February 5 marks the 33rd anniversary of the death of struggle hero Neil Aggett, who hanged himself after 62 hours of nonstop interrogation and torture on the 10th floor of the then John Vorster Square police station in Johannesburg. Coincidentally, it falls in the same week as the 24th anniversary of the unbanning of the ANC on February 2, the organisation for whose ideals Aggett lived and died.
Yet 20 years after the advent of democracy, legislative change and a new Constitution, torture and brutal assaults by police and prison officials continue. Previously, political prisoners like Aggett were routinely tortured; now criminals suffer the same fate. Though the torture testimonies of detainees at the hands of the police were heard for the first time in a South African court during Aggett's inquest, today such allegations are increasingly commonplace.
Although police commissioner Riah Phiyega promised an immediate investigation into high-profile Czech criminal Radovan Krejcir's claims of torture by police last year, only now has an official inquiry into Aggett's death been opened. The investigation follows charges of culpable homicide laid by Brian Sandberg, co-ordinator of the Neil Aggett Support Group, against Aggett's torturer-in-chief, Lieutenant Stephen Whitehead, late last year.
As a result, Whitehead, an apartheid-era cop, looks set to become an unlikely poster boy for combating the culture of impunity currently characterising South Africa's prisons and police services. "Neil's story is bigger than him," Sandberg says. "It's about police brutality and a state that acted with impunity and continues to do so … In reigniting the memory of Neil, I'm trying to reignite the values he stood for. If he were alive today, these are the kind of issues he'd be fighting for."
An entrenched culture of impunity, with little regard for consequence or culpability, indicates that South Africa has learnt little from the lessons of the past: not from the deaths of Aggett, Steve Biko, Andries Tatane, Mido Macia, the Marikana miners, the Groenpunt prison violence that left three inmates dead last year, the Mothutlung service delivery protests earlier this month or the fatal shooting of a protester at Durban Deep mine last week.
"Torture hasn't suddenly reared its ugly head. It's never stopped," says Wits Law Clinic torture expert Professor Peter Jordi. "It was carried out at local police stations before and continues today. The police torture people all the time – in their homes, in police cells, in the veld, in cars … torture is standard police investigation practice. These policemen are serial criminals. They have methods of investigation that are unlawful and for which they could be prosecuted but they never are."
Whitehead, who never bothered to apply to the Truth and Reconciliation Commission for amnesty for his role in Aggett's death, was no exception. Government lethargy in the face of repeated reports of violence, assault, excessive use of force and torture seems indicative of an unwillingness to hold perpetrators accountable.
Take the mass torture and beatings in Port Elizabeth's St Albans prison in 2005, for example. Eight years later, department of correctional services (DCS) ministerial spokesman Logan Maistry says: "The investigation into this case by the relevant agencies is at an advanced stage."
In 2009, St Albans inmate Bradley McCallum told the United Nations Human Rights Committee in Geneva how he had been shocked, beaten and raped by a warder with a baton while forced to lie naked in a long human chain with his face in the buttocks of the inmate lying in front of him. Though South Africa was found guilty of human rights violations it proceeded to ignore five requests by the committee to respond to McCallum's allegations.
"A fish always rots from the head," Sandberg notes tersely. "Torture and a lack of accountability are symptomatic of an arrogance that needs to be turned around. Now we hope that government will demonstrate by its actions that it's different to the apartheid government." But, to date, none of the 70 to 80 warders implicated in the torture of McCallum and 230 other inmates have been dismissed, nor have any disciplinary processes been concluded by the prisons department.
Civil Society Prison Reform Initiative director Lukas Muntingh says the dismissal of prison officials is a very rare sanction: "In 2010/11, there wasn't a single prosecution – despite thousands of complaints a year and a body of evidence telling us there is a serious problem. Dismissal is an extremely rare occurrence … and occurs in less than 1% of cases."
According to Muntingh, there has not been a single prosecution of a prison official implicated in the death of a detainee in the past three years, despite thousands of complaints recorded by the department, the Independent Police Investigative Directorate (Ipid), the Judicial Inspectorate for Correctional Services (Jics) and the South African Human Rights Commission.
"Though the legislative framework presents no major obstacles to holding state officials accountable for gross rights violations, officials are rarely prosecuted and convicted for assault, torture and actions resulting in the death of criminal suspects and prisoners," Muntingh says. "Prosecution is so rare that a situation of de facto impunity results."
In May this year, the cases of the first seven St Albans claimants who are suing the minister of correctional services for damages will be heard in Port Elizabeth.
"The department believes they did nothing wrong," says lawyer Egon Oswald, who is representing the 231 former and current St Albans torture victims. "This case is more than just a simple damages claim, which would only serve to put funds in the hands of the individual victim at the taxpayer's expense.
"I want the St Albans human rights abuses to be brought to light, for individual perpetrators to be held accountable and for the system to be reformed so this type of atrocity will never happen again …
"I handle cases like this on an ongoing basis. I've issued numerous demands against the minister on behalf of alleged victims of torture. Right now, I have two cases of assault, torture and naked beatings involving 15 St Albans claimants that occurred as recently as June 16 and 17 last year.
"Torture, assaults and beatings continue unabated as organised searches often degenerate into beating slugfests."
Muntingh says that independent oversight has proved to be the most effective way to prevent torture and promote transparency and accountability: "[But] the McCallum case is an example of a complete breakdown of internal and external oversight mechanisms."
This is probably not surprising because the Judicial Inspectorate for Correctional Services, the under-staffed, under-resourced prison oversight body, which is viewed by many inmates as a "toothless dog", has limited oversight powers.
"How can the organisation be truly independent if Jics salaries are paid by DCS, whom their job is to oversee?" ponders one inspectorate source. "Jics doesn't have the financial resources, capacity or investigative skills to carry out its mandate effectively.
"Last year 93 inspections and 39 investigations were conducted by a small team of just five investigators who investigated complaints from 242 correctional centres with about 150 000 inmates. By definition, this means investigations have to be hit and run."
As for the Independent Police Investigative Directorate, which has a legal duty to investigate torture allegations involving the police, few allegations are thoroughly investigated and prosecutions and convictions of implicated officials are rare.
Only one conviction was obtained in 217 deaths allegedly at the hands of the police, or in police custody investigated by the directorate in Gauteng in 2011/12, notes Muntingh. In addition, until last year when the Prevention and Combating of Torture of Persons Act was promulgated, torture was not a crime in South Africa. Fifteen years in the making, neither the new Act nor the Constitutional obligation to promote and protect the human dignity of all prisoners appears to have made any difference to those entrusted with their care.
"We can't let this continue," says Sandberg. "Torture is never acceptable – not of political prisoners like Neil, or suspected criminals like Krejcir. Perpetrators must be called to account. To combat impunity and heal apartheid's deep wounds, government must be accountable and be seen to be accountable. Aggett's family and friends deserve no less."
Carolyn Raphaely is a member of the Wits Justice Project, which investigates miscarriages of justice and is located in the journalism department of the University of the Witwatersrand.