Committee Against Torture Examines the Situation in South Africa
GENEVA, Switzerland, May 1, 2019/ — The Committee against Torture this afternoon concluded its consideration of the second periodic report of South Africa on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, John Jeffery, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, recalled that the horror of torture was embedded in South Africa’s history and that its past bore memories of widespread and institutionalized torture, which for the apartheid security forces had been a matter of routine. South Africa had enacted the Prevention and Combatting of Torture of Person Act in 2013, while the amendment to the Criminal Procedure Act had removed the previous 20-year statute of limitation in respect of torture. The principle of non-refoulement had been firmly codified in the Anti-Torture Act and the Refugees Act. The Independent Police Investigative Directorate had become operational in 2012, and worked to ensure accountability and transparency of the police, including through investigating cases of death in police custody as a result of police actions and complaints of torture or assault filed against a police officer. In March 2019, Parliament had approved the ratification of the Optional Protocol to the Convention. A number of bodies with an oversight mandate over places of detention – the Judicial Inspectorate for Correctional Service, the Independent Police Investigative Directorate, the Military Ombud, the Health Ombud – would play an important role in the national prevention mechanism under the auspices of the South African Human Rights Commission. Various initiatives had been implemented to reduce pre-trial detention, Mr. Jeffery said, and the Judicial Case Flow Management Committees had been set up at national, regional and local levels to ensure speedier investigation and finalization of cases, address blockages, and improve overcrowding in prisons in relation to un-sentenced and pre-trial detainees.
Committee Experts remarked that the anti-torture law failed to stipulate minimum sentence for acts of torture, thus opening up the space for a suspended sentence to be given to perpetrators of this most serious crime, and its implementation was a problem too as to date no public official had been prosecuted under this law. The Experts raised concern about the announced withdrawal of South Africa from the Rome Statute of the International Criminal Court and in particular about the International Crimes Bill, which would effectively provide for immunity of certain persons for international crimes, thus making the prohibition of the crime of torture not absolute. The Committee stressed the critical importance of ensuring adequate funding, transparent selection of members, and the full independence and impartiality of the South African Human Rights Commission, particularly in its upcoming role as coordinator of the national prevention mechanism. There was an increase in arbitrary detention for minor offences such as common assault, failure to provide proof of identity, or petty theft, as well as an increasing reliance on life imprisonment, which had recorded an 818 per cent growth since the turn of the millennium. In addition, most persons deprived of their liberty seemed to be young, marginalized, and vulnerable persons, usually under the age of 25, and 80 per cent were non-whites; almost half were held in pre-trial detention, with male non-whites more likely to be detained prior to trial.
In his concluding remarks, Mr. Jeffery said that over the past 25 years, the new democratic government had removed old apartheid laws and institutions, built new democratic institutions and initiated laws based on constitutional rights and freedoms. It had taken a collective responsibility to eradicate torture, including through the ratification of the Optional Protocol under which the national prevention mechanism would be created.
Jens Modvig, Committee Chairperson, in his concluding remarks, said that the question of intersectionality was being heavily debated during the treaty bodies review process. All treaty bodies aimed to avoid unnecessary duplication but the question was what was unnecessary duplication and what were the intersecting areas. He underlined that torture could be committed against women, children, or persons with disabilities, and it must be acceptable for the Committee against Torture to address those issues in the dialogue.
The delegation of South Africa consisted of representatives of the Department of Justice and Constitutional Development, Department of Home Affairs, Independent Police Investigative Directorate, Department of Correctional Services, Department of Women, Department of International Relations and Cooperation, Department of Social Development, Office of the Chief State Law Adviser, South African Police Service, as well as the representatives of the Permanent Mission of South Africa to the United Nations Office at Geneva.
The Committee will issue its concluding observations on the report of South Africa at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.
The Committee will next meet in public at 10 a.m. on Thursday, 2 May, to review the third periodic report of Benin ( CAT/C/BEN/3).
Report
The Committee has before it the second periodic report of South Africa ( CAT/C/ZAF/2) and its reply to the list of issues ( CAT/C/ZAF/Q/2/Add.2).
Presentation of the Report
JOHN JEFFERY, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, recalled that the horror of torture was embedded in his country’s history, as its past bore memories of widespread and institutionalized torture, which for the apartheid security forces had been a matter of routine. Mindful of its tragic past, South Africa had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1998. In July 2013, acting on the Committee’s concluding observations following the review of the initial report in 2006, South Africa had incorporated the Convention into its domestic law by enacting the Prevention and Combatting of Torture of Person Act. The Act provided for the offence of torture of persons and for the prevention and combatting of torture of persons within or across the national borders, and imposed a maximum penalty of R100 million or life imprisonment, or both, in the case of a conviction. By prescribing a penalty of up to life imprisonment, the Act reflected the gravity of the crime, and upheld the absolute, non-derogable character of the prohibition of torture, the Deputy Minister stressed.
The amendment to the Criminal Procedure Act had removed the previous 20-year statute of limitation in respect of torture, and the principle of non-refoulement had been firmly codified in the Anti-Torture Act and the Refugees Act 1998. Furthermore, the Independent Police Investigative Directorate had become operational in 2012, and worked to ensure accountability and transparency of the police, including through investigating cases of death in police custody as a result of police actions and complaints of torture or assault filed against a police officer. In March 2019, both Houses of Parliament – the National Assembly and the National Council of Provinces – had approved the ratification of the Optional Protocol to the Convention against Torture, the Deputy Minister said, and added that a significant amount of work had already gone into the establishment of the national prevention mechanism. South Africa already had a number of institutions which had an oversight mandate over places of detention and carried out many of the functions required by the national prevention mechanism in terms of their respective mandates. The funding of the national prevention mechanism had commenced on 1 April 2019; the Department of Justice and Constitutional Development had allocated the funding, ring-fenced for the next three years, amounting to 1.6 million rand for 2019/20, 2.3 million rand for 2020/21, and 2.4 million rand for 2021/22.
Corporal punishment had been prohibited in detention settings in 1995 and banned in schools in 2000. The common law defence of ‘reasonable chastisement’ allowed parents to use corporal punishment in the home as a form of discipline; it had been prohibited and declared unconstitutional by the South Gauteng High Court in October 2017, and the matter was now before the Constitutional Court. Various initiatives had been implemented to reduce pre-trial detention, Mr. Jeffery said, including the comprehensive national human rights framework aligned to the Luanda Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa and the Mandela Rules. Judicial Case Flow Management Committees had been set up at national, regional and local levels to ensure speedier investigation and finalization of cases, address blockages, and improve overcrowding in prisons in relation to un-sentenced and pre-trial detainees. A number of bodies had an oversight mandate over places of detention, such as the Judicial Inspectorate for Correctional Service, the Independent Police Investigative Directorate, the Military Ombud, the Health Ombud, and others, who would place an important role in the national prevention mechanism under the auspices of the South African Human Rights Commission.
Questions by the Committee Experts
ANA RACU, Committee Co-Rapporteur for South Africa, welcomed the adoption of a number of laws in South Africa, in particular on the prevention of torture, on combatting trafficking in persons, on sexual offences, and on the enactment of the Independent Police Investigative Directorate Act.
Turning to the definition of torture and its criminalization, the Co-Rapporteur noted that the Prevention and Combatting of Torture of Person Act highlighted the seriousness of the crime of torture through its harsh punishment and represented a significant framework contributing to the prevention and investigation of acts of torture and punishment of its perpetrators. Still, significant gaps remained both in the legal protection and the implementation of the laws. The Act did not categorize torture as one of the serious crimes and consequently did not stipulate a minimum sentence, thus creating a possibility for perpetrators to be given a suspended sentence, which was not commensurate with the gravity of the crime. Furthermore, it did not adequately address the responsibility of the State to provide redress to victims of torture, and to date, no public official had been prosecuted under this Act. Which specific norms and legislation had been used to prosecute State officials for isolated incidents of assault, murder or torture? What was the status of the ongoing revision of the enabling legislation for the Independent Police Investigative Directorate, mandated to investigate cases of assault and torture by the members of the police?
The Committee was concerned about the announcement in 2016 that South Africa would withdraw from the Rome Statute of the International Criminal Court and its subsequent repeal of the domestic enacting legislation. This decision had been challenged by civil society organizations and political parties before the North Gauteng High Court, which in February 2017 had declared that the decision by the National Executive to deliver the notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional. In this context, what was the status of the international criminal jurisdiction in the country?
The South African Human Rights Commission had a broad mandate and had received A status under the Paris Principles. However, there were concerns about the lack of financial resources to enable it to fulfil its mandate, lack of clarity concerning the selection of personnel, and the lack of a specific mandate to monitor places of detention. These questions were increasingly important in the light of the recent developments related to the establishment of a national prevention mechanism under the Optional Protocol to the Convention, said Ms. Racu. The preferred model proposed for South Africa was a multiple-body national prevention mechanism with the South African Human Rights Commission playing a lead functional and coordinating role. In this context, ensuring adequate funding, transparent selection of members, and the full independence and impartiality of the mechanism was essential.
As for the monitoring of places of detention, the Judicial Inspectorate for Correctional Services had appointed an Independent Correctional Centre Visitor for each correctional centre to monitor prison conditions. However, non-governmental organizations claimed that many lacked independence in their oversight and raised concerns about the lack of regular and independent monitoring of police cells.
The Co-Rapporteur commended South Africa for the legal provisions adopted in order to ensure the implementation of the fundamental legal safeguards, noting in particular that the country was among the few in the region which had a functional and successful system of legal aid, including a system of free legal aid for vulnerable groups. A custody register was kept in all police stations, and every action taken by the police officers regarding persons in custody, from their arrest to their release from police custody, must be recorded in the occurrence book. Were those accessible to lawyers, Human Rights Commissioners, monitoring entities and family members? Were police officers who failed to make an entry into the book held accountable? Had the law been amended to provide for the mandatory audio and video recording of interrogation rooms?
Access to a doctor was another vital safeguard – could the delegation explain how all detainees in police custody could access a doctor and medical examination? The Committee was concerned that since the entry into force of the Anti-Torture Act in 2013, the number of deaths in custody had increased but no torture cases had been brought before the courts under this Act.
Another issue of concern was the increase in arbitrary detention for minor offences such as common assault, failure to provide proof of identity, or petty theft. There were reports of security forces arbitrarily arresting migrants and refugees, even those with documentation. From the legal point, all relevant procedures for the protection of refugees and asylum-seekers were in place, including the appeal procedure, the principle of non-refoulement, and access to legal aid. However, concerns had been noted about the treatment by the police in prisons and the Lindela Repatriation Centre, as well as detention of asylum-seekers for deportation purposes. What steps were in place to ensure that migrants and refugees were not returned to a country where they ran a risk of being tortured?
Xenophobic violence was on the rise throughout the country, often targeted at foreign nationals running small shops and migrant workers who were accused of “stealing jobs” from the nationals. The Co-Rapporteur requested information on xenophobic incidents and steps taken to investigate them, and measures put in place to protect the most affected ethnic and religious groups.
South Africa had made significant institutional and legislative advances to address gender-based violence, the Co-Rapporteur said, noting in particular the establishment of specialized courts dealing with sexual offences, the setting up of the community-based Thutuzela centres for the care for victims of gender-based violence, and the adoption of the National Instructions on Domestic Violence. Still, domestic violence remained pervasive and included physical, sexual, emotional and verbal abuse, and the rate of reporting and prosecution of violence against women remained very low. How many cases of gender-based violence had been investigated and prosecuted over the past five years and what were the sentences handed down?
The Committee noted with concern the increasing reliance on life imprisonment in South Africa, which had recorded an 818 per cent growth in such sentences since the turn of the millennium. Legal provisions for parole were very complicated, and it seemed that minors could be sentenced to life imprisonment without parole. How many persons had been sentenced to life imprisonment so far, and what was being done to reduce the number of life prisoners and to amend the relative legislation?
The Committee was alarmed by the number of deaths in custody: 216 deaths in police custody and 366 deaths as a result of police action during the 2015-2016 period. The investigations into those deaths conducted by the Judicial Inspectorate of Correctional Service did not seem to be efficient, especially when deaths occurred at the hand of police officers.
ESSADIA BELMIR, Committee Vice-Chairperson and Co-Rapporteur for South Africa, raised the question of training for public officials and law enforcement officers in preventing and combatting torture, particularly in detention facilities, and asked whether it included the provisions of the Istanbul Protocol and how the impact of the training activities was measured. Was such training incorporated in the basic instruction of law enforcement officers, the so-called national instruction? What initiatives were in place to disseminate the Convention, including in collaboration with civil society organizations? Ms. Belmir raised concern about the frequency of torture and ill treatment at the hand of public officials, as well as the pattern and acceptance of violence in the society.
Most persons deprived of their liberty seemed to be young, marginalized and vulnerable persons, usually under the age of 25, and 80 per cent were non-whites; almost half were held in pre-trial detention, with male non-whites more likely to be detained prior to trial. The 2008 legal amendment had replaced the use of solitary confinement with the practice of “segregation”, under judicial orders. What complaint mechanism was available to detainees? The rampant prison overcrowding was often at the root of multiple forms of violence that occurred in prisons, including torture, sexual violence, and excessive use of force, and which sometimes resulted in deaths. A contributing factor to overcrowding was the high rate of pre-trial detention, which could last up to two years. The data on the number of complaints of acts of torture and the number of convictions seemed to indicate that police officers were charged with and prosecuted for acts of torture only exceptionally.
South Africa had made substantial progress concerning reparations, including the provisions contained in the Anti-Torture and the Anti-Trafficking Acts. What was the status of the victim in the law? The Co-Rapporteur urged the State party to adopt a clear legal definition which would then facilitate access to reparation and rehabilitation. What forms of reparations and redress were available and provided to victims?
The Truth and Reconciliation Commission had done excellent work, but some of its recommendations, especially those related to the accountability of perpetrators, investigation of enforced disappearance, and restitution for victims, had not been implemented as yet. There were still people in South Africa who enjoyed impunity.
Turning to the situation of refugees, migrants and asylum-seekers, the Co-Rapporteur raised concern about the proposals contained in the Government’s white paper on migration, such as to process foreign citizens on the border, including their detention. What was the age of majority in South Africa and how were children treated by the criminal justice system, Ms. Belmir asked? She noted cases in which minors in conflict with the law were put in the same places as children in need of care.
Other Experts noted the conflicting statements from various South African officials concerning the withdrawal from the Rome Statute of the International Criminal Court and asked the delegation to clarify the situation and brief on the status of the International Crimes Bill, which proposed that a person might enjoy immunity from international crimes under certain conditions, including for crimes of torture.
The Anti-Trafficking Act established the extra-territorial jurisdiction of South African courts over the crime of child trafficking – had any persons been charged, prosecuted, and/or convicted under this law? Had there been any investigations and prosecutions of State officials involved in crimes of trafficking in persons, including those who reportedly had falsified birth certificates and other official documentation? What was being done to resolve the chronic and long-standing lack of funding for the implementation of the Domestic Violence Act?
An Expert recalled that reparation to victims of torture was an obligation of the State party and noted that in South Africa, civil proceedings by the victim could only take place if there was a criminal conviction of torture for the perpetrators, which was a concern given the limited number of convictions under the 2013 Anti-Torture Act. Another Expert remarked that segregation had replaced the abolished practice of solitary confinement but it was in fact a disguised form of solitary confinement as it allowed for isolation for a period of two months, in clear violation of the Nelson Mandela Rules.
JENS MODVIG, Committee Chairperson, addressed the issue of healthcare for detainees, and asked whether there were any formal agreements in place with subcontracting non-governmental organizations which provided health care and what systems of oversight of the treatment of prisoners were in place.
Replies by the Delegation
Responding to the questions and comments, the delegation said that South Africa held human rights activists in high regard and stressed that without those brave people, the struggle for freedom in the country would not have been possible. Their rights, like all those living in South Africa, were enshrined in the Constitution and systems were in place to ensure that complaints of rights violations could be lodged and punished.
South Africa’s long history of oppression and subjugation was well known and expertly documented and the struggle for emancipation had not been easily won nor was it something the Government took for granted, stressed the delegation. South Africans knew what it meant to fight for freedom and shared the collective responsibility to never again go back to the dark and awful place that sought to dehumanize. Thus, to label South Africa violent and by extension, its people violent, was to undermine the legacy that the country lived with every single day, stressed the delegation.
The systematic manner in which the law had been used for generations to subjugate, dehumanize, and rob people of their dignity on an enormous scale must be recognized. Instead of holding those most responsible for committing crimes against humanity – apartheid had been and still was a crime against humanity – South Africa had decided to establish a Truth and Reconciliation Commission and begin the process of healing and forgiving. It had been a time for peace and the need for healing and forgiveness had been paramount. This had motivated the Government to take an unprecedented step, unlike its apartheid predecessors, to sign and ratify myriad international human rights instruments, chief amongst them the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That was also why South Africa had recently ratified the Optional Protocol to the Convention.
In a general comment on the questions raised, the delegation said that many of the issues related to issues that fell under other treaties and some went beyond the scope of the Convention against Torture. An example was a host of questions raised on xenophobia and its causes, and details of xenophobic attacks, which were considered under the International Convention on the Elimination of All Forms of Racial Discrimination. In South Africa, xenophobia was about class issues and competition over resources, notably for the poorest in society, the delegation underlined.
As far as the parole system was concerned, the delegation said that at present, a person who had received a life imprisonment had to serve at least 25 years of the sentence before parole could be considered. There were different periods for the qualification of parole for such inmates, depending on when they had been sentenced; the parole of persons sentenced to life before 1 October 2004 had been identified in 2018 as a priority project for review and had been placed on the permanent agenda of the National Management Committee.
A victim of torture did not need to secure a criminal conviction to claim compensation from the perpetrator of torture and could choose both criminal and civil avenues to seek redress. The South African law did not provide for a mere administrative award of damages but required a judicial process initiated by the issuance of a civil claim.
The Department for Correctional Services coordinated and ensured the provision of primary healthcare to the inmate population, including babies of incarcerated women.
As for the long periods of pre-trial detention, the delegation said that case flow management was under judicial responsibility, and it was the Chief Justice who issued norms and standards for the finalization of cases. The postponement of cases was dealt with through the judiciary who generally readily granted postponement to accommodate the accused. Various measures had been initiated to limit long outstanding cases through specific monitoring of such cases and addressing blockages across the criminal justice system. The correctional services legislation had been amended and it now provided for referral of remand prisoners to court before completion of a period of two years in detention; if the court decided that the remand detainee must continue with detention, subsequent applications were submitted annually. There were approximately 46,000 remand detainees and those detained for longer than two years constituted less than five per cent.
Segregation as a penalty did not amount to solitary confinement under any circumstances, the delegate stressed. It could be administered upon the written request of the inmate, or be prescribed by the correctional medical practitioner on medical grounds, when the inmate displayed violence or was threatened with violence, or for escape attempts.
The Independent Correctional Centre Visitors was an oversight mechanism of the Inspecting Judge which was appointed for each correctional facility to inspect the conditions of detention and report on the treatment of inmates and on corrupt or dishonest practices. All deaths in custody were reported to the Inspecting Judge, whether they were natural or not, and an independent senior official was appointed to conduct the investigation into the death of a prisoner. If the death was due to unknown or undetermined causes, a medical post-mortem and legal full investigation must be conducted without exception to determine the causes and circumstances.
South Africa had chosen not to provide for minimum sentences in the anti-torture legislation, said the delegate, adding that a study of practices of other States indicated diverging approaches to sentencing.
The President of South Africa was personally leading the fight against gender-based violence and had called a Presidential Gender-Based Violence and Femicide Summit in November 2018, during which he had acknowledged the brutal reality of those crimes. In addition to passing legislation preventing and prohibiting domestic violence, harassment, sexual offences, and trafficking in persons, there were various policies and programmes in place to support victims and prevent secondary traumatization. Sexual violence was the most prevalent form of gender-based violence, and in 2017 almost 50,000 cases had been reported. Since 2013, South Africa had established 84 sexual offences courts which offered a catalogue of victim-centric services, including court preparation services, and intermediaries who conveyed questions and statements received from the court to the victim in a sensitive and age-appropriate manner, and who could appear in cases involving child witnesses and witnesses with intellectual disabilities. There were 55 Thuthuzela care centres in support of victims, which were attached to hospitals or clinics where a survivor could go for medical attention and have evidence of the crime collected.
South Africa had moved away from the death penalty in 1994, which had been replaced by long-term imprisonment with the maximum being a life sentence. Sentencing was a matter of judicial independence and judicial discretion. The South African Human Rights Commission was institutionally independent and would be the coordinating body for the national prevention mechanism.
The notice of withdrawal from the Rome Statute, as well as the International Crimes Bill, had been tabled in Parliament. Neither of the houses of the Parliament had pronounced themselves on the notice of withdrawal, thus the current status was that South Africa was a State party to the Rome Statute. Both bills would have to be reviewed by the next administration. South Africa remarked that three of the permanent members of the United Nations Security Council were not States parties to the International Criminal Court and yet could exercise a veto in relation to the referral of cases to the Court. The restructuring of the International Criminal Court was something that the international community needed to consider. Furthermore, the cases before the court were only from Africa; the success rate in recent cases had not been great and could lead to the argument that the decisions on who to prosecute were subjected to a political agenda. South Africa was outraged by the recent denial of United States visas to the prosecutors of the International Criminal Court.
There were currently 130 shelters for victims of gender-based violence in the country. Survivors from rural areas were reluctant to be admitted to shelters due to stigma and cultural beliefs and largely preferred to use psychological support services and skills empowerment. In addition to shelters, there were 206 White Door Safe Spaces of Hope, an emergency temporary intervention which provided 72-hour service response to the challenge of the lack of safe accommodation for women victims of gender-based violence whose lives were in danger. Khuseleka One Stop Centres were community-based centres that provided comprehensive services, including medical, legal and skills development services by multi-disciplinary teams comprised of social workers, nurses, doctors, police officers, court preparation officers, and prosecutors.
Restorative and healing programmes had been developed to support victims of trafficking in persons, contribute towards their psycho-social restoration and healing, and enable them to reintegrate in their families and communities.
As for minors in conflict with the law, the delegation said that the age of majority in South Africa was 18 years. In terms of the Child Justice Act, a child under the age of 10 did not have a criminal responsibility and could not be prosecuted for the offence, but had to be referred to the probation officer for assessment and placement in an accredited therapeutic programme, as part of the intervention. The age of criminal responsibility was 10. Children between the ages of 10 and 18 were referred to as young offenders or children in conflict with the law and were dealt with by the child justice court.
The Prevention and Combatting of Hate Crimes and Hate Speech Bill was before Parliament, but would have to be reviewed by the next administration. The Bill defined hate crime as an offence recognized under any law, the commission of which was motivated on the basis of that person’s prejudice, bias, or intolerance toward the victim. The crime was based on the characteristics of the victim, including race, gender, sex including intersex, ethnic or social origin, colour, sexual orientation, religion, belief, language, birth, disability, gender identity, albinism, and others.
The amendment bill on the Independent Police Investigative Directorate, which was currently with the National Council of Provinces, proposed that torture be elevated as a stand-alone offence. All death in custody cases and post-mortem examinations were conducted by pathologists. There were 23 cases involving torture with the National Prosecution Authority.
With regard to arbitrary arrests by the police, including the arrests of asylum-seekers and refugees, the delegation stressed that arrest was defined by a comprehensive legal framework, which could not be selectively and restrictively applied. Once an arrest was affected, arrested persons were brought before courts within a period of 48 hours. If arrested persons were migrants, refugees or asylum-seekers, the police would inform the Department of Home Affairs to assist in determining whether the arrestee was legally residing in the country and whether they could be accordingly released or processed for deportation.
South Africa did not detain migrant children, and children intercepted in the course of anti-trafficking operations were handed over to the Department of Social Development. Asylum-seekers were only detained at Lindela facility, once their asylum application had been rejected. To ensure that asylum applications were not arbitrarily refused, the Standing Committee under the Refugees Act was in place as an independent structure to formulate and implement asylum-granting procedures and review decisions of the Refugees Status Determination Officers. An independent refugee appeal board was also in place.
The Lindela facility had a permanent health clinic and a referral system to specialist medical care providers. It was regularly inspected by the International Committee of the Red Cross and the South African Human Rights Commission to ensure compliance with international standards.
The Citizenship Act of 1995 made provisions for the documentation of stateless children. The principle of non-refoulement was fully embedded in the law in terms of the Anti-Torture Act, the Refugees Acts, and court decisions, and South Africa did not return any person to a country where his or her life was likely to be harmed.
In terms of protests, the Constitutional Court had found the section on public gatherings of people unconstitutional and the Government was working to amend the legislation. Unfortunately, a number of protests had become violent, for example the 2015/16 student protest for free tertiary education which had caused 492 million rand in damages to university property.
Questions by Committee Experts
ANA RACU, Committee Co-Rapporteur for South Africa, reminded the delegation that the Convention covered not only acts of torture but all acts of cruel, inhuman or degrading treatment or punishment. The Co-Rapporteur reiterated the concern that the Anti-Torture Act did not stipulate a minimum sentence for acts of torture which opened up the space for a suspended sentence to be given to perpetrators. How efficient were the monitoring visits to correctional facilities? Over the last five years, how many medical reports containing findings of torture had been transmitted to the prosecution and how many cases had been instigated?
ESSADIA BELMIR, Committee Vice-Chairperson and Co-Rapporteur for South Africa, said that the legal provisions allowed for a prolonged pre-trial detention of up to two years and it was estimated that four per cent of all pre-trial detainees already exceeded this limit. Furthermore, pre-trial detainees had a different legal status from the sentenced inmates and should be held separately. As for the use of violence by the law enforcement officers, the Co-Rapporteur noted that in KwaZulu-Natal province, 257 deaths in custody had been recorded, and asked the delegation to explain.
Other Experts referred to the replies concerning the withdrawal of South Africa from the International Criminal Court and said that the problem was not whether the country was a party to the Rome Statute or not. The heart of the problem was that the International Crimes Bill, which would probably accompany withdrawal, would effectively provide for immunity of certain persons for international crimes, thus making the prohibition of the crime of torture not absolute.
The Experts stressed the intersectionality of many of the issues that were under the remit of the Committee, and cited as an example the Convention against Apartheid, which was not too long, but the issues it dealt with were relevant to the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and a number of other international human rights instruments. Human rights issues could not be compartmentalized, the Experts stressed.
Replies by the Delegation
The delegation said that Parliament had decided against introducing a minimum sentencing in the anti-torture legislation. The number of life prisoners had been dramatically reduced. The national prevention mechanism that South Africa had chosen was the multi-body model in which the monitoring and inspections were carried out by existing agencies, which were coordinated by the South African Human Rights Commission.
Segregation was not solitary confinement and was provided for under the correctional services act. The delegation stressed that all laws in South Africa must be constitutional and those which were not were struck down. The law prescribed for the prisoner in segregation to be checked upon by a prison guard every four hours, and visited by the head of the prison, a registered nurse and a psychologist once a day.
South Africa believed in the interdependence and indivisibility of human rights and understood the intersectionality of the areas of the Committee’s work. The treaty bodies needed to acknowledge the reporting challenges for developing countries, said the delegation, and urged Committee Experts to refer to the proceedings from South Africa’s review by other treaty bodies, and in which a number of similar questions had been asked and answered.
South Africa had recently adopted the white paper on the management of international migration, in which it had recognized the nexus between migration management and development. The reality should also be acknowledged in that the management of international migration could not be divorced from security considerations, stressed the delegation. South Africa did not have a security approach to migration as attested by the institution of special procedure for fast-tracking of asylum requests, which had been used to process more than 200,000 nationals of neighbouring countries.
Concluding Remarks
JOHN JEFFERY, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, said that over the past 25 years, the new democratic government had removed old apartheid laws and institutions, built new democratic institutions, and initiated laws based on constitutional rights and freedoms. Still, poverty, inequality, and unemployment remained critical challenges, as was the fight against corruption. South Africa had taken a collective responsibility to eradicate torture, including through the ratification of the Optional Protocol under which the national prevention mechanism would be created.
JENS MODVIG, Committee Chairperson, thanked the delegation for the dialogue and said that the question of intersectionality was being heavily debated during the treaty bodies review process. All treaty bodies aimed to avoid unnecessary duplication but the question was what was unnecessary duplication and what were the intersecting areas. Torture could be committed against women, children, or persons with disabilities, and it must be acceptable for the Committee against Torture to address those issues in the dialogue. The Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year. All States parties were encouraged to also submit a review of the implementation of the Committee’s concluding observations.
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