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South Africa: Anti-torture law in inaction

Torture mostly happens in police cells, correctional services, other places of detention, on the streets and in some cases in people’s private spaces. Victims of torture in the post-apartheid South Africa include arrested persons, criminal suspects, non-South African nationals and sex workers amongst others.[1]

Before July 2013, acts of torture were investigated and prosecuted as assault cases. In 2012- 2013, the Independent Police Investigative Directorate reported 4131 cases of assault and 50 cases of torture.[2] From October 2012 to June 2 2013, Centre for the Study of Violence and Reconciliation (CSVR) received 114 cases of torture in the Trauma Clinic.[3]

Article 5 of the African Charter on Human and People’s Rights prohibits torture and the Robben Island Guidelines provides a guide on preventing torture in Africa. South Africa is signatory to both.

The Bill of Rights in Chapter 2 of the South African Constitution also prohibits torture. Section 14(1) (d) specifically provides for the freedom and security of the person including the right not to be tortured in any way.[4]

Freedom from torture is enshrined as a non-derogable right under s. 12(1) (d) and (e) of the Constitution of the Republic of South Africa.[5]

South Africa ratified the UNCAT in 1998. Since then, South Africa has had a duty to pass legislation to ensure that torture becomes a crime punishable by law.[6] South Africa signed OPCAT in 2006 but has not yet ratified it. Ratification of OPCAT will establish an independent national preventive oversight mechanism to monitor the implementation of the Convention against Torture at national level (this includes monitoring, investigating and reporting).[7]

South Africa’s Torture Act does not include any provision on the right to redress. Notwithstanding the standalone anti-torture domestic legal framework in place since 2013, torture and ill-treatment continue being an area of great concern in   South Africa.

South African Human Rights Commission identified the Prevention of Torture as one of the seven focus areas   in order to effectively fulfill its mandate of promoting, protecting and monitoring the realisation of human rights in South Africa.

“Section 11 Committees” have been instituted that advise the Commission on matters related to Prevention of Torture.[8]

Legal Framework/Domestic anti-torture law, 2013

On 25 July 2013, South Africa’s President Zuma signed into law the Prevention and Combating of Torture of Persons Act.[9] And, on 29 July 2013 the Parliament of the Republic of South Africa adopted the Prevention and Combating of Torture of Persons Act 13 of 2013 (“The Anti-torture Act”) to give effect to the Republic’s international obligations in terms of the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which was ratified by South Africa on 10 December 1998.

Prior to the enactment of the Anti-Torture Act, the South African Police Service adopted an anti-torture policy in 2009 and in 2011 the Independent Police Investigative Directorate was given the express mandate to investigate all allegations of torture by the police.[10]

In its preamble, the Act acknowledges that South Africa “has a shameful history of gross human rights abuses, including torture of many of its citizens and inhabitants”.[11]

South Africa almost took 15 years after ratifying the UNCAT to enact an anti-torture law. However, South Africa is yet to ratify the Optional Protocol on the Convention against Torture (OPCAT).

Under the Act, torture is now a recognized crime in South Africa and perpetrators of this specific crime can be charged, tried and prosecuted. The Act criminalise torture and provide for a definition of torture that reflects the UNCAT definition. The Act provides that acts of torture can be punished by a sentence of imprisonment, including imprisonment for life, but without stipulating a minimum sentence.[12]

The Anti-torture Act, however, does not apply with retrospective effect – victims of apartheid are not covered by the Act.

South-Africa’s anti-Torture Act also specifically provides that no immunity for acts of torture can be provided to an accused person “who is or was a head of State or government, a member of a government or parliament, an elected representative or a government official”.[13] This is a notable exception to constitutionally enshrined immunity for the Head of States.

Most importantly, the Act creates an obligation on the State to promote awareness of the prohibition of torture, including education and awareness programmes directed at public officials.

According to Section 4, any person who commits, attempts to commit or incites, instigates, commands or procures any person to commit the act is guilty of the offence of torture. Persons found guilty of the offence may be sentenced to imprisonment, including life imprisonment. The Act recognizes criminal individual responsibility regardless of the fact that the accused is or may have been a Head of State, a member of government or an elected representative or government official. In addition, no exceptional circumstances may be invoked as a justification to committing acts of torture.

With the passing of the Prevention and Combating of Torture of Persons Act in 2013, South Africa has now complied with its international law obligations under the UNCAT to criminalize torture. The Anti-torture Act highlights the seriousness of the crime of torture through its harsh punishment of imprisonment up to life imprisonment, and further by stipulating that there is no justification for committing a crime of torture.

Important Provisions of “the Anti-Torture Act”

Definition of torture

Section 3 defines “torture” as any act by which severe pain or suffering, whether physical or mental, is intentionally indicted on a person –

(a) for such purposes as to –

(i) obtain information or a confession from him or her or any other person;

(ii) punish him or her for an act he or she or any other person has committed, is suspected of having committed or is planning to commit; or

(iii) intimidate or coerce him or her or any other person to do, or to refrain from doing, anything; or

(b) for any reason based on discrimination of any kind, when such pain or suffering is in?icted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity, but does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Offences and penalties

The UNCAT requires States parties to criminalise the commission and the attempt to commit torture, complicity in torture, other forms of participation in torture, instigation of, and incitement to torture, as well as acts by public officials that acquiesce or consent to torture.

The Prevention of Combating and Torture of Persons Act covers these modes of liabilities.

Section 4(1) of the Act says that “Any person who (a) commits torture; (b) attempts to commit torture; or (c) incites, instigates, commands or procures any person to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.[14]

Section 4(2) provides that “Any person who participates in torture, or who conspires with a public official to aid or procure the commission of or to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life”.[15]

No immunity for Head of States for acts of Torture

South Africa’s anti-Torture Act also specifically provides that no immunity for acts of torture can be provided to an accused person “who is or was a head of State or government, a member of a government or parliament, an elected representative or a government official”.[16] This is a notable exception to constitutionally enshrined immunity for the Head of States.

Section 4(3) (a) states that “Despite any other law to the contrary, including customary international law, the fact that an accused person— is or was a head of state or government, a member of a government or parliament, an elected representative or a government official- is neither a defence to a charge of committing an offence referred to in this section, nor a ground for any possible reduction of sentence, once that person has been convicted of such offence”[17]

Section 6: Extra-territorial jurisdiction

The legislation provides for extra-territorial jurisdiction over acts of torture if committed by a citizen or resident, or if the acts have been committed against a citizen or resident. Jurisdiction may be exercised even in the absence of any link between the act committed and South Africa, as long as the accused is in the territory of the Republic.[18]

Section 6(1) provides that a court of the Republic has jurisdiction in respect of  an act committed outside the Republic which would have constituted an offence under section 4(1) or (2) had it been committed in the Republic, regardless of whether or not the act constitutes an offence at the place of its commission, if the accused person — (a) is is a citizen of the Republic; (b) is ordinarily resident in the Republic; (c) is, after the commission of the offence, present in the territory of the Republic, or in its territorial waters or on board a ship, vessel, off-shore installation, a ?xed  platform  or  aircraft  registered  or  required  to  be  registered   in  the Republic and that person is not extradited pursuant to Article 8 of the Convention; or (d) has committed the offence against a South African citizen or against a person who is ordinarily resident in the Republic.[19]

In a first, the Supreme Court of Appeal (SCA) had considered the investigation of crimes committed extraterritorially, and ordered the police to investigate Zimbabwe torture allegations.  In the case of National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre[20], the Court has made it clear that the perpetrators of systematic torture – as was alleged in this case – can be held accountable in South Africa regardless of where the offending acts took place.

Section 8: Expulsion, return or extradition

Notably, South Africa has also incorporated the principle of prohibition of refouelment in relation to torture in its ant-torture law.[21] Section 8(1) of the Prevention of Combating and Torture of Persons Act 2013 says that “no person shall be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture”.[22]

South-Africa’s Prevention and Combating of Torture of Persons Act prohibits refoulment/ repatriation/ deportation of any person to another state where there are danger of being subjected to torture.

For the purpose of determining whether there are such grounds, all relevant considerations must be taken into account, including, where applicable, the existence in the State concerned of a consistent pattern of gross, ?agrant or mass violations of human rights as required by the UNCAT.

Human Rights Committee observations and concerns

The South Africa Human Rights Commission participated in the review of South Africa’s report under the United Nations International Covenant on Civil and Political Rights (ICCPR) in Geneva March 2016.[23]

The Human Rights Committee, in its Concluding observations on the initial report of South Africa, on 27 April 2016 expressed concern about the absence of independent and sustained monitoring of places of deprivation of liberty other than prisons.[24]

It was also concerned about the number of reported cases of violence, including sexual violence, excessive use of force, torture and other forms of ill-treatment against detainees, as well as deaths resulting from actions of police and prison officials. It also notes with concern that few investigations into such reported cases have led to prosecutions resulting in the punishment of those responsible (arts. 2, 6, 7 and 10). The Committee called for South Africa to ensure that all deaths occurring in detention and all cases of violence committed in State or contract-managed prisons are investigated properly by an independent mechanism. It should also ensure that perpetrators of, and accomplices in, such violent acts are duly prosecuted and punished in accordance with the law, and that victims and their families are provided with remedies, including rehabilitation and compensation.[25]

The Committee also expressed concern at poor conditions of detention in some of the State party’s prisons, particularly with respect to overcrowding, dilapidated infrastructure, unsanitary conditions, inadequate food, lack of exercise, poor ventilation and limited access to health services. The Committee notes with concern the conditions of detention in the two super-maximum security prisons and the segregation measures imposed, for instance in Ebongweni super-maximum prison, where prisoners are locked up 23 hours a day for a minimum period of six months.[26]

The Committee observed that the Prevention and Combating of Torture of Persons Act does not itself provide for civil claims for redress of torture, and that such claims consequently need to be framed as a common law tort claim for assault or related offences of a less serious nature, since torture is not recognized as a tort.[27]

Torture violations in post-apartheid South Africa

Post-apartheid South Africa still confronts torture.  Statistics show a surge in reported torture cases.

The Independent Police Investigative Directorate (Ipid) has revealed that deaths while in police detention and allegations of assault and torture are continuing in South Africa and are not limited to the dark days of apartheid. Ipid statistics showed that 216 people died in police custody in 2015-16, of which 66 were reported as deaths by suicide in the form of hangings. In the same year, Ipid received 3,466 complaints of assault and 144 of torture.[28]

In 2012-13, Ipid reported 4,131 cases of assault and 50 cases of torture, while the 2013-14 figures were 3,916 cases of assault and 78 cases of torture. In 2014-15, the figures were 3,711 assaults and 145 cases of torture.[29]

In 2014 the South Gauteng High Court in Johannesburg ruled that the detention of migrants at the Lindela Repatriation Centre is unlawful and unconstitutional.[30] Concerns of torture violations at the Detention centre led to an investigation into violations of access to health for detainees at the Lindela Repatriation Centre by the South African Human Rights Commission.[31]

In its recommendations the Commission requested release of detained persons who had been extra judicially detained in excess of 120 days. Both the Department of Home Affairs and South African Police Services were also requested to take steps to secure the protection of human rights of persons who are arrested and detained.[32]


Endnotes:

[1]. TORTURE IN SOUTH AFRICA: The Act and the Facts, The Centre for the Study of Violence and Reconciliation, Face-sheet on Torture-September 2014, available at http://www.csvr.org.za/pdf/Torture%20in%20South%20Africa.pdf

[2]. Ibid

[3]. Ibid

[4]. Ibid

[5]. LEGAL FRAMEWORKS TO PREVENT TORTURE IN AFRICA: Best Practices, Shortcomings and Options Going Forward, REDRESS, March 2016, https://redress.org/wp-content/uploads/2017/12/1603anti-torturelegislative-frameworks-in-africa.pdf

[6]. TORTURE IN SOUTH AFRICA: The Act and the Facts, The Centre for the Study of Violence and Reconciliation, Face-sheet on Torture-September 2014, available at http://www.csvr.org.za/pdf/Torture%20in%20South%20Africa.pdf

[7]. Ibid

[8]. Section 11 Committees are advisory boards comprised of experts from different disciplines and institutions, who advise the Commission on matters related to Prevention of Torture. The committee name derives from the section of the South African Human Rights Commission Act, No. 40 of 2013, and provide for the Commission to establish advisory committees that bring together experts on specific focus areas.

[9]. President Zuma signs anti-torture legislation, APT, 30 July 2013, https://apt.ch/en/news_on_prevention/president-zuma-signs-anti-torturelegislation/

[10]. Ibid

[11]. Ibid

[12]. Criminal Procedure Act, s. 276; Prevention of Combating and Torture of Persons Act 2013, s 4(2)

[13]. Section 4 of Prevention of Combating and Torture of Persons Act 2013

[14]. Available at https://www.gov.za/sites/default/files/gcis_document/201409/36716act13of2013.pdf

[15]. Ibid

[16]. Section 4 of Prevention of Combating and Torture of Persons Act 2013

[17]. Available at https://www.gov.za/sites/default/files/gcis_document/201409/36716act13of2013.pdf

[18]. Section 6(2) of The Prevention of Combating and Torture of Persons Act

[19]. Section 6 of The Prevention of Combating and Torture of Persons Act

[20]. (485/2012) [2013] ZASCA 168, Judgmnet dated 27November 2013 available at http://www.justice.gov.za/sca/judgments/sca_2013/sca2013-168.pdf

[21]. Section 8 of Prevention of Combating and Torture of Persons Act 2013, https://www.gov.za/sites/default/files/gcis_document/201409/36716act13of 2013.pdf

[22]. Ibid

[23]. Strategic Focus Area: The Prevention of Torture, SAHRC, https://www.sahrc.org.za/index.php/focus-areas/human-rights-and-law-enforcementprevention-of-torture/prevention-of-torture

[24]. Concluding observations on the initial report of South Africa, Human Rights Committee, 27 April 2016, OHCHR, available at http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsjNhsg4iEJrI7PF4ucfG8b1SRx2MgL6UrimzwbkB9CZcYHas6p9NL%2foP11he2WEn3r9F9zC%2fturW6TMxu%2bs6rl3x56Ucs%2fI5OpBvPCe5eJjX

[25]. Ibid

[26]. Ibid

[27]. Ibid

[28]. At least 216 people died in police custody last year, The Citizen, 15 August 2017, https://citizen.co.za/news/south-africa/1611996/more-than-200-people-died-in-police-custody/

[29]. Ibid

[30]. Court rules Lindela detention unlawful, News24, 28 August 2014, https://www.news24.com/SouthAfrica/News/Court-rules-Lindela-detentionunlawful-20140828

[31]. Media Statement: Rights to health of Lindela detainees violated – SAHRC, South Africa Human Rights Commission, available at http://www.sahrc. org.za/home/indexae75.html?ipkMenuID=91&ipkArticleID=296

[32]. Media Statement: Rights to health of Lindela detainees violated – SAHRC, South Africa Human Rights Commission, available at http://www.sahrc. org.za/home/indexae75.html?ipkMenuID=91&ipkArticleID=296

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