IV. THE TREATMENT OF UNDOCUMENTED MIGRANTS
IN SOUTH AFRICA
Undocumented migrants are employed in a variety of sectors of the South African economy, and form one of the most exploited and vulnerable groups of workers in the country. Because of their illegal status, undocumented migrants are compelled to "accept employment whatever the payment, risk, physical demand or working hours involved."(1) Undocumented migrants from Mozambique and Zimbabwe are especially prevalent in the farm sector in Mpumalanga and Northern provinces, and also in the construction sector in Johannesburg.
The undocumented and thus "illegal" status of many Mozambicans prevents them from approaching the authorities for redress of grievances and gives employers tremendous power over their workers. Human Rights Watch discovered several cases in which employers laid off workers at the end of a work period without paying them their earned wage. In one case, workers at a farm near Pretoria were told to "take a day off" two days before the end of their first work month, only to find the gate locked when they returned and a new team of illegal workers employed in their place. They were told to leave the premises or face arrest. According to the gate-keeper at the compound, the newly hired workers faced the same fate at the end of their first month.(2) In the wealthy Parktown suburb of Johannesburg, a Mozambican gardener who complained to his white employer about not having been paid for the past two months promptly found himself reported to the police, arrested, and deported.(3)
Abuses committed by white farmers and their foremen against undocumented migrants appear to be especially common and severe. Undocumented migrants working as farm workers are among the lowest paid workers in the country, earning on average as little as five to ten rands [U.S. $ 1-2] per day. For example, Sylvester Langa, a farm worker interviewed while awaiting deportation at Komatipoort police station, told us he earned 250 rands [U.S. $ 50] per month working on a farm.(4) Local farm workers, although also subject to many abuses, earn significantly more, about 800 to 1,000 rands [U.S. $ 160-200] per month.(5) Similar abuses exist in other trades as well, especially in the building trade. Lodric Ndlovu, who was earning twenty rands [U.S. $ 4] per day working in the construction industry, told Human Rights Watch that at his previous job, he was paid eight rands [U.S. $ 1.60] per completed structure, a task which often took longer than one week.(6) Undocumented migrants are forced to work very long hours and are abused by foremen and security personnel. Mr. Ngobeni, a Mozambican farm worker who told us he earned five rands [U.S. $ 1] per day, complained that he and other workers were often beaten to make them work harder: "We must always run when we work, even when carrying boxes of bananas. The foremen slapped me hard because they said I wasn't working hard enough."(7) In the words of Captain Liebenberg, Superintendent of Komatipoort police station,
This poor guy from Mozambique, he will do anything just to get those few bucks to get on with life. He will take any abuse. The salaries on the farms are very low--a lorry driver gets fifteen rands [U.S. $ 3] a day, but normally the workers get between five rands [U.S. $ 1] and ten rands [U.S. $ 2] a day. And 95 percent are Mozambican.(8)
Captain Chilembe, head of the Internal Tracing Unit at Nelspruit, also described physical abuse of farm workers by farmers as "common."(9)
Many of the illegal immigrants working in the rural areas adjoining the Mozambican border are children, some as young as ten years old. Human Rights Watch interviewed a group of farm workers near Chongwe, Mpumalanga, including children as young as fourteen, but was forced to cut the interview short when a security guard approached us and asked us to leave.(10) An investigation into child labor by the Mail & Guardian newspaper found similar instances of child labor, including two boys, aged fifteen and sixteen, who were working twelve hours per day for a primary school teacher, earning only 150 rands [U.S. $ 30] per month.(11)
Although the Aliens Control Act provides for a mechanism to prosecute and fine employers in the amount of 20,000 rands [U.S. $ 4,000] per "illegal alien," Human Rights Watch found evidence of very few such prosecutions. According to one source,
Very few farmers employing illegal aliens have been brought to court in the Mpumalanga province. In the last four years only six employers have been charged in the courts at Nelspruit, while only two received fines. One of the problems in prosecuting them has been the difficulty of proving that an illegal alien is employed on the farm, since a farmer's books merely show a cash entry under "wages."(12)
During our three-week investigation, Human Rights Watch was told of only a single prosecution of an employer of undocumented migrants, involving a contractor and his recruitment agent for employing about forty-five undocumented migrants on a building site. The undocumented workers from Mozambique were kept in detention for two months at Pollsmoor prison in order to be available to testify at the trial.
During the early 1990s, it was a common practice of South African farmers to hire a group of undocumented migrants, make them work for a certain period of time (normally one or two months), and then call the local police station to have the farm workers deported without pay. Local police stations often were complicit in these practices, and rarely asked any questions of farmers who reported undocumented migrants for deportation. Although the practice appears less common today, our interviews suggest that such collaboration between local police stations and farmers continues in some areas. One farm worker who had opted to remain in Mozambique after suffering abuses on South African farms told us that at one farm he worked on, "at the end of the month, they sent a truck to pick us all up, and our wages were kept by the boss."(13)
Captain Chilembe, head of the Internal Tracing Unit in Nelspruit, in the heart of the South African farming area, ensured Human Rights Watch that police stations had been instructed to investigate farmers who reported undocumented migrants in order to ensure that the farmer was not trying to avoid paying his workers by having them deported.(14) However, when we visited the Komatipoort police station, we interviewed three young Mozambicans, aged between sixteen and eighteen years, who were being deported without the police questioning the farmer who had reported them, and who told us about abuse on the farm were they worked. Eighteen-year-old Albin Mashaba spoke for the three, describing their experience since coming to South Africa:
We were arrested last night on the farm. The boss foreman took us to the gate of the farm and called the police. We worked collecting bananas, earning five rands [U.S. $ 1] per day. We worked from 6 a.m to 8 p.m. The foreman's name was Ngoma. We had no accommodation, so would sleep outside in the open. We received only a little food, not enough. At lunch we had to provide for ourselves. We only got half an hour for lunch and had to cook and eat very fast. There was never enough time to eat. There were different foremen, but they all beat us. They always wanted us to work faster. They beat us with the handle of a knife, and with baton sticks.
We don't know why we were arrested. The foreman said we were trying to run away. We couldn't leave, we were forced to stay on the farm. The farmer had paid us for the last two weeks, but the foreman took the ninety rand [U.S. $ 18] and called the police to have us deported. Now we have nothing. The policemen asked the foreman no questions, they just took us away. It is all very wrong. We were the ones working, and the foremen were the thieves.(15)
When Human Rights Watch tried to discuss the case of these three young men with the police officers on duty after the men had been deported, a disturbing problem came to light. It became clear that no paperwork had been prepared by the arresting officer, so the three didn't exist in the files of the Komatipoort police station. A sergeant on duty told us that he had just told the three young men to get on the bus, which was picking up the other detainees awaiting repatriation, and "go home."(16) When we discussed the treatment of the boys on the farm with the sergeant, he told us that he sees lots of beatings and even dog bites, but that the undocumented Mozambicans rarely want to press charges: They prefer to be deported rather than spend a long time in detention while the case drags on.(17) Captain Nel, superintendent of the Malelane Police Station, told us about similar problems with prosecuting farmers:
It is a big problem to prosecute farmers because the Mozambican has to serve as a witness, and so we have to keep the Mozambican in custody. Then we have to go to the Attorney-General to get permission to keep them in the cells. So the farmers just ask for extensions, and the poor farm worker stays in jail the whole time.(18)
A high-ranking police official who spoke on condition of anonymity claimed that political interference made it difficult to arrest and prosecute farmers for hiring undocumented migrants or abusing their workers: "We started prosecuting the farmers, but it's a big fight. It's a political issue. If we charge the farmers, they turn against the government. So higher up, they don't want us to charge the farmer."(19)
The almost complete lack of accountability for abuses committed against undocumented farm workers has led to some horrific instances of violence against undocumented migrants. According to one newspaper account, a Northern province farmer allegedly tested his rifle by shooting at the leg of one of his farm workers, who as a result had to have his foot amputated. At the time of the article, the farmer had not been prosecuted, and no compensation had been paid to the victim.(20)
The case of Florentino Edmundo Amade is equally disturbing. Amade was working for a crocodile farmer on a farm called Gravelotte, when he had a disagreement in June, 1993, with the farmer, Mr. Torre. The farmer denied him food for three days. After three days, Amade was caught by the farmer trying to eat a piece of the meat he was supposed to feed to the crocodiles. Amade claims he was beaten by the farmer, and later again by white police officers called by the farmer, who arrived in two police vans with dogs. At the end of the beating, Amade had a broken left arm and had several dog bites from police dogs.
Torre allegedly forced Amade to remain on the farm for several days without access to medical treatment, out of fear of being prosecuted for the beating. After three days, Torre took Amade to a doctor in town in the back of a pick-up truck used for transporting the meat for the crocodiles. The doctor refused to treat Amade, arguing that he should have been brought earlier. Amade walked himself to the nearby "black" Tintswalo Hospital, where he remained for two months to recover from his injuries. A legal case was opened by Amade against Torre, but it was dismissed after Torre allegedly lied to the court, saying that Amade had returned to Mozambique. Human Rights Watch last met with Amade in October 1997 and noted that his left arm remained virtually unusable and that Amade was unable to find employment because most physical work caused his arm to become painfully swollen. The farmer was never prosecuted, and no compensation was paid to Amade.(21)
Even when the police take action against abuses, it is often to the detriment of the undocumented migrant who has been victimized. According to press reports, five young undocumented migrants from Zimbabwe were languishing in Louis Trichardt prison for more than five months after being attacked with pick-ax handles, shocked with a cattle prod, and thrown off a moving pick-up truck by five men in the town of Vivo on the night of September 28, 1996.(22) According to the investigative officer, Sergeant Seckle, the five victims were being kept in custody out of fear that they might otherwise skip the country, and the case against the perpetrators would have to be withdrawn.(23) In another case, two Mozambicans who went to the police to report the theft of firewood which had taken them six weeks to collect found themselves arrested and deported instead.(24)
Self-employed immigrants involved in informal business such as vehicle and electrical repairs, vegetable selling, clothes repair, and shoe mending, are also vulnerable to exploitation. Sometimes, South Africans engage the services of such persons, but later collect their goods without paying. If the undocumented migrant dares to complain, he or she is in danger of being assaulted or reported to the police and deported. Human Rights Watch interviewed a Mozambican electrical engineer in Soweto who had a "smoking" car brought to him for repairs by a policeman in civilian clothes. When the work was completed, the officer returned in uniform to collect both the repaired car and the hapless engineer, who was driven to the police station and forced to pay a 500 rands [U.S. $ 100] bribe to the police officers before being released. Needless to say, he was never paid by the police officer for his repair work on the car.(25) Another self-employed undocumented Mozambican supplied a police officer with seat covers for his car but was never paid for the service.(26)
Reports have repeatedly surfaced about Mozambican women and children being sold into forced servitude or sexual bondage in South Africa by Mozambican smugglers. In 1990, a reporter from the Mail &Guardian wrote about purchasing two young Mozambican women, aged 14 and 17, and claimed that many more women were being offered to South African men as "wives."(27) Anti-Slavery International documented several similar cases of women being sold to South African men as "wives" in a 1992 report.(28) The clandestine nature of border crossings between South Africa and Mozambique and the rural remoteness of the South Africa border region make it difficult to monitor such abuses, and it is likely that they continue on some unknown scale. The significant rise in open prostitution in South Africa since liberalization of morality laws in the 1990s also raises concerns about the trafficking of women into South Africa for purposes of forced sexual labor.
Abuses During the Arrest Process
The Agencies Involved in the Detection of Undocumented Migrants
A number of agencies in South Africa play an important role in the detection and arrest of undocumented migrants, including different branches of the South African Police Service (SAPS), the Department of Home Affairs, and the South African National Defence Force (SANDF). In addition to these formal structures, informal community structures are in existence to "aid" these agencies in tracking down and arresting undocumented migrants.
Most South African police stations play at least a contributory role in tracking down and arresting undocumented migrants during their ordinary duties. In urban centers with large numbers of undocumented migrants, such as Johannesburg, arrest records suggest that tracking down undocumented migrants is one of the major occupations of many police officers. Frequently, undocumented migrants are arrested in order to boost arrest figures. For example, when the Johannesburg police announced in June 1997 that they had arrested 11,916 suspects in recent crime sweeps as part of a high-density crime operation, a closer reading revealed that 5,776 of those arrested were undocumented immigrants.(29) Another Johannesburg crime prevention sweep over two days in September 1997 yielded about 1,400 arrests, of which 736 were undocumented migrants.(30) Because undocumented migrants are probably easier to track down and arrest than hardened criminals, including them in crime sweep arrest figures may improve the image of the police, but it also increases the perception among South Africans that there is a strong link between crime and undocumented migration.
The South African Police Service (SAPS) has also established a number of Internal Tracing Units (ITU), some formerly known informally as the "Maputo squads," which focus exclusively on the tracking down, identifying, and arrest of undocumented migrants. By the time of our investigation, at least fourteen such ITUs were operating in South Africa, mostly in major urban areas and in areas with high concentrations of undocumented migrants such as the border area with Mozambique. In addition to the ITUs, there exists a national Aliens Investigation Unit which concentrates on the organized inflow of undocumented migrants into South Africa and certain wide-spread fraudulent practices associated with the issuing of false documents.(31)
The Department of Home Affairs also identifies and arrests undocumented migrants, although it focuses mostly on processing the suspected undocumented migrants detained by the police and army. Human Rights Watch interviewed a number of persons who had been arrested on the street by officials from the Department of Home Affairs, while police officials at Johannesburg Central police station confirmed that persons are detained directly by the Department of Home Affairs at their offices at 15 Market Street in Johannesburg. The director of admissions and migrants control confirmed that the Department of Home Affairs itself traces and arrests suspected undocumented migrants.(32)
The South African National Defence Force (SANDF) plays an important role in the detection and arrest of suspected undocumented migrants. One company, comprising an estimated 200 soldiers, is constantly deployed on the Mozambican border. The army also uses mobile vehicle control points as well as road blocks to inspect vehicles and intercept undocumented migrants as they make their way to urban centers.(33) Undocumented migrants apprehended while attempting to cross the border are briefly detained at the substations near the border, where they are questioned before being transferred to the Macadamia army base.(34) From the Macadamia base, the detainees are transferred to the custody of the police at Komatipoort police station on the border with Mozambique.(35) Major Visser, the commanding officer of the company deployed at the border at the time of our visit, estimated that on average about thirty-five persons per day are detained by his troops at the border.(36) A road block easily nets more than 250 undocumented migrants.(37) Throughout South Africa, an estimated 6,490 soldiers are deployed each month to help combat crime, and these soldiers arrested 38,902 undocumented migrants, compared to 5,075 criminal suspects between January and December 15, 1997.(38)
For its interception operations at the Mozambican border, the SANDF relies extensively on the 3,300-volt electric fence that separates South Africa from Maputo province in Mozambique. The fence runs for sixty-three kilometers between the Swaziland border and the South African border town of Komatipoort. Constructed in 1986 and turned on in August 1987, the fence was ostensibly created to prevent anti-apartheid guerrillas from the ANC and other liberation movements from infiltrating South Africa via Mozambique. The fence consists of six coils of ten-foot-high razor wire and ten electrified cables, each capable of carrying 3,300 volts. The fence itself is divided into eleven sections, with each section serviced by a substation and a generator to boost the current. Current levels can be set at two levels: lethal and non-lethal. It is estimated that more than one hundred people were killed from electrocution by the fence between its turn-on date and February 1990, when the South African authorities reported that the current on the fence was turned down to non-lethal levels and that the current was switched off from time to time.(39)
The use of a lower, non-lethal, current brings its own problems, with people "sticking" to the fence on occasion. Maria Macamo lives in Machava, outside Mozambique's capital city Maputo. She told Human Rights Watch in February 1997 that she had attempted to cross the electric fence south of Ressano Garcia in March 1996. She threw wet mud at the fence, and when she did not see any sparks, she assumed that it would be safe to cross through a passage dug underneath the fence by border jumpers. However, while attempting to pass underneath the fence, she accidentally touched some of the wires and got stuck to the fence, unable to move from the fence until a fellow Mozambican pulled her off. Her left arm was badly scarred, and she told us that she had lost most of the strength in that arm. Unable to perform many forms of physical labor, she now tries to eke out a living selling cashew nuts in Maputo.(40) She said she heard of many other Mozambicans who have been injured at the fence. Maputo's Central Hospital confirms that it receives a number of cases each year of people injured by the border fence, but it does not keep records.(41)
In addition to these formal structures, an increasing number of informal structures are also playing a role in tracing and arresting undocumented migrants. This development follows an August 1994 speech by Minister of Home Affairs Buthelezi in which he called upon the South African public to help his department curb the influx of foreigners by reporting suspected undocumented migrants.(42) Police officials have encouraged participation of the public by advertising toll-free "crime stop" numbers which persons can call to report undocumented migrants and by offering reward money for reporting undocumented migrants. According to a resident of Soweto, the Department of Home Affairs has similarly attempted to get the public involved in tracking down undocumented migrants:
There has been a document issued by the Department of Home Affairs urging the locals to report any Mozambican to the police. It was sort of an underhanded activity, and they were not up-front about it since it was not an official document. But I know it was a police number you had to dial to. There was an unclear Home Affairs seal, and it indicated the reward was fifty rands [U.S. $ 10] per illegal alien.(43)
Senior police officials at Yeoville and Hillbrow confirmed that the public is encouraged to call "crime stop" numbers to report undocumented migrants, and that they regularly trace undocumented migrants this way.(44) Colonel Raymond Dowd of the Western Cape Police Services has told the press that almost ten thousand rands [U.S. $ 2,000] had been paid out in reward money to the public for reporting undocumented migrants, and encouraged increased public participation "to enable the ITUs to fulfill their functions."(45) Jurie de Wet, chief immigration officer for the Western Cape, recently wrote that his office had "already had discussions with the editor of the Khayelitsha News to ask the public for their co-operation in the detection of illegal aliens and it is our intention to eventually reach every township in the Western Cape in this manner."(46) The use of citizens to locate and arrest undocumented migrants presents troubling potential areas of abuse. Desmond Lockey M.P., the chair of the Parliamentary Portfolio Committee on Home Affairs, told Human Rights Watch how local persons in his own district of Winterveld near Pretoria had in the past colluded with the police to get migrants deported so they could loot the property of the migrants afterwards.(47)
In addition to general involvement of the public, anti-immigrant community structures are also playing an increasingly active role in the detection of undocumented migrants. For example, the African Chamber of Hawkers and Independent Businessmen (ACHIB), one of the hawker organizations involved in organizing violent protests against foreign hawkers, has established structures to prevent undocumented migrants from hawking. ACHIB has divided Johannesburg into hawking blocks, and has appointed "block committees" in each hawking block to identify undocumented migrants, place them under "community arrest," and hand them over to the police. At a March 26, 1997, meeting attended by a Human Rights Watch representative, the Gauteng Member of the Executive Council (MEC) for Safety and Security, Jesse Duarte and ACHIB representatives agreed to establish a joint committee to meet regularly to coordinate cooperation between ACHIB and the South African Police Services.(48) Human Rights Watch fears that such close cooperation between the police and a group linked to vigilante violence against foreigners may lead to an increase in abuses against migrants.
Abuses Committed During Detection and Arrest
Arbitrary Identification Procedures
All structures involved in the detection, tracing and arrest of undocumented migrants were accused of abuse by the persons interviewed by Human Rights Watch. One of the most common complaints was the arbitrary mechanisms used to identify suspected undocumented migrants for arrest. The tactics used by the Internal Tracing Units were described in one study:
The internal tracing units of the [South African Police Service] have become adept at spotting an illegal ... In trying to establish whether a suspect is an illegal (sic) or not, members of the internal tracing units focus on a number of aspects. One of these is language: accent, the pronouncement of certain words. Some are asked what nationality they are and if they reply "Sud" African this is a dead give-away for a Mozambican, while Malawians tend to pronounce the letter "r" as "errow". In Durban many claim to be Zulu but speak very little. Some of those arrested as undocumented migrants are found with home-made phrase books in their pockets. Often they are unable to answer simple questions in Zulu or are caught out if asked who the Zulu king is. Often the reply is "Mandela."... Appearance is another factor in trying to establish whether a suspect is illegal--hairstyle, type of clothing worn as well as actual physical appearance. In the case of Mozambicans a dead give-away is the vaccination mark on the lower left forearm. Some Mozambicans, knowing this, have taken to either self-mutilation (cutting out the vaccination mark), having a tattoo put over it, only wearing long-sleeved shirts and never rolling up the sleeves, or wearing a watch halfway up the arm to cover the mark.(49)
Despite an appearance of objectivity, the indicators used are in fact arbitrary and based upon overly generalized stereotypes. The reliance on these indicators results in the wrongful identification and arrest of a large number of South African citizens as undocumented migrants. Equally troubling is the fact that the identification strategies focus exclusively on black persons, although there are a large number of non-black persons who overstay their visas in South Africa. In fact, during our entire investigation, all persons we saw in detention were black (including Indian and Pakistani detainees).
Human Rights Watch interviewed a significant number of persons who were in detention after being wrongfully identified as undocumented migrants. Benneth Mabaso, awaiting deportation at Komatipoort police station, related to us how he had lived in South Africa his entire life, but had received a Mozambican inoculation mark during a visit to Mozambique with his Mozambican father. A week before our visit, soldiers had destroyed his ID document because he had an inoculation mark:
The soldiers destroyed my ID document a week before. They looked at my inoculation mark and told me my ID was false and ripped it up. They said I couldn't be South African with a mark.(50)
Mr. Mabaso was traveling to a South African town near the Mozambican border to arrange the funeral for his sister who had recently died, but instead found himself being deported to Mozambique.(51)
Zephaniah Mabaso (unrelated to Benneth Mabaso) was awaiting deportation at Komatipoort police station. He claimed to be a South African citizen, and showed us a copy of his ID, claiming he kept the original at home out of fear that it would be destroyed by officials. He had received an inoculation during a visit to Mozambique with his mother, and now "wherever I go, I get arrested."(52) Dumisa Mavimbela was in detention at the Witbank police station. He told Human Rights Watch how he had been detained because he had a Swaziland inoculation mark, even though he had an ID book on his person. He explained that he had grown up near the Mozambican border and had been inoculated on a visit to relatives in Swaziland.(53)
Ethnic groups in border areas can often be found on both sides of the border: Shangaans live in both South Africa and Mozambique, and Swazis live in both South Africa and Swaziland. Cross-border traffic is frequent, and special procedures even exist to facilitate border crossings for people living in border areas.(54) One official interviewed by Human Rights Watch compared the Swazi border to the Berlin Wall, because of its artificial separation of a contiguous Swazi community found on both sides of the border. Under these circumstances, procedures that rely heavily on identifying marks such as inoculation scars often victimize local populations.
The standards used for identifying undocumented migrants are often absurd. A newspaper report relates the story of a man who was arrested because, according to the arresting officer, "he walked like a foreigner."(55) Another person claimed that the police had destroyed his South African ID without checking its authenticity because they felt he was "too black" to qualify for a South African ID.(56) The South African Human Rights Commission, a state-funded but independent body under the constitution, has taken up the case of a South African man who had his ID documents destroyed and came close to being deported because he had a foreign surname, Banda.
Despite this enormous margin of error, police and the Department of Home Affairs continue to use arbitrary identification marks when arresting suspected illegal immigrants. A "foreign" appearance can mean frequent harassment by police officers. A recent newspaper account described the experience of a Zimbabwean woman legally in South Africa who was arrested three times within an hour in the city center of Johannesburg.(57) Another newspaper account relates the story of Handsome Siwela, whose legitimate ID documents had not "deterred police from accusing him of being an illegal immigrant" from Zimbabwe and arresting him three times within seven months.(58)
The magnitude of the problem of mistaken identification is perhaps best told by the statistics obtained by Human Rights Watch at the Lindela private detention camp and discussed in greater detail in the Lindela section of this report. Our calculations based on the data obtained suggest that as many as one of out five persons detained by the police on suspicion of being an undocumented migrant is later released after proving his or her identity as a South African citizen or a lawful resident. Detainees in the Gauteng area are brought to the Lindela detention facility by officials from the Department of Home Affairs as well as by police officials. Lindela has permission from the Department of Home Affairs to pick up suspected migrants being detained at certain police stations, such as the Sophiatown Police Station (formerly Newlands Police Station).(59) Our investigation discovered that a disturbingly large number of South African citizens as well as lawful residents in South Africa end up being brought to Lindela, and that a large number of these persons are actually detained at Lindela for a period of time.
According to Lindela officials, a large number of detainees brought to the facility by police officials are released prior to intake into Lindela because they were able to satisfy the Department of Home Affairs officials at Lindela that they were South African citizens or were lawfully residing in South Africa.(60) Human Rights Watch, with the assistance of Lindela officials, did a count of the number of persons so released within one month (October 1997) and came up with a rough estimate of about 10 percent of all detainees brought to Lindela being so released.(61) This would suggest that approximately 8,000 South Africans and lawful residents held in police detention were released prior to intake at Lindela between August 1996 and October 1997.(62)
Human Rights Watch witnessed the release of one such person, Robert Mhlambi, during our November 24, 1997, visit to Lindela. Mr. Mhlambi, aged twenty-nine, was traveling in a van with other construction workers to his job site when the van was stopped by police officers from Booysen Police Station.(63) He recounted to us what happened next:
They [the police] just collected us. Then someone failed to produce papers. Then as I produced my paper, they said, "no, you are going to meet Home Affairs to prove your papers are correct." They took all of us.... They didn't even bother to look at the ID book; they put it into their pocket.... This is my first time. I have only small money for my return. I do not know the way back to where I am staying in Soweto.(64)
Mr. Mhlambi was released a few hours after his arrival at Lindela after convincing the Department of Home Affairs officials that his documents were genuine. However, he was not provided with transportation and was forced to find his own way home from Lindela, which is located quite far from Soweto.
In addition to the many persons released prior to intake into Lindela, an equally significant number of persons are released after intake at Lindela after being able to prove their South African citizenship or lawful residence within South Africa. According to Lindela statistics, 11,037 persons were released on such a warrant of release between August 1996 and October 1997, out of a total of 79,378 persons detained at Lindela. This represents approximately 14 percent of all persons detained at Lindela. Taken together, our research suggests that approximately one fifth of all people detained on suspicion of being undocumented migrants are ultimately released after proving South African citizenship or lawful, often after spending considerable time in detention at Lindela or in police cells. During their October 18, 1997, visit to Lindela, the South African Human Rights Commission interviewed a number of detainees who claimed to be South African citizens, at least one of whom was later released from Lindela after proving his South African citizenship.(65) Again, it should be stressed that persons detained on suspicion of being undocumented migrants are almost universally black, despite the fact that Department of Home Affairs statistics illustrate a high number of visa-overstays from other parts of the world, such as Europe. This racial disparity in the implementation of South Africa's migrants control system also raises troubling issues of racial discrimination in an officially non-racial society.
The Destruction of Documents
Persons interviewed by Human Rights Watch frequently claimed that police and army officers destroyed their identification documents after reaching a conclusion that they were undocumented migrants with fraudulent documents. Phineas Mugwambe, awaiting deportation at Lindela, claimed that the South African police had destroyed the documents he had received under the recent SADC amnesty:
My main worry is that South Africa gave me amnesty but the police don't respect our documents. My documents were destroyed by the police at Diepkloof Zone 5 on the 26th of November. Now I have no more documents. I was never even given the chance to tell the police or Home Affairs about my documents. I'm afraid to get beaten.(66)
When a person fails to produce a required document on the spot, but claims to have the document elsewhere, he or she should be given the opportunity to collect the document in the company of an official. In practice, many suspected migrants are immediately taken to jail, prison, or a detention center without being given the opportunity to prove their legal status. A Mozambican interviewed by Human Rights Watch at Pretoria Central Police Station had been picked up on his way to the Department of Home Affairs to collect his documents:
The police found me at Kempton Park station waiting for a taxi to the Home Affairs office. They asked me what my nationality was, and since I have nothing to hide, I told them I am a Mozambican going to collect my ID from the Home Affairs office. They then said, "Do not worry, you will get your ID in Mozambique," and at the same time they both picked me up and put me into the police van and brought me here.(67)
At the time of our interview, he was still in possession of the home affairs document indicating his name, date of application and the possible date of collection. A Congolese person told Human Rights Watch how he went to the Hillbrow police station to report the theft of his wallet, which had held his temporary residence permit, and was promptly arrested and brought to Lindela.(68)
Bribery, Extortion and Theft During the Arrest Process
Being arrested without documents does not automatically translate into deportation: in most cases, it appears that the arrested person will be able to bribe his or her way out of the arrest if he or she has sufficient money available. From the testimonies gathered by Human Rights Watch and press reports, such bribery seems pervasive. On occasion, police officers have even offered to drive suspected persons without papers to a bank automated teller machine (ATM) to withdraw the necessary funds for the bribe.(69) Another case described to Human Rights Watch concerned two men who had been arrested while crossing the Kruger National Park in an attempt to re-enter South Africa after having been deported. The two men were arrested and brought to the Skukuza rest camp, were they were told that a 400 rands [U.S. $ 80] bribe would obtain their release. The men did not have that amount of money, but the arresting officers contacted a brother of the men residing in South Africa, who paid the bribe. The men were then released.(70)
A street trader in Yeoville explained to Human Rights Watch how two policemen would extract bribes from foreigners every weekend at the Shoprite store across the street from his stand:
The policemen wait in front of Shoprite every Friday and Saturday. They wait for foreigners and ask them for papers. If you have no papers, they take you to the back. But the police station is up the street, in the other direction. Then they ask you for "special money"--normally fifty rands [U.S. $ 10]. If you don't have the money, they arrest you and take you to Hillbrow police station.(71)
Two security guards working as night-watchmen at the Nedbank building in Johannesburg told Human Rights Watch how they had offered a bribe to police officers after being arrested while waiting outside their work office. The police van pulled over at a liquor store, and the security guards were told to "fill the table" with beers, which they did. After drinking a large amount of beer and questioning the security guards about why they had come to South Africa, the police officers talked among themselves, before one of them said, "anyway, it is too late to take them to Lindela." The security guards were then asked by the police officers to "give us some extra money for beer." After paying the officers 480 rands [U.S. $ 96] "extra money," the two security guards were told that they were free to go.(72)
Fernando Ntive, now living in Mozambique, was arrested in South Africa in late 1995. He described how he was asked for a bribe almost as soon as he identified himself as a Mozambican: "Then a black policeman came, and asked for drink money, twenty rands [U.S. $ 4]. I asked him, why do I need to pay this money. He insisted I give him drink money. I said I wouldn't give it, and if he wanted to see my documents we could go to my house."(73) He was then taken to the police station, where "the officer who was searching us demanded ten rands [U.S. $ 2], so I could leave."(74) He again refused to pay a bribe, and spent several days in detention before being deported. Another former deportee, Manuel Ubisse, told of how he was asked for a bribe after being arrested at Protea Glen: "They asked if we had 300 rands [U.S. $ 60] "bail" each to give them before they took us to the police station, because once we were there the bail amount was going to be very high."(75) The amount of bribes varies significantly, according to one source:
In most cases, especially here at Protea North police station, people used to pay up to 300 rands [U.S. $ 60]. But if those policemen are bankrupt, they even take a mere twenty rands [U.S. $ 4]. The problem with them is that if they know you are selling something like vegetables, they keep coming to you, particularly at the end of the month. They come and threaten you with deportation knowing that you are going to give them money. During these times, they usually demand up to 500 rands [U.S. $ 100].(76)
The conduct of police and immigration officials in some cases suggests that arrests are sometimes made for the primary purpose of extracting bribes. In one case documented by Lawyers for Human Rights, a twenty-six-year-old Mauritian citizen had a serious heart condition and was required to return to South Africa every six months for treatment. During March 1997, his temporary resident permit lapsed, partly because he was bedridden and too sick to have the permit renewed. On March 14, 1997, a group of men in civilian clothing came to the house he was staying in and arrested the ailing Mauritian as a prohibited person. The men never identified themselves. While driving around Pretoria, the men told him that if he gave them 2,000 rands [U.S. $ 400], they could "do something" for him. When he said he did not carry that sort of money on him, he was taken to the Pretoria police station. At the police station, the Mauritian asked for a doctor and a lawyer after being forced to sign a paper listing his constitutional rights, but was told, "You are an illegal immigrant and this [i.e. the constitutional rights] doesn't apply to you. There will be no court case and you will be deported on the first flight." During his detention, the Mauritian's medical condition started deteriorating rapidly, as his limbs became swollen and he collapsed repeatedly. When he was finally taken to the hospital, he was immediately rushed to the intensive care unit where he remained for two weeks (under police guard) with a serious heart condition. He was never charged with any crime, and upon his release his extension of stay application was granted.(77)
Two fruit sellers in the Protea North area of Soweto told Human Rights Watch how they had been arrested by police officers and forced to pay bribes of 500 and 700 rands [U.S. $ 100-140] to secure their release. Since their original arrests, the arresting officers visited the vendors on a regular basis, demanding fruit and vegetables in return for "no longer arresting us."(78) Human Rights Watch also received complaints from some undocumented hawkers that officials would arrest them in the street, leaving their stands to be looted. Cliff Mucheka, a Malawian curio seller, told us he was arrested in Cape Town by an immigration officer while trading in Darling Street, and that his "curios were left in the street."(79)
Police officers are not the only officials routinely accused of such bribery and extortion attempts during the arrest process. In our brief visit to the border, we found similar abuses committed by army troops. Benneth Mabaso, for example, told us how army personnel had taken 100 rands [U.S. $ 20] from him and a friend after arresting them at a railroad station, in a case described in greater detail below.
Human Rights Watch also found significant evidence of corrupt practices by officials in the Department of Home Affairs. One of the most disturbing allegations made against Home Affairs officials working at Lindela(80) is that they require people to pay bribes to be released even after proving their citizenship or legal status. A reporter of the City Press newspaper who had come to Lindela to seek the release of his girlfriend told Human Rights Watch that he was glad we were present because he would not be required to pay a bribe to get his girlfriend released. The reporter related how he had come to Lindela on a previous occasion to seek the release of a South African friend and was forced to pay a bribe of 360 rands [U.S. $ 72] before the person was released.(81) Other detainees at Lindela told of similar experiences, suggesting that even when a person detained at Lindela is legally entitled to be released, he or she may be required to pay a bribe to be able to enforce this right.
During our inspection of Lindela, we received numerous allegations of corruption, mostly leveled against officials of the Department of Home Affairs working at Lindela. Some detainees alleged that officials from the Department of Home Affairs would manipulate their departure dates in order to extract bribes:
When people want to go home, they don't let you be deported until you pay them money. Home Affairs wants you to pay 100 to 400 rands [U.S. $ 20-80], whatever you've got. Otherwise, you just stay here. They let people go without ID, just give them some money.(82)
During their visit, officials from the South African Human Rights Commission interviewed Mr. Solomon Mashaba, who claimed that he was asked to pay five rands [U.S. $ 1] to have his deportation delayed.(83) Mr. Fabion Ndlovu, one of the persons who alleged he was beaten by Lindela guards, also claimed that he had paid a 100 rands [U.S. $ 20] bribe to a black Home Affairs official who promised to get him released, although the promise was not kept.(84) Another man who appeared to be in his fifties and claimed to be a South African citizen spoke to us on condition of anonymity:
I have been three weeks at Lindela. I was arrested at Roodepoort in the Transvaal. I did not have my details [identity documents]. It is 200 rands [U.S. $ 40] to get out without your details. Sometimes it is more. There have been many, many South Africans who have given the money in this way. More than fifteen. But I am without money.
If you complain, they [the guards] will beat you and tell you you are complaining to the white people. I tried to solve my problem. I approached a white man who took me to the Department of Home Affairs in the offices. After the white man left, they hit me. They asked me, "How much have I got?" I replied, "Nothing." After that they refused to let me out. When I kept talking to them, they said they would hit me and that I am a problem, so I decided to leave the matter. Now I will wait to see what they do, or until they force me to another country.(85)
A Zimbabwean named Dennis, who had obtained South African identity papers by claiming to be from Bophuthatswana during the 1994 reintegration of the homelands into South Africa, told Human Rights Watch that he believed he would have to pay a 100 rand [U.S. $ 20] bribe to be released from Lindela, despite the fact that he had South African identity documents: "I have been arrested three times, and have paid twice.... Here, everybody knows that to get out, you need to bribe. Everybody knows that. So many guys have gotten out of here by paying money."(86)
In response to the allegations of corruption that have been reported in the media, Lindela posted a 1,000 rand [U.S. $ 200] reward notice near the intake counter for information about corruption or abuse by guards. During our November 24, 1997, visit, Lindela management claimed that it investigated allegations of abuse and corruption, but that up to that time no disciplinary proceedings against guards had been instituted because no allegations had ever been substantiated. Lindela management claimed that three Department of Home Affairs officials had been caught taking bribes in a sting operation, but they were not prosecuted because the sting money had disappeared.(87) According to the chief immigration officer for Cape Town, corruption has been such a serious problem at Lindela that the Cape Town Home Affairs office was forced to institute its own system of checks to ensure that persons it sent to Lindela were not released without its permission.(88)
Physical Abuse During the Arrest Process
At the Lindela detention facility, we were shown a logbook by Lindela officials in which they entered any allegations made by incoming detainees about police beatings or other forms of abuse. The logbook, which, judging from the entry dates, appeared to have been in use for only a few days in October 1997, included a number of accounts of beatings by police. Accompanying photographs of the detainees showed the physical marks left by the beatings, and often suggested the seriousness of the beatings. The alleged assaults included the following: Bongani Tshuma, allegedly assaulted by police officers at the Booysen police station; Nelson Biyela, allegedly assaulted by police officers at Hillbrow police station; and Manuel Mlungu, allegedly beaten by police officers at the Florida police station. Given that these alleged beatings took place within a period of only a few days, it appears that police abuse, especially police abuse against migrants, remains disturbingly common in South Africa, partly because of xenophobic hostility towards migrants.
Public and police hostility against Nigerians is especially high, because of a wide-spread belief that Nigerians are extensively involved in the drug trade and other illicit operations. According to two Nigerians interviewed by Human Rights Watch, the police accompanied by local South Africans raided their Hillbrow apartment on the evening of November 21, 1996.(89) The eight Nigerian and six Ghanaian occupants of the apartment--sharing the apartment to minimize cost and to protect themselves against attacks by locals--were forced down the corridor, marched down to a police van and taken to the Hillbrow police station. The Nigerians claimed that they had been severely assaulted at the police station and had been threatened with shooting.(90) The two Nigerians interviewed by Human Rights Watch had a number of serious injuries, including gashes on their heads and legs. One of the two Nigerians, a medical doctor, claimed that the police had taken about "half of the nairas and dollars" while searching their apartment, luggage, and dressing tables.(91) While Human Rights Watch was conducting the interview, one of the Nigerians went to make a phone call to his family in Nigeria and was attacked by a group of six youth, who stole the money he was carrying. Needless to say, he did not consider going to the police station to report the incident as a realistic option.
Human Rights Watch also uncovered evidence of physical abuse of undocumented migrants at the hands of members of the armed forces. Benneth Mabaso, awaiting deportation at Komatipoort police station, told us how soldiers had assaulted him after he had alleged that they had stolen money from him:
They stopped the van and took us out to cross-question us. They were wearing camouflage uniforms. We insisted that they had taken our money, and they then beat us badly. When we were on the ground, they jumped on us with their heavy boots. My ribs were very sore. After that, the soldiers took us to the hospital.(92)
Mr. Mabaso showed signs of a recent beating and showed us the medication the hospital had given him for his injuries. Human Rights Watch brought this incident to the attention of police officials, who appeared unaware of the incident at the time. Superintendent Liebenberg commented that he frequently received complaints about theft and abuse against army personnel, "but when we try to open a case, they say that they just want to go back to Mozambique."(93) According to a December 2, 1997, fax from the Komatipoort police station to Human Rights Watch, this is exactly what happened in one of the cases we had requested the police to investigate: the victims reiterated their charges to the police, but said that they didn't want to press charges because they wanted to go home.(94) Superintendent Liebenberg told Human Rights Watch about a current court case where the victim had pressed charges, in which a woman attempting to cross the border illegally had been raped on March 19, 1997, by a military person.(95) However, in this case the woman was not kept in custody, and lived with her father in Thembisa, near Johannesburg. Military personnel often patrol the border in groups as small as two persons, which may increase incidents of abuse as there is little direct oversight of their activities while on patrol.
Our investigation suggests that the fear of long-term detention while charges of abuse or theft are being investigated is one of the main reasons why undocumented migrants do not bring formal complaints. Time and time again we were told by police officials that investigations into abuses were closed because the undocumented migrant had withdrawn the charges, opting to "go home." Considering the substandard conditions of detention faced by undocumented migrants (discussed below) and the fact that many undocumented migrants are important (if not the only) breadwinners for their families, this reluctance to remain in detention for a period of months is not surprising. In addition many migrants expressed doubt about their chances of obtaining justice in South Africa, a doubt certainly bolstered by the fact that they had allegedly been assaulted by representatives of the state in the first place.
As illustrated by the case of Benneth Mabaso, who reported being beaten by army personnel after complaining about the fact that they had stolen money from him, complaining about abuses often results in further abuse, not recourse to justice. In addition, the high level of decentralization in the migrants control system, the lack of a coherent oversight authority because of the confusion of agencies involved, and the speed with which some migrants (albeit by no means all) are deported allow abuses to take place without their being brought to light, and thus foster a culture of impunity and a disturbing lack of accountability for abuses. In other words, under the current system it is entirely possible that an undocumented person will be abused at a police station and deported soon thereafter without any outside knowledge of the abuse.
In the opinion of Human Rights Watch, the climate of xenophobia in South Africa and the common inflammatory remarks of politicians against migrants, foster the official abuses described in this report. Migrants are erroneously perceived as responsible for rising crime and as a serious threat to South Africa's socio-economic well-being.(96) Our interviews suggest that some police, army, and Home Affairs officials feel that they are serving their country's interests by abusing undocumented migrants, as this is likely to guarantee that the migrants will not return anytime soon to South Africa. The verbal insults thrown at undocumented migrants during abuse, and the common attitude of police officials that "you came to this country and brought this abuse upon yourself," lend credence to this interpretation.
Threats to Academic and Journalistic Freedom
Human Rights Watch is particularly concerned about a number of press reports which suggest that officials from the Department of Home Affairs are using their extensive powers under the Aliens Control Act to harass and deport critics of the current government, especially foreign academics and journalists.
In August 1997, officials from the Department of Home Affairs burst in on a lecture by American lecturer Aaron Amaral, teaching a class on Marxist philosophy at the University of the Western Cape. The lecturer was arrested in front of his class. Amaral is an outspoken Marxist, and was intimately involved in an organizing effort at the university by the Socialist Students' Action Committee, a student organization that was challenging the ruling ANC-aligned South African Students' Congress.(97) Ten days prior to the arrest, Amaral had received another visit from the same two immigration officials. According to Amaral, the officials told him that they were acting on orders from Pretoria (i.e., the headquarters of the Department of Home Affairs), but seemed entirely unclear of their assignment: "What was obvious about the intervention was that they wanted to get me off campus."(98) The head of UWC's philosophy department, Professor Andrew Nash, agreed with this assessment of the motivation of the officers: "These officers arrived with no knowledge of whether he was illegal or legal. All they knew was that they wanted him off campus. The whole thing smacks of victimization."(99)
Sixty-six academics signed a letter of protest in response, concluding that "the Department of Home Affairs has no business policing ideas on university campuses."(100) Human Rights Watch is concerned that the actions of the Department of Home Affairs will have a chilling effect on academic discourse in South Africa. South Africa has a significant number of foreign academics, lecturers, and teachers employed at its educational institutions and should aim to foster an environment of free inquiry, rational discourse, and open exchange of ideas. In the case of Amaral, it was alleged that home affairs officials described Amaral's work as "confusing our people."(101) The alleged victimization of Amaral is inconsistent with the internationally recognized--and constitutionally protected--freedom to seek, receive, and impart information and ideas of all kind.
The deportation proceedings commenced in February 1998 against Newton Kanhema, a leading Zimbabwean journalist working in South Africa, also raise the troubling specter that immigration proceedings are being used to limit freedom of the press in South Africa. Kanhema, a reporter with the Sunday Independent in Johannesburg, was the author of a number of muckracking articles critical of the ANC government. Kanhema exposed a controversial £1 billion (U.S. $ 1.65 billion) arms contract between South Africa and Saudi Arabia, which called into question South Africa's commitment to a new "moral" arms exporting policy.(102) In addition, he conducted a highly controversial interview with Winnie Madikizela-Mandela a few days before the ANC's 1997 Party Congress, in which she detailed her troubles with the ANC's leadership and criticized the government.(103) His journalistic activities had been repeatedly criticized by top ANC leaders, including by President Mandela's speech writers who approached the Sunday Independent and "questioned the advisability" of employing a foreign journalist as a senior political writer.(104)
In February 1998, Kanhema's wife was presented with a deportation order while her husband was abroad in the United States on a four-month Freedom Forum sabbatical at Emory University. The deportation notice was dated January 14 and gave the Kanhemas twenty-one days to leave the country.(105) Ostensibly, the deportation order is based on the ground that Kanhema misrepresented himself on his application for permanent residence under the amnesty for SADC citizens, but many observers are of the opinion that the real reason for the deportation proceedings are political in nature. The director of the journalism program at Emory University wrote a letter of protest to South African ambassador Franklin Sonn, commenting that "One could say Kanhema has stepped on government toes and they decided to withdraw his permanent residence permit on far-fetched grounds of technicality."(106) According to Sam Sole, president of the South African Union of Journalists:
While a direct link between the politicians and the officials has yet to be proved, we have no doubt about the political motive. Threats were made to Newton to watch out and be careful. He was told he is a foreigner and should not meddle in our politics.(107)
Conditions of Detention
Once an individual has been arrested as a suspected undocumented migrant, he or she will spend some time in detention awaiting determination of status and, where appropriate, deportation. The time spent in detention varies widely, from a few days for uncomplicated cases from some neighboring countries, to several months or even over a year for complicated cases. Usually, the person will first be held in a police cell for a few days, and later transferred to a prison or a specially designated detention facility where he or she will stay until his or her status has been determined, arrangements have been made with the home country through the national embassy, and transport has been arranged.
For example, in the greater Johannesburg/Pretoria area (Gauteng Province), the Department of Home Affairs has contracted a private detention center, the Lindela Detention Center in Krugersdorp, to serve as a centralized detention facility for the detention of migrants awaiting determination of their status and/or deportation. Most police stations and the Department of Home Affairs offices in the greater Gauteng area bring suspected undocumented migrants to the facility on a regular basis, either daily or several times per week. Thus, most police stations and Home Affairs offices only serve as temporary holding facilities, and the prison system is not extensively used in this area to detain undocumented migrants (although the prisons do detain foreigners who are awaiting trial on criminal charges or have been sentenced). By contrast, in Cape Town most migrants are detained either at local police stations such as Seapoint police station, or at prisons such as Pollsmoor prison.(108) Migrants are also detained in police cells in more remote areas, such as the Komatipoort police station near the Mozambican border.
In the case of Mozambican and Zimbabwean undocumented migrants, who comprise the vast majority of deported persons, the procedures are standardized. The Mozambican government has authorized the South African authorities to determine the nationality of Mozambicans, and thus no individual approval is needed from the Mozambican authorities prior to deportation.(109) Zimbabwean authorities visit the Lindela detention facility on a regular basis, and thus facilitate the repatriation process for Zimbabweans.(110) For other nationals, the process can be much more cumbersome. If the country has a diplomatic mission in South Africa, the mission will be contacted by the Department of Home Affairs to approve the repatriation; in some cases, where no mission exists, approval for repatriation must be sought via mail.(111) Human Rights Watch interviewed a number of people who had remained in detention for lengthy periods of time because of a lack of cooperation from their embassies. This included both people from neighboring countries such as Namibia and Tanzania, as well as people from more distant countries such as Mexico. According to the governing regulations, detention more than thirty days must be authorized by a judge of the High Court. Our investigation suggests that more often than not this does not happen.
Detainees awaiting deportation in police cells are the responsibility of the South African Police Service, rather than the Department of Home Affairs. The facilities in the police cells are designed to accommodate detainees for a period of forty-eight hours at a time, or at a maximum for a weekend, pending appearance in court. Conditions in the cells are regulated by the South African Police Service Act No. 68 of 1995.
Detainees held in prisons fall under the authority of the Department of Correctional Services; conditions in prisons are governed by the Correctional Services Act of 1959 and regulations under the act.(112) The prisons most used for the detention of undocumented migrants include Diepkloof (Johannesburg Central), Modderbee, Pretoria Central, Barberton, and Leeuwkop. Pietersburg prison in the Northern Province is also used for the same purpose.
As described above, the Department of Home Affairs has recently contracted out to a private company, the Dyambu Trust, the operation of a specialized detention center for undocumented migrants awaiting deportation. There is only one center of this kind, situated in Krugersdorp outside Johannesburg, the Lindela Detention Center. According to Home Affairs officials, "there are no similar centres in other provinces, nor are there any plans to create such centres. The reason for the establishment of such a centre in Gauteng was that the police and prison cells in that region are more overcrowded than detention centres elsewhere. This does not mean that all the other provinces should bring illegal aliens to this centre. Instead they should make use of the police and prison cells."(113)
Human Rights Watch visited a number of prison and police cells where individuals are held awaiting deportation, including at least one example of each type of facility. In addition we interviewed former detainees about their experiences and spoke to lawyers and others involved in refugee advocacy about detention conditions at various facilities. We visited the Dyambu-Lindela detention facility on three occasions. We also visited the Modderbee, Johannesburg (Diepkloof) and Pollsmoor prisons, and a number of police cells, including the Sophiatown (formerly Newlands), Johannesburg Central (formerly John Vorster), Witbank, Nelspruit, Komatipoort, Malelane, Hillbrow, Highpoint Satellite, and Pretoria Central police stations.
The Lindela detention facility is a privately owned and operated detention facility for migrants awaiting deportation. Lindela was formerly used as a compound to house migrant workers. The facility consists of an administrative block and two housing units, one for adult males and a second for women and children under sixteen years of age. It is located in Krugersdorp, about thirty minutes from Johannesburg, and serves as a centralized detention facility for Gauteng province. The facility was opened on August 19, 1996, in order to alleviate the chronic overcrowding of police and prison cells in the Gauteng region.(114) With an average daily population that fluctuates between 1,200 and 1,800 persons,(115) Lindela is the largest detention facility for undocumented migrants in the country, and the only facility specifically designated for that purpose. Most police stations and home affairs offices now bring suspected undocumented migrants to Lindela on a daily basis, or at least every few days.
The Department of Home Affairs pays the Dyambu Trust nineteen rands ninety-five cents [U.S. $ 4] per detainee per day to house and feed the detainee.(116) According to Lindela officials, this is substantially lower than the cost of housing a person in the prison system.
The decision by the Department of Home Affairs to use Lindela for the detention of undocumented migrants awaiting deportation was a matter of controversy. Dyambu Trust was created by several prominent members of the ANC's Women's League, including the present deputy minister of home affairs Lindiwe Sisulu, who resigned from the trust upon her appointment.(117) The Democratic Party has called for an investigation into whether or not appropriate tendering procedures were followed in awarding the contract to the Dyambu Trust.(118)
From its inception in August 1996 until the end of October 1997, Lindela detained 79,378 persons at its facility.(119) Of these, 67,186 were repatriated, while another 11,037 were released.(120) Mozambicans made up an estimated 64 percent of the total, with Zimbabweans accounting for another 27 percent. Human Rights Watch also spoke with people from many other African countries at the facility, as well as people from Mexico, Brazil, Pakistan, and India. Human Rights Watch visited the facility on three different occasions: on October 8, 1996, six weeks after the facility opened, on November 24, 1997, and on December 4, 1997. The facility has also been inspected twice by the South African Human Rights Commission, and Human Rights Watch was briefed by Commissioner Jody Kollapen on the findings of his October 28, 1997, inspection of Lindela.
The Intake and Processing of Detainees
Lindela's administrative area consists of several offices for Home Affairs and Lindela personnel, a sick bay with five beds, and a number of rooms used for the registration and processing of detainees. The detainees are registered on arrival, and then taken to an adjacent room where they are photographed, fingerprinted, and registered in an electronic database called Unisys. In a second room, detainees receive an identity card bearing their name, date of arrival, and the country to which they are likely to be deported. Both rooms are bare, except for cement benches on which the inmates sit. Detainees are often processed in large groups, which causes long waiting periods in uncomfortable circumstances. Throughout our visits, Human Rights Watch observed people sitting or standing in long lines, often for almost the entire day. The attitude of officials is often unfriendly, and our own observations support those of the South African Human Rights Commission:
The officials' attitude is very aggressive and hostile. The inmates' names were shouted out at them and they are expected to act in concert with the commands from the officials. The situation is reminiscent of the old pass law offices or some military barracks. Although it is common cause that the inmates are of foreign origin, the officials use Zulu as a language of instruction and this leads to some confusion.(121)
After completing the intake process, detainees are brought into the general population. The male compound consists of thirty-two separate dormitory rooms, with an average of thirty-two beds each, facing a central courtyard. Beds are metal frame bunks with mattresses, and some lockers are placed in the rooms. There are screened open-air urinals and a shower building are found in the middle of the courtyard. At the end of the courtyard, there are a number of toilets in a building with a very bad smell with pools of dirty water on the floor. The women's compound is essentially similar, albeit smaller. There are thirteen rooms in the women's compound, with five in active use and the others being used for storage purposes.
Lindela officials claimed that the facility had a carrying capacity of 2,500 persons.(122) After receiving several complaints from male detainees that they were forced to sleep two persons to a single bed, we decided to conduct a bed count for the entire compound. Our count found 1,010 functioning beds in the male compound, and a total of 115 functioning beds in the female compound.(123) Our inspection of the log book in the front office revealed numerous days when the population was greatly in excess of the number of available beds, rising above 1,700 on some days; statistics supplied by Lindela reveal that the average number of inmates in June and July 1997 was 1,647 and 1,516 respectively.(124) Thus, it is clear that the population of Lindela often exceeds the number of available beds, especially in the male compound which accommodates the majority of the Lindela population. Such conditions are incompatible with the United Nations Standard Minimum Rules for the Treatment of Prisoners, which require that "[e]very prisoner shall, in accordance with local or national standards, be provided with a separate bed."(125)
Detainees at Lindela receive two meals per day, at 6 a.m. and at 3 p.m., a meal pattern similar to that of many South African prisons.(126) The first meal consists of pap (cornmeal porridge, a staple food) and five or six slices of bread, while the second meal consists of pap and soup containing some meat. Meals are taken in a communal dining hall which appeared spacious enough. Complaints about the quality of the food were one of the most common concerns raised by inmates with Human Rights Watch. One Somali detainee told Human Rights Watch that the "soup is bad. It's for the pigs, I don't eat it."(127) A young Zimbabwean detainee told Human Rights Watch: "The food is very bad. Many of us are sick with stomach problems. I eat the food and get sick. They are poisoning us."(128) Detainees also complained that the meat in the soup sometimes appeared spoiled, and that this made the food difficult to swallow. There is a small shop inside the male compound which sells basic supplies, including bread. However, since many undocumented migrants are often arrested on the streets and not allowed to fetch their belongings, many detainees told Human Rights Watch that they did not have sufficient money to purchase things at the shop. During our December 4, 1997, visit, several detainees told us that the guards had denied them food privileges in retaliation for a recent protest by inmates.(129)
Lindela officials claimed that each detainee is allowed one free phone call during his or her stay at Lindela, and has to pay for additional calls at the rate of five rands [U.S. $ 1] per call.(130) However, many people told Human Rights Watch that they were never allowed to make the free call. During our visits, we were often asked to call family members or friends to inform them about their detention at Lindela. For example, Michael Mululu, a Namibian who had been detained at Lindela since October 7, 1997, told us that his repeated requests to make a phone call had been denied. He told us that he had never been informed of his right to one free phone call.(131) Four other Namibians told us that they were required to pay five rands [U.S. $ 1] to security personnel or office personnel to make outgoing calls, and that incoming calls were cut off after one minute.(132) Dennis, a Zimbabwean, told Human Rights Watch: "They say you are allowed one free call, but there isn't. You have to pay five rands [U.S. $ 1] to the security. Then they say it is busy. It is busy. So sometimes even if you pay you can't have the call."(133)
Similar allegations that persons are denied access to a free phone were made to reporters of the Star newspaper when they visited Lindela during October 1997. Danny Mansell, operations manager for Dyambu, reportedly responded to the Star reporters that the right to a phone call applied only to South Africans, and that the persons at Lindela were not South Africans.(134)
Abuse of Inmates by Guards
Detainees often complained about the rude behavior of the security guards working at the facility. In the words of a thirty-six year old Liberian detainee who asked to remain anonymous:
The guards are very rude. When I ask them something, they just walk away. And they yell at us and we are supposed to run to obey their orders. You know, I am not a criminal and should not be treated as one. I am an honest businessman.(135)
A former Somali inmate at Lindela, now a recognized refugee living in Johannesburg, related a similar experience with the guards at Lindela:
In Lindela, the food was a problem. Pap two times a day and very bad soup with bad taste. Second problem was the security guards who used to beat the people badly. I saw them beat the people, especially the Mozambicans. At night you can't sleep because of the loudspeakers on the roof. They drink at night and then assault the people. If you refuse an order, you are taken care of, beaten.(136)
During our first inspection of Lindela, Human Rights Watch was approached by one detainee who complained of having lost some teeth and sustaining other injuries after being assaulted by a Lindela guard for complaining about the extremely hot conditions in his dormitory room. We observed that the complainant did have several teeth missing, with the gums still bleeding, which would suggest a recent incident. The allegation was supported by three other detainees who claimed to have witnessed the incident. The witnesses claimed that the same guard had assaulted them a few days earlier after they inquired about their deportation date.(137)
During our December 4, 1997, visit, Human Rights Watch uncovered troubling evidence of a series of three severe beating incidents involving Lindela personnel which had taken place over the previous few days. A twenty-three year old Lesotho man, Qoane Francis Motlomelo, visibly in pain and walking slowly, was brought to us by a few of his friends soon after we entered the men's compound. He related in detail how he had been beaten a few days before:
I was locked into a room by myself, room twenty-three. Yesterday, three men entered the room. I was handcuffed and my leg was tied to a bed. One man started beating me. He punched me in the face and kicked me to the bladder. Later, I was urinating blood. My jaw is very swollen. After beating me up, they left me handcuffed. I was released by a night shift worker. They beat me from 10 a.m. and they beat me until 5 p.m., changing the people who beat me. That is when they left me. The next shift released me at 8 or 9 p.m.
They were wearing the very same uniform as the guys walking around here now. [He pointed to a Lindela security guard walking around outside. All Lindela staff wear the same outfit with a medium-dark blue shirt and a reddish tie with the Dyambu trust symbol.] I was taken to the doctor last night for treatment, around 10 p.m. I couldn't speak last night, my teeth are very sore. I couldn't walk or go to the bathroom. I am nearly naked now because my clothes are full of blood. They told me if I tell the police they will kill me. I am afraid.(138)
Mr. Motlomelo gave an essentially similar statement to the Krugersdorp police officers who were called at the request of Human Rights Watch to investigate the allegations.(139) A Lindela security guard, speaking on condition of anonymity, confirmed that the beating had taken place and that the screams of Mr. Motlomelo were audible throughout the Lindela compound.(140) Mr. Motlomelo's version of events was corroborated by four other Basotho detainees. One of the men, John Lefosa, told Human Rights Watch how he and some other men were waiting to collect their Lindela ID cards when a Lindela security guard entered the room with Mr. Motlomelo and started beating him. Two other security guards came and joined in the beating of Mr. Motlomelo in the waiting room, before taking him to room twenty-three. Mr. Motlomelo exited the room several hours later in the company of a security guard, disfigured and looking much worse. He was then taken to the Lindela doctor by Mr. Lefosa.(141)
Human Rights Watch discussed the incident with the Lindela doctor, Dr. Khota, who confirmed that Mr. Motlomelo had been examined by him. His short examination report, obtained by Human Rights Watch, noted that Mr. Motlomelo has a swollen jaw on the right side, a tender abdomen, and a possible bladder injury. The report further noted that Mr. Motlomelo had alleged that the injuries were a result of assault, and the doctor concluded that the patient should remain under observation and be sent to a hospital if his situation deteriorated further.(142) Lindela officials ultimately took action against two persons involved in this incident, who worked at a neighboring Dyambu Trust-owned hostel, not the Lindela detention facility.(143)
A second serious beating allegation was made by Fabion Ndlovu, an eighteen-year-old Zimbabwean detainee. According to Mr. Ndlovu, a black male official of the Department of Home Affairs had called him and another Zimbabwean by the name of Taylor to the office on Friday, November 28, 1997. The official demanded that they pay a 100 rands [U.S. $ 20] bribe, or 50 rands [U.S. $ 10] each, and promised to get them released from Lindela. Mr. Ndlovu paid the bribe, but never heard again from the Home Affairs official. The next day, Saturday, Mr. Ndlovu and fourteen other inmates residing in dormitory room eight at Lindela managed to escape, but Mr. Ndlovu and another inmate were caught at 2 a.m. on Sunday. According to the sworn statement given by Mr. Ndlovu to the Krugersdorp police station,
The security officer at Lindela called us and started assaulting us with baton sticks all over the body. They then took us to the office and let the dogs free to bite us. They continued to hit us and kicked us with boots. They then thereafter took us to room eight where they hit other inmates who were there. They again they took us to room one where they let the inmates hit us. One of the security officers demanded that I give him my car keys as I had told him the place where I parked it. I did not give him the car keys.
After hitting and assaulting us they took us to room thirty-four where they locked us up until Wednesday without giving us food and water and not allowing us to go to the toilet.(144)
Human Rights Watch observed that Mr. Ndlovu had untreated and infected dog bites on his left forearm.(145) His clothes were torn, especially around the arms, suggesting that they were shredded by the dog bites as Mr. Ndlovu was trying to fend off the attack.
The third beating incident had taken place the day before our December 4, 1997, visit. Apparently, the usual weekly train used to deport persons to Mozambique had not arrived on December 3, 1997, and Mozambican detainees grew concerned about the length of time that they would have to spend in detention at Lindela. Thomas Sithole, a Mozambican detainee, related what happened next:
I was fetched from my room with the other seven who were from Mozambique. The four security officers who fetched us claimed that we were planning a strike when we asked them, "When are we going home?" Then they started taking our ID cards while beating us with baton-sticks and clenched fists. We could therefore not go into the kitchen for our card were taken away. One by one these officers assaulted each one of us while we stood and watched.(146)
Our own observations and the perfunctory medical examination conducted by Dr. Khota confirm that the Mozambican inmates had been assaulted. For example, Dr. Khota noted the following during his examination of Samuel Sithole, one of the Mozambican detainees who claimed to have been assaulted: "Bruising and linear marks; Buttock with haematoma."(147) The linear bruises and haematomas on the buttocks of the alleged beating victims suggest a punitive beating incident in which the victims were bent over and whipped on the buttocks, consistent with their own testimony about the incident.
One detainee, David Nkuna, was taken to the hospital on the evening of December 4, 1997, because of internal injuries. He was rolling around on his bed and seemed in serious pain. He was bleeding from the nose and crying, and Dr. Khota said he was feverish and suspected internal bleeding. Before being taken to the hospital, Mr. Nkuna told Human Rights Watch: "The security took 100 rands [U.S. $ 20] from me while they were beating me. They turned me upside down and the money fell out of my pocket. They let me pick up the coins but took the 100 rand [U.S. $ 20] note."(148)
This third beating incident was confirmed by many inmates at Lindela. John Khambune, a Mozambican detainee who arrived at Lindela on the day of the alleged beating, told Human Rights Watch that "[y]esterday, they went from cell to cell beating people. Yesterday, they woke us at night, beating us. This place is bad."(149) Another detainee from Zimbabwe, Dennis, told us,
The problem is that we are not treated like human beings. Yesterday, guys were beaten severely. One guy was thirteen years old. He was beaten severely with a baton stick. And kickings. Very bad. These guys from Maputo [Mozambique] were complaining that they wanted to go home. So for this, they were beaten severely.(150)
The press reported that Lindela's operations manager Danny Mansell had confirmed that an incident had taken place at Lindela the day before our visit. He claimed that the incident started when 600 Mozambican detainees, impatient to go home, stormed the Lindela gate and hurled bottles and other projectiles at guards. Guards retaliated with dogs and batons. He reportedly acknowledged that guards were accused of beating detainees hours after the confrontation and admitted that detainees had identified four guards involved in the post-incident beating from a line-up.(151)
Mr. Mansell also told the press that the detainees later dropped the charges because they were desperate to go home, but that Lindela was continuing its investigation of the four guards. A later fax from Mr. Mansell informed us that no disciplinary action had been taken with regard to this incident.(152) None of the detainees interviewed by Human Rights Watch about the incident mentioned a riot-like situation. Moreover, the testimonies gathered by Human Rights Watch and the injuries inflicted strongly suggest that the beatings took place while security guards were in full control of the situation. Thus, the evidence suggests that the beatings were punitive in nature and were not a proportionate use of force to re-establish control over unruly detainees.
International standards provide certain guidelines for the imposition of disciplinary and punitive measures. The U.N. Standard Minimum Rules for the Treatment of Prisoners require that conduct constituting a disciplinary offense, the types and duration of possible punishments and disciplinary actions, and the authority competent to impose such disciplinary measures must all be defined in the regulations of the institution or determined by law.(153) When asked if Lindela had such a disciplinary code prior to when the above-described allegations came to light, a Lindela official replied that they never had disciplinary problems at the institution and that, if a fight or something would occur, they just placed the offenders in room one, so the guards could "keep an eye on them."(154) Human Rights Watch did not find a coherent system to inform Lindela detainees of their rights and duties, and there appeared to be no rules or standard disciplinary procedures in place.(155) The Standard Minimum Rules also expressly prohibit the kind of physical punishment that was meted out to the detainees in these cases:
Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman and degrading punishments shall be completely prohibited as punishments for disciplinary offences.(156)
At the time of our visit, it did not appear that any investigation into these three incidents had been initiated. At the request of the victims, Human Rights Watch brought the incidents to the attention of the Lindela management and requested that the police be contacted to conduct an independent investigation. The Krugersdorp police officers arrived approximately seven hours after having been initially contacted about the beatings and seemed reluctant to get involved. It took some insistence by Human Rights Watch to get the officers to take statements and open an investigation of these serious allegations. During the day, the ten detainees told Human Rights Watch that a security officer came into the room where they were waiting for the police and threatened them with retribution later that night. Concerned about the safety of the ten detainees in light of this alleged threat, Human Rights Watch suggested that the detainees be removed from Lindela and taken into police custody. However, an official of the Department of Home Affairs, refused to authorize the required body receipt--a document necessary to authorize the transfer of a detainee from the authority of the Department of Home Affairs to the authority of the police.
Human Rights Watch believes that this incident illustrates a serious lack of accountability at Lindela. It would appear that no investigation into these allegations would have taken place in the absence of the intervention by Human Rights Watch. Although management was aware of the escape attempt and the incident involving the Mozambicans, and the doctor had examined Mr Motlomelo and had included the allegation of beating in his report, no internal investigation had commenced by the time Human Rights Watch brought these incidents to the attention of management. Even with the intervention of Human Rights Watch, the ensuing investigation by the Krugersdorp Police Station was flawed and marked by a lack of serious concern for the safety of the alleged victims, even after they claimed to have been threatened with further harm by a Lindela guard. It took an insistent phone call from Human Rights Watch to the superintendent of the Krugersdorp police station to convince the police to investigate the allegations, and even then the conduct of the police remained extremely reluctant.
The fact that most detainees only remain at Lindela for an average of five days before being deported severely limits the time available for the investigation of abuse claims. In the cases investigated by Human Rights Watch, detainees seemed to have a complete lack of confidence in the ability of Lindela to investigate claims of abuse, and most detainees did not even attempt to bring abuse to the attention of management. The fact that detainees would have to remain in custody at Lindela for several months in order to allow for an investigation and prosecution further hampers detainees from pursuing complaints of abuse against Lindela. Time and time again, Human Rights Watch spoke with people who were reluctant to pursue their cases because, in the words of Lindela manager Danny Mansell, they were just "desperate to go home."
In the case of the beating allegations discussed above, the detainees ultimately withdrew all charges against Lindela security personnel. According to two of the original complainants, Thomas Sithole and Armando Nyashale, the complainants were approached by Lindela security guards and told that they would have to remain in detention at Lindela "until next December"--an entire year--if they pursued their case.(157) Armando Nyashale told us, "This was imprisonment, so we decided to withdraw. The others stopped the suit, only I and Thomas were left, thus it was futile."(158) Despite promises to Human Rights Watch by the Lindela operations manager that the complainants would not be physically threatened or otherwise pressured into withdrawing their complaints to the police, the two complainants interviewed by Human Rights Watch after the withdrawal of the complaint said that they had been intimidated into withdrawing their complaints. They claimed they were brought into a room in pairs where they were questioned by a white, out-of-uniform person, whom they believed to be a Lindela staff member, and a translator.(159) When these allegations were raised with Lindela management, they replied that these meetings were part of an internal investigation into the abuse allegations and not an attempt to interfere with the police investigation.
We engaged in some limited discussions with Lindela about remedying some of the problems discovered during our inspection of the facility. One of the improvements suggested by operations manager Danny Mansell was the placement of an independent ombudsperson at Lindela, to which detainees could direct complaints. Human Rights Watch agrees that the placement of an independent ombudsperson would help provide some of the necessary oversight of the Lindela facility which is currently lacking and may help limit incidents of abuse at Lindela. In order to be effective, such an ombudsperson should be truly independent and adequately trained, and preferably from the South African Human Rights Commission or another similarly independent body (or a human rights nongovernmental organization) in order to prevent conflicts of interest. Because of the short period of time many undocumented migrants spend at Lindela, it is essential that the ombudsperson is present at the facility on a frequent and regular basis, at least for one day per week. The ombudsperson should have the power to investigate a wide variety of complaints, including conditions of detention, complaints of physical abuse, and claims of bribery and corruption.
Claude Schravesande, Department of Home Affairs Director of Admission and Aliens Control, told Human Rights Watch that it is possible that Lindela may cease being used as a detention facility in 1998 because no funds are available to continue the contract.(160) At the time of our visit, negotiations between the Department of Home Affairs and the parliament to obtain funding for Lindela were continuing. A fax sent to Human Rights Watch by Lindela management informed us that the contract has been extended until March 1998.(161)
Despite the many serious problems at Lindela, many commentators and officials consider the use of a centralized facility preferable to a return to a decentralized system where persons are detained in police cells and prison facilities only. Police cells and prison facilities are already severely overcrowded, and detaining migrants awaiting determination of status or deportation in these facilities presents equally serious problems. Police and prison officials were uniformly apprehensive about housing a large number of undocumented migrants at their facilities. When we asked Superintendent Du Pisanie of the Hillbrow police station about the possibility of Lindela shutting down, he told us:
I hope Lindela does not shut down. That would create problems. A few years ago, we had fifty to sixty foreigners here over Christmas. Home Affairs shut down, and we were left with the problems. There was a hunger strike and all sorts of demands. These people are not criminals and should not take up our cell space.(162)
Human Rights Watch agrees with some of these concerns about a return to a system of detention of undocumented migrants which relies primarily on police cells and prisons. As documented in this report, undocumented migrants in detention are in danger of being assaulted and robbed by criminal suspects in unsegregated environments.(163) Detaining undocumented migrants in police cells also creates problems of adequate oversight and complicates the status determination process since Department of Home Affairs officials must then travel to a greater number of detention facilities to interview and determine the status of detainees. In our opinion, these envisioned complications are serious enough to recommend the continued use of a specialized detention facility for undocumented migrants.(164)
However, the conditions of detention of such a detention facility must be in compliance with internationally recognized minimum standards and must meet the requirements set forth in the South African constitution and relevant legislation. Our investigation establishes that the current detention conditions at Lindela do not meet these minimum requirements in a number of important areas. The Department of Home Affairs, as the government agency under whose authority undocumented migrants are detained at Lindela, has the primary responsibility to ensure compliance with these standards. It cannot abdicate this responsibility by contracting with the Dyambu Trust for the detention of undocumented migrants.
Human Rights Watch visited Modderbee (near Johannesburg), Johannesburg (Diepkloof) and Pollsmoor (Cape Town) prisons during our investigation. The number of undocumented migrants detained within the prison system varies greatly from day to day, and it appears that other prisons in addition to the ones visited, including Barberton prison near the Mozambican border, are occasionally used for the detention of undocumented migrants. As the policy regarding detention of undocumented migrants is in great flux, it is possible that prisons may play a greater role in the future in the detention of undocumented migrants. According to the Director of Admissions and Aliens Control, the Department of Home Affairs was at the time of our interview negotiating with the Department of Corrections about the use of prisons to detain undocumented migrants, partly in anticipation of the possible closure of the Lindela detention facility.(165) In his opinion, the Department of Corrections was required to house undocumented migrants brought to their facilities, as this was part of its statutory duties.(166)
In general, prison facilities appeared to be physically inferior to the Lindela facilities and much more restrictive of movement. Conditions of detention in the South African prison system remained similar to those found by Human Rights Watch during our earlier (1992-93) investigation, reported in Prison Conditions in South Africa,(167) although overcrowding had led to a further deterioration of standards in some cases. According to Home Affairs officials, the South African prison system is currently running at an average occupancy rate of over 200 percent and is suffering from a severe staff shortage.(168) According to officials at both Modderbee and Pollsmoor prisons, all prisons are currently approved to operate at a 175 percent occupancy level because of the severe overcrowding problems, and many prisons have occupancy rates in excess of this. Complaints about lack of access to showers, dirty blankets, and other unsanitary conditions, as well as the quality of the food, were more frequent during our prison interviews than at Lindela. On the other hand, complaints about guard abuse were less frequent, although detainees did complain about abuse at the hands of South African inmates.
Pretoria Central Prison
Human Rights Watch visited Pretoria Central prison on October 11, 1996. Prison officials refused us access to the cells and denied us the opportunity to select detainees for interviews, claiming that such access would be dangerous because they were understaffed and it would be difficult for them to guarantee our safety. According to officials, there were about fifty undocumented migrants in the facility at the time of our visit, including five women. A less than satisfactory compromise was reached, whereby the prison authorities selected a few of the detainees to come and talk to us in the office of one of the prison officials.
Mr. Mafwala, one of the two persons interviewed at Pretoria prison by Human Rights Watch, described the conditions in the prison to us, since we had been refused an opportunity to inspect the facilities ourselves. He told us that all of a group of persons arrested at a protest at the Union Buildings against the standards used for refugee status determination (discussed below) stayed in one communal cell. There was a single toilet in the cell, but it was often blocked, including at the time of our visit. There was also a shower and a sink in the room, but the water in these was not working at the time. They had told the guards about the lack of water, but nothing was done about this. He continued, "We have bunk beds and mattresses, but they are dirty. The blankets are not washed and most people are complaining of skin problems. We found the blankets dirty on our arrival, infested with fleas and lice. We are provided only with soap, toilet paper, and toothpaste, and wash our clothes ourselves when there is water."(169) Two meals a day were served, one at 7 a.m. consisting of pap (porridge) and the second at midday when the detainees get pap again, with meat on Mondays and Fridays and with eggs on Saturdays. The meal schedule means an up to nineteen-hour wait between the midday meal and the next morning meal, a common and persistent problem in South African prisons.
The second person we interviewed, Goma Nsika, told us that although the cell lighting was good, the windows were placed so high that they could not see outside the cell. During their long detention, the detainees arrested following the Union Buildings protest had only been allowed outside the cell once, on the Sunday before our visit. The detainees had requested to be able to use the sport facilities, but this was denied on the grounds that they were only temporary detainees. Mr. Nkisa also told us that the detainees had been using the same sheets for the last month and a half, and that their blankets had not been washed in forty-one days. He said many people were complaining about bed-sores, and described the cell as a "chicken-house."
Johannesburg (Diepkloof) Prison
Human Rights Watch visited Johannesburg (Diepkloof) Prison on May 20, 1997. Diepkloof is a medium security prison, designed for prisoners serving sentences of five years or more. The prison is divided into several sectors, called Mediums A, B, and C, and a female section. Medium A is reserved mainly for unsentenced prisoners, although there are a number of sentenced prisoners who work in cooking and cleaning. Medium B is strictly for sentenced prisoners, as is Medium C which is reserved for inmates serving longer sentences. The female section holds sentenced as well as unsentenced prisoners in segregated cells. Each cell block includes large communal cells as well as individual cells.
At the time of our visit, we were informed that since early 1997, undocumented migrants awaiting deportation were no longer kept in the prison. However, during our later visit to Modderbee Prison, an official from the Department of Correctional Services informed us that approximately 500 female undocumented migrants awaiting deportation were in the process of being transferred to Diepkloof Prison.(170) Thus, it appears that Diepkloof continues to be used on at least an occasional basis for the detention of undocumented migrants awaiting deportation. Sources indicated to Human Rights Watch that it was likely that Lindela would be turned into an all-male institution, and that Diepkloof Prison would become the preferred detention facility for female detainees awaiting deportation.
Conditions at Diepkloof appeared similar to those at other prisons. Due to overcrowding, the usual schedule of three meals per day had been reduced to two meals, with breakfast served at about 8 a.m. and a second meal served between noon and 2 p.m. When Diepkloof was used more extensively as a detention center for undocumented migrants in 1996, the undocumented migrants were kept in communal cells in Medium B, which tended to get overcrowded following police raids in which undocumented migrants were arrested. There were no recreational opportunities, so detainees spent most of their time either cleaning their cells, kitchen, and dining hall or sitting around in an enclosed and guarded area adjoining their cells. According to the Diepkloof internal security supervisor, it is difficult to organize any activities for persons awaiting deportation because they can be released or deported at any time.
Human Rights Watch interviewed two former detainees from Diepkloof about conditions at the facility. A Zimbabwean former detainee told us that he had been arrested at Rosebank, Johannesburg, on May 15, 1996. He told us he was kept at Hillbrow police station for about two weeks before being transferred to Diepkloof where he spent an additional three weeks before being deported to Beit Bridge at the Zimbabwean border on June 14, 1996.(171) He claimed that when he was deported, the prison authorities kept his belongings, telling him and his fellow deportees that "anyway, you are coming back soon."(172) A second former detainee told us that the prison officials would occasionally deny food to detainees as a form of punishment for refusing to do cleaning work and other such petty reasons. At other times, the detainees were given only porridge for food, without any meat or soup. The former detainee also described a beating incident that occurred during his stay at the prison in 1995, in which he claimed detainees were beaten, kicked, and slapped with the aim of "discouraging us from coming back to South Africa," and said that other detainees from Mozambique were ill-treated and told by guards that they must "get used to their country," implying that such abuse is routine in Mozambique.(173)
At the time of our December 10, 1997, visit, there were 6,195 persons detained at Pollsmoor Prison, comprising 2,904 unsentenced persons and 3,291 persons serving sentences. The occupancy level for which Pollsmoor was designed is 3,261 persons. Considering that there are always a number of un-usable cells in a prison this size, and taking into account the requirement to segregate certain classes of inmates, it is clear that the prison was operating at a severe level of overcrowding, conservatively estimated at 200 percent occupancy.
Approximately forty-five Mozambicans were about to be deported on the day of our visit to Pollsmoor. These men had all been arrested at a building site in Cape Town on October 10, 1997, and had been kept in custody for two months while the Department of Home Affairs prosecuted their employer and the recruiting officer for violations of the Aliens Control Act's prohibitions on hiring undocumented migrants.(174) The Mozambican workers were not prosecuted, but had to remain in custody for the two-month period in order to testify against their employer and recruiter. One worker told us he had been attacked by South African gang members--gang violence is a major problem in South African prisons(175) and on the Cape Peninsula--when the Mozambican workers were initially kept in a large communal cell with prisoners awaiting trial, and he showed us a scar on his chin.(176) He claimed that other attacks by gangsters and thefts had taken place when they were being transported to the court in Cape Town and while awaiting the court hearings in the cells at the court.
Later, Human Rights Watch interviewed other migrants from Uganda, Tanzania, and Malawi who told similar stories about abuse at the hands of prisoners awaiting trial. Joseph Mugisha, a Ugandan, explained how he had been robbed upon arrival at Pollsmoor:
I came to Pollsmoor on December 5. We were put here with hardcore criminals in a communal cell. The criminals took my watch and my shirt. I was in a communal cell on Friday, Saturday, and Sunday, three days.(177)
Luggy Lianda, a Tanzanian detainee, told us that "[a]t first, I was put together in a cell with criminals. The other inmates stole my money, shoes, and trousers."(178) Another Tanzanian, Aridi Omali, told us how he was kept in a communal cell for three weeks with prisoners awaiting trial:
When we arrived, we were mixed with the criminals, and they took my money, 300 rands [U.S. $ 60], and my trousers and shoes. I was mixed with them for three weeks. They didn't hurt me because I just allowed them to take my stuff. After that, I sneaked into the cells with the Mozambicans. The chiefs [i.e. guards] slapped me in the face because I was not supposed to be in this cell. After that, the Mozambicans complained to the chiefs saying that I was a foreigner like them and should be allowed to stay with them. Then the chiefs let me stay.(179)
Cliff Mucheka, a Malawian citizen, was similarly robbed by prisoners awaiting trial and complained to the guards. According to him, the guards told him: "Why did you come to this country? It is your own fault."(180) When Human Rights Watch discussed these abuses informally with prison officials at the end of our visit, they acknowledged that suspected undocumented migrants were kept together with inmates awaiting trial during the intake process. According to them, all prisoners brought to Pollsmoor on a certain day are kept in a large communal cell until time can be found to process and intake them. Depending on the number of persons needing to be processed, detainees can spend several days in this communal cell, especially over weekends when staff levels are reduced. However, this explanation does not address the additional allegations made by some detainees that they were kept in communal cells for several weeks with prisoners awaiting trial.
The practice of keeping detainees awaiting determination of status or deportation in the same cells as criminal suspects is in contravention of the U.N. Standard Minimum Rules for the Treatment of Prisoners. The Standard Minimum Rules require the segregation of different categories of prisoners, including segregation on the basis of "the legal reason for their detention."(181) Particularly, the Standard Minimum Rules require the segregation of civil detainees from persons imprisoned by reason of a criminal offense.(182)
Living conditions at Pollsmoor were similar to other prisons inspected. The building housing undocumented migrants is a very large cell block, and the noise level is deafening, with constant yelling down the corridors. During our visit, a group of inmates was busy polishing the floor to the point of a dangerous slickness, while dancing, stamping, and loudly singing down the corridors in an impressive display. We inspected one large communal room which had just been vacated by the Mozambican worker group that had spent almost two months in the cell, and was in the process of being cleaned. It measured about 5.5 meters by thirteen meters and had a pile of mats on one side. There was a toilet and a shower in the room and a series of lockers to store possessions, although without locks.
Most of the remaining detainees were found in groups of three in individual cells. The tiny cells, measuring about two meters by 2.5 meters, contained only a single bed (a few cells had bunk beds) and a small sink. The cells appeared very crowded when occupied by three persons, and the detainees explained that they sleep with two persons in the single bed, while the third person sleeps on a mat on the floor. Mr. Mucheka told us that "conditions at Pollsmoor are tough. There are lice, and the toilets are dirty and unsanitary. We have to eat in the cells but they are not conducive to eating because of the bad smell."(183) Aridi Omali complained that "the lice bite me. The blankets are dirty, like they haven't been washed in a year. It causes sickness."(184)
Sanitary conditions were deplorable, and washing facilities were often unavailable. Mr. Mugisha told us: "There are no baths so we can't wash our bodies. I asked to go wash today, but they said the showers don't work. Even the sink in our cell is broken."(185) Some of the detainees claimed that they had never been able to wash their bodies while at Pollsmoor. Even when there were washing facilities available, the severe overcrowding made it difficult to keep a sanitary environment. In the communal cell, "there were a lot of people, about fifty-five, so you have to wash quickly because there are many people waiting and there is only a bit of hot water. There was only one toilet which we all had to use."(186) Detainees also complained that the bright lights in the room, which were constantly turned on, even at night, hurt their eyes. One detainee told us that he had repeatedly requested medical attention for a painful toothache for almost two months, but had not received any medical attention or medication.(187)
Detainees at Pollsmoor receive two meals per day. At about 8 a.m., they receive a breakfast of porridge, two pieces of bread, and coffee with sugar. The second and final meal of the day, served around noon, consists of boiled corn, some chicken or pork, four slices of bread, and a drink that detainees make from water mixed with a powder. For the twenty hours between the noon meal and the next breakfast, no food is served. In the words of one detainee, "by 8 p.m., you are very hungry."(188) The U.N. Standard Minimum Rules for the Treatment of Prisoners require that "Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served."(189) The meal schedule adhered to at Pollsmoor and other prisons is inconsistent with this international standard.
In addition to the large group of Mozambicans who had spent almost two months at Pollsmoor, there were other undocumented migrants at Pollsmoor who were awaiting deportation who had been detained for similar periods of time. Luggy Lianda had spent about a week in detention at Sea Point police station before transferring to Pollsmoor, where he had spent close to two months at the time of our visit. Aridi Omali and Abdallah Lamazani both claimed to have spent about a month in detention at the time of our visit. Detainees spend almost their entire time locked down in the cells, except for when they get food. Joseph Mugisha, who had been at Pollsmoor for five days, claimed that he had only been allowed outside his cell once during this time. The U.N. Standard Minimum Rules for the Treatment of Prisoners require at least one hour of outdoor exercise per day.(190)
Police cells in South Africa are mainly designed for the temporary detention of criminal suspects and do not have the necessary infrastructure for long-term detention, whether of undocumented migrants awaiting deportation or of others (during the course of our visits, we interviewed a number of criminal convicts who were serving sentences of a number of months in police cells). Human Rights Watch visited a number of police stations, including Sophiatown (formerly Newlands), Johannesburg Central (formerly John Vorster Square), Witbank, Nelspruit, Komatipoort, Malelane, Hillbrow, Highpoint Satellite, and Pretoria Central police stations. Detention conditions at most of the police stations were quite similar. Living conditions are very cramped, in dark, damp, smelly and overcrowded cells. Washing facilities are often limited, and recreation is non-existent.
The cells at most police stations were of two standard types: a ten-person cell and a larger twenty-five-person cell. The standard ten-person cell measured about four meters by four meters, while the standard twenty-five-person cell measured about four meters by eight meters. Even when used at their suggested capacity, the cells were extremely crowded, with mattresses covering the entire floor and almost no space to move around in the cell. At Witbank, a detainee complained, "We are very overcrowded. It is bad because we can get diseases."(191) In most cells we visited, detainees were just lying around on the floor, talking to each other. Detainees were often locked in their cells for entire days, and were not able to exercise or engage in physical or recreational activity.
The crowded conditions and inadequate access to sanitation caused many of the cells to have a sharp and unpleasant odor. At Pretoria Central police station,(192) the one available toilet adjoining the cell in which undocumented migrants were detained was blocked and filled to the brim with excrement. Dirty water had overflowed the toilet bowl and covered the floor. The smell, almost unbearable, was very strong inside the adjoining cell where the detainees were kept. The detainees in the cell claimed that the toilet had been blocked since before their arrival at the police cells.(193) The detainees had volunteered to clean the toilet themselves because of the smell and out of fear of getting sick, but they claimed that the police officials refused to provide them with the necessary cleaning materials.(194) At the Witbank police station, detainees in a large communal cell had covered the toilet inside their cell with blankets in order to try and contain the smell.(195)
Ventilation in many of the cells was inadequate, exacerbating unsanitary and unpleasant conditions. At Pretoria Central and other police stations, inmates were unable to control windows and thus ventilation. Inmates at Pretoria Central complained of the excessive heat in the cells during the summer, saying that they were continuously sweating and uncomfortable because of the heat.(196) During the night and in winter, thin cell walls and inadequate blankets often made the cells bitterly cold. One inmate at Bushbuckridge police station, Moses Matevula, complained to us about the cold: "We do not have adequate blankets, so it is cold at night."(197) As with the prisons we visited, blankets were dirty and often covered with lice. According to the South African Human Rights Commission, detainees at Alexandra police station "were held overnight in cells with no beds or bunks, very few blankets, a shortage of hot water, and often a shortage of food."(198)
Washing facilities were extremely limited. At Witbank police station, the sergeant showing us around the facility complained about the shoddy quality of construction of the facility: "Many cells are broken, and the toilets and showers often are not working. These buildings are not strong. Many cells are not working. Six are in good order, three don't work."(199) At Pretoria Central police station, the shower available to detainees was not working, allowing only the "earliest bird" to wash, "but only his face."(200) At Bushbuckridge, only cold water was available, and inmates were not given soap to wash with.(201) At Kameelsdrift police station, detainees had only a washbasin available.(202)
Because many police detention facilities were not designed for long-term detention, facilities for food preparation were often inadequate. Detainees at Kameelsdrift complained that they receive only bread and tea (without sugar) and a small amount of pap (porridge) and meat, but never vegetables.(203) At Bushbuckridge police station, detainees complained that "we always eat beans," describing both lunch and dinner as consisting of porridge and beans, sometimes with cabbage or chicken.(204) A Pakistani detainee at Pretoria Central complained that food was often inadequate and described the soup as "water in which hundreds of people washed themselves until it becomes solid."(205)
Although most police stations provided three meals to inmates, sometimes only two meals were provided, ostensibly because of inadequate staff. Male detainees at Pretoria Central police station also complained of thirst and did not appear to have free access to drinking water, a direct violation of the Standard Minimum Rules which provide that "Drinking water shall be available to every prisoner whenever he needs it."(206) Further, detainees at Pretoria Central police station ate in their cells, despite the very strong odors emanating from the blocked toilet. Male inmates told us, and Human Rights Watch observed, that soup was brought to the cell in a communal container, with bread on the side, and that they all ate from the same container without being given spoons.
Although men and women were separately housed in all police cells visited by Human Rights Watch, juveniles were often housed with adults, and undocumented migrants awaiting deportation were often housed with prisoners awaiting trial. At Witbank, for example, there was a Swazi awaiting deportation who was housed alone in a cell with a large number of criminal suspects, while the cell with most of the undocumented migrants also contained a mentally disturbed criminal suspect. At Bushbuckridge police station, several juveniles were housed in cells with adults. Police officials at Johannesburg Central police station told us that the limited number of cells available to them due to renovation work forced them to mix criminal suspects with undocumented migrants awaiting deportation.(207)
We also received several complaints about the lack of access to health care. At Bushbuckridge, we were approached by two inmates in separate cells who had severely infected, septic wounds and who claimed that they had not had adequate access to a doctor. A third man showed us a serious rash and claimed that the police officials had refused to take him to a doctor. A Zimbabwean woman who was transferred to Lindela from Queenstown police station a few days before our visit complained about the lack of health care at both the police station and Lindela: "I have been sick for two weeks, but they give me no treatment, no injection, nothing. I haven't even seen a doctor, I don't even know if there is a doctor here."(208) Luggy Lianda, from Tanzania, was detained at Sea Point police station in Cape Town for a week and complained of a toothache: "I was ill with a toothache and told the police about this, but nothing was done about this."(209)
Despite these deplorable conditions, suspected undocumented migrants often spend significant amounts of time in police detention, either awaiting deportation or transfer to another detention facility. A Zimbabwean woman at Lindela recounted to Human Rights Watch how she and a group of Zimbabwean women had been detained at Queenstown police station for three weeks:
We were arrested at Burgersdorp, near East London, all of us together, on the 13th of November.... Home Affairs took us to the police station, and the same day they took us to Queenstown police station. They put us in prison [sic] for three weeks. The food we were given was just bread and soup, the soup was just flour and carrots, and tea without sugar. Three times a day we were fed. We were mixed with criminals, sometimes there were more than twenty people in the one cell which was about four meters by four meters. We slept on mats on the floor. The Home Affairs people didn't even come to see us until the 1st of December. Then they took us here in a combi [a minivan], but they didn't give us any food during the trip which took the whole day.(210)
Other people interviewed by Human Rights Watch had also been in detention at police cells for several weeks, such as Dumisa Mavimbela who had been arrested on November 14 and was interviewed by us at Witbank police station on November 29. Lucas Morris, interviewed at Lindela, told us he had spent a month in detention at C.R. Swart police station in Durban prior to transfer to Lindela.
Although we were briefed by military personnel about the scope and nature of their operations at the Mozambican border, and we observed these operations during a night mission, Human Rights Watch did not inspect any military detention facilities. While our team was observing the military's border operations, a single Mozambican was caught while attempting to cross the border. He was brought to one of the substations adjoining the border fence and asked to sit on the curb where he remained until we left about four hours later. One of the soldiers offered the detainee some food, apparently out of his own personal rations.
According to military officials, undocumented migrants detained by the military are normally kept at the substation for a few hours while being questioned by military personnel to gather information about how they entered the country, and especially about organized smuggling groups.(211) Detainees are kept at the substation until these interviews are done, and until enough undocumented migrants have been apprehended to make a trip to the Macademia base worthwhile.(212) If persons are detained for more than four hours, they are given water and food. At the base, the platoon commander hands over the undocumented migrants together with an incident report and a body receipt. Detainees are kept at the base until they are brought to the Komatipoort police station, where they are handed over into the custody of the police. If undocumented migrants are found who seem to have valuable information about smuggling rings or other matters, they may be kept at the base for further interrogation.
Unlawful Long-term Detention of Undocumented Migrants
According to the legislation covering the detention of undocumented migrants, detainees must be informed of the reason for their detention after the first forty-eight hours in detention, and their detention must be reviewed after a period of thirty days by a judge of the High Court (as discussed in Appendix A to this report). Despite these statutory requirements, Human Rights Watch found all of the persons at Lindela who had been detained there for more than thirty days to have been detained without review, in some cases for several months. The case of Valentim Daimone Manheira seemed typical of these long-term detainees. Mr. Manheira, a gentle man in his fifties, told us about his experience at Lindela:
I came to South Africa in 1956, when I was a small boy. I lived in Pretoria West, Court Street Number 76. I am a panel beater [auto body repairer] by profession. I got arrested in Pretoria on June 25, 1997. The police man said 'we don't need people from other countries here.'...
The police just brought me to Lindela, and I have been here ever since. They say they must contact the Brazilian embassy, so I just wait. They don't care that I have been here so long. I don't know now if they will get me a permit or send me back to Brazil. I know nobody in Brazil, my parents died a long time ago when I was small.
I have never been to court to see a judge, just to the Brazil embassy in Pretoria. In three months, I have only talked to Home Affairs twice (sic). The first was when they gave me my [Lindela identification] card. The second was the 13th of October, when they took me to the embassy. On the 27th of November, we went again to the embassy.
I have no money left. My wife doesn't even know I am here. She lives in a remote part [of KwaZulu] and has no phone. I just follow the guards' orders and they leave me alone. But people do get beaten, I've seen it myself. They beat you very bad if you try to escape.
I only have one set of clothes and they are all broken. When I wash my clothes, I wear a blanket. All my possessions are at my home in Pretoria. I don't know if they have broken into the house by now, it has been so long.(213)
Mr. Manheira was not alone. According to data obtained at Lindela by Human Rights Watch, twenty-seven persons were detained for periods longer than thirty days at the time of our December 4, 1997, visit.(214) Mr. Babo Munelele, a suspected undocumented migrant from the United Kingdom, had been at Lindela since August 1, 1997, a period of four months.(215) Mr. William Tambo, a suspected undocumented migrant from Mexico, had been at Lindela since August 5, 1997.(216) There were also a Cameroonian, several Namibians and Angolans, a Botswanan, a Somali, a Malawian, as well as two Pakistanis and an Indian who had all been detained well in excess of thirty days at Lindela.
In addition, many of these individuals had spent additional time in police custody prior to transfer to Lindela. For example, David Petrus, a Namibian citizen, told us that he had been detained at Pollsmoor prison in Cape Town for three weeks from the time of his arrest on August 28, 1997, until his transfer to Lindela on September 18, 1997.(217) A Tanzanian detainee, Lucas Morris, told us,
I was arrested in Durban in August. I have had piece jobs there for a year. I was kept in C.R. Swart police station for one month. Then I went to the Westville jail in Durban. Then here to Lindela. We were told that we must wait here until January.(218)
It does not appear that there is any working system in place to track the time undocumented migrants spend in detention and to ensure that their statutory rights are enforced. Lindela management had tried to implement a computer tracking system for detainees at its facility, but this system was not operating correctly at the time of our visit.(219) Especially in the case of detainees who are transferred from other institutions after spending significant amounts of time in detention at these prior institutions (most commonly police cells but also prisons), there is no system to calculate the time that detainees spend in detention prior to arrival at Lindela. Thus, the legal rights of detainees often go unenforced. In the particular case of the twenty-seven persons detained at Lindela for more than thirty days, Mr. Erasmus, the ranking Department of Home Affairs official at Lindela, agreed to release the twenty-seven detainees after the matter was brought to his attention by Human Rights Watch. He admitted that the correct legal procedures had not been followed in these cases and promised to remedy the situation. As with other detainees released from Lindela, the twenty-seven were released from the facility without any offer of transportation. It appeared to Human Rights Watch that most of the men were not in possession of any money, and their clothes were ragged after their long detention. Many of the men had to find their own way home under these trying conditions, often to locations as far away as Cape Town, more than 1,500 kilometers away.
As at Lindela, long-term detention of suspected undocumented migrants while their status is being determined by the Department of Home Affairs is a problem at Pollsmoor. One especially disturbing case is the fourteen-month detention of Eddie Johnson at Pollsmoor by the Department of Home Affairs. Eddie Johnson claims to have been born in South Africa in the 1970s, but to have moved to Zambia when he was about three years old.(220) He returned to South Africa in the early 1990s, successfully obtained South African identification documents, and voted in the historic 1994 elections. One early morning in August 1994, about ten immigration officers burst into his Cape Town home and arrested Eddie Johnson on four immigration-related criminal charges. On December 21, 1994, he was found not guilty on three of the charges and convicted on the fourth charge, and given a sentence which was totally suspended for five years. As he walked out of the court room, Eddie Johnson was again detained by immigration officials. On the basis of their suspicion that Mr. Johnson was lying about his origins, the Department of Home Affairs detained him at Pollsmoor for the remainder of 1994 and the entire year of 1995. But the Department of Home Affairs was unable to deport Eddie Johnson, because the Zambian and Tanzanian High Commissioners refused to recognize Mr. Johnson as a citizen of their respective countries. Eddie Johnson was ultimately released on January 16, 1996, after the University of Cape Town Law Clinic obtained a court order for his release on the basis that his constitutional rights had been violated.
Although it appears that the Department of Home Affairs in Cape Town does generally abide by the requirement to seek judicial approval for detentions in excess of thirty days, attorneys complained to Human Rights Watch about the general lack of scrutiny with which some judges approved such applications. One attorney told Human Rights Watch about the case of three Pakistani seamen whom he was able to get released in October 1997 after they had been detained for six months under the Aliens Control Act. Two different judges had approved extensions of detention, at first for a period of 120 days. It appeared from the file that the second judge had not been notified of the lengthy period for which the persons had already been detained and did not bother to ask. The form did not even have a space for the signature of the detainee, strongly suggesting that the detainees had never been notified of either the application or the decision of the court. The entire proceedings as described by the attorney suggest an unjustifiable lack of diligence by the courts in reviewing applications for the deprivation of liberty of persons.
The Deportation Process: The Train to Mozambique
After their status as deportable undocumented migrants has been determined and approval for repatriation has been obtained from their home countries, the Department of Home Affairs will repatriate people. The repatriation can take a number of forms, depending on the location of the home country. Repatriations to Mozambique and Zimbabwe--which account for the vast majority of repatriations--are mostly done by train and by cramped prisoner transfer vehicles. Repatriations to more distant countries such as Malawi are most often done by air.
Human Rights Watch interviewed a number of persons who had previously been deported by train to Mozambique. Although the former deportees were interviewed on separate occasions, they all told a remarkably similar tale about the abuses they faced on the train while being deported. The experience related by Jack Ballas was typical of these testimonials:
I was deported via train to Mozambique three weeks ago. We are made to run to the train fast, so we don't see the station. We have to take off our belts and put them on top. The reason for this is to make it easy for the officials to see whether one has money. We are made to squat with our head between our legs. The police sjambok us on the train to make sure we keep our heads down. They ask us if we have money, and they beat us all the way to Ressano Garcia. It takes a long time, about ten hours. We have to sit like that the whole time. It gets very painful and people get swollen. Many people are bleeding, many people become unconscious. The police just laugh. If you straighten your head, you have to pay fifty rands [U.S. $ 10], or you get beaten. If you pay the money, you can sit straight. We do get water, but only one person is allowed to fetch water for everyone.
In Ressano Garcia, we must jump while the train is moving. The train is very crowded and they close all the windows. It gets very hot and people are sweating. The police go through our luggage and take what they want.
We saw many people get off the train after paying a fee. They allow them to jump off when the train is moving. You have to pay 150 rands [U.S. $ 30] or whatever you have.(221)
The remarkable similarity between the accounts from people who were deported and interviewed at different times lend a high degree of credibility to them. Zitto Vilakazi, another Mozambican, told us his story:
I was arrested and deported to Mozambique in October 1997. We have to run to the train. Then we have to run all the way to the front of the coach. Then they tell us to squat with our heads between our legs. When we sit down, the officials start asking for money when we have our head down. If you have money, you can sit up. It cost 50 rands [U.S. $ 10], 100 rands [U.S. $ 20], it depends. If you can't pay, you must keep squatted. Then the beatings start. If you can't pay, they ask you "do you want to reach home or what?" It is a threat, and many then pay. If you try and keep your money, you won't reach home. Those who have money are released before reaching the station when the train slows down.
I did refuse because I had no money, and they didn't beat me. But I saw many getting beaten because the police knew they had money. Those who don't have money must suffer the chafkop system [the squatting position] before they are deported.
The journey took the whole night. We left Lindela at 6 p.m. and arrived at Ressano at 7 a.m. The police ask us to buy them cool drinks and beat us if we have no money. And the police insult us for being Shangaan from Mozambique. You can't even write the things they say, they speak about our mother's vaginas and things. We don't get water or food. The police will sell you things but if you have no money, you get nothing. This is not my own country, but we should be treated well. We suffer a great deal for being Mozambican.(222)
During an earlier investigative visit to the Mozambican border area during July 1996, we received similar testimonials from recent deportees. One person interviewed claimed that the police jumped on top of his toes and used iron implements to squeeze his fingers to extract bribes, and that the police officers had thrown one of his fellow Mozambicans from the train into the Komati River "for having tried to protect himself and his money. He had a lot of money since he had just been caught early that morning."(223) News reports have published similar accounts of the deportation process to Mozambique. An October 1997 newspaper article gave an account by Geoffrey Mabuna, a recent deportee, describing how the deportees were forced to sit in the chafkop position and how many deportees had bribed their way off the train.(224)
The Department of Home Affairs also deports persons directly by vehicle, and similar incidents of bribery and physical abuse involving Home Affairs officials have taken place. Captain Chilembe of the Nelspruit Internal Tracing Unit described a case to us in which the responsible officials were actually caught, prosecuted, and convicted:
There was a case involving two Home Affairs officials who were transporting people to the border. They went to the border and had the deportation order stamped, but they came back with the people. We set a trap and they were caught and are now serving three years in jail. All of the illegals had to pay 100 rands [U.S. $ 20] each, and those who couldn't pay were assaulted. They testified in court because they were assaulted, staying in detention for three months to testify.(225)
Because of the systematic extortion and bribery on the train and at earlier stages in the deportation process, many of those deported reach Mozambique or Zimbabwe without any money or possessions except for the clothes they are wearing. Deportees are dropped just across the border, in the town of Ressano Garcia in the case of Mozambique and Beit Bridge for Zimbabwe. Without any financial means, the return trip home is often complicated. Deportees are often forced to sell their last possessions to make the trip home. A deportee interviewed by Human Rights Watch in Mozambique told of his and his friend's three-week attempt to make their way home:
We spent three weeks at Gaxa trying to get money for the Panthera Azul bus to Maputo. My friend sold his leather jacket at the trade market and waited for me to sell my shirt so that we may go. My shirt was bought after three weeks. We then arrived at Maputo and stayed in the streets for two months trying to get money for the Xibomba [bus] to go to Chokwe. We used to stay hungry. During that three weeks we only managed to get bread for three days per week.(226)
In fact, most deportees choose not to go home or to remain in Mozambique. Instead, they return almost immediately to South Africa for a variety of reasons: to retrieve property left behind, to be reunited with family or friends, to return to a job, or simply to try again to escape the desperate poverty that plagues Mozambique. Our research and interviews suggest that undocumented migrants deported from the greater Johannesburg area are generally deported without being given the opportunity to retrieve their possessions. Belongings left behind are a major impetus for returning to South Africa following deportation. As one deportee told us in Mozambique: "I am not thinking about going back, except to collect my belongings. If it weren't for that, I would not have to [go back]."(227) Requests to the authorities to retrieve property often go unheeded: "When you are arrested and you tell the police you want to go and get your things, they pay no attention. They say 'You came here with nothing, not even money.'"(228) Since undocumented migrants are normally arrested at their place of work or on the street, and often have spent several years working in South Africa, they often leave behind significant property in South Africa and are then forced to return to retrieve their property. Once they have returned to South Africa, they will most likely continue their previous employment, and be again at risk of arrest, possible abuse, and deportation. As Mr. Ncuma, an official with the Mozambican Department of Labor told Human Rights Watch:
Lots of Mozambicans are now deported who leave all their property behind. This is now rife in Johannesburg, a very common form of abuse. Some even have bank accounts. That is why people come back illegally, they must collect their property.(229)
The practice of repatriating undocumented migrants without their possessions is not universal. In Cape Town, according to chief immigration officer Jurie de Wet, officials are required to ensure that undocumented migrants awaiting deportation have had the opportunity to retrieve their possessions, and undocumented migrants must sign a document saying they have been afforded the opportunity to retrieve their possessions prior to deportation.(230) According to Mr. De Wet, this procedure is required by internal guidelines of the Department of Home Affairs.(231) Even if allowed the opportunity to retrieve valuables prior to deportation, many undocumented migrants may refuse this opportunity because of the fear that their valuables may be taken from them by corrupt officials under the current system of repatriation.
Time and time again, when we concluded interviews with detainees or deportees with the question "What will you do now?," the answer was, "I will return to South Africa." Human Rights Watch often interviewed people who had been previously deported, and at detention facilities and police cells we frequently observed officials recognizing detainees whom they had previously deported. One 1995 study discussed a Mozambican who had been deported twenty-one times,(232) and Captain Van Vuuren of the South African Police Service claimed to a group of reporters in 1995 to know of a Mozambican who had boasted of having crossed the fence between Mozambique and South Africa more than one hundred times.(233) When Human Rights Watch interviewed detainees awaiting deportation at the Komatipoort border, all asserted that they would return to South Africa,(234) lending credence to a Mozambican newspaper report that claimed,
It seems that people are not exaggerating when they say that more than 80 percent of the three thousand young people who get off [the train] at Ressano every Thursday morning return [to South Africa] the very same day or within two days of their repatriation, and by the same illegal routes.(235)
The fact that many undocumented migrants appear to be deported multiple times during a single year suggests that using the total number of deportations to estimate the total number of undocumented migrants in South Africa at any given time is a very unreliable method of calculation. Thus, the increase in deportations in recent years in South Africa may be due to stepped-up policing efforts rather than an increase in undocumented migration to South Africa.
Complications associated with deportation formalities often result in lengthy periods of detention, and at times make it much more difficult for a deported person to return home. In one case, a Mozambican crossed the border from the most southern area of Mozambique into South Africa at Kosi Bay, in order to buy a can of paraffin at the local South African supermarket.(236) He was arrested by the Internal Tracing Unit and had to be deported through the Lebombo border post several hundreds of miles away as this was the only border post through which Mozambicans could be repatriated, by agreement with between the South African and Mozambican governments. Since he had no money, the deportee, now several hundreds of miles away from home, decided to cross back into South Africa and work on a local farm to earn the money to return home. When he finally earned enough money to travel home, "as he was getting off the bus at Jozini he was again arrested. He had been away from his home for six months and still had to buy his can of paraffin."(237)
1. Maxine Reitzes, "Alien Issues," Indicator SA 12(1), 1994, pp. 7-11.
2. Human Rights Watch interview with gate keeper, Pretoria, August 1995.
3. Human Rights Watch interview with gardener who had returned to South Africa after his deportation, Parktown, March 1996.
4. Human Rights Watch interview with Sylvester Langa, Mozambican citizen, Komatipoort police station, December 2, 1997.
5. The range of wages is based on interviews with former farm workers currently involved in informal businesses in Soweto, recent deportees in Mozambique, street vendors in Johannesburg, and farm workers awaiting deportation.
6. Human Rights Watch interview with Lodric Ndlovu, New Forest settlement, Bushbuckridge, November 30, 1997.
7. Human Rights Watch interview with Z. Ngobeni, Mozambican citizen, Komatipoort Police Station, December 2, 1997.
8. Human Rights Watch interview with Captain Liebenberg, Superintendent of Komatipoort police station, December 2, 1997.
9. Human Rights Watch interview with Captain Chilembe, Head, Nelspruit Internal Tracing Unit, South African Police Service, Nelspruit, December 1, 1997.
10. Human Rights Watch interview with farm workers aged 14, 16, 15, and 14 years, near Shongwe, December 1, 1997.
11. Mukoni T. Ratshitanga, "Slave Labor in Northern Province," Mail & Guardian, November 14-20, 1997.
12. Minnaar and Hough, Who Goes There?, p. 118.
13. Human Rights Watch interview with Armando Ubisse, Matangomane, Mozambique, April 25, 1996.
14. Human Rights Watch interview with Captain Chilembe, Head, Nelspruit Internal Tracing Unit, South African Police Services, Nelspruit, December 1, 1997. Captain Andre Nel, Superintendent of the Malelane Police Station, confirmed a similar practice: "If a farmer brings Mozambicans to the police station, we tell him he must pay the person before deportation. We started this practice in 1991." Human Rights Watch interview with Captain Andre Nel, Superintendent, Malelane Police Station, Malelane, December 1, 1997.
15. Human Rights Watch interview with Albin Mashaba, 18-year-old Mozambican, Komatipoort Police Station, December 2, 1997. The other two farm workers arrested with him were Ernest, aged sixteen, and Domingo Jeshmeine, aged eighteen years.
16. Human Rights Watch interview with Sergeant Mathebula, Komatipoort Police Station, December 2, 1997.
18. Human Rights Watch interview with Captain Andre Nel, Malelane, December 1, 1997.
19. Human Rights Watch interview, name of interviewee, place and date of interview on record.
20. Sowetan, April 4, 1996.
21. Human Rights Watch interview with Florentino Edmundo Amade, Acornhoek, August 18, 1997, and October 23 and 24, 1997.
22. Khathu Mamaila, "Five still locked up after assault: Complainants are still held behind bars while the accused are free," Sowetan, April 2, 1997.
24. The firewood had been stolen by the man whom they had asked to transport the firewood. Human Rights Watch interview with the mother of the two men, Champagne farms, Chochocho, February 1997.
25. Human Rights Watch interview with the electrical engineer, Mozambican citizen, Soweto, September 12, 1996.
26. Human Rights Watch interview with RM, New Forest refugee camp, Mpumalanga, November 12, 1996.
27. Eddie Koch & Phliip Molefe, "Exiles Sold As Slaves in South Africa," Guardian (London), November 16, 1990; see also Alex Vines, "Mozambique: Slaves and the Snake of Fire," Anti-Slavery Reporter Vol. 13, No. 7, 1991.
28. Sally McKibbin, "Mozambican Victims of Slave Trade in South Africa" (London: Anti-Slavery International, 1992)
29. "Johannesburg Police Arrest 11,916 Suspects in Crime Prevention Operations," SAPA, June 25, 1997.
30. "Johannesburg Police Arrest 1,400 People in Crime-prevention Operation," SAPA, September 18, 1997.
31. Anthony Minnaar and Mike Hough, "Illegal in South Africa: Scope, Extent and Impact," Paper presented at the International Organization for Migration (IOM) Conference in Pretoria, August 25, 1996, p. 7.
32. Human Rights Watch interview with Mr. Claude Schravesande, Director, Admissions and Aliens Control, Department of Home Affairs, Pretoria, December 3, 1997.
33. Human Rights Watch interview with Major Olivier, Company Commander, Group 33, South African National Defence Forces, Komatipoort, December 1, 1997. Vehicle control points involve a single vehicle or helicopter which is deployed to quickly establish a control point which operates for only a few hours before being moved to a new location, while road blocks involve a more extensive deployment and usually remain in one location for a longer time.
38. These were the figures given by Minister of Defence Joe Modise in response to a parliamentary question from Colonel Nyambeni Ramaremisa (NP). "SANDF Operations Net 38,902 Illegal Immigrants," SAPA, December 15, 1997.
39. Alex Vines, "Mozambique: Slaves and the Snake of Fire," Anti-slavery Reporter, Series VII, 1991 vol.13, no.17, pp.41-43. The current was apparently turned off during periods of heavy fighting on the Mozambican side of the fence, in order to allow local persons to seek refuge in South Africa. Apparently, the South African authorities created a number of gates in the fence in order to facilitate the temporary movement into South Africa of Mozambicans fleeing heavy fighting. Minnaar and Hough, Who Goes There?, pp. 141-43.
40. Human Rights Watch interview with Maria Macamo, Maputo, February 11, 1997.
41. Human Rights Watch interview with João Save, Maputo Central Hospital, Maputo, February 12, 1997.
42. Minnaar and Hough, Who Goes There?, p. 184.
43. Human Rights Watch interview with informant, Orlando West neighborhood of Soweto, August 17, 1996.
44. Human Rights Watch interview with Captain Botes, Yeoville police station, March 16, 1997, and with Captain Du Pisanie, Hillbrow police station, March 17, 1997.
45. Citizen, June 29, 1995.
46. Jurie De Wet, Chief, Immigration Services for the Western Cape, Department of Home Affairs, in communication discussing the Draft Green Paper on International Migration, dated August 7, 1997.
47. Human Rights Watch interview with Desmond Lockey M.P., chair, Parliamentary Portfolio Committee on Home Affairs, New Parliament Building, Cape Town, December 9, 1997.
48. Meeting attended by Human Rights Watch representative Busani Selabe, Johannesburg, March 26, 1997.
49. Anthony Minnaar and Michael Hough, "Causes, Extent and Impact of Clandestine Immigration in Selected Southern African Countries with Specific Reference to South Africa" (Pretoria: Human Sciences Research Council, 1995), pp. 90-91.
50. Human Rights Watch interview with Benneth Mabaso, Komatipoort police station, December 2, 1997.
52. Human Rights Watch interview with Zephaniah Mabaso, Komatipoort police station, December 2, 1997.
53. Human Rights Watch interview with Dumisa Mavimbela, Witbank police station, November 29, 1997.
54. Major Olivier of the SANDF explained how at the Swazi border, people can get permission from the Induna (chief) to cross the border for a day trip at designated informal border crossings manned by citizen force personnel. Human Rights Watch interview with Major Olivier, Komatipoort border area, December 1, 1997.
55. Eddie Koch, "The Pass Laws keep on Prowling," Mail & Guardian, July 15, 1994.
56. Human Rights Watch interviews with students, University of the Witwatersrand, April 18 and 26, 1995.
57. Mukoni Ratshitanga, "Visiting SA an alien experience," Mail & Guardian, August 1-7, 1997.
58. The Star, June 3, 1996.
59. Human Rights Watch interview with Sergeant Singer, Sophiatown Police Station, November 28, 1997. Sergeant Singer told us that "a bus from Lindela comes to pick them [the suspected undocumented migrants] up. I will call to arrange it. A Mr. van der Lith at Lindela is the one I make arrangements with." Officials at Lindela confirmed that they were authorized to transfer suspected undocumented migrants from certain police stations to Lindela. Human Rights Watch interviews with Judas and Dave, Lindela staff, at Lindela, December 4, 1997.
60. Human Rights Watch interview with Mr. Frans Le Grange, Lindela official, at Lindela, November 24, 1997.
61. In our company, a Lindela official counted the total number of persons released prior to intake and divided the number by the total number of persons brought to Lindela during October 1997. His calculations suggested an 11 percent release rate prior to intake.
62. As said before, the total number of persons admitted into Lindela during this period was 79,378. 8,000 persons would represent slightly more than 10 percent of this figure.
63. Human Rights Watch interview with Robert Mhlambi, Lindela, November 24, 1997.
65. South African Human Rights Commission, Report on a Visit to Lindela Repatriation Centre, October 28, 1997, pp. 4-5.
66. Human Rights Watch interview with Phineas Mugwambe, Lindela, December 4, 1997.
67. Human Rights Watch interview with detainee, Pretoria Central Police Station, October 11, 1996.
68. Human Rights Watch interview with Mouapotho Stanislas Yvon Fabrice, People's Republic of Congo citizen, Lindela, December 4, 1997.
69. Human Rights Watch interview with victim of such practice, Parktown suburb of Johannesburg, September 29, 1996.
70. Human Rights Watch interview with PK, New Forest refugee settlement, Mpumalanga, November 12, 1996.
71. Human Rights Watch interview with hawker M (full name withheld on request), Yeoville, October 28, 1997.
72. Human Rights Watch interview with security guards, Nedbank Building, Braamfontein, August 9, 1997.
73. Interview by Refugee Research Program with Fernando Ntive, aged 33, at Muine, Mozambique, March 3, 1996.
75. Interview by Refugee Research Project with Manuel Ubisse, Soweto, April 1995.
76. Interview by Refugee Research Project with Boaventura Ndlovu, Soweto, February 1995.
77. Lawyers for Human Rights, "Alleged Abuse of a Non Citizen's Constitutional Rights," Communication to the South African Human Rights Commission, dated May 29, 1997.
78. Human Rights Watch interview with two fruit vendors, Protea North, Soweto, September 1996.
79. Human Rights Watch interview with Cliff Mucheka, Malawian citizen, at Pollsmoor prison, Cape Town, December 10, 1997.
80. The Department of Home Affairs maintains an office at Lindela with several staff persons, responsible for processing the detainees at Lindela. According to Lindela officials, detainees cannot be released from Lindela without the approval of the Department of Home Affairs.
81. Statements of City Press reporter to Human Rights Watch, Lindela, December 4, 1997.
82. Human Rights Watch interview with Mr. Manthla, Swaziland citizen, at Lindela, December 4, 1997.
83. South African Human Rights Commission, Report on a Visit to Lindela Repatriation Centre, October 28, 1997, p. 4.
84. Human Rights Watch interview with Fabion Ndlovu, Lindela, December 4, 1997.
85. Human Rights Watch interview with anonymous man, Lindela, December 4, 1997.
86. Human Rights Watch interview with Dennis, Lindela, December 4, 1997.
87. Human Rights Watch interview with Mr. Frans Le Grange, Lindela, November 24, 1997.
88. Human Rights Watch interview with Mr. Jurie de Wet, Chief Immigration Officer, Department of Home Affairs, Cape Town, December 9, 1997.
89. Human Rights Watch interview with two Nigerians, corner of Twist and Essellen Streets, Hillbrow neighborhood of Johannesburg, November 22, 1996.
92. Human Rights Watch interview with Benneth Mabaso, Mozambican citizen, at Komatipoort police station, December 2, 1997.
93. Human Rights Watch interview with Captain Liebenberg, Superintendent, Komatipoort Police Station, Komatipoort Police Station, December 2, 1997.
94. Fax from the South African Police Service to Human Rights Watch, dated December 2, 1997.
95. Human Rights Watch interview with Captain Liebenberg, Superintendent, Komatipoort Police Station, Komatipoort Police Station, December 2, 1997.
96. Some studies have noted that migrants make important contributions to the South African economy. See, for example, C. M. Rogerson, "International Migration, Immigrant Entrepreneurs and South Africa's Small Enterprise Economy," Southern Africa Migration Project Migration Policy Series No. 3 (Cape Town: IDASA, 1997).
97. Marion Edmunds, "State Arrests UWC Marxist," Mail & Guardian, August 29 to September 4, 1997.
100. Letters, "Home Affairs Must Offer Some Answers," Mail & Guardian, October 1 to 7, 1997.
101. Edmunds, "State Arrests UWC Marxist."
102. Alec Russell, "Reporter who criticized ANC faces Deportation," Sunday Telegraph, February 8, 1998.
104. Ibid. Carl Niehaus, a member of Parliament and of the ANC's National Executive Committee, also singled out Kanhema for criticism in a published November 1996 letter to the Star newspaper. President Mandela's attack on the "intrusion of this self-same media within our ranks ... to encourage our own destruction" during his political report at the ANC's 1997 Party Congress was also widely perceived as a direct reference to Kanhema's controversial interview with Winnie Mandela.
105. Joan Mower, "South Africa deports journalist," Freedom Forum Online, February 4, 1998.
107. Russell, "Reporter who criticized ANC faces Deportation."
108. The Department of Home Affairs in Cape Town and Durban also send undocumented Mozambicans and Zimbabweans to Lindela after they have been cleared for deportation, as this allows them to take advantage of the regularly scheduled deportation trains which leave from Lindela.
109. Human Rights Watch interview with Mr. Claude Schravesande, Director, Admissions and Aliens Control, Department of Home Affairs, Pretoria, December 3, 1997. In a few cases, the Mozambican border authorities have refused to accept an individual deportee, on the grounds that they are not satisfied that the person is a Mozambican national. It appears that non-Mozambicans sometimes claim Mozambican nationality in order to be deported to Mozambique, because it is relatively easy to re-enter South Africa from the Mozambican border.
112. See Human Rights Watch, Prison Conditions in South Africa (New York: Human Rights Watch, 1993).
113. Claude Schravesande, Director, Admissions and Aliens Control, Department of Home Affairs, in a letter to Human Rights Watch, headed "Legal Aspects for the Detention of Illegal Aliens," Ref. 21/5/1, June 5, 1997.
114. Letter of Director of Aliens Control Mr. C. Schravesande, Department of Home Affairs, dated June 5, 1997.
115. These averages are calculated on a monthly basis, and it is likely that the maximum population at Lindela has been well in excess of 1,800 persons.
116. Human Rights Watch interview with Mr. Frans Le Grange, Lindela official, at Lindela detention facility, November 24, 1997.
117. Hein Marais, "Deporting for Cash," Mail & Guardian, February 7 to 13, 1997, p. 2.
118. Statement by Dene Smuts, Democratic Party Spokesperson on Home Affairs, dated February 8, 1997.
119. Lindela Centre for Illegal Immigrants, Statistics, October 1997.
120. Ibid. The remaining 1,155 persons were carried over to the next month.
121. South African Human Rights Commission, Report on a visit to Lindela, dated October 28, 1997 (SAHRC Report).
122. Human Rights Watch interview with Mr. Frans Le Grange, Lindela official, at Lindela, November 24, 1997. This same figure was given to the South African Human Rights Commission. SAHRC report, p. 2.
123. The following number of beds were counted in the thirty-two rooms in the male compound. Figures in parenthesis indicate the number of broken beds in that room: 34; 34; 36; 34; 32; 36; 24 (10); 35 (1); 16 (18); 29 (5); 31 (2); 29 (5); 30 (2); 31 (6); 31 (1); 34; 34; 34; 34; 30 (4); 34; 34; 34; 33 (1); 25 (9); 33 (5); 26 (4). This adds up to a total of 1,010 functioning beds, and 81 broken beds. In the women's compound, rooms 33 to 39 were locked and used for storage, although they did contain a number of beds, 175 functioning beds in total. The rooms in use in the women's compound contained the following number of beds, with broken beds in parenthesis: 19 (5); 26 (2); 24; 22; 24 (2). This adds up to 115 functioning beds in the rooms in use.
124. Lindela Centre for Illegal Immigrants, Statistics, October 1997.
125. Standard Minimum Rules for the Treatment of Prisoners, Rule 19.
126. Human Rights Watch interview with Mr. Frans Le Grange, Lindela official, at Lindela, November 24, 1997
127. Human Rights Watch interview with Somali detainee, Lindela, November 24, 1997.
128. Human Rights Watch interview with young Zimbabwean detainee, Lindela, November 24, 1997.
129. Human Rights Watch interview with John Lobo, Mozambican, Lindela, December 4, 1997. The detainees made similar statements to the Krugersdorp police sergeant called to investigate beating allegations. Statement of Thomas Sithole to Krugersdorp police sergeant, December 4, 1997. The incident is discussed in greater length when discussing guard abuse of detainees below.
130. Human Rights Watch interview with Mr. Frans Le Grange, Lindela official, at Lindela, November 24, 1997.
131. Human Rights Watch interview with Michael Mululu, Namibian, Lindela, November 24, 1997.
132. Human Rights Watch interview with four Namibians, Lindela, December 4, 1997.
133. Human Rights Watch interview with Dennis, Lindela, December 4, 1997.
134. Gill Gifford, "'Ill Treatment' of Inmates at Repatriation Camp," Star, October 15, 1997.
135. Human Rights Watch interview with anonymous Liberian detainee, 36 years old, Lindela, November 24, 1997.
136. Human Rights Watch interview with D. Omar, Becker Street, Johannesburg, November 27, 1997.
137. Human Rights Watch interviews at Lindela, October 8, 1996.
138. Human Rights Watch interview with Mr Qoane Francis Motlomelo, Lindela, December 4, 1997.
139. Statement under oath of Qoane Francis Motlomelo, Krugersdorp Police Station, December 4, 1997.
140. Human Rights Watch interview with Lindela security guard, Lindela, December 4, 1997.
141. Human Rights Watch interview with Mr. John Lefosa, Lindela, December 4, 1997.
142. Medical report of Dr. Khota, dated December 3, 1997.
143. Fax of Danny Mansell to Human Rights Watch, dated December 23, 1997. The fax stated in relevant part: "Regarding the case of the Lesotho man, we unfortunately could not press the charge of assault legally as he elected to withdraw his case in order to go home. We have however, taken disciplinary action against the two persons involved. One was dismissed and the other reprimanded."
144. Statement under oath of Fabion Ndlovu, Krugersdorp Police Station, December 4, 1997.
145. The infected dog bites were also noted in Dr. Khota's medical report.
146. Statement under oath of Thomas Sithole, Krugersdorp Police Station, December 4, 1997.
147. Medical Report of Dr. Khota, Lindela, December 4, 1997.
148. Human Rights Watch interview with David Nkuna, Lindela, December 4, 1997.
149. Human Rights Watch interview with John Khambune, Lindela, December 4, 1997.
150. Human Rights Watch interview with Dennis, Zimbabwean, Lindela, December 4, 1997.
151. Andy Duffy, "Riot on the Eve of Detention-camp Probe," Mail & Guardian, December 12 to 18, 1997.
152. Fax of Danny Mansell to Human Rights Watch, dated December 23, 1997.
153. U.N. Standard Minimum Rules for the Treatment of Prisoners, Rule 29.
154. Human Rights Watch interview with Frans Le Grange, Lindela official, at Lindela, November 24, 1997. Room 1 is the room closest to the compound gate, and there is always a guard on duty at this location.
155. Lindela claims it provides each detainee with a sheet of paper listing certain "rights" which Lindela will guarantee to detainees. Some of these rights, such as the right to one free phone call, do not appear to be enforced. The list of rights is only available in English, and most of the detainees Human Rights Watch interviewed did not speak or read English. The detainees interviewed by Human Rights Watch did not seem to be aware of the existence of this document, let alone its content. The Standard Minimum Rules require that each prisoner be provided with written information about "the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution." Rule 35(1). They also require that the information be conveyed orally if the prisoner is illiterate. Rule 35(2).
156. U.N. Standard Minimum Rules for the treatment of prisoners, Art. 31.
157. Human Rights Watch interview with Thomas Sithole and Armando Nyashale, Lindela, December 11, 1997.
158. Human Rights Watch interview with Armando Nyashale, Lindela, December 11, 1997.
159. Ibid. According to Thomas Sithole, the other alleged beating victims did not want to talk to Human Rights Watch during our December 11, 1997, follow-up visit out of fear of retribution from Lindela staff.
160. Human Rights Watch interview with Mr. Claude Schravesande, Director, Admissions and Aliens Control, Department of Home Affairs, December 3, 1997.
161. Fax from Mr. Danny Mansell to Human Rights Watch, dated December 23, 1997.
162. Human Rights Watch interview with Superintendent Du Pisanie, Hillbrow Police Station, December 19, 1997.
163. It was such concerns which led the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which considered the question of detention of foreign nationals in a 1997 report, to recommend that prison not be used for the detention of immigration detainees in prisons: "Even if the actual conditions of detention for these persons in the establishments concerned are adequate--which has not always been the case--the CPT considers such an approach to be fundamentally flawed. A prison is by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offence." European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, 7th General Report on the CPT's activities covering the period 1 January to 31 December 1996 (Strasbourg: Council of Europe, 1997), p. 12
164. This is also the general position of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT):
In the view of the CPT, in those cases where it is deemed necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably qualified personnel.
Ibid. (emphasis in original).
165. Human Rights Watch interview with Mr. Claude Schravesande, Director, Admissions and Aliens Control, Department of Home Affairs, Pretoria, December 3, 1997.
167. Human Rights Watch, Prison Conditions in South Africa (New York: Human Rights Watch, 1994).
168. Human Rights Watch interview with Mr. Claude Schravesande, Director, Admissions and Aliens Control, Department of Home Affairs, Pretoria, December 3, 1997.
170. Human Rights Watch interview with Mr. Rudi Potgieter, Liaison Officer for Gauteng Province, Department of Correctional Services, Modderbee Prison, December 5, 1997.
171. Interview with former Johannesburg (Diepkloof) Prison detainee from Zimbabwe, originally deported in June 1996, now a security guard for Callguard Security in Parktown, in Johannesburg, July 28, 1997.
173. Interview with former Johannesburg (Diepkloof) Prison detainee from Zimbabwe, originally deported in July 1995, now a security guard for Grey Security, in Johannesburg, July 27, 1997.
174. Human Rights Watch interview with Isaac Pondik, Mozambican citizen, Pollsmoor prison, December 10, 1997.
175. Africa Watch (now the Africa Division of Human Rights Watch), Prison Conditions in South Africa, pp. 43-48.
176. Human Rights Watch interview with Isaac Pondik, Mozambican citizen, Pollsmoor prison, December 10, 1997.
177. Human Rights Watch interview with Joseph Mugisha, Ugandan citizen, Pollsmoor Prison, December 10, 1997.
178. Human Rights Watch interview with Luggy Lianda, Tanzanian citizen, Pollsmoor Prison, December 10, 1997.
179. Human Rights Watch interview with Aridi Omali, Tanzanian citizen, Pollsmoor Prison, December 10, 1997.
180. Human Rights Watch interview with Cliff Mucheka, Malawian citizen, Pollsmoor Prison, December 10, 1997.
181. Standard Minimum Rules for the Treatment of Prisoners, Rule 8.
182. Ibid, Rule 8(c).
184. Human Rights Watch interview with Aridi Omali, Pollsmoor Prison, December 10, 1997.
185. Human Rights Watch interview with Joseph Mugisha, Pollsmoor Prison, December 10, 1997.
186. Human Rights Watch interview with Aridi Omali, Pollsmoor Prison, December 10, 1997.
187. Human Rights Watch interview with Luggy Lianda, Pollsmoor Prison, December 10, 1997.
188. Human Rights Watch interview with Joseph Mugisha, Pollsmoor Prison, December 10, 1997.
189. U.N. Standard Minimum Rules for the Treatment of Prisoners, Rule 20(1).
190. Ibid., Rule 21(1): "Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits."
191. Human Rights Watch interview with Dumisa Mavimbela, Witbank police station, November 29, 1997.
192. Visited October 11, 1996.
193. Human Rights Watch interview with detainees, Pretoria Central police station, October 11, 1996.
195. Visited by Human Rights Watch on November 29, 1997.
196. Human Rights Watch interview with detainees, Pretoria Central police station, October 11, 1996.
197. Human Rights Watch interview with Moses Matevula, Bushbuckridge police station, November 11, 1997.
198. "Holding Conditions at Alex police station Appalling--SAHRC," SAPA, July 28, 1997.
199. Human Rights Watch interview with police official, Witbank police station, November 29, 1997.
200. Human Rights Watch interview with detainees, Pretoria Central police station, October 11, 1996.
201. Human Rights Watch interview with detainees in Cell 1, Bushbuckridge police station, November 11, 1997.
202. Lawyers for Human Rights, letter to Minister Buthelezi, dated August 21, 1996.
204. Human Rights Watch interviews with detainees in cell 1, Bushbuckridge police station, November 30, 1997.
205. Human Rights Watch interview with Pakistani detainee, Pretoria Central police station, October 11, 1996.
206. Standard Minimum Rules for the Treatment of Prisoners, Rule 20 (2).
207. Human Rights Watch interview with Inspector Kruger, Johannesburg Central Police Station, November 25, 1997.
208. Human Rights Watch interview with Martha Manyozo, Zimbabwean citizen, Lindela, December 4, 1997.
209. Human Rights Watch interview with Luggy Lianda, Tanzanian citizen, Pollsmoor, December 10, 1997.
210. Human Rights Watch interview with Martha Manyozo, Zimbabwean citizen, Lindela, December 4, 1997.
211. Human Rights Watch interview with Major Olivier, Company Commander, Group 33, Komatipoort border, December 1, 1997.
213. Human Rights Watch interview with Mr. Valentim Daimone Manheira, Lindela, December 4, 1997.
214. Lindela detention facility, document entitled "Time Analysis," dated December 4, 1997, provided to Human Rights Watch by Lindela, December 4, 1997.
215. The ID numbers given to Lindela inmates allow for an accurate determination of intake dates, since they include the date of intake. Mr. Munelele's ID number was 199708010045, reflecting that he was brought to Lindela on August 1, 1997.
216. As indicated by the "Time Analysis" document.
217. Human Rights Watch interview with Mr. David Petrus, Namibian citizen, Lindela, December 4, 1997.
218. Human Rights Watch interview with Mr. Lucas Morris, Tanzanian citizen, Lindela, December 4, 1997.
219. In the opinion of Human Rights Watch, it is the responsibility of the Department of Home Affairs, as the government agency under whose authority people are detained at Lindela and elsewhere, to keep track of the time people spend in detention and to ensure that the statutory limits are enforced.
220. Human Rights Watch interview with Lee Anne de la Hunt, Director, University of Cape Town Law Clinic, Cape Town. December 8, 1997. The case of Eddie Johnson is discussed in Anton Katz, "Immigration and the Courts," Southern African Migration Project Migration Policy Series No. 3 (1997). The case is also the subject of an unreported CPD High Court decision, Eddie Johnson v. Minister of Home Affairs, Case No. 1560/1995 (delivered August 14, 1996).
221. Human Rights Watch interview with Jack Ballas, Mozambican citizen, Lindela, December 3, 1997.
222. Human Rights Watch interview with Zitto Vilakazi, Mozambican citizen, Lindela, December 4, 1997. Phenias Mugwambe, another Mozambican citizen interviewed by Human Rights Watch, gave yet another similar account: "I was deported in March 1996. I never reached Mozambique because I have a lot of property in South Africa. We are taken to the backyard of Lindela to the station. We have to run while getting beaten by the officials. When we get to the train, we have to remove all of our clothes except for the trousers. We have to remove our belts. If your belt or shirt is nice, you never see it again. And we have to bend our heads. At the same time, they start beating us but you can't see who beats you because your head is down. They use the leather belts to beat us. If you want to straighten your neck you have to pay money. After you pay money, you are their friend. The amount varies, depending on the distance from Johannesburg. If you pay 20 to 50 rands [U.S. $ 4-10] , you can only straighten your neck. If you want off the train, the fee is 200 rands [U.S. $ 40]. If you are from Johannesburg and want to be released before Witbank, the fee is 150 rands [U.S. $ 30] and up. If you are near Komatipoort, the fee rises to 200 rands [U.S. $ 40]and above." Human Rights Watch interview with Phenias Mugwambe, Mozambican citizen, Lindela, December 4, 1997.
223. Human Rights Watch interview with deportee, Matuba village of Chokwe, Gaza Province, Mozambique, July 19, 1996.
224. Lucas Ledwaba, "Slipped Bucks and Blind Eyes," Sunday Times, October 19, 1997.
225. Human Rights Watch interview with Captain Chilembe, Head, Nelspruit Internal Tracing Unit, South African police services, Nelspruit, December 1, 1997.
226. Human Rights Watch interview with deportees, Matuba village of Chokwe, Gaza Province, Mozambique, July 19, 1996.
227. Human Rights Watch interview with Manuel Sibuyi, Simbe, Mozambique, March 17, 1996.
228. Human Rights Watch interview with Kaptine Simango, Simbe, Mozambique, March 16, 1996.
229. Human Rights Watch interview with Mr. Ncuma, Mozambican Department of Labor, Nelspruit, December 2, 1997.
230. Human Rights Watch interview with Mr Jurie de Wet, Chief Immigration Officer, Western Cape, Department of Home Affairs, Cape Town, December 9, 1997.
232. Minnaar and Hough, "Illegals in South Africa: Scope, Extent and Impact," Paper presented at the International Organization for Migration (IOM) meeting in Pretoria, August 25, 1995.
233. Hannes de Wet, "South African border fence can't stop the hungry," Citizen, July 4, 1995.
234. Human Rights Watch interviews with detainees awaiting repatriation, Komatipoort, June 12, 1997.
235. Aro ( Maputo), February 8 to 22, 1996.
236. Minnaar and Hough, Who Goes There?, pp. 148-49.
237. Ibid., p. 149.