Just how deep does Ipid rot go? KwaZulu-Natal case suggests ‘very deep’

The torture and murder of Zinakile Fica in March 2014 should have been a straightforward investigation ending with prosecution and the removal of bad cops from an increasingly dirty system. But according to its annual reports, over the past few years, the Independent Police Investigative Directorate (Ipid) has achieved a conviction rate of less than 1% for contact crimes.

With an allocation of only around 0.4% of the SAPS total budget, a fraction of its manpower and with Ipid’s national management otherwise engaged in its critical war with the police’s malevolent upper echelon, provincial branches are failing dismally to hold ordinary police members to account.

Despite McBride and his soldiers’ best efforts, the battle on the ground against police criminality was lost years ago – if it ever began. The bodies continue to pile up. It is now clear that post-1994, real accountability was never meant to be part of South Africa’s democratic plan.

Fica’s story was compiled from witnesses’ sworn statements and interviews, evidence obtained from medical reports, meetings and correspondence with the Ipid and office of the Directorate of Public Prosecutions (DPP), media reports and testimonies during the Moerane Commission of Inquiry into KwaZulu-Natal’s political killings.

In December 2017, the DPP declined to prosecute Fica’s alleged killers, particularly the officer in charge of the operation, who, it is alleged, was present when Fica died and most likely gave the torture order or actively participated in the interrogation. Major questions remain unanswered. How hard did the Ipid and DPP work to hold the police to account? Was proper procedure followed? Is this justice?

Killing Fica

Police first allegedly assaulted Zinakile Fica in his room at Block R, Glebelands Hostel, Umlazi. Photo: Vanessa Burger

At the time of Fica’s death, Glebelands – a historically ANC-supporting hostel in Umlazi, south Durban – was experiencing a wave of violence not seen since the late 1990s. Community structures known as block committees were accused of “selling beds” (space in hostel rooms) and were being systematically eliminated by a faction – allegedly led by a police detective and his friend, an alleged truckjacker – that appeared to enjoy the sanction, support and political protection of high-ranking ANC and government officials, including police.

Police then allegedly took Zinakile Fica and three other residents to this building in Isipingo where Fica was allegedly tubed to death. Photo: Vanessa Burger

Witness Mzingisi* begins the story:

Mzingisi was put in the back of a police van.

Mzingisi’s statement continued:

Sandla takes up the story:

According to Sandla’s description, the bags were most likely police evidence bags.

After a few minutes they said they heard Fica cry out – clearly audible above the sound of the radio – then all was quiet. An officer then came and asked why they had not informed police that Fica “had epileptic fits”. The men said they were unaware Fica had any medical condition. Capt K_, whom they said appeared to be in charge, then returned and took a statement from Mzingisi. He said he just signed without reading it because he felt intimidated. None of the men were charged. All alleged they were assaulted.

Sandla’s statement continues:

Both witnesses said with hindsight they believed Capt K_ had ordered the disposal of the incriminating evidence, the bag with which Fica had allegedly been “tubed” – suffocated to death – before “those people” – an Ipid investigator arrived. The men were at that stage unaware that Fica was dead.

Mzingisi and Sandla – who were handcuffed together – asked to use the toilet. The officer who had escorted them made them wait a long time before returning them to the office. On their return, they were met by a woman who told them she was from the Ipid. She spoke to them briefly, asked why they were there, took their details and left soon afterwards. It seems the premises were not searched for evidence and the bag that Capt K_ allegedly ordered to be disposed of and which would have contained crucial forensic evidence, was not retrieved.

Sandla’s injuries were clearly visible more than a week later. Photo: Vanessa Burger

Anele, who had been released earlier, immediately reported the incident to the Umlazi police station where he was allocated the case number Umlazi CAS 398/03/2014.

At dawn, Mzingisi and Sandla were returned to Glebelands after which they left for work.

Sandla’s statement concludes:

Sandla was given a scrap of paper on which was scribbled Fica’s inquest number – Isipingo CAS 129/03/2014. The police, we later established, never opened a case in terms of his and Mzingisi’s assault. Sandla left the police station in shock.

According to Bongani*, Fica’s brother, the Ipid notified him that the postmortem would be held on 18 March. A family member had to be present. He said he did not know who subsequently told him that the postmortem date was changed to the 19th. But when the family went to the mortuary they were told the autopsy had indeed taken place on the 18th and only Capt K_, the officer implicated in Fica’s death, had been in attendance. Bongani said the state pathologist told him his brother had died of a heart attack and could find no evidence of torture.

The family, suspecting the worst, requested a second opinion. Another postmortem was performed a week later by an internationally esteemed forensic pathologist, professor and torture expert. Present were Fica’s uncle, the Ipid investigator, the state pathologist who had conducted the first postmortem and two lab assistants.

Blood and stomach contents samples obtained by the state pathologist were sent for forensic analysis. We later discovered the case number contained in the covering letter to the laboratory was incorrect.

I took all three witnesses for medical examinations. While their injuries were beginning to heal, the doctor’s reports – which were sent to the Ipid – contained conclusive evidence of the assault.

On the same day, Fica’s family travelled home with his remains for burial in the Eastern Cape. A collection had been held to help with repatriation and funeral costs. The death of their breadwinner had rendered the family instantly destitute.

Threats, arrests and irregularities

A month later Anele, Sandla and Mzingisi were forcibly evicted from their rooms during the first wave of violence that swept Glebelands hostel and in which many residents accused the police of having a hand. Anele fled to Gauteng but called me to say he wished to cooperate with the Ipid investigation. He said he was receiving anonymous death threats.

Veteran violence monitor, Mary de Haas, assisted Sandla and Mzingisi to provide supplementary statements that were duly commissioned and sent to the Ipid on 19 May.

Meanwhile, we discovered the Ipid was conducting two separate investigations – Fica’s inquest and Anele’s assault – using different investigators who appeared not to communicate with each other or share common evidence relevant to both investigations. The Ipid persistently ignored repeated requests to consolidate both dockets under one investigator and the parallel probes continued, ultimately undermining the successful prosecution of both. Throughout, the Ipid remained mute on the assault of Sandla and Mzingisi.

Mthembiseni Thusi, deputy chair of hostel dwellers’ association, Ubunye bamaHostela, while addressing thousands of angry Glebelands residents after Fica’s death, compares post-94 police to the dreaded ‘Black Jacks’ of the apartheid regime. Photo: Vanessa Burger

The Umlazi SAPS head of detectives was approached to establish the case number for the assault of witnesses Sandla and Mzingisi. After months of wrangling, the head of detectives told me that Sandla’s “case number” had been traced to an unrelated GBH charge that had taken place in a different location on a different date and for which the suspect had already been convicted. Clearly, no case had been opened.

Not wanting to put Sandla and Mzingisi through further trauma and potential danger which renewed attempts to register their assault could likely result, we stupidly assumed the Ipid would include investigation of their alleged abuse as part of the Fica probe. They had after all clearly described their beatings in statements provided to Fica’s investigator who had confirmed she had also obtained a copy of Anele’s statement from the Umlazi SAPS. But maybe not.

Glebelands witness waits to open a case at the Umlazi SAPS charge office. Photo: Vanessa Burger

Sandla and Mzingisi subsequently accused Capt K_ of harassment. Then on 15 July 2014 Sandla was arrested and charged with corruption (for allegedly “selling beds”). The investigating officer was none other than Capt K_.

This development was immediately reported to the Ipid and SAPS management was requested to assign a different investigating officer to Sandla’s case. Neither responded. Capt K_ rigorously opposed bail and Sandla lingered in Westville prison for over a month. His bail conditions, when he was eventually released, stipulated that he relocate from Glebelands. But Sandla had nowhere else to go.

In January 2015 Sandla was acquitted of all charges. Due to extended absences from work, he had long since lost his job.

On 23 July 2014 an Ipid investigator called me to assist him obtain a supplementary statement from Anele. He seemed unaware that Anele was a witness in the Fica investigation and knew nothing about Sandla and Mzingisi. I explained Anele’s position and after months of correspondence, the investigator undertook to go to Gauteng during the second week in September to obtain his statement. However, he wanted Anele to meet him at the Ipid’s Gauteng office.

On 29 October I received a missed call from Anele. When I called him back he told me he had received a voice message from the investigator giving him the Ipid reference number and requesting that Anele call him back. Clearly agitated, Anele told me he had no airtime to call anyone, in fact he had no money at all, still had no job and nowhere to stay. He did not know Gauteng and certainly did not know where the local Ipid office was. In any case, he could not afford transport to get there. He asked why the Ipid was taking so long to investigate and why had the investigator not kept the September appointment? Anele said he found it suspicious that his case was being investigated separately from Fica’s and said he doubted the Ipid’s independence because it was part of the police ministry. I did my best to soothe him and sent a text message to the investigator explaining Anele’s predicament and concerns.

I heard nothing further from the investigator and neither, it seems, did Anele.

Blunders and fabrications

De Haas pointed out that this was impossible – the Ipid had not yet received the second postmortem report. She also said that Maharaj seemed unaware of the existence of witnesses Sandla and Mzingisi.

According to Maharaj, Anele’s case had stalled because the investigator had still been unable to reach him. She said the matter had been referred to the senior public prosecutor in April for a decision to prosecute, but it had been sent back so that another attempt could be made to reach Anele.

Almost 80% of Glebelands victims were in some way linked to the hostel’s block committees of which Fica was a former committee chairperson. All were loyal ANC supporters. Photo: Vanessa Burger

Five days later the independent pathologist submitted his report to the Ipid. His findings concluded that although Fica had an underlying heart condition consistent with someone of his age and build, Fica had died of a heart attack most likely as a result of being placed under extreme physiological trauma and stress such as that induced by asphyxiation. He emphasised that specifically in tubing cases, the absence of conclusive physical evidence was not proof that torture had not happened, and stressed the importance of due consideration of circumstantial evidence such as had been provided in Sandla and Mzingisi’s statements.

He concluded that Fica died of a heart attack precipitated by the shock of being deprived of oxygen when – read with the witnesses’ statements – most likely being suffocated by police officers with a plastic bag. It seemed the independent pathologist had little doubt that the police had been responsible for Fica’s death.

In a subsequent report dated 1 February 2016, the Ipid stated that:

Excerpts from Anele’s 14 March 2014 statement clearly described the abuse to which he had been subjected. The Ipid also had his medical report.

There was no mention of torture with a plastic bag. However, according to the latest Ipid report:

In the report’s concluding comments Anele’s matter was referenced again, this time under a third, totally new case number:

And these were not the only cock-ups. Another four torture cases I had forwarded on behalf of victims to the Ipid for investigation were similarly mutilated. And my cases were not the only ones.

In October 2016, De Haas and I submitted a combined and very detailed complaint to Maharaj highlighting each error and providing the correct information. But the blunders persisted and Maharaj countered the complaint with a personal attack on De Haas’ integrity, motivation and credibility. My public flaying would come later together with the threat of arrest.

Killing cases

On 17 June 2017, I testified before the Moerane Commission of Inquiry into KZN’s political killings and – in terms of Glebelands cases – described the Ipid’s KZN branch as “dysfunctional”.

This provoked an immediate response from national Ipid spokesperson, Moses Dlamini who said my claims were “spurious”, “unfounded” and that my actions in relation to other cases were tantamount to “defeating the course of justice” for which of course I could be arrested. I released a media statement rebutting Dlamini’s allegations.

Two months later, Ipid Ethics Manager, Amar Maharaj, dropped a bombshell before the Commission. During his presentation, he alleged that the Ipid – especially the KZN branch – had closed more than one thousand investigations prematurely to meet targets and secure performance bonuses.

According to the Moerane Commission report, in relation to Fica’s investigation, Amar Maharaj alleged that:

With regards to Anele’s case, Maharaj alleged that:

In the furore that followed, the Daily News quoted Ipid spokesperson Moses Dlamini’s attempt to deal with the fallout:

But Amar was adamant that the practice had been common during both McBride and Kgamanyane’s tenure.

Bigger fish to fry

In addition to all this, former Ipid director Robert McBride had become integral in the struggle against “SAPS Capture” – the repurposing of the criminal justice system to serve and protect the political and economic interests of an extensive corrupt cabal centred around, but not limited to, former president Jacob Zuma.

McBride and several senior Hawks members’ investigations into key members of this cabal, including, among others, ex-head of crime intelligence, Richard Mdluli, and recently arrested former acting police commissioner Khomotso Phahlane, threatened to undermine the project. McBride and Co. clearly had to go.

The task fell to since discredited police minister Nathi Nhleko (the main defender of Zuma’s bogus Nkandla security upgrades) who, in 2015, on what later proved to be spurious charges, suspended and replaced McBride with the more malleable Israel Kgamanyane. Kgamanyane promptly elevated the astoundingly inappropriate Boniwe Sotyu – daughter of then Deputy Police Minister Maggie Sotyu – to a senior Ipid investigations post.

McBride was reinstated after the 2016 landmark Constitutional Court ruling found sections of the Ipid Act were inconsistent with the Constitution – a police minister should not meddle with the Ipid. The court also ruled that the Ipid’s independence was not sufficiently protected by existing legislation and gave parliament two years to fix the faults.

This did not happen and defective legislation continues to hamper the Ipid’s transformation into a properly independent institution of accountability (well, at least on paper). The ramifications of this may well prove fatal in terms of the long haul claw-back of the criminal justice system from the abyss of venality. Perhaps this was intentional given the stakes.

At the height of McBride’s incursions against SAPS’ tarnished top brass, in stepped Police Minister Bheki Cele in a vintage rerun of executive overreach, decreeing McBride’s contract – which expired at the end of February 2019 – would not be renewed. ANC members of the police parliamentary portfolio committee quickly closed ranks against McBride – one among very few senior government officials who have shown sufficient balls and stamina to tackle high-profile malfeasance.

Despite McBride describing police corruption as “the biggest threat to national security”, Ipid provincial management has shown little appetite in following its former leader’s steps against police rot. Over the years, the war between the Ipid and SAPS executive has left little time, resources or capacity to deal with the disintegration of local branches that have simply ceased to serve ordinary victims of police abuse.

Public Protector, Busisiwe Mkhwebane, recently pointed out that when naming and shaming government departments that failed to comply with her institution’s remedial actions, it is particularly the poor – who have no other recourse to justice – who suffer worst the impact of broken Chapter Nine institutions.

The Ipid is not a Chapter Nine institution. It is a government agency answerable to and entirely reliant on the very department it is meant to hold to account. The Ipid’s integrity is also undermined by a large number of ex-police members infesting its ranks and employees with friends, relatives and former colleagues still embedded within the SAPS.

So how serious really was the post-1994 dispensation about dismantling the unholy symbiosis that exists between law enforcement, syndicated crime, and powerful political and private business interests that McBride has since revealed in detail during his testimony before the Zondo Commission into State Capture?

Those needing to hang an identity on this venal nexus called it “Zuma’s Shadow State”. But the “Shadow State” has always existed and simply shifted seamlessly from the apartheid to the current so-called ‘democratic’ administration. Only an active, well-informed citizenry, strong civil society, free press, independent judiciary, and effective mechanisms of accountability – of which the Ipid should form part – can mitigate its unfettered power. There is little left of the above.

The final nail in the coffin

In other words, Fica’s existing heart condition merely contributed to his death, it did not cause it.

However, if any doubt still existed in the senior state prosecutor’s mind, instead of taking up the offer of further explanation by Africa’s foremost forensic pathologist, she requested a second opinion from the young state pathologist who had performed Fica’s initial postmortem and who, it transpired, only began training sometime after 2011.

According to the witness Sandla, at some stage in 2017 the Ipid investigator took him to Pietermaritzburg to meet the senior state prosecutor where he was interviewed and asked to verify aspects of his 2014 statement.

Although the Moerane Commission’s report was released in September 2018, nothing further seems to have come from the Ipid. And it remains to be seen what relevance the Moerane Commission report on political killings in KZN could possibly have had on the outcome of Fica’s case which presumably should have been decided on the weight of available evidence, not political consideration.

Months later, Fica’s brother asked me if I knew what was happening with the case. I said I did not but would try to find out.

De Haas asked why we had not been notified so that the matter could at least have been sent for a formal inquest.

Van der Sandt suggested De Haas take the matter up with the National Directorate of Public Prosecutions if we were unhappy with the outcome.

Mrs Fica was born, raised and still lives deep in the rural Eastern Cape. Her marriage was subject to colonial-, and later, apartheid-era social engineering, the migrant labour system that forced her husband to seek employment hundreds of kilometres away from his family. Although she has her matric, Mrs Fica struggles with English. No one in her small community speaks much English. Like her, the majority is unemployed and poor and struggles to survive. She leads a precarious life raising five children – the youngest was only five months old when her husband’s death plunged them into poverty.

I heard Mrs Fica’s side of the story from a third party who did not know her husband but knew intimately the details surrounding the case. This is what Mrs Fica told him.

(*Not their real names.)

Vanessa Burger is an independent community activist for human rights and social justice.