The Republic of South Africa1 held its first non-racial democratic elections in 1994, following decades of legally sanctioned racial discrimination under the apartheid regime of the National Party. The African National Congress (ANC), along with other liberation movements, successfully mobilised against the apartheid state and won the 1994 elections. It has been the majority ruling party since 1994. The new ANC-led government reformed all its major legal frameworks, institutions, and practices to give effect to its democratic ideals and a new Constitution (Act 108 of 1996) was adopted in 1996. It has been hailed as one of the most progressive in the world. In 1996, the Truth and Reconciliation Commission (TRC) was established to investigate human rights abuses perpetrated during the apartheid era.
The country developed into a regional economic powerhouse and became ranked as a middle-income country, joining the G20, the World Trade Organisation and other world economic forums. South Africa also plays a vital role in the regional and continental institutions such as the African Union, the Southern African Development Community and the Southern African Customs Union. While playing an active role in conflict prevention, peace-building and peace-making efforts in Africa, South Africa faces some great challenges of its own, including stark (racial) inequalities, xenophobia, poor service delivery, high crime rates, overburdened justice and correctional services, increasing corruption and high HIV/AIDS rates.
The executive arm of national government is headed up by the Cabinet, which consists of the President (currently Jacob Zuma), the Deputy President, and various Ministers appointed by the President from the National Assembly. The President also determines which functions each of the Ministers will perform. The legislative branch, a bicameral Parliament, consists of the National Council of Provinces (there are nine provinces) and the National Assembly, members of which serve five-year terms. South Africa has a mixed legal system of Roman-Dutch civil law, English common law and (African) customary law. The court structure includes Magistrate Courts, High Courts, the Supreme Court of Appeal and the Constitutional Court.
Relevant actors in the field of law enforcement are the South African Police Force (SAPS), which is headed by the National Commissioner and falls under the responsibility of the Ministry of Police; the National Prosecuting Authority, led by the National Director of Public Prosecutions; and the Department of Correctional Services (DCS), led by the National Commissioner, under the Minister of Correctional Services. Other departments that have the power to deprive persons of their liberty are the South African National Defence Force (military personnel detained under the military justice system), the Department of Home Affairs (illegal immigrants), the Department of Social Development (children and youths living in care centres) and the Department of Health (individuals committed to substance abuse treatment and psychiatric hospitals).
In February 2011, the DCS held a total population of 162,152 detainees, of which almost a third (49,695) were awaiting trial.2 The prison population rate is estimated at 316 per 100,000 inhabitants. The level of overcrowding was at 137.25%, according to DCS statistics.3
South Africa has ratified a range of international human rights instruments, including the UN Convention against Torture (UNCAT). South Africa has signed, but not yet ratified the Optional Protocol to the UNCAT (OPCAT).4 Extensive use of torture against political opponents under the apartheid regime (the TRC recorded nearly 4,800 incidents of torture) made the drafters of the new Constitution alive to the issue of torture and the importance of including the right to be free from torture in the Constitution.5 Section 12 – ‘Freedom and Security of the Person’ – protects the right to be free from torture, while section 11 provides for the right to life and section 10 for the right to human dignity. The Constitutional Court has confirmed the right to dignity in numerous cases, and, while showing great understanding for the challenges facing the government, has been firm in ensuring that the rights of people deprived of their liberty are not eroded.6 In addition to the right to dignity, section 35 of the Constitution spells out the rights of arrested and detained persons in great detail, providing all the necessary safeguards. These safeguards can also be found in the Criminal Procedure Act (Act 51 of 1977), including in Chapter 5 (on arrest) and Chapter 11 (on assistance to the accused). Capital7 and corporal8 punishment were both declared unconstitutional by the Constitutional Court in 1995.
The Correctional Services Act (Act 11 of 1998) provides further legal protection from torture and other ill-treatment, stating in section 2(b) that the purpose of the correctional system is to detain ‘all prisoners in safe custody whilst ensuring their human dignity.’ Chapter 2 and its accompanying Regulations describe the general requirements pertaining to prison conditions and the treatment of prisoners. Furthermore, the White Paper on Corrections in South Africa emphasises the right of prisoners to be detained under conditions of human dignity.9 However, while dignity and safe custody are stressed across the board, the phrasing ‘torture and other ill-treatment’ has not entered the policy jargon of the DCS.10 SAPS, however, adopted a ‘Policy on the prevention of torture and the treatment of persons in custody of the South African Police Service’ in 1998, acknowledging the risks involved in the deprivation of liberty and affirming the absolute prohibition of torture. Legislation with regard to detention of immigrants,11 psychiatric patients12 and children13 contains protective measures and reference to conditions of detention, but does not include any reference to the prohibition of torture or ill-treatment. Such reference is included in legislation on substance abuse treatment centres, but only with regard to disciplinary measures.14 Military detention does not seem to be covered by any protective legislation.15
While the constitutional, legal and procedural protection from torture is generally adequate, a great shortcoming in the South African legal framework is that torture has not been criminalised. Allegations of torture are therefore investigated and prosecuted under common law criminal offences, such as assault, grievous bodily harm, indecent assault or rape.16 This leads to problems with regard to ensuring punishment in proportion to the crime and makes it very difficult to get any proper statistics on the occurrence of torture. A ‘Combating of Torture Bill’ has been on the drawing table for a long time, and the Department of Justice has said that it plans to table this Bill before Parliament in early 2012. While the adoption of this Bill should improve the situation in South Africa, an analysis of the latest publicly available version pointed out a number of shortcomings. Further consultation with stakeholders will be necessary to ensure the government’s full implementation of its obligations under the UNCAT.
Furthermore, the preliminary research findings of the Article 5 Initiative suggest that there is a disparity between what the law provides in terms of safeguards for persons deprived of their liberty and what occurs in practice. International, regional and domestic human rights bodies and civil society organisations have reported incidences of torture and other ill-treatment of persons deprived of their liberty.17 Within the prison system, the key challenges to preventing torture, ill-treatment and other human rights violations were identified as being overcrowding and a growing prison population; increasing sentence lengths and a rapid increase in prisoners serving life imprisonment; a high mortality rate amongst prisoners, presumably due to HIV/AIDS; high levels of inter-prisoner violence; the assault of prisoners by officials, often with fatal consequences; and an increasingly youthful prison population.18
Generally, women and children are kept separate from adult men in correctional centres, and certain specific needs are addressed, but in order to full comply with international standards in this regard, specific policies to adequately protect all vulnerable groups are needed. Sexual violence in prisons remains a matter of serious concern.19
Oversight of prisons and police cells is performed, respectively, by the Judicial Inspectorate of Correctional Services (JICS) and the Independent Complaints Directorate (ICD). Both the JICS and the ICD have a strong mandate with regard to full access to prisons and police cells and all related information, and there are mandatory reporting mechanisms on incidences such as unnatural deaths. Certain problems remain, however; for instance, regarding the implementation of their recommendations20 and the lack of a definition of torture as a basis for investigations.21 Problems identified in the ICD’s mandate and functioning22 led to a new law establishing the Independent Police Investigative Directorate, which should replace ICD and become operative early 2012. Unfortunately, the South African Human Rights Commission has a wide mandate and limited resources, rendering it unable to actively monitor the situation on the ground throughout the country.23 The Commission does, however, express public concern regarding non-ratification of the OPCAT and incidences of torture and ill-treatment in custodial settings, and works with civil society on issues relating to prevention of torture.24 The South African Parliament also plays an active oversight role through its respective portfolio committees.
Mental Health Review Boards are responsible for monitoring treatment of patients in mental health institutions, but their access to these institutions is limited.25 With regard to children in child and youth care centres, oversight is defined in section 110 of the Child Justice Act. Oversight of both immigration and military detention is extremely limited.26
There is no procedure for torture survivors to seek compensation for personal injury in criminal proceedings in South Africa,27 although damages may be claimed in civil law. Section 38 of the Constitution also provides that ‘anyone listed in [Chapter 2 of the Bill of Rights] has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights’.28 Non-profit legal organisations, like the Legal Resources Centre, provide legal assistance to torture survivors attempting to claim redress through the courts.
While the state is working to improve support to survivors of sexual and domestic violence, with the support of the Department of Social Development,29 there is no specific state-run rehabilitation programme for victims of torture at the hand of state officials. However, several civil society organisations do provide relevant rehabilitation and counselling services (these include the Centre for the Study of Violence and Reconciliation [CSVR], the Khulumani Support Group, the KwaZulu-Natal Programme for Survivors of Violence, the Southern African Centre for Survivors of Torture, and the Trauma Centre for Survivors of Violence and Torture). The South African No Torture Consortium (SANToC) was established to link such organisations together and combine advocacy efforts. Further, a broad range of South African civil society organisations – including the African Policing Civilian Oversight Forum, the Civil Society Prison Reform Initiative, CSVR, Khulisa, the Institute for Security Studies, and NICRO – is directly or indirectly active in the field of prevention of torture and ill-treatment. Their activities include providing services to ex-offenders, supporting children in conflict with the law, conducting research on issues relating to crime prevention and deprivation of liberty and continuously advocating for criminal justice and penal reform. In 2011, a civil society campaign was started by the Community Law Centre, bringing together a great range of NGOs advocating for domestication of the UN Convention against Torture.30 Unfortunately, many organisations that provide services falling under the responsibility of the state are not funded or supported by the state for their work and rely mainly on (international) donor organisations.
In conclusion, the adoption of domestic legislation providing a legal framework for the treatment of persons deprived of their liberty is to be welcomed, as is the transparency provided by oversight mechanisms on prisons and police detention. However, there is still room for improvement with regard to actual implementation of legal standards, and torture, ill-treatment and conditions of detention continue to be a concern. The lack of comprehensive legislation to prevent and combat torture, including torture as a specific offence, remains a serious shortcoming in the country’s legal framework. The lack of implementation of recommendations by national and international oversight bodies leaves space to question South Africa’s full commitment in the fight against torture. Further, obstacles remain for victims of torture and other forms of ill-treatment in accessing justice and obtaining adequate reparation. The extensive civil society engagement in this field is commendable and the state is encouraged to increase support to civil society service providers.
- The baseline study was performed as desktop research, limiting itself to available literature, reports and statistics, which may sometimes be outdated. Throughout the work of the project, discussions with local authorities and civil society may fill some of these gaps and ensure a more comprehensive and up-to-date report.
- This background section was drafted based on information from several sources, including the following: CIA Factbook on South Africa, accessed 1 October 2011 <https://www.cia.gov/library/publications/the-world-factbook/geos/sf.html>; Hendricks C & Musavenga T Eds. 2010 Monograph 174: The Security Sector in Southern Africa Institute for Security Studies, Pretoria; Muntingh L 2011 Guide to the UN Convention against Torture in South Africa 2nd Ed CSPRI – Community Law Centre, Cape Town.
- These include the ICCPR, CERD, CEDAW, CAT, CRC, CRMW and the CRPD. South Africa has signed, but is yet to ratify the ICESCR.
- Muntingh 2011, p 11.
- Muntingh 2011, p. 12.
- S v Makwanyane and Another 1995 (3) SA 391 (CC).
- S v Williams (3) SA 632 (CC).
- Department of Correctional Services 2005 White Paper on Corrections in South Africa Pretoria, para 5.1.1.
- Muntingh 2011, p. 13.
- Section 34(1)(e) of the Immigration Act (13 of 2003).
- Sections 9, 10 and 11 of the Mental Health Care Act (17 of 2002).
- Sections 106 and 194.
- Section 51 of the Prevention of and Treatment for Substance Abuse (70 of 2008).
- Muntingh 2011, p. 16.
- Streater O 2008 Review of Existing Mechanisms for the Prevention and Investigation of Torture and Cruel, Inhuman and Degrading Treatment or Punishment in South Africa Centre for the Study of Violence and Reconciliation, Braamfontein, p. 15.
- See e.g. UN Committee against Torture Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture – South Africa CAT/C/ZAF/CO/1 6-24 November 2006; UN Human Rights Council Summary prepared by the OHCHR A/HRC/WG.6/1/ZAF/3 11 March 2008, paras 5-13; Judicial Inspectorate of Correctional Services 2010 Annual Report 2009-2010 Pretoria, Chapter Three & pp. 59-76; Independent Complaints Directorate 2011 Annual Report 2010-2011 Pretoria.
- UN Human Rights Council A/HRC/WG.6/1/ZAF/3, para 11.
- See e.g. Gear S 2010 ‘Imprisoning men in Violence. Masculinity and sexual abuse: a view from South African prisons’ SA Crime Quarterly No. 33 pp. 25-32; and Gear S & Ngubeni K 2002 Daai Ding: Sex, sexual violence and coercion in men’s prisons Research report written for the Centre for the Study of Violence and Reconciliation, Braamfontein.
- Streater 2008 pp. 20 & 32.
- ICD and APCOF, Investigating Torture: The New Legislative Framework and Mandate of the Independent Complaints Directorate, Workshop Report, March 2010, Pretoria, p. 29.
- See abovementioned ICD and APCOF report p.29-33 for more detail.
- Fernandez L 2003 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as Adopted in 2002 by the UN General Assembly 57/1999: Implications for South Africa CSPRI Research Paper No. 2, NICRO and the Community Law Centre, Cape Town.
- See e.g. SAHRC expresses concerns about reports of torture of persons in custody of the state and to urge for the ratification of OPCAT 8 November 2010, accessed 1 October 2011, http://www.sahrc.org.za/home/index.php?ipkMenuID=16&ipkArticleID=34, SAHRC condemns the alleged torture of an awaiting trial prisoner at the Pretoria Central Prison 20 July 2011, accessed 1 October 2011, http://www.sahrc.org.za/home/index.php?ipkArticleID=71
- See Chapter 4 of the Mental Health Care Act (17 of 2002). See also Streater 2008, p. 36.
- Muntingh 2011, p. 16.
- Criminal courts may only award compensation for damages to property, see S300 CPA.
- Streater 2008, p. 16.
- See e.g. Department of Social Development 2011 Annual Report 2010-2011, on the Victim Empowerment Programme, pp. 65 and 133.
- Members of this campaign are the African Policing Civilian Oversight Forum, Association for the Prevention of Torture, Centre for Child Law, Centre for the Study of Violence and Reconciliation, Centre for Applied Legal Studies, Child Justice Alliance, Civil Society Prison Reform Initiative (Community Law Centre), Consortium for Refugees & Migrants in South Africa, Gender, Health & Justice Research Unit, Institute for Social Security Studies, Lawyers for Human Rights, NICRO and the Open Society Foundation South Africa.
South African Resources
- Universal Periodic Review documents