CHAIRPERSON: Mr Sipho Katana is not available, so we will call upon Mr Golden Miles Bhudu to come forward. Welcome, I know it is very bad to be the last witness when you have been here the whole day, but we are happy that you were patient enough to wait.
GOLDEN MILES BHUDU: (sworn states)
CHAIRPERSON: Thank you very much. I will hand over to Mr Dumisa Ntsebeza to lead this interview.
MR NTSEBEZA: Thank you Chair. Mr Bhudu, I believe you have prepared a submission and maybe I should allow you to deal with it as you like, taking into account time constraints.
MR BHUDU: Comrade Chair, thank you very much for this opportunity. I am going to try to be as brief as possible, but I think it is going to do the organisation I am representing and the audience here and the hundreds and thousands of people out there, if I am going to make use of this opportunity to waffle and to ho over the submission because you must take into account that the organisation I am representing, it is an organisation that is mainly and largely misunderstood by millions of people there.
So I want to also make use of this opportunity by presenting my submission that people get an idea what this organisation is all about. I will try to be as brief as possible.
In fact I think I will go from the first to the fifth page, and if you think that I am dragging too long, you have got all the right Comrade Chairperson, to just halt me there. Thank you very much.
I want to make an introduction of our submission which was compiled by Adv Jansen, Rudolph Jansen, a very close friend of mine and he is here today and I was wondering whether he was not going to be part of the panel here, but nevertheless if he feels he cannot, no problem.
Firstly I want to say that it cannot be (indistinct) that police brutality was a general phenomena of apartheid law enforcement, it was certainly not confined to the enforcement of the Security laws.
Unfortunately the fate of ordinary citizens at the hands of police and prison guards was not as well monitored as that of political opponents of the past regime. The torture and disappearance and the deaths of common law offenders, was through our affixture of law enforcement in this country, in fact there had been little legislative changes since 1990, to make one feel comfortable about the present fate of detained people.
We have just learned that since the beginning of this year, so many people died, which you can compare the figure with the people who died the whole of 1985, and this is a grave concern to us and to the nation as a whole because the police, the South African Police Services were supposed to be part and parcel of the transformation and the democratisation process and it just tells you where we are moving to.
As was the case with the security police and the security legislation, the general attitude of police towards arrested and detained persons coupled with the legal framework that had insufficient safeguards to protect the physical integrity of arrested persons, led to the large scale violation of human rights.
Other than the assault and unlawful deaths that occurred in detention, be it in police or prison cells, the conviction of countless individuals must remain suspect and the plight of those still being incarcerated, should be investigated.
It would be naive to think that the convictions and sentences of hundreds of prisoners would stand in the present constitutional dispensation, had the trials taken place today. Thousands of prisoners were convicted at a time when confessions were easily admissible in terms of the prevailing laws. In this regard reference is made to provisions of Section 217 of the Criminal Procedures Act that was found to be unconstitutional.
It can also not be denied that judicial officers were reluctant to believe many of those tales of assault by the police, both during trials and death inquests, these were aggravated by the absence of legal representation, or the lack of competent representation.
Added to this was the discriminatory legislation, disallowing convicted prisoners an autonomic right to appeal, provisions which have also been declared unconstitutional.
The following can be listed as conditions that caused culture of gross human right violations to become a characteristic of a criminal justice system. "the watering down of the Judges' rule, relating to arrest, the large scale of abuse of the 48 hour rule to bring someone to court, the time being used for investigation and keeping persons in (indistinct). The inability, legally and financially, the most accused to obtain the assistance of legal representation from the moment of arrest. The inability to prevent the use of torture equipment on premises under the control of the police. The lack of independent medical access to police cells and the prisons. The lack of independent of the judiciary. The law relating to the admissibility of confessions. This law being antiquated and unfairly favouring the State. The lack of fair and adequate access to appeal procedures.
It is obviously impossible to access the merits or demerits of each and every individual case where gross violations are alleged in this regard, but the fact must be publicly recognised that thousands of individuals are serving prison terms in our gulls, as a result of convictions that could not stand in the present constitutional order.
To ignore this fact, would be to unquestionably accept the perpetuation of injustice of the past. The Government and the Department of Correctional Services have (indistinct) the idea of a general amnesty for prisoners, nothing has however come of this and we submit that the Truth and Reconciliation Commission, should prompt the Government to implement a general amnesty for the reduction of sentences which accords with the recognition of the problem set here above.
And I repeat, the Government and the Department of Correctional Services in 1996 and 1997, this year, have (indistinct) the idea of a general amnesty for prisoners, nothing has come however of this promise, and we are calling on the TRC to seriously revisit that public statement which was made previously by the Minister of Correctional Services in 1996, with the Commissioner Mr Hank Bruyn, and the one that was made in April this year, by Kulikhane Setole.
Prisons and torture in detention were obviously not confined to police cells. Our prisons also have a notorious record of systematic violation of human rights, the violations of basic rights in our prisons are almost too many to list.
It starts with the denial of basic rights by enabling legislation, regulation and Departmental orders, the complete legislative (indistinct) of our present system, should be seen as a nation priority.
The Act, the regulations and Departmental orders should be brought in line with the international norms of our constitution. Secondly, the violation of human rights consisted of the physical conditions of our prisons and the overcrowding thereof, coherent and certain policy for the future is needed in this regard. Thirdly the dignity of prisoners were ignored on a large scale. They were seen as persons deserving only of privileges and not of any rights.
Our courts also adopted this minimalist approach. It cannot be denied that the incident of prison violence is attributable to the fact that prisoners do not function in democratic structures and that the inputs in matters affecting the incarceration and rehabilitation have always been ignored and this remained the situation in a democratic order.
The TRC should give recognition to the fact that the apartheid prisons were an extension of the central system of oppression and that the only way to rectify this in the future, would be to recognise the rights of prisoners, to have a say in matters that directly affect them.
Furthermore, South African prisons were never transparent and Magistrate and Judges neglected their statutory rights to investigate prisons, the effective monitoring of prisons can only be done by the prisoners themselves. I want to go into individual cases of deaths of prisoners in police cells according to the information we have in our offices.
The deaths and disappearances of political activists, were by and large well monitored. The same cannot be said of common law prisoners. We submit that the TRC should compile a data base of all cases of deaths in prisons which are reported and where allegations of assaults were made.
This should form a data base that should be kept up to date by an independent monitoring agency which should be established to ensure the future avoidance of such kind of violations.
Due to time constraints, we have not been able to collect all the cases of deaths, subsequent upon assault or cases resulting from the authorities neglecting their duties to ensure safe custody. This information represent individual cases brought to our attention and of which we still have record. In total these cases only represent, not only the tip of the ice berg, but half the tip of the ice berg.
Deaths in detention including suicides, were probably best monitored during the 1990's by the Human Rights Commission of which Dr Max Coleman was the National Chairperson. This report of deaths in police custody from 1992 is attached hereto as Exhibit 1. Further incidents are reflected in the copies of newspaper clippings etc.
We submit the following information at our disposal relating to individual cases. A certain Mr Victor Jordan Zwane died in Barberton prison under very suspicious circumstances on the 18th of November 1992 and I must also submit that people died in Barberton and in prisons, many years before I ever dreamt to end up in prison.
We were informed by the then Commanding Officer, a certain Mr D.J. van Schalkwyk that the matter was handed over to the Barberton South African Police. We have heard nothing of the conclusion of that investigation since our last letter which was dated the 30th of November 1992.
Six prisoners died in Barberton prison in 1991 as a result of prison violence which was because of the release of the former Captain Jack la Grange, who was released as a political prisoner, where we all knew that he was nothing else but a licensed criminal wearing the uniform of police officers and his co-accused Robert van der Merwe.
No prosecutions followed after the survivors of the riots intimidated with prison abuse. The names of the deceased are called here, but what I need to say in this Commission is that this prompted me to start my campaign as an individual in 1991 soon after my release.
When after our leaders were released and after our political organisations were disbanned, six people got killed because they had legitimate demands. I think it would be important Comrade Chairperson, to mention these prisoners, because they are the prisoners whom the relatives gave us the go ahead to do our own investigation.
It was a certain Mr Johan Maqwasa, John Molala, Joseph Makwana, Paulus Molepe, Sipho Lobese and one Mr Khumalo. We were then visited by the relatives of Khumalo, some time ago and because they had sort of a communication with comrade Walter Sisulu, they then were allowed to demand the corpses and they gave a decent funeral for the late Mr Khumalo and the others of course, didn't have that priviledge to know people in high places.
And yes, they did not get the same treatment. A certain Mr Wilson Stompie Harte, allegedly killed by warders officially respond was suicide, Barberton prison in 1991. Bongwani Stoqwe, suspected to have died in 1991 allegedly assaulted by prison officers after an attempt to escape, official respond was that he had escaped.
Mr Kusene, shot dead at Orkney police station where he worked as a sentenced prisoner. November 1992, Department of Correctional Services denied that the matter fell within their jurisdiction. Outcome of investigation, unknown.
Mr Mandla Khumalo, prisoner number 23/1724 was beaten to death in medium A prison at Leeukop. A certain Major van Niekerk, Major Swanepoel, Lieutenant van Rensburg, Warrant Officer Brunner, Warrant Officer Hlale, Sergeant Opperman, Sergeant Sudler, Mr Vosloo and a Warrant Officer Fourie, suspected to be involved. Despite numerous inquiries by our organisation, no official respond was received.
Mr Soloman Maseko, Barberton, we were informed of his death by prisoner Perry Moshokwe, prisoner number 37/6475 who was then transferred from Barberton to Bethal in September 1991. Apart from the initial formal respond, no further information has been forwarded by the authorities.
A certain Mr Churchill Glepho, shot by traffic officers in the course of arrests on the 24th of April 1983, one Detective Caba from Orlando police station, telephone number 9351210 investigated the matter, but nothing came from the investigation. And this will be my last page Comrade Chairperson.
The ninth person was a certain Mr J. Shlongwane. He disappeared in November 1992 from Doornfontein, Johannesburg on the 15th of June 1993, police came to the house of his relatives and informed them that the deceased had been cremated as they could not be traced.
This despite the fact that he had his ID document with him, his peace force security card with him, his bank card and other forms of identity on him, and his docket number was SK2/13/2 (150).
Azamokwake Andries Mbata was arrested in 1991 by the Dundee Murder and Robbery Unit, Warrant Officer Lourens, whom I had numerous conversations on the telephone, at number 034122366 extension 245, disappeared and authorities claimed, he escaped and even up to today, the Mbata's know that Andries was murdered. All they are asking for is the remains of Mr Mbata.
And finally a certain Mr Simon Bengula died in Modabi prison at the hands of a known prison gangster on the 4th of October 1994. This was after he had attempted to refuse to sleep in the cell and after he stated to prison authorities that he would be killed if he were to sleep in that specific cell.
His requests were ignored and of course he died. And if you go to the other page, it is attachments which comes from the Human Rights Commission and names of people who died and disappeared and people who apparently committed suicide and the list is endless Comrade Chairperson.
But I would then like to say in conclusion that we would really appreciate because we know that there is life after the TRC, that this matters, these concerns and this argument of us and other relevant organisations, doesn't go unreported. Thank you very much.
CHAIRPERSON: Thank you. Dumisa?
MR NTSEBEZA: Just a few follow up questions. To what extent to your knowledge are prison authorities involved either in the promotion of or in the perpetration of so-called prison gangs and to what extent are these still prevalent and how much are they being used in the perpetration of gross violations of human rights?
MR BHUDU: Comrade Chairperson, as an ex-prisoner myself, I just totally refused to become part and parcel of the gangster structure. And in fact at the end of the day I was used by gangsters as a mediator and that is when we as progressive inmates decided to form the South African Prisoners' Organisation for Human Rights.
Of course prison gangsterism comes a very, very long time. Researchers and specialists will tell you where it comes from. They will tell you that Ngoloza was the one that came with prison gangsterism and Ngoloza was coming from the homelands.
He spent some time in the mine and in single hostels and he ended up in prison. And the idea of prison gangsterism started when prisoners had no structure, no voice to represent them about their complaints and about their plights. They then decided to form these gangsters.
That is why you get different kinds of gangsters. You get a 28, the 26, the Airforce 2 and 3, and the Big 5's. And different gangsters started to operate for the benefit of their members.
And according to my experience in the Gauteng province, it is the Big 5's that is very active, because they get assistance from prison authorities because the language in which they communicate it is a language which is understood by Afrikaner prison warders.
And yes, what I have learnt from other countries is that particularly in the United States, that when you become a prisoner which is an organiser, you are going to get killed and what is happening here, we see a situation where prisoner gangsters are continuously used to fight amongst one another.
And by doing that, prisoners, they never have an opportunity to sit down, to strategize and organise how they could fight for their rights because now the times has changed. There is a Bill of Rights, there is a constitution and until such time, prisoners are allowed to form what we called prisoner representative structures.
Prisoner gangsterism will remain a problem and prison warders who don't want to come to terms with the changes of the time, will keep on using the structures to cause a total destruction and demobilisation of prisoners amongst themselves.
MR NTSEBEZA: Just another question. A few years ago, I am not so sure now what year it was, a report came of considerable amount of prisoners who died in a fire that was supposed to have been started by themselves in Queenstown.
There were allegations of course from the prisoners that that fire had been in fact engineered and perpetrated by authorities. Now I would like to know whether there had been any inquiries and if there were any inquiries, to what extent any action was taken? And the role of prison authorities in trying to resolve that position?
MR BHUDU: Comrade Chair, thank you very much for that question. I can recall very well, it was in 1994 when we as an organisation demanded the right for prisoners to vote for organisations of their choices, because it was the first time in the history of this country that people were going to vote for organisations of their choices.
What happened in Queenstown of course, was an unfortunate situation. If I can recall well, the local ANC structure ... (tape ends) ... and the civics intervened and I then happened one day to meet with the Attorney who was given instructions by some people in very high places to start a commission of inquiry.
And if I can recall very well, that particular Attorney, I cannot recall his name, but I have got it in our files, was a pro-ANC lawyer that was given instructions to do some inquiries and he is in Parliament now.
But unfortunately when we were following up with him, particularly what really happened there, because we could not get accurate information, we then learnt later on that he was told to distance himself from us.
And we learnt that he ended up in Parliament and when we wrote a letter for him to send us a copy of the inquest, he sent us one simple letter saying that the authorities of Queenstown could not be found liable of the fire that broke out and the prisoners that died in that process unfortunately and that is where the story ended up.
CHAIRPERSON: Tom?
MR MANTHATA: If I understand you well, Mr Bhudu SAPOHR is an organisation of common law prisoners?
MR BHUDU: Of course political prisoners as well if they are interested.
MR MANTHATA: And the Act under which we operate is specifically for those who are political prisoners, not even by choice. So I for one am a little confused, you know by that.
MR BHUDU: Can I respond Comrade Tom?
MR MANTHATA: Yes.
MR BHUDU: Of course I am also confused Comrade Tom, that you are confused because this submission was submitted to your Commission and if it was not appropriate, I don't think from the wiseness of the TRC that they were going to invite me to come and make this input, but nevertheless, what brought me here of course it is not only about the deaths and disappearance and torture of those who died in custody, but it is or it was about the gross human rights violations of the people we are talking about here.
Whether they were political prisoners or common law prisoners, because we felt that we must make this submission. It should have been a sad day in the history of this country as far as reconciliation is concerned, that the process came and the process went and still there are relatives out there who don't know what happened with their kids, with their husbands, who were killed and who disappeared merely on suspicion of having committed an offence.
You know, one is talking of a situation here sir, where the Investigating Officer, the police, the Magistrate, Prosecutor and the Judges were the executor and it was here about the gross violation of human rights, unless I have misunderstood the entire Act that give guidelines to the Truth and Reconciliation Commission.
MR MANTHATA: Yes, if I have to answer you. I want to ensure you that the Truth and Reconciliation Commission is so democratic that it doesn't follow that there could have been unanimity in accepting your submission and even giving SAPOHR a hearing, but nonetheless as it is meant to be broadly democratic, it allowed SAPOHR to make a submission, but still one wants to just put the legal structure in its true perspective, that the Act is this and the submission is this.
CHAIRPERSON: Dumisa, would you like to follow up that?
MR NTSEBEZA: No, I just wanted to say in this country there was a very thin dividing line, very, very thin dividing line as to what could have been construed to be a political or common law offence.
In fact even those who call themselves political offenders, call themselves political offenders in terms of the law, but otherwise they were all regarded as criminal offenders by the authorities that be. So I do say to the extent that we have a submission, and the submission is properly made, I think the legalities as to whether our Act provides or does not provide for this sort of submission, is not the sort of question that we should put to the witness, it is for the TRC to examine itself and to examine the Act and I for one, am not prepared in the light of what I knew the Law to have been in those days, to split hairs as to whether this is or is not a proper and an appropriate forum for submissions of this nature to be made.
As I say, it is a very thin dividing line that divides what was construed to have been political and common law in this country and i think to that extent we should really appreciate that we have the Golden Miles Bhudu's who are pricking or conscience and actually making the point that even if we talk about the TRC having been construed to present as complete a picture as possible, in the context of the political conflicts of the past, how many of those who disappeared, were in fact so-called common law offenders?
Some of them may have even been in prison for having contravened the Pass Law or a Group Areas Act and just for being in prison for a brief 48 hour period, ended up in graves that are unmarked.
So I really think that the appropriate thing for this Commission is to welcome the submissions that have been made and I think it is for us and my comrades Tom, to see to what extent as a Commission not put it to the witness, to what extent we can accommodate such submissions that has been made. Thank you Chair.
CHAIRPERSON: Hugh?
MR LEWIN: Could I just ask Comrade ...
MR MANTHATA: I was just pointing a point as it is. I have not taken any side and it is for the TRC to keep repeating what it is which is what makes the people to come to it. It is not a question of whether the submission is right, whether the submission is wrong. It is just a re-emphasis of what the TRC is all about.
CHAIRPERSON: Hugh?
MR LEWIN: Thanks Madam Chair. I just wanted to ask one final question. Golden Miles you say that there is life after the TRC, certainly. Have you any ideas as to what sort of structures you would support because the transformation unit for instance has fallen apart, hasn't it?
MR BHUDU: Yes, of course. In fact if you can go to our submission on page 6, that it would be of course appreciated after the life span of the TRC, that a proper sort of independent commission of enquiry be established that will deal with all these arguments of people who died and disappeared and I can assure you if such an investigation is going to be established with some data base that were left over in the TRC, people will be discovered who died under very suspicious circumstances and that of course will keep on contributing towards healing this nation and reconciling with it.
In a nutshell, we would really be appreciated in the future, if an independent commission of inquiry gets off the ground, that will deal with each and every issue and make further contribution where the TRC left.
MR LEWIN: Thank you Madam Chair.
CHAIRPERSON: Mr Bhudu, thank you very much for giving us insights into the gross human right violations that are perpetrated against common law prisoners.
I know it is very easy for people not to be sympathetic about criminals, especially at this time in our country where you open a newspaper, you hear about the gruesome murders that take place, sexual abuse and the hijackings and so on.
And in that context, you will find that people at the end distance themselves from any improvements on human rights of such criminals or prisoners, but today you have given us another picture and this morning Paula McBride tried to share with us how the crime rate in this country is caused by the evils of the past and how the death sentence cannot be the answer to stop such crime.
So I think a very important fact that has come out from your submission is that whether somebody is a criminal or a common law prisoner, he has got rights because Article 3 and 5 of the Universal Declaration of Human Rights says everyone has the right to life, liberty and the security of person and no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
So, we are grateful for your submission and we will read that as a Commission and see how it can form part of the recommendations that we are supposed to make. Thank you very much.
MR BHUDU: Thank you.
CHAIRPERSON: Could you stay there please. We have now come to the end of our hearings. After listening to all the testimonies since yesterday, I think one important fact that has emerged, is the dire need for a watchful eye to be kept on the manner in which prisoners are treated.
The Act, the TRC Act says we should try to give as complete a picture as possible of the conflicts of the past and I hope we have succeeded to do that during this two days. We have presented you with a window through which you have glimpsed the number of gross human rights violations that were perpetrated against prisoners and there in Robben Island, in the camps or in the ordinary prisons.
I know that you are aware that the Truth Commission is coming to an end in December and that after December, the three months, the next three months up to March next year, will solely be used for formulating this report for the President and subsequently Parliament, where they are going to consider the recommendations that we are making that all the human rights violations that we have listened to for these two years, should never, even happen again.
I know Commissions are notorious for not implementing their recommendations and today we heard how Diliza Mthembu is disillusioned about the previous Commissions that were set up to look into the gross violations that took place in the camps.
But I want to give you a challenge that it is you NGO's, civil society, the church and what have you, that have to see that these recommendations are implemented. Without your help and without your interest, Commissions will always be notorious for not implementing recommendations.
So we hope that through the two years we have been moving during different hearings and opening up eyes and giving you a picture of what was happening in the country, you will feel that you yourselves will never rest until those recommendations are in place and they protect our nation and we have our reconciliation and national unity in this country.
So don't leave that to the TRC only, we will have done our job to open your eyes and to make recommendations, but together with us, we employ you to join us at the end to see that the Government does implement those recommendations.
We thank you very much for having come and showing your interest in these hearings and we hope you will still be interested in the hearings that are still to come. As I said earlier, the women are having their special hearing on Monday, the 28th and 29th, next week at the legislature in the Civic Centre and we hope all of you are going to come and listen to the special violations that were perpetrated against women in this country.
I would also like to thank the Human Rights Information Centre of greater Metro Council under the hard work of Ramni Dinand, the organiser for supplying us with the marquee and providing the chairs and the heating and the electrical equipment and the security whilst we were here for these two days.
Without them, we would never have had the chance to really have this hearings at this place as a symbolic gesture so that as we go through the testimonies, we are aware of what used to happen here before. So if they hadn't provided us with these, it wouldn't have been possible for us to be here.
We also want to thank the Rand Light Infantry for facilities at the Fort here, especially David Daniels, the caretaker. We want to thank our interpreters, most of them had left already and our caterers for the tea and the lunch that they provided. And the police who have looked after us, and provided transport to all of us and we also want to thank our staff, the TRC staff, who have worked so hard to make this a success.
I will not name them, they know themselves, but particularly I would like to thank Daniel Zust, our intern from Germany, from Switzerland who has been seconded to come and help us and he and Hugh worked very, very hard in the preparation for this hearings.
I want to thank the panellists, especially Mdu and Dumisa who have come from outside or Gauteng area, from Durban and Western Cape to share this with us.
Thank you very much and God bless you.
TRUTH AND RECONCILIATION COMMISSION
SPECIAL PRISONS HEARING
DATE: 22-07-1997
DAY 2
INDEX
DAY 2 Pages
P. McBRIDE 20
D. KHUMALO 15
J.S. STEINBERG 34
T. RAMASHAMOLA 14
L. TYATYAM 8
H. STRACHAN 24
B. POGRUND 13
D. MTHEMBU 21
J. SEREMANE 11
V. MNYANI 6
G.M. BHUDU 21
