Prevention and Combating of Torture of Persons Bill [B21-2012]: briefing by Department of Justice and Constitutional Development

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Justice and Correctional Services

12 June 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development briefed the Committee on Justice and Constitutional Development on the Prevention and Combating of Torture Bill [B21-2012]. The Department explained that South Africa had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 10 December 1998. The Bill was as a result of the ratification. The Department outlined a number of Articles stemming from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 defined torture as “any act by which severe pain or suffering, whether physical or mental, was intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or  is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent, or acquiescence of a public official, or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. Article 2 “requires each State Party to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. It provides further that no exceptional circumstances whatsoever or an order from a superior officer or public authority may be invoked as a justification for torture”. Article 3 prohibited the extradition of a person to another State where there were substantial grounds (for instance the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights) for believing that the person would be in danger being subjected to torture. Article 4 obliged each State Party to ensure that all acts of torture, including an attempt to commit torture and an act by any person which constituted complicity or participation in torture or offences under its criminal law and to make these offences punishable by appropriate penalties, taking into account their grave nature. Article 5 dealt with extraterritorial jurisdiction.

The Prevention and Combating of Torture Bill comprised a Preamble and ten clauses. The purpose of the Bill was to incorporate the Convention into South Africa’s domestic law and to ensure that South Africa conformed to the obligations as set out in the Convention and to enhance the provisions of Chapter 2 of the Constitution. Clause 1 was the definitions clause. Clause 2 outlined the objects and the interpretation of the Bill. Clause 3 dealt with acts that constituted torture. The definition of torture in the Bill mirrored that of the Convention. The offence of torture was dealt with in clause 4.  Article 14 required that each State Party had to ensure that its legal system catered for redress and fair adequate compensation. Damages and compensation for damages were largely regulated by the common law in South Africa. Section 300 of the Criminal Procedure Act was the only relevant statutory provision for compensation. Clause 8 placed a duty on the State to promote awareness of the prohibition against torture. Clause 9 provided for the amendment of laws provided in the Schedule. Clause 10 contained the short title.

The Committee requested a list of states that had signed and ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee asked why Article 3 of the Convention was not in the Bill. The Committee also inquired as to why there was only mention of public officials and not private citizens and whether South Africa has ratified the Optional Protocol Convention Against Torture.

Meeting report

Presentation: Portfolio Committee Briefing: Prevention and Combating of Torture of Persons Bill [B21-2012]
Advocate Alta Van der Walt, State Law Adviser from the DoJ&CD, said that South Africa had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 10 December 1998 and a Bill was drafted in 2003. The Bill was submitted for comment and submissions had been received. The declaration of the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly on 9 December 1975. In particular Article 55 promoted universal respect for, and observance of, human rights and fundamental freedoms. Both Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, provided that no one should be subjected to torture or cruel, inhuman or degrading treatment or punishment. Article 1 defined torture as “any act by which severe pain or suffering, whether physical or mental, was intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person had committed or was suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent, or acquiescence of a public official, or other person acting in an official capacity. It did not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

Article 2 “required each State Party to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. It provided further that no exceptional circumstances whatsoever or an order from a superior officer or public authority may be invoked as a justification for torture”. Article 3 prohibited the extradition of a person to another State where there were substantial grounds (for instance the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights) for believing that the person would be in danger being subjected to torture. Article 4 obliged each State Party to ensure that all acts of torture, including an attempt to commit torture and an act by any person which constituted complicity or participation in torture or offences under its criminal law and to make these offences punishable by appropriate penalties, taking into account their grave nature. Article 5 dealt with extraterritorial jurisdiction. Article 6 dealt with the taking into custody of a person. In terms of Article 7 the State Party under whose jurisdiction a person was alleged to have committed an offence referred to in Article 4, was found, should, if it did not extradite such person, submit the case to its competent authorities for the purpose of prosecution under the law of that State. Article 8 provided for the offences referred to in Article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between State Parties. State Parties undertook to include such offences as extraditable offences in every extradition treaty concluded between them. Article 14 dealt with compensation.

Provisions of the Bill
Adv Van der Walt said that the Bill comprised a Preamble and 10 clauses. The purpose of the Bill was to incorporate the Convention into South Africa’s (SA) domestic law and to ensure that SA conformed to the obligations as set out in the Convention and to enhance the provisions of Chapter 2 of the Constitution. Clause 1 was the definitions clause. Clause 2 outlined the objects and the interpretation of the Bill. Clause 3 dealt with acts that constituted torture. The definition of torture in the Bill mirrored that of the Convention. The offence of torture was dealt with in clause 4. The prohibition of torture was absolute and non-derogable under the United Nations Convention Against Torture (UNCAT). Article 4 of UNCAT held that “Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. Clause 5 provided courts with factors to be considered in sentencing a person convicted of an offence under the Act. Clause 6 dealt with extra-territorial jurisdiction. In terms of clause 7 nothing contained in the Bill affected any liability which a person may incur under the common law or any other law.  Article 14 required that each State Party had to ensure that its legal system catered for redress and fair adequate compensation. A study has shown that countries such as the United Kingdom, Australia and Canada revealed that there was no specific provision for the redress and rehabilitation of victims. The only specific mention of compensation was in section 5 of the New Zealand Crimes of Torture Act, 1989.

Damages and compensation for damages were largely regulated by the common law in SA. Section 300 of the Criminal Procedure Act was the only relevant statutory provision for compensation. Clause 8 placed a duty on the State to promote awareness of the prohibition against torture. Clause 9 provided for the amendment of laws provided in the Schedule. Clause 10 contained the short title.

Discussion
Ms D Smuts (DA) said that the Committee should proceed with advertising for public submissions. Clause 6 would definitely strengthen the hand of the National Prosecuting Authority (NPA) probably to the effect that Zimbabweans who had committed torture could be dealt with here.

Mr J Jeffery (ANC) said that he supported the call for public submissions. Could the Committee be given a list of parties that had signed and ratified the Convention? Why was Article 3 of the Convention not in the Bill?

Ms D Schäfer (DA) referred to clause 3(b) and asked what kind of lawful sanctions were being envisaged there.

Mr Jeffery replied that according to his understanding it would be presumed that if the death penalty was on a state’s statute books that would not be a problem or any other form of punishment.

Ms Smuts asked what the outstanding Geneva Protocol that was not ratified was.

Ms C Philane-Majeke (ANC) said that she would have preferred to see some reference to racism related torture in the Bill. The Bill should also have provisions that related to accountability.

Ms Christine Silkstone, Content Adviser of the Committee, asked if Optional Protocol Convention Against Torture (OPCAT) had been ratified by SA.

The Chairperson referred to the definition and asked why there was only mention of public officials and not private citizens. What if a person committed torture that was not ‘ordinarily resident’ in the country, was there provision for this in the Bill?

Mr Johan De Lange, Principal State Law Adviser from the DoJ&CD, said that more information that related to some of the questions would be provided in written form at a later stage. Extradition was sufficiently covered by the laws of the country as they were currently. Further comparative research would be made available.

Ms Van der Walt said that the Handbook on States’ Obligations under the UN Convention against Torture, provided on page 29 that lawful sanctions by a state should be on par with international best practice. This would exclude the death penalty which would not be seen as lawful. The United States signed the Convention in 1988 and ratified it in 1994. On the question of ‘ordinarily resident’, a written response would be sent to the Committee at a later stage. OPCAT had not been ratified yet, this was according to information received from the Department of International Relations (DIRCO).

Adv De Lange said that there was a lot of debate during initial comments made on the Bill as to who should be included in the definition of torture. The clearest route was that if the objective was to ensure that SA complied with the Convention then the definition in the Convention should be followed. If a private individual committed torture then for the purposes of the Bill it would only be applicable if they did it on behalf of a public official.  The intention was to avoid ordinarily domestic and common law issues to be dragged into this Bill.

Ms Van der Walt added that in the Handbook on States’ Obligations under the UN Convention against Torture there was a paragraph dedicated to the concept of an official and the definition of torture was closely tied with Article 1 of the Convention. Private acts of cruelty were excluded.

Ms Smuts said that it would be a good idea to obtain the views of Francois Beukman as well as the police Commissioner.

Ms Van der Walt said that the Department had requested written comments from the Minister of Police and Correctional Services and it was the latter that had made inputs.

Adv S Holomisa (ANC) asked why the Minister of Defence was not consulted.

Adv De Lange said that such legislation went through rigorous treatment in the Justice Crime Prevention and Security (JCPS) cluster. This included the entire Director’s General forum and the head of the Defence Force would have definitely been aware of the Bill’s existence and the process. Additionally the next step was that the Bill would have gone to the Cabinet Committee within the cluster and finally Cabinet itself.

Adv Holomisa asked why there were specifically selected bodies when in any event they were all consulted.

Adv De Lange said that this was a formal requirement.

Ad Holomisa said that this could not be because in a number of occasions there have been instances where there were objections based on a lack of information or consultation.

The Chairperson said that if this happened then they would be asked as to why they did not participate in the process outlined by Adv De Lange. Adverts calling for submissions would be put out.

Prevention and Combating of Persons in Trafficking Bill [B7-2010]
Mr Jeffery addressed the Committee and said that there was an issue as to whether the Committee should have adopted the A version of the Trafficking Bill. The Speaker was of the view that it would be safer to suspend the rule under which the Committee adopted the Bill. The support of all parties would be needed on this.

The Chairperson thanked all present and adjourned the meeting.

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