United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1994 - South Africa, 30 January 1995, available at: http://www.refworld.org/docid/3ae6aa4928.html [accessed 21 May 2013]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
In a dramatic and historic departure from 46 years of white-minority rule, South Africans in 1994 participated in the country's first multiracial election. During a 2-week period from April 26 to May 10, South Africans officially replaced the apartheid regime with a democratically elected Government of National Unity. The first nonracial election took place April 26-29, administered, monitored, and deemed substantially free and fair by an Independent Electoral Commission (IEC), and observed by thousands of domestic and international monitors. The new Interim Constitution and Bill of Fundamental Rights came into effect on April 27, replacing the previous regional government structure of 4 provinces and 10 homeland territories with 9 provinces. Nelson Mandela was inaugurated as President on May 10, with the previous president, F. W. de Klerk, serving as one of two Deputy Presidents. A multiparty Transitional Executive Council (TEC) served as a bridge between the dissolution of the old regime and the installtion of the new Government of National Unity. The African National Congress (ANC), the National Party (NP), and the Inkatha Freedom Party (IFP), with a total of 377 of 400 seats in the National Assembly, formed the new Government and shared proportionally the original 27 cabinet positions: 18 for the ANC, 6 for the NP, and 3 for the IFP. The National Assembly and the 90-member Senate, when in joint session, comprise the Constitutional Assembly which is tasked with formulating South Africa's new constitution. Although the security forces, including the newly named South African National Defense Force (SANDF) and the South African Police Service (SAPS), are undergoing monumental changes, they remain a powerful, influential, and highly autonomous force within the Government. During the election, the security forces, especially the then South African Defense Force, had a pivotal role, maintaining public order and providing the IEC with logistical support. Starting in April, the SANDF initiated the process of integrating into its 65,000-strong ranks 20,000 former members of Umkhonto We Sizwe (MK), the armed wing of the ANC; 6,000 former members of the Azanian People's Liberation Army (APLA), the armed wing of the Pan Africanist Congress (PAC); and 9,000 members of the former homeland armies. While the integration will bring the total SANDF force to approximately 100,000, the military leadership has pledged to reduce this number to between 65,000 and 75,000 through voluntary and involuntary resignations. The SAPS ttals 120,000 and is expected to assimilate 30,000 police from the former homelands. In 1994 the SANDF acquitted itself well in internal security operations, particularly during the state of emergency in KwaZulu/Natal, but there continued to be credible reports of torture and unexplained deaths of persons while in police custody. Also, the National Peacekeeping Force (NPKF), which was deployed to some townships during the preelection period, performed poorly and inadvertently killed at least one person. The Government disbanded the NPKF following the elections, incorporating some of its members into the ranks of the SANDF. South Africa has a diversified and productive economy with strong agricultural and industrial sectors. The manufacturing sector contributes 25 percent to a gross domestic product of $111.8 billion. Unequal opportunities and disproportionate government spending over the years have resulted in illiteracy, high unemployment, and other social ills among the black majority. The unemployment rate in the formal sector is approximately 46 percent, while over 60 percent of the black population is either totally without work or employed in the informal sector. The year represented a turning point in South Africa's human rights history. The new Interim Constitution and the Bill of Fundamental Rights provides for freedoms of speech, press, assembly, association, religion, free movement of travel and domicile, and protection of minority rights. Section 29 of the Internal Security Act (ISA), which had permitted the old government to detain thousands of persons without charge or trial for indefinite periods, was repealed. Following the installation of the new Government, there was a dramatic reduction in political and other extrajudicial killing. Once the IFP leadership decided to participate in the election campaign and the elections were held, violent conflict between the ANC and IFP supporters subsided, and white rightwing extremists seemed to resign themselves to the inevitable. Nevertheless, politically motivated violence persisted throughout the year, especially in KwaZulu/Natal, the IFP's provincial stronghold, in spite of a state of emergency there from March 31 to August 31. Both the ANC and IFP were responsible for this violence. The number of unexplained deaths in police custody also continued at a high level. The Goldstone Commission unearthed prima facie evidence which implicated senior South African Police officers in the supply of weapons to the IFP. A team of Dutch human rights monitors and police experts, as well as investigators from an Independent Board of Inquiry (a nongovernmental organization whose rimary mission is to investigate political violence and police misconduct), uncovered a pattern of police torture of detainees in the Vaal Triangle area of suburban Johannesburg. Many knowledgeable observers believe that, in spite of the constitutional changes and the introduction of human rights training for the SAPS, improvement in respect for human rights will only occur once the former SAP leaders have been removed from office. The Justice Ministry-drafted bill that recommended amnesty to those who committed politically motivated crimes between 1960 and 1993 loomed at year's end as a major test for the new Government in achieving its accountability and reconciliation goals. The Government also announced reforms aimed at strengthening women's rights and its intention to revamp South Africa's labor relations system by giving a statutory basis to collective bargaining and improving dispute resolution procedures. Violence against women continued to be a serious problem.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
The level of political and extrajudicial killings decreased in 1994, especially after the April election, but still remained high. The December total of 94 politically motivated deaths, as reported by the Human Rights Committee of South Africa (HRC), was the lowest monthly figure since February 1991. The South African Institute of Race Relations (SAIRR), which always emphasizes the provisional nature of its year-end statistics, reported 89 deaths for the month of December. HRC reports there were 2,687 politically motivated deaths throughout 1994 (the corresponding SAIRR figure is 2,367), compared with 4,364 in 1993, and 2,987 politically motivated injuries, compared with 4,339 in the preceding year. In 1994, 31 persons died in police custody, compared with 39 in 1993. In KwaZulu/Natal, there were 1,588 politically motivated deaths in 1994, compared with 2,009 in 1993. There were 1,631 politically motivated deaths during the 4 months preceding the election, compared with a much lower figure of 1,056 deats during the remaining 8 months of the year. On the other hand, the number of deaths in police custody for the 4 months preceding the election and the 8 months following it (11 and 20, respectively) showed almost no downward swing at all. There were a number of killings by official forces, elements of which, it had become increasingly clear through the Goldstone Commission investigations, had been involved in the past in covert "third force" activity to foment ANC/IFP conflict. The largest number of political and extrajudicial killings were committed by the rival ANC and IFP, often involving their local self-defense units (ANC SDU's) and self-protection units (IFP SPU's). The vast majority of the violence was concentrated in KwaZulu/Natal and the East Rand sections of metropolitan Johannesburg. There were also killings by homeland security forces, rightwing extremists, and in the "taxi war" killings by rival groups, that allegedly involve political undertones. Killings related to the taxi wars occurred not only in the Western Cape but in all regions of the country except the Free State and Northern Cape. Taxi-related deaths increased sharply during the final quarter of 1994. Out of a nationwide total figure of 184 for the whole year, thee were 36 deaths recorded in October and 39 in November. In the first incident of targeted political killing since the 1993 murder of Chris Hani, an unknown assailant(s) killed former Dutch Reformed Church moderator Johan Heyns in his Pretoria home on November 5. Although at year's end, the police had no suspect or confirmed motive, there was widespread speculation that rightwing extremists had assassinated Heyns for political reasons. The apparent professionalism with which the killing was carried out stunned the population and created anxiety among parliamentarians and the press about a new round of political violence. In February the TEC formed the NPKF, composed of 35,000 "volunteers"--largely MK soldiers, in the hope that it would be more effective than the SAPS in keeping the peace between the hostel dwellers (generally IFP supporters) and squatter-camp residents (generally ANC supporters) in Johannesburg's townships. However, on its first assignment in the East Rand, it performed poorly. During an April 18 firefight between township residents, the NPKF was caught in the crossfire and returned fire wildly, reportedly killing one reporter and wounding two others. According to HRC data, 31 persons died in police custody in 1994. Incident reports on these deaths did not reveal a clear pattern. In some cases, those arrested died as a result of injuries received either during attempted crime or during the arrest process. In other cases, those arrested committed suicide in their police cells. In a few cases, pathologist reports confirmed allegations of police abuse and torture at time of interrogation. Such incidents, however, are generally considered to be the exception rather than the rule. On March 18, the Goldstone Commission released a report in which it presented prima facie evidence implicating senior South African Police (SAP) officers in third force activity in clandestine support of the IFP. The report specifically implicated Colonel Eugene de Kock, a police training unit commander, in the supply of weapons to the IFP. As a result of the report, a number of very high-ranking SAP officers retired from the service, while de Kock himself was arrested and, having been refused bail, awaited trial at year's end. Meanwhile, the Transvaal Attorney General continued to investigate the third force allegations of the Goldstone Commission. Similarly, in the widely followed Goniwe inquest, which concluded May 28, the judge found that, although he was unable to identify the murderers, there was prima facie evidence implicating the security forces in the June 27, 1985, killing of the so-called "Cradock Four," which included Matthew Goniwe and three United Democratic Front colleagues. In this case, evidence included a security force document calling for Goniwe and his colleagues to "be permanently removed from society as a matter of urgency."In the preelection violence, in mid-March the Bophuthatswana Security Forces (BSF) used lethal force in attempting to put down protests calling for homeland president Mangope to step down and terminate Bophuthatswana's nominal independence. BSF members killed at least 42 people and injured 150 others during the protest activity. The new Government began a formal investigation into KwaZulu Police (KZP) hit squads in September and also began a preliminary investigation into ANC hit squad activity in the KwaZulu/Natal Midlands region. There were many incidents involving killings by ANC/IFP supporters. The greatest death toll resulting from any one single incident occurred in Johannesburg on March 28, when ANC and IFP supporters fought during a Zulu-sponsored march in support of King Goodwill Zwelithini's call for a sovereign Zulu state and in opposition to the upcoming election. By the end of the day, over 50 people had died in the fighting, including 8 persons shot dead in front of ANC headquarters. After the election, an ANC minister in the new Government acknowledged that persons coming from ANC headquarters had also attacked the marchers during the incident and promised a full investigation. At year's end the investigation was ongoing, but, according to most reports, the deaths in this case were due largely to the ANC/IFP fighting rather than to police intervention in the melee. In KwaZulu/Natal, the ANC/IFP preelection conflict resulted in several ugly episodes, including one on April 12, when IFP supporters tortured and massacred eight employees of a private company who were handing out TEC leaflets explaining voting procedures. In postelection violence some SDU's, SPU's, and somewhat politicized criminal gangs continued to kill suspected political opponents. The ANC and the IFP did not always have control over these local vigilante groups. Observers pointed out that in areas like Tokoza and Katlehong near Johannesburg, law enforcement actually remained in the hands of these heavily armed local groups rather than the SAPS. In the Pretoria/Witwatersrand/Vereeniging (PWV) region (soon to be officially renamed Gauteng), two initial groups of former SDU and SPU members have already undergone the necessary training to be integrated into the regular police units. However, this program is still regarded as experimental. In the March political violence in Bophuthatswana (see above), some 1,500 rightwing extremists arrived in the homeland, allegedly at the request of the homeland president, to help stabilize the territory. In the process, a Bophuthatswana police officer executed two of the white extremists in full view of television cameras. The violence ended when the TEC sent in the SADF to restore order and placed the homeland under TEC central authority. Not only in Bophuthatswana did white rightwing groups, such as the Afrikaner Weerstandsbeweging (AWB), engage in extensive violence prior to the election. In the week immediately preceding the election, there were 13 separate bombings throughout the PWV region, mainly attributed to rightwing extremists. These incidents caused 23 deaths and 179 injuries. Since April no significant incidents or organized, politically motivated violence have occurred which might be directly attributable to rightwing extremists, although many observers believed that rightwing elements assassinated prominent church leader Johan Heyns on November 5 (see above).
There were no reported cases of disappearances caused by official forces. However, neither the TEC nor the new Government initiated any new investigations into past disappearances, in the hopes that the still to be established Truth and Reconciliation Commission will investigate cases such as that of the 1988 disappearance of community activist Stanza Bopape.
c. Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Although the Interim Constitution stipulates that "no person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment," there were credible reports that, both before and after the Interim Constitution came into effect, police tortured and severely mistreated detainees in their custody. In one of the most egregious examples, credible reports indicate a pattern of systematic torture of police detainees by the members of the Vanderbijlpark Murder and Robbery Unit in the Vaal Triangle area of suburban Johannesburg. At year's end, a team comprising a Witwatersrand/Vaal Triangle police officer, a representative from the Independent Board of Inquiry, three SAPS colonels, and police experts from the Netherlands and the United Kingdom, had conducted a detailed investigation of 121 cases of torture, the vast majority of them involving the Vanderbijlpark Murder and Robbery Unit. Of these 121 cases, at least 29 had been completed and forwarded to the Attorney General for action. By the end of 1994, the Attorney General had decided to prosecute in 7 cases involving 12 police officers. The Attorney General declined to prosecute in 5 cases, and the remaining cases were still pending. In the meantime, the authorities transferred four police officers out of the Vanderbijlpark Unit, pending further invetigation. The initial findings indicated that, among the alleged torture methods, officers of the Vanderbijlpark Murder and Robbery Unit frequently employed electric shock. There were other reported incidents of police torture elsewhere in South Africa, often involving "tubing", a method of smothering the nose and mouth of torture victims with a rubber tube, thereby making it virtually impossible for them to breathe. For example, in August, internal stability unit members from Mtubatuba, Northern Natal, allegedly assaulted an ANC-supporting shop steward with a rubber tube at the police station in Ngwelezane. From the outset the new Government gave a high priority to addressing the issue of police brutality and the need for institutional reform, especially in the light of the Goldstone Commission findings. More recently, the existence of heavily armed local groups has complicated law enforcement responsibilities (see Section 1.a.). On May 25, the Minister for Safety and Security announced plans for a comprehensive reorganization of the SAPS, including decentralization of the command structure, the promotion of more women and blacks into senior officer ranks, and introduction of a new institutional culture in support of democratic constitutional rights. During the year, there were new programs aimed at furthering police-community relations, and the Lawyers for Human Rights (LHR), one of the foremost human rights advocacy groups in South Africa, regularly conducted human rights education and training workshops for police officers and instructors at police colleges throughout the country. Nevertheless, at year's nd the effectiveness of these measures in reducing SAPS abuses had yet to be demonstrated. In general, prison conditions are poor but not life threatening. The Department of Correctional Services has traditionally refused to provide information on prison operations, but there were reports that inmates and prison guards killed some prisoners. After several prison riots instigated by the South African Prisoners Organization for Human Rights (SAPOHR), the President created the Commission of Inquiry into the Unrest in Prisons. During Commission hearings, SAPOHR cited widespread human rights abuses in prisons, including deaths, assault, harassment, and other physical and psychological abuse. At year's end, the Commission's report had not yet been made public. Female prisoners normally enjoy better conditions than do their male counterparts; women's facilities are generally cleaner and less austere. In an effort to reduce prison overcrowding, the Government granted an amnesty in 1994 to all female prisoners with children under 12, if they had been convicted of nonviolent crimes. South African prisons offer no special services nor protection for juvenile inmates, thereby leaving them vulnerable to abuse. Although by law persons between the ages of 18 and 21 are considered "juveniles" and must be incarcerated away from adult prisoners, this is often not the case. As a result there is widespread rape and sexual exploitation of juveniles by adult prisoners who are sometimes aided and abetted by warders. Juvenile prostitution is common in the prisons. The conservative leadership of the Department of Correctional Services has resisted pressure to address this problem or to implement policies on AIDS awareness and prevention. According to the Department of Correctional Services, as of December 1, l994, there were 613 children under age 18 serving prison sentences and 665 children awaiting trial. On May 24, President Mandela ordered all relevant government departments to take immediate steps to empty South Africa's prisons of children and place them in suitable alternative care. In addition, the Correctional Services Amendment Bill, which was tabled before Parliament on August 24, is designed to humanize the treatment of children upon their arrest. In a September 20 amendment to the draft bill, the Parlimentary Standing Committee on Correctional Services provided that, following arrest, children under 14 could not be detained for longer than 24 hours without being afforded an opportunity to appear in court. In addition, following a court appearance, they would have to be located in a place of safety or in a foster home rather than be incarcerated. Children between the ages of 14 and 18 could be incarcerated following a court appearance but only for a maximum of 48 hours. However, in November, the Advisory National Working Group on Children in detention/alternative centers indicated that the September 20 amendment could not be implemented because all existing alternative care facilities were already occupied by other children. At year's end, this problem awaited consideration in the January 1995 session of Parliament. By agreement with the Government, the International Committee of the Red Cross (ICRC) has access to all inmates in South African prisons and to all police station detainees. The ICRC provides the authorities with reports of any substandard prison conditions it encounters, but does not publish its findings. However, the South African Prisoners Organization for Human Rights (SAPOHR) does publish its findings.
d. Arbitrary Arrest, Detention, or Exile
The Interim Constitution prohibits detention without trial. In April the National Assembly repealed portions of the Public Safety Act (PSA) and the Internal Security Act (ISA), which permitted indefinite detention of persons without charge or trial. Under the Interim Constitution, every "detained person" has a number of rights, including the right to be informed promptly of the reasons for detention; to be charged within 48 hours of arrest; to be detained in conditions of human dignity; to consult with legal counsel at every stage in the legal process; to communicate with relatives, medical practitioners, and religious counselors; and to be released with or without bail, unless the interests of justice require otherwise. At year's end, most courts and police appeared to be acting in good faith to respect these rights, although there was a lack of uniformity in application at some levels. According to the HRC, the authorities detained 270 persons without charge from January 1 through May 15 under the old laws, but had detained no person since then unless properly charged. Throughout the year, the Advisory Commission on Indemnity and Amnesty, chaired by LHR national director Brian Currin, continued to process amnesty and indemnity applications by those claiming to be political detainees or prisoners (see Section 1.e.).
e. Denial of Fair Public Trial
The Interim Constitution's section on fundamental rights provides for due process, including the right to a fair, public trial, with counsel and within a reasonable time of being charged; and with the right of appeal to a higher court. That Constitution also provides for an independent and impartial judiciary subject only to the Constitution and the law. The Constitution established the Constitutional Court as the supreme arbiter of constitutional questions and overturned the principle of parliamentary sovereignty, which, under the old system, restricted courts' authority to alter or strike down laws. This change removed a key obstacle to maintaining judicial independence. The new Court was expected to begin hearing cases in early 1995. Its 11 members, who will serve 7-year terms, were selected by a process which attenuates direct political influence: While 5 of the 11 Constitutional Court judges were directly chosen by the State President, the remaining 6 judges were selected by the President from a list of 10 nominees submitted by the Judicial Service Commission (see Section 3). The relationship between the Constitutional Court and the Appellate Division of the Supreme Court in Bloemfontein (which was formerly the country's supreme judicial body) remains unclear, as does the extent to which appellants will be permitted to seek Constitutional Court review as a right, rather than at the Court's discretion. Judges try criminal cases; the jury system was abolished in 1969. The Supreme Court or in one of its provincial divisions try serious offenses, including capital crimes. Magistrates, who are career civil servants, hear lesser offenses. The presiding judge or magistrate determines guilt or innocence. While initial indications point to good-faith efforts by South African authorities to ensure fair public trial, delays in implementation of due process rights are widespread. In particular, pretrial delays still plague the criminal justice system, which sometimes result in the obstruction of justice. The delays are due to a combination of poor court management and the growing exercise of the right to counsel, coupled with the inability of legal aid structures to cope with demand in a timely fashion. Critics continued to charge that the judiciary remained a bastion of de facto apartheid. White males have always dominated the bench, as well as the senior members of the bar from whose ranks judges have been chosen. As a result, extreme racial and gender imbalances continue. President Mandela noted in September that the country's 94 judges include only 1 black and 2 women (both white). In addition, only 37 of 1,088 magistrates, 37 of 172 senior counsel, and 1,180 of 8,300 attorneys are black. In late December, Durban attorney Navanthem (Navi) Pillay became the first black woman in South African history to be appointed a judge; she will serve on the Natal Supreme Court bench. President Mandela vowed to act promptly to redress these imbalances. The Government adopted policy changes to permit the appointment of attorneys and law professors as Supreme Court judges. This greatly broadened the pool from which judges can be selected and should help to create a more diverse and representative bench. During the year, the Mandela Government also began to address the controversial issues of both amnesty and punishment for past human rights abuses. The Cabinet debated a draft bill which would create a "Truth and Reconciliation Commission." This Commission would investigate political crimes and human rights abuses committed, inter alia, by members of the apartheid-era government security apparatus, rightwing extremist groups and antiapartheid liberation movements. In addition, the Commission would authorize reparations and other compensatory measures for victims and relatives of victims of certain abuses. In the draft bill, which has been circulated for comment, the cabinet agreed that the Commission would cover crimes and abuses committed between March 1, 1960, and December 6, 1993, and that the approximately 10 members of the Commission would be independent and would be appointed by the President upon the recommendation of Parliament. It was expected that the commissioners would complete their work within a period of 12 to 18 months. The Commission would have three committees to handle amnesty and indemnity, human rights violations, and reparations to and rehabilitation of victims. The draft bill instituting the Commission is expected to be debated in the January 1995 session of Parliament. The number of political prisoners still held at year's end was unknown, but was believed to be in the low hundreds. The Advisory Committee on Indemnity and Amnesty had by year's end processed more than 1,200 applications from persons claiming they were political prisoners or facing political charges. The Committee recommended about 250 cases for amnesty. According to the HRC, the authorities had granted indemnity to 69 political prisoners in late November, pursuant to Committee recommendations, and earlier had released over 90 at the Committee's behest. In addition to those mentioned in Section 1.a., there were several other important cases in which the courts sentenced offenders for past human rights abuses. For example, on March 30, the Pretoria Supreme Court convicted 17 hostel-dwellers, presumed to be IFP supporters, for the massacre on June 17, l992, of 45 people at the Boipatong Township squatter camp, an area of ANC support. Also, on May 11, the Rand Supreme Court sentenced to death six white rightwing extremists for the murder of four blacks, including an 11-year-old child, at a roadblock near Randfontein on December 12, 1993.
f. Arbitrary Interference With Privacy, Family, Home, or Correspondence
Police and security forces retained the legal authority to engage in domestic surveillance activities, including the use of informers. However, informed observers believe that under the country's dramatically changed political environment the use of this authority has been limited to the pursuit of legitimate law enforcement and national security objectives. Before the Interim Constitution came into force, police had sweeping powers of search and seizure in magisterial districts that had been declared "unrest areas," under the provisions of the Public Safety Act. The provisions of the Act that allowed for the declaration of "unrest areas" are no longer operative, and police searches in all of South Africa must now be conducted in accordance with the Criminal Procedure Act of 1977. This Act requires that a warrant be issued by a magistrate before a search can be conducted, unless there are reasonable grounds to suspect that evidence would be destroyed in the time that it would take to obtain one. Despite the widespread anticipation that some provisions of the Criminal Procedures Act will be challenged as being unreasonable infringements of the right to privacy, all South Africans now generally enjoy protection from unreasonable searches and seizures. The legacy of apartheid has left vast numbers of South Africans landless; more than 8 million people now live in squatter camps which often surround settled communities. The Prevention of Illegal Squatting Act gives landowners and local governments the authority to remove informal settlements without reference to the courts. Despite widespread preparedness on the part of the central Government and many local authorities to seek accommodation with squatters, some municipalities, landowners, and, in one case, rightwing vigilantes, have demolished shacks as a means of forcing squatters to move. Although the problem of forced relocation of residents of informal settlements was most pronounced prior to the April election, forced relocations continued throughout the year. The most notable of these incidents occurred in early June when the Johannesburg City Council, without securing a court order or legal judgment, demolished two squatter settlements on city land. Unauthorized land invasions by squatters also continued sporadically throughout the year, a practice severely decried by the Government as inimical to the housing strategy it devised as part of its Reconstruction and Development Program.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedoms of speech and press, and these rights are respected in practice. Both the mainstream and the so-called alternative press kept the public well informed and criticized both the Government and the opposition. The South African Broadcasting Corporation (SABC), once seen as the Government's mouthpiece, continued to undergo profound changes under the direction of a new board of directors and a new group manager. Parliament established the Independent Broadcasting Authority (IBA) in 1993 to oversee restructuring the broadcasting industry and to issue licenses. At year's end, the IBA began to issue temporary community radio licenses, but the process was a slow one. By early December, the IBA had issued only one license, for Radio Maritzburg, although more were expected in January 1995. Radio and television news reporting from both the SABC and the privately owned Radio Station 702 appeared balanced. Although rarely invoked, considerable legislation remained on the books that permit the Government to restrict the publication of information about the SAPS, SANDF, petroleum issues, prisons, and mental institutions. In August the Minister of Defense sought a court order interdicting an alternative weekly newspaper from publishing articles about the SANDF Directorate of Covert Collections. However, the Minister refrained from proceeding with the action in the face of intense opposition from the press and the ANC. While there were no instances of government-or police- sanctioned harassment of the press, there were cases of harassment of journalists by supporters of white rightwing organizations prior to the election. AWB supporters manhandled an African-American journalist and two black colleagues at a rightwing rally; and rightwing supporters harassed and beat two other American reporters during unrest in Bophuthatswana. Earlier in the year, rightwingers harassed an African-American journalist at a Volksfront party rally. There were no such incidents since the election in April. The Internal Security Act still allows the Government to ban organizations and their publications. Prohibitions against the publication of material deemed to be pornographic are also still in effect, but enforcement of such bannings became less frequent after the election. During the year, Parliament repealed the Newspaper Registration Act of 1971, which required newspapers to register with the Ministry of Home Affairs and pay a certain fee. Many observers considered this Act an impediment to freedom of the press, since it permitted the Government to withhold registration if it opposed a particular publication. There are no official restrictions on academic freedom.
b. Freedom of Peaceful Assembly and Association
Political parties and organizations exercise broad constitutional freedoms of assembly and association. Although the legal framework governing public meetings and demonstrations comprises nine different apartheid-era laws, police policy is now to act in accordance with the Regulation of Gatherings Act which, at year's end, awaited the signature of the President. This Act promulgates recommendations on public gatherings that were made by the Goldstone Commission; it requires local governments, demonstration organizers, and the police to cooperate in order to facilitate the exercise of the right to peaceful assembly. The authorities may prevent demonstrations only under extreme circumstances, and, even then, the Act provides for judicial appeals. Despite declared police adherence to the Regulation of Gatherings Act, there were several controversial incidents in July and August in which the police acted forcibly to prevent an "illegal gathering," pursuant to a court order issued under existing laws. Police used excessive force to disperse these gatherings and the HRC said the police "appeared to be reverting to their old habits by breaking up peaceful demonstrations with dogs, rubber bullets, and tear gas." Although legal, observers said the use of force in these instances was inappropriate. Prior to the April election, there were incidents impeding political assembly and association. The police used the emergency and unrest provisions of the Public Safety Act on numerous occasions to prohibit political meetings and demonstrations, usually to reduce violence. In the former homeland of Bophuthatswana, local officials banned most political organizations and prohibited political meetings and in the KwaZulu homeland officials used their authority to hamper severely political activity by groups other than the IFP. The climate of violence that existed in many parts of KwaZulu and in some East Rand townships resulted in so-called no-go areas where, in some cases, leaders of the ANC and, in others, leaders of the IFP could not organize meetings without risk to their lives. The National Party and the Democratic Party also experienced difficulty in organizing rallies in some areas. ANC and IFP sympathizers shared culpability for this situation.
c. Freedom of Religion
The Constitution provides for freedom of religion. There were no known cases of restrictions being placed on the expression and practice of religious belief, nor on proselytizing.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Interim Constitution stipulates freedom of movement, including travel abroad, choice of residence, and safeguards on citizenship. Neither the preelection government nor the new nonracial, democratically elected Government restricted the movement of South Africans domestically or their freedom to travel overseas, emigrate, or repatriate. Although the United Nations High Commissioner for Refugees (UNHCR) continued to assist with the repatriation of South African exiles under its September 1991 mandate, the flow of these returnees had almost come to an end. By year's end, approximately 14,000 exiles had returned, including 7,303 who returned with UNHCR assistance and an estimated 6,000 who voluntarily repatriated under other auspices. An additional 3,500 exiles remained registered with the UNHCR and cleared for repatriation, but they had chosen not to return. Illegal immigration became a growing political issue during the year, and the SANDF increased border control measures. In December Minister of Defense Joe Modise told a press conference that the controversial electrified fence along South Africa's border with Mozambique had been switched off. Both the Department of Home Affairs (DHA) and private monitoring groups conservatively estimated that 2 million refugees and illegal immigrants currently reside in South Africa, of whom 70 percent are from Mozambique and the remaining 30 percent are from other African countries, Eastern Europe, and the Far East, particularly China and Pakistan. Prior to the October 4, 1992, Peace Accord in Mozambique, civil unrest drove Mozambicans across the border. In recent years, they seem increasingly attracted by better economic opportunities in the Transvaal and KwaZulu/Natal. There has been close cooperation between the UNHCR and the Government to ensure UNHCR protective services to Mozambicans and others wishing to apply for refugee status. In agreement with the Mozambican Government, the UNHCR initiated on January 10, 1994, the organized voluntary repatriation of Mozambican immigrants. Under the Aliens Control Act, the DHA may involuntarily repatriate persons who do not qualify for refugee status to their countries of origin. According to the DHA, between January 1 and December 31, South Africa involuntarily repatriated a total of 90,692 illegal immigrants. Of these, 71,279 were Mozambicans. The only other countries to which the DHA repatriated significant numbers of illegal immigrants were Zimbabwe with 12,931 and Lesotho with 4,073. Although there is widespread recognition of the distinction between bona fide refugees/asylum seekers and illegal immigrants, this distinction is not well rooted among front-line immigration officials. Any so-called foreigner who is arrested and found not to possess the proper documents is often automatically considered to be an illegal immigrant and is summarily deported. Asylum seekers, who often have to wait 2 years for their scheduled case-determination interview, are typically issued a "Section 41" document permitting them to remain in the country and even seek employment, pending results of their interview. However, some police officers fail to recognize this document and have harassed asylum seekers.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
On April 26-29, South Africa for the first time held a nonracial election in which all citizens were allowed to participate. The election was peaceful and was pronounced "substantially free and fair." As a result, the TEC, which had been created in 1993, as well as the old National Party government, gave way to a Government of National Unity. At the national level, 19 parties stood for election, with 7 gaining enough votes to be represented in the National Assembly. These, ranked by number of seats obtained, were: the ANC, the NP, the IFP, the Freedom Front (FF), the Democratic Party (DP), the PAC, and the African Christian Democratic Party (ACDP). South Africa will be governed until 1999 by an Interim Constitution which allows for executive power sharing among political parties, based on the proportion of the vote they received in the April election. It provides for a bicameral parliament, an executive state president, and an independent judiciary which, for the first time, includes a Constitutional Court. The Parliament comprises the National Assembly and the Senate, and, when in joint session, serves as the Constitutional Assembly. According to the Interim Constitution, the Constitutional Assembly is required by April 1996 to draft and approve a new and permanent constitution which is consistent with 34 constitutional principles. If it fails to do so, it will be dissolved, and a new election will be held. If it succeeds, it will remain in office until 1999, when a fresh election under the new permanent constitution will be held. This permanent constitution will have to be reviewed and approved by the Constitutional Court (see below). The National Assembly is made up of 400 members elected by a system of "list proportional representation." Each of the 19 parties which appeared on the ballot submitted a rank-ordered list of candidates. The voters then cast their ballots for one party. Seats in the Assembly were allocated based on the percentage of votes each party received. Even though the ANC gained a majority of 252 seats in the 400-seat Parliament, it is required to share power at the cabinet level with the NP which gained 82 seats and with the IFP which gained 43 seats. The Senate consists of 90 members, 10 from each of the nine provinces created under the Constitution. With a few exceptions, the Senate has coequal legislative powers with the National Assembly. In addition to President Mandela, who is the Executive Head of State, South Africa has two Executive Deputy Presidents, Thabo Mbeki, representing the ANC, and F. W. de Klerk, the former president, representing the NP. A constitutional amendment in September created an additional 28th cabinet seat beyond the original maximum of 27 seats provided for in the Interim Constitution. Any party holding at least 20 seats in the Assembly is entitled to a proportionate share of cabinet seats. According to the Constitution, the Cabinet must in the first instance seek consensus. The Interim Constitution provides for a Constitutional Court whose responsibility is to interpret, defend, and enforce the Constitution. The Court will have the power to overturn any law or executive act that it deems unconstitutional. Chapter three of the Constitution delineates over 25 fundamental rights of a South African citizen which it is the Court's duty to protect. The Constitutional Court must rule on whether the constitutions adopted by the Constitutional Assembly or any of the provinces are consistent with the Interim Constitution's constitutional principles. The 11 judges of the Court were named in October, and they were expected to begin hearing evidence on their first case, concerning the legality of the death penalty, in January 1995. The first major test for the government coalition centered on the Justice Ministry's draft legislation designed to foster national reconciliation (see Section 1.e.). There are no legal impediments to women's participation in government and politics. In fact, a record 106 women sit in the new 400-member National Assembly and 16 women in the 90-member Senate. A woman, Dr. Frene Ginwala, was elected speaker of the National Assembly, and women parliamentarians have formed a caucus in order to press for legislative and other solutions to problems of sex discrimination. However, women are less well represented in the Cabinet where only 3 out of 28 ministers and 3 out of 13 deputy ministers are women. There are no women among the 9 provincial premiers.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The new nonracial, democratically elected Government has continued to pursue the preelection government's practice of permitting an increasingly broad range of domestic and international organizations to monitor, investigate, and report on human rights issues. On August 22, the Senate passed legislation creating the Human Rights Commission and the Office of Public Protector, two bodies for the protection of human rights which the Interim Constitution mandated. The Parliament's Standing Committee on Justice has insisted that the Office of Public Protector, whose task is to investigate abuse and maladministration by government, should maintain its independence of the executive branch. Accordingly, Parliament will appoint the Public Protector and determine compensation and conditions of service. Throughout the first 4 months of 1994, when the most intensive election campaigning took place, the United Nations, the European Union, the Commonwealth of Nations, and the Organization of African Unity stationed observers in South Africa to monitor campaign activities and any violence related to them. These observers attended marches, demonstrations, and other mass events, monitoring compliance by all participating organizations with both the principles of the National Peace Accord and the guidelines of the Goldstone Commission governing marches and political gatherings. The observer groups enjoyed complete freedom of access to all geographic areas, institutions, and personalities, except in the then homeland of Bophuthatswana. The central and most provincial governments also welcomed visits and suggestions by, and cooperated with, a number of international nongovernmental human rights organizations (NGO's). However, while authorities in the Gauteng (ex-PWV) region granted complete access to NGO's to detention cells, those in Northern Natal, under the state of emergency, restricted NGO access. This disparity in responsiveness between the Gauteng and KwaZulu/Natal provincial governments has persisted since the election. As noted in Section 1.c., the Government granted the ICRC access to all prisoners and detainees. Prior to the April election, the former Bophuthatswana government resisted ICRC relief activities but did give the ICRC access to prisons. However, after the election, ICRC has had complete access to prisoners and detainees throughout the country, including during the state of emergency in KwaZulu/Natal. The Government's receptivity to ICRC prison visits is especially noteworthy in view of widely publicized charges by the South African Prisoners Organization for Human Rights concerning poor prison conditions (see Section 1.c.).
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution explicitly prohibits discrimination on grounds of race, gender, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, or language.
Discrimination against women, particularly against black women, remains a serious problem despite legal and constitutional advances in 1994. There is still a high rate of domestic violence against women. According to the Department of Justice, between December 1993 and July 1994, magistrates issued some 5,207 restraining orders in response to complaints of domestic violence. A Human Sciences Research Council study indicated that 43 percent of women questioned said that they had been victims of marital rape and assault, and more than half also knew of other women who had been battered. When contacted for assistance, police and community services were, in most cases, reluctant to intervene on a woman's behalf. Over 50 percent of murdered women died at the hands of their male partners. The recent overall increase in violent crime in South Africa has also been reflected in the level of crimes against women. According to the latest available statistics from the South African Police Service, there were 25,298 incidents of rape reported nationwide during the period January 1 through October 31, 1994, involving women 18 years of age and older. This represents a 17 percent increase over the 21,543 incidents of rape reported for the corresponding period in 1993. In 1992 there were 23,675 rapes reported but only 6,131 rapists convicted. In cases of rape accompanied by extreme violence, offenders can receive stiff sentences, including life imprisonment. In September there were several well publicized cases of forced prostitution involving South African and foreign (Asian and other African) women in Johannesburg. During raids, police arrested women and establishment operators but not male patrons. In late 1993, Parliament passed the Promotion of Equality Between Men and Women Act and the Prevention of Family Violence Act. In August the Department of Justice released a family violence brochure and a poster explaining the protections afforded women and children under the new legislation. Women who know their rights can apply to a judge or a magistrate for an injunction prohibiting a partner from acting violently against them. Discrimination against women in traditional law remains. In September Home Affairs Minister Mangosuthu Buthelezi promised that the KwaZulu/Natal legislature would abolish discriminatory customary laws under which women are considered and treated as minors. Such laws exist among other ethnic groups, too, where they remain unchallenged. Women's rights groups continue to press the Government to enact legislation to protect women in customary marriages, to provide equal fringe benefits for women in the workplace, and to legislate equal taxation for women. In response, the new Government has repeatedly proclaimed its commitment to women's rights and to a "nonsexist" South Africa. Even prior to the April election, the TEC had created a Subcouncil on the Status of Women.
The Interim Constitution stipulates that children have the right "to security, basic nutrition, and basic health and social services." Although the Government is committed to providing these services and to correcting past race-based imbalances, it is still developing the mechanisms for delivering the necessary services. Best estimates indicate that between 25 and 33 percent of South Africa's children suffer from chronic malnutrition or stunted growth. Special programs known as "Presidential Initiatives" (owing to President Mandela's interest in them) are part of the Reconstruction and Development Program and offer free health care to pregnant mothers and children under 6 and provide a nutritional feeding for primary school children. These programs are aimed at correcting imbalances such as those reflected in the infant mortality rate, which is 6 per thousand among whites compared with 66 per thousand among blacks. Violence against children is widespread, including in prisons (see Section 1.c.). From January through November 30, the South African Police Service's child protection unit investigated 20,624 crimes against children, including 6,670 cases of rape, 3,598 cases of indecent assault, and 2,949 cases of common assault. Many NGO's, such as the National Children's Rights Committee, are working to enhance the quality of life of South Africa's children. At year's end, the public awaited a report from the Goldstone Commission on its investigation into the effects of violence on children.
With the adoption of the Interim Constitution and Bill of Fundamental Rights, and the near-total repeal of the race-based statutes of the apartheid era, South Africa has theoretically eliminated all forms of racial discrimination. Many private sector companies and institutions have initiated their own affirmative action programs in an effort to correct workforce imbalances and avoid government-instituted programs. However, de facto discrimination is still widespread, and the white minority still controls much of the power and wealth. The Government has begun reorganizing and redesigning the educational, housing, and health-care systems to benefit all racial and ethnic groups in society more equally, but until the work is completed, de facto discrimination continues in all these areas.
People with Disabilities
In 1994 South African society continued to promote an increasingly modern concept of people with disabilities as a self-empowered minority whose civil rights must be protected. This approach is reflected most notably in the Interim Constitution and Bill of Fundamental Rights which includes disability as a basis for nondiscrimination. During the April 26-29 election, the IEC made extensive efforts to enable disabled citizens to vote, including the use of mobile polling stations. In 1986 the NP government incorporated architectural specifications into the National Building Code to ensure equal access to public buildings for the physically disabled. However, these have rarely been enforced and, until recently, public awareness of them was virtually nonexistent. The National Environmental Accessibility Program, an NGO whose affiliated members comprise disabled consumer as well as service-provider groups, has now established a presence in all nine provinces in order to lobby for compliance with the regulations and to sue offending property owners, as necessary. According to the LHR, the public service staff code health requirements are unnecessarily invasive and attempt to identify the limitations of job applicants rather than their capabilities. These requirements equate disability with ill health and thus reinforce the notion that disabled people are unhealthy and unfit for work. Government personnel managers have used the wide discretion allowed them to prevent disabled people from gaining permanent employment status. At year's end, the government department responsible for the Reconstruction and Development Program (RDP) and Disabled People South Africa, the principal South African civil rights organization of people with disabilities, were negotiating the appointment of an official to ensure that all RDP projects take account of the needs of disabled South Africans.
Section 6 Worker Rights
a. The Right of Association
The Labor Relations Act entitles all workers in the private sector to join labor unions of their choosing. There are 201 registered trade unions and 47 unregistered unions, with a total approximate membership of over 3 million workers or 45 percent of the employed, economically active population. Probably more than half of all union members are black. At year's end, the Government was drafting a new labor relations act designed to consolidate and simplify South African labor law. Currently, South African labor relations are characterized by a patchwork of labor law and practice largely designed to inhibit or restrict trade union organization and activity. The result is an uneven and sometimes volatile labor relations climate in which trade unions must rely as much on their own organization and strength as on their legal rights to achieve their objectives. The Congress of South African Trade Unions (COSATU) is formally allied with the ANC and the South African Communist Party. Over 60 COSATU members serve in national and provincial legislatures and administrations. The second largest trade union federation, the National Council of Trade Unions (NACTU), while officially independent of any political grouping, has close ties with the PAC and the Azanian People's Organization. In 1979 South Africa extended the right to strike, long enjoyed by white workers, to most private sector workers, regardless of race. Since then, work stoppages triggered by collective bargaining disputes, and occasionally by political issues, have been commonplace. Current South African labor law does not prohibit an employer from firing a striking employee. However, the Industrial Court has reinstated such fired employees when it considered the firing to be an unfair labor practice. In this regard, the Court has held that striking employees cannot be fired if the strike is a valid part of the collective bargaining process. Historically, public sector employees have been legally prohibited from striking. The 1993 passage of a Public Sector Labor Relations Act, while clarifying the collective bargaining process for public sector employees, still sharply restricts strike activity. COSATU has argued that the Government's definition of "essential services" is too broad, and that it is specifically designed to block public sector strike activity. The Government does not restrict union affiliation with regional or international labor organizations. The International Labor Organization (ILO) readmitted South Africa in 1994. Originally an ILO member since its 1919 inception, South Africa withdrew from the ILO in 1964. Following the reinstatement, the International Labor Conference rescinded its declaration concerning action against apartheid.
b. The Right to Organize and Bargain Collectively
The law defines and protects the right to organize and bargain collectively. The Government does not interfere directly with union organizing in the private sector and generally has not intervened in the collective bargaining process. In spite of recent legislative changes, collective bargaining still does not apply to farm workers and domestic workers. Excluded from the statutory system of industrial councils until 1979, black unions developed a collective bargaining tradition of their own. Unassisted by statute, the unions established collective bargaining relations at the enterprise level on the basis of majority representation. Since 1979 black unions have made increasing use of South Africa's industrial council or centralized collective bargaining system. The 1993 emergence of tripartite negotiating forums, such as the National Manpower Commission (NMC) and the National Economic Forum (NEF), strengthened trade union influence over labor and economic policy. The planned merger of the NMC and NEF into the National Economic Development and Labor Council (NEDLC) will solidify the role of trade unions as social partners with government and business in the formation of economic and labor policy. South African law prohibits discrimination by private sector employers against union members and organizers, and disputes over recognition are relatively few. Private mediation services are available and have been voluntarily resorted to by management and black trade unions to resolve industrial disputes. The Labor Relations Act established the Industrial Court to rule in labor/management disputes. The most common complaints filed with the Court concern dismissals, followed by unfair labor practices. A Labor Court of Appeals oversees the Industrial Court and can overturn its decisions. The Public Sector Labor Relations Act (PSLRA), which was passed in 1993, clarifies dispute resolution within the public sector by recognizing the right of unions to organize and bargain collectively in the public sector, by establishing dispute resolution procedures, and by recognizing the right of public sector workers not performing essential services to strike in some circumstances. South Africa has no export processing zones.
c. Prohibition of Forced or Compulsory Labor
Forced labor is illegal under the Interim Constitution, and it is not practiced.
d. Minimum Age for Employment of Children
The Basic Conditions of Employment Act prohibits the employment of minors under age 15 in most industries, shops, and offices. The Mines and Works Act prohibits minors under 16 from working underground. There is no restriction, however, on the age at which a person may work in agriculture. Use of child labor on farms, often in harsh and dangerous conditions, is common. Use of child labor in the informal economy is also commonplace. The Ministries of Labor and Justice are weak and reactive in enforcing existing child labor laws, depending largely on complaints made against specific employers.
e. Acceptable Conditions of Work
There is no legally mandated minimum wage in South Africa. Instead, the Labor Relations Act provides a mechanism for negotiations between labor and management to set minimum wage standards, industry by industry. At present, over 100 industries covering most nonagricultural workers come under the provisions of the Act. Most industries have a standard workweek of 46 hours, as well as vacation and sick leave. Overtime is voluntary and limited to 10 hours a week. The law does not mandate a 24-hour rest break. Attention to health and safety issues has increased in recent years but is still inadequate. The state-funded National Occupational and Safety Association claims the number of workers suffering disabling injuries annually has dropped significantly over the last decade. Nevertheless, injury and death at the workplace, especially in heavy manufacturing and mining, is still common. In 1993 after a campaign of several years' duration by the National Union of Mineworkers, the Government agreed to establish a Mines Commission of Inquiry to investigate South Africa's mining health and safety laws. The Commission began work in 1994 but had not reported its findings and recommendations by year's end. South African occupational health and safety laws, while requiring an employer not to place employees at unreasonable risk, do not give employees the right to remove themselves from a hazardous job. An employee's decision to leave a hazardous worksite could possibly lead to dismissal but more probably would result in disciplinary action. South African occupational health and safety laws do provide protection for workers who report or file complaints against unsafe working conditions. Such workers cannot be dismissed or reduced in rank or salary.