Amnesty International Report 2014/15 - South Africa

Republic of South Africa
Head of state and government: Jacob G. Zuma

Judicial commissions of inquiry highlighted police use of excessive force, including unlawful killings, and failures in delivery of services to poor communities. Incidents of property destruction and displacement of refugees and asylum-seekers continued to occur. Access to treatment for people living with HIV continued to expand and HIV treatment interventions for pregnant women contributed to a decline in maternal deaths. However, key discriminatory barriers continued to delay women and girls' access to antenatal care. Progress was made in addressing hate crimes based on the victims' sexual orientation or gender identity. Human rights defenders faced intimidation and threats.

Background

Following the general elections in May the ruling African National Congress (ANC) party was returned to power in eight out of the nine provinces, but with a reduced national majority of 62.15%. A new political party, the Economic Freedom Fighters, gained 6.35% of the vote and with the established opposition Democratic Alliance increased pressure on the ANC government in the national parliament for greater transparency and accountability.

Access to anti-retroviral treatment for people living with HIV continued to expand, with 2.5 million South Africans on treatment according to official figures at July 2014. As a result, life expectancy in South Africa increased.

Excessive use of force

The Marikana Commission of Inquiry into the fatal police shootings of 34 striking platinum mine workers at Marikana in August 2012 ended its public hearings on 14 November. Closing arguments were heard from legal parties representing the police, mining unions, LONMIN plc, the families of the 34 striking mine workers killed by police and the families of seven other people – three non-striking workers, two police officers and two LONMIN security guards – who were killed during the developing conflict. The Commissioners were due to report their conclusions and recommendations to President Zuma in 2015.

There were indications that the police attempted to conceal and destroy evidence and to fabricate a version of events intended to mislead the official inquiry from the start. A crucial meeting held by police officials on the evening of 15 August 2012 endorsed the decision to forcibly disarm, disperse and arrest the striking mine workers by the end of the following day. Senior police officials, most particularly the National Commissioner of Police, persistently failed to co-operate with the Commission's inquiries about the meeting. The decision to disarm the striking miners was taken despite the anticipation of loss of life and injury. It led to the deployment of "tactical units" armed with lethal force, the firing of over 600 rounds of live ammunition by police at two separate locations, and to 34 deaths. The fatal injuries were nearly all sustained to the head or upper body.^[1]

Other evidence before the Commission indicated that those involved in the decision failed to plan for adequate emergency medical assistance to be available.

Corporate accountability

Evidence before the Marikana Commission on labour relations and socioeconomic conditions underlying the August 2012 strike was curtailed due to pressure to complete the Commission's work. However, LONMIN was scrutinized in the final months, in respect of its failures to take adequate measures to protect the lives of its security staff and employees, and its failure to fulfil the company's socioeconomic obligations linked to its mining lease in Marikana.

On 20 August, the state withdrew all charges, including possession of dangerous weapons and involvement in an illegal gathering, against 270 strikers arrested at the scene of the police shootings on 16 August 2012.

Extrajudicial executions

The start of the trial of 27 police officers, the majority of whom are members of the Cato Manor Organized Crime Unit (CMU), on 28 counts of murder and other charges, was further delayed following their appearance in the Durban High Court on 23 June, and postponed until February 2015. The police officers faced criminal charges in connection with, among others, the death of Bongani Mkhize. In May, the Pietermaritzburg High Court ruled that the Minister of Police was liable to pay damages to the family of Bongani Mkhize, who had been killed by members of the CMU and the National Intervention Unit in February 2009.

In February 2014, the High Court had ruled that the decisions taken by the then National Director of Public Prosecutions (NDPP) to prosecute the former CMU commander Johan Booysen on seven charges of racketeering under the Prevention of Organized Crime Act was arbitrary and offended the principle of legality. While ruling that the decisions to prosecute charges under the Act should be set aside, High Court judge Trevor Gorven emphasized that the ruling did not preclude the NDPP from reinstituting the charges on a proper basis in future.

Torture and other ill-treatment

Allegations of torture against members of the South African Police Service (SAPS) and the Department of Correctional Services were rife. Towards the end of the year the SAPS Legal Services issued a National Instruction to all SAPS members informing them of the absolute prohibition of torture and their obligations under the 2013 Prevention and Combating of Torture of Persons Act.

On 30 October, the Constitutional Court dismissed the appeal brought by the SAPS National Commissioner who had refused to investigate complaints of torture contained in a 2008 "dossier" by the Zimbabwe Exiles' Forum and the Southern African Human Rights Litigation Centre. The Constitutional Court concluded that the SAPS had both the power and the duty to investigate the alleged complaints, which amounted to crimes against humanity.

Death penalty

In September the North Gauteng High Court ruled that the deportation to Botswana of Edwin Samotse, a Botswana national, by Department of Home Affairs (DHA) officials was unlawful and unconstitutional. Edwin Samotse faced criminal charges in Botswana for which the death sentence was applicable. The South African authorities had not obtained the requisite undertaking from the Botswana authorities to ensure that the death sentence would not be imposed. The Court ordered the DHA to implement measures to prevent a recurrence of similar deportations.

Refugees and asylum-seekers

During the year there were numerous incidents involving threats and violence against refugees, asylum-seekers and migrants, with looting or destruction of hundreds of their small businesses and homes. In the first four months of the year incidents in seven provinces led to the displacement of over 1,600 people. In June, sustained attacks in the Mamelodi area near Pretoria and the slow response of the police led to the looting or destruction of some 76 Somali-owned shops, large-scale displacements, the death of one refugee and injuries to 10 others.^[2] There was continuing concern at the failure of the government to protect the life and physical integrity of refugees and others in need of international protection.

In September, the Supreme Court of Appeal (SCA) overturned a High Court ruling which had allowed in effect the forced closure of refugee-operated small businesses by police and municipal authorities under what was known as Operation Hard Stick. These closures had been accompanied by ill-treatment, abuses, displacement and destitution. The SCA ruled that both formally recognized refugees and asylum-seekers were entitled to apply for trading licences, particularly where the latter faced long delays in the final determination of their application for asylum.

In November, charges were withdrawn in the North Gauteng High Court against 15 of the 20 Congolese men who had been on trial on charges of contravening South Africa's Regulation of Foreign Military Assistance Act. They had also faced a second charge, conspiracy to commit murder, with the alleged targets including the President of the Democratic Republic of the Congo (DRC), Joseph Kabila, and military and other government officials. Five defendants, all originally from the DRC, remained on trial in the High Court on the same charges, with the trial due to resume in January 2015. All 20, when arrested in February 2013, were remanded in prison in Pretoria until the trial began 17 months later. The presiding judge ordered an investigation into allegations by the accused of ill-treatment, including prolonged periods of isolation in remand prison.

Maternal health and HIV

HIV-infection continued to be the main cause of death of women and girls during pregnancy and shortly after birth, accounting for over 40% of deaths. Government data reported that 60% of all maternal deaths were potentially avoidable. HIV prevalence rates nationally for pregnant women of 29.5% remained a serious concern, with health districts in Mpumalanga and KwaZulu-Natal provinces showing rates of over 40%. New national figures published in 2014 reported that almost a quarter of all new HIV infections were occurring in girls and young women between 15 and 24 years.

In July, the Health Minister expressed concern that girls under 18 years of age accounted for 7.8% of all live births but 36% of maternal deaths. Department of Health figures indicated that the maternal mortality ratio had declined from 310 to 269 maternal deaths for every 100,000 live births.

In July, the government announced that access to free and lifelong anti-retroviral treatment would be available for all pregnant women living with HIV from January 2015. In August, the government launched a mobile phone messaging service, "Mom Connect", to provide pregnant women and girls with information during pregnancy.

However, barriers to accessing maternal health services continued. Pregnant women and girls accessed antenatal care late in their pregnancies and such delays were linked to nearly a quarter of avoidable maternal deaths in South Africa. Women and girls said that they delayed accessing antenatal care in part because of concerns that health facilities did not ensure confidentiality and informed consent, particularly in relation to implementation of HIV testing. They also cited a lack of access to information, negative attitudes by health care workers and unreliable or costly transport to health facilities as barriers to early access. Poverty was an exacerbating factor.^[3]

Rights of lesbian, gay, bisexual, transgender and intersex people

Discriminatory violence against LGBTI people continued to cause concern and fear. In 2013 and 2014, at least five people, three of them lesbian women, were murdered in what appeared to be targeted violence related to their sexual orientation or gender identity.

There was some progress made in addressing hate crimes through the revival of the National Task Team process and establishment of a Rapid Response Team by Department of Justice and Constitutional Development officials, Constitutional Development officials, and others. In February, the Rapid Response Team reported progress in 19 out of 43 previously "unresolved" cases identified as suspected anti-LGBTI violence.

Civil society representatives and Department of Justice officials also held discussions on a draft hate crimes policy document, intended to assist the drafting of legislation on hate crimes. There was no further progress with the legislation by the end of the year.

In November, the Johannesburg High Court convicted a man of the rape and murder in 2013 of a lesbian woman, Duduzile Zozo. Judge Tshifhiwa Maumela issued a strong condemnation of the discriminatory attitudes which fuelled such crimes.^[4]

At the end of the year, preliminary trial proceedings had begun against a suspect charged with the murder of 21-year-old David Olyn, who was beaten and burned to death in March, apparently because of his sexual orientation. However, civil society monitors expressed concern at limitations in the police investigation.

South Africa supported the adoption in May of Resolution 275 by the African Commission on Human and Peoples' Rights, urging states to end all acts of violence and abuse because of real or perceived sexual orientation or gender identity.

Human rights defenders

Harassment of human rights defenders and organizations, and improper pressure on institutions, including oversight bodies, remained a major concern. The Office of the Public Protector and its Director, Thuli Madonsela, faced sustained pressure amounting to intimidation by members of the government in connection with the oversight body's investigation and report on the improper use of public funds by the President at his home in KwaZulu-Natal Province.

At the end of the year, criminal trial proceedings had not concluded against a Social Justice Coalition (SJC) founder member, Angy Peter, and three others. The SJC, including Angy Peter, had gathered evidence in 2012 to support a call for a commission of inquiry into police corruption and their failure to provide proper services to the poor community of Khayelitsha. The judicial Commission of Inquiry, which was established in August 2012, finally began its hearings in February 2014, and issued its report in August. The hearings had been delayed for over a year until the Constitutional Court ruled finally in 2013 against the then Minister of Police and the National Commissioner of Police who had opposed its establishment. The Commission's report confirmed many of the concerns documented by SJC.

Health rights activists came under increasing pressure, particularly in Free State province. Members of the Treatment Action Campaign (TAC) were reportedly threatened and intimidated by ANC ruling party provincial officials and anonymous callers because of their work for people living with HIV and against corruption. Sello Mokhalipi, then Free State Provincial Chairperson of TAC, temporarily went into hiding and later lodged criminal charges with the police in early 2014, following alleged death threats. TAC Free State Provincial Co-ordinator, Machobane Morake, was also allegedly subjected to threats and intimidation. In July, the two men and a third TAC colleague were alleged victims of an attempted night ambush on a remote road. At the time, they were supporting 127 Free State community health workers and TAC activists who had been arrested during a peaceful vigil at the offices of the Free State Department of Health. Those arrested were held in police stations in Bloemfontein for 36 hours before appearing in court where they were charged with participating in an illegal gathering. After two further remand hearings, their case was postponed to January 2015.

1. South Africa: Unlawful force and the pattern of concealment: Barriers to accountability for the killings at Marikana (AFR 53/004/2014) www.amnesty.org/en/library/info/AFR53/004/2014/en

2. South Africa: Government and police failing to protect Somali refugees from deadly attacks (News story) www.amnesty.org/en/news/south-africa-government-and-police-failing-protect-somali-refugees-deadly-attacks-2014-06-12

3. Struggle for maternal health: Access barriers to antenatal care in South Africa (AFR 53/006/2014) www.amnesty.org/en/library/info/AFR53/006/2014/en

4. South Africa: Court's judgment a positive step forward against hate crime (AFR 53/008/2014) www.amnesty.org/en/library/asset/AFR53/008/2014/en/dc93fda1-e9d7-4a5b-86bf-ad102f0bc583/afr530082014en.html