TRC Final Report

Volume 4

Chapter 7

Subsection 1

Detention without trial

11 The second gap concerned detention without trial. There were practical rather than legal reasons for excluding detention from the prison hearings. The working group had to take into account the fact that only two days could be allocated to the hearing, putting immense strain on an already overloaded programme. In addition, a number of testimonies about experiences under detention had already become a regular feature at human rights violations hearings around the country, the case of Steve Biko being an important example.

12 The exclusion of detentions from the hearing, however necessary, was unfortunate. The Human Rights Committee¹ has estimated that some 80 000 South Africans were detained between 1960 and 1990, up to 80 per cent of whom were eventually released without charge and barely 4 per cent of whom were ever convicted of any crime. Witnesses before the Commission testified about the many different ways in which detention was used as a measure of repression by the state, dating from the passing of the notorious 90-day detention clause in May 1963.

13 Prisons played a significant role as the prime site for detention, whether detainees were held for interrogation purposes (particularly in the early 1960s and again between 1976 and 1977), as a preventive measure (as in 1986, where it affected whole communities), or as a deliberate form of intimidation (in the 1980s). Frequently, detention was accompanied by torture and, in all too many cases, death. A paper written as early as March 1983 explained²:

There can be little doubt that the security police regard their ability to torture detainees with total impunity as the cornerstone of the detention system. It put the detainee at complete mercy for the purpose of extracting information, statements and confessions, often regardless of whether true or not, in order to secure a successful prosecution and neutralisation of yet another opponent of the apartheid system. Sometimes torture is used on detainees before they have even been asked their first question in order to soften them up. Other times, torture is used late in the interrogation process when the detainee is being stubborn and difficult.

14 As many as 20 000 detainees are thought to have been tortured in detention. At the same time, seventy-three deaths of detainees held under security legislation are recorded.³ Here again, the working group found itself in difficulty. In many cases reported to the Commission, it was not possible to determine under what legislation a detainee had been held – partly because there was no specific question to that effect in the initial questionnaire and partly because the victim’s family often did not itself know. It was thus not possible to establish whether many individual cases were the result of ‘political conflict’, as was required by the mandate of the Commission. In addition, it is clear that many political cases were, in fact, treated as common law prosecutions, such as theft, arson, malicious damage to property and even murder. A senior government prosecutor, for instance, admitted that he "would preferably prosecute under the common law rather than under statutory law, because nobody can really make propaganda against the common laws whilst you can make effective propaganda against the statutory [law]"⁴ .

15 It was therefore decided to exclude deaths in detention from the prison hearing, on the grounds that these cases would be heard in general victim hearings. The relationship between prisons and the judiciary was excluded because it was dealt with at the hearing on the judiciary.