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VII. POLICE LOCKUPS

PHYSICAL CONDITIONS

According to recent government statistics, at any given time, 12,000 pre-trial detainees are held in police lockups under the custody of the South African Police (SAP).⁷⁶ Under the law, a detainee may be held without charge, in a police lockup, for up to forty-eight hours, after which time he or she must be charged and brought before a magistrate and either released on bail or transported to a prison to await trial. Thereafter, the law states that unconvicted or convicted prisoners are to be detained in police lockups only if detention in a prison is not practicable, and in any event for not longer than a month, without the authority of the Commissioner.⁷⁷ A magistrate can extend the time a suspect awaiting trial is held in police custody. In practice, however, some prisoners spend as long as two months in these facilities.

We received different reports from different police officials as to how long detention in police cells might last in practice. In the Khayelitsha police lockup, a local police officer told us that the maximum length of time anyone was ever held at that station was six days. In the Verwoerdburg lockup, six youths, aged fifteen through seventeen, had a hearing before a magistrate on the day of our visit. At that hearing, their trial was postponed for three weeks and the magistrate ruled that they would await their day in court in the police lockup. In the Cape Town Central Police Station lockup we were told by the accompanying officers that a suspect could be held there for as long as four weeks.

Police lockups frequently also hold some sentenced prisoners, who are "loaned" to the police by the Correctional Services to provide a work force for the maintenance of the holding cells. Inmates sent to work at police stations are usually serving relatively short sentences or have just a few months left to serve and have a low security classification. Their stints in a lockup last between thirty and sixty days, according to various accounts given by police officials. Not all police lockups use prison labor; of those which use it, some bring prisoners in to work every day and take them back to prison in the evening.

Police lockups, in theory, are meant for short-term stays only. As such, they provide very few amenities. With the exception of the Cape Town Central Police Station lockup, all lockups we saw were essentially similar. There were usually several communal cells and a few single cells. The communal cells usually held under ten detainees and consisted of two areas: the cell proper and an adjoining cement patio. A shower and a toilet were in the patio area. The cell usually had a cement bench as its only furniture. Prisoners slept on mats. There was a water fountain and a metal toilet in the cell. At night the cell was locked; during the day the door between the patio and the cell stayed open. Cells, when full to their stated capacity, were extremely crowded. For example, a six-person cell in Kensington measured 121 square feet, leaving slightly above twenty feet per prisoner. In facts, since some of the space was taken up by a toilet and most of the space by the sleeping mats, there was very little room to move around in the cell. In Khayelitsha, a cell with capacity for twenty-four measured 364 square feet, affording about fifteen square feet per prisoner. Since a sleeping mat takes up at least twelve feet, there was hardly any space left when the cell was full.

The Cape Town lockup, located downtown in a large city building, had an entirely different layout and no patios adjoining the cells. There was a larger cement patio in the center of the cell area. The cell block consisted of cells of various sizes, not all of which had windows.

All police cells we visited were poorly lit and had bad ventilation. We were told that the cells were not warm enough at night and could get very hot during the day.

All cells were closed at night, and the door was usually solid metal. There were no devices such as buzzers to summon guards in the case of an emergency. We were told that prisoners would yell if they needed to summon a guard. In the Cape Town lockup that system seemed particularly problematic. The largest cell was located the farthest away from the guard station and was separated from it by a two-inch thick solid metal door, and an approximately forty-step corridor with a bend. It seemed very unlikely that a guard could hear anybody calling for help. In all lockups, we were told that during the night guards walked through the cells every thirty minutes or every hour for security reasons.

VIOLENCE

South African police stations have a reputation for extreme violence. Reports indicate that detainees are often tortured, sometimes as acts of random violence meant as intimidation or as a means of summary justice, but most often to extract confessions. Local human rights organizations attempting to assist victims in bringing actions for damages against the police report that assaults in police custody are routine and brutal.

A police spokesman told us in an interview that a police officer can take a confession but that "its validity will be tested in court." To invalidate such a confession we were told that the suspect has to prove that undue influence was used to obtain the confession.⁷⁸ In a report on the conduct of the police in their investigation of the "Boipatong massacre" in which forty-two township residents were killed in June 1992, British criminologist Dr. Peter Waddington concluded that allegations of torture by the police gave rise to the well-founded "suspicion that the style of investigation adopted in this case, and perhaps in South Africa generally, is confession oriented."⁷⁹ The report stated that unlawful means for the extraction of confessions would be likely as a result of the failure of the police, described in the report, to use other methods of investigation.

Under the Inquest Act, in the case of an unnatural death where there is not enough evidence to charge anyone immediately, an autopsy must be conducted to try to establish the cause of death, and an inquest is compulsory. However, autopsies are carried out by a state pathologist or district surgeon, both of whom are state employees, and most inquests are held informally. The family of the deceased usually has no legal representation, and no witnesses are called or cross-examined. In these circumstances a magistrate has little option but to accept the police version of events. The family of a person who died in police custody may now appoint an independent pathologist to be present during the autopsy; but the autopsy is carried out at a state mortuary, and there is no requirement to wait for the family's representative: 90 percent of inquests take place without the presence of a private medical practitioner appointed by the family.⁸⁰

The issue of violence in police custody became the focus of media and political attention in July 1992, when one of the country's most prominent physicians, the independent pathologist Dr. Jonathan Gluckman, opened his files to a reporter and stated that police were responsible for 90 percent of the 200 deaths he investigated in his career. Dr. Gluckman first won an international reputation for his evidence in the 1977 inquest into the death in police custody of the black activist Steve Biko. The case that Gluckman said was the last straw was the July 1992 death of nineteen-year old Simon Mthimkulu of the township of Sebokeng. Gluckman was quoted in The New York Times as saying "This is a 19-year-old boy. . . . Not charged with any offense. Tortured, ill-treated and killed. He could have been a son of mine."⁸¹

Dr. Gluckman's files span several years, and it is impossible to assess the frequency of death in custody based on these alone. He himself pointed out that he only examined bodies when retained by legal representatives of the family of the deceased. In almost all the cases, the victims are black and poor: it is safe to assume that most of their relatives do not have the means to retain legal advisers or independent pathologists. Furthermore, not all of those with such means would have retained Dr. Gluckman as their medical examiner during the period of which he was speaking. The numbers are therefore likely to be significantly higher than those he quoted.

Based on police data, an average of more than two deaths a week occurred in police custody during the eighteen months preceding Dr. Gluckman's revelations. The chart below shows the official reasons given for each of these deaths.⁸²

January 1, 1991 - June 30, 1992

deaths in detention

(with the exclusion of shootouts in pursuit)

natural causes 31

suicides 49

attempted escape 14

self-defense by police 4

pre-existing condition 20

assaulted by members of the public before apprehension 27

assaulted by inmates 7

deaths in detention when members of police prosecuted 6

still under investigation, with a possibility of prosecution 12

TOTAL 170

But the number of deaths in police custody may even be higher. Based on press reports, at least six people died in police custody in the two weeks immediately after Dr. Gluckman's statement, and twenty died in less than two months following his revelations.⁸³ According to the Human Rights Commission, an independent Johannesburg-based monitoring organization, 123 people died in police custody in 1992, and thirty-five during the first ten months of 1993. According to the Minister of Law and Order, 114 people died in police custody in 1992: twenty-one of natural causes, fifty-three by suicide, twelve from injuries sustained before arrest, and twenty-eight from "other causes."⁸⁴

In the aftermath of Dr. Gluckman's account, and the release of the Waddington report, the police took certain measures aimed at investigating the allegations. A number of high ranking officers were dismissed, and a commission of six magistrates was established to investigate the allegations of torture in police lockups. In November 1992, it was announced that twelve retired magistrates had in fact been appointed to prevent and investigate deaths in police custody, and that an additional twenty former police generals had been appointed to visit police cells. More significantly, in October 1992 the International Committee of the Red Cross was given access to South African police stations for the first time. In January 1993, the police cited Red Cross advice in an announcement that R.12 million ($4 million) would be spent on upgrading police cells. At the same time as these steps were taken, however, a campaign to discredit Dr. Gluckman was launched. In November 1992, it was discovered that Dr. Gluckman's office in downtown Johannesburg was bugged and that his phone was tapped.⁸⁵

In December 1992 the results of an investigation into 118 cases described by Dr. Gluckman were published by the Minister of Law and Order, Hernus Kriel. The minister stated that only thirty-four of those listed by Dr. Gluckman had in fact died in police custody. Dr. Gluckman rejected the report as inadequate to deal with his allegations. Although it had been reported that this report was only part of a much wider investigation into all deaths in police custody over the previous two years, a spokesperson for the minister said in February 1993 that "the intention was never to conduct an in-depth investigation into every case."⁸⁶ Gluckman died in May 1993, before completing his exposé of police brutality towards detainees.⁸⁷

Inquests must be held after any death in police custody, though in most cases they are conducted by a magistrate on the basis only of evidence submitted by the police themselves. In some circumstances, usually where the family of the deceased has obtained legal representation and alternative evidence is presented, these inquests confirm police responsibility. For example, in March 1993 an inquest into the death of Bethuel Maphumulo in police custody in December 1990 concluded that Maphumulo had been strangled to death by a police lieutenant. The lieutenant concerned was suspended from duty by the SAP only after an outcry at the force's initial refusal to do so. Even when a formal inquest with full legal representation is announced, however, the cause of death may be difficult to determine as a result of delay and obstruction to the carrying-out of an investigation. In June 1993, an inquest decided that it was unable to determine the cause of death of Nickson Phiri, who died in the notorious Welverdiend police station in January 1990.⁸⁸

Even in very controversial cases, a formal inquest is not always held. On July 10, 1993, Victor Kheswa, known as the "Vaal Monster" for his alleged involvement in a number of mass murders in townships near Johannesburg, died in police custody. Kheswa was revealed after his death to have been a member both of the Inkatha Freedom Party (IFP) and of the extreme right-wing World Preservatist Movement, and allegations were immediately made that he had been killed to stop him confirming right-wing involvement in political violence if he were tried. A special investigation led by high-level police officers was announced on July 14; the next day the head of the investigation announced that he was "completely happy that Kheswa was not assaulted by the police." On July 30, it was reported that the results of the postmortem showed that Kheswa died of natural causes; however, an independent postmortem, conducted by a doctor commissioned by Kheswa's family and the IFP, found that Kheswa died of unnatural causes, possibly from "acute suffocation, electrocution and hypothermia, as well as occult toxic substances." Despite this finding, it was announced in late August that no formal inquest would be held, based on the conclusion of the state pathologist.⁸⁹

The security forces of the ten "homelands" in South Africa, created as part of the apartheid system to give black South Africans citizenship in nominally independent states and deprive them of their rights as South African citizens, are particularly notorious for their abuses of detainees. The police force in KwaZulu, the political base of Chief Gatsha Buthelezi, President of the Inkatha Freedom Party and Chief Minister of the homeland, has been exposed on numerous occasions for its brutality and violence.⁹⁰ In Bophuthatswana, in a series of egregious incidents in 1993, police repeatedly detained and assaulted student leaders on the campus of the University of Bophuthatswana in Mmabatho.

In January 1993, South Africa signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.⁹¹ In July 1993 the Security Forces Board of Inquiry Act provided for a judge of the Supreme Court to inquire into serious offenses committed by members of the police and other security forces. In addition, procedures were instituted under the National Peace Accord during 1993 for lay visiting of police cells in most urban areas.⁹²

Despite these measures taken to increase supervision of police detention, allegations of ill-treatment in police custody continued during 1993, and the great majority of police alleged to be responsible for abuse of detainees were not held accountable for their actions. In July, Advocate Jan Munnik, Police Reporting Officer for the Witwatersrand, reported use of torture by a special unit of the police known as the "Yankee Squad."⁹³ Torture methods included electric shocks, heads being held under water, and death threats. In the wake of the investigation the unit was disbanded, but similar allegations continued to be made of other units, both within the SAP and within other security forces, including the independently commanded police forces of the black homelands.

As in the case of prison warders, civil actions for damages based on assault are hindered by a six-month limitation period within which a case must be commenced.⁹⁴ Public interest lawyers attempting to bring cases based on allegations of police brutality repeatedly find that their clients, attempting to report an assault, have been put off by the police until after the six-month period has expired.