Torture still occurring in post-apartheid SA, says John Jeffery

Deputy Minister of Justice and Constitutional Development, John Jeffery File picture: Bongani Shilubane

Deputy Minister of Justice and Constitutional Development, John Jeffery File picture: Bongani Shilubane

Published Jul 5, 2021


Perpetrators of apartheid-era atrocities might yet feel the might of the law in democratic South Africa as the investigating authorities obtain the necessary capacity to go after them, warned Deputy Minister of Justice and Constitutional Development, John Jeffery.

“Many victims of apartheid-era atrocities were victims of torture and we are confident that the enhanced and dedicated capacity within the National Prosecuting Authority (NPA) to prosecute these crimes will help to ensure justice for many victims and their families,” he said.

The deputy minister welcomed an announcement by the NPA and the Hawks last month on the International Day in Support of Victims of Torture saying they were ramping up efforts to probe and prosecute cases before the Truth and Reconciliation Commission.

Jeffery was speaking at the National Preventive Mechanism (NPM) International Conference, hosted by the South African Human Rights Commission on Wednesday. The NPM forms part of the HRC’s Prevention of Torture and Human Rights in Law Enforcement portfolio, headed by commissioner Danny Titus, with a mandate to promote, protect and monitor the realisation of the civil and political rights associated with law enforcement.

“There is no denying our brutal past, where torture was regularly used by the state machinery to oppress people, punish them or silence them. Sadly, even in our hard-fought democracy, instances of torture still occur – with the most recent case being reported earlier this month when the Independent Police Investigative Directorate (IPID) arrested a SAPS detective for allegedly torturing a suspect to death in the Eastern Cape, where the suspect was detained at the Barkley East police station,” he said.

Jeffery told the virtual conference that specific challenges brought about by the Covid-19 impacts on the work of the NPM with the UN’s anti-torture structures warning that the pandemic is leading to an escalation of torture and ill-treatment worldwide, and torture survivors are especially in danger of getting infected due to their vulnerable situation.

“People deprived of liberty, already subject to the risk of cruel, inhuman and degrading treatment behind bars and in other confined spaces, are now facing a new threat – namely that of being particularly vulnerable whilst being in detention or confined in closed spaces, where social distancing is practically impossible,” Jeffery said.

Dr Jens Modvig, the former chair of the UN Committee against Torture, stated: “Governments have a greater duty than ever to guarantee the safety of all people deprived of their liberty. Inmates should enjoy the same standards of healthcare that are available in the community at large, including access to virus testing and medical treatment.”

Jeffery expressed alarm at some of the comments from certain sections of the public raising their unhappiness in response to the announcement that prisoners will be receiving Covid-19 vaccinations, seemingly ignoring what is in the Constitution.

He quoted the Judicial Inspectorate for Correctional Services Inspecting Judge Edwin Cameron, who recently wrote: “Being imprisoned is the punishment – not punitive treatment while in prison. Everyone has the right to access healthcare – including prisoners.”

“In short, Covid-19 has made the work of NPMs around the world even more important. The pandemic must never be used to avoid complying with our duty to eradicate all forms of torture,” he said.

To this end, he said the establishment of the NPM has been a major step forward. Since 2019, the HRC has visited “64 places of deprivation of liberty” – police stations, mental health institutions, correctional centres, refugee reception centres, secure care centres and CYCCs (child and youth care centres) looking at conditions of people within.

Last year, the Wits Justice Project reported that R535 million was paid out by the SAPS in wrongful arrest claims in 2019, but on average, only 120 police officers were found guilty, and in most cases, fined for misconduct.

The NPM has been a long while coming to South Africa. The Optional Protocol was adopted by the United Nations General Assembly in December 2002 and came into force in June 2006. South Africa signed it in September 2006. But Parliament’s National Assembly and the National Council of Provinces only approved the ratification after a long legislative journey on 19 and 28 March 2019 respectively.

The establishment of the NPM in 2019 marked almost 13 years since South Africa signed the Optional Protocol. But under the eye of the SAHRC, work has progressed smoothly. The NPM is also currently undertaking a baseline assessment as a follow-up to the Global Study on Children Deprived of their Liberty by conducting thematic visits to secure care centres where children in conflict with the law are deprived of their liberty. Under an EU-funded project together with the Association for the Prevention of Torture (APT), it is working on assessing the implementation of the Bangkok Rules in South Africa and the SADC region. The Bangkok Rules form part of 70 measures by United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders.

Jeffery said the Justice Department has further supported the HRC and the Association for the Prevention of Torture (APT) in their successful application for funds amounting to R1.1m (€65 000) under the developmental SA-EU Strategic Partnership Dialogue Facility.

Much work has to be done to ensure that torture and other ill-treatment is prevented. But Jeffery is hopeful that South Africa is on track to ensure better handling of civil liberties as opposed to the torturous past – though he alluded to police brutality saying, sadly, some aspects remain.

* Edwin Naidu writes for the Wits Justice Project (WJP). Based in the Wits journalism department, it investigates human rights abuses and miscarriages of justice related to South Africa’s criminal justice system.

Sunday Independent