Simon Scorpion Nyalvane, Caylene Whiteboy and Voster Netshiongolo appear at Palm Ridge Magistrate?s Court on October 06, 2021 in Palm Ridge, South Africa. The police officers are implicated in the murder case of Nathaniel Julies (16) and face several charges including murder, perjury, defeating the ends of justice and unlawful possession of ammunition. (Photo by OJ Koloti/Gallo Images via Getty Images)
The Nathaniel Julies murder trial has heard about how the police decided to use lethal guns to enforce Covid-19 regulations, depending on the level of the lockdown at a given time.
On Tuesday, head of visible policing (Vispol) at the Eldorado Park Police Station, Lieutenant Colonel Lesley Rajbelly, told the court that he had advised police to ease up on the use of shotguns because alert level three of the lockdown imposed less restrictions on people’s movement.
In his testimony at the high court sitting in Palmridge, state witness Rajbelly said shotguns were meant for crowd control and were used on a daily basis under lockdown levels four and five last year.
By June 2020, only three months into South Africa’s hard lockdowns implemented in response to the Covid-19 pandemic, 10 people had already been killed as a result of police action.
Three police officers based at the Eldorado Park station are facing charges relating to the murder of 16-year-old Julies on 26 August last year. The unarmed teenager was shot and killed, allegedly by the police officers, while standing next to a truck, just a few metres away from his home.
The charges against the police officers include perjury, defeating the ends of justice and possession of illegal ammunition.
The country was operating under alert level two from 18 August 2020, meaning Julies was not violating an 11pm curfew by being out in the street at about 9pm to buy biscuits at a spaza shop.
In addition, the trial has brought to light that the police officer in command, accused number two Sergeant Simon Ndyalvane, booked out a shotgun without ammunition, in violation of procedure.
Rajbelly told the state that accused one, Julies’s alleged shooter Constable Caylene Whiteboy, and Ndyalvane were part of Vispol.
Defence lawyers for Ndyalvane put it to Rajbelly that, on the day the teenager was killed, seven other police officers booked out shotguns without ammunition — in contravention of the rules. Rajbelly said he was unable to comment because he had no knowledge of this.
“Is it your evidence that booking out a shotgun without ammunition is an offence,” advocate Mandla Manyathela asked, to which the witness responded: “It is just procedurally incorrect, it is not an offence.”
“So you are not aware of any consequences of someone that booked out a shotgun without ammunition?” asked Manyathela.
“No, not that I am aware,” Rajbelly replied.
Manyathela put it to Rajbelly that Gauteng provincial commissioner Lieutenant General Elias Mawela had instructed provincial South African Police Service (SAPS) officers to always carry a shotgun in their vehicles.
“I am not aware of that instruction from the provincial government. Firearms must be in a vehicle for crowd control,” he said.
Mawela’s office told the Mail & Guardian that it could not comment on the matter before the court.
“We can only comment after finalisation of the case in court,” said spokesperson Brenda Muridili.
Banned ammunition and police brutality
Nathaniel was killed by birdshot, the same ammunition found at scene one of the 2012 Marikana massacre, which was banned for use by the police two years after the bloody labour strike at Lonmin platinum mine in Rustenburg, when police shot dead 34 striking miners on 16 August 2012.
The lethal ammunition, which holds about 289 round metal pellets, was discontinued for crowd management in 2006, according to SAPS Standing Order 262.
At scene one of the Marikana killings, also known as the “edge of the kraal”, seven striking miners were shot and four died.
“Shotgun pellets have been withdrawn from operational use by SAPS members, although they were still being used for target shooting practice and were, thus, still available at various SAPS police stations,” read a report by the Marikana commission which probed the massacre.
“It is not clear where the pellets used on 16 August came from: members could have had access to the stockpiles kept for training purposes, or bought them on the open market or got them from Lonmin security, which uses birdshot for crowd management purposes.”
An independent researcher on policing, David Bruce, told the M&G that, although the illegal use of birdshots by police was infrequent, there had been some concerning incidents.
“This is not a new phenomenon: that the SAPS repeatedly distances itself from these instances where it does occur, or has no knowledge of how this could occur and how members are in possession of this ammunition. It continues to be an unanswered question as to why members are found to have this ammunition,” he said.
Bruce said that even in Marikana, as far as he understood, the commission found no credible evidence that private security personnel were in a position to have shot at the “kraal edge group”.
“There is basically no doubt that it was SAPS who fired at scene one, and even in the commission they pleaded ignorance and that they were not in possession of it and so they could not have used it,” he said.
At Marikana, Cebisile Yawa, Bongani Mdze, Bonginkosi Yona and Mphangeli Tukuz were killed by R5 ammunition, but were also hit by birdshot pellets, according to Bruce.
“As indicated another three strikers were also hit by SSG — so seven strikers in all were hit by SSG rounds at scene one,” he said.
In a separate analysis of the Marikana commission findings, Bruce said there appeared to be no reason to doubt the SSG ammunition was fired by one or more members of the police service.
“The SAPS only admitted to the use of R5 and 9mm ammunition at Marikana and denied using SSG ammunition [shotguns are also used for firing rubber bullets],” he wrote in his analysis.
The South African Human Rights Commission (SAHRC) heads of argument at the commission said birdshot was used at scenes one and two.
The SAHRC referred to “the point-blank” refusal to accept that police officers may have fired SSG ammunition at scenes one and two, and the failure to conduct any investigation into its use, despite clear evidence to the contrary’. The SAHRC describes this as a manifestation of the police’s “culture of denial”.
“Each time one of these incidents happens, SAPS management seem to shrug their shoulders as if they can’t be expected to know how it is that their members come to be in possession of this kind of ammunition. It’s one of the things that reflects SAPS negligence in respect of the management of the use of force. It’s high time that they should provide a proper account of how it is that their members repeatedly come to be in possession of this ammunition,” Bruce said in an interview on Tuesday.
A report on clinical evidence relating to the injured miners in Marikana found 14 cases of individuals who suffered non-fatal injuries from shotgun pellets.
In January 2014, two years after the Marikana bloodshed, two demonstrators were shot and killed by police during protests over poor water supply in Brits.
Then police minister Nathi Mthetwa told a media briefing that the protestors were killed by “discontinued rounds”.
“The SSG 12-gauge rounds, which contain pellets, were officially discontinued by the SA PS in 2006 [for crowd control], and were not supposed to be used,” he said.
During the Brits trial, a similar pattern of ignorance of the ammunition in the shotgun emerged to that in the current Julies case, in which Whiteboy claims she was unaware the gun was loaded with the banned ammunition.