Amnesty International Report 2005 - South Africa

Covering events from January - December 2004

The government began its "rollout" treatment programme for people with HIV and AIDS, but thousands still remained without access to anti-retroviral (ARV) drugs. Despite reforms to improve access to justice and health care for rape survivors, complainants still faced obstacles. The number of reported deaths in police custody and arising from police action increased. Credible allegations of torture or ill-treatment were made by criminal suspects, refugees and political activists. Corrupt and discriminatory practices by officials obstructed access by asylum-seekers to determination procedures. Individuals suspected of "terrorist" offences were detained incommunicado, ill-treated or forcibly repatriated.

Political developments

In April the ruling African National Congress party won nearly 70 per cent of the seats in national parliamentary elections, as well as majorities in all nine provinces.

The trial of Deputy President Jacob Zuma's financial adviser, Schabir Shaik, began in October. He faced charges of corruption and fraud committed on behalf of Jacob Zuma and relating to an alleged bribe solicited from a French arms company. In May the Public Protector (ombudsman) concluded that the Deputy President's constitutional rights had been violated by the head of the National Prosecuting Authority (NPA) and the then Minister of Justice. They had announced in 2003 that, although there was a prima-facie case against the Deputy President, he would not face charges. The NPA head, who resigned in July, accused the Public Protector of joining an "orchestrated campaign" to discredit the NPA and jeopardize the trial.

A report by the UN Development Programme (UNDP) in May noted the persistence of massive unemployment; a slight decline in the percentage of the population living in poverty but an increase to over 10 per cent of the population living in extreme poverty (on less than one US dollar per day); and a worsening rate of income inequality. An increasing number of black South Africans had no access to one or more basic services. The report suggested these trends resulted in part from government policies. Church-based, trade union and other civil society organizations made similar criticisms.

Limited access to health care

The government's "rollout" programme to provide care and treatment to people living with HIV and AIDS led to 28,743 people gaining access to anti-retroviral (ARV) drug treatment through 108 state-accredited facilities by December. This official total was just over a half of the government's revised target of 53,000 by March 2005. About 500,000 of the estimated 5.3 million people with the virus require ARV treatment. Women and girls under 30 years of age had the highest infection rates, according to the UNDP report and UNAIDS.

In several hospitals visited by AI in August, only a small proportion of patients needing ARV treatment were receiving it because of a severe shortage of medical staff and delays in the supplies of the drugs and equipment. The stigma associated with HIV and AIDS, widespread poverty, poor education, and limited, unreliable public transport were additional socio-economic factors hampering access to treatment. The Treatment Action Campaign (TAC), in its July report on implementation of the rollout, noted similar problems in most provinces.

In December the Pretoria High Court awarded costs against the Minister of Health in a case brought by the TAC in June to compel the Minister to make public the implementation timetable for the rollout. The Court found that the Minister had acted unconstitutionally in failing to respond properly to the application.

There was improvement in the access to HIV-prevention treatment for rape survivors who tested negative shortly after the rape. However, the availability of ARV drugs for women and girls who became HIV positive as a result of rape was severely limited.

Violence against women

Police statistics for the year 2003/2004 recorded 52,759 reported rapes, with the highest provincial ratio being recorded in the Northern Cape at nearly 190 incidents per 100,000 people. President Mbeki publicly minimized the concerns of service-providing and advocacy organizations about the high levels of rape and the link with the epidemic of HIV infection among younger women. In October the President's response was criticized in a parliamentary motion.

Child and adult rape survivors interviewed by AI in August, all of whom were HIV positive, had access to emergency medical care. However, they had considerable difficulties in obtaining further medical treatment or psychological care because of the social stigma, unemployment, and their lack of secure housing and access to affordable transport. In one case the survivor and her mother were threatened with violence by the perpetrators, who had been released on bail.

Reforms to improve access to justice for survivors continued during the year. The police Family Violence, Child Protection and Sexual Offences Unit, responsible for investigating these cases, was enlarged. Additional "victim-friendly facilities" were established at hospitals and at police stations, with the support of NGOs and business organizations. By December, 52 specialized sexual offences courts had been established. The conviction rate in rape cases in these courts was 20 per cent higher than cases brought to trial in ordinary courts. Complainants' access to justice was still limited by staff shortages, distances from the courts, poor police work and lack of social welfare support. Only about seven per cent of all the rape cases reported to the police resulted in convictions. The NPA launched a comprehensive training programme for police and criminal justice officials to improve their implementation of the 1998 Domestic Violence Act.

In December, South Africa ratified the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa.

Police violations

The police oversight body, the Independent Complaints Directorate (ICD), reported for the year ending March 2004 that it had received 47 per cent more complaints of "serious criminal offences" by the police. In the same period it received 714 reports of deaths in police custody or arising from police action, an increase of over 35 per cent on the previous year.

Suspects in criminal investigations, refugees, and members of organizations protesting against poor social and economic conditions were among the victims of alleged torture, ill-treatment or the unjustified use of lethal force.

• Charles Mabiya died on 25 September at Zonkizizwe police station near Johannesburg, one day after his arrest with two others, Sibusiso Lukhele and Bheki Khoza, on suspicion of armed robbery. The three men were beaten at the time of their arrest, and Charles Mabiya was allegedly denied medical care. Postmortem evidence indicated he had multiple injuries, including head injuries. In October one detective was arrested by the ICD and charged with murder and assault with intent to cause grievous bodily harm.

• In December three Serious and Violent Crime Unit members were charged in the Johannesburg Regional Court with theft, defeating the ends of justice and assault with intent to cause grievous bodily harm. The three, who were released on bail, were alleged to have tortured crime suspects and others to obtain information on stolen property which they then seized unlawfully. The police officer leading the investigation received threats.

• On 22 August, Joseph Kongolo, granted refugee status after fleeing the Democratic Republic of the Congo, was unlawfully detained and assaulted by police in Johannesburg. He was head-butted, slapped in the face and had his genitals grabbed by two police officers who were searching the building where he lived for suspected illegal immigrants. He was released from Jeppe police station the following day after the senior public prosecutor declined to press charges.

• On 16 February two high school students, Dennis Mathibithi and Nhlanhla Masuku, were shot dead by a member of the Ekurhuleni Metro Police in Katlehong near Johannesburg. The police said they were responding to violent protests over court-ordered evictions. The students were unarmed and postmortem examinations confirmed that they had been shot in the back. Ballistics tests showed a link with one officer's weapon. He was arrested on 18 February and charged with murder, attempted murder and attempting to defeat the ends of justice. An internal inquiry by the Ekurhuleni Metro Police apparently cleared him of any unlawful actions.

• Four members of the Landless People's Movement (LPM) were tortured or ill-treated after they were arrested following a protest rally on 14 April and detained overnight at Protea South police station in Soweto. Samantha Hargreaves and Ann Eveleth were interrogated in the middle of the night about their political activities and subjected to suffocation torture by police Crime Intelligence officers. Moses Mahlangu was threatened with violence during interrogation. Maureen Mnisi, the Gauteng provincial chairperson of the LPM, was repeatedly slapped and kicked by officers during a cell search. Following their release the four LPM activists lodged complaints with the police and the ICD. No results from any internal police investigation were communicated to them. The ICD's investigation was hampered by lack of cooperation from the provincial police authorities, and no arrests were made by the end of the year.

• On 30 August, 17-year-old student Teboho Mkhonza died shortly after local police fired into a crowd of protesters near Harrismith, Free State province. The demonstrators, who were unarmed, were protesting at the municipal council's failure to provide basic services to the impoverished community. According to film, witness and forensic evidence, the police opened fire with birdshot, prohibited for use in controlling crowds. The police gave no warning and fired as people fled. Following investigation, in December the ICD recommended prosecution of three officers for murder and attempted murder and disciplinary action against the officers for a breach of standing orders on the use of force and firearms.

Violations of refugee rights

Asylum-seekers were at risk of arbitrary arrest or deportation because of officials' corrupt practices at refugee reception centres and borders, which obstructed, delayed or denied their access to determination procedures. Human rights lawyers and organizations expressed concern, particularly at the discriminatory treatment of Zimbabwean asylum-seekers. The South African Human Rights Commission and the Parliamentary Portfolio Committee on Foreign Affairs held public hearings in November on xenophobia and allegations of human rights abuses against migrants and asylum-seekers. In September the Pretoria High Court ruled that the detention of unaccompanied foreign children was unlawful.

Joint operations by Home Affairs officials and members of intelligence and police services against individuals suspected of links with international "terrorist" organizations resulted in the incommunicado detention, ill-treatment or forcible repatriation of immigrants or asylum-seekers.

• Mohammed Hendi, a Jordanian national who had applied for permanent residence, was detained by police and intelligence officers when they raided his home on 2 April. He was held for 22 days at police stations in the Pretoria area, shackled, denied access to a lawyer, and subjected to racial abuse during interrogation. On 14 April the police and immigration authorities attempted to deport him and arbitrarily deny his residence application. Lawyers secured his release on 23 April through a habeas corpus action in the High Court. Jamil Odys, detained at the same time, was deported to Jordan on 14 April despite having lodged an asylum application. In May the national Commissioner of Police told Parliament that the security services had in April arrested and deported a number of "terrorism" suspects, but he refused to give more details.

AI country visits

AI delegates visited South Africa in August for research and meetings with provincial authorities on concerns relating to access to justice and health care for survivors of sexual violence. AI raised with the national and provincial authorities its concerns about human rights violations by members of the security forces.