SAPS, try not to get sued

When SAPS tabled its 2013/14 annual report, the media was quick to pick up on the massive amount for contingency liabilities; a total of R20.5 billion. This represents just under 30% of the total 2013/14 SAPS budget. Contingency liabilities are all claims pending against SAPS, and might or might not result in payment when the claim is finalised. Furthermore, the amount paid to the claimant may amount to the full amount claimed or part of the amount claimed. A person who claims to have been a victim of assault, an illegal police action or a shooting incident, for example, might claim a large sum of money to SAPS. The full claim will be reflected in the SAPS contingency budget, but only a very small portion of original claim might be paid out. Some have already said, in my opinion erroneously, that it is expected that the bulk of that money will result in pay-outs. Trends in previous years do not support this conclusion. On the contrary, most claims are either reduced or cancelled.

During the 2013/14 financial year, a total of just under R6 billion worth of new claims were made against SAPS. The vast majority of these claims (R5 billion) are for “police actions”, meaning instances where individuals claim damages because they feel they have been the victim of wrongful action by the police. Claims incurred in 2013/14 were R1 billion less than the previous year; the second consecutive year this has happened. Claims have steadily increased until the 2011/12 financial year but, since the 2012/13 financial year, claims made against SAPS have actually been decreasing.

The R20.5 billion figure amounts to all the claims made during the 2013/14 financial year that haven’t been finalised yet (whether through payment or cancellation) and all the claims that are still pending from previous years. Litigation often takes years to complete and therefore, pending claims have a cumulative effect. Total claims pending stand at R20.5 billion because only a small number of the claims incurred during the year and/or pending from previous years were finalised in 2013/14. Indeed, the total amount of claims finalised by SAPS last year only totalled R3.7 billion. Therefore, new claims incurred (R6 billion) were much higher than claims settled, through payment or cancellation (R3.7 billion). The low total of claims finalised compared to the claims incurred has been a constant trend in previous years. This results in a large and constantly increasing backlog of cases pending against SAPS, eventually building up to the apparently alarming amount of R20.5 billion.

Data from previous years shows that only a fraction of aims are actually paid out. On average, since the 2007/08 financial year, less than 10% of the value of claims finalised resulted in payment. We don’t know exactly how much was paid out, one of the reasons being that the information contained in annual reports doesn’t match information provided by the minister in a 2013 written parliamentary reply. The 2013/14 annual report indicates that last year, SAPS made more than R250 million in contingency payments, R220 million of which were paid to compensate victims of assault, police actions or shooting incidents. If the nature of the cases currently pending against SAPS are similar to those finalised in previous years, and if miraculously all cases currently pending against SAPS were finalised, SAPS would “only” make pay-outs to the tune of R2 billion, which represents “only” 2.75% of the SAPS 2014/15 budget.

This nevertheless represents R2 billion of our taxes used to compensate victims of police abuse. Moreover, the individual police officials responsible for the abuse will most likely not be held accountable, whether financially, through disciplinary action or criminal prosecution. The actual payments made last year (R220 million) are far from the total provision made for contingency liabilities (R20.5 billion). But we must ask ourselves whether this is a justifiable expense and whether our taxes should have been used to compensate victims of police actions that were not compliant with the Constitution and the law. While victims are entitled to seek compensation, it would have been far more preferable if their rights had not been violated in the first place.

It appears that SAPS has no strategy in place to address claims pending against it. SAPS is certainly not the only stakeholder responsible for the finalisation of civil claims pending against it, but should look into mechanisms to address this exponential backlog, or risks facing a contingency budget almost equating its entire budget in a few years’ time. Furthermore, slow justice for victims amounts to no justice at all if claims take years to complete. More broadly, SAPS should develop a strategy to reduce the risk of litigation. SAPS should start by providing better training to its members, and ensure that its officials obey the Constitution and the law when they are executing their mandate. If there is a transgression, SAPS should hold its officials disciplinarily and criminally accountable when they engage in violent and abusive action, and recoup the financial losses.

Currently, SAPS officials enjoy effective impunity for human-rights violations they commit. Very few recommendations (less than 10%) from the Independent Police Investigative Directorate to SAPS to take disciplinary action or to the National Prosecuting Authority to prosecute are actually followed and result in dismissal or criminal conviction. Furthermore, a Treasury regulation imposes on the chief accounting officer of each government department to recover losses caused by a negligent act of an official — if that official was held personally liable for the act. If individual SAPS officials are not held liable for their actions, the state will not be able to recover even part of the damages it had to pay to a victim of police abuse. Holding police officials individually financially liable for the violations they caused will send a very clear message to all police officials.

If SAPS wants to drastically reduce the claims brought against it, it should start by ensuring that its officials do not commit assault or other gross human-rights violations and, if they do, then ensure they are held accountable.