INTRODUCTION

The right not to be tortured is entrenched as a fundamental right in Chapter 2 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) which is the highest law of the land. The fundamental right of an individual to be protected against torture is widely accepted as a customary rule of international law. With the signing of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) on 29 January 1993, South Africa explicitly acknowledged the prevention of and protection against torture as part of international law. By signing the Convention government also undertook to work towards ratification and thereby binding the State to adhere to the Convention. This requires government to work actively towards the prevention of torture and to protect people against any act of torture.

In terms of the Convention, each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

Most importantly, the above-mentioned scenario necessitated a re-evaluation of the treatment of persons in custody of the South African Police Service, and the approach of the South African Police Service towards interrogation methods, detention, etc. The office of the National Commissioner requested that a policy document be drawn up to ensure that torture and other cruel, inhuman or degrading treatment of persons in custody of the South African Police Service are prevented. It is important to note that it is very difficult to draw a distinction between torture and other forms of ill-treatment. Therefor, throughout this policy "torture" will be used as a collective term which includes acts of cruel, inhuman or degrading treatment.

It should be noted that this document does not deal with pain or suffering arising from, inherent in or incidental to, lawful sanctions. The "use of force" which is inherent in or incidental to lawful sanctions is not seen as torture, and will therefor not be dealt with.

The instructions, set out below, will eventually be incorporated into National Orders. Until this is done, it is the responsibility of every station commissioner and other commander to ensure that members under their command at all times adhere thereto.

It should be noted that the commentary after a paragraph does not form part of the instructions, but are intended to give guidance to members about its application and interpretation.

INSTRUCTIONS

1. DEFINITIONS

• In this document, unless the context otherwise indicates, -
  • appropriate adult means:
    • in the case of a juvenile:

      his or her parent or guardian or person in whose care the parent or guardian has placed such juvenile, a probation officer or other social worker in whose area of jurisdiction the juvenile is being detained, an official from correctional services in the area concerned or any other responsible member of the public who is 18 years or older. If none of the afore-mentioned are available, the station commissioner or any other member (excluding the charge office commander) to whom he or she has delegated his or her authority in writing; and
      
      

    • in the case of a person who is mentally handicapped:

      a relative, guardian or other person responsible for his or her care or custody, or someone who has experience in dealing with mentally handicapped persons or another responsible member of the public who is 18 years or older. If none of the afore-mentioned are available, the station commissioner or any other member (excluding the charge office commander) to whom he or she has delegated his or her authority in writing.

  • approved restraining measures means handcuffs and/or leg irons.

  • community service centre commander means the member in charge of the community service centre and/or the member in charge of the detention facilities at an office under the control of the Service and includes a member who is performing the functions of a community service centre commander;

  • intimate search means a search which consists of the physical examination of a person's intimate body openings or orifices but excludes the mere looking, with the naked eye, into a person's mouth, nose and ears;

  • member means any member of the Service as defined in section 1(x) of the South African Police Service Act, 1995 (Act No. 68 of 1995);

  • person in custody means a person deprived of his or her freedom of movement by a member or any other person by means of arrest, who is in the custody of the Service and who has not yet been lawfully released or handed over or handed back to the Department of Correctional Services or any other institution for detention;

  • questioning means the questioning by a member of a person, who is an accused or suspect, regarding his or her alleged involvement in the commission of an offence or alleged offence, but excludes the questioning of a person who is not suspected of having been so involved at the time of the questioning;

  • station commissioner means the station commissioner of the station area in which a person is or has been detained in custody or any other member to whom he or she has delegated his or her authority in writing;

  • the Act means the South African Police Service Act, 1995 (Act No. 68 of 1995) and regulations promulgated in terms thereof;

  • the Service means the South African Police Service; and

  • torture may include, but is not limited to, any cruel, inhuman or degrading treatment or punishment, as referred to in section 12(1)(e) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) or any act by which severe pain, suffering or humiliation, whether physical or mental, is intentionally inflicted on a person for purposes of obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating him or her or a third person, when such pain, suffering or humiliation is inflicted by or at the instigation of or with the consent or acquiescence of a member or any other person acting under the authority or protection of the Service.

• The interests of justice will be established, if there are reasonable grounds to believe that the exercise of any right:

  • will lead to interference with or harm to evidence connected with a serious offence or interference with or physical injury to other persons; or

  • will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested; or

  • will hamper the recovery of property obtained as a result of such an offence.

  Comment:

  (1) With reference to the definition of torture mentioned in paragraph 1(1)(k), the following can be seen as practical examples of torture: Solitary confinement as a form of punishment; isolation in a police cell without food, water or access to toilets; mock executions; attempts or mock attempts to suffocate a person; threats to throw a person out of a window; the use of insulting and abusive language; compelling persons to be present at the torture of relatives or friends; forcing a person to stand against a wall for a prolonged period of time; subjecting a person to noise; deprivation of sleep; and any unnecessary application of physical force in escorting or dealing with a person in custody.

  The above-mentioned examples should not be regarded as exhaustive. Any conduct complying with the definition, whether mentioned in the examples or not, shall be regarded as torture. It is to be expected that the definition will be interpreted widely.

  (2) It is important to note that there may be no coercion whatsoever to compel a person in custody to answer any questions. It is therefore recommended that reference should not, under any circumstances, be made to "interrogation", but rather to questioning.

2. PROHIBITION AGAINST TORTURE

No member may torture any person, permit anyone else to do so, or tolerate the torture of another by anyone. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. No exception, such as a state of war or a threat of war, state of emergency, internal political instability or any other public emergency will serve as justification for torture - there can simply be no justification, ever, for torture.

Comment:

As mentioned in the Introduction, every person has, in terms of the Constitution, a fundamental right not to be tortured. Internationally, no limitation of the prohibition against torture is recognised.

3. ACTING UPON AN ORDER, REPORTING AND COMPLAINTS REGARDING ACTS OF TORTURE

• An order by a superior or any other authority that a person be tortured, is unlawful and shall not be obeyed. The fact that such an order has been given shall immediately be reported to the station commissioner or, in the event that the station commissioner issues the order, to the area commissioner concerned.
• A member who has reason to believe that a person is tortured, or that an attempt is being made to do so, shall immediately take all reasonable steps to put an end thereto.
• A member who has reason to believe that a person has been tortured shall immediately report this to the station commissioner, or where the station commissioner is involved in the incident, to the relevant area commissioner, who shall immediately take steps to ensure that any allegation or complaint regarding a person who has allegedly been tortured, is investigated.
• The station commissioner, or, where the station commissioner is involved in the incident, the area commissioner, shall immediately take steps to protect the member or other person who has reported the alleged torture, against any form of victimization.
• If a person in custody raises a complaint regarding torture, the complaint must immediately be conveyed to the station commissioner or where appropriate, the area commissioner, who shall act in terms of paragraph 3(3) above: Provided that this does not exclude a person in custody to submit a complaint regarding torture directly to the Independent Complaints Directorate. The person in custody must be informed of his or her right to do so, and if he or she prefers that the matter be reported to the Independent Complaints Directorate, form ICD-1 must be completed and be forwarded to the nearest provincial office of the Independent Complaints Directorate. A suitable entry in the Occurrence Book must be made in this regard.
• If an investigation indicates that a member committed, attempted to commit or acted as an accomplice in the commission of torture, it should be deemed to be serious misconduct and disciplinary proceedings should immediately be instituted against such a member in terms of regulation 8(2)(a) of the South African Police Service Discipline Regulations.
• If, during disciplinary proceedings, it is found that a member has committed torture, this will be viewed in a serious light. If the member concerned is the station commissioner or community service centre commander where the prohibited act is found to have taken place, it will serve as an aggravating factor.
• Comment:

  The fact that a member acted upon an order by a superior will not be a ground of justification for torture. It is the duty of senior members to convey to their subordinates the clear message that any torture of a person in custody of the Service is not acceptable and will be dealt with severely.

  When the effects of an act of torture on the person subjected thereto, the legal and other consequences thereof in relation to the Service and the community and the importance attached to protection against torture in the international community, are considered, it becomes clear that any conduct by a member which constitutes torture will be regarded in a very serious light.

4. RESPECT FOR DIGNITY

Every person in custody shall at all times be treated with respect for his or her human dignity.

Comment:

In terms of section 10 of the Constitution, every person has the right to respect for and protection of his or her dignity.

5. PERSON IN CUSTODY TO BE INFORMED OF HIS OR HER RIGHTS

• Every person taken into custody shall be promptly informed, by the member who takes him or her into custody, in a language which he or she understands, of:
  • the reason for his or her arrest;
  • the right to remain silent and that anything he or she says, may be used as evidence in a court of law;
  • his or her right to consult with a legal practitioner of his or her choice, or if he or she should prefer, to apply to the Legal Aid Board to be provided by the State with the services of a legal practitioner; and
  • his or her right to apply to be released on bail.

  If the person in custody does not appear to understand any of the languages in which the member addresses him or her, such person should in any event be advised of his or her rights in the English language and in any other language in which such member is able to communicate and which such member suspects that the person in custody may understand. Steps must promptly be taken to ascertain a language which the person in custody understands, and to have the rights explained to such person in that language by an interpreter. The member shall record the warning, and all steps taken with regard thereto, in his or her pocketbook.

• In order to ensure that the person in custody is duly informed of his or her rights in terms of the Constitution, the community service centre commander must give the person a written notice setting out his or her rights upon his or her arrival at the police station. The contents of the rights shall be explained to such person in a language which he or she understands and it shall be explained to such person that these are continuing rights which may be exercised at any stage during the period in which he or she is detained in custody.

  If the person in custody does not appear to understand any of the languages in which the member addresses him or her, such person should in any event be advised of his or her rights in the English language and in any other language in which such member is able to communicate and which such member suspects that the person in custody may understand. Steps must promptly be taken to ascertain a language which the person in custody understands, and to have the rights explained to such person in that language.

• The community service centre commander shall ask the person in custody to sign the statement provided for in the notice, and which states that he or she has been informed of his or her rights in terms of the Constitution and that he or she understands the contents thereof. Where the person in custody refuses to sign such a statement, a third person must sign the statement to certify that he or she witnessed the person in custody being informed of his or her rights and that the person in custody refused to sign the said statement. Comment:

  In terms of the Constitution a person in custody must be informed of the rights he or she has as an arrested and detained person. Non-compliance with this paragraph may lead to the detention being unlawful or relevant evidence being excluded in court.