Prisoners’ claims of torture ignored

The record of the subsequent medical examination notes Abel Phasha as being of “small build”. That is no exaggeration. Phasha is 31 years old but weighing in at 55kg makes him about the size of a 14-year-old. 

On the day a group of at least a dozen armoured and baton-wielding men started beating him in the Leeuwkop maximum prison outside Johannesburg he was also the equivalent of a child with one arm tied behind his back. We know this because, by his telling, the sling cradling his injured hand was used to strangle him as he was tortured for information. “I was punched, slapped, kicked and beaten with batons,” Pasha told the high court in a statement in 2015. 

“I was put in the shower and the officials turned the water on. We were instructed to remove our clothes. We were then shocked repeatedly whilst in the shower.”

Statements and correspondence spread over two different court cases fill in the Kafkaesque details that stark statement elides: a mysterious list of those to be targeted, assailants made unidentifiable by visors, dogs and electric shocks and suffocation, a doctor instructed to hush things up. And all to recover a suspected contraband cellphone.

Twenty months later, all these details remain untested. Last week Phasha and his fellow complainants filed a civil action demanding that the courts intervene in the National Prosecuting Authority’s (NPA) decision not to prosecute the prison officials they claim tortured them. 

They know only that police completed an investigation and handed it over for prosecution. Nobody will tell them what the outcome of the investigation was, nor give them reasons for the decision to 

not prosecute. In effect, their criminal complaint was simply lost in the system, their representatives, Lawyers for Human Rights (LHR), told the high court last week, in violation of pious local laws and international treaties that pledge action in cases of suspected torture.

Those treaties, such as the United Nations Convention Against Torture, do not specifically mention criminals serving long sentences for serious crimes, as in the case of the Leeuwkop group, but do helpfully exclude even the threat of war as an excuse for torture.

The failure of the state to act, LHR told the court, “is deeply distressing, not only for the complainants but for all victims of torture, for one of the primary measures of preventing torture is to ensure accountability on the part of public officials who commit acts of torture”. In an action reminiscent of the spy tapes saga involving allegations of corruption against President Jacob Zuma, LHR is now asking the court to instruct the NPA to prosecute the prison officials involved.

At the end of April the high court in Pretoria overturned the decision not to prosecute Zuma on the basis that it had been irrational. The NPA has filed an appeal to that decision, saying prosecutors should have almost unlimited leeway in deciding whether to prosecute cases or not. The NPA this week said it had not yet received the application, and that it had not record of ever being asked its reasons for not prosecuting.

Phasha was later officially found to have been unfairly punished. For that, he and three others are claiming R200 000 each in damages from the state. 

Add in assault and torture they claim preceded that punishment, and a fifth complainant, and the group hope to cost the state some R3.5-million before interest and legal costs. That number does not seem unrealistic in the context of recent awards.

At the end of April, the high court in East London ordered police to pay barber Robert Fisa some R850 000 in damages after he was tortured for hours in an apparent attempt to have him inform on a dagga-peddling friend. Fisa showed little physical signs of his torture, apparently calculated not to leave traces, and he was the only witness to what happened to him. 

At the end of March 2015, the last figures available, the department of correctional services reported outstanding claims worth R211-million against it for “damages”, R126-million for “bodily injury/assault” and another R97-million for “pain and suffering”. 

The auditor general refused to sign off on those numbers, saying that the department lacked adequate systems to record such claims. While they push for the criminal prosecution of those they say tormented them, the Leeuwkop prisoners remain in the same prison and, as best they can tell, are still guarded by those who assaulted them.

Entreaties to have them moved to a different facility have fallen on deaf ears, their lawyers say. “I have nightmares and flashbacks often,” Phasa wrote in a 2014 statement.

A toothbrush, a cellphone and a protest gone horribly wrong It ended with naked, wet men being repeatedly shocked, and with blood on the floor. But it started with the intentional misapplication of a toothbrush as a form of protest.

As Xolani Zulu, who is serving a life sentence, tells it, unjust punishment for a previous infraction was about to see him and 30 cellmates lose their privileges to make phone calls, watch TV and exercise for long stretches at a time. 

Fed up with “abusive and haphazard management practices” in the Leeuwkop prison, he used the tried-and-tested method of inserting a toothbrush into the cell’s lock, preventing it from opening, and demanded to appeal to the area commissioner, a higher power.

The story of what happened next is based almost entirely on the accounts of convicted criminals, and has not been tested in a court. The department of correctional services did not respond to questions from the Mail & Guardian, but an official not authorised to speak to the media said there would be no response while the matter was before the courts.

But some evidence corroborating the accounts of the prisoners can be found in court papers. Subsequent independent medical examinations record physical damage consistent with a beating. More damning, a letter from the Judicial Inspectorate for Correctional Services records an investigation deeming it “clear” that at least three of the group of five “did not display violence and did not threaten the security of the prison” by merely being in the cell with Zulu when he wielded his toothbrush.

According to the inmates, the blocked door was met with a call to an emergency security team trained to deal with violence. They were puzzled to see no violence in progress, but pitched in with an offer of teargas to resolve the standoff.  The inmates relented.

That is when the beating started. “I was bleeding a lot,” Zulu later wrote. “One of the officials responded that I ‘should just die’.” The beating went on long enough for some of the officials involved to require a break, but that was by way of preliminaries for the five men whose names appeared on a list of those suspected to be concealing a contraband cellphone. 

They were taken to a shower area, where the guards really got to work.  At one point, an inmate says, “the pain was unbearable. In an attempt to get the assault to stop, I told them I’d given the phone to Abel Phasha.” 

That earned Phasha another beating, and a choking to boot. Once things settled down, each prisoner was offered two paracetamol tablets. Medical staff, they say, seemed strangely reluctant to examine them or complete comprehensive reports before they were placed in “segregation”, the formal description of the method used to isolate troublesome prisoners, for more than two weeks.

No cellphone, it seems, was ever found.

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Phillip De Wet
Guest Author

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