. One of those things needs to take place because if you put the Minister back and the National Commissioner in his office, as a result of this irreparable trust relationship, it will affect the rest of the police and ultimately negatively affecting service delivery to the people. So the President at that stage have to decide once he get his preliminary report from the Commission to decide what actions needs to be taken with regards to this particular situation But you must understand that even criminals in this country got rights. And so does the Minister Mchunu got rights. And the President, within his power, have to make sure that there's procedural and substantial fairness in dealing with the Minister. So the courts are very clear that political parties are not above the law: they have to comply with the rules of natural justice. And I think, and that is what the president actually is doing. Therefore, I place the Minister on special leave. And on the other hand, you wait for the report to come in order for him to decide what is the relevant and necessary action to be taken. Chris Steyn (17:57.813)What do you think of the acting Police Minister, Mr. Firoz Cachalia? Dr Lennit Max (18:03.914)In my view, he was a MEC for Community Safety in KwaZuluNatal. And I monitored him at that time. And I think that he got experience with regards to the police or not on the national level, but at the provincial level. But what happened at the provincial level is automatically also happening at the national level because it's national structure. On the other hand, he is a lawyer, which I think will actually make sure that he stays in his lane and he's not going to make the same mistakes than his predecessor, who was actually on special leave, and that he will have…he’s actually in very good position. You've got two deputies and he's also entitled to two advisors. And he's in a position to execute excellent oversight over the police. There are certain ways how you can act properly and execute oversight very, very specific and effectively on the police without interfering with their operations, but keep them accountable for what they are supposed to do. So it is just, and I hope that he's going to be advised accordingly to do what is right. But I think he can be a success if he works together with the National Commissioner and he listens to advice and himself is a legal practitioner or a lecturer and he knows what the Constitution says and to what extent does this powers. Chris Steyn (20:05.143)What do you make of former president Jacob Zuma's threats and ultimatum to President Cyril Ramaphosa over his handling of this crisis in the police force? I think they've given him until Friday to resign. Otherwise, there'll be more legal action and political mobilisation. Dr Lennit Max (20:23.746)You know, that is, in my view, politics, just politics. The course already decided on this particular issue. And I think the Commission with the President instituted, although the majority of South Africans is not happy with the Commission, we don't trust the commission, because the outcomes in the past was not effective and the recommendations not implemented. That is the view of the people. But personally, I think that the President did the right thing. Because of the extent of these allegations, it is very, very serious. We can become a Banana Republic if cartels is now managing and ruling the criminal justice system. And therefore, the Commission is not only investigating this allegations per se, but also what is going on in the police, the metro police, in the criminal justice, in the judiciary as well. So it's a huge and very complex investigation which is going to be conducted. I believe that the courts already pronounce on this particular issue as far as the powers of the President's concerned and I think the President acted within the profile of the Constitution and the power was vested in him as head of state. What MKP., what you call it, concern, I think that is just, you know, they bark against up the wrong tree and they, their threat is actually, you know, just political. Chris Steyn (22:21.321)Okay. Can confidence be restored in the South African Police Force? If so, what needs to be done for that to happen? Dr Lennit Max (22:31.202)You know, thanks for the question, Chris. You know, after the advent of democracy in 1994, President Mandela appointed George Fivaz as the National Commissioner of Police. I just want to say President Mandela said once: I have fought against white domination. I have fought against black domination. I have cherished the ideal of a democratic and free society in which all peoples of all persons will live together in harmony and with equal opportunities unquote. Fivaz has four deputies, five of us as a white person. Then we had Bester, General Bester as a white person. had General Manuel as a Coloured. We General Lavisa as African, and we had General Chetty as Indian. So for us, you know, down there, we look up to the leadership, and that leadership represented actually the statement made by the late President Mandela, the Rainbow Nation, and it gave us hope that once we perform, we can also reach the top level. And that's why I studied and I worked hard to prove that I'm competent to be elected in those positions. That's why I reached at the age of 38 the rank of a Lieutenant General as police, Western Cape police commissioner. The youngest in the country, that record is not actually, you know, replaced. But currently, what you experience currently is that the National Commissioner, together with his deputies, is one race, black. The nine provincial commissioners, all of them are black… Dr Lennit Max (24:54.2)…pure black. Now that in itself does not represent the different race groups in South Africa. And I don't think that Coloured, whites and Indians are so stupid that they don't have the necessary qualifications and experience not to be elected or appointed in those positions to represent. But then I blame here the national Minister then, and that was Bheki Cele, because the Police Regulations 47 states very clearly from the rank of Major General to General or Lieutenant General, the National Commissioner must consult him. And he can only appoint from Major General upwards in consultation with the Minister. That means the National Commissioner cannot appoint people in those ranks if the National Minister does not consent to that. Now, that is, I blame him for that. So, and I hope that the Commission address that particular issue and remove Section 47 of the Police Regulations from the regulations so that people can be appointed and this, no, that is in itself political interference where the Minister must agree to an appointment. Now, how can you keep a National Commissioner responsible to do the right job and choose the people which he thinks got the relevant education and the relevant experience to do the job? In this case, the minister will then decide what is good enough for you to work with. And people then is not really loyal then to the National Commissioner, which must be the case, but loyal to the politician, because the politician will manage the National Commissioner to say, appoint so-and-so in that particular position. So that is in itself political interference. And I hope that the commission.. Dr Lennit Max (27:18.826)Look at that particular issue and recommend that that must be removed to allow the National Commissioner to appoint the people he or she believes is competent to assess her or him to do the job and serve the people of South Africa. On the other hand, corruption is rife in the police. This morning I read in the the Burger that there's more people police officers now appearing today in court for corruption. And so every second day almost you find that police officers are actually in court for corruption. Now that brings me to this point of lack of leadership. You know, there are people appointed without any qualifications, relevant qualifications, not police officers, but people imported from outside into the police and been given military ranks, senior ranks of brigadiers and colonels, whatever the case may be. And those people are responsible now to… police officers with years of experience. You know, that in itself demoralise those committed police officers. Then you've got also another problem where clerks, people were previously clerks in the police. Those clerks receive, and I know a lot of them, they were promoted…to captains and…did not receive police training and placed in charge of detective services as well as operationals. So, you know those things Is the reason are the reasons why we are where we are the crossroads with the police in South Africa and that thing must be rectified otherwise, we don't have hope. We will be on our own if there's no proper intervention. Then of course you have your communities which needs to be consulted, take part as those GPFs in your Neighborhood Watches and so on. But on the other hand, you've got a huge and a serious scarcity of… Dr Lennit Max (29:47.086)police officers. You know, the police officers stay now for four years, years on 180. It moved from 180, 185 then back to 170, depends on who designs, you know, and the community are increasing, increasing. And then you got on the other hand, private security, increasing. And I think in 2012 it was 437. And the financial year, I think, 22, 2024, it was at 580,000 employed private security. So private security grew. Why? Because the middle class and the rich got lost confidence in the police effectiveness. And they pay now extra, besides their tax, which pays for the police, pay extra for private security - and myself, I pay private security because private security within three minutes will be at my place. That is the guarantee, more or less, what they give us because they saturate the residential areas. Those are the things until the police is not sanitised by from from from from political interference and proper management is in place. My research also indicates and I quoted other researchers who are of the view that the only way that the police can be trusted and you know and revamp all. What you call it overhaul, overhaul is to replace the management, top management, totally down and bring in other management. I am, Chris, am a bit cautious here. You can't bring private people in. It must be people within the service. The police got a different culture. It's not like SABC or SA Breweries or all that stuff. Dr Lennit Max (32:08.64)It's not like that. It's not a different, like an ordinary private company. The police got a particular culture and there's a particular way that you talk to police officers to win their confidence, you know, and commit them to service delivery, encourage them. So it's a strategy and you must understand the thinking of the police and you must understand that particular criteria on which the police actually operates. So yes, the only way that we can restore trust in the police is you have to overhaul the police and I hope that the Commission of Inquiry will make those recommendations. Chris Steyn (32:57.409)Thank you. That was the former Western Cape Police Commissioner, Dr. Lennit Max, speaking to Biz News and I am Chris Steyn. Thank you, Doctor. Dr Lennit Max (33:07.928)Thank you.

Dr Lennit Max: To save SAPS, purge the politics…

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