There were incidents of police use of excessive force against demonstrators and ill-treatment of arrested suspects. The conduct of presiding magistrates and police investigators undermined the right to fair trial in several cases involving social movement protesters. Department of Home Affairs practices denied the majority of asylum-seekers access to refugee status determination procedures. Conditions in prison fell below international standards, largely as a result of acute overcrowding. Although an increased number of people clinically needing antiretroviral therapy for HIV/AIDS received treatment, the majority still had no access to treatment at public facilities. There was an increase in reported rapes and concern at delays in legal reforms affecting access to justice for survivors.

Background

Deputy President Jacob Zuma resigned under pressure in June, following the conviction on corruption charges of Schabir Shaik, his financial adviser. In November Jacob Zuma was indicted on corruption charges. These developments brought into the open differences within the ruling African National Congress (ANC) and between the ANC and its Alliance partners. With local government elections pending, ANC-dominated councils were increasingly targets of public protests for corrupt practices and their failure to deliver improvements in living standards. There was concern that municipal authorities misused their powers under the 1993 Gatherings Act in an attempt to suppress demonstrations by groups critical of their performance.

Human rights violations by police

Police responded to the wave of public protests in most cases without resorting to the use of excessive force. However, there were incidents in which they misused rubber bullets – the weapon of "last resort" under South African Police Service (SAPS) regulations – in their response to demonstrations in the Cape Town and Durban areas, in Delmas, Queenstown and Johannesburg. There was also misuse of pepper spray, in particular by members of the Municipal Police Services in Cape Town where they used it to break up peaceful protests against local government authorities, and against criminal suspects under arrest.

  • On 12 July unarmed members of the Treatment Action Campaign (TAC), who were involved in a protest over the slow roll-out of antiretroviral treatment, were baton-charged, tear-gassed and shot at with rubber bullets by police. The majority of the protesters were HIV-positive women. The police did not warn protesters before they forcibly dispersed them from the Frontier Hospital in the Eastern Cape. Fifty-four people were seriously injured. The National Commissioner of Police ordered a departmental investigation and the retraining of the police unit involved. The TAC lodged a complaint with the Independent Complaints Directorate (ICD) which was still investigating the incident at the end of the year.
  • On 26 May, three Free State police officers were charged in the Harrismith regional court with murder and 16 counts of assault with intent to cause grievous bodily harm in connection with the fatal shooting of 17-year-old Teboho Mkhonza and the wounding of scores of other demonstrators on 30 August 2004.

Unfair trials

  • Fifty-one supporters of the Landless People's Movement (LPM) remained on trial in the Lenasia Magistrate's Court on a charge of breaching the Electoral Act by taking part in a demonstration on election day in April 2004. In June the magistrate rejected a defence application for her recusal (withdrawal from the case) on the grounds of bias after she made comments in open court that she had to report to the Minister of Justice about the trial. AI representatives attending trial proceedings in August observed that the magistrate behaved in a hostile manner towards the accused. On 29 November the magistrate rejected a defence application for the dismissal of the charges. The magistrate did not give reasons for the ruling. The proceedings were postponed until March 2006.

In November in the Protea Magistrate's Court, the presiding magistrate dismissed charges against a police officer in connection with the alleged torture of two LPM activists in April 2004. The magistrate, in acquitting the accused, reportedly attacked the complainants' organization as "disrespectful" of the government and also accused the complainants of being motivated by a desire to "undermine state authority"

  • In February, 13 officials and supporters of the Greater Harrismith Concerned Residents' Association from Intabazwe were charged with public violence and sedition in connection with a demonstration in August 2004. Five defendants were subjected to bail conditions which restricted their public political activities. On 10 February police allegedly arrested and assaulted Malefu Molaba, a local resident, while questioning her about the whereabouts of one of the accused, Neo Motaung. She lodged a complaint at Harrismith police station. In June, another accused, Sam Radebe, was allegedly assaulted and threatened by the police Investigating Officer. He laid a charge against the police officer at the Harrismith police station. In August the state withdrew the sedition charge and the court postponed the trial on the remaining charge until January 2006.

Prisoners' rights

On 15 December the Jali Commission of Inquiry handed its report to the President after a four-year inquiry into corruption and violence in prisons; the report had not been made public by the end of the year.

The UN Working Group on Arbitrary Detention visited the country in September and expressed alarm at the "rate of overcrowding in detention facilities". The overcrowding, in some cases by over 300 per cent of capacity, and the resulting poor prison conditions led the Judicial Inspectorate of Prisons to recommend that minimum sentence legislation be allowed to lapse. The UN delegates noted, in respect of prisoners awaiting trial or sentence, a "lack of adequate facilities so blatant that they fall short of international guarantees". The Civil Society Prison Reform Initiative urged Parliament in November to support the development of rehabilitation programmes and non-custodial alternatives to imprisonment.

In November a non-governmental organization, the AIDS Law Project, began legal proceedings against the Head of Westville Correctional Centre, Durban, on behalf of 20 prisoners who were urgently in need of antiretroviral treatment but were effectively denied access to it because of the alleged failure by the Department of Health to equip prison hospitals for this task. The problem had not been resolved by the end of the year.

On 25 May the Constitutional Court confirmed the validity of the 1997 Criminal Law Amendment Act provisions which enabled the replacement of all death sentences. Forty of the original 465 prisoners who were under sentence of death at the time of the abolition of the death penalty in 1995 were still awaiting replacement sentences at the time of a further Constitutional Court hearing in October.

Violations of refugee rights

The UN High Commissioner for Refugees, the courts, the South African Human Rights Commission and non-governmental organizations criticized the Department of Home Affairs (DHA) for failing to address organizational issues and arbitrary practices which prevented the majority of asylum-seekers from obtaining access to refugee status determination procedures and documentation in a timely manner. The closure in April of the Johannesburg area Refugee Reception Office (RRO) exacerbated the crisis. The effective denial of access to documentation left asylum-seekers at risk of arbitrary arrest, detention in police stations and in the Lindela Holding Facility, and deportation. It also meant that they were denied the right to work legally and to obtain health care or access to education. In August, the Minister of Home Affairs confirmed the government's determination to tackle these problems.

In October the report of the Ministerial Committee of Inquiry into deaths at the Lindela Holding Facility recommended urgent steps to address failures in the health care system and overcrowding at the facility. Lindela, which was run by a private company on behalf of the DHA, handled over 4,000 people per month awaiting deportation. Its clinic was found to have insufficient skilled staff and medicines and no emergency care procedures. On 28 October the Minister of Home Affairs stated that a new health care facility would be established.

  • On 1 March asylum-seekers, frustrated with repeatedly queuing outside the Cape Town RRO, pushed their way into the office and refused to leave the premises. They were kicked and hit with batons by officials, according to witnesses and the testimony of the asylum-seekers. The Minister of Home Affairs concluded, on the basis of an inquiry into the incident, that "no excessive force was used" and that one of the officials had been threatened with a knife by an asylum-seeker. The Minister instructed that changes should be made in the system for managing applications.
  • On 10 May, the Johannesburg High Court ordered the DHA to facilitate access to asylum determination procedures for 14 Ethiopians wrongly arrested and detained at Lindela. In October lawyers secured the release from Lindela of a recognized refugee who was due to be deported to Rwanda.
  • In a case brought by the Somali Refugee Forum, the Pretoria High Court on 11 November ordered the Minister and the DHA urgently to implement specific measures, including the reopening of the Johannesburg RRO, to ensure asylum-seekers had access without delay to asylum procedures. The government was ordered to file a report before 28 February 2006 on the extent of its compliance with the court order.

Access to health care for those living with HIV/AIDS

In July the Department of Health's HIV and Syphilis Antenatal Sero-prevalence Survey stated that between 5.7 and 6.2 million South Africans had been infected with HIV by 2004. It noted an increase in prevalence among women attending antenatal clinics, the highest rates being at 38.5 per cent of women aged between 25 and 29. A report of the South African Human Sciences Research Council in November concluded from its household survey that women were disproportionately infected, particularly women aged between 15 and 24, who had an HIV incidence rate eight times higher than men of the same age.

By the end of the year there were 229 "accredited" public health facilities providing treatment. However, the World Health Organization expressed concern at the slow progress in the roll-out of the antiretroviral treatment programme and at official statements that alternative therapies alone could prolong the lives of those living with HIV/AIDS. In September the Department of Health reported that 86,000 people had access to antiretroviral treatment in public sector facilities, although this was still less than 20 per cent of those estimated to need this treatment. About 10 per cent of children needing treatment were receiving it. Obstacles to access to treatment included severe shortages of skilled medical staff. The Joint Civil Society Monitoring Forum reported in November that additional obstacles included "under-spending" of HIV/AIDS budgets by provincial departments of health, a scarcity of appropriate drugs and treatment programmes for HIV-positive children, and a lack of national political leadership.

Violence against women

Police statistics for the year April 2004 to March 2005 recorded 55,114 reported rapes, an increase of 4.5 per cent over the previous year. Nationally, 40.8 per cent of the reported rapes were committed against minors and children.

In the period 2004/2005 the National Prosecuting Authority continued to develop dedicated sexual offences courts. The conviction rate in rape cases heard in these courts was at least 62 per cent, about 20 per cent higher than in the ordinary courts, which heard the bulk of cases.

Organizations involved in assisting survivors of sexual violence expressed concern at the continuing delays in the finalization of the Sexual Offences Bill, introduced in parliament in 2003 but referred back to the Department of Justice in early 2004.

  • On 6 December, former Deputy President Jacob Zuma was charged in the Johannesburg Magistrate's Court with the rape of a 31-year-old woman. He was released on bail and the trial postponed until February 2006.
  • On 8 December, Ncedile Ntumbukana was convicted of the rape and murder of Lorna Mlofana, a member of the TAC executive committee in Khayelitsha, Cape Town, in December 2003. She was beaten to death after telling him that she was HIV positive.
  • At the end of the year a Free State police officer was still on trial for the repeated rape of a woman detainee in custody at Smithfield police station; the woman became pregnant as a result.

Two rulings by the Constitutional Court strengthened the protection of women's rights.

  • On 13 June the Court ruled that a woman, referred to as N.K., who had been raped by three police officers while on duty, could sue the Minister of Safety and Security for damages. The Court held that in "committing the crime, the policemen not only did not protect the applicant, they infringed her rights to dignity and security of the person. In so doing, their employer's [the Minister's] obligation (and theirs) to prevent crime was not met".
  • On 7 November the Court upheld the constitutionality of Section 8 in the Domestic Violence Act which allows a court issuing a protection order to authorize a warrant of arrest in the absence and without the knowledge of the respondent.

Impunity

In September the Constitutional Court confirmed the State's right to re-indict Dr Wouter Basson, the former head of the military's covert chemical and biological warfare programme in the 1980s. The charges related to conspiracies to murder "enemies" of the then government outside the borders of the country. The charges had been quashed in 1999 by the trial judge.

In November the Butterworth Circuit Court sentenced two former members of the Security Police, Pumelele Gumengu and Aron Tyani, to 20 years' imprisonment each for the murder of an ANC supporter, Sthembele Zokwe, in January 1988. They were also convicted of the attempted murder of Sthembele Zokwe in 1987. On 27 March 2000 the Amnesty Committee of the Truth and Reconciliation Commission had rejected their applications for amnesty on the grounds that they had failed to make full disclosure, as required under the legislation, in relation to both incidents.

Discrimination and sexual identity

On 1 December the Constitutional Court ruled that the definition of marriage under the common law was inconsistent with the Constitution and invalid to the extent that it does not permit same-sex couples to enjoy the same rights accorded to heterosexual couples. Section 30 (1) of the 1961 Marriage Act was invalid also to the extent that it omits the gender-neutral term "or spouse". The effect of the ruling was suspended for 12 months to allow Parliament to correct the defects.

AI visits

AI representatives visited the country in April, July and August.

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