Constitutional Hill

On torture and human dignity

As many “enemy combatants” (a non-legal term if ever there was one) imprisoned by USA forces will tell you (if they were ever released from indefinite detention without trial), torture is probably the worst infringement of one’s right to bodily integrity as well as one’s right to human dignity.

The mental image of naked man shivering on the bare cement floor of a water-drenched cell with a black bag over his head being water-boarded while CIA or Military Intelligence operatives try to force him to make confessions about things he had never done and knew nothing about, serves as a reminder of why the protection of human rights is so vital for the establishment of a humane world. 

In fact the ban on torture is one of the few international human rights norms that has acquired the status of a rule of customary international law that can be enforced against any country – regardless of whether that country has signed and ratified any of the human rights treaties.

In the light of the above, I was rather shocked to read that six detectives from the elite crime-fighting unit – the Hawks – have been arrested for torture. You will all recall that the Hawks have replaced the Scorpions, which was disbanded after some ANC members at Polokwane expressed concern about the ability of the Scorpions to investigate and arrest ANC members for corruption.

Weekend Argus report says the men – who have been dubbed ‘the untouchables’ – have appeared in the Klerksdorp Magistrate’s Court, charged with serious assault. Captain Tsietsi Mano, Captain Ishmael Taung, Warrant-Officer Petros Tshiponyane, Sergeant Samuel Kutumela, Constable Godfrey Pebane and Constable Lucas Mosala were released on R500 bail each. They are alleged to have used apartheid-style torture methods on a group of bank robbery suspects. All are members of the Klerksdorp Organised Crime Unit.

Now it might of course be that these Hawks are innocent, that they have never tortured anyone and that they are merely the victims of a conspiracy by the Dark Lord Sauron or some other dark forces in the media or counter-revolutionary judges who get together late at night dressed up in chicken suits to conspire against the poor innocent ANC members driving around in million Rand cars, wearing R250 000 Breitling watches and living in R15 million mansions. I am sure the truth will emerge at their trial – if a trial is ever held.

What concerns me is that so far no politician (from any political party) has expressed concerns about the fact that members of our elite crime fighting unit have been charged with torturing suspects. As Jacob Zuma and his supporters kept on reminding us during his long battle to ensure that he never had to answer corruption charges in court and never had to be Jackie Selebi’d under cross-examination, suspects are innocent until proven guilty by a court of law.

But although these suspects must be considered innocent until proven guilty, members of the Hawks are alleged to have tortured them. God only knows what physical and mental pain might have been inflicted on these suspects. One can only look on in horror at the deathly and hypocritical silence on the part of ANC leaders about this turn of events. Imagine the Scorpions had been charged with torturing Jacob Zuma after his arrest – just imagine the outcry! 

Now, at the time when the Scorpions were killed off, many supporters of President Jacob Zuma – some of them senior leaders in the ANC – argued that the Scorpions had gotten out of hand. They pointed to the “Hollywood-style” raids on the premises of Zuma and his lawyer and the alleged leaking of information to the media which, so they claimed, infringed on the human dignity of Zuma and other high profile ANC leaders.

This concern for the human dignity of Zuma and other ANC leaders might have been touching if it was not so hypocritical and so bereft of principle. It was based on the anti-Rule of Law notion that “some animals are more equal than others” and that ANC leaders have a more urgent claim on the right to dignity than anyone else. (Some would say it illustrated the widely held belief in the ANC that its leaders are mostly above the law.)

The silence on the part of ANC politicians about the allegations of torture against the Hawks is also telling. It suggests that if a unit targets ANC members and use “Hollywood-style tactics” (which, the last time I checked, did not constitute a human rights abuse – unlike pulling out somebodies finger nails or burning their genitals with a blow torch) that unit will be disbanded. But if members of a unit are charged with committing serious acts of torture on individuals who happen “only” to be common garden variety criminal suspects and not ANC Kebbilists and tenderpreneurs, then that unit will be left alone.

So as long as the Hawks stay far away from cases of corruption involving any ANC politician, its members will be safe. There will be no grumbling of “Hollywood-style raids” and no one will say a word about any Hawks being convicted of torture and how terrible that is for the protection of the human dignity of anybody. 

I might be wrong, of course. Maybe as I write ANC leaders are preparing a policy document on the disbanding of the Hawks to be tabled at the General Council later this year. Maybe there are some principled people who think that torturing someone is a bit more serious than indulging in “Hollywood-style raids” and “humiliating” politicians by leaking information about their nefarious activities to the press.

Then again, maybe not.

After all, criminal suspects who are destined for high office in the ANC are “innocent until proven guilty” (even when someone else had been convicted of bribing them and we all know they took money from that crook and then did favours for that crook in return). Those “special” suspects also have a human dignity more exulted than even that of Princess Lindiwe Sisulu. But if you are not a blue blood, politically connected, Julius Malema-loving, tenderpreneur, then you can be tortured because you are just a criminal, scum of the earth, and someone whom the police is invited to shoot and kill. You are a bastard (or is that “a bloody agent”?) and you need to pay for your alleged crimes even long before you are ever convicted by a court of law.

The double standard in all of this is of course breathtaking. (It is even more hypocritical than Helen Zille claiming that allegations of sexual harrasment against Lennit Max was a private affair while Jacob Zuma’s sex life was a matter for public consumption). It emanates from people who have lost any sense of morality and who believe that power is its own morality, that those in power have a divine right to rule and that “ordinary” criminal suspects without connections to the rulers have no rights at all.

  • Chris

    Perhaps more concerning than the lack of response from the politicians, is the attitude of the public. Many will have no objection to turture (except if they are tortured themselves).

  • http://n/a mayimele

    Good observation Prof. However, this is not the only area or incident in which the JZ’s ANC has demonstrated hypocrisy and double standards. Since they took over power at the Luthuli House and also in government, they have started living life contradictory to their diatribe preachings of the period before Polokwane. In effect, most of what used to be bad about the previous NEC and government is now correct. For instance, Matthews Phosa and the Chancellor House / Hitachi story, Malema’s hurling of insults to the previous NEC and government members which used to be correct and in line with the ANC culture. But now it is un-ANC and Malema has to be disciplined. The list is actually endless.

    This confirms my earlier observation as captured in my post in Dec 2009 that

    … since the advent of Polokwane SA has became the kind of an animal farm where the INTERESTS & RIGHTS OF THE PRESIDENT COME FIRST, followed by those of the RULING PARTY and its Alliance (members who believe that JZ’s rape and criminal cases were the conspiratory work of TM which justify the illegal and criminal way in which they were dropped) and finally by those EXTREMELY LIMITED & UNPROTECTED RIGHTS OF US MORTALS…..
    The ruling elite not interested in democracy or the rule of law

    This is just the beginning of the beginning; the real beginning has not yet began.

  • Observer

    To be honest, I don’t have the same aversion to torture that the Prof expresses here. If an individual is so brazen as to infringe on the dignity of another in the course of criminal activity – say rape, or murder for instance – I find it difficult to argue that that individual has a right to dignity equal to that of a law abiding citizen. These sorts of people cannot be worthy of human rights.

    The only sensible argument I can think of for applying human rights to ardent criminals is to make room for the contingency that he or she may be innocent, not because they in some way deserve them. It’s a “just in case” kind of application of human rights that protects the innocent from the inevitable mistakes of law enforcement. But apart from this, on what grounds do violent criminals deserve their human rights?

  • Chris

    Observer says:
    May 10, 2010 at 13:43 pm

    See what I mean?

  • Pierre De Vos

    Observer, first, obviously torturing a suspect is not torturing a hardened criminal but an innocent person not convicted of any crime. Support for torture is support for the lawless infliction of pain and violence on the innocent. Second, if a criminal is guilty he or she can be sentenced by a court. Allowing police officers to meet out punishment is completely at odds with the Rule of Law as it gives the police – instead of courts – the power to punish suspects without the benefit of a fair trial. Next thing we give the police the power to come into our homes and kill us because we are suspected of some or other crime. Third, the basis of our Bill of Rights is the notion that every individual has an inherent human dignity (that cannot be taken away merely because one is poor or rich, white or black, a criminal or not) and hence when one tortures anyone – whether that person is a criminal or not – one is saying that some have no inherent human dignity. It thus undermines the very basis for human rights as developed by our Constiturtional Court. Lastly, when a police force starts torturing and it is condoned, one invites that police force to become a law unto itself and to abuse power. So, you have criticised the President: then the police will come and arrest you and pull out your toe nails. Torture, once condoned, always spreads and are always abused and any person who is not a slavish supporter of the regime becomes the potential victim of torture. Lastly, torture is banned by International Law so not matter what our Constitution says, in terms of international law people who torture are criminals and a regime who allows torture is a criminal regime. Welcome to the International Criminal Court at The Hague!

  • Steven

    I enjoy reading visiting this site and whilst I am in agreement with most off the comments the article comes across as a bit of a “rant and rave”

  • Observer

    Interesting response, Prof, and I agree with you for the most part. Trouble is, the question I am concerned with is, apart from the various negative consequences torture may have on the rule of law or other socio political evils, on what do we grounds do hardened criminals THEMSELVES have right to dignity?

    Let’s take a look at your reasons for affording criminals human rights:

    1. Support for torture, is support for the torture of the innocent,
    Granted, the torture of an innocent person is an evil that should be avoided at all costs – even if it means granting those who turn out to be hardened criminals those rights as well.

    2. Allowing police to torture will give them undue power, that conceivably would lead to greater infringements of rights.
    Absolutely, we should not allow the police any room to exceed the reasonable bounds of force. And if allowing torture will lead to this, it should rightly be outlawed.

    What interests me about these responses, is that they say nothing about why the criminal himself deserves human rights. They may just as well be reasons ‘to act as if’ criminals have these rights, lest we suffer the consequences of not acting that way. That the rapist himself has an intrinsic that ought to shield him from torture is a much more difficult argument to make.

    Granted, you touched on this when you claimed that everyone including criminals have the right to dignity as provided in our constitution. Trouble is that I think that this is a far weaker justification than your first two reasons. Firstly, because those who genuinely believe rapists and the like have an intrinsic value that protects them from torture (or other infringements of human rights) are few and far between. Secondly, your first two reasons provide a perfectly cogent defence for outlawing torture without awarding criminals any rights whatsoever. ALL that we need to say that torture should be outlawed is to show that torture will eventually lead to gross infringements on the rights of innocent people. This, however, says nothing about why hardened criminals (in the absence of ‘acting as if’ they had rights benefitting law abiding citizens in the long run) should have human rights.

  • Chris

    It can’t be argued that in any modern society criminals do not enjoy the same human rights as others. To take away their freedom by incarcerating them (even after sentence) is an infringement of human rights. To take away the criminals ability to earn a living is an infringement of his human rights. The question to be answered is do they have the right not to be tortured. I’ve heard the argument that “the criminal placed himself outside of the legal order and is therefore not entitled to claim the protection of the legal order”. I don’t think that is a valid argument. In almost every civilised society the right not to be tortured is regarded as an absolute right, there are no provisos. Therefore, it cannot be balanced against any other rights and values, in any circumstances. Even the High Court of Justice in Isreal ruled that the Israel Security Agency interrogators may not use “physical means” (read torture) in interrogation.

    Then there is still the “ticking social bomb argument”. I will not pretend to have an answer to that.

  • Pierre De Vos

    Observer, the Kantian notion of human dignity, which many say form the basis of our human rights system, holds that every human being has an inherent human dignity because of the fact that he or she is human. If one rejects the notion that criminals have this inherent human dignity one rejects the very basis of human rights because one then holds that some people are not fully human because of what they did. Conceptually this is untenable because one then has to hold that some people are not really human at all. Besides when does a criminal forfeit their right to dignity? When you break the speed limit, drive under the influence of alcohol, or negligently causes the death of another person by falling asleep at the wheel of your car? When you steal a bread because you have no food to eat? When you’re a catholic priest abusing young children? When you rig a tender? At what point do you stop being a human being? And what kind of torture is permissible? Water-boarding? Sleep-deprivation? Assault? Pulling out someone’s finger nails? Raping them? Sexually abusing them? Administering electric shock? Freezing them to death? That is why our Bill of Rights insists that everyone has an inherent human dignity but also affirms that rights are not absolute and can be limited. A criminal’s rights are severely limited and this is perfectly in line with the Bill of Rights as long as the limitation on their rights is proportionate to the crime committed. In international human rights law and the consensus on human rights in general holds that torture is NEVER proportionate to the crime committed. It dehumanizes the victim and the perpetrator and demeans a society as a whole as it sanctions extra-judicial infliction of severe pain and agony and lower the state to the very same level as that of the criminal. When we allow torture we allow our society as a whole to be demeaned and to move away from values which is required for a humane and civilized society.

  • Peter John

    Observer, the reason is simple:

    The moment you start categorising some people as having an entitlement to human rights and others as not you start down the slippery slope. It’s the thin end of the wedge and where it ultimately ends no-one knows.

    To explain the slippery slope argument further: if you may torture an alleged rapist, may you perhaps not torture an alleged thief? Indeed, why not? And if you may torture an alleged thief, then why not a shoplifter? In the end then you may find that the police are entitled to torture someone who is alleged to have stolen a packet of chewing gum. There is no end to the potential Pandora’s box you suggest opening.

    The position is similar to that of the rule of law. Either you accept that it is an immutable unchangeable principle or say that some should be excepted from being subject to the rule of law. If you say the latter, you have no idea where it it ends. If the president is excepted then why not those through whom he acts, his ministers. And if the ministers why not the director- generals? And so forth.

  • Mikhail Dworkin Fassbinder

    @ Observer

    You offer interesting observations.

    1. You say “those who genuinely believe rapists and the like have an intrinsic value that protects them from torture . . . are few and far between.” Most people I know would say even rapists and the like have “intrinsic value.” (Then again, maybe I hang out with too many Kantians.)

    2. You say “your first two reasons provide a perfectly cogent defence for outlawing torture without awarding criminals any rights whatsoever. ALL that we need to say that torture should be outlawed is to show that torture will eventually lead to gross infringements on the rights of innocent people.” How about we say that the moral basis for assigning “rights” to even the criminal is precisely the utilitarian argument that, unless we defend an absolutist position – that protects the really bad – the rights of the innocent too will eventually be eroded?

  • Michael Osborne

    Pierre, Chris mentions the famous “ticking bomb” example.

    So, are you truly are Kantian absolutist?

    Would you say no torture at all – even if, by stipulation, torture of one was the only way to save a billion?

  • Observer

    How is the Kantian argument for universal human rights superior to a utilitarian one? Most of the concerns around allowing the rights of criminals to be infringed involve so called slippery slopes. Responses like, “Well where we draw the line, huh?” Or “Gosh, if you allow that to happen to them, eventually it will happen to us!” If it is the case that these slippery slopes will follow once we disallow human rights to criminals, then we have a strong justification for doing so. So, it seems that even without Kant and universal dignity we seem to have good argument in support of universal human rights. Sure, they may lose the magic and romance most human rights activists hope for; but I’m not fussed. I can go about my business thinking rapists are less than human, that they don’t deserve the air they breathe but I will act as if this is not the case. For my own good.

  • Observer

    “strong justification for not doing so” apologies.

  • pekkil monta

    Perhaps it would be useful to understand why the police force (and I avoid the word ‘service’ here) resorts to torture.

    My hypothesis would simply be that they have no other tools to get the job done. They’re (in the main) useless at actually detecting and getting to conviction – they don’t have the skills, the means, the incentive, the management or the example as to how proper policework is done. They see a bunch of cowboys masquearading as political leaders and simply respond to the call. It’s easier, quicker, probably more pleasant, there’s no real downside, and they look like heroes (until Kantian bleeding hearts start shouting, of course).

    So, in summary, they’re pretty useless at dealing with what they have to, they’re desperate for results, and too stupid to ask for real help. Ergo, they do what comes natural, they beat the shit out of some suspect or the other. And, if it works a few times, it becomes the modus operandi. And there’s no management or oversight to speak of; politicians like to look like real ‘manne’, and as loong as they have little blue lights, they don’t need their blue pills, so we’re all happy, right? And the VIP brigade leads in this shining light.

    If you’re a criminal in SA, in other words, you’ve gotta be really unlucky to get caught. And the difference with the police ‘service’ is more imagined than real.

  • Brett Nortje

    Very entertaining, stimulating blog. The answer probably lies in the integration of all the responses above. Funny thing is that my political conscientisation started with torture and I first was stumped with the ticking bomb defence by one Louis La Grange.

    Does anyone think torture is not a consequence of ‘othering’?

    Sorry, but I cannot remember when I last thought of torture as something the cops do. Sandy Staats was tortured to death with boiling water when the scum who invaded her home found some cartridges in a kitchen drawer and demanded to know where the guns were. Staats was one of the elderly who were bullied into surrendering her firearms by the Judasbokke from the Central Firearms Register (who defrauded her heirs out of the compensation for those firearms). Her torturers could not believe anyone would be so naive as to hand in licensed firearms to the SAPS so kept on boiling the kettle.

    Women are usually raped no matter the torture’s motivation. Rape torture and mutilation seem to be essential by-products of genocide. How many victims of home invasions and farms attacks have been tortured with hot irons before the murder? How many women raped then disembowelled from the vagina upwards?

    No-one is keeping score.

    By now you have clicked that I see little difference between the scum applying the torture whether they are in uniform, or overalls. All are probably equally sanctimonious about the necessity of what they do. What is probably a precondition is the othering, the dehumanisation of the victim.

    As an aside – my witch-in-law’s brother was a murder-and-robbery detective hereabouts. His recollection is that in 80% of the cases where they investigated the murder of an elderly person the perpetrators included the maid or the gardener or both. They caught the perpetrators chop-chop. Cracked the perpetrators and had them singing within a half-hour without torture. Kept careful note of what was said during questioning then confronted the suspects with the first inconsistency and sat back to watch the wheels spinning.

  • sirjay jonson

    Observer: criminals deserve to be afforded human rights precisely because they are human, and two wrongs do not make it right. Obviously, as with all human rights, when they are disregarded then the innocent will also suffer, and the state will definitely take advantage of such freedom.

    It is also definitely against the law, not just international law but also South African law, as it should be.

    I have a close friend who was conscripted during those times you may recall when that was happening here. He was in some foreign country, I forget which, and when presenting himself on arriving as an officer before the commander, noticed that there were a half dozen black naked men standing in three meter cylindrical holes in the ground pleading for water. He, being a civilized person said to his commander: “in all due respect sir, this is torture.” His commander said: “these men know what is planned for assaults against our forces, what would you have me do? Whether it is today or days they must remain there, we must have the information they hold to protect our men, and that includes you, dismissed!”

    The difficulty with torture, apart from the human rights component, is that we lose all honour and in effect become the enemy we despise.

    When you play Go with a Go master, you are given special advantages, I forget the term, but they are given precisely as a matter of honour, and represent a degree of refined superiority. Regardless of how brutal you are, why should I also become a brute, unless of course I enjoy it.

    Quite likely its a spiritual question. Am I part of the problem, or part of the solution?

  • Elaine Bing

    Torture is a huge problem in the SAPS. This is despite the SAPS having accepted that torture may not be used in the organisation. The ticking bomb scenario is actually not just a philosophical argument as many people (various writings) have claimed. The policeman on the ground confronts it daily – do I torture a suspect and possibly lock up in transit robbers who could kill many people, or do I attempt to find evidence in a legal way? Dersowitz (a lawyer I seem to remember) called for torture warrants. I have always had great pleasure imagining the request: “My Lord, we need to apply for a torture warrant which will allow us to administer electric shocks to the suspects testicles three times.” Valid slippery slope arguments have been mentioned. Also that the rights of suspects are infringed. Another problem is that torture (especially physical – psychological may be a bit different) is not a guarantee of veracity. To stop the pain, suspects will confess to whatever they have to. The question was asked “Why do the police torture?” I suspect that the answer is because we, as a society, demand it. When we appoint law enforcement officers, we want them to do what is necessary – not to have too clean hands. The important part is that we do not want to know about it. If we know, we have to react and say it is not acceptable (unless we are politicians). If we do not know, we do not have to say anything. We can just congratulate the police on their work. And possibly the politicians know this, or am I giving them too much insight?

  • Chris

    Brett Nortje says:
    May 10, 2010 at 20:07 pm

    Of course rape falls 100%within the description of torture.

    During the period April 2008 to March 2009 74500 cases of sexual offences were reported to the police in South Africa, probably just a drop in the ocean.

  • Elaine Bing

    Maybe something should be added with regard to definitions. Torture does not refer to a particular technique as is clear from the following UN definition: It includes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions (United Nations High Commission for Human Rights, 1984). As is clear, it is done by someone in their official capacity. Your common criminal who assaults his victims, no matter how viciously, is not a torturer. He is simply a criminal.

  • Anthony

    Dear Professor de Vos,
    I think you are sometimes so struck by the bluntness and brazenness of our fraud that your satire and warmth spill into a barely controlled outpouring of emotional frustration. I can hardly blame you and this headlong plunge into the screaming ravine never detracts from your fine insight but…it’s still better not to go down that ravine. Thank you!

    (Anthony Burman)

  • Michael Osborne

    @ Observer

    “How is the Kantian argument for universal human rights superior to a utilitarian one?”

    You are acute Observer indeed. The invoking of the slippery slope by these so-called Kantians demonstrates that, when push come to shove, they are not really Kantians after all.

    Very few in this post-religious age (even Pierre, I suspect), would go with Kant all the way — and insist that the hypothetical captured terrorist may never, ever, be tortured, even if, by stipulation, the alternative would be the destruction of a large city by nuclear explosion.

    Perhaps their pragmatic collapse is via R.M. Hare’s “rule utilitarianism”?)

  • Chris

    Elaine Bing says:
    May 10, 2010 at 20:21 pm

    You are correct with the UN definition of torture. Remember that it the definition given to torture by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for their purposes of facilitating cooperation between member states to uphold human rights.

    The Oxford Dictionary gives the following definition:
    • n. the action or practice of inflicting severe pain on someone as a punishment or to force them to do or say something, or for the pleasure of the person inflicting the pain.
    ∎ great physical or mental suffering or anxiety: the torture I’ve gone through because of loving you so. ∎ a cause of such suffering or anxiety: dances were absolute torture because I was so small.
    • v. [tr.] inflict severe pain on: most of the victims had been brutally tortured.
    ∎ cause great mental suffering or anxiety to: he was tortured by grief.

    An employee would for instance be entitled to a court order interdicting his (private) employer from torturing him. It would not help the employer to plea that he is not an organ of State and therefore his actions can in terms of the UN Convention not be described as torture.

  • AN Leigh

    Very interesting posts indeed. They grapple with some very basic issues that define us as humans and the various systems such as that overworked word ‘Democracy’. My slant is that before one chooses to torture, taking Elaine’s point about it being practiced under the mantle of ‘authority’ – and thus for a ‘righteous cause’, one has to decide that this ‘being’ is worthy of such torture. In effect pre-empting any court case and subsequent judgement (hoping perhapse to be subsequently justified by the following guilty pronouncement). One has become police, judge and executioner all in one.
    What gives us the ability to judge that this ‘being’ is already guilty and must be tortured to prove our conclusions valid?
    Or are we happy to ‘ass u me’ that innocence is the price we pay for peace and eternal vigilance?
    Is not the essence of democracy the fetters we put on the animal of ‘power’?

  • Pierre De Vos

    Michael, I would argue that torture is torture and is always wrong. The ticking time bomb scenario is a nice debating topic but almost never happens in practice – although law enforcment agencies claim they do. But when do you know that the person to be tortured actually has information that, if extracted, would save the lives of thousands or millions? They would only know that the person has the information if they torture him or her first. In the very unlikely event of law enforcment personnell knowing that a person has such information, I would say that the torture would still be wrong, but that it might be difficult to prosecute the torturer who might have a defence of necessity available. It would be akin to shooting someone in self-defense, but it would, of course not always be easy to prove. And that is as it should be to protect us from people tortuyring.

  • Michael Osborne

    @ Pierre

    1. Unfortunately, the “torture is torture” line is unsupportable. To offer one example: spells in solitary confinement is sometimes the only non-violent way to keep certain uncontrollably violent prisoners under control. Yet, solitary is defined as a form of torture, at least if for more than a certain duration. (Two hours? Two days?) It is much, easier to be an absolutist from the comfort of an academic office, than if you are a prison administrator.

    2. On that note, I would have thought that facing life-imprisonment is itself to experience agonising mental torture. How does your “torture is torture” bright line formula help here?)

    3. The “ticking bomb” example tests whether you are really Kantian absolutist or a last-resort utililitarian, as Observer points out. Your ultimate answer suggests the latter. You say torture to save a city is akin to self defense. (The defense of “necessity” is probably closer.) The point, though, is that these are both exculpatory defenses — the perpetrator gets off scot free.

  • Gwebecimele

    Whilst we want to elevate torture and human dignity to a national debate there are more serious activities such as Hit List in Mpumalanga which should keep us awake all night.. I am a keen follower of SAfm Morning live show and I am still shocked by the murder of a regular caller ‘Bomber’ Ntshangase allegely murdered by ‘Tenderpreneurs”. He was a councillor in his local municipality and a SACP member. I have never met the guy but his positive contributions and his greeting style to Sinki ” Mama Mgabadeli” still rings in my head. May his soul rest in peace.

    A Mayor was also gunned down last weekend in Free State for similar reasons and the silence from the ANC and other stakeholders is shocking.
    Positions and tenders are slowly becoming a matter of life and death.

  • Brett Nortje

    Pekkil makes a very important point that hopefully will not be lost. A lot of cops simply do not have the skills in policing or detecting to do business in any other way than ‘the way we have always done it’.

    The ConCourt gave us guidelines very early on as to how effective policing and the rights culture go hand-in-glove.

    The ISS’ meddling with the SAPS has certainly not helped effective policing, but the real culprits who sabotaged the Constitutional Assembly’s technical committees and CODESA negotiators’ dreams of ‘never again’ are senior ‘members’. Both of the SAPS and Parliament.

    What kind of message is sent to the rank and file when from the Minister and the Commissioner on down through his spokespersons to the station level there is a conspiracy to deny that the Firearms Control Act contains compensation provisions?

    (A conspiracy many of you who consider themselves protaganists for the rights culture are part of…)

    What message is sent when firearm license renewals are 5 years overdue in a 5 year renewal process and the relicensing system has effectively collapsed, but the SAPS tell the Committee that has eventually woken up to their duty of parliamentary oversight that there is no problem?

    Who cheered while the cops became a law unto themselves again?

  • Brett Nortje

    I agree, Gwebecimele. (That was on Carte Blanche too.)

    It is absolute warlordism and the SAPS in many cases turn a blind eye.

  • http://n/a mayimele

    Be careful Gwebe. Not so long your name will be high on the list. And i do not think it will be difficult for Josh to catch up with you. Those who tried to advocate for investigations have either been killed, survived attempted murder and now silence, poisoned or arrested arbitrarily under the supervision of senior SAPS officials in the province and also at national level.

    But on a serious note, it does baffle the mind why this is not given the serious attention like the one we give to Julius Malema and his revolutionary antics.

    May be Prof should review this matter in this blog so it could be discussed thoroughly, even if it is a non-issue to the government.

  • Michael Osborne

    Chris, I think you are wrong. A private employer could indeed plead that he is not an organ of state.

    The definition in CAT speaks of pain or suffering “inflicted by or at the instigation of or with the consent or acquiescence or a public official or other person acting in an official capacity.”

  • Mpho

    But Michael we are in South Africa where the Bill of Rights says

    12. Freedom and security of the person

    Everyone has the right to freedom and security of the person, which includes the right ­
    a. not to be deprived of freedom arbitrarily or without just cause;
    b. not to be detained without trial;
    c. to be free from all forms of violence from either public or private sources;
    d. not to be tortured in any way; and
    e. not to be treated or punished in a cruel, inhuman or degrading way.

    Or are you still on that line that the Bill of Rights does not have horizontal application?

  • Michael Osborne

    Mpho, I was responding specifically to Chris, who I thought mistakenly attributed “horizontal” application to the Convention Against Torture.

    AS for the position under the SA constitution, what do you make of the fact that, whereas s. 12(c) specifies the right to be free from violence from “private sources,” (d) says nothing about the perpetrator of torture one way or another?

  • Anonymouse

    Pierre De Vos says:
    May 11, 2010 at 9:08 am

    I think you touched here on an important aspect – while torture would always be a crime, which is forbidden, one must also look at the defences that are available to someone that is prosecuted for a crime. One of the elements that must be proven is ‘unlawfulness’ (or ‘wrongfulness’). In terms of our law of delict (and criminal law), the test for unlawfulness or wrongfulness lies in the courts asserting the prevailing boni mores in a specific situation. Certain exceptions have in terms of this test crystalized, like you aptly state, self defence (rather ‘private defence’ – Afr ‘noodweer’); necessity; emergency (Afr ‘noodtoestand’). So, for example, it may be legally excused for an intoxicated person to drive a vehicle on a public road in order to save life or property or to escape an emergency.

    Then, there is also the defence of ‘putative absence of wrongfulness’ (e.g., ‘putative private defence’), where the accused person honestly (albeit wrongfully) believes that he/she is entitled to act in a certain way.

    In this light, certain instances of torture, even where proven to have been exerted, may be held to be ‘excusable’ to the extent that the accused person cannot be convicted of the crime charged. All the ellements of crimes (and delicts) need to be proven before a conviction will ensue, not only the actus reaus. This lends credence to the ‘ticking bomb’ argument.

  • Anonymouse

    Prof Dde Vos: One more thing to be added to my response above. As Michael Osborne points out directly under your previous post, those defences are exculpatory defences. So, even if torture is prohibited, both in our Constitution and as a crime, people who torture others may still come off scott free, which is support for the utilitarian theory. You say that such defences (private defence or necessity) may be difficult to prove, or “not always be easy to prove” and that “that is as it should be to protect us from people tortuyring (sic) [us]”. You must bear in mind that, in criminal proceedings, an accused person does not bear an onus, and probably never will in the light of the ‘reverse-onus’ decisions of the CC. The accused will therefore not have to prove that he tortured someone in private defence, or necessity, or that he truly believed that he was entitled to do so. The Prosecution will have to prove (beyond reasonable doubt) that he acted unlawfully and that his actions can be puinished because he had the requisite intent of committing the crime of torture.

  • Anonymouse

    Hey! I’ve just heard that my LLD thesis on the adjudication of international crimes (including the crime of torture) in national jurisdictions has been accepted by the internal and external examiners.

  • Chris

    Congratulations Dr. to be Anonymouse.

  • Mpho

    Well done ‘Mouse. That is great news!

  • Mpho

    Michael, I think 12 c. is making it clear that their is a positive obligation on the state to “police” violence in its many forms regardless of notions of public and private lives, accident blackspots, passivity towards bail applicants accused of violent crime, etc. Torture in its entirity is prohibited, and I’ve yet to hear of anyone say that one can take a back seat in relation to the policing of torture.

  • Mpho

    ‘Mouse, do you regard Torture as not being a form of violence? Because 12 c. is a non-derogable right in terms of the limitations clause. I’ve always regarded Torture as a more severe form of violence perpetuated by someone with the upper hand against someone who is marginalised. I’m confused as to why that would let the person get away with their torturing violence.

    I’m taking this issue inter-textually, and not getting caught up in the utilitarian v kantian debate.

  • Michael Osborne

    Mpho, you are guilty of over-constitutionalising, a fallacy Pierre to which has pointed in the past.

    If a criminal tortures his victim, you do not invoke s. 12 of the Const.

    You invoke the criminal law. Or the victim sues in delict.

    And see also the note I sent to Chris – the Convention against Torture restrains state action. Not employers or private criminals.

  • Anonymouse

    Mpho says:
    May 12, 2010 at 13:28 pm

    I agree with Michael Osborne says:
    May 12, 2010 at 14:26 pm

    While the right not to be subjected to torture is a non-derogable right, and the state has no right to ‘authorise’ torture, the criminal (or the defendant) who has committed torture would still have all the traditional defences available to secure an acquittal (or a dismissal of action).

  • Maggs Naidu

    Anonymouse says:
    May 12, 2010 at 14:50 pm

    “the right not to be subjected to torture is a non-derogable right”

    Hey Mouse,

    Surely the incarceration of prisoners, at some of our worst facilities, is torture.

    It’s one thing to deprive criminals of their freedom, but quite another to jail them under the most horrific of conditions.

  • Anonymouse

    Maggs Naidu says:
    May 12, 2010 at 14:59 pm

    Short answer – Incarceration is not defined as torture. God help us all whenever it is defined as such.

  • Michael Osborne

    @ Mousy:

    I think Maggs’ point was that incarceration in appalling conditions could plausibly be defined as torture.

    That goes to out earlier discussion; Pdv’s definitional absolutism (“torture is torture,”) is not sustainable.

    PS. Congrats on thesis!

  • Maggs Naidu

    Michael Osborne says:
    May 12, 2010 at 15:25 pm


    If animals were kept under the same conditions that some prisoners are kept in, the SPCA, PETA and the like would have hauled the authorities before every conceivable legal body.

    It is cruel and inhuman punishment.

    I reckon that if some smart lawyer challenged the constitutionality of keeping people under the conditions in some of our worst prisons, that the application would probably succeed.

  • Maggs Naidu

    Anonymouse says:
    May 12, 2010 at 15:11 pm–admits-government

    Violence in prisons out of control, admits government

    – Chronic staff shortages and unmanageable shift systems are fuelling violent crime in prisons.

    – Violence in prisons is so frequent that the prisons inspectorate is struggling to pursue all its investigations, Parliament’s committee on correctional services heard yesterday.

    – Staff shortages, and a shift system that sometimes resulted in only half of the warders required being on duty, contributed to the frustration of prisoners because they resulted in prisoners being locked in their cells for 23 hours at a time.

    – The department reported to Parliament that at least 40% of all deaths in prison were suicides.

  • Anonymouse

    Anonymouse says:
    May 12, 2010 at 15:11 pm

    That might be so – but what’s the alternative? Free-for-all-zones? Abandonment of criminal law and punishment? Let the fittest survive! Prison is primarily an institute for punishment, not cure. Whilst I will agree that government should build more prisons and employ more wardens, and improve a little on bedding and food for inmates, so as to minimise the overcrowding of prisons and the appalling conditions in some of them, I cannot agree with: “Help us raze!? … raze the prisons to the ground?” – philosophy; or, for that matter, a major amnesty for inmates every few years. But then again – some animals (e.g., Shabir Shaik) are more equal than others, and the appalling conditions do not affect their incarceration (or is that hospitalization?) – Where would the SPCA, PETA (what about the Human Rights Commission while we’re talking about humans?) and the likes draw the line? To torture or not to torture, that is the question. Not to pet, or not to pet. With criminals – a ‘gloves-off’ approach is generally required.

  • Brett Nortje

    Maggs, having a lucidem intervallum????

    Prisons should be a place of contemplation repentance rehabilitation and salvation not gladiator academies where the fittest survive and the weakest are brutalised raped and murdered. WE are responsible for those people since in theory they are under OUR control.

    Our prisons are a freaking disgrace. Would you be happy with those kinds of results from your dog’s obedience school?

    I am glad you drag the do-nothing HRC into the fray, Mouse. They are a freaking disgrace too.

  • Maggs Naidu

    Anonymouse says:
    May 13, 2010 at 8:33 am

    “That might be so – but what’s the alternative?”

    Hey Mouse,

    The alternative is a rather simple one, that is that the system must ensure that people in Correctional Services and the judiciary, do what they are employed and paid to do.

    “Prison is primarily an institute for punishment, not cure.”

    Our national policy and act seem to take a different view (on paper anyway).

    The Correctional Services Act says, among other relevant things, that :

    “2. Purpose of correctional system.—The purpose of the correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by—
    (a) enforcing sentences of the courts in the manner prescribed by this Act;
    (b) detaining all prisoners in safe custody whilst ensuring their human
    dignity; and (c) promoting the social responsibility and human development of all prisoners and persons subject to community corrections.”

    Chapter 4 of the White Paper on Corrections says, among other relevant things, that :

    “4.1.2 The responsibility of the Department of Correctional Services is not merely to keep individuals out of circulation in society, nor to merely enforce a punishment meted out by the court. The responsibility of the Department of Correctional Services is first and foremost to correct offending behaviour, in a secure, safe and humane environment, in order to facilitate the achievement of rehabilitation, and avoidance of recidivism.”

    Our judiciary has a duty to ensure that when they sentence prisoners to jail terms, that the state is able to incarcerate convicted criminals in accordance with our constitution, the national policy and legislation.

    I agree with your comment that the HRC also has abdicated its duty and responsibility in this regard.

    If the drafters of our constitution wanted a “gloves-off” approach to the treatment of prisoners, then that would have been said – something to the effect of “… not to be treated or punished in a cruel, inhuman or degrading way, except criminals incarcerated in a correctional facility, who because of their own criminal actions may be brutalised by the authorities, the correction system and/or fellow prisoners …”.

    While I don’t have much sympathy for prisoners, consider that many at some stage are released back into society, inspired by their “corrected” behaviour.

  • Maggs Naidu

    Brett Nortje says:
    May 13, 2010 at 9:11 am

    Hey Brett,

    It seems that you had your “concentrate” today – well done.

  • Brett Nortje

    Another thing we ought not to forget is that the Courts are ultimately the guardians of the prison population.

  • Steven

    There is simply one way to look at the prison issue – what if you were wrongly incarcerated, how would you like to be treated?
    Apply the same logic to torture.

  • Mikhail Dworkin Fassbinder

    @ Brett

    “The Courts are ultimately the guardians of the prison population.”

    Brett, that may be so, but the fact is that the judiciary is sometimes quite slow in exercising its guardianship role.

    That is why I am demanding that each prisoner be furnished, at state expense, with a small calibre firearm, for the duration of his incarceration. That will equip prisoners to defend themselves from the daily threat to their dignity posed by male rapists. Also, once the playing fields are levelled, there will be less opportunity for torture and other abuse by prison guards.

    Will you support my campaign, Brett?

  • Chris

    Mikhail Dworkin Fassbinder says:
    May 13, 2010 at 9:47 am

    LOL there will be no one to torture at the end of the day!

  • Anonymouse

    Maggs Naidu says:
    May 13, 2010 at 9:19 am

    Maggs – I know that is what the relevant law and whitepaper state. However, in S v Lister 1993(2) SACR 228 (A) at 232g Nienaber JA (writing for the Court): “Prison, one knows, is not a congenial place and conditions may be well less than ideal for psychotherapy. But then, a prison is primarily an institution of punishment, not cure.”

    Whan a court sentences a person to imprisonment, it is alive to the apalling (inhumane) conditions in prison and the poor chances of reformation, but often, or rather all the time when a court imposes a gaol sentence, it has no choice but to do so in terms of the law, which is binding. Much the same as (excusable)torture in the ‘ticking-bomb’ example above.

    The ‘Buck’ starts at Parliament, and it stops there. So Parliament must provide the funds, and the legislation to keep a healthy criminal legal system in place, one that can pass muster constitutional scrutiny. The courts cannot do that on behalf of Parliament. (And then Parliament goes and prescribes minimum sentences in some cases! Preposterous!)

  • Anonymouse

    Mikhail Dworkin Fassbinder says:
    May 13, 2010 at 9:47 am

    I’ll suport your campaign any day, since it will also support and enhance my right to own a gun.

  • Maggs Naidu

    Anonymouse says:
    May 13, 2010 at 10:18 am

    1993 is before the modern ages, so I’ll pass that one by.

    “it has no choice but to do so in terms of the law, which is binding”.

    What stops the courts from engaging Correctional Services prior to sentencing prisoners or ensuring that prisoners who are sentenced to jail terms, do so in correctional facilities that meet the expectations of the law?

    Where’s our activist judges?

    The buck for funding may well start and stop with parliament.

    But the buck for sending prisoners to those awful places stops with the judges – it just cannot be that judges are powerless in the face of such conditions.

  • Pierre De Vos
  • Chris

    Pierre De Vos says:
    May 13, 2010 at 11:47 am

    It could be true.

    I have a story, fortunately not as horrifying.

    Earlier this year I received a phone call from my brother. His gardener, a 19 year old boy had been arrested for assault. He had bitten another boy on the finger, no serious injuries. My brother went to court on the first appearanced and asked the control prosecutor about the possibility of bail. She didn’t even look up from the docket she was reading and just replied: “He will rot in jail until the police confirm his address.” From there on she totally ignored him. The case was postponed if my memory serves me well for more than 3 weeks so the police could confirm the address. At the next appearance the address had not been confirmed, but the employer was in court again. Another 3 weeks for confirmation of the address. He went to the prison to try to speak to the accused, and after 3 hours left without seeing him. I made calls to the Legal Aid Board trying to an attorney for the boy and perhaps a bail application. After 6 weeks in jail, a Public Defender for the accused but still no mention of a bail application the case was withdrawn by the prosecutor. No reason given, but apparently lack of evidence or de minimus.

    That is not what I pay tax for.

  • Gwebecimele

    Well, this is more evidence of how “Efficient” our NPA has been since its formation. High conviction rates and careful selection of cases are not the only indicators of a succesful justice system. Probably there are more than 10 000 Lawrence’s out there who have been abandoned even by those who parade themselves as promoting “Freedom under Law”, ‘Human Rights’ etc.
    Every now and then we parade Judges infront of the nation and give them labels based on our own interests without holisticly evaluating them based on how good are they for the majority of our citizens.

  • Maggs Naidu

    Gwebecimele says:
    May 13, 2010 at 13:25 pm

    “Probably there are more than 10 000 Lawrence’s out there who have been abandoned even by those who parade themselves as promoting “Freedom under Law”, ‘Human Rights’ etc.”

    The FUL website says that : “Freedom Under Law has been created as a not-for-profit organisation in order to promote democracy under law and to advance the understanding and respect of the rule of law and the principle of legality.”

    Its concern ” “Freedom Under Law views with great concern the reported appointment as an acting judge in the Northern Cape of Adv Mpshe, a legal practitioner in permanent State employ. The appointment of a civil servant as a temporary judge fundamentally disregards the division of powers entrenched in South Africa’s Constitution, and is in conflict with the leading judgment on the point in the SADC region.”


    Who the #@$^! is Lawrence?

    Why should “respect of the rule of law and the principle of legality” be concerned with Lawrence?


  • Mikhail Dworkin Fassbinder

    Gwebe and Maggs are right.

    FUL’s complete lack of interest in the fate of Lawrence proves that it is a RACIST LIBERAL coalition, whose only interest is in persecuting our JP and harassing the the govt!

  • Brett Nortje

    Dworkius, thank you for your puerile contribution. It provides me another opportunity to jump on the soapbox.

    Firstly, it is wrongheaded in the extreme to focus on the gun not what the person who has it is doing with it. I could care less whether a kid in Orlando has 100 illegal firearms if he does not victimise anyone with them. Guns are property. The Constitution protects the ownership of property.

    Before I continue this lecture, has everyone forgotten Willem DuBuisson?

  • Mikhail Dworkin Fassbinder

    Brett, Maggs says that I derive all of my so-called “wisdom” from Chappie’s paper. Fact is, these humble waxed scraps include some of the most profound words in the great treasury of Western learning.

    I will never forget the one ol’ wrapper that reads:

    “Guns don’t kill people. People kill people.”

    Is this more or less what you are trying to say?

  • Elaine Bing

    Of course the story of Lawrence can be true. I have spoken to a number of policemen who are guilty of similar behaviour. Torture goes wrong, the torturer loses control, “forgets” the gun is loaded, etc, etc. Torture didn’t just happen during apartheid, it is endemic in a number of police stations I suspect. I get too many stories for it to be unusual.

  • Maggs Naidu

    Mikhail Dworkin Fassbinder says:
    May 13, 2010 at 19:01 pm

    Hey Dworky,

    Not nice!

    It’s wrong for you to try to make Brett seem goofy – you’re really undermining his own efforts at that.

    Here’s the thing which suggests the depth of his wisdom “I could care less whether a kid in Orlando has 100 illegal firearms if he does not victimise anyone with them.”

    If the one of these two kids had the sense to take that into consideration the tragedy would not have happened :

  • Brett Nortje

    Maggs, this link that you posted: Are you trying to draw our attention to the air crash? The homicidal little girl who stabbed a baby with a fork? Do you propose banning forks?

    The two Nongoma police ‘members’ jailed for armed robbery? Are you trying to make a point about the 10 000 police ‘members’ serving time, to support my often-stated view that proponents of gun control should shut up and sit down until gun owners start abusing firearms in property crimes and crimes of passion at the rate members of the SAPS do?

    How is this url relevant?

  • Brett Nortje

    Dworky, some of the most profound words in the great treasury of Western learning are to be found in dictionaries. Try to look up ‘apostrophe’ and how and where to use it, there’s a good chap….

  • Brett Nortje

    OK, so everyone is pretending to have forgotten about Willem DuBuisson, who was talked into pleabargaining for a 15-year sentence for making jackal-trapguns by his legal-aid lawyer, making property being constitutionally-protected conduct?

    At that while ‘everyone’ is pontificating about legal-aid lawyers?

  • Maggs Naidu

    Hey Brett,

    Have more 100% concentrate – you need a refresher course. You were doing ok for a while.

    “A four-year-old Vereeniging boy was shot dead, allegedly by his 10-year-old friend playing with his father’s gun, on Wednesday afternoon, Gauteng police said” is what the link is about.


  • Brett Nortje

    Dworky, anyone who is deprived of their freedom due to a prison sentence has had the benefit of due process. (That is why we do not lock up prison officials for kidnapping…) That prisoner might very well have been ordered by the Court that he is unfit to own a firearm, also through due process.

    That is quite a different animal from arbitrary deprivations of freedom or firearms, not least because the prisoner as part of the process could oppose these deprivations and assert his right to be heard.

    An example of an arbitrary deprivation of the right to own a firearm would have been had the resident ISS sheep’s submission to the Parliamentary portfolio Committee succeeded and had the Amended FCA required gun owners to go for regular eye-tests. (As an aside, government tried to cut a deal to extricate themselves from the Firearms Control Act when it became patently obvious that the FCA was unimplementable, a Billion-Rand black hole. We told them to get stuffed….)

    Admittedly, the line between arbitray action and due process does get blurred in the unconstitutional FCA. The FCA, for example, provides that an illiterate Designated Firearms Officer may impose ‘administrative’ sanctions on gunowners that exceeds the punitive jurisdiction of the Magistrates Court.

    Now, dear little Dworky, do you understand the difference between due process and arbitrary action and how a prisoner can lawfully be deprived of some of his rights by due process?

  • Brett Nortje

    Maggs, the link in the email updates does not direct one to that report.

    I lost my best friend in a shooting accident while we were first years at RAU.

    All I can say is that annual accidental shooting deaths almost never reach double figures.

  • Maggs Naidu

    try it again – maybe something in your cache or something. It takes me straight to the story from different computers.

  • Brett Nortje

    The link works from the blog if not the email updates.

  • stalin

    Funny how this article was writtent a year ago where our beloved president speaks of a people are innocent until proven guilty by a court of law when he himself authorises mental torture of individuals and label them guilty for crimes not done or guilty without ability to defend themselves in a court of law and taking away every right they have invasion of privacy takinh their dignity keeping them from their money and assets