SA tortured five Leeuwkop prisoners in 2014, court finds

For the first time in SA since the end of apartheid, a court has found the state to have committed torture: the Johannesburg high court on Thursday found that the government was entirely liable for the assault and torture of five inmates at Leeuwkop Prison in 2014.

“It is rather sad and disturbing that some of the events that took place during the dark days of apartheid continue to take place in our beloved country at correctional facilities,” said Johannesburg high court judge Ellem Francis.

In reaching its decision, the court dismissed the government’s version as “a pack of lies”.

“The defendant (the minister of justice and correctional services) made up its version as the case unfolded in court,” said Francis.

He said it was “shocking” that some officials “would gang together to come up with a version in an attempt to mislead the courts about what really happened at their facility”.

Francis said that, under the constitution, torture is “absolutely prohibited”.

“There are no exceptions or derogations permitted even in cases of [states of] emergencies,” he said.

In a 173-page judgment, Francis recounted and dissected the testimony by the inmates, Llewellyn Smith, Xolani Zulu, Benson Qibi, Abel Phasha and Mthokozisi Sithole and testimony from department of correctional services (DCS) officials, as well as expert evidence from doctors for both sides.

Smith, Zulu, Qibi, Phasha and Sithole were all inmates of cell B1 at Leeuwkop and had been collectively “demoted” — had certain privileges taken away — without due process being followed.

When Zulu complained about this, as per the correct complaints procedure, the head of the prison, Alpheus Mohale, “called Zulu over and said in his presence ‘this is nonsense’ and tore up the letter”.

Zulu testified that according to the complaints protocol, if an inmate is dissatisfied with a response to a complaint from the head of prison, they can address one to the area commissioner. He wrote a second letter to the area commissioner.

“He received no response to his second letter, but was informed by his cell monitor that Mohale tore that letter up too,” said the judgment.

Zulu testified that he tried other measures, including asking to use the phone to call his family or lawyers, but this was denied. He then blocked the keyhole of their cell door, preventing DCS officials from entering in the morning to count the inmates — as a form of protest, said the judgment.

When the officials managed to get the door open, the accounts diverge widely. According to the DCS officials, when they tried to get the inmates to leave the cells, they were “attacked with buckets, electric kettles, electric irons, brooms and water and faeces”.

They were compelled to use batons and electrified shields to protect themselves and take control of the cell.

But the evidence from the inmates was that they never attacked the wardens at all. Instead, outside the cell there was a half-moon formation of emergency support team (EST) officials who are, said the judgment, only meant to be called in when there are “riots, and unrest, revolts by prisoners and violence”.

As Zulu, the first to leave, exited he was immediately shocked, kicked and beaten.

“He recalled that Manamela of the EST was using the electric shock shield on him, and that he continually electrocuted him with it and used it to push him against the wall.”

As the others exited the cell, they had a similar fate. The assault continued into the courtyard and included officials setting dogs on the inmates. Officials forced some of the inmates to do handstands, and when, due to injury, an inmate faltered, they would be electrocuted with the shield. The inmates testified that they were made to lie in a row on the ground with their cheeks on the floor as one official, Alpheus Monare, walked on their necks. “He was quite a big man ... he estimated that he weighed about 95kg,” said the judgment.

Four of the five were then put into isolation — in breach of the law that governed when and how this was permissible. Their beds and bedding were taken away, with only a mattress on a wet floor, with leaking toilets and blocked sinks.

They were kept in leg irons for the duration, except for one hour out of 24, for 16 days. Their segregation was “unlawful” and “inhumane”, said the judge.

Francis said though the DCS witnesses denied there were any further assaults outside the cell and the use of the electric shields, their versions were “riddled with material gaps and inconsistencies”.

The judge found that they had used the electric shields on the inmates. The use of EST members was, according to regulation, to be recorded by video footage. It was not.

“That no recording was taken indicates that the officials wanted to hide what they were intent on doing so that Zulu … could be dealt with,” said the judge.

The judge also examined the evidence of experts, doctors and nurses, brought to court by the state to back up its case that the inmates’ injuries were not that serious and so did not amount to torture.

He said it was clear that the nurses who had examined the inmates had failed to do so properly and that their evidence was so similar to each other — “in some respects identical” that the court questioned whether they had been coached.

Their failure to properly examine and record the injuries “was an attempt to conceal [their] true nature and extent”.

The minister’s expert psychiatrist, Dr Lawrence, diagnosed the inmates with personality disorders, contradicting the independent diagnosis of Dr Joanna Taylor, who diagnosed them with PTSD and other conditions resulting from the torture. Lawrence’s evidence was discredited in cross-examination and the judge accepted Taylor’s evidence.

He said taking the cumulative effects of the violations into account, the assaults “rose to the level of torture as defined in the Torture Act”. The exact amount the government will have to pay — or the quantum — is still to be determined.

Nabeelah Mia, head of the penal reform programme at Lawyers for Human Rights, said: “Our clients are incredibly happy with the outcome and are taking the moment for it to sink in. They see this as an enormous victory for themselves, prisoners, the community and the legal team.

“They hope that this judgment will be the end of the apartheid-style torture tactics being used on prisoners today still and that the department of correctional services will hold those who perpetrated torture against them liable, and those who continue to do so against prisoners.

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