Prevention and Combating of Torture of Persons Bill [B21B-2012]: deliberations; Reports on Magistrates Ndamase, Dumani and Ntuli

Meeting report

Deliberations on the Prevention and Combating of Torture of Persons Bill
Mr Irvin Kinnes, Committee Content Adviser, sketched the background to the Prevention of Torture to Persons Bill.  It had been introduced to Parliament in May 2012.  Public hearings had been held in September.  The Bill had been amended by the Portfolio Committee on Justice and Constitutional Development and debated in the National Assembly (NA) in November, after which it had come to the Committee.

Mr Kinnes said that South Africa was committed to bringing any person guilty of torture to justice.  There were ten clauses.  Clause 1 contained the definitions, and clause 2 the objects of the Bill.  Clause 3 defined torture.  Clause 4 provided offences and penalties, with life imprisonment as a sentence.

Mr Kinnes said that some of the key issues in Clause 4 involved not enough attention being paid to the victim.  This had come out during the hearings.  Other issues noted had been offences and penalties, liabilities and responsibilities.  The definition of a complaint had been changed in the Bill.  The limited exclusions were those considered in international law.  The provisions of internal law should not be used as an excuse to fail to comply with the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Mr Kinnes said that the definition of a public official was that of a person holding public office.  This definition had also been changed.  This would now include the concept of any person acting on behalf of another.  Anyone could thus be defined as a torturer if that person directed some third party to commit the actual crime.  Sometimes it was not direct employees of the state involved.  It was clear that at Guatanamo Bay, third parties had been used on territory which was not part of the United States of America (USA).  The question was how to hold those not defined as public officials liable. 

Mr Kinnes said that a key omission was that there was not enough provision for compensation for victims of torture.  It had been argued that the Convention was not being observed closely enough.  There should be a right of redress.    Victims should be awarded damages equal to the losses suffered.  The provisions of the Criminal Procedures Act (CPA) did not satisfy the needs of victims of torture.  The compensation award should fall within the parameters of the Convention.  Community healing interventions should be available, with psychological services.  A multi-disciplinary service should be available over a long period.  The rehabilitation of torturers should also be considered.  People who committed torture should be allowed a healing process.  There should be public disclosure and accountability.

Mr Kinnes said that there was no compulsion in the Bill to report cases of torture.  Torture continued in countries where perpetrators could not be held to account.  There should be a duty placed on officials who were aware of torture taking place, to disclose this.  Reporting channels would have to be considered, as the reporter might be victimised by colleagues.  A way had to be found for officials to report torture.  Where members of the South African Police Service (SAPS) engaged in torture, the Independent Police Investigative Department (IPID) could investigate such claims.  The mandate did not extend to other departments of state.  The Committee should consider this.

Mr Kinnes said that in terms of rehabilitation, there was a suggestion that torturers should be considered.  A study had been carried out at the University of Pretoria.  Even those who had not thought themselves able to inflict torture were able to do so ruthlessly.  Torturers were a specialised group of persons, as they inflicted pain and humiliation on others.  The torturer might suffer similar symptoms to those of the tortured.  The more an individual participated in torture, the easier it became and skills would improve.  One way to overcome this was intensive counselling.  The practice of foreign governments recruiting South Africans to conduct torture had to be considered, making it an offence for a South African citizen to be held to criminal account for their actions in other countries.

Adv Johan de Lange, Department of Justice and Constitutional Development (DoJCD), said that there was a misunderstanding of the concept of 'torture'.  The definition closely followed the wording of the Convention.  This referred to public officials, or another person acting as a public official.  He did not understand where the changes had come from, and how it could be considered different to the Convention.  There had been a discussion in the NA.  There might be areas of uncertainty if there was any deviation.

Adv Alta van der Walt, State Law Advisor, Legislative Development, DoJCD, said that there was a handbook on torture.  This defined legal sanctions.  Pain or suffering resulting from such sanctions could not be regarded as torture, provided that practices such as imprisonment were internationally accepted.  A procedurally correct sanction might still fall under the Convention, taking stoning and flogging as examples.  The Bill was in line with the UN Convention.

Mr De Lange said that the second concern was that people could get away with torture if not a public official.  This was absolutely not the case.  Where pain or suffering was done by, or at the instigation of, or on behalf of, a public official, it would be an offence.  Any person committing or attempting to commit torture, or who incited, ordered or participated in torture, would be guilty of an offence.  He felt that the definition was broad enough.

Adv Van der Walt quoted from the handbook.  Torture was described as an official act, in which the authorities of the country were involved.  This did not apply to private acts of cruelty, as this would normally be covered by existing law.

The CA said that this was one of the key issues raised by the South African No Torture Consortium (SANTOC).

Mr De Lange said that there had been a difficult debate over this.  He asked Members if they would accept an obligation to report torture.  Firstly, one would have to understand the definition of torture.  It was not always as easy to detect what torture was.  A false accusation through ignorance of the law could have dramatic consequences.  The person reporting torture would have to know exactly what the offence was.  A doctor might be able to recognise injuries consistent with torture.  There might still be more to be said on this issue.  As matters stood, no act of torture was legal in the country, but a legal offence was now being defined.  It was difficult to see too far into the future and determine possible unintended consequences.  It might be that at present, at a certain level of the civil service, reporting corruption was mandatory.  The same might apply in the future to the SAPS.

Mr De Lange said that similar representations had been made in the Portfolio Committee.  Until there was a crime called 'torture', it would not be possible to make an accurate measure of the scope of torture in the country.  Incidents considered torture might only be assault.  Only when there were convictions could the extent of torture be determined.  Financial implications could be considered only once the Bill was enacted.

Adv Van der Walt said that the optional protocol still had to be ratified by South Africa.  This protocol included reporting measures, committees to oversee prisons, and so forth.  These measures were not in the Bill, but would be addressed at a later stage.  In terms of compensation, she did not know if members were aware that there was a Service Charter for victims of crime in SA.   Cabinet had approved this in 2004.  The Charter was an important instrument to promote justice for all.  It had been developed by the Gender Directorate in DoJCD, in collaboration with several other departments and other bodies.  The rights of victims had to be promoted in line with international requirements.  These included the right to information, compensation and restitution amongst others.  There was also the provision for liability in common law.  There were legal precedents.  The Minister of Safety and Security had been ordered to pay out damages on several occasions.  It seemed that the provisions in the Bill would be adequate when read in conjunction with the Charter.  Victims of torture should not be left in the dark, and would get ample compensation and restitution.

Discussion
Mr D Bloem (COPE, Free State) said that the Bill was clear on the responsibility to promote awareness.  There was no excuse for each citizen not being aware of the Bill.  He was concerned that if there was anyone who provoked an SAPS or Department of Correctional Services (DCS) official, who then reacted, would that official then be guilty of an offence?  People were human beings, and laws had to be drafted with this in mind.  In prison, people were frustrated and depressed and could provoke a warden who might react.  He asked how this would be seen.

Mr J Gunda (ID, Northern Cape) asked who would determine where torture started and what it constituted.  It could come in different forms.  He had experience from apartheid days.  He asked if the Bill made adequate provision.  One of the 'Upington 26' was deaf in both ears as a result of torture, but had never been compensated.  There were other examples.  He asked what was meant by adequate provision for victims.  Monetary awards such as those quoted by Adv Van der Walt were trivial in the modern context. 

Mr V Manzini (DA, Mpumalanga) asked what the difference was between torture and assault with intention to do grievous bodily harm, which often occurred immediately after a suspect had been taken into custody.

Mr M Makhubela (COPE, Limpopo) said that a court might not have the jurisdiction to award fair compensation.  He asked how this would be dealt with.

Mr M Mokgobi (ANC, Limpopo) asked what would happen if there were difficulties in defining torture in the Bill.  The mist had to be cleared now.  The definitions had to be clear, and simple.  It was open to abuse of power and the use of discretion.  Another issue was that even if the objects and definitions were clear, he imagined the situation where an accused denied a confession due to alleged torture. 

Mr B Nesi (ANC, Eastern Cape) referred to a clipping from The Star on Marikana.  He asked where the story of torture had come from. 

The Chairperson said that the Researcher had produced this clipping to show that torture was still happening in different forms.

Mr Nesi asked the DoJCD for a favour.  Definitions should be finalised before Bills were introduced to Parliament.  There would be a bad legacy for future generations.  He knew what happened in the townships when the SAPS arrested suspects.  Torture was definitely still there.  He asked why the Department had not produced a proper definition.  He understood torture, but it needed a simple definition.

The Chairperson said that the definition was in the Convention.  He asked Mr Nesi what he did not understand.

Mr A Matila (ANC, Gauteng) said the difficulty was that the DoJCD always used international benchmarks.  They always looked at what was happening in America and Europe.  They did not draw on the South African experience.  He had seen this in several other Bills.  The Convention was clear.  The second area was that some of the issues raised were addressed in other legislation.  What was worse was what came out in courts.  Magistrates made their own interpretation of the law.  The difficulty was that South Africa had gone through many challenges on torture.  There were many Members in the House who had been tortured themselves.  Legal issues were difficult to interpret.  In many cases there was a subjective factor in interpretation.  A definition might sound simple, but what Members had to deal with was the results.  South Africa was right at the end of the process, and should learn from international experience.  He asked what was being done that was different to the provisions of the Convention. 

Mr Mokgobi said that there were more questions than answers.  The citizens of Washington DC and those of Khayelitsha had vastly different socio-economic conditions.  People in the USA had a better understanding of the law.  Black South Africans had less knowledge, and might not know what channels to follow. 

Mr Bloem asked if solitary confinement was included, as he felt this was the worst torture possible.

Mr Gunda wanted to rephrase his question on compensation.  Listening to other Members, he had changed his opinion slightly.  There was not enough money to heal the damage of torture.  He was a witness to that.  He also had a problem with using international precedents.  He asked how Parliament could ensure that the human dignity of a victim could be restored.  How could the Bill heal the pain of a victim?

Mr J Bekker (DA, Western Cape) felt that it was impossible to write legislation to cover every possible situation.  Law was built through the interpretation of the courts.

Mr Makhubela tried to draw a comparison between the Bill and the Fencing Act, using the analogy of the person who failed to close the gate compared to the one who found the gate already open.  The definition of the Fencing Act was that any person who opened a gate was obliged to shut the gate. 

Mr Nesi had now read through the Convention.  Whatever was being done in Parliament should be there to resolve the contradictions created by apartheid.  There was a divided society at different stages of development.  He did not want to create a difficult situation for DoJCD.  He asked if the events of the previous day on the N2 highway outside Cape Town, where debris burnt by protesters had made it difficult for residents in the area to breathe, could be construed as torture.  The law was not easy.  He asked how the Marikana incident could be considered torture.

The Chairperson said that the different examples raised by Members were included in the definition.  He read the definition in the Bill.  If Members had a problem with the definition as contained in the Convention, he asked what proposal Members could put forward.

Mr Mokgobi said that the definition could be understood, but his concern was with the applicability.  The intention of the Bill was good.  It sought to prevent a particular offence.  South Africa was part of the global village, but it was not a homogeneous society.  The Bill had to be tighter and safer.  The movement from the Independent Complaints Directorate to the Independent Police Investigative Directorate (IPID) was a case in point -- Parliament had moved too quickly, and now the flaws were apparent.  Sometimes Members might look only at police torture.  More challenges were being added to the legislation.  It would be unfair to expect the judiciary to enforce a law that was vague.  Torture might occur within the family.  The law had to be tight so that when the law was passed, the loopholes would be closed.  Scholars could interpret things differently, as could judges.  Even the Judge President might have a flawed interpretation. 

Mr Matila was not sure if a point would be reached where regulations would be introduced.  Some of the questions might be answered by regulations.  He was not sure how much tighter the legislation could be.  It had to be comparable internationally, while also being specific to the South African situation.  He moved that this portion of the legislation be adopted.

Mr Gunda supported Mr Matila's proposal.

Mr Mokgobi suggested that some of the clauses be adopted while work was still needed on others.  The issues raised should be included in the debate that would follow.

Mr Nesi supported the Mr Mokgobi.  The Bill did need to be tightened.  Someone might take the government to court over the example he had raised over inhuman or degrading treatment.  Communities had different situations.  The judiciary would interpret the Act.  Loopholes must be addressed.

Mr Makhubela wanted to correct a misunderstanding.  In legal terms, there was a difference between 'or' and 'and'.  He returned to the Fencing Act.  The definition in this Bill covered all situations.

Adv Desiree Swartz, Parliamentary Legal Advisor, had not found anything constitutionally wrong with the Bill.  Her office had looked at the definition, and concurred that it was in the Convention, and was in fact an improvement on the Convention by including planned actions.  On the issue of compensation, Section 300 of the Criminal Procedure Act (CPA) was relevant.  However, this Section applied only where there was a monetary loss, which might not be the case in terms of torture.   She noted that the Victims' Charter looked to provide compensation.  Common law was that the legal system had to make provision for the compensation of victims.  The other issues were more of policy, and she would not express a view on that.

Mr Mokgobi felt that there was a motion to adopt the Bill on the table.

Mr Bloem said that the legal advisor had introduced a new thought, with the CPA not providing sufficiently for compensation.

Adv Swartz said that there were other legislative procedures to provide compensation.  Section 300 of the CPA only dealt with financial loss due to criminal activities.

Mr Bloem said that it did not help to say that there was other legislation.  The Committee could not approve something that was vague.  He wanted to know which laws were relevant.

Adv Swartz said that there was a common law liability for a damages claim against a person or his employer.

Mr De Lange said that the Minister of Police was liable for millions of Rand every year, due to damages resulting from SAPS action.  The portion of compensation for torture could not be quantified until such time as the Bill was enacted.

Mr Mokgobi said that a lot of cross-references were being made.  When the researcher had given a political perspective, then the legal opinion was necessary.  Policy and legal opinion should go together before the legislation was given to Parliament to consider.

Mr Matila said that the matter had been exhausted.  It was unfortunate that while there might be other laws involved, there was a problem.  The legal advisers or the CA should have indicated what the applicable laws were.  Members were trying to deal with what would result from the legislation.  This particular matter should be closed. 

Mr Gunda agreed that the subject should be closed.

The Chairperson read a proposal that Members agreed with the content of the Bill without amendment.

Briefing on Workshop on Protection of Personal Information Bill
The CA briefed Members on the workshop to be held the following day.  The purpose was to consider the Protection of Personal Information Bill, which was highly technical.  This would give substance to the right of privacy, as contained in the Constitution.  The aims of the Bill were to protect private information, establish processes, a code of conduct, and unsolicited electronic communication, amongst others. 

The CA said that the workshop would start at 10h00 the following day.  He briefed Members on the programme for the day.  The Council for Medical Schemes (CMS) had raised some objections, and DoJCD would respond.  Some key areas in the definitions related to the concept of a data subject, personal information, and the prescribed processing of records.  DoJCD had been asked to clarify some of the issues, such as how the Information Regulator would be appointed.

The CA said that some issues had not been resolved.  He appealed to Members to read through the Bill before the following day.

Mr Gunda requested Members to meet a little earlier to discuss a personal issue he had with the Council for Medical Schemes.  He currently had a case with a medical scheme.  He would hold a personal meeting.

Adoption of Reports
The Chairperson asked Members to consider various reports.  The report on the Groenpunt oversight visit had been circulated to Members, but would not be adopted at this meeting.

Mr Nesi moved that the reports on Magistrates Ndamase, Dumani and Ntuli be adopted.

Mr Gunda seconded this proposal, and the reports were adopted.

Mr Bloem had not been on the visit to Groenpunt.  However, he noted that there were no recommendations.  He suggested that there should always be recommendations in a report.

Mr Matila said that the media had raised the profile of the visit.  This might be the reason for the lack of recommendations. 

The meeting was adjourned.