All of us sometimes feel ‘unsafe’

2014-09-07 15:00

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Former Constitutional Court Judge Kate O’Regan tells Hanlie Retief about her efforts to give Khayelitsha’s poor another lease on life

With her head slightly forward and her hand against her mouth, that’s former Judge Kate O’Regan. Picture after picture on the Khayelitsha Commission of Inquiry’s website show her like that: determined, concentrating, Khayelitsha’s pale sun on her chestnut hair.

This woman and her Commission achieved what former police minister Nathi Mthethwa tried to put a stop to. She has brought an independent judicial light to bear on the way the police fail people, especially the poor – those who are overlooked in the middle class obsession with crime. And the truth is, it’s much worse than we thought.

In a shack in Khayelitsha, a piece of barbed wire as a door lock is probably your only defence against murder, robbery or rape. There’s no one to call if you are attacked. Forget the police, they don’t listen to you.

They don’t patrol where their vehicles can’t go. They lose your file. That’s what this report has shown us. And, as Western Cape Premier Helen Zille said, what happens in Khayelitsha probably happens across the country.

The investigation had a “disturbing impact” on her as a person, O’Regan said in her home in Constantia last week.

“It made me realise how important safety is. All of us sometimes feelunsafe, we know how unpleasant it is. But we have no idea how insecure life in an informal settlement is. In Khayelitsha, 62% of the residents feelunsafe during the day.”

It’s “devastatingly awful”, she said, to live in a place where you always feelunsafe.

“If we think of human rights, it is usually in terms of physical things like food, housing and schools. For me, security is definitely equally important. It’s a basic right and government should protect us.

“We give the police the mandate to use force and therefore we are entitled to their protection.

“Khayelitsha shows we have not been able to get this basic aspect of a modern democratic society right.

People do not have a real sense of the impact of crime in South Africa,” she said.

Such a realisation could be a potential game-changer.

“We tend to think, ‘oh, there are high crime levels, how horrible’, but we think no further.”

Johan Burger, a senior researcher at the Institute for Security Studies, said it has been a long time since he’s seen something that impressed him as much as this report.

“I went to testify before the commission and, believe me, I was amazed at how thorough Judge O’Regan and her team were. For most investigators, it would be a schlep to wade through the point-by-point instructions

of police procedures, but they spared no trouble. The report is not full of vague concepts, but shows in detail how the police, in terms of their own guidelines, do not do what they should be doing.”

O’Regan and her team studied 87 oral testimonies, 170 written statements and 50?000 police documents and those of other role players. The 580-page report was completed in three months.

O’Regan is well-known as a workhorse. “Yes, I have this habit,” she smiled quickly, and yes, she made her team work “many late nights”.

Children suffer especially in an environment with high levels of violence, she went on. “You reap a whirlwind: children become anxious and depressed or they become violent themselves. Afterwards, violence is seen as almost a badge of honour. It is totally destructive.”

Khayelitsha’s notorious youth gangs with children aged between 12 and 18, seemed to her a bit like a local West Side Story. Friday afternoons after school is wartime, when they fight it out with knives and pangas. “Every week, children are seriously injured or killed,” she said.

These children, the commission heard, had no choice – where you live determines which youth gang you belong to. Once you’re in a gang, you’re stuck. If you refuse to become a member, that’s the end of you. Why gangs? “Because there’s nothing else to do, they told us.”

NGOs are doing their best but it’s a community of 450?000 people with 85?000 schoolchildren. “Divide that by 30 for two rugby teams or 22 for two soccer teams and you realise how extensive an intervention it would require.”

Ditto for music, arts and space for IT nerds.

People are afraid to start small businesses in Khayelitsha for fear of theft and armed robbery.

“Crime simply chokes the efforts of people to improve their lives,” said O’Regan.

There are so many stories of excessive violence and crime, she said. “One night, Mrs Vuyiswa Mpekweni was called to her niece’s shack. Her former boyfriend had bound the door with wire, set the shack on fire and her niece and three children were burnt to death.

The attacker confessed but then he disappeared. She found out he’s in Johannesburg. When she gave the police a picture of him, they wanted to know where to look – Johannesburg is a big place.

“She told us it broke her heart because the police wanted her to do all their work for them.”

Equally heartbreaking is the story of Lethabo. He, his mother and his sister lived in a shack. One night, there was a loud knock on the door and six drunken men come in looking for Lethabo. He denied he was Lethabo, but when they brought out guns, his mother cried out his name in distress. And there and then the men took Lethabo to the dunes at Monwabisi beach and killed him. “Can you imagine what the poor woman felt?”

Nothing came of this case in the beginning either.

“The sense of outrage that people literally get away with murder is overwhelming in this community.”

For the past few months, O’Regan drove every day from her home to the commission’s “headquarters” in the Harare Library in Khayelitsha. Just 30km away but worlds apart.

Khayelitsha came upon the judge in the middle of a crowded career. She is a judge in the High Court of Namibia. She serves on two international tribunals, lectures at the universities of Cape Town and Oxford, and serves on the boards of several NGOs including Corruption Watch.

In between it all, O’Regan is an avid gardener. “Any compliments about my garden are welcome,” she joked.

Her daughter, Rebecca, came down the stairs on her way to university. Years back in an interview, all her titles were referred to: doctor, professor, judge, Mrs – and then she answered casually that her actual title is “mother”.

“My husband is also a lawyer. Rebecca and our eldest, Daniel, always said they would never study law, and that’s exactly what they’re doing now!”

Born in Ireland, O’Regan’s family immigrated to South Africa when she was seven. “My parents followed my mother’s sisters, who all immigrated here in the 40s. We still have an extended family here in Cape Town. My father is now 85.”

And her children’s future here?

“South Africa has always been a complex, noisy, difficult environment, but extremely stimulating. It’s a meaningful place where you know you’re alive.”

She was only 37 when she was appointed as a judge in the Constitutional Court, in that first “Class of 94”. It has meant a lot to her to have played a part in the establishment of this court, she said.

“We have a wonderful Constitution, farsighted, robust, resilient,” she said.

With today’s attacks on chapter 9 institutions such as the Office of the Public Protector, how resilient is the Constitution 20 years after the dawn of democracy?

“Democracies are noisy places – it’s when things become quiet that you should start worrying. Institutions such as the judiciary must not let the ‘noise’ deter them, they must be prepared for it, assume there will be sharp criticisms of judgments. That should, however, not put them on the back foot – on the contrary, every judgment must still be fearless.”

Later, when we were taking pictures, we walked in the garden. She showed us her king proteas and her formal rose garden.

“You ask what is important in life? I always tell my law students that it’s very ambitious to try to make a difference, so try first just not to make things worse.

“People are important to me. Family. The beauty of the world. And it’s still important to try to do something meaningful with your life.”

Later, I looked through the commission’s photos again: overweight police officers walking down the street, sand blowing over paved hiking trails, webs of overhead power lines. At Khanyi’s Hair Salon, a Dark & Lovely costs R50 and a Cheese Head R10.

Tin shack against tin shack. And beyond the sea of rusted shacks lies Table Mountain in the distance.

O’Regan has become a voice for the voiceless who reported their cries for help fearlessly. For the Mrs Mpekwenis and the Lethabos out there, it will make a difference.

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