An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
REPUBLIC OF SOUTH AFRICA
Head of state and government: Jacob G. Zuma (replaced
Kgalema Motlanthe in May)
Death penalty: abolitionist for all crimes
Population: 50.1 million
Life expectancy: 51.5 years
Under-5 mortality (m/f): 79/64 per 1,000
Adult literacy: 88 per cent
Increased incidents of torture and extrajudicial executions by police were reported. Refugees and migrants continued to suffer discrimination and displacement in large-scale incidents of violence. Advocates of housing rights were threatened and attacked with impunity. High levels of violence against women and girls were reported, along with failures by the authorities to provide adequate support to survivors of such abuse. An estimated 5.7 million people were living with HIV, with women continuing to be disproportionately affected.
Elections in April resulted in a new government under the African National Congress (ANC) President, Jacob Zuma. The ANC secured 65.9 per cent of the vote and control over eight of the nine provinces. An Independent Electoral Commission official in KwaZulu-Natal province was prosecuted for forgery and violating the electoral code, the first such case since 1994.
Persistent poverty, rising levels of unemployment and violent crime, together with the crisis in the public health sector, posed significant challenges for the new government. Political tensions emerged within the ANC, the trade union congress and Communist Party alliance over economic policy, with frequent trade union-led workers’ strikes. Corruption and nepotism impeded community access to housing and services, and led to the collapse of some municipal governments and to widespread protests among affected communities. The volatile situation contributed to increased incidents of violence against foreign nationals, who were perceived as competing for scarce economic resources.
Political developments continued to affect the independence and integrity of the administration of justice. In April, the Acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, withdrew corruption charges against Jacob Zuma on grounds of
improper interference in the case. In August, the Judicial Services Commission (JSC), without a formal hearing, ruled that the Judge President of the Western Cape High Court, John Hlophe, was not guilty of gross misconduct after an apparent attempt to influence two judges preparing a judgement affecting the case against Jacob Zuma. A minority of JSC members disagreed with the ruling.
In November, President Zuma appointed Menzi Simelane as NDPP. He had previously been under disciplinary investigation by the Public Service Commission (PSC) after the Ginwala commission of inquiry found his testimony untruthful and without basis in law. The PSC findings had not been made public by the end of the year.
Torture and other ill-treatment
Incidents of torture and other ill-treatment by police of detained crime suspects were reported. Corroborated cases included the use of suffocation and electric shock torture. Incidents of torture rose, according to the police oversight body, the Independent Complaints Directorate (ICD). From April 2008 to March 2009 they investigated 828 incidents of assault with intent to cause grievous bodily harm, some of which amounted to torture. Suspects in several cases were interrogated and assaulted while held without any record of their arrest. Despite continuing efforts by the South African Human Rights Commission and civil society organizations, South Africa did not ratify the Optional Protocol to the Convention against Torture.
The Judicial Inspectorate of Prisons received over 2,000 complaints of assaults against prisoners by prison warders between April 2008 and March 2009. In October, a provision in the new Correctional Services Amendment Act, which compels prison officials to report any use of force to the Inspecting Judge immediately, became operational. Overcrowding remained a serious problem, with
19 prisons “critically overcrowded”.
Sidwel Mkwambi died in February while in the custody of the Bellville South Organized Crime Unit (OCU). Police claimed he had jumped out of a moving police vehicle, but his injuries were not consistent with their claims. In May, the provincial minister for police ordered them to co-operate with the ICD-led investigation. The ICD referred the case to the prosecuting authorities for a decision on charges against 14 members of the OCU.
In September, the Minister of Police and the National Commissioner of Police announced legislative and other measures to respond with maximum force against armed criminals and perpetrators of attacks against police officers. In June, the ICD reported a 15 per cent increase in deaths in custody and “as a result of police action” over the past two reporting years. KwaZulu-Natal province showed the highest increase, 47 per cent, from 175 to 258 deaths.
Bongani Mkhize, chairperson of the Maphumulo Taxi Association, was shot dead by members of the National Intervention Unit on 3 February, allegedly after he opened fire on them. His death, which appeared to be linked to investigations into the murder of a police commissioner, occurred despite a ruling three months earlier by the Durban High Court restraining police from “unlawfully killing” him. The court heard evidence that his name was on a list of suspects, all of whom by October that year had been shot dead, several after being arrested and interrogated by the police.
An unidentified man was shot dead on 29 October in Durban while apparently fleeing the police after a suspected vehicle theft. Witnesses heard gunshots and saw his body hanging on a security fence near an apartment building. The police attempted to mislead independent investigators and also told the media that he had electrocuted himself on the fence. However, medical evidence indicated he died from a high velocity gunshot injury to his spine. There was no evidence of electrical injury.
Right to adequate housing – forced evictions
In September, leaders and supporters of the community-based economic and social rights movement, Abahlali baseMjondolo (Abahlali), fled their homes in the Kennedy Road informal settlement near Durban, following an attack by armed men. Their houses were destroyed and they were threatened with further violence. The attackers identified their targets by name and in ethnic terms,
as amaMpondo (Xhosa-speakers). Subsequently 13 Abahlali supporters, all Xhosa-speakers, were arrested and charged in connection with the deaths on 27 September of two men during the night of the attack. However, no charges were brought against anyone for the attacks on Abahlali supporters. By the end of the year, one of the 13 arrested Abahlali supporters had charges against him withdrawn, and 12 still faced charges, with seven of them released on bail.
In October, the Constitutional Court declared section 16 of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act 6 (2007) to be inconsistent with the Constitution and invalid. The case against the Act had been brought in the courts by Abahlali in 2008. The October ruling affected thousands of people living in informal housing and with insecure land tenure. Despite the impact of their successful litigation, Abahlali’s community-based work remained severely disrupted by the violent events of September.
Refugees and migrants
Violations of the rights to life and physical integrity of refugees and migrants, and attacks on their property, occurred throughout the year. Incidents of violence led to large-scale displacements of non-national communities in De Doorns, Siyathemba/Balfour and Polokwane, along with other serious incidents elsewhere. Somali and Zimbabwean nationals were particularly targeted. The police response to incidents varied from complicity or negligence to, in some cases, a visible effort to prevent violence from escalating. Towards the end of the year the work of civil society and humanitarian organizations was beginning to achieve an improved police emergency response.
President Zuma publicly condemned xenophobia and the destruction of property of foreign nationals. Progress was made in drafting a National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. Durable solutions remained difficult to achieve for some displaced refugees, particularly from conflict countries. Incidents of forcible returns continued to occur.
The political and economic crisis in Zimbabwe fuelled the flow of migrants and asylum-seekers into South Africa. In April, the government introduced a 90-day visa-free entry for Zimbabweans and announced plans for immigration permits for Zimbabweans already in the country. The permits had not been implemented by the end of the year. An informal shelter for Zimbabweans in the border town of Musina was abruptly closed in March, with many occupants seeking shelter in Johannesburg, particularly at the Central Methodist Mission (CMC). By the end of the year, several thousand Zimbabweans were still sheltering at the CMC with the authorities failing to meet their humanitarian needs.
In July, the police arrested hundreds of mainly Zimbabwean nationals for “loitering” near the CMC. Medical evidence indicated that in some cases the detainees had been beaten, kicked, pepper sprayed and shocked with electric stun guns. Some were verbally abused as makwerekwere (foreigners) by police. All 350 detainees were released uncharged three days later. In October, the CMC and Lawyers for Human Rights sought an order in the High Court declaring the arrests unlawful and prohibiting the further use of the anti-loitering municipal by-law. The case was ongoing at the end of the year.
Violence against women and girls
A new ministry for Women, Youth, Children and People with Disability was announced. High levels of violence against women and girls continued to be reported, although comparisons with previous years were difficult due to the changed legal framework for recording these crimes. Police figures for the year ending March 2009 indicated a 10.1 per cent increase in sexual offences, including rape, against adults and children, with over 30,000 against women 18 years or older.
In June, the South African Medical Research Council published results of a survey showing that more than two fifths of the men interviewed had been physically violent to an intimate partner. The ICD reported to Parliament in February that its inspection of 430 police stations showed many were failing to comply with their obligations under the Domestic Violence Act (DVA). There were also a number of substantiated complaints brought against the police, including failing to arrest the perpetrator for non-compliance with a Protection Order, to advise complainants of their options under the DVA and for “chasing away” complainants.
NGOs and support organizations reported that the police had not received adequate or in some cases any training on their obligations under the sexual offences and domestic violence laws. By the end of the year, the authorities had established 17 out of
the targeted 50 planned one-stop centres for the provision of treatment, support and access to justice for survivors of gender-based violence. In July, the Minister of Police announced he would review the decision to close the specialized family violence and
sexual offences units. Research confirmed that the decision in 2006 to close the units led to a deterioration in services and a reduced rate of arrests and convictions.
In November, the Equality Court reserved judgement in a complaint of hate speech brought by the NGO Sonke Gender Justice. The complaint was brought against the ANC Youth League president, for public comments which appeared to denigrate women who reported being raped.
Right to health – people living with HIV/AIDS
An estimated 5.7 million people were living with HIV, according to UNAIDS. By July the number of AIDS patients receiving antiretroviral treatment (ART) had increased to an estimated 870, 000, about half of those who needed it. Poor government planning and staffing shortages left some hospitals with shortages of ART drugs and unable to start treatment for new patients. In October, the budget allocation for HIV drugs was increased.
Women continued to be disproportionately affected and infected by HIV and AIDS. In June the South African Human Sciences Research Council’s national HIV prevalence survey showed that 15- to 19-year-old females had a prevalence rate of over six per cent, more than twice the rate for males of the same age group, and rising to over 32 per cent among 25- to 29-year-old women. African women aged 20 to 34 years were identified as the population group most at risk in the country.
On 1 December, World AIDS Day, the government announced a new drive to scale up voluntary HIV testing, among other new measures to combat the epidemic.
Following civil society protests, the government confirmed in August that it would act on the International Criminal Court arrest warrant against the President of Sudan if he travelled to South Africa, despite the position taken at the African Union Heads of State and Government Summit in Sirte, Libya in July.
In December, human rights organizations sought an order in the Pretoria High Court declaring unlawful the South African authorities’ decision not to initiate an investigation into alleged crimes against humanity committed in Zimbabwe by individuals known to travel to South Africa.
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Amnesty International visits/reports
Amnesty International delegates visited South Africa in March, July/August and November.
Human rights concerns in South Africa: Memorandum sent to the South African government, August 2009 (AFR 53/008/2009)
South Africa: Failure to conduct impartial investigation into Kennedy Road violence is leading to further human rights abuses