Prevention & Combating of Torture Bill: Summary of submissions & Departmental responses; Determination of Deputy Public Protector's Remuneration Package: adoption

Meeting report

Determination of the Deputy Public Protector’s Remuneration Package
The Chairperson said that the Committee would deal with the matter of the Deputy Public Protector’s (DPP) remuneration package first. The Committee was sympathetic on the idea of a gratuity and not a salary increase.

Mr J Jeffery (ANC) said that the Committee had received increased capacity from the Committee Section yet they were not prepared for the meeting. The Committee should have had the draft resolution yesterday. This was not acceptable. There was a request for a report on the salary increases of the DPP in the period of her appointment; this had not been made available. The Committee was sympathetic on the idea of a gratuity and not a salary increase when the DPP left office, her term expired in November however it was renewable. The Committee had written to the Minister of Justice and in that letter it was said that Chapter 9 institutions would fall under the Commission for the Remuneration of Public Representatives (CRPR). In the letter it was agreed that there had to be an overall review but there was a request that the Committee should not tamper with anything at this point because the gratuity was part of the benefits. The ANC did not agree to the request for an increase including a gratuity. The DPP knew the terms and conditions when she took the post. Although Parliament did not review her salary the then Public Protector (PP) did and she received a fairly substantial increase. The DPP was employed at the salary rate of R619 000 and she was now earning R1.2 million, so this almost doubled in five years. This took care of the issue that there would have been an expectation of a review. The DPP has also been receiving annually inflation linked increases.   

Ms D Schäfer (DA) said that the increase from the previous PP would counter any argument that there was no salary review. It should be stated in the Committee’s report that the Chapter 9’s had still not been considered by an independent remuneration board, this should happen as soon as possible.

Mr S Swart (ACDP) said that his party would also support the recommendation.

The Chairperson asked if the decision for remuneration of Chapter 9 officials to be considered by an independent panel require legislation.

Mr Jeffery said yes, there was a bill that was being proposed by the Department of Justice and Constitutional Development (DoJ&CD).       

The Chairperson said that the Committee would move on from this subject for now until the Committee Secretary arrived with the draft reports. The Committee would continue with the responses from the public hearings on the Torture Bill.

Prevention and Combating of Torture Bill [B21-2012]: Summary of submissions and Departmental responses
Long Title
Ms Enke Van der Walt, State Law Adviser from the DoJ&CD said that the various commentators had said that the provisions in the Long Title had only focused on certain obligations that South Africa had in terms of the United Nations Convention Against Torture (UNCAT), it was recommended that the scope of the Bill should be expanded. The Department had used the entire title of the Convention in the Long Title, this was why the words ‘cruel, inhumane and degrading treatment’ (CIDT) were not used.  There was no discrepancy between the Long Title and CIDT.

Mr Johan De Lange, Principle State Law Adviser from the DoJ&CD said that the outstanding issue that the Bill had to focus on was torture. The other forms of punishment were dealt with under domestic law.

Mr Jeffery said that the Committee should follow the Convention as closely as possible. The submission was correct; this had to be in the long title.

Preamble
Ms Van der Walt suggested that the Preamble should be aligned with the Bill in as far as the CIDT term was concerned.

Definitions
Ms Van der Walt said commentators had suggested that a definition of discrimination should be included in the Bill. The Department was of the view that if a word was not defined in legislation then it took the ordinary dictionary meaning. It was not necessary to include a definition for discrimination, if there was a dispute then the definition from the Equality Act would prevail.

Mr De Lange said that the Department had stuck to the Convention and there was no need to complicate things.

Ms M Smuts (DA) agreed.

Mr Jeffery said that the response from the Department was not helpful because the word was defined in legislation so it all fell away. Could the Committee at least see the definition in the Equality Act?

Mr De Lange said the Committee could look at the definition which was in the draft document but was taken out as it was considered to not be necessary.

Ms Schäfer said that if the definition in the Equality Act was to not apply in this legislation then it had to be specified.

Mr Jeffery said that the Bill and the Convention spoke of discrimination of any kind, so this was completely open ended. An enthusiastic judicial officer could go wild on what torture was supposed to be; therefore discrimination should not be defined.

Ms Smuts agreed. 

Ms Van der Walt said that Amnesty International (AI) had suggested that the term “complainant” should be changed to “victim”.

Mr Jeffery asked if complainant was only used in clause 5.

Ms Van der Walt said yes.

Mr Jeffery said that the response from the Department was correct however clause 5 dealt with sentencing so the court would have already established that torture occurred. This was neither here nor there. Using “complainant” did not mean that somebody else could not lodge a complaint of torture on behalf of another. Perhaps victim was okay because it was used once a determination had been made.

Ms Van der Walt said that once a person was found guilty there would be a victim. In the Children’s Act Section 53 was inserted to provide for persons that may approach the court. The Committee may use complainant and then insert the provisions of Section 53 of the Children’s Court in addition to defining victim.

Mr Jeffery said that clause 5 dealt with victims so complainant should change to victims. Complainant was not used elsewhere so there was no need to say that anybody could lodge a complaint.

Ms Smuts agreed and said that the Committee wanted to avoid the entire Truth and Reconciliation Commission (TRC) definition for victim. 

Mr Jeffery said that there was a problem as clause 8(2)(c) also contained the word victim which was not defined. This meant that the limitation could not only be for people who had been found to be victims. Clause 8(2)(c) may have to refer to alleged victims because the people mentioned therein had not yet had their case heard in court.

The Chairperson said that the definition for victims could be left as it was because it covered both victims and alleged victims.

Ms Van der Walt said that an alleged victim was in fact a complainant.

The Chairperson said that it depends, if one considered clause 8(2)(c), it referred to alleged victims.

Ms C Philane-Makaje (ANC) suggested that complainant under clause 5 should change to victim and then under clause 8(2)(c) it should be complainant.

Mr Jeffery said that this would not work because under clause 5 the intention was to refer to people who had been tortured and a complainant may not be the victim.  There were two scenarios of victims in the Bill; there was the clause 5 victims; the clause 8(2)(c) victims who had not had a determination yet, how could the latter be catered for? Should victim de defined in the same manner as complainant? The other scenario was to limit victim to somebody who has been subjected to acts of torture and then under 8(2)(c) provision could be made for the assistance of those who alleged torture. These were the two options, the more preferable one was the first where the definition of victims was the same as complainant and including factual victims and alleged victims.

Ms L Adams (COPE) said that there was a difference between victim and complainant. Clause 8(2)(c) should refer to a complainant. There should be a definition for complainant and victim however the current definition of complainant covered both.

Mr Jeffery said that the problem was that all complainants were not necessarily victims.

Ms Van der Walt said that the next problematic definition was public official. It had been suggested that the definition in the Bill was in conflict with the definition contained in the Convention. It was suggested that paragraph (c) of the definition should be deleted. The South African Catholic Bishops Conference (SACBC) said that the definition was too wide and created uncertainty. It was further suggested that the definition of the Convention should be adopted verbatim in the Bill. 

Ms Smuts said that consent and acquiescence should be included in the definition and paragraph (c) should be deleted.

Ms Van der Walt said that the Department took the definition from the Convention and divided into two parts, one was for the perpetrators and the other was for acts that constituted torture.

Clause 2
Ms Van der Walt said that Lawyers for Human Rights (LHR) had said that the Bill did not provide for clear proactive mechanisms to prevent torture and other CIDT. It was suggested that a prevention and detection mechanism should be built into this clause. The Department was of the view that SA had not yet ratified OPCAT, the Department of Cooperative Governance and International Relations (DIRCO) was dealing with this and had prepared a document pertaining to the establishment of national preventative mechanisms in consultation with various role players. The purpose of this Bill was not to incorporate OPCAT. The Centre for Constitutional Rights (CCR) commented that the Bill was quiet on CIDT and recommended that this should be included in the Bill. CIDT was not included because it was dealt with in other pieces of legislation.

Ms Schäfer said that clause 2 was not about defining the combating of torture in the Bill it was merely stating what the objects of the Bill were.

Ms Smuts said that the Department’s comments were acceptable.

Clause 3
Ms Van der Walt said that AI was of the view that the definition of torture should be amended to include any such act carried out with the consent or acquiescence of a public official or any person acting in an official capacity. The Department was of the view that clause 3 was substantially in line with Article 1 of the Convention. It was suggested that the wording in clause 3(a) should not be broader than the Convention; the Department noted this and would consider it further. There was a further recommendation from commentators that torture committed by private persons should be criminalised. The Department did not agree with the recommendation, the purpose of the Bill was to criminalise torture by state officials only. The Centre for Applied Legal Studies (CALS) was of the view that the definition of torture in the Bill was not in line with Article 1 of UNCAT. CALS went further to state that the exclusion of the words ‘for such purposes as from’ was problematic. It was suggested that the words ‘in order to’ should be replaced with the words for ‘such purposes as to’. The Department did not agree with this because “in order to” also meant for the purpose of according to the Oxford Dictionary. LHR was of the view that the definition of torture outlined in the Bill was not in line with that of the Convention; they were of the view that the definition in the Bill should be applicable to all persons. The Department did not agree.

Ms Smuts said that the Department and the Committee were in agreement that the words ‘consent and acquiescence’ and ‘only’ in the second last line would be inserted. Should the Committee not just use Article 1 of the Convention?

Mr De Lange replied that the Article 1 and clause 3 were basically the same thing, the difference was the inclusion of a definition for public official. Clause 3 had split Article 1 into two parts in order to avoid a cumbersome provision. Another alternative could be to copy Article 1 into clause 3 and then add a sub-clause where it could be stated ‘for the purposes of this section a public official means or includes’.

Clause 4
 Ms Van der Walt said that commentators had recommended that clauses 4(1) and 4(2) should be amended to refer to any person. It was further stated that clause 4(4) did not fully reflect the extent of the absolute and non-derogable prohibition of torture as set out in the Convention. It was suggested that clause 4(4) had to be revised to make it clear that no exceptional circumstances whatsoever of any kind including but not limited to those listed as illustrations may be invoked as a justification of torture. The Department noted the concerns; the Convention was aimed at preventing torture by committed by authorities of a country and not private acts of cruelty.  International concern arose only if cruelty was sanctioned nationally. The Bill applied vertically and horizontally as suggested by the commentators.

Mr De Lange added that the Department conceded that commentators made a valid point here, the definition of torture would include a public official, it would follow then that when it came to the actual offence there was no need to say any public official, one could say any person.

Ms Van der Walt moved on to state that AI had indicated that complicity was not fully addressed in the Bill. The Department’s response was that in terms of the common law it was an offence to incite a person to commit an offence or to conspire to commit an offence. This was wide enough to include complicity. The Department was of the view that it was within the ambit of the convention. There was a request that the Bill should incorporate minimum sentences. 

Mr De Lange said that the request for minimum sentences was noted but the Department did not support this. The problem was that there were varying degrees of torture and it would be difficult to have minimum sentences across the board.

Ms Van der Walt stated that the LHR had recommended the re-drafting of this clause in order to clarify which offences and penalties were applicable to public officials and non-state actors alike. They also proposed that the Bill should remove public officials and replace it with persons. The SACBC was of the opinion that clause 4(3)(b) equated the guilt of the foot soldier with one who would have been giving orders, this did not allow for the disparity in power relationships within a hierarchy. The SACBC was also of the view that national security should not be used as a justification and should be included as such in the Bill. The Department was of the view that an order from a superior officer may not be invoked as a justification, the Bill was in line with the Convention.  The issue of national security would be considered further.

The Chairperson said that he felt strongly about the addition of national security as a ground for non-justification of the act of torture.

Mr De Lange said that this would require more deliberation.

Clause 5 
Ms Van der Walt said that AI had a problem with paragraph (a), they stated that racial discrimination should be amended to refer to discrimination of any kind against the victim, paragraph (b) should also be amended to refer to the victim’s state of physical health. Paragraph (c) should also be amended to refer to any mental disability of the victim. Paragraph (g) should be amended to refer to mental or psychological harm. The Department was of the opinion that the list was not a closed one and any factor may be taken into consideration.

Ms Schäfer said that she disagreed, if the Department did not specify certain factors then this would imply that those factors which were included were more important than others. The comments were plausible.

Ms Smuts said that the ones which were provided may just be illustrative and not more serious than other examples. Discrimination or any discrimination may be used.

The Chairperson agreed.

Ms Van der Walt continued and said that CALS and Civil Society Prison Reform Initiative
 (CSPRI) pointed out that clause 5 was ambiguous and vague; the clause had to be made clearer so that the intention of the legislature was better reflected. Provision should be made for minimum sentences. The Department did not agree with CALS, sentencing was the court’s function and minimum sentencing should not be introduced in the Bill.

Clause 6
Ms Van der Walt said that the commentators were all of the view that clause 6(1)(c) should not be limited to persons lawfully present in the territory of the Republic, it should be extended to include any person and lawfully should be deleted. The Department had noted this .CSPRI said that the clause did not take into account acts of torture committed on ships etc. The Department did not agree as clause 6(1)(c) expressly mentioned this.

Ms Schäfer asked why the word lawfully was put in there in the first place.

Mr Jeffery speculated that if the word lawful was there and such persons were in the country unlawfully then the state did not have to try them. If the word lawfully was removed and such persons were in the country then there would be an obligation to try them and that would enable them to stay together. The word would have to come out.

The Committee agreed.

Clause 7
Ms Van der Walt said that CALS was of the opinion that this clause was not in line with Article 14 and the Robin Island Guidelines on states to offer any reparation to victims. CALS recommended that the Bill should have different forms of redress. CSPRI suggested that victims of torture should have full redress irrespective of whether the perpetrator had been identified, tried and convicted. The South African Human Rights Commission (SAHRC) was also of the opinion that the Bill fell short on the requirements for redress. The Department was of the view that currently the state’s liability to compensate victims had been determined under civil litigation based on claims from the victims of crime in terms of the law of delict. The liability of the state was considered in terms of vicarious liability. Clause 7 would suffice until such time as other legislative provisions were made after due consideration of the position of compensation for victims of crime.     

The Chairperson asked what the recourse implications were.

Ms Van der Walt said that there was quite a comprehensive report that was done by the South African Law Reform Commission (SALRC) and this would be made available to the Committee.

Mr Swart said that for the Trafficking legislation Section 300 of the Criminal Procedure Act (CPA) was broadened and this may have to be done again for torture.

Mr Jeffery said that he was not sure if torture should be linked to the general fund for victims of crime. The first question would be whether the Bill complied with Article 14, it seemed we were. The Committee had to be careful on allowing more responsibilities to be placed on the state because this was the state’s money. The other issue was that it was still not clear as to what was torture particularly because the definition in the Bill was so wide. Mr Swart’s suggestion was not problematic however invariably the accused would be working for the state. 

Ms Schäfer agreed.

Mr De Lange said that an option for consideration would be drafted and the Department was in agreement with the Committee on clause 7’s compliance with Article 14.

Clause 8
Ms Van der Walt said that the commentators suggested that the provision should be amended to include others affected by torture such as a victim’s family members. CALS was of the opinion that training of all persons who may come into contact with detained person s should be included under clause 8. The SACBC was of the view that it was vital for state officials to be made aware of what acts constituted torture. CSPRI was of the view that the training programmes should be set up as soon as possible e.g. within 18 months of the enactment of the Bill. CSPRI further provided that Parliament should engage with the reparation programme. CSPRI also suggested that UNCAT should be made available in all official languages. It was further suggested that here should be provision of specialised training across all state departments working with victims of torture, survivors and their families. The Department was of the opinion that the Bill complied with the requirements of the Convention. Alternatively all the concerns and requests could be addressed in sub-ordinate legislation.

Mr Jeffery said that the Committee should once again be careful about adding further requirements. There was already monitoring structures in place such as the Independent Police Investigative Directorate (IPID) as well as the Inspecting Judge for prisons.  The Committee may have to look at monitoring when it legislated for OPCAT.

Clause 10
The Chairperson asked when the Bill would come into effect.

Ms Van der Walt said that if the Bill was going to have subordinate legislation then the Bill would come into operation on a date proclaimed by the President. If there was no subordinate legislation then the Bill would come into operation on the date of publication.

Other Comments
Ms Van der Walt said that some of the commentators said that the Bill did not include other inhumane, degrading or cruel punishment. All the commentators complained that the Bill did not provide for extradition. The Department had prepared a document on extradition and had distributed it to the Committee at the initial briefing. The Department was of the view that it would not be in the interest of justice if there were grounds for believing that a person would be in danger of torture if they were extradited. Officials from DIRCO had indicated that it did not support extradition in the Bill and if it was considered then it would have to be consulted as this fell squarely within its ambit. There was a suggestion that a provision had to be included in the Bill for the reporting so that SA complied with UNCAT. The Department was of the view that a task team was being set up to work on SA’s international obligations, the Bill did not have to have a specific clause on reporting as the Convention was part of SA law therefore the obligation already existed. CALS suggested that a provision in the Bill had to be included that provided for the inadmissibility of evidence obtained under torture, this would be in line with Article 15.

Mr Swart said that this was already covered in the Criminal Procedure Act, Constitution as well as case law.    

The Chairperson thanked the Department and informed Members that the issue of the adoption of the report on the DPP’s remuneration package would be addressed.

Ms Schäfer said that she was happy with the report except that it should be included in the report that the Committee was concerned that the legislation for having remuneration of Chapter 9 institutions determined by an independent body was still not before Parliament.

The Chairperson put the report as amended before the Committee.

The Committee unanimously adopted the report.

Meeting adjourned.