Committee against Torture
23 April–17 May 2019
Item 4 of the provisional agenda Consideration of reports submitted by States parties under article 19 of the Convention
List of issues in relation to the second periodic report of South Africa
Replies of South Africa to the list of issues *
[Date received: 2 April 2019]
1.Pursuant to article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”), South Africa is pleased to submit its Reply to the List of Issues (CAT/C/ZAF/Q/2/Add.1) (“LOIs”) in relation to the Combined Second Periodic Report of South Africa, as adopted by the Committee, at its sixty-fifth session.
2.South Africa also prepared and submitted to the United Nations a revised Common Core document in 2019. This Reply augments the information submitted in the various reports and the Common Core (Annexure 1).
Reply to the issues raised in paragraph 1 of the LOIs
3.The issues raised in the LOIs will be addressed ad seriatim in the replies hereunder.
Reply to the issues raised in paragraph 2 of the LOIs
4.South Africa signed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”) in 1993 and ratified it in 1998. In 2006 we also signed the Optional Protocol to the Convention against Torture (“OPCAT”) and in 2019 Cabinet approved that OPCAT be submitted to Parliament for ratification. South Africa considers torture a human rights violation and therefore contrary to the Bill of Rights of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).
5.Torture is an offence in South Africa and perpetrators of this specific crime have been charged, prosecuted and convicted under the Prevention and Combating of Torture of Persons Act, 2013 (“the Anti-Torture Act”), which gives effect to South Africa’s obligations in terms of the Convention. In addition, there are various offences on the statute book that have been used to prosecute State officials for acts or omissions that do not strictly fall within the prescription of torture, such as assault, assault with intent to do grievous bodily harm, murder, various sexual offences as contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 and intimidation as contemplated in the Intimidation Act, 1982.
6.The Independent Police Investigative Directorate (“IPID”) is mandated by the Independent Police Investigative Directorate Act, 2011 to investigate cases of assault and torture by members of the police. To prevent or investigate acts of torture by law enforcement officials, the South African Police Service (“SAPS”) has developed internal policies (within the framework of the South African Police Service Act, 1995) aimed at dealing with all matters relating to torture by its officials. Similarly, the Judicial Inspectorate for Correctional Services (JICS) is mandated to, amongst others, investigate assaults, custodial deaths and the use of force on inmates.
7.The Anti-Torture Act also applies to incidents of torture by soldiers. If convicted of a lesser offence, the Military Court has a prerogative in terms of sentencing, in line with the Military Discipline Supplementary Measures Act, 1999. Members of the South African National Defence Force (SANDF) were charged under the Act for acts committed whilst deployed in the Democratic Republic of Congo and were convicted of assault.
Reply to the issues raised in paragraph 3 of the LOIs
8.With regards to penalties in the Anti-Torture Act, any person found guilty of the offence of torture is upon conviction liable to imprisonment, including imprisonment for life. In terms of the Criminal Procedure Act, 1977 (“the CPA”), the Child Justice Act, 2008 (“the CJA”) and general principles of sentencing as developed by the courts, sentences must be proportional to the gravity of the offence and take into account the seriousness of the offence, the interests of society and the personal circumstances of the accused. The Anti-Torture Act provides for specific factors that a court must consider when imposing a sentence for a crime of torture. No one shall be punished for disobeying an order to commit torture.
Reply to the issues raised in paragraph 4 of the LOIs
9.Section 18 of the CPA regulates prescription of the right to institute prosecutions and specifically provides that the right to institute prosecutions for the offence of torture never lapses.
10.The investigation of criminal offences and subsequent criminal proceedings are regulated by the CPA and also apply to the investigation of torture. The crime of torture is prosecuted by the National Prosecuting Authority (“the NPA”) before a court with appropriate jurisdiction to adjudicate the matter. Legislation provides that the offence of torture must be investigated by the South African Police Service (SAPS). The Directorate for Priority Crime Investigation has a mandate to investigate national priority offences, which includes any offence which may be punished by life imprisonment. In exceptional cases offences may also be investigated by an Investigating Directorate as contemplated in Chapter 5 of the National Prosecuting Authority Act, 1998. IPID and the military police are also empowered to investigate offences which specifically relates to the SAPS and the SANDF, including torture. IPID is specifically empowered to investigate torture allegations against the police and must, after completion of the investigation, submit the docket to the NPA to make a decision on prosecution. The Constitutional Court has furthermore held that SAPS has an obligation under the Constitution, the International Criminal Court, 2002 and South Africa’s international law obligations, to investigate crimes of torture committed outside the Republic’s borders in circumstances where the State in whose territory the crimes were committed is unwilling or unable to investigate them, and if an investigation would be reasonable and practicable in the circumstances.
Reply to the issues raised in paragraph 5 of the LOIs
11.Flowing from the fundamental legal rights of accused persons, they have to be informed of their rights upon arrest or within a reasonable time after arrest. Law enforcement officers inform the suspect orally in a language they understand. In terms of section 35(2)(c) of the Constitution everyone who is detained, including every sentenced prisoner, has the right to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of the right promptly. The SAPS therefore has a duty to inform an accused/detained person of the right to apply for legal aid. Other constitutional rights include the right to communicate with, and be visited by, that person’s spouse or partner, next of kin, chosen religious counsellor and chosen medical practitioner.
12.The CJA provides for specific procedures to ensure that fundamental rights of accused children, are protected. This includes that a child should only be arrested as a last resort. Children in detention must be permitted visits by parents, appropriate adults, guardians, legal representatives, registered social workers, probation officers, assistant probation officers, health workers, religious counsellors and any other person who, in terms of any law, is entitled to visit. The child must also be cared for in a manner consistent with the special needs of children, including the provision of immediate and appropriate health care in the event of any illness, injury or severe psychological trauma.
Reply to the issues raised in paragraph 6 of the LOIs
13.In terms of section 35(2)(c) of the Constitution everyone who is detained, including every sentenced prisoner, has the right to have a legal practitioner assigned by the state and at state expense, if substantial injustice would otherwise result, and to be informed of the right promptly.
14.Legal aid mechanismsfor all persons in South Africa (inclusive of foreign nationals) and specific vulnerable groups have been strengthened through Legal Aid regulations by e.g. providing that legal aid may also be provided for maintenance, domestic violence and harassment cases. Legal aid may further be provided to asylum seekers and in Hague Convention cases, also to children in civil proceedings involving the child. Legal Aid SA may undertake or fund litigation or other legal work which has the potential to positively affect the lives of a larger number of indigent persons. South Africa has annually increased its budget to ensure an appropriate legal aid footprint country-wide.
Reply to the issues raised in paragraph 7 of the LOIs
15. Various initiatives have been implemented to reduce pre-trial detention. South Africa has a comprehensive legal framework aligned to human rights norms and standards, including the Luanda Guidelines on the Conditions of Arrest, Police Custody and Pre-trial Detention in Africa and the Nelson Mandela Rules. Various legislative provisions recognise the fundamental rights of detained persons and provide for alternatives to remand detention. The Justice, Crime Prevention and Security (JCPS) Cluster Departments have put in place various measures to monitor the status of all persons awaiting the finalisation of their cases for long periods. Judicial Case Flow Management Committees have also been set up at national, regional and local level to ensure speedier investigation and finalisation of cases; addressing blockages; and improving overcrowding of prisons in relation to un-sentenced and pre-trial persons. Legislative measures were enacted, such as Section 49F, 49G, 49E and 63 of the Correctional Services Act, and fully operationalised and are assisting in reducing the number of persons in remand detention. Cases may be referred back to courts by correctional facilities to revisit whether bail can be granted or for a reduction of bail. Statistical data on the reduction of pre-trial detention, in particular that of remand children and sentenced children, is provided in Annexure 2: Tables 1–3 and Annexure 3. Noteworthy is that from 2000 to 2017 the average number of remand children reduced by more than 90%.
16.The time spent in pre-trial detention is taken into account as a factor when determining sentence. Sentencing is a matter of judicial discretion. The presiding officer takes a number of factors into account for sentencing. There is legislation prescribing mandatory minimum sentences for certain offences with the severity of the offence and the criminal history of the offender as key factors in determining a sentence. The punishment imposed, including when it is set by statute, must not be disproportionate to the offence. The period spent in custody awaiting trial is a factor to be taken into account in determining whether substantial and compelling circumstances exist to allow that a prescribed minimum sentence may be departed from. There is no rule as to how to determine what weight is to be given to that period.
17.The pre-trial detention of children is regulated by the CJA. A child should as a general rule be detained in a child and youth care centre. The CJA furthermore provides for factors to be considered by presiding officers before placing a child in prison. Presiding officers ordering the detention of a child in prison must direct that the child be brought before them or any other court every 14 days to reconsider the order. A child justice court imposing a sentence of imprisonment must take into account the number of days that the child has spent in prison or a child and youth care centre prior to the sentence being imposed.
Reply to the issues raised in paragraph 8 of the LOIs
18.IPID is mandated to ensure effective independent oversight of the SAPS and Municipal Police Services (MPS) through independent and impartial investigations of criminal conduct pertaining to the SAPS and MPS. The IPID Act sets out the mandateandaccountability of IPID. IPID must report to Parliament twice a year on the number and type of cases investigated, the recommendations, the details and the outcomes of those recommendations. The 2017/18 Annual Report of IPID is attached (Annexure 4) and sets out its financial and human resources. Domestic growth forecasts over the medium term of government’s three-year budgeting cycle had to be revised downwards by National Treasury for all departments, including IPID, and IPID’s expenditure ceiling was reduced by R15 billion in 2018/19. IPID’s budget is as follows:
Reply to the issues raised in paragraph 9 of the LOIs
19.The process of reviewing the South African Police Service Act, 1995 which was enacted before the current Constitution, has commenced. Although the Act has been amended on numerous occasions, the need for an overarching policy framework that captures a democratic approach to policing has been emphasized. The White Paper on Policing seeks to address current lacunas and calls for such a democratic approach in line with the norms and values of the Constitution and emphasises the importance of a policing approach which is demilitarised, community-centred, rights-based and accountable. It stresses the importance of continuous improvement in training and the professionalization of the police service. Cabinet adopted the White Paper in 2016. In the same year, a White Paper on Safety and Security was also adopted by Cabinet. Aligned to the White Papers, a draft Police Bill is being developed.
Reply to the issues raised in paragraph 10 of the LOIs
20.The SAPS manually records interviews in writing. Electronic recording (audio or video) are used in exceptional cases of admissions and confessions. Such recordings will be admissible in terms of the Electronic Communications and Transactions Act, 2002, which regulates the admissibility of electronic evidence in criminal and civil cases. National Instruction 6 of 2014, specifically authorises electronic recording of information pertaining to torture cases, subject thereto that the suspect was informed of said recording. Systems development and resource constraints impacts on roll-out in this regard. Statistical information on disciplinary proceedings and recommendations by IPID is provided in Annexure 2, Tables 4–8.
Reply to the issues raised in paragraph 11 of the LOIs
21.The Prevention and Combating of Trafficking in Persons Act, 2013 (“the TIP Act”) came into operation in August 2015. This has ensured that South Africa makes substantial progress towards the full implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplementing the United National Convention Against Transnational Organised Crimes. South Africa now has a comprehensive law addressing all forms of trafficking in persons offences. To enhance the coming into operation of the TIP Act, several structures were put in place, such as the National Inter-Sectoral Committee on TIP, Provincial Inter-Sectoral Committees and Rapid Response Teams.
22.The TIP Act criminalises trafficking in persons and also provides for related offences, penalties relating to these offences, measures to be put in place to protect both internal and external victims against trafficking, and for coordinated implementation and monitoring.
23.The main objective of the Act is to prevent, protect and prosecute trafficking in persons.
24.South Africa also made significant progress in addressing trafficking due to the GLO.ACT.
25.Regulations and directions were issued in terms of the TIP Act to further regulate the detection, investigation and prosecution of offences; the collection of information relevant to trafficking; and social, health care and psychological services to victims. Standard Operating Procedures and/or guidelines were also developed to guide police, social development officials, prosecutors, immigration officers, medical and judicial personnel to identify and deal with victims of trafficking. A comprehensive National Policy Framework has recently been finalised.
26.In terms of the TIP Act, the person who has been convicted of any offence under Chapter 2 of the TIP Act, is liable to pay appropriate compensation to any victim of the offence for damage to or the loss or destruction of property, including money; physical, psychological or other injury; being infected with a life-threatening disease; or loss ofincome or support, suffered by the victim as a result of the commission of that offence. The offences contemplated in Chapter 2 extend beyond the offence of trafficking and includes offences aimed at facilitating trafficking in persons, using the services of victims of trafficking, carriers involved in trafficking as well as participation in any of such offences which provides a broad base for compensation. Though a person must be convicted of trafficking for the court to make the order for compensation, nothing prevents a victim of trafficking from instituting civil proceedings against an accused person for damages irrespective of whether the accused has been convicted in a criminal court or not.
27.Training regarding the TIP Act is being provided to persons involved in the administration and implementation of the Act, including immigration officers, the SAPS, prosecutors and the judiciary (by SAJEI). SAPS officials have been trained on human trafficking legislation and SAPS has specialized personnel who are responsible for conducting awareness on TIP and investigating cases regarding human trafficking incidents. The Department of Social Development conducted community dialogues in 5 provinces.
Reply to the issues raised in paragraph 12 of the LOIs
28.In terms of the Domestic Violence Act, 1998 one can apply for a protection order against domestic violence. The Protection from Harassment Act, 2011 provides for protection orders against harassment. Contravention of these protection orders is criminalised and punishable with a fine or imprisonment for a period not exceeding five years.
29.Government has increased special victim support services, such as case screening services, private waiting areas, court information services, which include court preparation services and specialised domestic violence clerks in every court. Furthermore, in addition to existing shelters for domestic violence victims, the Department of Social Development has a command centre that provides support and counselling to victims of gender-based violence.
30.In addition to passing legislation preventing and prohibiting Domestic Violence, Sexual Offences, Harassment, and Trafficking in Persons, South Africa has various policies and programmes to support victims and to prevent secondary traumatisation. Since 2013, the Department of Justice and Constitutional Development (DOJCD) has been progressively establishing new sexual offences courts every year.
31.The Sexual Offences and Community Affairs Unit of the NPA established 55 operational Thuthuzela Care Centres (“TCCs”), linked to the sexual offences courts, in support of victims. TCCs are centres attached to hospitals or clinics where a victim can go to for medical attention and have evidence of the crime collected.
32.The fight against the scourge of Gender-Based Violence (GBV) was strengthened following the inaugural Presidential GBV and Femicide Summit held in November 2018, which provided a firm basis for a coordinated national response as an absolute priority for government. SAPS leads integrated implementation and monitoring of a six point plan on GBV, Sexual Offences and Victim Support, which include:
•Increased training of frontline desk staff in all relevant departments in the dealing of victims in a more sensitive manner;
•Improving the quality of interactions between victims, police and other relevant role players in especially 32 hotspot police stations;
•Increased training of police officials and prosecutors;
•Implementing methods to measure client (victim) satisfaction on how crime incidents and cases are handled;
•Capacitation of the Family Violence, Child Protection and Sexual Offences Units of SAPS; and
•Improving the turnaround time on DNA (SAPS) Forensic Services’ processing of blood alcohol analysis.
33.SAPS is currently expanding the establishment of Victim Friendly Rooms to a further 110 police stations.
34.In relation to training of officials the NPA’s SOCA unit facilitates the research and development of comprehensive training manuals on trafficking in persons and sexual offences and training of prosecutors.
35.The Department of Social Development (DSD) has developed a package of services and capacity building of service providers to support Children who have been Abused, Neglected and Exploited (CANE).
36.The DSD established the Khuseleka One Stop Centre model during 2011. It is a community-based centre where victims receive services through a multi-disciplinary approach comprising of teams of social workers, nurses, doctors, police officers, court preparation officers and prosecutors. The DSD also facilitates the establishment and funding of shelters. There are currently 130 funded shelters across nine provinces, 206 White Doors Safe Spaces of Hope and 6 Khuseleka One Stop Centres that accommodate victims of crime and violence.
37.South Africa has commenced with Anti-Femicide initiatives to respond to the recommendations made by the UN Special Rapporteur on Violence against Women, its Causes and Consequences, in a report she submitted to the country in 2016. The Femicide Watch will be the first in the region.
Reply to the issues raised in paragraph 13 of the LOIs
38.The South African Human Rights Commission (“SAHRC”) is an independent institution that supports constitutional democracy, and is established in terms of the Constitution. Its mandate is stipulated in section 184 of the Constitution and includespromoting respect for human rights and a culture of human rights, promoting the protection, development, and attainment of human rights and monitoring and assessing the observance of human rights. The SAHRC has the power to investigate and report on the observance of human rights; to take steps to secure appropriate redress where human rights have been violated; to carry out research and to educate. Each year, the SAHRC must require relevant organs of state to provide it with information on the measures that it has taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education, and the environment. The SAHRC has additional powers and functions conferred on it in terms of the South African Human Rights Commission Act, 2013, and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. In this regard the SAHRC must promote awareness of, and monitor compliance with, these statutes, report to Parliament in relation to these statutes and develop recommendations with regard to persisting challenges related to these statutes and any necessary reform. The 2019/20 budget allocation for the SAHRC amounts to R189 205 000, an increase of 6,9% from the 2015/16 financial year budget. The SAHRC’s latest Annual Report (Annexure 5) sets out in detail its resources and activities.
Reply to the issues raised in paragraph 14(a) of the LOIs
39.The principle of non-refoulement has been codified into South African law, mainly by section 8 of the Anti-Torture Act and section 2 of the Refugees Act, 1998 which provide that no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country.
40.Chapter 3 of the Refugees Act deals with procedural aspects relating to the application for asylum. Section 24, 25 and 26 of the Act specifically deals with the consideration of an asylum application and provides, among others, for the review of a decision of a Refugee Determination Officer who rejects an application as unfounded by the Standing Committee; for the obtaining of additional information relevant to the application; consultation with a UNHCR representative to furnish information on specified matters; and the explanation of the process to the applicant as well as his rights. Any decision of the Appeal Board may be challenged before a High Court and is subject to further appeal. All applicants that are rejected by a Refugee Status Determination Officer in terms of section 24 (3) (c) of the Refugees Act, 1998 have the right to appeal to the Refugee Appeal Board.
41.With respect to the number of applications made for asylum received, see Annexure 2, Table 9.
42.The Anti-Torture Act provides that no person shall be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, all relevant considerations must be taken into account, including the existence, in the State concerned, of a consistent pattern of gross, flagrant or mass violations of human rights.
43.South Africa’s Extradition and Mutual Legal Assistance Agreements provide that extradition may be refused unless the Requesting Party undertakes or gives such assurances as considered sufficient by the Requested Party that the person sought will not be detained without trial, tortured in any way; or treated or punished in a cruel, inhumane or degrading way. The same shall apply to attempt to commit torture and to an act by any person that constitutes complicity or participation in torture. This principle is adhered to closely by both the National Executive in receiving requests and by our courts when considering applications.In the Constitutional Court judgment of Mohamed v the President of the Republic of South Africa the Court held that prior to deporting or extraditing a person to a country where the death penalty is applicable or where treatment or punishment which contravenes the Constitution may befall the deportee or extradited person, an undertaking must be obtained from the receiving country that no such treatment or punishment or death sentence will be imposed.
44.Legal aid may be provided to any person arrested in terms of the Extradition Act, 1962.
45.In the case of Jeebhai v Minister of Home Affairs the SCA held that the detention of Mr Rashid at the Cullinan Police Station and his subsequent removal and deportation were unlawful. The Court held that the applicant was to be considered an illegal foreigner and that his arrest was thus authorised for that purpose. However, the subsequent detention and deportation of the applicant was regarded as unlawful on the basis of non-compliance with the Act and the regulations.
Reply to the issues raised in paragraph 14(b) of the LOIs
46.During the period under review the DOJCD received one request for extradition where the possible sentence could amount to torture, cruel, inhuman or degrading treatment or punishment. The crimes involved were robbery and the theft of a motor vehicle and the possible sentence that could be imposed was imprisonment together with corporal punishment.
Reply to the issues raised in paragraph 14(c) of the LOIs
47.The number of asylum applications received during the period under review, is set out in Annexure 2: Table 9. The approvals are based on individual claims based on the provisions of the Refugees Act. As a result of the confidential nature of these applications, information regarding the grounds on which it were approved or rejected or particulars pertaining to the age, sex and country of origin are not recorded for statistical purposes and cannot readably be obtained. Due to the number of applications for refugee status received by South Africa, Refugee Reception Offices have a substantial workload. There is, however, no substantial backlog at Refugee Status Determination level (in other words, at first instance adjudication level). All applicants that are rejected by a Refugee Status Determination Officer in terms of the Refugee Act have the right to appeal to the Refugee Appeal Board. Nearly all those rejected submit an appeal. If an applicant submits an appeal, the outcome is suspended.
Reply to the issues raised in paragraph 14(d) of the LOIs
48.Section 2 of the Refugee Act will apply to an asylum seeker whose asylum permit has expired or have not been renewed (section 8 of the Anti-Torture Act places similar obligations on South Africa). In terms of section 32 of the Immigration Act, 2002 illegal foreigners shall be deported. With regards to measures taken to prevent refugees and asylum seekers whose permits have lapsed or have not been renewed from becoming undocumented persons, it is the responsibility of the applicant to ensure that his or her permit is valid at all times. Immigration Services Inspectorate officials will bring persons whose permits are not in order, to the nearest Refugee Reception Centre or office for investigation, renewal where possible or deportation where required.
49.Policy on international migration was previously set out in the 1999 White Paper on International Migration. It was implemented through the Immigration Act, 2002 and partly through the Refugees Act, 1998. In the recent past, the Department of Home Affairs (DHA) amended the Immigration and Refugees Acts and implemented regulations and strategies to address gaps in legislation. However, what was required is a comprehensive review of the policy framework that can inform systematic reform of the legislation. In this regard, in 2017, a comprehensive White Paper on International Migration for South Africa was approved by Cabinet. The new White Paper affirms South Africa’s right to determine the admission and residence conditions for foreign nationals in line with its national interest. It also serves as a policy framework for the review of immigration and related legislation. Draft legislation is currently being developed. In addition, the DHA has developed a White Paper on Home Affairs and has invited comments thereon. This White Paper will clearly identify the envisaged mandate of Home Affairs.
Reply to the issues raised in paragraph 15 of the LOIs
50.Measures were adopted, in terms of the Anti-Torture Act, to ensure that courts have jurisdiction in respect of an act committed outside the Republic which would have constituted an offence under section 4(1) or (2) had it been committed in the Republic, regardless of whether or not the act constitutes an offence at the place of its commission, if the accused person is a citizen of the Republic, is ordinarily resident in the Republic, is, after the commission of the offence, present in the territory of the Republic or in its territorial waters or on board a ship, vessel, off-shore installation, a fixed platform or aircraft registered or required to be registered in the Republic and that person is not extradited pursuant to Article 8 of the Convention; or has committed the offence against a South African citizen or against a person who is ordinarily resident in the Republic. If an accused person is alleged to have committed an offence contemplated in section 4(1) or (2) outside the territory of the Republic, prosecution for the offence may only be instituted against such person on the written authority of the National Director of Public Prosecutions who must also designate the court in which the prosecution must be conducted.
Reply to the issues raised in paragraph 16 of the LOIs
51.The International Cooperation in Criminal Matters (ICCM) Act, 1996, allows for mutual legal assistance to be given to foreign states with whom a bi-lateral agreement has not been concluded, provided the request meets the formal requirements as set out in this Act. Both the Extradition Act and ICCM Act are only applicable between states and it is therefore currently not possible to enter into agreements with international tribunals or institutions. Section 2 of the ICCM Act provides for requests by South Africa and section 7 provides for requests by “a court or tribunal exercising jurisdiction in a foreign State or by an appropriate government body in a foreign State”. South Africa currently has extradition agreements with Lesotho, Malawi, Swaziland, United States of America, Canada, Australia, Israel, Egypt, Algeria, Nigeria, China, India, Hong Kong special administrative Region of the People’s Republic of China, Argentine Republic, Iran, Republic of Korea, United Arab Emirates. South Africa has also designated Ireland, Zimbabwe, Namibia and the United Kingdom in terms of section 3(2) of the Extradition Act. South Africa’s accession to the Council of Europe’s Convention on Extradition entered into force on 13 May 2003. These extradition agreements provides for categories of offences which must be considered extraditable offences and includes the offence of torture.
Reply to the issues raised in paragraph 17 of the LOIs
52.South Africa has Mutual Legal Assistance in Criminal Matters Treaties with Canada, USA, Lesotho, Egypt, Algeria, Nigeria, France, Argentine Republic, Iran, China, India, Hong Kong Special Administrative Region of the People’s Republic of China, Republic of China (Taiwan). A request was also directed to the Council of Europe that South Africa accede to the Convention on Mutual Legal Assistance. The Council of Ministers approved that South Africa accede to the MLA Convention. In terms of the Extradition Act, any arrangement made with any foreign State which, by virtue of the provisions of the Extradition Acts, 1870 to 1906 of the Parliament of the United Kingdom as applied in the Republic, was in force in respect of the Republic immediately prior to the date of commencement of the Act shall be deemed to be an agreement entered into and published on the said date by the President under the Act. Although South Africa has negotiated extradition and mutual legal assistance with Zambia, Hungary, Namibia, Cuba, Belarus, Viet Nam, Pakistan, Ethiopia, the United Kingdom, Mozambique, Brazil and Bangladesh, these were not yet signed. South Africa is currently busy setting up negotiations for the conclusion of extradition and mutual legal assistance treaties with Peru, Venezuela, Chile and Russia. An extradition and mutual legal assistance Treaty between South Africa and United Mexican States has been signed but is still subject to ratification. The SADC Protocols on Extradition and Mutual Legal Assistance in Criminal Matters were ratified by Parliament on 14 April 2003. The Protocol on Extradition entered into force on 18 August 2006. The Protocol on Mutual Legal Assistance entered into force on 1 March 2007.
53.Information on the outcomes of the 87 mutual legal assistance and 46 extradition requests made in 2012 and 2013 is attached as Annexure 6. A list of treaties as at March 2019 is also annexed (Annexure 7).
Reply to the issues raised in paragraph 18(a) of the LOIs
54.Training on the prohibition of torture is a continuous process in the DCS and is part of government’s specific training provided to law enforcement, correctional personnel and other public officials involved in work with persons deprived of their liberty, asylum seekers and migrants on the provisions of the Convention and the absolute prohibition of torture. The training programmes include the prevention of torture on the part of correctional officials when working with offenders while they are detained in any correctional centre. The Anti-Torture Act and – thus the subject-matter of the Convention – also forms part of the SAPS Basic Training Program and the Detective Learning Programmes.
Reply to the issues raised in paragraph 18(b) of the LOIs
55.The Basic Training Programme and the Detective Learning Programme of the South African Police Service, as well as the National Instructions, all include specific references to the provisions of the Convention.
56.Lectures are provided during pre-deployment for internal and external operations conducted by the SANDF to all its members inclusive of medical and legal personnel on the Law of Armed Conflict (“LOAC”), International Humanitarian Law (“IHF”), the Geneva Conventions I to IV and the Additional Protocols thereto. Training for health professionals integrates the prevention of torture, cruel or inhuman or degrading treatment or punishment of mental health care users. Training programmes for officials from the DHA include various aspects pertaining to asylum seekers, human trafficking and torture. The SAHRC has also made available information notices which provide an overview of torture.
Reply to the issues raised in paragraph 18(c) of the LOIs
57.The Constitution places an absolute prohibition on the use of torture and other ill treatment and thus provides a prohibition of torture policy for DCS and law enforcement officials; in addition policy exists for DCS employees in that the Correctional Services Act states that all prisoners must be treated with dignity.
Reply to the issues raised in paragraph 18(d) of the LOIs
58.The Istanbul Protocol forms part of the international instruments and law which are of relevance in the South African correctional and remand setting and is thus part of the training of DCS and police officials, medical professionals conducting examinations and entities involved in the investigation of torture or related incidents.
Reply to the issues raised in paragraph 18(e) of the LOIs
59.The DCS does not currently have a training impact assessment framework. SAPS members are assessed on various aspects of their training and assessments are carried out prior to, during and after training to assess members.
Reply to the issues raised in paragraph 19 of the LOIs
60.Segregation is implemented in accordance with the provisions of the Correctional Services Act, 1998. Segregation of an inmate for a period of time and which may include detention in a single cell, other than normal accommodation in a single cell, is permissible: upon the written request of an inmate; to give effect to the penalty of the restriction of amenities to the extent necessary to achieve this objective, if such detention is prescribed by the correctional medical practitioner on medical grounds; when an inmate displays violence or is threatened with violence; if an inmate has been recaptured after escape and there is a reasonable suspicion that such inmate will again escape or attempt to escape; and if at the request of the South African Police Service, the Head of the Correctional Centre considers that it is in the interests of the administration of justice.
61.An inmate who is segregated must be visited by a correctional official at least once every four hours and by the Head of the Correctional Centre at least once a day; and must have his or her health assessed by a registered nurse, psychologist or a correctional medical practitioner at least once a day. Enforced segregation may only be for the minimum period that is necessary and this period may, generally, not exceed seven days.
62.Amenities may not be restricted for a period exceeding 42 days. Segregation as a penalty does not amount to solitary confinement under any circumstances. An inmate who is subjected to segregation may refer the matter to the Inspecting Judge (IJ) who must decide thereon within 72 hours after receipt thereof. Segregation must be for the minimum period and place minimum restrictions on the inmate, compatible with the purpose for which the inmate is being segregated. Annexure 2, Table 10 sets out data regarding segregations.
Reply to the issues raised in paragraph 20 of the LOIs
63.There is currently no specific initiative to reduce the 72 hour period. During 2017/18, 41 inmates appealed to the IJ to contest the decision to place them in segregation. This represents 0,41% of all segregation reports. The IJ ruled that 31 of the 41 decisions to segregate were justified because of the occurrence or threat of violence. A concern is the low percentage of appeals by inmates against segregation, see Annexure 8.
Reply to the issues raised in paragraph 21 of the LOIs
64.DCS and the JCPS Cluster continue to implement a multipronged strategy to reduce overcrowding in correctional facilities. See pre-trial interventions above (par15). Other measures include managing levels of sentenced inmates through improving the effective and appropriate use of conversion of sentence to community correctional supervision, release on parole and transfers between correctional centres to address overcrowding. The DCS capital works programme envisages the upgrading of existing correctional facilities and the construction of new correctional centres.
65.Four new correctional facilities are being built and existing structures have been upgraded in order to bring them in line with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). From 2016/17 to 2018/19 the four correctional centres that are currently in construction will be completed, namely at Estcourt, C-Max, Standerton, and the new Tzaneen correctional centre.
66.The measures taken to improve the conditions of pre-trial detainees in police cells, and the adoption of the Bail and other Protocols, have led to improved inter-departmental coordination and is contributing to a reduction in overcrowding in police cells.
67.The Bail Protocol is one of the strategies implemented to contain the population of remand detainees (“RDs”). It allows for an application to court for review of bail of RDs who have been charged with Schedule 7 crimes. The criteria for submitting an application relates to a particular centre/detention facility reaching such inmate proportions that it constitutes a material and imminent threat to human dignity, physical health or safety of RDs. The bail protocol is implemented in conjunction with section 63(1) of the CPA which allows the accused or the prosecutor to apply for the amendment of the conditions of bail. Data regarding applications submitted for bail review appear inAnnexure 2, Table 11.
Reply to the issues raised in paragraph 22 of the LOIs
68.The provision of adequate health care in correctional facilities, in particular antiretroviral therapy (ART) for HIV/AIDS and medication against tuberculosis, the DCS’s care programme comprises of healthcare, nutrition and hygiene, continues to make a positive impact on alleviating the effect of these conditions. The early detection of medical conditions accompanied by adequate treatment and the introduction of harm reduction continues to contribute significantly to the health of detained persons. The number of inmates initiated on ART during 2017/18 increased by 1 936 from 24 506 in 2016/17.
69.The implementation of the Universal Test and Treat programme (UTT) for all HIV positive inmates, further contributes to identification and treatment, as indicated in Annexure 2, Table 12. South Africa achieved a positive treatment rate of 87% for offenders against a set target of 86% in 2017/2018. This is an improvement when compared to the 83% recorded in 2016/2017. Inmates are screened for TB on admission, during incarceration, biannually and upon release. In compliance with the National Strategic Plan for HIV, TB and Sexually Transmitted Infections (STIs) for 2017–2022, the DCS continued to strengthen mitigation efforts against these illnesses.
Reply to the issues raised in paragraph 23 of the LOIs
70.Lindela implements a health pre-admission process. The clinic is operated on a 24-hour basis by nurses and a doctor for those in need of medical services. If a patient is treated more than three times for the same condition without any improvement, they must be referred to a secondary health facility. The Department of Health provides guidelines for the management of communicable diseases to the clinic at Lindela and conducts periodic inspections. The International Committee of the Red Cross (ICRC) also conducts regular oversight visits to assist deportees with basic needs such as telephone contact with family members all over the world, as well as inspections of the Lindela clinic during which interviews are conducted with the deportees. Lindela was found to be compliant with the Nelson Mandela Rules for detention standards during an evaluation by the DCS.
71.Migrants, refugees and asylum seekers all have access to adequate health care in provincial and local hospitals and clinics.
72.The Minister for Home Affairs has not appointed a specific judge to exercise independent oversight of Lindela, however various judges and magistrates have visited and continue to visit Lindela and have issued reports on the outcomes of their visits. The DHA and the SAHRC have a standing monitoring arrangement regarding Lindela, which includes unscheduled inspections and the submission of monthly reports.
73.The information regarding possible allegations of ill-treatment, harassment or extortion of non-citizens by law enforcement officials, seems not to be readily available, but work is continuing to establish any information available to be presented.
Reply to the issues raised in paragraph 24 of the LOIs
74.With regards to details on the number of deaths in detention, both natural and unnatural, a breakdown of their causes, the number of investigations into such deaths, and prosecutions and sentencing of law enforcement or correctional personnel in this regard, see Annexure 2, Tables 13–24.
75.With regards to an update on the status of the drafting of guidelines regarding the prevention of the death of persons in police custody, and with regard to any other detention facilities, the SAPS has a number of policies that are aimed at minimizing deaths in police custody. These internal policies include a number of Standing Orders. The SAPS also has a National Prevention Plan which is also aimed at minimizing deaths and escapes from police custody.
Reply to the issues raised in paragraph 25 of the LOIs
76.A list of finalised torture cases is set out in Annexure 2, Table 25.
77.Historic and current TIP prosecutions are set out in Annexure 2, Tables 26 and 27.
78.With regards to domestic violence and femicide cases, please see Annexure 2, Tables 28–31.
79.With regards to sexual offences and the conviction rates, please see Annexure 2, Table 32.
Reply to the issues raised in paragraph 26 of the LOIs
80.The DCS handed back full control of the Mangaung Correctional Centre (“MCC”) to Bloemfontein Correctional Contracts and G4S Correction Services in August 2014. This was after DCS took control of the facility in October 2013, following the dismissal of 326 employees by G4S who had embarked on an unprotected strike. The DCS is due to take over full management of the facility in 2025. The National Commissioner appointed a Task Team in 2014 to look into all unnatural deaths at MCC. In this regard, all necessary documents were requested from the contractor. Where these documents were not submitted, the matter was referred to the Supervisory Committee in terms of the contract. The Task Team’s report is still under consideration.
Reply to the issues raised in paragraph 27 of the LOIs
81.The case of Khutazile Mbendu was registered and investigated by IPID. Ten police officials were arrested for the murder and torture. The recommendations were sent to the NPA for the accused to be charged with murder and torture. Following the trial, the accused were acquitted.
Reply to the issues raised in paragraph 28 of the LOIs
82.During April 2016 IPID received three referrals as a result of the student protest at Rhodes University. The three incidents were reported by SAPS and not by individual complainants. One case was closed as unsubstantiated, as there were no police officials identified as suspects in the case. IPID found that in all these cases there was no evidence that police officials had used excessive force. The other two cases were referred to the NPA for possible prosecution.
83.Members of the Public Order Policing reported referrals of the use of violence against students in more than seven cases of public violence which were allegedly committed by students of the University of the Witwatersrand during 2016. IPID investigated these matters and found that the protests were indeed violent, but that the need to protect life and property necessitated police officers to resort to proportional measures in order to restore law and order. Police used rubber bullets and stun grenades. IPID further found that the methods used to disperse the students during the protest were necessary and proportional. No live ammunition was used. IPID did not receive a complaint from any student that was injured by a stun grenade. Certain investigations have not been finalized due to a lack of witnesses, despite efforts by IPID to trace witnesses.
Reply to the issues raised in paragraph 29 of the LOIs
84.The IJ has a mandate to inspect, or arrange for the inspection of, correctional centres and remand detention facilities in order to report on the treatment of inmates in such centres and facilities, on the conditions at such facilities and on corrupt or dishonest practices in correctional centres and remand detention facilities. The IJ must submit an annual report to the President and the Minister of Justice and Correctional Services and the report must be tabled in Parliament by the Minister.
85.The Independent Correctional Centre Visitor (ICCV) programme was established in terms of section 92 of the CSA and has the powers contemplated in section 93 of the CSA. The ICCV must refer certain unresolved complaints to the IJ.
86.IPID may investigate, among others, any deaths in police custody; deaths as a result of police actions; complaints relating to the discharge of an official firearm by any police officer; rape by a police officer, whether the police officer is on or off duty; rape of any person while that person is in police custody; and any complaint of torture or assault against a police officer in the execution of his or her duties.
87.The Public Protector furthermore has the mandate to investigate, among others, any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action. The Public Protector Act, 1994 provides that the Public Protector must receive complaints and investigate such complaints.
88.The SAHRC has a constitutional mandate to investigate and to report on the observance of human rights and to take steps to secure appropriate redress where human rights have been violated. The SAHRC is accountable to the National Assembly and must report serious human rights abuses to the National Assembly.
89.Representatives of the judiciary, the Public Service Commission, Parliamentary Portfolio Committees, legal representatives and Legal Aid SA are all allowed to carry out visits to places where persons are deprived of their liberty and can receive complaints. Other oversight bodies that operate in the area of monitoring the treatment of persons deprived of their liberty through court orders or state action include, the Military Ombud; the Health Ombud; the Compliance Inspectorate of the Office of Health Standards Compliance (OHSC); the Department of Social Development’s secure care monitoring mechanism; and Mental Health Review Boards. As indicated above, Cabinet has approved the tabling of the OPCAT into Parliament. Ratification of OPCAT will ensure the establishment of an independent National Preventative Mechanism under the coordination of the SAHRC.
Reply to the issues raised in paragraph 30 of the LOIs
90.With regards to an independent monitoring mechanism or dedicated oversight structure concerning child and youth care centres in conflict with the law, the Children’s Act, 2005, provides that the provincial head of social development must ensure that a quality assurance process is conducted in respect of each child and youth care centre. The DSD is working on a dedicated oversight structure concerning Child and Youth Care Centres.
Reply to the issues raised in paragraph 31 of the LOIs
91.Prior to the Anti-Torture Act coming into effect, torture was prosecuted under the common law and other statutory offences. Prosecutions were instituted in the PEBCO 3 matter, but the charges were subsequently withdrawn in June 2009. With regards to the 362 applicants who were refused amnesty by the Truth and Reconciliation Commission and the list of 800 cases which required further investigation and consideration for prosecution, prosecutions are instituted in deserving cases and several matters are currently under investigation. Regarding the case of Ahmed Timol, a former apartheid security branch officer, Sergeant Joao Rodrigues, has been charged with the murder of Ahmed Timol and with defeating the ends of justice. The NPA decided that Msebenzi Radebe, Willem Coetzee, Anton Pretorius and Frederick Mong be indicted in the High Court on charges of murder, and that Msebenzi Timothy Radebe be indicted on an additional charge of kidnapping, in relation to the death of Nokuthula Simelane. The matter has been set down for hearing in April 2019. Regarding Nokuthula Simelane, prosecution has been instituted against the law enforcement officials implicated, but the matter has not been finalised.
Reply to the issues raised in paragraph 32 of the LOIs
92.Acts of torture carried out by non-state actors can be prosecuted in terms of the Anti-Torture Act, other applicable laws and even the common law. In terms of section 9 of the Anti-Torture Act, various awareness raising and public education initiatives have taken place to promote awareness of torture and to encourage the reporting of such conduct to the authorities.
Reply to the issues raised in paragraph 33 of the LOIs
93.With regards to abuses reportedly committed by South African peacekeepers whilst deployed in the Democratic Republic of Congo, in the case of S v Matsekoleng and 15 others, 11 members were convicted and their sentences ranged from a reduction in rank, to the imposition of fines and detention. Five members were acquitted. In the matter of S v Matlaila and 4 others, the accused were charged in terms of the Anti-Torture Act and the matter will proceed to trial in March 2019.
94.South Africa is fully committed to a zero-tolerance policy against sexual exploitation in peace-keeping operations and has taken strong, immediate and decisive action against those found guilty of such abuses. In response to fighting sexual exploitation and abuse, Cabinet approved the Military Discipline Bill in August 2018. The UN follows a “Zero-Tolerance” policy towards sexual exploitation and abuse cases committed by its peacekeepers and requires stronger enforcement action against perpetrators. South Africa has come under scrutiny in this regard. Nonetheless the UN regards South Africa as a best practice model in the manner in which we conduct investigations and prosecutions within the mission areas. In 2018, the Minister of Defence and Military Veterans directed the Chief of the Defence Force to issue a Defence Force Instruction on sexual exploitation and abuse in mission areas. If a perpetrator is found guilty, he or she must be dishonourably discharged.
Reply to the issues raised in paragraph 34 of the LOIs
95.With regards to redress and compensation measures, Part III of the Robben Island Guidelines provide for reparation for victims of torture. However, the Guidelines do not specify what this reparation entails or what it should look like. Though the Anti-Torture Act does not contain specific reparations for torture victims, compensation can be claimed through a civil claim of damages instituted in South African courts. In addition, the CPA makes provision for the award of compensation to victims of crime, who have suffered damages because of the criminal conduct of an accused.
96.Should a torture victim also be the victim of a sexual offence, he or she will be able to access the medical and psycho-social services. Should a torture victim also be a victim of trafficking, a court may, on its own accord or at the request of the victim of trafficking or the prosecutor, order a person convicted of that offence to pay appropriate compensation to any victim of the offence for damage to or the loss or destruction of property, including money; physical, psychological or other injury; being infected with a life-threatening disease; or loss of income or support. Victims of trafficking may be referred to an accredited organisation for services.
97.Since the Anti-Torture Act does not specifically mention compensation, there is no data readily available on the number of requests for compensation made and granted and the amounts ordered and provided.
Reply to the issues raised in paragraph 35 of the LOIs
98.With regards to the status of redress, including compensation, provided to persons who were victims of acts of torture under the apartheid regime, regulations enabling the payment of individual reparations of R30 000-00 were published in November 2003. Out of the 21 676 victims that were identified in the TRC report, 17 409 victims who applied, received the set individual reparation amount, while 4267 victims did not apply.
99.Two sets of regulations dealing with education assistance to victims came into effect in November 2014.For the number of verified applications by the TRC Unit under basic education and those who met the criteria for funding see Annexure 2, Table 33. For the number verified by the TRC Unit under Higher Education and Training and those who met the criteria for funding see Annexure 2, Table 34.
100.Draft regulations pertaining to medical benefits are awaiting the amendment of the National Health Act, 2003 to include a proposed new model on which medical benefits to victims must be based, namely, to define victims and their relatives as an additional category of persons who qualify for free public health care. A draft Housing reparation guideline to cover, amongst others, the scope of the housing assistance to be provided to beneficiaries and the criteria and conditions of assistance has been developed and is scheduled for consultation with Department of Human Settlements.
101.Government’s Gallows Exhumation Projectentails the exhumation of the human remains of 83 political prisoners who were executed by the apartheid regime and buried in unmarked graves. A total of 130 political prisoners were hanged at the then Pretoria correctional centre between 1960 and 1990. The remains of 47 political prisoners were exhumed and given a dignified reburial. The remains of 83 prisoners remain buried in unmarked graves. The TRC also recommended that government must continue trying to trace people who disappeared during apartheid and the NPA’s Missing Persons Task Team has so far found the remains of 138 people murdered by apartheid forces.
Reply to the issues raised in paragraph 36 of the LOIs
102.With regards to the integrated Victim Empowerment Programme and the Integrated National Policy Guidelines for Victim Empowerment, the DSD coordinates the integrated Victim Empowerment Programme management structure. This structure meets on a quarterly basis to share progress and best practice models. The DSD has reviewed the Integrated National Policy Guidelines through the process of developing and promoting a Victims Support Services Bill and a Draft Victim Empowerment Support Services Bill. DSD introduced the Victim Support Services Bill to regulate the services rendered to the victims of crime and violence. Internal and external consultations were held on the Bill and it is currently on route to Cabinet for approval to publish the Bill for public comment.
103.A revised Victim Support Services Policy is in place which covers all victims of crime and violence, including victims of torture. South Africa has also implemented, and is continuing to promote, a special focus on victim empowerment and ensuring that victims and witnesses are treated fairly and are fully supported through, amongst others, our Charter on the Rights of Victims. South Africa also has a Service Charter for Victims of Crime as well as Minimum Standards for services to victims of crime and a number of SAPS instructions to support Victim Empowerment.
104.With regards to the Shelter Strategy for abused women, the Domestic Violence Act, 1998 places a duty on SAPS to assist domestic violence victims to find a suitable shelter. The National Instructions make provision for the police to assist with finding a shelter, making contact on behalf of the victim and transporting the victim to the shelter. The DSD’s policy on Minimum Standards on Shelters for Abused Women requires it to facilitate and fast-track the provision of shelters. The Minimum Standards specify that shelter services must provide for basic needs (e.g. accommodation, food, and clothing) as well as support, counselling and skills development. South Africa’s Integrated Programme of Action Addressing Violence against Women and Children’ (2013–2018) sets out a number of intervention targets in relation to shelter services. The DSD has also put in place a ‘National Strategy for Sheltering Services for Victims of Crime and Violence’ (2013 – 2018) which sets out the roles of different government departments as part of an attempt to encourage inter-departmental collaboration.
Reply to the issues raised in paragraph 37 of the LOIs
105.With regards to raising awareness about the provisions of the Convention, the Constitution mirrors many of the provisions of the UNCAT and therefore constitutional awareness and human rights education assists, both directly and indirectly, to raise awareness of the provisions of the UNCAT. A recent survey found that slightly more than half (51%) of respondents had heard of either the Constitution or the Bill of Rights. This has led to ongoing human rights education, with initiatives like the National Schools Moot Court and Let’s Talk Justice and a focus on human rights in the school curriculum. Events aimed at learners take the form of learner dialogues where learners are told about human rights and can ask about questions about their rights.
106.In addition, during key months such as Human Rights Month and Freedom Month (April) various initiatives take place to promote human rights. South Africa also honours 26 June as International Day in Support of Victims of Torture. The prevention of torture (and thus the provisions of the Convention) is one of the seven focus areas identified by the SAHRC in order to effectively fulfil its mandate of promoting, protecting and monitoring the realisation of human rights in South Africa.
Reply to the issues raised in paragraph 38 of the LOIs
107.Any evidence unconstitutionally obtained is to be excluded – this includes evidence obtained through torture. In Mthembu v Sthe Supreme Court of Appeal excluded evidence of a witness for the prosecution, as the witness had been beaten and tortured before providing the crucial evidence to the police that was used at the trial. The Court held that improperly obtained evidence, in a deliberate or flagrant violation of the Constitution, is to be excluded. The court held that -”The absolute prohibition on the use of torture in both our law and in international law therefore demands that “any evidence” which is obtained as a result of torture must be excluded in any proceedings.”.
Reply to the issues raised in paragraph 39 of the LOIs
108.With regards to steps taken to implement the Abolition of Corporal Punishment Act, 1997, the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. The Constitutional Court has prohibited corporal punishment in detention settings in 1995 and, in 2000, corporal punishment was banned in schools.
109.With regards to the use of corporal punishment in the home, the common law defence of ‘reasonable chastisement’ allows parents to use corporal punishment with the justification of it being a form of discipline. In October 2017, the South Gauteng High Court ruledthatthe common law defence of reasonable chastisement no longer applied in law and was unconstitutional. The court emphasised that the intention was not to charge parents with a crime, but to support them in finding more positive ways of disciplining children. The matter is now before the Constitutional Court. The DSD has also published the draft Children’s Third Amendment Bill for public comment to, inter alia, remove the common law defence of reasonable chastisement and thus prohibit corporal punishment in the home.
110.The South African Schools Act, 1996 provides that no person may administer corporal punishment at school to a learner. In order to promote children’s rights and well-being, the Children’s Act provides a legal framework to guide persons who are involved in the care, development and protection of children on the actions and steps they must take to secure children’s rights. The new National Care and Protection Policy was approved by Cabinet in 2018 and states that no child shall be subjected to corporal punishment or be punished in a cruel, inhuman or degrading way.
Reply to the issues raised in paragraph 40 of the LOIs
111.With regards to the use of equipment designed to inflict torture or other cruel, inhumane and degrading treatment, certain devices such as electric shock devices, tonfas, battons, pepper spray and rubber bullets are classified as non-lethal weapons and therefore are assumed to be a safer alternative to firearms. The use of non-lethal weapons in prisons is governed by the Correctional Services Act, 1998. If warders intend to use force to deal with an inmate, a minimum degree of force must be used and the force must be proportionate to the objective.
112.Non-lethal incapacitating devices may only be issued to a correctional official on the authority of the Head of Prison. Whenever such devices are used, their use must be reported in writing. Teargas grenades and cartridges fired by firearms or launch-tubes may not be fired or launched directly at a person or into a crowd. Whenever a correctional official decides to use teargas he or she must be convinced that its use in the specific situation meets the requirements of minimum and proportionate force. If a prisoner has been affected by teargas he or she must receive medical treatment as soon as the situation allows. The only devices currently authorised for use in prisons are shields and hand- held electronic immobilizing stun devices.