TRC Final Report

Volume 6

Section 5

Chapter 2

Subsection 4

31. Whilst the Commission received thousands of statements alleging torture, few amnesty applications were received specifically for torture. Those received were f rom applicants Andries Johannes van Heerden [AM3763/96]; Willem Johannes Momberg [AM4159/96]; Stephanus Adriaan Oosthuizen [AM3760/96]; PJ Cornelius Loots [AM5462/97]; Jacques Hechter [AM2776/96]; Christo Nel [AM6609/97]; Lieutenant Colonel Antonie Heystek [AM4145/97]; Colonel Anton Pretorius [AM4389/96]; Helm ‘Timol’ Coetzee [AM4032/96]; Johannes Jacobus Strijdom [AM5464/97]; Paul van Vuuren [AM6528/97]; Roelof Venter [AM2774/96]; Eric Goosen [AM4158/96]; Marius Greyling [AM8027/97]; Karl Durr [AM8029/97]; Frans Bothma [AM8030/97]; Andy Taylor [AM4077/96]; WCC Smith [AM5469/97]; Jeffrey Benzien [AM5314/97], and Gert Cornelius Hugo [AM3833/96].²⁸

32. It is clear that it was the norm for agents of the state to carry out various torture practices on those who were in their custody or incarcerated. In dealing with questions of accountability, one needs to establish whether the state was aware of the torture taking place and whether it took any action to prevent it happening. In other words, did the state take any action against its agents for the commission of torture and, once it knew that torture was widespread, did it do anything to prevent its repetition?

33. The former government conceded that torture occurred, but claimed that it represented the actions of a few renegade policemen. Former President FW de Klerk stated in his submission to the Commission that:

The National Party is prepared to accept responsibility for the policies that it adopted and for the actions taken by its office bearers in the implementation of those policies. It is however not pre pared to accept responsibility for the criminal actions of a handful of operatives of the security forces of which the Party was not aware and which it never would have condoned.^{2 9}

34. Contrary to Mr de Klerk’s claim of ignorance of the practice, Mr Leon Wessels, the National Party’s former deputy Minister of Police, conceded that it was not possible to deny knowledge of torture. Mr Wessels testified at a special hearing on the role of the State Security Council that:

it was foreseen that under those circumstances people would be detained, people would be tortured, everybody in the country knew that people were torture d .^{3 0}

35. The principles that have been enunciated earlier in this chapter can be summarised as follows: a The state is held strictly responsible for the conduct of its agents who commit gross violations of human rights. b State responsibility may be invoked even where the identity of the agent is unknown . c The state has the evidentiary burden to explain its action in the face of credible allegations of abuse by state agents. d States are also held responsible for ‘lack of due diligence to prevent the violation or to respond to it’ (official tolerance).

36. A key factor here is proving that the human rights violation took place with the support or tolerance of public authority or that the state allowed the violation to go unpunished.

37. The Commission noted in its Final Report that victim statements and amnesty applicants implicated a number of senior officers for having had knowledge of or having covered up incidents of torture. In the case of Mr Stanza Bopape, the then Commissioner of Police covered up the actions of the officers responsible for Bopape’s death. Condonation of torture by superior officers was further evidenced by the fact that most well-known torturers were promoted to higher positions.

38. The Commission also noted that no prosecutions resulted from allegations of torture, even though the use of torture emerged in most political trials. The cases of Ahmed Timol, Neil Aggett and Lindy Mogale are pertinent.

39. Magistrates and judges seldom protected detainees or ruled in their favour, even though a pattern of abuse was familiar.

40. In a number of cases, the families of victims or detainees themselves laid charges against the state, resulting in out-of-court settlements.

41. More distressing is the fact that many judges and magistrates continued to accept the testimony of detainees, despite the fact that most of them knew that the testimony had been obtained under interrogation and torture whilst in detention. In this way, the judiciary and the magistracy indirectly sanctioned this practice and, together with the leadership of the former apartheid state, must be held accountable for its actions.

42. A number of human rights bodies made representations to the state about the treatment of detainees and persons in custody. In April 1982, the Detainees Parents Support Committee met with the Minister of Law and Order and the Minister of Justice to submit a dossier that included seventy-six statements alleging torture. The dossier named ninety-five individuals as perpetrators and covered the period 1978 to 1982. The ninety-five individuals were all members of the Security Branch and came from eighteen different branch offices. Of the eighteen offices detailed, John Vorster Square, Protea police station and the office in Sanlam building in Port Elizabeth headed the list. A report was subsequently made to parliament, which was informed that forty-three of these cases had been investigated and that eleven of the claims were unfounded. Presumably the remaining thirty-one were found to be of substance, yet no action was taken.

43. In May 1983, the Ad Hoc Committee of the Medical Association of South Africa (MASA) published a report as a supplement to the South African Medical Journal in which it stated that:³¹

there are insufficient safeguards in the existing legislation to ensure that that maltreatment of detainees does not occur. Persuasive evidence has been put before the Committee that where harsh methods are employed in the detention and interrogation of detainees, this may have extremely serious and possibly permanent effects on the physical and mental health of the detainee…

44. The only response from government was a set of directives issued by the Minister of Law and Order in December 1982 as safeguards for those detained under Section 29 of the Terrorist Act. Paragraph 15 stated that:

A detainee shall at all time be treated in a humane manner with proper regard to the rules of decency and shall not in any way be assaulted or other wise ill-t reated or subjected to any form of torture or inhuman or degrading treatment.

45. The state did not bother to ensure that the directives were explained and no system was put in place to monitor whether detainees were being treated properly or that their human rights were being safeguarded .

46. The case of Mr Stanza Bopape implicates a number of superior officers in the cover-up and tolerance of torture.

47. Given the statements of victims, their families, the testimony of amnesty applicants such as Messrs Charles Zeelie, Jeffrey Benzien, Andy Taylor and Paul van Vuuren, and Generals Loggerenberg, Van der Merwe and others on the practice of torture and the condonation and cover up by superior officers when cases went horribly wrong, there can be no doubt that torture was widespread , well known and tolerated.

48. Although aware of the opprobrium being directed at them for this practice, the state continued to do nothing to end it. The state also did nothing about the violators or the agency that harboured them, the Security Branch. No mechanisms were put in place to monitor whether torture was still happening, nor to prevent it from happening. Neither the superior officers nor the officers carrying out the torture were sanctioned in any way. The attitude of the former state can only be described as one that ‘tolerated and officially condoned’ the practice of torture and the actions of their agents.

49. The Commission therefore confirms the findings it previously made, based on the further evidence it has received that the former state and its agents were responsible for the torture of those they regarded as opponents; and that the state perpetuated a state of impunity by tolerating and sanctioning the practice of torture, the legacy of which still exists today.