The continued propagation of the "maximum force" doctrine by top-ranking government officials has had an effect on the behaviour of police personnel and a direct bearing on the Marikana massacre.
This is the view of the Council for the Advancement of the South African Constitution. In its submission to the Marikana commission of inquiry in late January, the council writes that the police operation in Marikana, in which 34 people were killed on August 16, was in line with this extralegal policy that involved the deliberate intensification of violence against those involved in public protests.
"The units that were deployed at Marikana ... fell under ... the operational response services division that was specifically created for the purpose of advancing this policy," the submission states.
Between 2008 and 2010, the council writes, the division was a subcomponent of the South African Police Service (SAPS) crime prevention division and was re-established in 2011 as a full SAPS division with a new divisional commissioner, Lieutenant General Elias Mawela. Other units that fall within the response services division include the special task force, the national intervention unit, the tactical response team and the air wing, which were all deployed at Marikana.
In arguing its case, the submission provides a litany of quotes by government officials dating back to 2008 and then underscores their effect on police officers by using press articles and other references to show how some of these statements were interpreted by members of the force.
The council quotes then minister of safety and security Susan Shabangu as saying: "You must kill the bastards [criminals] if they threaten you or the community. You must not worry about regulations. I want no warning shots. You have one shot and it must be a kill shot."
Shabangu's statement, apparently uttered at a Pretoria anti-crime imbizo in April 2008, was endorsed two days later by ANC president Jacob Zuma, who said: "If you have a deputy minister saying the kinds of things that the deputy minister is saying, this is what we need to happen."
Nathi Mthethwa and other ANC parliamentarians took steps to amend Section 49 of the Criminal Procedure Act, an amendment that came into effect in September 2012 and expands police powers in using lethal force during arrests.
The submission notes that Mthethwa advocated this amendment as early as 2008, when he is quoted as telling a "select committee on security" that: "If South Africans feel they are not safer in their country because of the legislative regime, then we have to look into those parts of the legislation." Mthethwa has also credited "fighting fire with fire" with reducing crime statistics.
To highlight the effects of these statements on the ground, the submission quotes a Langlaagte dog- unit member in 2009 as telling the Mail & Guardian that: "We do get orders from our superiors to exert maximum force but only when it is necessary."
A 2011 M&G article referred to by the submission quotes a trainee police officer as saying his instructor in street survival and the use of firearms had begun a session by insisting that "police were correct to use maximum force" in dealing with Andries Tatane (a service delivery protester, allegedly shot and killed by police in 2011).
Elaborating on the submission, the council's executive secretary Lawson Naidoo said that, from 2011, the notion of maximum force was "a tactic deployed against community protesters" because it was a year of local government elections that saw an increased number of protests. "The same operational strategy was put into place at Marikana," he said.
Mthethwa's spokesperson Zweli Mnisi said the minister was not prepared to comment on the submission out of respect for the rule of law because the Marikana commission was still pending.
Mnisi added that Mthethwa was not expected to appear before the commission but his legal representation was merely there to observe, to be the "eyes and ears of the minister". However, should the minister be subpoenaed, he would comply.
Currently, Mthethwa does not form part of the witness list.