Amnesty International Report 2004 - South Africa

Covering events from January - December 2003

Plans were announced to strengthen delivery of nondiscriminatory health care for people living with HIV/AIDS, but most of the estimated 5.3 million people with HIV remained without access to appropriate care including anti-retroviral drug therapy. Despite improvements in police and prosecution responses in some areas, the number of reported rapes of women and children remained at a high level. The government began making reparation payments to victims of human rights violations in the apartheid era. Investigations revealed ill-treatment of prisoners by police and prison officials, and the misuse of lethal force by the police.

Background

A Commission of Inquiry headed by former Judge Joos Hefer was appointed in September to examine allegations that the National Director of Public Prosecutions had spied for the apartheid government and was abusing the powers of the National Prosecuting Authority. The Commission heard no evidence to support the allegations and concluded its hearings in December. It was expected to present its findings to President Mbeki early in 2004.

Right to health

On 19 November the government announced an Operational Plan for Comprehensive Treatment and Care for HIV and AIDS, "founded upon the principle of universal access to care and treatment of all, irrespective of race, colour, gender and economic status". It also announced details of the plan's budget, which included provision for anti-retroviral drug treatment, and of measures to strengthen the health care infrastructure. Of the estimated 5.3 million people living with HIV/AIDS, only a tiny proportion of those requiring anti-retroviral drug therapy had access to it through private or company medical schemes or services run by non-governmental organizations (NGOs).

The Operational Plan allocated resources for treatment to reduce the risk of HIV transmission after sexual assault. Although the government had promised such treatment in April 2002, there was still limited access to anti-retroviral drug treatment, particularly for child victims, by late 2003.

In July the government removed a clause from the draft Criminal Law (Sexual Offences) Amendment Bill which would have compelled the state to provide non-discriminatory access to care and treatment to survivors of rape. The Department of Health national guidelines on care and treatment for rape survivors had not been completed by the end of the year. In December the Medical Research Council reported that three-quarters of doctors and nurses who treated rape survivors lacked proper training and that just under half of the health centres did not have a private examination room for these patients.

The provincial minister and senior officials in the Department of Health in Mpumalanga province were removed from their positions in August. They were under investigation for corruption, including misappropriation of the province's 19 million Rand HIV/AIDS budget.

The right of access for orphaned HIV-positive children to anti-retroviral drug treatment was improved by a Johannesburg High Court ruling in December. The AIDS Law Project and paediatric doctors had challenged the law preventing doctors from providing treatment to children without parents or guardians.

Violence against women

On 13 December, 21-year-old Lorna Mlofana, a community educator for the Treatment Action Campaign in Khayelitsha, Cape Town, was raped by a group of men who then beat her to death after she disclosed that she was HIV-positive. A woman friend, Nomava Mangisa, who intervened to help her, sustained head injuries. Two men were later arrested and appeared in the Khayelitsha magistrate's court on 22 December in connection with murder and rape charges.

The police Annual Report for the period ending March 2003 recorded a decrease of 5.7 per cent in reported rapes. There were 52,425 officially reported rapes, a third of the estimated actual number. More than 40 per cent of the victims were aged 18 or younger. The conviction rate for rape remained low, at an average of seven per cent.

The police and prosecution services continued to implement programs to improve their response to rape and other sexual offences. "Victim-friendly facilities" were established at 78 police stations in the year to March 2003, including at those stations where half of all rapes were reported, according to police statistics. NGOs and the organization Business Against Crime, however, continued to provide support facilities in most cases. The National Prosecuting Authority established 40 more specialized sexual offences courts and dedicated regional courts during the year, working with NGOs to minimize the trauma for rape survivors, especially children, involved in court hearings.

The Independent Complaints Directorate (ICD), the police oversight body, criticized police management for a lack of commitment to ensuring that the police fulfilled their obligations under the Domestic Violence Act.

Reparations and redress

On 29 January, the Truth and Reconciliation Commission (TRC) settled a legal dispute with the Inkatha Freedom Party (IFP). As a result, in March the TRC was able to hand over to the President Volume 6 of its 1998 Report. The TRC agreed to include in Volume 6 a "schedule of changes and corrections" to its findings against the IFP and to publish the IFP's objections to the TRC process and findings. However, the settlement left intact the TRC's core findings that the IFP, the former KwaZulu homeland government and the KwaZulu police were responsible for gross human rights violations.

Volume 6 also summarized the work of the Amnesty Committee. The Committee heard evidence, in amnesty applications from members of the state security forces, which substantiated allegations of state complicity in political violence in the late 1980s and early 1990s. The evidence confirmed that the police had routinely tortured government opponents.

The TRC urged the government to implement its 1998 recommendations for reparations and rehabilitation programs for victims of gross human rights violations. The government announced in April that it would pay final reparations to 22,000 such victims identified by the TRC. Victim support groups and NGOs criticized the offer as being far below the TRC's recommended amount. In October the President assented to the Promotion of National Unity and Reconciliation Amendment Act, which authorized use of the President's Fund not only for reparations to individual victims but also for "the rehabilitation of communities". In November the government began one-off payments to individual victims.

The new law also authorized the government to establish a mechanism with the power to review TRC decisions where required by court rulings. A 2001 court ruling had ordered the government to review the TRC's refusal of amnesty to former security police officer Gideon Nieuwoudt and two others convicted of four murders in Port Elizabeth in 1989. The delay in holding this review had affected the prosecution of certain other apartheid era perpetrators.

In May the Supreme Court of Appeals ruled that it could not hear the prosecution's case for reviewing certain decisions made by the judge at the trial of Dr Wouter Basson. Dr Basson, the former head of the military's covert biological and chemical warfare program in the apartheid era, had been acquitted in 2002 of 46 murder and other charges. The trial judge had ruled, among other things, that certain charges against Dr Basson relating to murders committed outside South Africa should be excluded. In November the Constitutional Court heard arguments on an appeal by the state against the Supreme Court of Appeal's ruling; a decision was pending at the end of the year. Potential prosecutions in other cases involving extraterritorial murders were delayed because of the trial court's ruling in this case.

Ill-treatment and excessive force

In November the National Assembly passed the Protection of Constitutional Democracy against Terrorism and Related Activities Bill. After criticism by NGOs, including AI, the final version of the law increased safeguards against arbitrary arrest and searches and infringements of freedoms of expression, association and assembly. The authorities would also be obliged to apply the protections under the ordinary law and the Constitution to suspects under investigation or facing extradition from South Africa at the request of a foreign state.

The Jali Commission continued its hearings into corruption and abuses in prisons. In November a warder at the C-MAX maximum security prison in Pretoria told the Commission that a medical officer and section head had failed to stop named warders stripping, punching and slapping newly arrived prisoners, and torturing them with electric shocks. He alleged that he had been threatened if he testified. The Commission requested his transfer to another prison.

In Vryheid prison more than 80 prisoners were assaulted by warders in January when they objected to a new form of body searches. Independent medical evidence corroborated prisoners' allegations that, after being stripped and forced to lie on the ground, they were beaten with batons and stamped on. Civil proceedings were launched against the Correctional Services authorities.

There were a number of reports of excessive force by the new municipal police forces. In Cape Town in December a City Police officer sprayed tear gas or pepper spray at minibus taxi drivers held in the back of a patrol van following arrest. One of the drivers became critically ill and required hospital treatment. He later laid a charge of assault against the City Police. The ICD also initiated an investigation. During disciplinary proceedings, 18 officers signed affidavits stating that they were not properly trained in the use of their weapons, including stun guns, metal batons, pepper spray and firearms.

Between April 2002 and March 2003 the ICD received 528 reports of deaths in custody and as a result of police action. The police used lethal force while conducting an arrest or stopping a suspect from fleeing in 189 cases, more than half of them in Gauteng and KwaZulu Natal provinces. The ICD reported that, despite the Constitutional Court ruling in 2002 against lethal force where there was no threat to life, it had been used without justification. At the end of the year the trial for murder was pending against a Vaalbank police officer in connection with the death of 16-year-old Edward Molokomme in September 2002. The boy and his 17-year-old friend, Duncan Phiri, had been shot at by a police officer when they fled into a forest to escape arrest for breaking bottles at the roadside. Duncan Phiri survived.

In the year to March 2003 the ICD also investigated 353 assaults with intent to commit grievous bodily harm, 23 cases of torture and 16 rapes by police officers.

Human rights defenders

Journalists with the independent African Eye News Service in Nelspruit were harassed by officials as a result of their investigations into alleged corruption within the provincial government. In late 2003 police officials in Pretoria instituted an investigation into the failure by local police to act on complaints lodged by the journalists in 2002 of threats and attacks by known criminals.

AI country visits

AI delegates visited South Africa in April and May.