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The Criminalization of Torture in South Africa

Published online by Cambridge University Press:  16 September 2015

Lovell Fernandez  and
Lukas Muntingh
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Abstract

This article describes the politics related to the criminalization of torture in South Africa. It studies the differences between torture as an international crime and as a crime under international human rights law. The South African anti-torture law is analysed and critiqued against the standards and provisions set out in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The article recommends amendments to the South African law, aimed at making the combating of torture more effective.

Type
Research Article
Information
Journal of African Law , Volume 60 , Issue 1 , February 2016 , pp. 83 - 109
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Copyright
Copyright © SOAS, University of London 2015 

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References

1 Sec 11 provides: “Freedom and security of the person: (1) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial. (2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.”

2 Act 13 of 2013.

3 Opening of Parliament address by President Mandela, 17 February 1995, Cape Town.

4 See du Plessis, A and Louw, A “Crime and crime prevention in South Africa: 10 years after” (2005) 2 Canadian Journal of Criminology and Criminal Justice 427CrossRefGoogle Scholar at 437. See also Schönteich, M “Criminal justice policy and human rights in the new South Africa” (2003) 3 Queensland University of Technology Law Review 1Google Scholar at 3.

5 See Independent Complaints Directorate (ICD) “Annual report 1998–99” at 24–26 and ICD “Annual report 2000–01” at 2.

6 See JB Niyizurugero (ed) Preventing Torture in Africa (proceedings of a joint Association for the Prevention of Torture and African Commission on Human and Peoples’ Rights workshop, Robben Island, South Africa, 12–14 February 2002) (2003, Association for the Prevention of Torture). The guidelines are the first instrument in the African system for the protection of human rights, specifically designed to combat torture.

7 Res 61 (XXXII) 02: “Resolution on guidelines and measures for the prohibition and prevention of torture, cruel, inhuman or degrading treatment or punishment in Africa” (2002).

8 See Fernandez, L “Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (2005) 1 Law, Democracy and Development 136Google Scholar; L Muntingh Guide to the UN Convention against Torture in South Africa (2005, Civil Society Prison Reform initiative, Community Law Centre, University of the Western Cape); Muntingh, L and Fernandez, L “A review of measures in place to effect the prevention and combating of torture with specific reference to places of detention in South Africa” (2008) 24 South African Journal on Human Rights 123CrossRefGoogle Scholar; L Muntingh “Children deprived of their liberty: Protection from torture and ill treatment” in A Van Niekerk, S Suffla and M Seedat (eds) Crime, Violence and Injury in South Africa: 21st Century Solutions for Child Safety (2012, Psychological Society of South Africa) 162, available at: <http://www.mrc.ac.za/crime/Chapter12.pdf> (last accessed 1 March 2013); Muntingh, L L and Satardien, Z “Sexual violence in prisons – Part 1: The duty to provide safe custody and the nature of prison sex” (2011) 24 South African Journal of Criminal Justice 1Google Scholar; Muntingh, L “The betrayal of Steve Biko: South Africa's initial report to the UN Committee against Torture and responses from civil society” (2008) 1 Law Democracy and Development 178Google Scholar. See also D Bruce “Police brutality in South Africa” in N Mwanajiti, P Mhlanga, M Sifuniso, Y Nachali-Kambikambi, M Muuba and M Mwanayanda (eds) Police Brutality in Southern Africa (2002, Afronet) 101.

9 Truth and Reconciliation Commission Report (1998, Juta & Co), vol 2, chap 3, para 220. For torture under apartheid, see also D Foster, D Davis and D Sandler Detention and Torture in South Africa (1987, James Currey) at 1–35; and L Fernandez “Police abuses of non-political criminal suspects: A survey of practices in the Cape Peninsula area” (Institute of Criminology UCT Research Report Series, report 1–91).

10 NS Rodley and M Pollard The Treatment of Prisoners under International Law (2009, Oxford) at 44.

11 Mthembu v S (64/2007) [2008] ZASCA 51, para 22.

12 Id, para 32.

13 CAT/C/SR.739, para 57.

14 See Bradley McCallum v South Africa comm no 1818/2008, UN doc CCPR/C/100/D/1818/2008 (2010), paras 2.5 and 2.9.

15 ICCPR, art 7: “No-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no-one shall be subjected without his free consent to medical or scientific experimentation.”

16 Telephone interview with Ms J Cohen, parliamentary programme, SA Human Rights Commission, 3 December 2011 (copy on file with the authors).

17 CCPR/C/100/D/1818/2008, para 4.

18 Parliamentary Monitoring Group (PMG) report on the meeting of the Parliamentary Portfolio Committee on Correctional Services on 29 November 2011, available at: <http://www.pmg.org.za/report/20111130-stakeholder-hearings-prevalence-torture-correctional-centres> (last accessed 28 December 2011).

19 “South Africa: OMCT calls for the effective implementation of the decision of the Human Rights Committee for acts of torture and other forms of ill-treatment” (26 November 2012), available at: <http://www.omct.org/monitoring-protection-mechanisms/statements/south-africa/2012/11/d22041/> (last accessed 20 August 2013).

20 PMG report on the meeting of the Portfolio Committee on Police of 3 August 2010, available at: <https://pmg.org.za/committee-meeting/11782/> (last accessed 13 August 2015).

21 For example, in July 2012, two NGOs, the Civil Society Prison Reform Initiative and the National Institute for Crime Prevention and the Reintegration of Offenders, made a joint submission. See, for example, Civil Society Prison Reform Initiative “Submissions on Combating of Torture of Persons Bill” [B 21 of 2012, 31 July 2012] at 1.

22 L Muntingh and L Fernandez (2006) “Civil Society Prison Reform Initiative submission to the UN Committee against Torture, in response to ‘Republic of South Africa: First country report on the implementation of the Convention Against Torture, and Other Cruel, Inhuman and Degrading Treatment or Punishment’”, available at <www2.ohchr.org/English/bodies/cat/docs/CSPRI.doc> (last accessed 31 July 2015).

23 CAT/C/ZAF/CO/1, para 28.

24 PMG report on the meeting of the Portfolio Committee on Justice and Constitutional Development on 4 September 2012, available at: <https://pmg.org.za/committee-meeting/14822/> (last accessed 16 August 2015).

25 PMG report on the meeting of the National Council of Provinces Standing Committee on Security and Constitutional Development on 20 May 2013, available at: <https://pmg.org.za/committee-meeting/15878/> (last accessed 8 August 2013).

26 Act no 13 of 2013 Government Gazette no 36716 of 29 July 2013.

27 See Act No 2008-008 against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts 1, 2 and 4.

28 See of the Prevention and Prohibition of Torture Act No 3 of 2012, arts 2, 3, 4 and 7.

29 See Redress Trust Torture in Africa: The Law and Practice (2012, Redress Trust) at 14.

30 See “The United Nations welcome that ‘Criminalization of torture in the DRC is moving forward’”, available at: <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13517&LangID=E> (last accessed 13 August 2015).

31 See Redress Trust Torture in Africa, above at note 29 at 12–14. At the regional level, the African Commission on Human and Peoples’ Rights commenced work in late 2014 on a general comment on art 5 of the African Charter on Human and Peoples’ Rights, with specific reference to torture and providing redress to victims of torture. See “Concept paper on the development of a general comment on article 5 of the African Charter on Human and Peoples’ Rights” at 1–5, available at: <http://www.achpr.org/files/news/2015/05/d182/concept_paper.pdf> (last accessed 13 August 2015).

32 See A Cassese International Criminal Law (2nd ed, 2008, Oxford) at 6; Jessberger, F “Bad torture: Good torture” (2005) 3 Journal of International Criminal Justice 1059CrossRefGoogle Scholar at 1068 and 1071; G Werle Principles of International Criminal Law (2nd ed, 2009, Asser Press) at 45–47.

33 Cassese, ibid.

34 See Prosecutor v Delalić and Others ICTY TC II, 16 November 1998 (IT-96-21-T), para 459; and Prosecutor v Furundžija judgment no IT-95-17/1-T, trial chamber, 10 December 1998, para 11. However, in Prosecutor v Kunarac and Others, IT-96-23/-23/1-T, trial chamber, 22 February 2001, para 482, the trial chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) stated that the definition of torture in UNCAT “cannot be regarded as the definition of torture under customary international law which is binding regardless of the context in which it is applied”. The Appeals Chamber confirmed this view, though in a differentiated way, stating that the UNCAT definition of torture “reflects customary international law as far as the obligation of states is concerned” and “must be distinguished from an assertion that this definition wholly reflects customary international law regarding the meaning of the crime of torture generally”: IT-96-23/-23/1-A, Appeals Chamber, 12 June 2002, para 147. While this decision has been followed in subsequent decisions of the ad hoc tribunals (see, for example, Prosecutor v Semanza ICTR-97-20, Appeals Chamber, 20 May 2005, para 248 and Prosecutor v Limaj et al IT-03-66, trial chamber, 30 November 2005, para 240), the ad hoc tribunals have, in earlier decisions on the question of “pain and suffering” considered reports of the UN Human Rights Committee as well as the case law of the European Court of Human Rights. For a criticism of the Kunarac judgments, see Gaeta, P “When is the involvement of state officials a requirement for the crime of torture” (2008) 6 Journal of International Criminal Justice 183CrossRefGoogle Scholar at 188, note 10. See also, generally, on the ius cogens [peremptory norm] status of torture under international human rights law, Cassese, id at 151–52.

35 See the South African Supreme Court of Appeals decision in Mthembu, above at note 11, paras 30–32, and the decision of the High Court of Kenya in Wakaba and Others v Attorney General (final judgment) Oxford Reports on International Law in Domestic Courts ILDC 1543 (KE 2010), paras 34–37.

36 The first reference of the European Court of Human Rights to the definition of torture in UNCAT was in Selmouni v France (2000) 29 EHRR 403, para 100. See also Ilhan v Turkey (2000) 7 EHRR 36; Turkey (2000) 34 EHRR 17. The African Commission on Human and Peoples’ Rights adopted the UNCAT definition of torture in Zimbabwe Human Rights NGO Forum v Zimbabwe, AfrCommmHPR, comm no 227/1999, 33rd session, 15–19 May 2003, para 70.

37 See the early cases of Prosecutor v Akayesu ICTR-96-4, trial chamber, 2 September 1998, para 681 and Delalić, above at note 34, para 459. However, since the judgments in Kunarac, above at note 34, UNCAT's influence has diminished very significantly. For a full discussion, see C Burchard “Torture in the jurisprudence of the ad hoc tribunals” (2008) 6 Journal of International Criminal Justice 159 at 162–63.

38 Nowak, M “What practices constitute torture? US and UN standards” (2006) 28 Human Rights Quarterly 810CrossRefGoogle Scholar at 830.

39 ICC Statute, art 7(2)(e).

40 Id, arts 7(1) and 7(2). Torture is listed in art 7(1)(f) as part of the definition of a “crime against humanity”. Art 30 stipulates generally that criminal responsibility is incurred only if the material elements of the crime “are committed with intent and knowledge”.

41 Rodley, NS “The definition(s) of torture in international law” (2002) 55 Current Legal Problems 467CrossRefGoogle Scholar at 492. See also CK Hall in O Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (2nd ed, 2008, CH Beck) at 254 (art 7, note 481) who wonders whether, given the anarchic, random and purposeless way in which crimes against humanity have been committed in the past few decades, often by neighbours and completely undisciplined forces, far removed from any conduct or acts aligned to carrying out a state's or organization's policy, conceptual consistency (ie by including the purposive element) might not be to the detriment of victims. K Ambos Internationales Strafrecht [International Criminal Law] (4th ed, 2014, CH Beck) at 300, marginal 208, rejects the need for a purposive element, arguing in support of a 2001 decision of the German Federal High Court (BGHSt 46,295) that torture consists of causing severe physical or mental pain and that this need not be in pursuit of a specific goal; all that is required is that the infliction of the pain is intentional.

42 ICC Statute, art 8(2)(a)(ii).

43 Id, art 8(2)(c)(i).

44 Id, art 8(2)(a).

45 See, for example, Delalić, above at note 34, para 470; Limaj, above at note 34, para 253.

46 See, for example, Kunarac, above at note 34, para 48; Prosecutor v Simić et al ICTY TC 17 October 2003 (IT-95-9), para 79.

47 See Rodley “The definition(s) of torture”, above at note 41 at 484.

48 Cassese International Criminal Law, above at note 32 at 189.

49 See, for example, in Delalić, above at note 34, para 510. See also Rodley “The definition(s) of torture”, above at note 41 at 485; and Gaeta “When is the involvement of state officials”, above at note 34 at 190.

50 Werle Principles of International Criminal Law, above at note 32 at 319. See also K Dőrmann “Article 8: War crimes” in Triffterer (ed) Commentary on the Rome Statute, above at note 41 at 306 on UNCAT's guiding role in the development of the jurisprudence in international humanitarian law. See also Jessberger “Bad torture”, above at note 32 at 1071.

51 UNCAT, art 4(1).

52 Id, art 4(2).

53 C Ingelse The UN Committee Against Torture: An Assessment (2001, Kluwer) at 342.

54 Rodley, N and Pollard, M “Criminalisation of torture: State obligations under the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment” (2006) 2 European Human Rights Law Review 115Google Scholar at 119.

55 See CAT's concluding observations on the report submitted by Germany at 3, available at: <http://www2.ohchr.org/english/bodies/cat/docs/co/CAT.C.DEU.CO.5_en.pdf> (last accessed 31 July 2015). A case in point is sec 340 of the German Criminal Code, which imposes a punishment of up to five years’ imprisonment on a public official who, in carrying out his duties, commits a bodily injury or allows it to be committed. In November 2011, CAT nevertheless expressed “serious concern” (at 1) that the provision does not “adequately punish the infliction of pain and suffering, whether physical or mental as required by article 1 of the Convention”. As to the need to criminalize torture in the national law, see also CAT's concluding observations on the reports submitted by Bulgaria (CAT/C/BGR/CO/4–5), Ethiopia (CAT/C/SR.974 and 975), Turkey (CAT/C/SR.975) and Ghana (CAT/C/SR.1011). See also report of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: A/HRC13/39, para 46, where he emphasizes the fact that the UNCAT definition of torture makes no mention of any bodily injuries or lasting impairment, though injuries can be an aggravating factor.

56 International Court of Justice “Questions relating to the obligation to prosecute or extradite” (Belgium v Senegal), judgment of 20 July 2012, general list no 144, available at: <http://www.icj-cij.org/docket/files/144/17064.pdf> (last accessed 14 August 2012), para 75.

57 See Prosecutor v Omar Al Bashir (Decision on the Prosecutor's Application for a Warrant of Arrest against Omar Hassan Ahmed Al Bashir) ICC-02/05-01/09-3 (4 March 2009).

58 Act 13 of 2013.

59 Id, sec 3.

60 Rodley “The definition(s) of torture”, above at note 41 at 484.

61 GH Miller Defining Torture (2005, Flooerscheimer Center for Constitutional Democracy, Benjamin N Cardozo School of Law) at 17.

62 JH Burgers and H Danelius The United Nations Convention Against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1988, Martinus Nijhoff Publishers) at 119–20; Miller, ibid.

63 Rodley “The definition(s) of torture”, above at note 41 at 485.

64 PCTPA, sec 1.

65 See Department of Provincial and Local Government “A discussion document towards a white paper on traditional leadership and institutions” (11 April 2000) at 29, para 7.2, available at: <http://www.gov.za/sites/www.gov.za/files/trad_0.pdf> (last accessed 31 July 2015).

66 Sec 211 of the South African Constitution (1996).

67 Id, sec 231(4). Although there is no evidence of local chiefs having being involved in torture, cases have been reported in which alleged so-called “witches” (sorcerers) have been tortured to death in two provinces in areas within the jurisdiction of traditional leaders. As regards the difficulties in policing and prosecuting such cases, see Petrus, T “Defining witchcraft-related crime in the Eastern Cape Province of South Africa” (2011) 3 International Journal of Sociology and Anthropology 1Google Scholar.

68 2012 (1) SA 536 (CC).

69 Id, para 80.

70 Id, paras 78 and 80.

71 See, for example J Sarson and L McDonald “Torture of Canadian women by non-state actors in the private sphere: A shadow report” (2008), available at: <http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/VOWCanada42.pdf> (last accessed 21 March 2012); Meyersfeld, BC “Reconceptualizing domestic violence in international law” (2003) 67 Albany Law Review 371Google Scholar at 401–13. See also M Nowak “Report of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment” (2010) A/HRC/13/39.

72 See joint submission of the Women's Legal Centre and the Sexual Workers Education and Advocacy Taskforce, as well as submission of the Centre for Applied Legal Studies, available at: <http://khulumani.net/active-citizens/item/687-report-on-submissions-to-the-public-hearings-on-the-torture-bill.html> (last accessed 23 July 2013).

73 See Amnesty International “Written submission to the Portfolio Committee on Justice and Constitutional Development, Parliament of South Africa: The Prevention and Combating of Torture of Persons Bill” (31 July 2012) at 3, available at: <https://pmg.org.za/committee-meeting/14822/> (last accessed 3 July 2015).

74 UNCAT, art 1.

75 See the decisions of the European Court of Human Rights (ECtHR) in Egmez v Cyprus 2000-XII CHR 315 at 336, and Denizci v Cyprus 2001-VI ECHR 225 at 312–13.

76 Prosecutor v Krnojelac IT-97-25-T trial chamber, 15 March 2002, para 185. See also Kunarac, above at note 34, paras 485 and 497.

77 See, for example, Nowak “What practices constitute torture?”, above at note 38 at 831; Hall in Triffterer (ed) Commentary on the Rome Statute, above at note 41 at 254; K Kittichaisaree International Criminal Law (2001, Oxford) at 111; Weissbrodt, D and Heilman, C “Defining torture and cruel, inhuman and degrading treatment” (2011) 29 Law and Inequality 343Google Scholar at 386 and 387; Montavon-McKillip, A “CAT among pigeons: The convention against torture, a precarious intersection between international and human rights law and US immigration law” (2002) 44 Arizona Law Review 247Google Scholar at 255. See also Delalić above at note 34, paras 470–71. See also R St J Macdonald “International prohibitions against torture and other forms of similar treatment and punishment” in Y Dinstein (ed) International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989, Martinus Nijhoff Publishers) 385 at 390.

78 Burgers and Danelius The United Nations Convention, above at note 62 at 186.

79 Delalić, above at note 34, para 470.

80 Rodley “The definition(s) of torture”, above at note 41 at 484. See also Nowak “What practices constitute torture?”, above at note 38 at 832; and Burgers and Danelius The United Nations Convention, above at note 62 at 119.

81 Above at note 34, para 162.

82 Above at note 34, para 155.

83 Compare with CAT/C/CR/30/6, in which CAT recommended that Belgium's Penal Code have a provision preventing the raising of the defence of a state of necessity to violate the right not to be tortured.

84 UNCAT, art 2(2).

85 Compare with CAT/C/CR/33/3, 2004 (concluding observations on the United Kingdom), paras 4(a) and 5(a). See also Association for the Prevention of Torture “The criminalisation of torture under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: An overview for the compilation of torture laws” (2009) at 5.

86 Judgment of 14 March 2001, para 41.

87 See Werle Principles of International Criminal Law, above at note 32 at 248–49 with regard to the applicability of the statutes of limitation to international crimes.

88 See “Report of the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment”: UN doc A/HRC/13/39/Add.5 (2010) at 16.

89 Jessberger “Bad torture”, above at note 32 at 1063.

90 See submissions of Lawyers for Human Rights, available at: <http://www.lhr.org.za/policy/lhr-submission-prevention-and-combatting-torture-persons-bill-b21-2012> (last accessed 15 August 2015).

91 See art 1 of OPCAT, which was adopted by the UN General Assembly on 18 December 2002 (A/RES/57/199).

92 Association for the Prevention of Torture “South Africa: OPCAT situation” (19 July 2013), available at: <http://www.apt.ch/en/opcat_pages/opcat-situation-67/> (last accessed 20 July 2013).

93 UNCAT, art 12.

94 Id, art 13.

95 Id, art 14.

96 PCTPA, sec 9.

97 See “Prevention and Combating of Torture of Persons Bill: Department of Justice, Centre for Study of Violence and Reconciliation, Trauma Centre & SANToC briefings” (27 February 2013), available at: <https://pmg.org.za/committee-meeting/15469/> (last accessed 3 July 2015).

98 Ibid.

99 PCTPA, sec 6(1).

100 Id, sec 6(2).

101 Above at note 56, para 95.

102 See R Van Alebeek The Immunity of States and their Officials in International Criminal Law and International Human Rights Law (2008, Oxford) at 222.

103 See J Dugard International Law: A South African Perspective (4th ed, 2008, Juta & Co) at 253; Werle Principles of International Criminal Law, above at note 32 at 236. The immunity excludes heads of entities that do not qualify as a sovereign state. Van Alebeek, id at 113.

104 A Cassese International Human Rights Law (2008, Oxford) at 222; Cassese International Criminal Law, above at note 32 at 304.

105 See Werle Principles of International Criminal Law, above at note 32 at 237–41.

106 Examples here are the indictment by the ICTY of Milošević whilst he was the incumbent president of the Federal Republic of Yugoslavia and the indictment by the Special Court for Sierra Leone of Taylor, when he was president of Liberia.

107 See art 4(2) of the Implementation of the Rome Statute of the International Criminal Court Act, 27 of 2002.

108 Act 37 of 2001, sec 4.

109 Dugard International Law, above at note 103 at 257. See also R v Bow Street Secondary Magistrate and Others, Ex parte Pinochet (No 3) [1999] 2 All ER 97 (HL).

110 Case no 77150/09, available at: <http://www.saflii.org/za/cases/ZAGPPHC/2012/61.pdf> (last accessed 15 August 2015).

111 Id, para 33.

112 National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another [2014] ZACC 30, para 60. See also National Commissioner, South African Police Service and Another v Southern African Human Right Litigation Centre and Another [2013] ZASCA 168.

113 Above at note 109.

114 Lords Brown Wilkinson, Saville, Millet and Phillips, id at 114, 169–70, 178–79 and 190, respectively. However, the position is different regarding civil claims; in the case of Al-Adsani v United Kingdom (2001) 34 EHRR 273, the ECtHR, by a majority of just one vote, allowed immunity to prevail in a case involving an allegation of torture against the government of Kuwait, the court holding that this was consistent with international law. In their comment on this decision, Akande, D and Shah, S “Immunities of state officials, international crimes, and foreign domestic courts” (2011) 21 European Journal of International Law 815CrossRefGoogle Scholar at 838 contend that “if the ECtHR had accepted the normative hierarchy theory and was of the view that the jus cogens prohibition prevailed over immunity in criminal cases, it is difficult to see how such a prohibition would also not override immunity in civil cases as well”.

115 See Van Alebeek The Immunity of States, above at note 102 at 294–95, especially at 294, note 406.

116 Decision of the International Court of Justice in Belgium v Senegal, above at note 56 at 101, para 99. See also Filartiga v Pena-Irala 630 F.2d 876 at 884 (2nd cir 1980); Bell, A and Dona, J “Torturous intent: Refoulement of Haitian nationals and US obligations under the Convention against Torture” (2011) 35 New York University Review of Law and Social Change 707Google Scholar at 714–15.

117 Akande and Shah “Immunities of state officials”, above at note 114 at 842.

118 A Boulesbaa The UN Convention on Torture and the Prospects for Enforcement (1999, Martinus Nijhoff Publishers) at 31, note 110.

119 Miller Defining Torture, above at note 61 at 20.

120 See generally Muntingh and Fernandez “A review of measures”, above at note 8; L Muntingh Guide to the UN Convention Against Torture in South Africa (2011, Civil Society Prison Reform Initiative-Community Law Centre, University of the Western Cape) at 45–52; T Ramagaga “The problem of torture in South African prisons” (2011, Institute of Security Studies), available at: <https:// www.issafrica.org/iss-today/the-problem-of-torture-in-south-african-prisons> (last accessed 15 August 2015).

121 “Judicial Inspectorate for Correctional Services on its third quarter performance: Briefing on torture in correctional centres” (March 2012), available at: <http://www.pmg.org.za/report/20120307-judicial-inspectorate-correctional-services-its-sept-dec-2011-quarter> (last accessed 20 August 2012).

122 Ibid.

123 Id at 4.

124 UN doc E/CN.4/1997/7, para 8.

125 Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003), para 42.

126 See Macdonald “International prohibitions”, above at note 77 at 401–03 for the grounds for defeating a proposal that the “lawful sanctions” clause be referenced to international law.

127 See division 274.2 (4) of the Australian Criminal Code Act, as amended by Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010, and sec 2(b) of New Zealand's Crimes of Torture Act (Act 106 of 13 November 1989).

128 Coetzee v Government of the Republic of South Africa, Matiso and Others v Commanding Officer, Port Elizabeth Prison and Others 1995 (10) BCLR 1382, para 11. See also S v Makwanyane and Another 1995 (6) BCLR 665, para 104 where the court held that, while there are no absolute standards for determining reasonableness and necessity, principles can be established, and these would have to be applied on a case by case basis.

129 PCTPA, sec 4.

130 CAT/C/ZAF/CO/1 at 3, para 13.

131 For examples, see Redress Trust South Africa at 15, available at: <http://www.redress.org/downloads/country-reports/SouthAfrica.pdf> (last accessed 15 August 2015).

132 See the Criminal Law Amendment Act 105 of 1977.

133 Jessberger “Bad torture”, above at note 32 at 1063.

134 Bell and Dona “Torturous intent”, above at note 116 at 737.

135 S v Malgas 2001 (91) SACR (SCA), at part B of the summary. See also S v Mzayifani and Others (unreported, Eastern Cape High Court, Port Elizabeth, case no CC13/09, 30 January 2012).

136 Filartiga v Pena-Irala, above at note 116 at 890.

137 See PCTPA, sec 5.

138 PMG report on the meeting of the Parliamentary Portfolio Committee on Justice and Correctional Services on 19 August 2015, available at: <https://pmg.org.za/committee-meeting/21350/> (last accessed 3 September 2015).