SOUTH AFRICA
REPUBLIC OF SOUTH AFRICA
Head of state and government: Thabo Mbeki
Death penalty: abolitionist for all crimes
International Criminal Court: ratified
Background
Political tensions within the ruling African National Congress (ANC) and between the ANC and its Alliance partners were marked at the time of court proceedings relating to corruption and rape charges against former Deputy President Jacob Zuma. His supporters accused the National Directorate of Public Prosecutions (NDPP) of having a political agenda against Jacob Zuma.
In local government elections in March, the ANC won a majority in most municipal councils, although the government's record on delivery of socio-economic transformation continued to be challenged.
Political violence in KwaZulu Natal led to the deaths of a number of ANC and Inkatha Freedom Party candidates.
Business, church and other delegations appealed to President Mbeki to take effective measures against high levels of violent crime. The government placed the investigative arm of the NDPP, known as the Scorpions, under the political control of the Minister of Safety and Security.
The Deputy President and Deputy Minister of Health began a dialogue with civil society organizations on achieving a more effective response to the HIV/AIDS pandemic.
Human rights violations by police
Torture and misuse of lethal force against crime suspects continued to be reported, in a context of high levels of violent crime and police fatalities. Corroborated cases involved members of the South African Police Service (SAPS), particularly from the Serious and Violent Crime Units (SVCU), torturing suspects with suffocation and electric shock devices, as well as kicking and beating suspects. Several detainees died as a result. Interrogation sessions sometimes took place in informal locations. Torture equipment was found on the premises of the Vanderbijlpark SVCU after a court-ordered search.
- Musa Jan Sibiya died at Lydenburg police station in February after allegedly being assaulted by police. A state district surgeon reported he died from natural causes, but an independent postmortem found he had died from a ruptured bowel caused by a traumatic perforation.
- Msizwe Mkhuthukane died in February at East London police station after being similarly assaulted. He was denied urgent medical care in custody. On 1 November five police officers appeared in court on murder charges.
- A security guard, R, and his wife lodged a civil claim for damages against the police authorities after they were subjected to electric shock torture at Randburg police station on 1 May. R was also kicked, slapped and punched while handcuffed and tied at the ankles, and subjected to suffocation torture with plastic sheeting. He was transferred to Roodepoort police station and denied medical care until he was released uncharged with his wife on 4 May. The state denied any liability in response to the legal suit.
Protests continued against poor socio-economic conditions and forced evictions. Police appeared to have used excessive force in some cases, including, in June, against community members from Maandagshoek, Limpopo, protesting against Anglo-Platinum use of their land for mining and, in September, against members of the Durban-based Shack-Dwellers Association (Abahlali baseMjondolo).
In July the Harrismith Regional Court acquitted three police officers of all charges arising from the death of 17-year-old Teboho Mkhonza and injuries to scores of others when police broke up a non-violent demonstration in August 2004. The court accepted defence evidence that the boy had died as a result of negligence by hospital staff. The police had opened fire without warning using illegal live ammunition. In October, 13 Harrismith community activists were acquitted of charges of public violence arising from the same demonstration.
On 26 July the Director of Public Prosecutions withdrew charges against 51 members of the Landless People's Movement who had been on trial since 2004 on charges under the Electoral Act.
Abuse of prisoners
The 3,500-page report of the Jali Commission of Inquiry, appointed by President Mbeki in 2001 to investigate corruption and violence in prisons, was made public in November. Among its findings were that corruption and maladministration were institutionalized and that C-Max Super-Maximum security prison made routine use of solitary confinement and torture. It found that sexual violence was rife, with young, gay and transsexual prisoners most vulnerable, and that warders were implicated in many sexual assaults and in selling sexual favours by incarcerated youths to adult prisoners.
Impunity for abuses was fostered by management failure to institute hearings and follow up on criminal charges. Police investigations were also manipulated by prison staff. An example was the failure to discipline prison warders implicated in a mass assault on prisoners in Ncome prison in January 2003. Despite independent medical corroboration of allegations that prisoners had been beaten, the Department of Correctional Services (DCS) allowed the official investigation to lapse. The Jali Commission recommended charges against named DCS members in relation to this and some other incidents.
On 23 April the Port Elizabeth High Court ordered that prisoners at St Alban's Prison could consult their lawyers in private to prepare a civil claim for assault against the DCS. They had been denied access to lawyers after prison staff allegedly embarked on a mass assault of prisoners in retaliation for the killing of a colleague.
Inhumane prison conditions persisted due to severe overcrowding, with two thirds of prisons holding more than 100 per cent of their capacity.
Refugees and asylum-seekers
The Department of Home Affairs (DHA) initiated new procedures at the Pretoria and Johannesburg Refugee Reception Offices in an effort to improve the management of over 1,000 new applications from asylum-seekers weekly. However, in December the Pretoria High Court ruled, in a case involving seven Zimbabweans, that the procedures were unconstitutional and unlawful, including the practice of issuing only 'appointment slips' to applicants, which left them without legal protection against arbitrary arrest, detention and deportation. The 'pre-screening' policy had resulted in unlawful rejections of applications. The Court directed the DHA to receive and process applications for asylum in a fair and non-discriminatory manner. The Cape Town High Court made a similar ruling in June.
Hundreds of suspected illegal immigrants detained at Lindela Repatriation Centre (Lindela) were unlawfully held beyond the period allowed under the Immigration Act (30 days or 120 days with a court warrant). In August the Johannesburg High Court ordered the DHA to release 57 Congolese nationals who were facing imminent deportation. The group included at least one recognized refugee, 18 who held asylum-seeker permits and nine with DHA 'appointment slips'. Forty-four of them had been held for between 35 days and 16 months. Also in August, at least 10 people with asylum-seeker permits were deported to Burundi.
Private security guards at Lindela appeared to have used excessive force in response to detainees? protests in July and November.
Unlawful transfer
Police and DHA officials handed over Khalid Mehmood Rashid, a national of Pakistan, to Pakistan government agents in November 2005. He was flown out of South Africa on a flight with no number. Twelve months later, he had still not been produced in the Pakistan High Court in response to a habeas corpus petition. By the end of the year the Pretoria High Court had not given a ruling on whether the manner of Khalid Mehmood Rashid?s removal from South Africa was unlawful and contrary to the country?s international human rights obligations.
Death penalty
The justice authorities completed the process of replacing the remaining 62 death sentences with alternative sentences by July. The Constitutional Court ruled on 30 November that the orders made under its 1995 judgement which found the death penalty to be unconstitutional had now been complied with fully by the government.
People living with HIV/AIDS
UNAIDS reported in December that the HIV epidemic in South Africa continued to grow, with prevalence of HIV among women attending public antenatal clinics 35 per cent higher in 2005 than in 1999. Some 5.4 million people, including a quarter of a million children under 15, were living with HIV. In November the Department of Health reported that 273 accredited facilities were providing anti-retroviral treatment (ART) to 213,828 people, although some 300,000 others still needed access to it. Children's access to paediatric ART was also still limited. On 1 December the Deputy President announced the draft strategic plan for 2007 to 2011.
An application by 15 Durban Westville HIV-positive prisoners and the Treatment Action Campaign for prisoners to have access to ART was granted by the Durban High Court in June. The state appealed against this ruling and failed to implement an urgent interim order. In August the High Court found the state in contempt of court and ordered the original ruling to be implemented, along with other measures to give prisoners access to ART. By the end of November, four more prisons had been accredited to provide ART.
Violence against women and children
Police statistics for the year April 2005 to March 2006 recorded 54,926 reported rapes, a decrease of 0.3 per cent, with 42.7 per cent of them against children under the age of 18.
In June, Parliament resumed discussion on the draft Sexual Offences Bill, which had been held up in the Department of Justice since 2004. Organizations assisting survivors of sexual violence and child sexual abuse remained concerned that the Bill did not adequately protect complainants, especially children, at the investigation and trial stages. The Bill, however, contained an expanded statutory offence of rape applicable to all forms of 'sexual penetration' without consent and defined forms of coercion which would indicate lack of consent. The state would be obliged to provide post-exposure prophylaxis to victims exposed to the risk of HIV and to develop a national policy framework to improve implementation of the Bill. It had not been passed by the end of the year.
Investigators, prosecutors and the courts remained restricted by the common-law definition of rape in their response to sexual violence cases. In July the Pretoria High Court upheld a conviction of rape in a magistrate's court against an accused charged with anally penetrating a nine-year-old child, on the grounds that the common-law definition of rape, which is limited to penile penetration of the vagina without consent, was inconsistent with the requirements of constitutional law. However, the High Court ruling was under appeal at the end of the year.
There were fears that the disestablishment of specialist detective units, including the unit responsible for investigating family violence and child sexual abuse, would undermine the effectiveness of police investigations. Community-based organizations produced evidence indicating that police had lost rape investigation dockets through inefficiency or corruption.
The high number of deaths of boys attending traditional circumcision schools - more than 100 in the preceding 10 years - prompted national public hearings by the South African Human Rights Commission (SAHRC) and two other statutory bodies. The hearings, conducted in October, were held in four provinces. The SAHRC also conducted hearings, in September, on school-based violence.
Impunity
There was concern about the legality of prosecution guidelines approved by the Cabinet in 2005 and presented to Parliament in January 2006. The guidelines would give the NDPP the administrative discretion to allow immunity from prosecution for crimes "emanating from the conflicts of the past" for people who failed to apply for or were refused amnesty by the Truth and Reconciliation Commission's Amnesty Committee. While the applicant would have to disclose all the circumstances of the alleged offence, and the NDPP would have to obtain the views of any victims before arriving at a decision, there was no obligation to take into account the victims' views or provision for judicial assessment of the truthfulness of the evidence. The guidelines did not explicitly exclude from consideration for immunity crimes such as torture, crimes against humanity and war crimes.
As of 30 September, the government had paid reparations of R30,000 (approximately US$4,200) to 15,520 individuals identified by the Truth and Reconciliation Commission as eligible because of human rights abuses before May 1994.
Freedom of expression
In October a Commission of Inquiry into allegations of politically motivated interference in the output of the public broadcaster, the SABC, found that certain individuals were being excluded from interviews in news programmes for improper reasons. The Commissioners found that the head of news and current affairs, Dr Snuki Zikalala, had instructed staff not to use certain individuals on grounds which included their opinions on controversial issues, and that he had threatened to discipline some staff if they failed to follow these instructions. The SABC Board, who had appointed Dr Zikalala, did not make the report public. It made a failed attempt to get a High Court order compelling the Mail & Guardian newspaper to remove a leaked copy from its website.
AI country reports/visits
Reports
- South Africa: Government must investigate circumstances of ?disappeared? Pakistani?s transfer (AI Index: AFR 53/001/2006)
- South Africa: Briefing for the Committee against Torture (AI Index: AFR 53/002/2006)
Visits
In October and November AI delegates visited the country for research and held meetings with civil society organizations and the Department of Foreign Affairs. AI representatives attended the UN Committee against Torture hearing on South Africa in November.
Article tags : Africa , South Africa , economic social and cultural rights , freedom of expression , HIV/AIDS , police brutality , torture and other ill-treatment , violence against women