Prevention and Combating of Torture of Persons Bill: finalisation and adoption

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Justice and Correctional Services

05 November 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development finalised its deliberations on the Prevention and Combating of Torture in Persons Bill [B21-2012]. The Committee was informed that two additional clauses had been added. The option that followed the United Nations Convention Against Torture was adopted by the Committee under clause 3. The Committee questioned whether omission as an act of torture was permissible. Members asked what the difference between ‘public official’ and ‘another person acting in an official capacity’ was under the Bill. They further questioned the inclusion of Parliament under clause 4(3)(a). The Committee proposed the following for the heading of clause 8: ‘extradition, return or expulsion’. Under clause 9(2)(c) the changes made were that ‘advice’ has been changed to ‘alleged victims of torture’.  The Committee unanimously adopted the Bill with amendments.

Meeting report

Prevention and Combating of Torture of Persons Bill: finalisation and adoption
Adv Johan De Lange, Principal State Law Adviser, Department of Justice and Constitutional Development (DOJ&CD), said that he would take the Committee through changes contained in the working draft.

Clause 1
Adv De Lange said that there were two clauses added and this resulted in re-numbering.

Clause 3
Adv De Lange said that the Committee was still to decide on which option to go for.

Ms M Smuts (DA) said that the Committee should follow the alternate option which followed the Convention.

Mr S Swart (ACDP) asked if it was correct to say that one could intentionally inflict pain via an omission.

Adv De Lange said that this was a gap in the United Nations Convention Against Torture (UNCAT) because it did not specifically mention that an omission was also included. It was widely held that one could deliberately torture a person via an omission such as withholding medical assistance for example.

Mr J Jeffery (ANC) said that his initial feeling was to follow the wording of UNCAT as torture was an international concept.

Ms D Schäfer (DA) asked what the difference was between public official and another person acting in an official capacity.

Adv De Lange explained that a public official would have had a formal appointment. If somebody was delegated or asked to assist then they would be acting in an official capacity.

Mr Jeffery said that he did not think that this was a big issue.

Ms Smuts agreed.

Mr Jeffery said that as for Ms Schäfer’s query the wording in the Bill was derived from UNCAT

Adv De Lange said that in the definition of public official (b) would be dropped as it was not necessary.

The Chairperson supported this.

Clause 4
Mr Swart referred to clause 4(3)(a) and asked why Parliament was included and what about the judiciary.

Adv De Lange said that this was followed from the Convention itself.

Ms Schäfer said that the clause was repeating itself because if one was an elected representative then they were also a Member of Parliament.

Clause 5
Adv De Lange said that the wording had been re-shuffled so that the provision read properly.

Clause 8
Mr Jeffery said that the title was extradition however the provisions were broader than that. Should the heading not be along the lines of ‘extradition, return or expulsion’? The Extradition Act did not refer to expelled or returned people so it would also not cover this.

Mr Swart asked what of asylum seekers who alleged that they would be tortured if returned.

Adv De Lange said that this was the concern from the Department of International Relations and Cooperative Government (DIRCO).

Ms Schäfer said that if the Committee was bound by the Convention then it was bound and there was nothing that could be done.

Mr Jeffery said that treaty has to be put in South African (SA) law. There was also the Constitutional Court (CC) case that said one could not extradite if torture was going to occur. There were a number of elements in the Bill that had to be considered before a decision was made. The treaty bound the Committee; its wording should be followed. One would not think that putting this into law would cause a number of illegal immigrants to suddenly think that they had rights.

Clause 9
Adv De Lange said that under clause 9(2)(c) there had been changes where  ‘advice’ had been changed to ‘alleged victims of torture’. 

Ms Schäfer said that the Committee had wanted to tighten up this provision so that one would not have the case where anybody just alleged torture, the changes did not tighten the provision.

Adv De Lange said that once there were Regulations, there would be guidelines as to how alleged victims applied and went about proving that they have been indeed tortured.

Mr Jeffery said that the concern was dealt with in the Regulations.

The Chairperson said that this was the end of the deliberations and asked Members what the next step forward was.

Mr Jeffery said that the Committee could vote on the Bill now.

Ms Schäfer said that there should be a Committee report as the Bill was an important piece of legislation.

The Chairperson put the Bill to the Committee and it was adopted unanimously.

Meeting Adjourned.

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