TRC Final Report

Volume 6

Section 5

Chapter 2

Subsection 3

FINDINGS OF THE COMMISSION IN RESPECT OF THE FORMER STATE AND ITS ORGANS

Categories of gross human rights violations defined in the Act

State responsibility for torture

16. The Commission found in its five-volume Final Report that torture was systematic and widespread in the ranks of the South African Police (SAP) and that it was the norm for the Security Branch of the SAP during the Commission’s mandate period.

17. The Commission also found that the South African government condoned the practice of torture. The Commission held that the Minister of Police and Law and Order, the Commissioners of Police and Commanding Officers of the Security Branch at national, divisional and local levels were directly accountable for the use of torture against detainees and that Cabinet was indirectly responsible.

18. The Human rights instruments that are pertinent to the question of torture include:

a. The International Covenant on Civil and Political Rights;

b. The Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, and

c. The International Convention on the Elimination of All Forms of Racial Discrimination.

19. These Conventions require that no one shall be arbitrarily deprived of life and that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

20. The Convention Against Torture requires that each State Party ‘take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’. The Convention allows no exception to this, and for that reason it is important to note the following:

21. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency may be invoked as a justification for torture.

22. The Commission made its findings on torture based on evidence received from victims through the human rights violations process, perpetrators in amnesty applications and evidence given before the Commission by senior politicians and security force officials of the former government. In addition, local and international human rights groups made a number of submissions to the Commission, based on the studies they had carried out during the apartheid period.

23. The Commission received over 22 000 statements from victims alleging that they had been tortured. In most instances, the torture had been at the instance of members of the security forces.

24. The Commission received a number of applications from amnesty applicants applying for more than ninety-eight incidents of torture and severe assaults.

25. It is important to note that, although the Commission received over 22 000 statements from victims and only very few amnesty applications for torture, many human rights groups estimated that more that 73 000 detentions took place in the country between 1960 and 1990. It was established practice for torture to accompany a detention. Detention, arrest and incarceration without formal charges were commonplace in South Africa at that time. Whilst a plethora of laws existed to silence political dissent, the notorious section 29 of the Internal Security Act 74 was used to detain people indefinitely, without access to a lawyer, family member, priest or physician. Section 29 also permitted the state to hold a detainee in solitary confinement.

25. It is accepted now that detention without trial allowed for the abuse of those held in custody, that torture and maltreatment were widespread and that, whilst officials of the former state were aware of what was happening, they did nothing about it.

26. The torture techniques that have been identified through these cases are the following: assault; various forms of suffocation, including the ‘wet bag’ or ‘tubing’ method; enforced posture; electric shocks; sexual torture; forms of psychological torture, and solitary confinement.

27. A submission made to the Commission based on a study released by doctors between September 1987 and March 1990²⁵ found that 94 per cent of detainees in the study claimed either physical or mental abuse. The study found that the beating of detainees was widespread and that half of those alleging physical abuse still showed evidence of the abuse on physical examination. On assessment of their psychological status, 48 per cent of the former detainees were found to be psychologically dysfunctional.

28. Deaths in detention were also commonplace and were the result of the treatment meted out to persons in custody.

29. The Commission found that a considerable number of deaths in detention were a direct or indirect consequence of torture, including those cases where detainees had taken their own lives. The Commission declared those deaths to be induced.

30. In its Final Report, the Commission found that ‘little effective action was taken by the state to prohibit or even limit [the use of torture] and that, to the contrary, legislation was enacted with the specific intent of preventing intervention by the Judiciary’.²⁶ The Commission found that the South African government condoned the use of torture as official practice.²⁷