/ 27 March 1997

End the freedom to torture

A high court judgment sends the wrong message to police torturers and their victims, argues `Serjeant at the Bar’

A JUDGE in the Johannesburg High Court has refused to make a special order for costs against the minister of safety and security and two others in connection with an incident of police torture at the Soweto murder and robbery unit.

In an affidavit, Makosonke Ngwenya described his ordeal: “On August 29 1996 I was taken from the cells after lunch by a Captain Kriegler of the Soweto murder and robbery unit.”

Ngwenya told the court he was questioned by Kriegler and three other policemen. “While I was being questioned in the unit’s offices, I was told to undress to my underwear. My hands were tied behind me with material and a rope. The rope was blue and white, and the material was blue. I was wrapped in a grey blanket once I was made to lie down on the office floor.

“A red rubber tube was placed over my face, as well as a plastic bag on which was written the word `Spitz’. Wires were tied to each of my small toes. Someone sat on my back pulling the rubber tight so that I could not breathe. I was given electric shocks. I felt close to death. The pain was terrible. The torture was repeated perhaps more than 15 times.”

Ngwenya also described how Kriegler had threatened to kill him and his girlfriend, and how Kriegler and one of the policemen had said he should run away so that they could shoot him.

Ngwenya launched an application against the minister, the commander of the unit and Kriegler. The application was in two parts. The first, an urgent application, sought permission for an immediate search of the unit’s premises. Permission was granted. The premises were searched but no torture equipment could be found.

The second part sought an order interdicting the police from torturing Ngwenya, “whether by physical beatings or electric shock, or in any other manner”.

The high court had no difficulty granting an order stopping the police from torturing Ngwenya. However, the matter did not end there. Ngwenya also asked for a special order for “attorney and client” costs.

In civil litigation the general rule is that the unsuccessful party is liable for the “party and party” costs of the successful party. Party and party costs are those which the taxing master of the court considers to have been necessarily or properly incurred. Attorney and client costs embrace a wider spectrum, and include those which an attorney is entitled to recover from the client.

The result is that, generally, the successful party is required to pay to his attorney those costs which have been excluded from the party and party award.

Sometimes, however, a court will express its disapproval of the losing party’s conduct by making a special costs order. In 1946 the Appellate Division said attorney and client costs are awarded when “the court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation”.

Since 1946 our courts have awarded attorney and client costs in countless cases against unsuccessful litigants whose conduct has been considered “unworthy” or “reprehensible”.

In the Ngwenya application, counsel for the respondents opposed the special costs order on the ground that “an assault is an assault”. While the minister’s counsel was unable to dispute Ngwenya’s allegations of torture, he nevertheless contended that there were no special considerations present which would justify a departure from the usual award of party and party costs.

When asked by the judge if he meant the torture described by Ngwenya was “a standard assault”, counsel said “yes”.

Counsel for Ngwenya argued that the conduct of the policemen was “reprehensible”, and that it would be unjust if Ngwenya were to be out of pocket as a result of his having to approach the court for an interdict against police torture.

The judge disagreed. He refused to award attorney and client costs, and awarded party and party costs instead. Clearly he did not regard the torture of Ngwenya as reprehensible conduct.

The implications are staggering. Leaving aside the fact that the institutionalised nature of torture has been recognised in international law and in the law of most of the world’s democracies, there are serious practical implications.

Both the interim Constitution and final Constitution expressly prohibit torture. In spite of this, police torture continues. When are we going to realise that policemen who deliberately flout the Constitution have no regard for the law; that they are criminals; and that they will not think twice before committing other criminal acts such as accepting bribes and participating in organised crime?

How often does the point have to be made that the first step in fighting crime effectively must be to rid the South African Police Service (SAPS) of its criminal element? If the minister is satisfied with a policy which allows torturers to continue as members of the SAPS, that policy must be made so expensive for the minister that he is forced to review it.

The court should have expressed outrage at the reprehensible conduct of Kriegler and the other policemen by making an award of attorney and client costs. By choosing not to do so, it signalled that a case of police torture is no different from the usual “standard assault” case.

If this approach is followed in other decisions, victims of police torture will be forced to pay for protection against the abuse of police power. An inevitable consequence of this financial burden will be fewer applications being brought against the police. This, in turn, will give the police greater freedom to torture.