Raped inmate sues prison service
When Bradley McCallum, a tattooed and toothless inmate of Port Elizabeth’s St Alban’s prison, was beaten and raped with a baton by a warder , no one could have predicted the propensity of the slightly built prisoner to fight back.
“I decided enough is enough,” he recalled. “I thought: ‘I’m going to stand up for myself as a prisoner and a human being. I don’t care what happens as long as people know how I’ve been treated.’ “
McCallum, 32, didn’t suffer alone. His rape was part of a prison-wide orgy of mass-beatings, assault and torture by about 50 warders in retribution for the murder of fellow-warder Babini Nqakula – a relative of then-minister of safety and security Charles Nqakula, husband of Minister of Correctional Services Nosiviwe Ma-pisa-Nqakula.
“A warder shoved a baton up my anus and said: ‘Where’s your knife? You can put it in your bank account, we’ll take it out with interest,’ “ McCallum said. “When I tried to crawl away, he trampled on my back forcing me to lie face-down on the floor. I felt like trash…”
Now Egon Oswald, a lawyer operating a one-man practice from an old house in Port Elizabeth, is suing the Minister of Correctional Services for damages on behalf of McCallum and 230 other prisoners.
It is probably the largest damages claim yet instituted against the Department of Correctional Services (DCS).
Hopefully, this will draw attention to the excessive use of violence by officials in SA prisons. Surprisingly, after McCallum lodged a complaint with the UN Human Rights Committee (UNHRC) in Geneva and won his 2010 case, Bradley McCallum vs SA, no one seemed to notice or even care, least of all SA, which ignored six requests by the UN to respond to McCallum’s allegations.
“This matter is by no means over,” said Oswald, a quietly spoken former commercial lawyer who was voted Human Rights Lawyer of the year by the Cape Law Society in 2011.
“It’s a matter of principle. The rule of law must be upheld and public officials held accountable.”
Released on parole in 2010, McCallum still recalls the July 2005 attacks in detail: “I was lying on my bed on a Sunday morning when I heard Warder P shouting: ‘Julle naiers, julle ma se p***, hardloop uit!’ “ (You f******, come running out!) He hit me on the arm with his baton. Then he hit me on the head. All the time, he was shouting ‘Tronk naaier, tronk bitch!’ (Jail f*****, jail bitch), grabbing my shirt and kicking me.
“We were forced to run naked down the corridor through a tunnel of warders who hit us while we were running and sprayed us with water. They were swearing and screaming: ‘Today you’re going to die!’ Then they forced us to lie on the wet floor in a long human chain – about 70 prisoners from my section. Each inmate had their nose in the arse of the person in front of them. If you turned to look up, they kicked you in the face with an army boot. There were also female warders who walked over us, kicked us in our genitals and mocked us about our private parts. And there were dogs.
“People were terrified. The warders beat us with batons, shock-boards, broomsticks, pool-cues and pick-axe handles.
“As a result of the electric-shock shields and the terror, the prisoners were p****** and s****** on themselves and on each other.
“Blood was literally running down those prison walls.”
Then the inmates were told to run into their cell. In the ensuing chaos, they fell over each other, slipped and tripped on the floor which was covered in water, urine, faeces and blood.
“There were people with Aids, TB, diabetes, sick people, old people. The warders didn’t care,” McCallum said.
Initially, Oswald found McCallum’s story hard to believe. But when complaints flooded in, he realised it was true and not an isolated incident.
“Every one of these guys suffered injuries. They had bruises, blunt-force contusions, dog-bites, broken limbs; they’d been electrocuted and were psychologically traumatised.”
McCallum, for one, still carries scars. After the beatings, he had a dislocated jaw, head wounds, a damaged arm and flashbacks, and lost his teeth.
He said the inmates were denied medical help for a month. In desperation, they attempted to treat themselves by burning toilet paper and covering their wounds with sand and ash.
Concerned about HIV infection from other inmates’ bodily fluids, McCallum was also denied HIV testing and other basic privileges like phone, exercise, access to legal representation and his family.
Yet when he complained to the authorities and anyone else he thought might listen, no disciplinary action was taken against the perpetrators and no criminal sanction followed.
After all oversight mechanisms failed and the State claimed McCallum had not made his statutory demand within a stipulated six-month period, Oswald approached the UNHRC on his behalf.
At the UNHRC’s 100th sitting, SA was found to have violated its obligations in terms of the International Convention on Civil and Political Rights and the UN Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment. SA had also flouted the provisions of its own constitution, violated the African Charter on Human and People’s Rights and the Robben Island Guidelines.
The SA Human Rights Commission’s Judith Cohen said: “This is a peremptory norm of international law that binds all states, whether they’ve signed the international instruments or not.”
SA was instructed to investigate McCallum’s claims, prosecute those responsible and provide a remedy and information about measures taken within 180 days. In October 2011, Correctional Services finally issued a media statement but ignored the UNHRC’s request to publish its findings.
The following month, driven by what he describes as “a total antipathy to the abuse of power”, Oswald brought a successful High Court application compelling discovery of all documents relating to inmates’ complaints.
Correctional Services spokesman Sonwabo Mbananga said: “The alleged incident happened before the minister’s appointment. When she first became aware of the matter in September last year, she immediately instructed the department to re-open an investigation into the matter.
“Stern action will be taken if the incident is confirmed and there were human rights violations by our officials.
“At that point, the department will start looking at remedies. A police investigation has also been undertaken.”
Meantime, as Cohen points out, SA is not notching up a good reporting record at international level. For example, SA’s report to the Committee Against Torture has been outstanding since 2009: “The fact that SA was asked to respond to the UN and repeatedly ignored the requests is indicative of how seriously SA regards its international obligations.”
What’s more, the 2010/11 Judicial Inspectorate for Correctional Services (JICS) report noted a “disconcerting trend” of deaths implicating officials who employed “unnecessary force in instances where the inmate posed little or no threat to safety”. The report also noted a reduction in the number of unnatural deaths from 55 in 2009/210 to 48 in 2010/11 – an official or officials were implicated in eight of these deaths.
Since neither DCS nor JICS provide torture statistics in their annual reports, it’s difficult to assess its prevalence in SA’s 241 jails. Moreover, torture is often unreported.
“People in prison don’t stand up for their rights; they don’t even know they have rights,” McCallum noted.
Though prison officials are supposed to use “minimum force” to quell violence, the use of electric-shock belts, stun-shields, stun-batons and leg-irons appears widespread.
“The use of this equipment runs contrary to international norms and standards and has no place in modern-day correctional institutions,” the Institute for Security Studies’ Noel Stott told the parliamentary portfolio committee on Correctional Services last year.
Perhaps the fact St Alban’s warders believed they could assault and torture inmates with impunity is understandable – SA has no legislation criminalising torture even though it’s outlawed by the constitution.
“At the moment, if perpetrators are brought before a criminal court they’ll be charged with a common law crime like assault, culpable homicide or murder,” Cohen explained.
“SA has failed to enact any legislation outlawing torture as required in terms of its international obligations.
The local representative of the Geneva-based Association for the Prevention of Torture, Amanda Dissel, believes that “a crime of torture would assist the authorities to recognise acts of torture and initiate proper investigations of torture with the diligence, impartiality and competence required by international law”.
“How the St Alban’s case happened and how we prevent it happening in the future is what matters,” said Cohen.
“This isn’t just about McCallum, it’s about what went wrong. There’s a high probability this isn’t an isolated case, there are more McCallums out there and there’ll be more in the future…”
l Carolyn Raphaely, the current Webber Wentzel legal journalist of the year, is a member of the Wits Justice Project which investigates miscarriages of justice. - Carolyn Raphaely