Amnesty International Report 2015/16 - South Africa

Republic of South Africa
Head of state and government: Jacob G. Zuma

Torture and other ill-treatment and excessive use of force by police continued, although some measure of accountability was obtained. Targeted violence against refugees and asylum-seekers resulting in deaths, displacement and property destruction also continued. Access to medical treatment for people living with HIV continued to expand but was marred by shortages in many areas. Progress was made in addressing hate crimes based on people's real or perceived sexual orientation or gender identity. Human rights defenders faced intimidation and threats from ruling party and state officials.

BACKGROUND

The government came under increasing pressure from opposition political parties, civil society and communities over alleged corruption and poor service delivery, among other issues. Parliamentary processes were undermined by irregular responses to repeated challenges to the ruling African National Congress (ANC) party by opposition parties. Frustration with the slow pace of reform to address the legacy of apartheid resulted in protests across the country in different sectors, including tertiary education institutions. Continuing high levels of inequality led to widespread protests about service delivery in multiple communities across the country.

Criminal justice institutions, including the police oversight body and the prosecuting authority, were destabilized by scandals and internal tensions, affecting their credibility. Tension between the government and the judiciary increased.

In January, South Africa ratified the ICESCR.

EXCESSIVE USE OF FORCE

On 25 June, President Zuma released the report and recommendations of the Marikana Commission of Inquiry into the deaths of 44 people at the Lonmin Marikana mine in North West Province in August 2012. The Commission found that the "decisive cause" of events on 16 August was the unlawful decision by senior police officials the night before to disarm and disperse strikers, forcibly if necessary, by the end of the next day. The Commission found all officials present at the meeting responsible for the decision, and found that they had obstructed and delayed the Commission by attempting to conceal evidence and fabricating a version of events to justify the deaths.

The Commission also found that at the first scene, where police shot dead 17 people, there was no objective evidence that the dispersing strikers intended to attack the police, and that deaths and injuries could have been avoided if the police had deployed minimum force methods more effectively. The Commission concluded that some of the officers might have exceeded the bounds of reasonable self or private defence.

The Commission found that the police presented no plausible justification for the fatal shooting of 17 other strikers at the second scene and that there was a complete loss of command and control. It recommended the establishment of an expert team, under the authority of the Director of Public Prosecutions, to conduct a criminal investigation into the killings. It also recommended an investigation into the conduct of a senior police officer who failed to deploy medical units under his control to the first scene, which led to the deaths of injured strikers. Preliminary steps had been taken to implement these recommendations by the end of the year.

The President did respond to other recommendations of the Commission, including the establishment of a Board of Inquiry into the fitness of the national commissioner of police, General Riah Phiyega, to hold office, and ordered her suspension. The prosecution service also reinstituted criminal charges against some of the workers involved in the strike in connection with the deaths of two Lonmin security guards and three non-striking workers.

EXTRAJUDICIAL EXECUTIONS

The Independent Police Investigative Directorate (IPID) reported 396 deaths as a result of police action in 2014/2015, six more than the previous year.

In the Durban High Court, the trial of 27 police officers, the majority of them members of the now disbanded Cato Manor Organized Crime Unit, on 28 counts of murder and other charges, was further delayed until February 2016. The officers were facing criminal charges in connection with the death of, among others, Bongani Mkhize, a taxi company owner who was killed in February 2009, three months after he obtained a High Court order constraining the police from killing him.

In November, four police officers from Krugersdorp near Johannesburg were arrested and appeared in court in connection with the fatal shooting of a crime suspect, Khulekani Mpanza, on 19 October. They were charged with murder and defeating the ends of justice. The arrests followed the media's publication of CCTV footage of the incident. The acting National Commissioner of Police ordered the suspension of the Krugersdorp police station commander.

Sipho Ndovela, a witness to the murder of one of the victims of the ongoing violence at Durban's Glebelands hostel, was shot dead on 18 May in the precinct of Umlazi Magistrate's Court. He was due to provide testimony identifying and implicating a key figure behind the violence at the hostel complex. From March 2014 more than 50 people had died in targeted killings. Official investigations were undermined by the authorities' failure to protect individuals at risk and prevent violations of the rights of suspects detained for questioning by police.

TORTURE AND OTHER ILL-TREATMENT AND DEATHS IN CUSTODY

IPID reported 244 deaths in custody in 2014-2015. They also reported 145 cases of torture, 34 cases of rape and 3,711 cases of assault by police officers in the same period.

In August, IPID referred the case of Zinakile Fica to the Director of Public Prosecutions for a decision on prosecution following their investigation into his death in police custody in March 2014. He had been arrested at Glebelands hostel along with others and died during interrogation at Prospecton police station. The results of an independent post mortem examination and witness testimony indicated that he had died from suffocation torture during police interrogation.

On 11 November, eight police officers were each sentenced to 15 years' imprisonment after being convicted in August of the murder of Mido Macia in February 2013. The police had shackled the arrested man to the back of their vehicle, dragging him behind it for about 200m before unlawfully detaining him in a police station cell. The High Court in Pretoria also found that seven of the accused had assaulted Mido Macia in the cell where he died.

INTERNATIONAL JUSTICE

In June, the Southern African Litigation Centre took the government to court in an attempt to force it to implement an ICC arrest warrant for Sudan's President Omar al-Bashir, who was in South Africa for an AU summit. The North Gauteng High Court issued an interim order on 14 June preventing President Bashir from leaving the country pending the finalization of the matter. On 15 June, North Gauteng High Court ordered the state respondents, who included the Ministers of Justice and Police, to arrest and detain President Bashir for his subsequent transfer to the ICC.

On 15 June, South African authorities allowed President Bashir to leave South Africa in direct contravention of the interim court order. The North Gauteng High Court requested that the state submit an affidavit explaining how President Bashir was allowed to leave the country. The state submitted its explanatory affidavit and filed for leave to appeal against the High Court judgment. On 16 September, the North Gauteng High Court denied the state leave to appeal, indicating that the issue was moot, and that there were no prospects of success on appeal. The state petitioned the Supreme Court of Appeal in October. Subsequently, South Africa stated it was considering withdrawing from the ICC.

CORPORATE ACCOUNTABILITY

In October, attorneys on behalf of 56 representative applicants petitioned the South Gauteng High Court, in Nkala and others v. Harmony Gold and others, to certify their case as a class action. The applicants were seeking compensation from 32 gold mining companies on behalf of thousands of mineworkers, former mineworkers and the dependants of deceased mineworkers, for what they allege was a failure to adequately prevent specific illnesses, namely silicosis and tuberculosis, caused by exposure to silica dust underground. Judgment was reserved in the matter.

The Marikana Commission of Inquiry made several findings against Lonmin Plc in its report. The Commission concluded that Lonmin did not use its best endeavours to resolve the labour disputes that led to the killings in August 2012 and that it failed to employ sufficient safeguards to ensure employee safety. The Commission also found Lonmin deficient in its undertakings with regard to its social and labour plans, particularly in relation to its housing obligations. The Commission dismissed Lonmin's argument that it could not afford to implement its housing obligations and found that its failure to comply created an unsafe environment.

REFUGEES' AND MIGRANTS' RIGHTS

During the year there were numerous incidents involving violence against refugees, asylum-seekers and migrants.

In January, local residents looted 440 small businesses run by refugees and migrants in 15 different areas in Soweto, Gauteng Province. Four people died, including locals caught up in the violence. Nearly 1,400 refugees and migrants were displaced.

In April, a new wave of attacks, primarily in the greater Durban area, led to at least four deaths, many others seriously injured, and looting. At least 5,000 refugees and migrants fled their homes and small businesses to three temporary official camps, or to informal shelters.

The scale of the violence in the Durban area had little precedent and appeared to have been triggered by the widely reported statement by traditional leader King Goodwill Zwelithini that government must ensure all "foreigners" leave South Africa. A preliminary finding of an inquiry by the South African Human Rights Commission into these alleged comments noted the harmful nature of his remarks but absolved the King of inciting violence. The government condemned the violence and established an inter-ministerial committee to co-ordinate responses nationally. In KwaZulu-Natal Province, the provincial government appointed the former UN High Commissioner for Human Rights, Navi Pillay, to lead an inquiry into the violence. It had not been completed by the end of the year.

In October, in Grahamstown, Eastern Cape Province, a verified 138 out of a possible 300 refugee- and migrant-run shops were attacked. The police later acknowledged their failure to act on earlier warnings from civil society organizations and conducted nearly 90 arrests of suspected perpetrators of the violence, who appeared in court in late October.

Hundreds of refugees and asylum-seekers were detained unlawfully and risked deportation during an apparent national-level anti-crime initiative, Operation Fiela, launched on 27 April. The police, backed by the military, conducted raids and arrests in inner city areas, including Johannesburg. After raids and large-scale arrests on 8 May at the Central Methodist Church and a nearby residential building, police and immigration officials blocked legal access over four days to as many as 400 refugees and asylum-seekers held at Johannesburg Central Police Station, despite emergency court orders for access. On 12 May, the High Court ruled that officials must provide the court with a full list of all detainees and prohibited the authorities from deporting any for two weeks, pending proper legal consultations, which were allowed to proceed.

In March, the Supreme Court of Appeal ordered the Department of Home Affairs (DHA) to re-open the Port Elizabeth Refugee Reception Office. The Constitutional Court dismissed the DHA appeal against the March ruling. However, non-discriminatory access to asylum determination procedures came under a new threat from sweeping government-proposed amendments to the Refugee Act, including restrictions on access to livelihood for asylum-seekers. The draft legislation was still under consideration at the end of the year.

WOMEN'S RIGHTS

HIV remained the main cause of maternal deaths. Nearly one third of pregnant women were living with HIV but improved access to free anti-retroviral treatment for pregnant women since 2011 had contributed to the significant decline, by almost a quarter, in the institutional maternal mortality ratio (related only to deaths taking place in health facilities). Despite this progress, shortages of doctors and nurses, the lack of appropriately resourced health facilities and shortages of emergency transport continued to hamper efforts to reduce the high rate of maternal deaths. Poor management of the Department of Health at the provincial level was emphasized by both the South African Human Rights Commission and by a civil society-led People's Commission of Inquiry into the Free State Healthcare System.

The expansion of free anti-retroviral drugs through the public health system continued but persistent stock shortages of essential medicines across the country risked undermining progress. The country continued to battle an increased incidence of tuberculosis (TB) and multi-drug-resistant TB cases, a serious health risk for people living with HIV and AIDS.

Medical research reports continued to indicate that young women, aged between 15 and 24, bear the burden of new HIV infections. Women in this age group were up to eight times more at risk of HIV infection due to both biological and social factors. Data collated from health districts reflected high pregnancy rates among girls under 18, accounting for "one in 14 deliveries in the country" in 2014-2015. The report noted with concern that birth rates in this age group were highest in the poorest districts and that the gap between the poorest and wealthiest socioeconomic quintiles was increasing.

Significant progress for adolescent sexual and reproductive rights was ensured with the passing of the Sexual Offences Amendment Act (Act no. 5) of 2015, which gave effect to the Constitutional Court's judgment in the case of Teddy Bear Clinic for Abused Children v. the Minister of Justice and Constitutional Development and Others (2013) to protect the rights to dignity and privacy and the best interest of the child principle. The revised Act decriminalized consensual sexual activity between adolescents aged 12-16.

RIGHTS OF LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE

Progress was made in addressing hate crimes based on people's real or perceived sexual orientation or gender identity with the extension of government-led processes from national to provincial level. Provincial Task Teams were established in at least five provinces to ensure a more effective flow of information to the National Task Team, which comprised civil society and government officials.

The Rapid Response Team continued to make progress with the resolution of previously unresolved cases of targeted violence against LGBTI people. In May, the Potchefstroom High Court convicted a man of the August 2014 rape and murder of a lesbian woman, Disebo Gift Makau, and sentenced him to two life terms and 15 years for robbery. The judge acknowledged that the victim was targeted because of her sexual orientation. In July, the Pretoria North High Court convicted a man for the September 2014 rape and murder of a lesbian woman, Thembelihle Sokhela, sentencing him to 22 years in prison. The judge in the case did not take the victim's sexual orientation into account in his ruling.

Civil society monitors continued to express concern at limitations in the police investigation into the murder of David Olyn, a gay man, who was beaten and burned to death in March 2014 in Western Cape Province. A trial began in October.

HUMAN RIGHTS DEFENDERS

Harassment of human rights defenders and organizations and undermining of oversight bodies by ruling party and state officials remained a major concern.

ANC members in Free State Province targeted activists from the health rights group Treatment Action Campaign (TAC), because of their campaign to improve health services in that province. In February, the ANC Youth League used inflammatory language to mobilize a march against TAC offices in Bloemfontein and in July ANC members interrupted a public meeting of TAC.

The Regulation of Gatherings Act continued to be used by the authorities to limit the right to protest. In October, 94 community health workers and TAC activists who had been arrested during a peaceful vigil at the offices of the Free State Department of Health in July 2014 were found guilty of attending a gathering for which no notice was given. The ruling by the Bloemfontein Magistrate's Court implied that any gathering of more than 15 people without notification to the police was a "prohibited" gathering and therefore unlawful and subject to a prison sentence. The defendants were planning to appeal to the High Court.

Surveillance by crime intelligence or state security officers against human rights defenders, including journalists and community activists, continued to be reported.

There was some measure of support for the office of the Public Protector in the courts. In October, in response to her investigation into the chief operating officer of the state broadcaster, the Supreme Court of Appeal ruled that the Public Protector's rulings, findings and remedial actions could not be ignored without a legal review.

The trial of a police officer for the October 2013 shooting and killing of 17-year-old housing rights activist Nqobile Nzuza during a protest in Cato Crest, Durban, was postponed to February 2016. In March, two ruling party councillors were arrested with another co-accused for the September 2013 murder of housing rights activist Thulisile Ndlovu in KwaNdengezi, Durban. The case was continuing.