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MONDAY APRIL 15 2013
MASSACRE: A policeman gestures in front of the bodies of some of the dead miners after they were shot outside a Marikana mine last August. A commission of inquiry is investigating. PICTURE: SIPHIWE SIBEKO / REUTERS
When is enough enough? South Africa’s failure to criminalise torture contributes to the problems police face, writes Carolyn Raphaely
Raphaely is a member of the Wits Justice Project, which probes miscarriages of justice. The WJP is located in the Wits Journalism Department. Names of members of the Organised Crime Unit implicated are known to the WJP.
BITTER END: A frame grab from a video shows protester Andries Tatane being killed during a service delivery demonstration in Ficksburg two years ago. The seven cops accused of his death were acquitted in March. PICTURE: MEQHELENG CONCERNED CITIZENS (MCC)
HORROR DEATH: Mozambican taxi driver Mido Macia is bound to the back of a police car and dragged for more than 400m behind it. He later died in police cells at Daveyton station. Nine policemen are facing charges for Macia’s death. PICTURE: DAILY SUN
Apartheid tactics stand the test of time
HE BLOEMFONTEIN Tourist Centre is a neat, red, modern building in the city centre overlooking the bus terminal and the Vodacom Rugby Stadium. For William Dube, allegedly dangled by his ankles from a first-floor balcony by members of Bloemfontein’s Organised Crime Unit (OCU), the innocuous-looking building will always be associated with torture, rather than tourism. Talking through a translator, Dube told the Wits Justice Project how he was cuffed to a chair in an unmarked suite of offices occupied by the OCU in the Tourist Centre. “They attached wires to my penis and back from something that looked like an old Nommer Asseblief phone. Then they wound it up to get power to shock me. It was very , very painful. I even wet myself. “They put a plastic bag over my head and closed it with duct tape. They only remove the plastic when you collapse, then they take it off. While they were suffocating me, they put pepper spray inside the plastic bag and sealed it. “They kicked and punched me in the eye and ear. I still can’t hear properly . “Then they took me to the balcony . Two people were holding me, each held one leg. While I was hanging upside down, I agreed to co-operate. I was terrified they’d drop me. They told me places to point out, how to make a confession and what to say . I did the pointing out the next day .” Late last year in a trial within a trial in the Bloemfontein Regional Court, Dube described how he was tortured, assaulted and shocked by members of the OCU, particularly Warrant Officer Jan Basson. Dube’s co-accused, Mzwandile Khani, said: “I saw his legs and feet over the top of the balcony . I had to ask myself if I was dreaming. It was like something straight out of the movies.” Advocate Wilfred Phalatsi said photographs of Dube with a swollen red eye, taken by a police photographer after the pointing out, formed part of the court record. Dube’s injuries were corroborated by Khani and State witness Darren Jansen. However, Dube’s story is not unique: it concurs with reports of assault and torture by other Grootvlei inmates – including Dube’s five co-accused, Khani, Lucky Mametsa, David Seleke, Davies Musimeke and Sifiso Cele. Now the four Grootvlei Prison awaiting-trial inmates, and their two co-accused released on bail last month, are suing Minister of Police Nathi Mthethwa for damages. Anyone who thinks torture and assault of prisoners were the prerogative of the apartheid police should think again. South Africa seems to have learnt little from the lessons of the past. Not from the deaths of Steve Biko or Neil Aggett at the hands of the police, nor from the deaths of Andries Tatane, the Marikana miners and Mozambican taxi driver Mido Macia. As reports of assaults, beatings, pepper spray and torture surface with increasing regularity , the new South Africa is starting to look shockingly like the old. “The methods police used to abuse suspects under apartheid are exactly the same as those they employ today ,” said Professor Peter Jordi, an attorney at the Wits Law Clinic specialising in torture. “Torture hasn’t suddenly reared its ugly head. It’s never stopped. It was carried out at police stations before and continues today . “Previously , it was believed that mostly political detainees were tortured. If you’re a criminal arrested for armed robbery today , you face exactly the same fate. The police torture people all the time – in their homes, in police cells, in the veld, in cars. This is how the cops investigate. “Torture is standard police investigation practice. These policemen are serial criminals. They have methods of investigation which are unlawful and for which they could be prosecuted, but they never are… “That’s their modus operandi. I’ve had six cases against a policewoman at Diepkloof, but she stays on the job and the torture continues.” Many incidents of assault and torture aren’t reported. And if they are, they’re unlikely to come to court. Take the case of Dube, Khani and Mametsa – allegedly all tortured by members of the OCU at the Tourist Centre. The three men reported the matter to their Grootvlei unit supervisor and laid charges of assault with intent to do grievous bodily harm against the OCU and Basson at the Bloemspruit police station. The case was subsequently transferred to Kagisanong, but the men have heard nothing since. Arrested at the same time as Dube, Khani alleges he was brutally assaulted at his home on May 6, 2010. Two weeks later, he was booked out of Grootvlei by OCU members and taken to the Tourist Centre for a second round of beatings, assault and torture. Like Dube, he was assaulted, kicked, shocked with the “phone”, his hands and feet cuffed to a chair, a plastic bag placed over his head and wires attached to his back and penis. “I was shocked repeatedly for almost four hours in front of a woman officer. There were nine or 10 policemen watching, and kicking me. “One of them opened my legs and kicked me in my private parts. I was screaming so loudly , they forced a dirty cloth in my mouth. I collapsed and fainted. “They waited for me to regain consciousness and laughed at me. I heard them say: ‘Hierdie k****r is baie sterk.’ ( t h i s k***** is very strong)” Nearly two years later, Khani’s Grootvlei hospital records confirm “a clotlike substance in the penile shaft as a result of being assaulted by police officers”. The clot remains and still causes him pain. “After being beaten up I was taken to Mangaung police station. Some inmates carried me to the van. I couldn’t walk, I couldn’t do anything. A police captain advised that I was taken to Pelonomi (Regional Hospital). All the doctor there did was give me painkillers.” Pelonomi records corroborate Khani’s account of repeated assault by police, that he was “choked” (shocked), suffered severe back pain and soft tissue injury and had large bruises on his lower back. “Patient says he was hit in the face, head, lip and right eye… kicked in the lower back…” Medical records also state that according to the police, “patient was caught on roof from where he fell down”. “In these cases, doctors’ records are usually unreliable,” said Jordi. “I have a case where the police arrested a suspect in Soweto for breaking a car window. They beat him up, beat him up some more, took him to a park in Lenasia and suspended him with a rope around his neck from a tree. “They cut him with broken bottles and dragged him behind a truck with rope. “Then they took him to Chris Hani where the doctor recorded: ‘His pupils were equal and reacting to light.’ “Actually , he was blind in one eye as a result of the assault and the doctor failed to pick up his significant injury .” Though the right to be free from torture is enshrined in the constitution, the longoverdue Combating and Prevention of Torture of Persons Bill was tabled in Parliament only in June last year. “Parliament has dragged its feet on passing anti-torture legislation for almost a decade now,” said policing authority David Bruce. “This is astonishing, as some members of Parliament have themselves been victims of extremely brutal torture at the hands of the police.” Since it is extremely difficult to corroborate torture allegations, assaults often go unreported, police don’t follow up complaints, medical attention is denied, or no medical records exist. Mametsa, like Khani, was booked out of Grootvlei two weeks after his arrest and taken to the Tourist Centre. There his head was repeatedly bashed against a wall to elicit a confession. “They wanted me to agree with everything they said. How can I say ‘yes’, or ‘no’ to what I don’t know?” On his return to Grootvlei, Mametsa was taken to the prison hospital where he remained for three days: “I spent four months on my bed after that. “I was sneezing blood with green stuff with rotten things in it. Pieces of bone which I’ve kept were coming out of my nose. The section warders helped me write a letter of complaint to Grootvlei centre coordinator Wiley van Heerden, who referred me to the prison doctor again.” After numerous visits to Dr Margaret Bikane (a Cuban-qualified doctor from Santiago de Cuba Medical School) Mametsa was repeatedly told there was nothing wrong with him. Nine months later prison dentist Dr Tapan Sewbarun diagnosed a broken zygomatic bone and head fracture, and finally referred him to Pelonomi. Mametsa is still in pain and his left eye sees only grey . As Mametsa tells it, a scan and X-ray showed a head fracture: “The Pelonomi doctor wrote me a full-page script, but I never received any medicine until today .” On his second visit to Pelonomi, Mametsa said he was told he needed an operation, but when he returned for his third appointment, his medical records had disappeared. Again, he was told there was nothing wrong with him. Soshanguve taxi owner Musimeke and Cele suffered similar fates to their four coaccused at the Tourist Centre, though Cele said he was spared shock treatment. Musimeke, who witnessed Cele’s assault, was not as lucky and describes his own beating as “like something out of WrestleMania”. Seleke, a former boxer, was the only member of the group who was questioned but not tortured at the Tourist Centre. Instead, he said, he was tortured at home by Basson and others in front of his neighbours and shocked with “something like a cow prod”. The good news for Seleke was that surveillance cameras he had installed in his home for his money-lending business recorded the assaults. The bad news? Seleke was left with a broken rib after being hit by a rifle butt and the monitor and footage were confiscated by the police. “Straight after my arrest, I laid charges of assault against Basson at Park Road police station. I also complained to the Independent Complaints Directorate (ICD). They confirmed the case, but said my statement had disappeared. Only a blank docket remained.” “La Costa”, as he’s known because of his weakness for Lacoste T-shirts, was assaulted again a few months later by Basson in front of Department of Correctional Services officials, Musimeke and Cele in Grootvlei’s reception area. Seleke lodged another complaint with the prison head, who referred the matter to the area commissioner. Though an official investigation was undertaken, the outcome is still unknown. To date, all attempts by the men to seek redress have fallen on deaf ears. In addition to laying charges, reporting the matter to the Judicial Inspectorate of Correctional Services and the head of Grootvlei, they have written to the Human Rights Commission, the ICD and Free State Premier Ace Magashula. They’ve received no response. With unbridled lawlessness and violence part of a pervasive pattern of police brutality occurring nationwide, taxpayers are bearing the brunt. The 2011/12 annual SAPS financial statements reveal payments of nearly R15 billion for civil claims against the department, nearly R1bn for assault claims, R11.9bn for police actions and R1.1bn for shooting incidents. Clearly , public money used to settle these claims could be far better utilised for crime prevention. Moreover, the ICD 2011/12 annual report records 4 923 complaints received against the police and 720 deaths in police custody and deaths as a result of police action. Independent Police Investigative Directorate spokesman Moses Dlamini acknowledged at least 194 charges had been laid by survivors of the Marikana massacre who were allegedly assaulted and tortured while in police custody at Phokeng, Mogase and Jericho police stations. Since torture is not categorised as a separate crime in South Africa, its prevalence is almost impossible to assess. “Police torture is a daily occurrence in Gauteng, where I practise,” said Jordi. “I probably handled more than 20 torture cases against the police in Gauteng alone last year.” Anti-Police Brutality Corruption Network SA’s Zwelakhe Mnisi said: “Nothing has changed. It’s only got worse. “I received more than 400 reports of police brutality , torture, bagging, pepper spray and electric shock last year. I didn’t even have an office.” When is enough enough? South Africa’s failure to criminalise torture, the “shoot to kill” rhetoric, culture of impunity and militarised police force all contribute to the problems police face. Yet Jordi believes our judges and magistrates are equally to blame: “They deal with individual cases where torture is alleged and ignore the evidence staring them in the face.”
SHOCKED: David Seleke was tortured at home in front of his neighbours, he says.
PLACE OF PAIN: The Bloemfontein Tourism Centre where inmates claim they were tortured. One says he was dangled from the balcony by his police interrogators.
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