International Criminology World

World : Africa : South Africa
 
South Africa

People have inhabited southern Africa for thousands of years. Members of the Khoisan language groups are the oldest surviving inhabitants of the land, but only a few are left in South Africa today--and they are located in the western sections. Most of today's black South Africans belong to the Bantu language group, which migrated south from central Africa, settling in the Transvaal region sometime before AD 100. The Nguni, ancestors of the Zulu and Xhosa, occupied most of the eastern coast by 1500.

The Portugese were the first Europeans to reach the Cape of Good Hope, arriving in 1488. However, permanent white settlement did not begin until 1652 when the Dutch East India Company established a provisioning station on the Cape. In subsequent decades, French Huguenot refugees, the Dutch, and Germans began to settle in the Cape. Collectively, they form the Afrikaner segment of today's population. The establishment of these settlements had far-reaching social and political effects on the groups already settled in the area, leading to upheaval in these societies and the subjugation of their people. By 1779, European settlements extended throughout the southern part of the Cape and east toward the Great Fish River. It was here that Dutch authorities and the Xhosa fought the first frontier war. The British gained control of the Cape of Good Hope at the end of the 18th century. Subsequent British settlement and rule marked the beginning of a long conflict between the Afrikaners and the English. Beginning in 1836, partly to escape British rule and cultural hegemony and partly out of resentment at the recent abolition of slavery, many Afrikaner farmers (Boers) undertook a northern migration that became known as the "Great Trek." This movement brought them into contact and conflict with African groups in the area, the most formidable of which were the Zulus. Under their powerful leader, Shaka (1787-1828), the Zulus conquered most of the territory between the Drakensberg Mountains and the sea (now KwaZulu-Natal). In 1828, Shaka was assassinated and replaced by his half-brother Dingane. In 1838, Dingane was defeated and deported by the Voortrekkers (people of the Great Trek) at the battle of Blood River. The Zulus, nonetheless, remained a potent force, defeating the British in the historic battle of Isandhlwana before themselves being finally conquered in 1879.

In 1852 and 1854, the independent Boer Republics of the Transvaal and Orange Free State were created. Relations between the republics and the British Government were strained. The discovery of diamonds at Kimberley in 1870 and the discovery of large gold deposits in the Witwatersrand region of the Transvaal in 1886 caused an influx of European (mainly British) immigration and investment. Many blacks also moved into the area to work in the mines. The construction by mine owners of hostels to house and control their workers set patterns that later extended throughout the region. Boer reactions to this influx and British political intrigues led to the Anglo-Boer Wars of 1880-81 and 1899-1902. British forces prevailed in the conflict, and the republics were incorporated into the British Empire. In May 1910, the two republics and the British colonies of the Cape and Natal formed the Union of South Africa, a self-governing dominion of the British Empire. The Union's constitution kept all political power in the hands of whites.

In 1912, the South Africa Native National Congress was founded in Bloemfontein and eventually became known as the African National Congress (ANC). Its goals were the elimination of restrictions based on color and the enfranchisement of and parliamentary representation for blacks. Despite these efforts the government continued to pass laws limiting the rights and freedoms of blacks. In 1948, the National Party (NP) won the all-white elections and began passing legislation codifying and enforcing an even stricter policy of white domination and racial separation known as "apartheid" (separateness). In the early 1960s, following a protest in Sharpeville in which 69 protesters were killed by police and 180 injured, the ANC and Pan-African Congress (PAC) were banned. Nelson Mandela and many other anti-apartheid leaders were convicted and imprisoned on charges of treason. The ANC and PAC were forced underground and fought apartheid through guerrilla warfare and sabotage. In May 1961, South Africa relinquished its dominion status and declared itself a republic. It withdrew from the Commonwealth in part because of international protests against apartheid. In 1984, a new constitution came into effect in which whites allowed coloreds and Asians a limited role in the national government and control over their own affairs in certain areas. Ultimately, however, all power remained in white hands. Blacks remained effectively disenfranchised.

Popular uprisings in black and colored townships in 1976 and 1985 helped to convince some NP members of the need for change. Secret discussions between those members and Nelson Mandela began in 1986. In February 1990, State President F.W. de Klerk, who had come to power in September 1989, announced the unbanning of the ANC, the PAC, and all other anti-apartheid groups. Two weeks later, Nelson Mandela was released from prison.

In 1991, the Group Areas Act, Land Acts, and the Population Registration Act--the last of the so-called "pillars of apartheid" were abolished. A long series of negotiations ensued, resulting in a new constitution promulgated into law in December 1993. The country's first nonracial elections were held on April 26-29, 1994, resulting in the installation of Nelson Mandela as president on May 10, 1994. During Nelson Mandela's 5-year term as President of South Africa, the government committed itself to reforming the country. The ANC-led government focused on social issues that were neglected during the apartheid era such as unemployment, housing shortages, and crime. Mandela's administration began to reintroduce South Africa into the global economy by implementing a market-driven economic plan (GEAR). In order to heal the wounds created by apartheid, the government created the Truth and Reconciliation Committee (TRC) under the leadership of Archbishop Desmond Tutu. During the first term of the ANC's post-apartheid rule, President Mandela concentrated on national reconciliation, trying to forge a single South African identity and sense of purpose among a diverse and splintered populace, riven by years of conflict. The lack of political violence after 1994 is testament to the abilities of Mandela to achieve this difficult goal. Nelson Mandela stepped down as President of the ANC at the party's national congress in December 1997, when Thabo Mbeki assumed the mantle of leadership. Mbeki won the presidency of South Africa after national elections in 1999, when the ANC won just shy of a two-thirds majority in parliament. President Mbeki shifted the focus of government from reconciliation to transformation, particularly on the economic front. With political transformation and the foundation of a strong democratic system in place after two free and fair national elections, the ANC recognized the need to begin to focus on bringing economic power to the black majority in South Africa, as well as political power. In this progress has come somewhat more slowly.

Today, South Africa is a multiparty parliamentary democracy in which constitutional power is shared between the President and the Parliament. The Parliament consists of the National Assembly and the National Council of Provinces. President Thabo Mbeki leads the African National Congress (ANC) party, which holds 266 seats in the 400-seat National Assembly. The Parliament was elected in free and fair elections in 1999; the Parliament, in turn, elected the President. The country continued to consolidate the democratic transformation initiated by the 1994 elections. The Government includes ministers and deputy ministers from the ANC, the Inkatha Freedom Party (IFP), which is the ruling party in KwaZulu-Natal Province, and the Azanian People's Organization (AZAPO), but is dominated by the ANC. In October the New National Party (NNP) formed a coalition with the ANC. The official opposition party in the National Assembly is the Democratic Party (DP) and its smaller Democratic Alliance (DA) partner, the Federal Alliance (FA). The judiciary, including the Constitutional Court, is independent.

 

SOCIO-ECONOMIC SYSTEM

South Africa has a two-tiered economy; one rivaling other developed countries and the other with only the most basic infrastructure. It therefore is a productive and industrialized economy that exhibits many characteristics associated with developing countries, including a division of labor between formal and informal sectors--and uneven distribution of wealth and income. The formal sector, based on mining, manufacturing, services, and agriculture, is well developed.

The transition to a democratic, nonracial government, begun in early 1990, stimulated a debate on the direction of economic policies to achieve sustained economic growth while at the same time redressing the socioeconomic disparities created by apartheid. The Government of National Unity's initial blueprint to address this problem was the Reconstruction and Development Program (RDP). The RDP was designed to create programs to improve the standard of living for the majority of the population by providing housing--a planned 1 million new homes in 5 years--basic services, education, and health care. While a specific "ministry" for the RDP no longer exists, a number of government ministries and offices are charged with supporting RDP programs and goals.

The Government of South Africa demonstrated its commitment to open markets, privatization and a favorable investment climate with its release of the crucial Growth, Employment and Redistribution (GEAR) strategy--the neoliberal economic strategy to cover 1996-2000. The strategy had mixed success. It brought greater financial discipline and macroeconomic stability but has failed to deliver in key areas. Formal employment continued to decline, and despite the ongoing efforts of black empowerment and signs of a fledgling black middle class and social mobility, the country's wealth remains very unequally distributed along racial lines. South Africa's budgetary reforms such as the Medium-Term Expenditure Framework and the Public Finance Management Act--which aims at better reporting, auditing, and increased accountability--and the structural changes to its monetary policy framework--including inflation targeting--have, however, created transparency and predictability and are widely acclaimed. Trade liberalization also has progressed substantially since the early 1990s. Average import tariffs in South Africa have declined to 14.3% in 1999 from more than 30% in 1990. These efforts, together with South Africa's implementation of its World Trade Organization (WTO) obligations and its constructive role in launching the Doha Development Round, show South Africa's acceptance of free market principles.

Today, South Africa has a population of approximately 43,680,000. The economy continues to undergo important fundamental changes as the manufacturing, wholesale and retail trades, transportation and travel services, and communication services continue to grow and the contributions of agricultural and mining sectors to the economy decline. The gross domestic product (GDP) of the country is $130 billion (887,795,000 billion Rands) and the per capita GDP is $3,023 (20,646 Rands). Although agriculture and mining account for relatively small shares of GDP (approximately 4 and 6 percent respectively), they are important sources of foreign exchange. Manufacturing accounts for 24.8 percent and services for 48 percent of GDP. During the last 50 years, the economy has been characterized by strong state involvement in a number of industries. The Government has made privatization and restructuring a key part of its economic policy. The debate over restructuring of state assets continued during the year 2001. Since the end of the apartheid era, investors have used the country as a base of operations for doing business throughout southern Africa. Tariff reductions, the partial removal of exchange controls, competition policy, and disciplined monetary and fiscal policies have succeeded in making firms more competitive on world markets, in reducing inflation, and in instilling discipline in public sector spending. Real GDP growth has remained at approximately 3 percent. In year 2001, the distribution of income and wealth remained highly skewed along racial lines and between urban and rural citizens. Official unemployment remained very high at approximately 26 percent, although some statistics indicated that it was higher. More than one-third of employed persons work outside of the formal economy. The country suffers from a significant shortage in skilled workers, and many black citizens are poorly educated and ill-equipped to function in an increasingly globalized economy. The numerous social and economic problems that the country faces today, many of which originated during the apartheid era, persist.

 

CRIMINAL CODES

South Africa's courts are empowered to impose punishments of death (through early 1995), imprisonment, periodic imprisonment for a total of between 100 and 2,000 hours over a period of weeks or months, being declared a "habitual criminal," commitment to an institution other than prison, fines, and whipping. Those convicted of lesser crimes are often given a choice of punishment--for example, a fine or imprisonment. During the apartheid era, the courts imposed prison terms of several days to several weeks for pass law violations, and ten to twenty years for membership in the ANC or the SACP, which were banned organizations until 1990. Other typical prison sentences are terms of two to ten years for robbery; up to twenty years for assault or rape; ten to fifteen years for possessing an illegal firearm; ten to twenty years for attempted murder; and twenty years to life in prison for murder.

Murder and treason were capital crimes through the 1980s, although whites often received light sentences for crimes against black people, and they were almost never sentenced to death for murdering blacks. All executions were suspended in early 1990, and although more than 240 people were sentenced to death between 1990 and early 1995, no one was executed during that time. Parliament abolished the death penalty in early 1995.

Whipping is frequently used to punish juveniles for public misbehavior, but may only be imposed on male offenders under the age of thirty. The punishment may not exceed seven strokes of a cane. Whipping is done in private, although the parents of a juvenile can be present. This punishment was imposed on more than 30,000 juveniles and young men each year in the early 1990s.

In South Africa, criminally punishable conduct is sometimes referred to as a "crime" and sometimes as an "offense". Crimes are not divided into treason, felonies and misdemeanors. The layperson may use the term "crime" to refer to the more serious forms of criminal conduct such as murder, theft and rape, and the term "offense" to refer to less serious forms of criminal conduct such as contraventions of municipal by-laws. However, there is no technical difference between a "crime" and "offense".

A child below the age of 7 years is presumed to lack criminal responsibility. A child between the ages of 7 and 14 is also presumed to lack criminal responsibility; the onus is on the state to rebut this presumption beyond reasonable doubt.

The Drugs and Drug Trafficking Act (No. 140 of 1992) provides for the prohibition of the use or possession of or the dealing in drugs, and of certain acts relating to the manufacture or supply of certain substances. A drug is defined as any dependence-producing substance: any dangerous dependence-producing substance, for example, coca leaf, opium, or any undesirable dependence-producing substance, for example, dagga, heroin, LSD, etc.

INCIDENCE OF CRIME

The following data on the number of crimes reported are taken from the the 1992 Annual Report of the Commissioner of Police (hereinafter 1992 Annual Report) which covers the period between January 1 to 31 December 1992.

In 1992, there were 16,067 murders reported to the police. The rate of reported murders per 100,000 population was 176 in Natal, 110 on the Witwatersrand and in Soweto, and 61 in the Western Cape..

In 1992, there were 78,677 cases of reported robbery. The rate per 100,000 population, was 7 on the Witwatersrand and Soweto, 5 in Natal, and 2 in the Western Cape.

In 1992, there were 24,360 cases of rape reported to the Police. According to specialists, a large percentage of rapes are never reported to the Police. Estimates of the proportion of rapes that are reported to the police in this country range from one in every two cases, to one in every twenty cases. This suggests that between 24,360 and 462, 840 rapes were not reported in 1992. Of all rapes reported, 18.90% took place on the Witwatersrand, 17.48% in the Western Cape, 14.54% in Natal, 10.72% in the Eastern Cape, and 8.30% in Soweto. The rate per 100,000 population was 146 cases in Natal, 139 in the Eastern Cape, 120 in the Western Cape, and 90 on the Witwatersrand..

A total of 20,071 persons were arrested in 1992 in connection with the drug trade.

Of the serious crimes committed in 1992, 24.12% were on the Witwatersrand and in Soweto (61 serious crimes per 1,000 population), 17.75% in the Western Cape (66 per 1,000 population) and 16.83% in Natal (91 per 1,000 population).

Today, the crime rate in South Africa is high, even when compared to more industrialized countries. For purpose of comparison, data were drawn for the seven offenses used to compute the United States FBI's index of crime. Index offenses include murder, forcible rape, robbery, aggravated assault, burglary, larceny, and motor vehicle theft. According to the United Nations Seventh Annual Survey on Crime, crime recorded in police statistics shows the crime rate for the combined total of all Index crimes in South Africa to be 3742.92, per 100,000 inhabitants in 2000. This compares with 1951.92 for Japan (country with a low crime rate) and 4123.97 for USA (country with high crime rate). For intentional homicides ("murder" in UCR), the rate in 2000 was 51.39 for South Africa, 0.50 for Japan, and 5.51 for USA. For major assaults ("aggravated assaults" in UCR), the rate in 2000 was 664.68 for South Africa, compared with 34.04 for Japan, and 323.62 for USA. (Note these data for Japan are for total recorded assaults, since Japan did not report a figure for major assaults.) For rapes ("forcible rape" in UCR), the rate in 2000 was 123.85 for South Africa, 1.78 for Japan, and 32.05 for USA. For robberies, the rate in 2000 was 460.37 for South Africa, 4.07 for Japan, and 144.92 for USA. For automobile theft, the rate in 2000 was 233.56 for South Africa, 243.81 for Japan, and 414.17 for USA. The rate of burglaries for 2000 was 921.86 for South Africa, 233.45 for Japan, and 414.17 for USA. The rate for thefts ("larceny" in UCR) in 2000 was 1287.21 for South Africa, compared with 1434.27 for Japan and 2475.27 for USA. (Note that USA data were those reported to INTERPOL for year 2000, since USA has not yet reported this data to UN.)

TRENDS IN CRIME

Between 1995 (Sixth Annual Survey) and 2000 (Seventh Annual Survey) the rate for all recorded Index offenses decreased from 4424.37 to 3742.92 per 100,000 in South Africa, a decrease of 15.4%. The rate of intentional homicide decreased from 68.09 to 51.39, a decrease of 24.5%. However, the rate for major assaults increased from 594.9 to 664.68, an increase of 11.7%. The rate of rapes increased from 121.44 to 123.85, an increase of 2%. The rate for robberies increased from 309.18 to 460.37, an increase of 48.9%. The rate for automobile theft decreased from 258.32 to 233.56, a decrease of 9.6%. The rate of burglaries decreased from 1319.55 to 921.86, a decrease of 30.1%. Thefts decreased from 1752.89 to 1287.21, a decrease of 26.6%. A decline in property crimes accounted for most of the drop in the Index offenses between 1995 and 2000.

ANALYSIS

Patterns of crime and violence in South Africa have often reflected political developments, especially since the 1950s. Crime surged to alarming proportions after a new constitution was implemented in 1984, granting limited parliamentary representation to coloureds and to Asians, but not to blacks. The number of reported murders in South Africa rose to 10,000 in 1989 and to 11,000 in 1990. The incidence of assault, rape, and armed robbery showed similar increases. Police estimated that 22,000 people died in crime-related violence in the fifteen months ending in February 1991. By 1992 South Africa had one of the world's highest crime rates, on a per capita basis.

Waves of serious violence swept through many townships around Johannesburg and in Natal Province, where the rivalry between the Inkatha Freedom Party (IFP) and the African National Congress (ANC) resulted in several hundred--some estimated more than 1,000--deaths each year in the late 1980s and the early 1990s. Officials estimated that 12,000 citizens (and 2,000 SADF troops) were involved in ANC-IFP clashes in the early 1990s.

White right-wing terrorists added to the crime rate as they were increasingly marginalized from the political process. Groups such as the White Liberation Army, the White Republican Army, the Boer Republican Army, the White Wolves, and the Order of the Boer Nation claimed responsibility for more than thirty-five bombings. Some of these groups formed an alliance known as the White People's Front in 1992 and threatened further violence as the political transition continued.

Dealing with rising levels of crime and violence became a major public preoccupation in the 1990s and resulted in a variety of ad hoc security arrangements and alliances. For example, many organizations and a few individuals hired private security guards for protection. Civilians volunteered to monitor street crime in several turbulent townships. The ANC, after initially opposing these groups as "vigilantes," formed its own Self-Defense Units to help protect ANC supporters in the townships. Their political rivals in IFP strongholds responded by forming Zulu Self-Protection Units, especially in and around workers' hostels.

During the apartheid era, black South Africans had been legally barred from owning guns, but many whites considered gun ownership a normal defensive measure and a cherished right. Gun owners were legally required to register their weapons with the police, and a record 123,000 firearms were registered in 1990. By 1992 more than 2.5 million firearms had been registered nationwide. Police officials estimated that one-half of all white families owned at least one firearm, and at least 100,000 white households owned more than five registered weapons. Many more people were arming themselves illegally, according to police estimates.

Weapons thefts were extremely common. More than 7,700 firearms were reported stolen during 1990 alone. More than 5,000 guns were turned in to the police during a six-week amnesty in late 1990, and another 1,900, during a second amnesty in 1992. Although firearms and explosives were the cause of more than one-half of the deaths in the early 1990s, spears, knives, and axes--so-called Zulu traditional weapons, which were legal--were responsible for about 20 percent of violent deaths.

Currently, the high rate of violence in South Africa is related to taxi drivers street rivalries, vigilante action and mob justice, murders of farm families and of black farm laborers, and witchcraft related incidents.

Taxi drivers in crime-ridden neighborhoods were responsible for a continuing series of attacks on rivals. Conflict between drivers representing taxi companies led to gun battles and other street violence and resulted in the deaths and injuries of bystanders. Taxi violence continued to be prevalent in KwaZulu-Natal. For example, on March 30, a prominent taxi boss, Thula Maxwell Sithole, and his wife were killed in a drive-by shooting by gunmen in KwaZulu-Natal.

Unlike in the previous year, there was no new violence between taxi owners and Golden Arrow bus drivers in Western Cape. In early October, charges of murder were dropped against seven persons in connection with taxi violence against Golden Arrow in 2000 because the charge sheets were incomplete. In December 2000, Bandile Immanuel Botya was sentenced to three life sentences and 75 years in prison after he admitted to being paid to carry out the attacks on Golden Arrow buses in 2000.

Vigilante action and mob justice increased throughout the country during the year 2001. The Institute for Security Studies (ISS) reported an increase in vigilante action since 1996 as a result of police inefficiency and the perception that the courts fail to deliver justice. The ISS also reported an increase in mob justice, although no figures were available by year's end. The SAIRR reported that gang violence was worsening in the Cape Flats areas around Cape Town and elsewhere in the Western Cape; however, there were fewer incidents in the province than in the period prior to late 2000.

Murders of farm families in rural parts of the country continued to receive considerable media attention, but data on numbers of attacks have not been available since the SAPS declared an embargo on crime statistics in July 2000. There was widespread concern among white farmers that they were targeted for racial and political reasons; however, according to police and academic studies of farm attacks, the perpetrators reportedly were common criminals motivated by financial gain. It also was reported that in the majority of cases, the perpetrators were not farmworkers. The number of farm attacks and murders doubled over the past 3 years; however, there was a reported decrease during the year 2001. There were 813 farm attacks in 1999 and 905 in 2000. AgriSA reported 639 attacks and 91 killings during the year 2001. There were 144 killings in 1999 and again in 2000. In August Human Rights Watch released a report titled, "Unequal Protection: The State Response to Violent Crime in South African Farms." The report concluded that the Government failed to protect adequately residents of commercial farms from attacks and that black farm residents, especially black women, were most vulnerable to abuse. The Government reportedly established a rural protection plan to coordinate the activities of law enforcement and other relevant actors to address violent crime on farms; however, no further information was available at year's end.

There were incidents of abuse and killings of black farm laborers by their white employers. NGO's claim that rural police and courts refuse to arrest or prosecute whites in many cases. On June 11, the South African Human Rights Commission (SAHRC) launched an inquiry into the human rights situation in farming communities. The purpose of the inquiry was to examine civil and political rights, economic and social rights, and land rights and the issue of tenancy. Research for the inquiry was ongoing at year's end. In 2000 the SAHRC launched an investigation into allegations of abuse of black farmworkers, local justice system prejudice against farmworkers, and violence against white farm owners. The SAHRC report was not released by year's end.

Occasional witchcraft-related incidents occurred during the year 2001. On September 18, four women and one man were sentenced to life imprisonment for killing a 74-year-old man whom they accused of witchcraft. The court sentenced the five defendants to an additional 5 years in prison on witchcraft-related charges. In November and December, the Commission on Gender Equality and the Department of Justice conducted a successful program to address witchcraft in the Northern Province.

 

LEGAL SYSTEM

The criminal justice system is administered nationally. It is an adversarial system in which state prosecutors present cases against the accused, who has a right to be represented by a lawyer.

One of the vestiges of the process of indirect rule during colonial times is the urban equivalent of the chief's courts in the African townships. Under the Black Administration Act no. 38 of 1927 (as amended ) certain Africans can acquire the right to convene courts and hear matters in which customary law features. Since customary law does not distinguish between criminal and civil law, they may hear certain criminal matters. The system has, however, been so discredited through its close association with the apartheid administration that hundreds of competing non-state courts have been set up and operate in the townships. During the emergency years these competing courts were an oppositional system of justice, but now are gradually profiling themselves for inclusion into the adjudicative hierarchy in the post-apartheid era.

South Africa's legal system, like the rest of the political system, was radically transformed as the apartheid-based constitutional system was restructured during the early 1990s. Nevertheless, many laws unrelated to apartheid continued to be rooted in the old legal system. Thus, the justice system after 1994 reflected elements of both the apartheid-era system and nondiscriminatory reforms.

The principles embodied in the legal system were adapted from Roman-Dutch law with an admixture of English law introduced after 1806. The influence of English law is most pronounced in criminal legal procedures, in constitutional or statutory law, and in corporate and mercantile law. Roman-Dutch law predominates in private law--for example, the law of persons, of property, of succession, and the law of sale and lease. Despite the influence of these universally accepted laws, however, a prominent feature of the former legal system was the pervasive role of discriminatory apartheid-based laws, regulations, and codes, and the extensive judicial apparatus required to enforce them.

The postapartheid legal system introduced by the interim constitution of 1993 embodies the supreme law of the land and is binding on all judicial organs of the state. It establishes an independent judiciary, including a Constitutional Court with the power to review and to abolish legislation inconsistent with the constitution. It includes provisions not found in apartheid-era laws, such as a prohibition on all forms of discrimination and an emphasis on individual rights. These rights include "equality before the law and equal protection of the law"; freedom of expression, assembly, demonstration, petition, and association; the right to "choose a place of residence anywhere in the national territory"; the right not to be deprived of citizenship without justification; full political rights; full access to the courts; and fair and lawful administrative justice mechanisms, including rights concerning detention, arrest, and accusation. Other provisions provide for specific rights in areas such as economic activity, labor relations, property, environment, children, language and culture, education, and conditions under which a state of emergency can be declared.

In 1994 the government established the new Constitutional Court, a Human Rights Commission, and a Judicial Services Commission that forwarded to the president its ten nominees to the Constitutional Court. Legislation in 1994 also set forth operating procedures for these bodies and established the Office of the Public Protector (public defender).

The new legal system also deals with the consequences of apartheid-related abuses and crimes, although it aims primarily to promote a spirit of national reconciliation and a new "culture of human rights," rather than to resolve long-standing grievances. In June 1994, the government announced that a Truth and Reconciliation Commission would investigate accusations of human rights abuses and political crimes by both supporters and opponents of apartheid, and that it would consider related issues such as amnesty and reparation to survivors and their dependents. The government established guidelines for the commission's operations in 1994 and 1995, and the Truth and Reconciliation Commission began hearing testimony by both victims and perpetrators of apartheid-era violence in early 1996.

 

POLICE

The South African Police Service (SAPS) traces its origin to the Dutch Watch, a paramilitary organization formed by settlers in the Cape in 1655, initially to protect (white) civilians against attack and later to maintain law and order. In 1795 British officials assumed control over the Dutch Watch, and in 1825 they organized the Cape Constabulary, which became the Cape Town Police Force in 1840. The Durban Police Force, established in 1846, became the Natal Mounted Police in 1861, and gradually assumed increasing paramilitary functions as South Africa endured the last in a series of frontier wars that had continued for more than a century.

In 1913 a number of police forces consolidated into the Mounted Riflemen's Association, and some members of this association established a separate organization, which they called the South African Police (SAP). Four years later, the Mounted Riflemen's Association relinquished its civilian responsibilities to the SAP as most of the riflemen left to serve in World War I. The SAP and the military maintained their close relationship even after the SAP assumed permanent responsibility for domestic law and order in 1926. Police officials often called on the army for support in emergencies. In World War II, one SAP brigade served with the Second Infantry Division of the South African Army in North Africa.

When the National Party (NP) edged out its more liberal opponents in nationwide elections in 1948, the new government enacted legislation strengthening the relationship between the police and the military. The police were heavily armed after that, especially when facing unruly or hostile crowds. The Police Act (No. 7) of 1958 broadened the mission of the SAP beyond conventional police functions, such as maintaining law and order and investigating and preventing crime, and gave the police extraordinary powers to quell unrest and to conduct counterinsurgency activities. The Police Amendment Act (No. 70) of 1965 empowered the police to search without warrant any person, receptacle, vehicle, aircraft, or premise within two kilometers of any national border, and to seize anything found during such a search. This search-and-seize zone was extended to within ten kilometers of any border in 1979, and to the entire country in 1983.

The Police Reserve, established in 1973, enabled the government to recall former police personnel for active duty for thirty to ninety days each year, and for additional service in times of emergency. Another reserve (volunteer) force was established in 1981, consisting of unpaid civilians willing to perform limited police duties. A youth wing of this reserve force reported that it had inducted almost 3,000 students and young people to assist the police during the late 1980s.

The police increased the use of part-time, specialized personnel, such as the special constables (kitskonstabels ), to help quell the growing violence in the 1980s. In 1987, for example, the police recruited almost 9,000 kitskonstabels and gave them an intensive six-week training course. These "instant" police assistants were then armed and assigned to areas of unrest, which were often the most turbulent townships. Even with training courses extended to three months, the kitskonstabels ' often brutal and inept performance contributed to the growing hostility between the police and the public by the late 1980s.

Although the mission of the SAP grew well beyond conventional policing responsibilities during the 1970s, the size of the police force declined relative to population. In 1981 the police force of roughly 48,991 represented a ratio of less than 1.5 police per 1,000 people, down from 1.67 per 1,000 people in the 1960s. Alarmed by the increased political violence and crime in the mid-1980s and by the lack of adequate police support, officials then increased the size of the police force to 93,600--a ratio of 2.7 per 1,000 people--by 1991.

The police are authorized to act on behalf of other government officials when called upon. For example, in rural areas and small towns, where there may be no public prosecutor available, police personnel can institute criminal proceedings. The police can legally serve as wardens, court clerks, and messengers, as well as immigration, health, and revenue officials. In some circumstances, the police are also authorized to serve as vehicle inspectors, postal agents, and local court personnel.

After President de Klerk lifted the ban on black political organizations and released leading dissidents from prison in 1990, he met with the police and ordered them help end apartheid, to demonstrate greater political tolerance, and to improve their standing in black communities. The police accepted these orders, but did so much more slowly and reluctantly than the military. White police personnel were, in general, ambivalent about the changes taking place and divided over strategies for implementing them. For decades the police force had been organized around the authoritarian ideal of maintaining apartheid. With wide-ranging powers, the police had operated without strong institutional checks and balances and without serious external scrutiny. For many, the government's new policies represented an abrupt reversal in the orientation of the police.

Through the early 1990s, police units were sometimes integrated, but most police recruits had been trained in single-race classes, sometimes in institutions designated for one racial group. For example, most black police personnel had trained at Hammanskraal, near Pretoria; most whites, in Pretoria; most coloureds, at Lavis Bay, near Cape Town; and Asians at Wentworth, near Durban. As the apartheid era ended, these programs were restructured to emphasize racial tolerance and respect for basic human rights. The police also increased recruitment among black youth and hired international police training experts to advise them on ways to improve race relations in the service.

The basic police training regimen includes courses in criminal investigation procedures, self-defense, weapons handling, drills, inspections, public relations, and law. Specialized courses include crowd and riot control, detective skills, horsemanship and veterinary training, and advanced-level management skills. Since 1990, South Africa also has provided training for police from Lesotho, Swaziland, Malawi, and Zaire.

Police officers on duty generally carry a pistol or revolver and a truncheon. To quell disturbances, police use a variety of arms, including 37-millimeter stopper guns, which can shoot tear gas, rubber bullets, or signal colors; twelve-gauge Browning semiautomatic and Beretta pump shotguns; and R-1 semiautomatic rifles. Through the early 1990s, the police were also equipped with smoke and tear-gas dispensing vehicles, tank trucks with water cannons, vehicles that dispensed barbed wire or razor wire to cordon off areas rapidly, and a small number of helicopters capable of dropping "water bombs" on crowds of demonstrators. Riot-control forces deployed in specially designed buses or Casspir armored personal carriers.

The climate of escalating violence in the early 1990s often posed even greater challenges to the police than they had faced in the 1980s, as violence shifted from antigovernment activity to a mosaic of political rivalries and factional clashes. At the same time, many South Africans feared that the police were causing some of the criminal and political violence, and they demanded immediate changes in the police force to mark the end of apartheid-era injustices.

To meet the new challenges, the 91,000 active police personnel in 1991, including administrative and support personnel, were increased to more than 110,000 by 1993 and 140,000 by 1995. Throughout this time, police reserves numbered at least 37,000. In 1996 the combined active and reserve police represented a police-to-population ratio of almost 4.0 per 1,000.

As part of the overall reorganization of the police, the government merged the formerly dreaded Criminal Investigation Department (CID) and the police security branch to form a Crime Combatting and Investigation (CCI) Division. The new CCI, with responsibility for reversing the rising crime rate, combined the intelligence and operational resources of the security police with the anticrime capabilities of the CID.

Minister of Law and Order Hernus Kriel in 1991 also appointed an ombudsman to investigate allegations of police misconduct. He increased the recruitment of black police personnel, formed a civilian riot-control unit that was separate from the SAP but worked with it, developed a code of police conduct agreed upon by a number of political parties and communities, and substantially increased police training facilities. In 1992 Kriel began restructuring the SAP into a three-tiered force consisting of a national police, primarily responsible for internal security and for serious crime; autonomous regional forces, responsible for crime prevention and for matters of general law and order; and municipal police, responsible for local law enforcement and for minor criminal matters. He also established police/community forums in almost every police station.

By the time the April 1994 elections were held, the SAP had undergone a significant transformation, in keeping with the nation's sweeping political reforms. It was a more representative force, with greater dedication to protecting citizens' rights. The SAP was renamed the South African Police Service (SAPS), and the Ministry of Law and Order was renamed the Ministry of Safety and Security, in keeping with these symbolic reforms. The new minister of safety and security, Sydney Mufamadi, obtained police training assistance from Zimbabwe, Britain, and Canada, and proclaimed that racial tolerance and human rights would be central to police training programs in the future. By the end of 1995, the SAPS had incorporated the ten police agencies from the former homelands and had reorganized at both the national level and at the level of South Africa's nine new provinces.

The SAPS headquarters in Pretoria is organized into six divisions. These are the Crime Combatting and Investigation Division, the Visible Policing Division, the Internal Stability Division, the Community Relations Division, the Supporting Services Division, and the Human Resource Management Division.

The Crime Combatting and Investigation Division holds overall responsibility for coordinating information about crime and investigative procedures. It administers the SAPS Criminal Record Center, the SAPS Commercial Crime Unit, the SAPS Diamond and Gold Branch, the South African Narcotics Bureau, the Stock Theft Unit, the Inspectorate for Explosives, murder and robbery units located in each major city, and vehicle theft units throughout the country. In addition, the division manages the National Bureau of Missing Persons, which was established in late 1994.

The Visible Policing Division manages highly public police operations, such as guarding senior government officials and dignitaries. Most government residences are guarded by members of the division's Special Guard Unit. The division's all-volunteer Special Task Force handles hostage situations and other high-risk activities. The Internal Stability Division is responsible for preventing and quelling internal unrest, and for assisting other divisions in combatting crime. The Community Relations Division consults with all police divisions concerning accountability and respect for human rights. The Supporting Services Division manages financial, legal, and administrative aspects of the SAPS. The Human Resource Management Division helps to hire, to train, and to maintain a competent work force for the SAPS.

Three police unions are active in bargaining on behalf of police personnel and in protecting the interests of the work force, as of 1996. These are the Police and Prisons Civil Rights Union (Popcru), which has about 15,000 members; the South African Police Union (SAPU), which has about 35,000 members; and the Public Service Association (PSA), which has about 4,000 members.

Under strong pressure to end the township violence of the early 1990s, the police undertook numerous security sweeps through townships and squatter camps. During one of the largest of these, Operation Iron Fist, in late 1990, some 1,500 SAP and several hundred SADF troops swept through workers' hostels around Johannesburg and recovered several thousand illegal weapons. More than 30,000 SAP and SADF personnel conducted routine crime sweeps after that, and they made 337 arrests in one operation alone in 1991. By 1993 more than 10,000 people had been arrested, and large quantities of illegal drugs and weapons had been confiscated.

President de Klerk's credibility was severely damaged in July 1991, when official documents leaked to the public confirmed long-standing rumors of police support for the Zulu-dominated IFP in its rivalry with the ANC. A burst of publicity, dubbed "Inkathagate" by the press, threatened to derail constitutional negotiations after evidence linked senior government and police officials with funds secretly channeled to the IFP's labor activities and membership drives, which many believed had fueled the violence. Public anger rose, both because of the politicization of the police and because the government then appeared incapable of halting the violence as the scandal intensified.

The September 1991 National Peace Accord marked a desperate effort by both the government and the ANC to end the killing and to ease anxiety about official involvement in it. The accord, signed by more than two dozen leaders of government and political organizations, established committees and channels of communication at national, regional, and community levels to try to avert bloodshed arising out of political disagreements. Under this accord, the government established the Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation, chaired by a respected jurist, Richard Goldstone, to investigate the causes of the violence. The Goldstone Commission's interim report in early 1992 attributed most of the killing to the political battle between supporters of the ANC and the IFP, but it also confirmed suspicions that elements of the security forces, especially the police, had contributed to the unrest.

Then ANC leader Mandela, who was vocal in his criticism of the government for its failure to quell the unrest of the early 1990s, insisted that international attention be given to the issue of state-sponsored violence. In June 1992, Mandela, Foreign Minister Roelof "Pik" Botha, and IFP leader Mangosuthu (Gatsha) Buthelezi addressed the United Nations concerning this issue. After that, other countries increased their involvement in South Africa's political reform. In August of that year, former United States Secretary of State Cyrus Vance went to South Africa as United Nations special envoy. Acting on his suggestion, the United Nations sent political monitors to South Africa to demonstrate international support for the institutions that had arisen out of the National Peace Accord. At the same time, South Africa's political leaders implemented another of Vance's recommendations--to speed up the pace of progress toward nationwide elections.

Then, in late 1992, the Goldstone Commission concluded that secret cells within the police force had, with the cooperation of military intelligence officials, "waged a war" on the ANC, primarily because of its commitment to armed struggle to end apartheid and its association with the South African Communist Party (SACP). The commission's report also implied that elements in the security forces were continuing to provoke or commit violent acts. In response to rising pressures, President de Klerk persuaded twenty-three senior military officers to retire, including the heads of the SADF and military intelligence.

Despite significant progress, there were at least 4,300 politically motivated deaths in 1993, according to the South African Institute of Race Relations, and each new round of violence brought a new sense of urgency to the task of preparing for elections. More than 2,000 murders were in Zulu-inhabited areas of KwaZulu and Natal Province. The Goldstone Commission later concluded that some of the weapons used in the violence against ANC supporters had been supplied by the police.

The police arrested a few whites who advocated violence to block the elections, including Afrikaner Resistance Movement (Afrikaner Weerstandsbeweging--AWB) leader Eugene Terreblanche. In most cases, the accused were fined for their activities or were granted immunity in return for information about their organizations and activities. White extremists were arrested for the April 1993 murder of a popular SACP leader, Chris Hani, and two were sentenced to death for that crime. (The death penalty was abolished before their sentences were carried out.)

A national police force has been created through legislation and under the authority of the Ministry for Law and Order, the most important statute being the Police Act (No. 7) of 1958. In addition to the national police force, the city of Durban has a municipal police force of its own, comprising 750 staff members.

The South African Police (SAP) is a paramilitary force in which most of the white personnel have served as military fighters in counter-insurgency wars in the former Rhodesia, and more recently (until 1990) in Namibia and Angola. The SAP is considered to be part of the Law and Order Community and currently works in conjunction with the military. The SAP has command over the South African Defense Force, thus both SAP and the military help to patrol some of the more violent African townships.

Provinces have their own traffic police, as do the towns and cities. For example, the Cape Province has 8,000 traffic officers.

The Annual Expenditure on the SAP for the year 1992-1993 was 5,645,143,000 Rand, an increase of 21.9% over the previous year.

According to the 1992 Annual Report, as of December 31, 1992, there were 83,764 permanent SAP members. In addition, there were also 30,038 civilian employees, temporary members, police assistants and national servicemen, rendering a total of 113,802.

Other sources compute the figures in a different manner by including the "self-governing" states up until June 1992. This would increase the total number of police personnel to 119,624, including the civilian staff. One could add to these figures even more by including the independent states which have 12,200 members with 60 additional personnel from the SAP.

Racial breakdowns only include SAP statistics. Self-governing states' members are excluded from this figure. With the exception of the 60 additional members of the SAP assgned to these self-governing states, all of the 8,198 staff members are non-white.

Of the 4,946 SAP officers, 4601 (93%) were white, 157 (3.2%) were Asian, 90 (1.8%) were coloured, and 98 (2%) were African. Of the 69, 806 SAP NCO's, 35,530 (51%) were white, 3,274 (4.7%) were Asian, 6,712 (9.6%) were coloured, and 24,290 (35%) were African.

As of May 31, 1990, the Minister of Law and Order reported that the black population (in the broad sense) comprised 56% (45,845) of the police force. There were a total of 2,818 Indian police officers, of which 2,581 were men and 237 were women; a total of 5,819 coloured police officers, of which 5,415 were men and 404 were women; and a total of 37,208 black police officers, of which 35,736 were men and 1,472 were women.

Women comprised 7% (5,666) of all police. In addition to the data above, a total of 3,553 policewomen were White.

In 1992, 224 members of the police were killed in the line of duty and 94 committed suicide.

There are 1,330 motorcycles, 9,377 patrol vehicles, 12,734 motor vehicles, 446 riot vehicles and 493 "sophisticated/effective urban riot vehicles." There is an unequal ratio of police to vehicles; however there are no published detailed statistics on this.

Black police personnel and the stations serving black townships tend to have fewer vehicles than stations and personnel serving other race groups. For example, "One police van for the township is simply not adequate to police 80,000 to 120,000 people. The new Rini [African township] satellite police station had no telephone when we visited. Police radios are reportedly often out of order."

Every policeman and woman, black and white, is issued a side-arm and an R-1 rifle. In 1992, 12,450 R-5 rifles and 9,218 Musler shotguns were purchased;

13,755 complete sets of body-armour and 36,900 additional outer garments were made available to members of the SAP.

Basic training is 6 months. Most of the training takes place within the six training colleges and the police academy. The academy is linked to the University of South Africa, which in turn accredits the academy's degrees and offers correspondence degrees of its own. Technicon RSA offers correspondence courses which are obligatory for the promotion of lower ranking officers. The minimum entrance requirement for new recruits is a matriculation certificate.

If the person being arrested resists or attempts to escape arrest, the police may use such force as is "reasonably necessary" to prevent such actions, regardless of whether a warrant is present. If the person resisting or escaping arrest has been arrested for a Schedule One offense, the police may shoot the person if this is the only means to prevent his/her escape. The principle of minimum and incremental force is prescribed for the break up of unlawful protest marches and demonstrations (Internal Security Act, No. 74 of 1982 sec 48,49 [hereafter ISA]). Deadly force may be used by policemen under three circumstances: 1) to protect the person or property of another, or onseself; 2) to secure the arrest of a fleeing or resisting suspect; 3) to disperse illegal gatherings. However, in the past, there were continuing, seemingly systematic, abuse of the legal limitations on the use of force through the torture of political detainees and nonpolitical suspects, the existence of police death squads, the abuse of the rules restraining fatal shootings and the abuse of minimum force rules at protest demonstrations and marches.

The police require a warrant issued by the Attorney-General in order to detain a person as a state witness in a trial relating to a serious offense such as arson, murder and kidnapping and to detain a person as a state witness in a political trial. The police do not require a warrant to arrest and detain a person for interrogation as a suspect in terrorist or subversive activities. Where the police believe that a person is active in public disturbance, disorder, riot or public violence and his/her detention is necessary to stop such activities, a warrant is not required for an arrest, provided the arrested person is not held for longer than 48 hours. When an area has been declared an "Unrest Area" a person can be arrested and detained without a warrant if the arresting officer believes the person's detention is necessary to prevent public disorder or public violence.

The police can arrest a suspect with a warrant issued by a magistrate in order to take the suspect to court on a criminal charge or as a suspect in a criminal investigation. The police can arrest a person without a warrant if the police witness a crime or are acting upon a "reasonable suspicion" that the person has committed an offense referred to in Schedule I, which includes generally traditional crimes ranging from murder to breaking and entering.

The police derive their general powers to enter, search and seize from the CPA as well as numerous other statutes. The CPA makes it possible to enter any premises for the search and seizure of persons and objects. Articles may be seized under the following conditions: 1) there are reasonable grounds to believe the article was involved in the commission or suspected commission of an offense; 2) the article may afford evidence of the commission or suspected commission of an offense; 3) the article is intended to be used or, by reasonable grounds, is believed to be intended to be used in the commission of an offense. Goods which may be seized are articles, documents or substances. Money in the form of coins, notes or negotiable instruments in an article or document may be seized. Privileged documents which are not admissible as evidence may be seized and used to trace an offender. A warrant is required for a seizure to take place, although there are certain exceptions. The warrant may be issued by a Magistrate or Justice of the Peace before the commencement of a trial. The police requesting the warrant must provide information which creates a reasonable basis for the belief that the article is under the control of a person within the jurisdiction of the court. The warrant describes the person and place to be searched and the particular article to be seized. During a trial, a seizure may be ordered by the presiding judicial officer. The police may search and seize without a warrant where a) the person gives the police consent to search and seize; b) the officer believes on reasonable grounds that a warrant would be issued if it were applied for and that the delay in obtaining a warrant would defeat the object of the search; c) the police are acting under the Unrest Areas Regulations and believe a search and seizure is necessary to maintain public order or safety of the public or to stop public disturbances or public violence. In this latter case, they may without a warramt enter any building or premises; search any person, premises, vehicle or object; and seize any object which could be used in a crime or could be evidence of a crime.

A confession is a statement made outside of court in which the suspect concedes that he/she has committed the offense. In order for a confession to be admissible as evidence the confession must be made without compulsion.

Complaints against the police can be processed through a number of channels. The most long-standing method is laying a charge at a police station, which results in an investigation by the police at that station. In principle, once the investigation has been completed by the police, the docket is forwarded to the Attorney-General, who decides whether or not to prosecute. There are also internal disciplinary hearings which can take place within the police force in which a senior officer acts as judge. The general public has viewed this to be a highly unsatisfactory process, particularly if the complainants have been black, illiterate and ignorant of their rights. Typically the vast majority of complaints under these circumstances have not resulted in suspensions, prosecutions, or convictions. For instance, if the complainant is a political detainee or suspect, the trend has been for policemen to be promoted shortly after receiving reprimands and criticism from judges during "trials within trials" to establish the admissibility of confessions extracted under conditions of solitary confinement. In response to the shortcomings of this system, the National Peace Accord set up a range of complaint mechanisms which began operation in September 1991. A complaint could now be lodged with the Goldstone Commissioner or his regional representatives, the Police Reporting Officer (a lawyer nominated by the legal profession rather than the police), a Justice of the Peace, or the Commissioner of Police. Special investigations units of the police have been set up to investigate these complaints. They are accountable primarily to the police hierarchy but also report to the Police Reporting Officer who reports to the Regional Peace Committee.

Today, the South African Police Service (SAPS) still has primary responsibility for internal security, although the Government continues to call on the South African National Defense Force (SANDF) to provide support for the SAPS in internal security situations. The SAPS continued its major restructuring and transformation from a primarily public order security force to a more accountable, community service-oriented police force; however, it remained ill-equipped, overworked, and undertrained. The SANDF and the SAPS border control and policing unit share responsibility for external security. The Government continued to train and deploy the new Directorate of Special Operations (DSO), dubbed the Scorpions, to coordinate efforts against organized crime and corruption. The civilian authorities maintain effective control of the security forces. Some members of the security forces committed human rights abuses.

In the year 2001, the Government generally respected the human rights of its citizens; however, although there were improvements in a few areas, numerous problems remained in several areas. Some members of the security forces committed killings due to use of excessive force, and there also were deaths in police custody. In addition to killings by security forces, there were an estimated 44 politically motivated or extrajudicial killings during the first 6 months of the year. The Government took action to investigate and punish some of those involved and to prevent future abuses. Political violence remained a problem; however, it was reduced from 2000 levels, especially in KwaZulu-Natal. Some members of the security forces were responsible for torture, excessive use of force during arrest, and other physical abuse. Some members of the police beat, raped, tortured, and otherwise abused suspects and detainees. The Government took action to investigate and punish some of those involved and committed itself to curbing future abuses.

The Truth and Reconciliation Commission (TRC), created to investigate apartheid-era human rights abuses, makes recommendations for reparations for victims, and grants amnesty for full disclosure of politically motivated crimes, continued its work on a large backlog of amnesty and restitution applications. The activities of the amnesty committee of the TRC concluded at the end of June.

In 2001, police use of lethal force during apprehensions resulted in numerous deaths, and deaths in police custody also remained a problem. The Government took action to investigate and punish some of those involved and to prevent future abuses. The Government's Independent Complaints Directorate (ICD) investigates deaths in police custody and deaths as a result of police action. The ICD reported 387 deaths as a result of police action in the first 8 months of the year, including 137 that occurred while in police custody. These figures represent a decrease in the monthly rate of deaths as a result of police action, compared with the 511 deaths as a result of police action that occurred in the last 8 months of 2000. The ICD's report lists subcategories under deaths in police custody, which include natural causes, suicide, injuries in custody, injuries prior to custody, and possible negligence. The Government's cooperation with the ICD was poor. Unlike in the previous year, racial tensions in the military did not result in any killings.

The Constitution's Bill of Rights prohibits such practices and provides for the right to be free from all forms of violence from either public or private sources; however, some members of the police beat, raped, tortured, and otherwise abused suspects and detainees. Some incidents of torture and ill-treatment by the police and SANDF occurred during interrogation, arrest, detention, and searches of persons' homes. The ICD reported 27 cases of torture and 18 cases of rape perpetrated by security forces between April 2000 and March; the Government investigated these allegations and prosecuted some offenders.

Incidents of police harassment and attacks against foreigners continued at the same level as in 2000, particularly during coordinated police raids of areas where foreign nationals resided. Some state hospitals reportedly routinely refused treatment to indigent foreigners, despite regulations that required such treatment.

There were reports of police abuse of detainees awaiting deportation. In 2000 after a 2-year investigation, the SAHRC released a report assessing conditions at the Lindela Repatriation Center, the largest detention facility for undocumented immigrants in the country. The report described abuses against detainees, which included long detentions, poor living conditions, xenophobia, abuse, corruption by officials, and sexual abuse of women. The SAHRC reported that the Department of Home Affairs failed to respond to the Commission's recommendations. However, the Department of Home Affairs implemented some changes, and there was some improvement in the conditions during the year 2001. The contractor operating the facility responded positively to most of the SAHRC's recommendations and improved conditions; however, problems remained, particularly as a result of occasional overcrowding after Home Affairs conducted sweeps of squatter camps and sent illegal immigrants to Lindela to await repatriation. It was unknown whether Home Affairs officials continued to assault detainees and subject them to degrading treatment during the year 2001. In 2000 approximately 300 refugees demonstrated in front of the Department of Home Affairs to protest the Government's refusal to process asylum applications for those applicants without certain documents. Some of the refugees alleged that Home Affairs employees assaulted them and requested bribes. The SAHRC sued the Department of Home Affairs to compel the processing of all applications by asylum seekers as required by the Refugees Act; the case was pending at year's end.

On two occasions during the year 2001, police used excessive force to disperse demonstrations and strikers.

In 2000 a video filmed in 1998 was broadcast on national television showing six white police officers beating and torturing three black illegal immigrants with vicious dogs while they yelled racial insults. In January 2000 the officers were arrested and charged with assault and attempted murder and suspended from duty. Three of the six accused officers resigned from the police force after the report was televised. On November 11, the Pretoria High Court convicted four of the officers of several charges, including assault with intent to do grievous bodily harm. Several similar cases were reported to the ICD after the broadcast of the video. For example, in 2000 police from the North Rand Dog Unit reportedly took seven Mozambican immigrants to a deserted field near Springs, ordered them out of the police vehicle, and attacked them with police dogs. After they received medical treatment and were detained for several days in a police jail, the victims were taken to the Lindela Repatriation Center and returned to Mozambique. Another Mozambican immigrant reported that a similar incident took place in 2000 in the West Rand area. The Government still was investigating the cases at year's end.

The SAPS continued to undergo sweeping, mostly positive changes, including the institution of reforms designed to create partnerships between local police forces and the communities that they serve, and the establishment of metropolitan police forces in major cities with local control. Resignations and retirements of senior police officials have permitted the infusion of new personnel at senior levels from both inside and outside the SAPS; these appointments also have promoted affirmative action within the SAPS. However, the SAPS continued to have deficiencies in midlevel leadership and institutional memory that were harmful to its overall performance. The SAPS continued to be ill-equipped, overworked, and undertrained.

DETENTION

The Bill of Rights prohibits detention without trial, and the Government generally respects this right in practice. It also provides that every detained person has the right to be informed promptly of the reasons for the detention; to be advised promptly of the right to remain silent and the consequences of waiving that right; to be charged within 48 hours of arrest; to be detained in conditions of human dignity; to consult with legal counsel at every stage of the legal process; to communicate with relatives, medical practitioners, and religious counselors; and to be released (with or without bail) unless the interests of justice require otherwise. Courts and police generally respected these rights; however, there was a continuing problem with bringing detainees to trial expeditiously.

According to the SAHRC, prisoners wait an average of 6 months to be tried in the regional courts and 6 months to 1 year in the high courts; however, in extreme cases detention may extend up to 2 years. This problem primarily is the result of an understaffed, underfunded, and overburdened judiciary (both magistrates and prosecutors), with more cases than can be handled efficiently. On June 5, the Government initiated an electronic system pilot project called the Court Process Project, which is designed to control criminal cases in a more structured way, from the police stations where they originate through the adjudication process until the convicted person is handed over to the relevant prison or welfare/health authorities. This process includes electronically storing the fingerprints and picture of the accused, which assists authorities in minimizing the incidence of mistaken identity or deliberate identity switching by detainees, thereby limiting the chances of escape. The system also was designed to prevent docket thefts and to curtail the activities of corrupt police and court officials.

Human rights groups, judges, and judicial scholars have expressed concern about the Criminal Procedure Second Amendment Act, which mandates minimum jail sentences and prohibits bail in certain cases, thus raising concerns about judicial independence and civil liberties.

During the year 2001, there were reports that authorities abused detainees awaiting deportation. Under the provisions of the law, an illegal immigrant may be detained for 48 hours pending the determination of his or her status. A person declared illegally in the country may be detained for an additional 30 days pending his or her removal from the country. In practice persons may be held in detention for several days before being declared as an illegal immigrant or released, and those declared as illegal regularly are held for more than 30 days. In 2000 the SAHRC reported that immigrants in Lindela Repatriation Center experienced long detentions and abuse. In 1999 the SAHRC sued the Department of Home Affairs for the release of 40 individuals challenging the lawfulness of their lengthy detentions at Lindela. Despite the court ruling in favor of the SAHRC, continued detention in excess of 30 days remains widespread at Lindela.

COURTS

The accused has the right to be brought before a court 48 hours after his/her arrest. The accused also has the right to be informed of the charges being brought against him/her, the right to ask for bail, the right to question any witnesses, the right to subpoena witnesses for the defense and the right to legal representation from the moment of arrest. However, there is no provision to prevent the suspect from being questioned without a legal representative present. Rather, only in rare cases does a suspect have legal representation at the questioning stage. If the accused alleges that an admission or confession was made under conditions of duress or torture, a trial is held within a trial to ascertain the admissibility of the evidence. The right to legal representation has been severely curtailed by legislation, dealing with state security, which denies arrested and detained people access to counsel until they are charged or brought to court as witnesses. An accused charged with a capital crime is entitled to legal representation free of charge, called "pro Deo" legal representation, provided by the state..

The accused has a right to a speedy and public trial and the right to a trial by an unbiased court. All accused have the right against self incrimination and the right not to be tried twice for the same crime. The above rights may be severely curtailed by security legislation which creates a series of political crimes and gives the authorities sweeping powers to ban, arrest and detain political opponents. Most of these powers are contained in the ISA and the

If an accused cannot afford the representation of counsel he/she may apply for legal aid to the Legal Aid Board.. A financial means test is used to determine whether an accused qualifies for legal aid. A single person whose "disposable" income is less than R500 per month (plus R150 per child) and a married person where the joint monthly income is less than R1OOO per month (plus R150 per child) can receive legal aid. If the accused qualifies for an attorney, the Legal Aid Board pays an attorney to represent the accused in court. The Legal Aid Board will pay for an attorney or advocate to defend an accused in the Regional Court on a charge of murder, but not in the Supreme Court, where the "pro Deo" system operates. Appointment of pro Deo counsel is made by the bar on the instruction of the State. Pro Deo counsel are paid a fixed tariff. The Legal Aid Board has limited resources. Due to a shortage of funds experienced by the Legal Aid Board, it is impossible for it to provide legal aid for every indigent accused who is in danger of being sentenced to a term of imprisonment. The state is under no obligation to provide legal representation. As a result, probably 85-90% of persons charged with crimes in the magistrates' courts are unrepresented by lawyers and 85% of people in all criminal cases are unrepresented. At present the feasibility of introducing a public defender system is being explored. Public defenders will be jurists supplied by the State to represent an accused who cannot afford a legal representative in criminal matters. A pilot project for public defenders was begun on January 2, 1992 in Johannesburg. The office is staffed by 4 advocates and 6 attorneys. Three of the staff members are black. In the first 10 months, 2,212 cases were handled. There was a 57.25% acquittal rate in cases where the accused pleaded not guilty and a success rate of over 90% in bail applications. While the country needs an expansion of the public defender system, it is currently not possible due to the lack of funds.

Charges are brought up with the police by a person (the complainant) or the police may investigate a matter on their own initiative. The police open a case docket (or file) in which statements of witnesses and other documentary evidence is kept. The police file is then transferred to the Attorney-General, or the public prosecutor authorized by the Attorney-General. The Attorney-General then decides whether there is sufficient evidence to prosecute the accused. Where the State declines to prosecute, the complainant may institute a private prosecution. Where the State decides to prosecute the matter, the suspect may be brought before court by way of summons, warrant or indictment. In cases of serious offenses, the police have the right to detain suspects for 48 hours before bringing them to court in order to investigate the matter further. Except in security law cases, people arrested must be charged before a court within 48 hours. During this stage of the proceedings, the accused may request bail and request a postponement of the proceedings in order to find an attorney, to prepare his/her case, or to contact witnesses. The prosecution may request a postponement to give the state more time to prepare its case. The accused may oppose the prosecutor's request for a postponement and may request that the case be finalized without delay.

Once the prosecutor has put the charges to the accused, the accused is asked to plead. In cases of less serious offenses where the accused pleads guilty and the prosecutor accepts the plea, the accused may be found guilty without any further evidence. Where the offense is of a more serious nature, the court must first ascertain that the accused acknowledges all the material allegations against him/her before the court may find the accused guilty without hearing further evidence. The magistrate will question the accused with reference to the alleged facts of the case to satisfy himself/ herself that the accused is guilty of the offense to which he/she has pleaded guilty. Depending on the accused's reply the magistrate may accept the plea of guilty or he/she may change the accused's plea to not guilty so that the court may hear evidence.

Where the accused is to be tried in the Supreme Court, a preparatory examination may be held in the magistrate court. The purpose of the examination is to place on record certain particulars, in order to enable the Attorney-General to decide whether to proceed with the trial in the Supreme

The State President appoints an Attorney General for each provincial division and for the Witwatersrand Local Division of the Supreme Court of South Africa. The Attorney General makes decisions regarding the institution or criminal proceedings in lower and higher courts, which includes the consideration of evidence, consultation with witnesses, instructions to police and public prosecutors, and advice and guidance to public prosecutors. An Attorney General may delegate his/her powers to public prosecutors in lower courts. Further, in districts where the amount of work does not justify appointing a full-time public prosecutor, the power to prosecute is delegated to the police officers. State Advocates and public prosecutors are employed by the Department of Justice and are under the control of the Attorney General. Prior to January 1993, the Attorneys General were in principle subject to possible interference in their functions on the part of the Executive. However, since January 1993, the Attorney General has been made independent of the Minister of Justice and he/she is now only responsible to Parliament which came into operation in January 1993.

Although it is not officially acknowledged prosecutors and attorneys engage in the process of plea negotiation. The power to prosecute is directly controlled by the prosecutors, and negotiations over charges are allowed to take place prior to the trial without the consent or approval of the judge. The plea negotiations between the prosecutor and defense counsel may concern questions of law but more commonly center around questions of fact. Once there is an agreement that a plea will be offered and accepted, a written statement is drafted by the defense counsel. The facts contained in the statement are an explanation of the accused's plea and the basis on which the court finds the accused guilty. Community service orders and correctional supervision have been established as alternatives to prosecutions. The prosecutor may at any time prior to judgement, after receiving a written admission from the accused for the charge brought against him/her or a lesser charge, arrange for the accused, with his/her consent, to do community work or to be placed under correctional supervision. Before an accused is placed under correctional supervision, the prosecutor has to consider the report of a probation officer. The Commissioner of Correctional Services and the police official investigating the case must be consulted.

If at any stage of the criminal proceedings the court finds that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings, the court shall have the accused detained in a mental hospital or prison pending the signification of the decision of the State President. An accused may be sent for 30-day observation and assessment to ascertain whether he/she is mentally fit to stand trial. A juvenile court (criminal) may convert the trial of an accused under the age of 18 into a children's court enquiry (welfare tribunal) if it appears to the court that the child is in need of care. The children's court then investigates the background and circumstances of the child. The child is removed from the criminal justice system and no criminal conviction is recorded.

The total number of prosecutions in South Africa for 1991/1992 were 485,099. There were 373,590 convictions, 111,119 discharged, 263 of the accused died and 127 were found to be mentally disordered. Figures on the number of cases dealt with by means of plea bargaining are not available.

The security laws give the police wide powers of detention without trial. People can be detained as state witnesses in political trials involving terrorism or subversion. A person can be held for 6 months or longer if the trial is still in process. If the trial does not commence within 6 months, then the detainee must be released. A person can be detained for short-term preventive detention for a total of 14 days. Persons can also be detained for interrogation. A person accused of a serious offense can be held for a maximum period of 48 hours. After 48 hours, the accused must be brought before the court where the magistrate, on application by the public prosecutor, may extend the period of detention, pending further investigation of the case. In addition, pre-trial incarceration may result when the accused is denied bail or is financially unable to post bail. A person may be detained as a state witness in a trial involving a serious offense such as arson, murder or kidnapping. The maximum period for which a person may be detained as a state witness is 6 months.

People arrested and detained in areas which have been declared "Unrest Areas" can be held for as long as the Unrest Regulations are in force. The Minister of Law and Order has to write an order for a person to be detained for longer than 30 days. However, there is no maximum period of detention. Where an offense is one of a serious nature, an accused can be held for a maximum period of 48 hours, after which the accused must be brought before the court where the magistrate, on application by the public prosecutor, may extend the period of detention, pending further investigation of the case.

Where the accused is denied bail or where he/she is financially unable to post bail, this results in pre-trial incarceration.

Bail is granted to ensure that the accused will appear in court. If the accused is in custody for an offense not listed in part II or III of Schedule 2 of CPA, he/she may be released on bail before the first court appearance by a police official with the rank of sergeant or above. Release would be granted providing that the accused pays the sum of money decided by the police official at the police station. If the offense is serious, the accused must wait in custody until his/her first appearance in court. The accused may request bail at any time on or after the first court appearance. There are three general principles according to which the question of bail is decided: a) the risk that the accused will evade trial; b) the possibility that the accused will commit a crime before trial; c) the possibility that the accused will interfere with the course of justice. The court is obligated to refuse the bail application if the Attorney-General informs the court that the accused has information in his/her possession which cannot be revealed without prejudicing the public interest or administration of justice and which indicates the release of the accused would probably frustrate the administration of justice or could jeopardize public safety.

 

The Higher Courts, such as the Supreme Court, have various divisions. For instance, the Supreme Court of South Africa consists of an Appellate Division, provincial divisions, and local divisions. The Chief Justice heads the Appellate Division; Judge Presidents, the various provincial divisions. Each Supreme Court goes on Circuit to hear cases in towns and cities away from the seat of the division.

Magistrates Courts may be divided into two main groups, district courts and regional courts. There are 269 magisterial districts. The criminal jurisdiction of a magistrate's court is limited to all crimes other than murder, rape and high treason. The maximum sentence which a magistrate's court can impose is limited to 2 months imprisonment or a fine of R20 000 per charge. Ninety-nine percent of all the criminal cases in the Republic of South Africa are tried in the lower courts.

Regional courts hear more serious criminal cases in which heavier sentences can be imposed. They can also hear rape cases and murder cases, except where the death penalty is a possible sentence. They can impose a maximum jail sentence of 10 years and a maximum fine of R200,000, per charge.

Under the NPA of 1991, provision is made for the constitution of Special Criminal Courts. These special courts will deal with cases related to "unrest," cases of public violence and cases involving intimidation. In order for these courts to be effective, special procedural and evidentiary rules need to be applied. The idea is to establish mobile courts in certain geographic areas to bring justice closer to the people. At the time of writing no such courts have been established. A Commission of Inquiry regarding the Prevention of Public Violence and Intimidation was appointed on 24 October, 1991, by the State President. Offices were set up in Pretoria and Cape Town. In order to ensure that steps are taken against perpetrators of violence and intimidation, the Commission may refer any evidence constituting an offense to the relevant Attorney-General and to the Special Criminal Courts. The National Peace Secretariat has established 11 regional dispute resolution committees and approximately 85 local dispute resolution committees since 1992.

If an accused is arraigned before a superior court for a charge relating to the security of the State or the maintenance of public order, the State President may constitute a special superior court to conduct the trial upon the recommendation of the Minister.

Juvenile Courts handle cases in which persons under 18 years-old are charged with criminal offenses. In Juvenile Courts the cases are heard in camera.

Non-state Courts. Judicial powers may be conferred upon any African Chief or headman for trying and sentencing any African person who has committed any offense under Common Law or under Black Laws and customs (except for any offense referred to in the third schedule (sec 20) of the Black Administration Act). The same judicial powers may be conferred upon an African in an urban area.

Non-state courts in the Black townships arguably hear more criminal cases than the formal courts, but they tend to turn murder and rape cases over to the police.

There are 146 Judges of the Supreme Court. There is only one woman Judge. There is one Indian Judge. All other judges are white males. Excluding the "Self-Governing" territories, there are 867 white magistrates, 9 black magistrates, 12 coloured magistrates and 16 Indian magistrates, for a total of 904 magistrates. There are 169 white Regional Court magistrates and 2 Indian Regional Court magistrates, for a total of 171 Regional Court magistrates. There are no coloured or black Regional Court magistrates.

Judicial officers in the Supreme Court are called "judges" and in the lower courts, "magistrates". The State President appoints judges on recommendation of the Bar Councils. The only legal requirement for being appointed a judge is that the appointee be a "fit and proper person"; no formal academic or professional qualifications are required. In practice, however, judges are appointed primarily from the ranks of senior advocates in private practice. In some exceptional cases senior civil servants with legal qualifications are also appointed as judges. In practice, thus, all judges have at least the LLB 5 year degree. Magistrates, unlike judges, are civil servants. The Minister of Justice appoints magistrates for specific districts or regions. Magistrates are appointed from within the Department of Justice personnel, usually from amongst the ranks of prosecutors. Magistrates must hold a degree in law or have passed the Civil Service Higher examinations. Seminars are held for criminal court magistrates during which the criminal law, law of evidence, law of criminal procedure and assessment for sentence are discussed. A seminar is also held for prospective regional magistrates. After the seminar, the regional magistrates are evaluated for a period of 5 months during which their suitability for appointment to regional courts is determined.

 

Except where legislation requires a specific penalty, sentencing is made at the discretion of the presiding officer. The CPA prescribes the range of sentences generally available. Statutes creating offenses usually specify the type and maximum sentence for each offense. Occasionally, legislation excludes the court's discretion entirely by setting mandatory sentences for specific offenses.

There is no jury system. Lay participation does happen in a very limited manner through the assessor system. A magistrate may, once a person who has been found guilty, appoint assessors with a view to imposing community-based sentence. The aim is to give magistrates the opportunity of involving the community, particularly one where the accused resides, in the administration of justice.

Before passing sentence, the court may hear evidence that will inform or assist in developing a suitable sentence.

The accused has the opportunity to present evidence towards sentence mitigation. The prosecutor, in turn, may present argument for sentencing increases. Expert evaluations may be used in all Supreme Court criminal cases and are obligatory in Supreme Court cases where the death penalty is a possible sentence. The evaluations mainly aid in factual interpretations, while the judge decides the matters of law. To be considered an expert, one must be familiar with the administration of justice, or be a specialist in a particular field relevant to the case. Social workers, correctional officers, criminologists, and psychologists play an important role in assisting the court in the sentencing process. They can make recommendations for an appropriate sentence by means of a sworn statement or in-court testimony.

The following penalties are presently in use: a jail sentence with the possibility of a fine, periodic imprisonment, being declared a habitual or dangerous criminal, being placed in an institution such as a juvenile reformatory, a fine, corporal punishment, community service, correctional supervision, caution or reprimand, and the death penalty. The death penalty may be imposed by the Supreme Court for the following crimes: murder, treason (committed when the Republic is in a state of war), robbery or attempted robbery with aggravating circumstances, kidnapping, child-stealing and rape. The typical form of execution is by hanging. The death penalty cannot be imposed on persons who were under 18 years old at the time of the crime. Once a guilty verdict has been passed, the death sentence is not mandatory. Since 1991 judges have the discretion to decide on whether the death sentence should be imposed. Further, the Appellate Division can change the sentence, or impose an alternative sentence. Persons sentenced to death have the automatic right to appeal the conviction or sentence. If the person does not make use of the right to appeal, or does not ask for clemency from the State President, lawyers are be appointed to appeal on behalf of the condemned prisoner.

The total number of executions in South Africa for the 10 year period of 1980-1989 (excluding the internal divisions of Transkei, Bophuthatswana, Venda and Ciskei) are as follows: 130 (1980); 95 (1981); 100 (1982); 90 (1983); 115 (1984); 137 (1985); 121 (1986); 164 (1987); 117 (1988); and 53 (1989). On February 2, 1990, the State President announced a moratorium on executions and said that the government was investigating the matter. The number of people sentenced to death in South Africa (excluding the Transkei, Bophuthatswana, Ciskei and Venda) between 1989 and 1992 are as follows: 170 (1989); 89 (1990); 90 (1991); 93 (1992).

 

Presently, the Constitution provides for an independent and impartial judiciary subject only to the Constitution and the law, and the Government respects this provision in practice. Under the Constitution, the Constitutional Court is the highest court for interpreting and deciding constitutional issues, while the Supreme Court of Appeal is the highest court for interpreting and deciding other legal matters. Generally magistrates courts and high courts are the courts of original jurisdiction in criminal cases.

Judges and magistrates hear criminal cases. There is a presumption of innocence for criminal defendants. The presiding judge or magistrate determines guilt or innocence. The law requires that a panel of lay assessors hear cases along with a magistrate in cases involving murder, rape, robbery, indecent assault, and assault leading to serious bodily harm. The two assessors may overrule magistrates on questions of fact. Magistrates also are required to use their discretion in using assessors in an advisory capacity in bail applications and sentencing. The Office of the National Director of Public Prosecutions (the so-called super Attorney General) exercises national control over prosecution policy and applies a consistent national policy for the prosecution of offenses. There are nine provincial directors and offices to coordinate and streamline prosecutions.

The Bill of Rights provides for due process, including the right to a fair, public trial within a reasonable time after being charged, and the right to appeal to a higher court. It also gives detainees the right to state-funded legal counsel when "substantial injustice would otherwise result." In practice the law functions as intended; however, a general lack of information on the part of accused persons regarding their rights to legal representation and the Government's inability to pay the cost of those services are continuing problems. The Government plans to open 60 legal assistance centers in the country, comprised of the Departments of Justice, Correctional Services, Welfare and Health, along with the SAPS, to speed up the administration of justice, free up the court rolls, and alleviate overcrowding in prisons; 26 centers were established during the year 2001. There were serious backlogs in the numbers of cases that have gone to trial. On February 17, justice officials began a program called Saturday Courts to address the huge backlog of cases in the courts. It was estimated that it would take 2 years for this program to clear the backlog completely. Officials also instituted privately contracted Additional Courts, which operate in specific districts where there are significant backlogs and where space is available in existing courtroom buildings. The Additional Courts use private sector employees or retirees with judicial experience. In November the National Director of Public Prosecutions reported that the Saturday and additional courts had reduced the backlog of cases by 12,000. A total of 13,705 completed cases was reported at year's end.

In March, 2001, the Minister of Justice and Constitutional Development, Penuell Maduna, announced the appointment of business managers to oversee the overall effective functioning of the courts. This is part of a process of reforming the system of justice delivery.

There was public concern about the capacity of the criminal justice system to deal with the high level of crime. The increasing incidence of vigilante justice reflected this concern.

Some human rights groups expressed concern with laws that provided minimum sentencing guidelines and refusal of bail for certain serious offenses, stating that they harm judicial independence and limit civil liberties. The new bail law was upheld by the Constitutional Court in 1999. In 2000 the South African Law Commission submitted a report to the Minister of Justice on the effects of minimum sentencing laws. The report showed that there remained disparities in the application of the sentencing guidelines, mostly at the regional level. Courts have the authority to depart from the guidelines if "substantial and compelling circumstances" justify it. The National Prosecuting Authority has defended successfully the constitutionality of the minimum sentence legislation in two cases before the Constitutional Court. The Supreme Court has ruled that prescribing certain minimum sentences for specific crimes is constitutional and has provided clear guidelines for interpreting the law on minimum sentencing. However, some human rights groups continued to have concerns about the effects of the minimum sentencing laws. The new laws have contributed to prison overcrowding by imposing an increased number of long-term prison sentences.

The Government and legal bodies have acted to redress historic racial and gender imbalances in the judiciary and the bar. The ranks of judges, magistrates, senior counsels, and attorneys are more reflective of society than in the past, although they still fall far short of a representative composition. The majority of judges of the Constitutional and High Courts remain white and male. Magistrate courts continue to face large caseloads and a shortage of resources.

The Promotion of Equality and Prevention of Unfair Discrimination Act, which entered into force in August, provides for the establishment of Equality Courts within magistrates courts and High Courts to adjudicate complaints. The Equality Courts were not established by year's end; one reason for the delay was that the required training for court officials was not completed.

The activities of the TRC were completed by year's end. The amnesty committee concluded its activities at the end of June. The committee was finalizing the last two volumes of the final report at year's end, and it was scheduled for completion in March 2002. At year's end, the National Directorate of Public Prosecutions (NDPP) was reviewing all cases that were considered by the TRC to determine which cases to prosecute. The NDPP considered for prosecution only those cases in which amnesty was not granted or those in which the individual did not apply for amnesty.

VICTIMS

Africans constitute the largest group of violent crime victims (per capita), while whites are the most frequent victims of monetary or property crimes. A 1981 survey revealed that of those persons interviewed, 8% of blacks, 7% of coloured, 5% of Indians and 2% of whites were affected by robbery with violence. In addition, 20% of the black respondents, 10% of coloured, 5% of Indian and 2% of white respondents reported being victims of assault. Finally, 4% of the black and 2% of the coloured respondents reported being rape victims. As South Africa is a highly patriarchal society, African women suffer high levels of domestic violence and sexual assault.

With the exception of a recent victim compensation and victim protection scheme provided for in the 1991 amendment to the Criminal Procedure Act No. 51 of 1977 [hereafter CPA], not much attention has been given to victims of conventional crime. There is hardly any state-initiated victim support infrastructure, although the Goldstone Commission is exploring the creation of a witness protection and victim compensation scheme. There is a vast network (14,000) of foreign-funded private victim support groups for the victims of the apartheid state, for instance, the National Committee Against (forced) Removals, support and counselling groups, human rights organizations, psychological trauma centers, advice offices, pre-school and other educational institutions, skills training groups, etc. For victims of "conventional" crime and neglect, there are Rape Crisis Centers (in six towns and cities), street children's shelters, and welfare agencies for released prisoners.

The victim role in a trial is primarily that of a witness. A legislative amendment has enabled child witnesses to testify in more congenial surroundings in front of cameras. There have also been limited efforts at victim-offender mediation by a welfare organization in a few cities. In addition, a pilot project has been launched in Cape Town to establish a special rape court in which the police, the prosecutor, the district surgeon staff, and the magistrate will all have received special training, sensitizing them to the potential for a secondary victimization to occur during case proceedings. A special recovery room has been established at a local hospital so the victim does not have to be brought to the police station to submit a statement. The project also emphasizes ongoing counseling for rape survivors.

CORRECTIONS

There are 11 maximum security prisons, 1 minimum security prison, 16 prison farms, 2 juvenile prisons, and 8 female prisons. Prison farms can include maximum security, medium security and juvenile facilities. As of December 31, 1992, the prisons had a total cell accommodation for 87,706 prisoners and were occupied by 108,698 prisoners the prisons. During 1991-1992, 12,000 beds and 14,500 mattresses were purchased. Backlogs remain in the provision of these items. Where certain items are not available substitute items are issued, such as two or more felt mattresses in the place of beds and/or mattresses.

The total daily average of sentenced and unsentenced prisoners for the period July 1, 1991 to December 31, 1992 was 102,2688. There were 4,225 white prisoners, of which 4,045 were male and 180 were female; 71,811 black prisoners, of which 69,301 were male and 2,510 were female; 721 Asian prisoners, of which 694 were male and 27 were female; and 25,511 coloured prisoners, of which 24,800 were male and 711 were female.

During the period between July 1, 1991 and December 31, 1992, the total number of prisoners admitted to the prisons system was 604,706.

The number of inmates incarcerated for different crimes were: Violent Crimes - 39,177; Economic Crimes - 53,977; Other Crimes (includes drug crimes) 19,219.

The Department of Correctional Services (DOCS)and its body of correctional officers are responsible for the administration of prisons. The DOCS is under the control of the Commissioner of Correctional Services. The Head of the Prison is the key actor at the operational level in executing the functions of the Department of Correctional Services.

As of August 23, 1993, there were a total of 22,428 prison wardens. There were a total of 11,380 white wardens, of which 9,682 were male and 1,698 were female; a total of 3,082 coloured wardens, of which 2,886 were male, and 196 were female; 346 Indian wardens, of which 337 were male and 9 were female; and 7,620 black wardens, of which 7,168 were male and 452 were female.

To be a prison guard or warden, a person must be a South African citizen, between 18 and 35 years old, physically, mentally and medically fit, have no criminal record, have a 10th grade education, must have successfully completed the basic training course, and must be HIV-negative.

The total expenditure of the Department of Correctional Services for Fiscal Year 1991/1992 was R1,337,777,612.

Sentence remissions are made at the discretion of correctional services officials and involve the reduction of a prisoner's sentence by a specific period of time. Remissions may be allowed conditionally or unconditionally. A maximum remission of one third of a prison sentence may be granted to prisoners sentenced to 2 or more years. The goal of sentence remission is to motivate prisoners into continual cooperation and good behavior. Sentence remissions are not a right, but rather a concession which must be earned. The prisoner may earn credits by observing the rules which apply in the prison and by actively taking part in programmes which are aimed at his/her treatment, training and rehabilitation. The number of days and months earned by a prisoner as credits may be taken into account in determining when a prisoner may be paroled. Prisoners may also be released on parole into society under certain conditions and supervision requirements. Prisoners may be considered for parole after they have completed one third of their sentence. If the parolee violates any of the conditions of parole, he/she can be readmitted to prison to serve the remainder of the sentence.

Sentenced prisoners in South Africa have a duty to work. Prisoners can be paid a small gratuity at the discretion of the authorities. However, prisoners awaiting trial do not have to work except to clean the areas in which they are detained. Prisoners do not have a "right" to study. Permission to study is subject to the discretion of the commissioner. The commissioner may encourage the prisoner to study in his/her spare time if it is believed the prisoner's deficient or inadequate schooling, or lack thereof, could possibly have been a factor in causing the crime. The Department of Correctional Services has established education and training programs to equip prisoners with the knowledge and skills that are necessary to obtain a job after release from prison. Vocational and skills training programs are offered to prisoners in a variety of fields, such as the construction industry, furniture industry, steel industry, and hairdressing. A minimum sentence of 2 years is generally required before a prisoner can be considered for admission to a training program. The determination of whether a prisoner would be eligible for training is determined provisionally shortly after admission.

Training can take 3 forms: a) vocational training which would allow the prisoner to obtain a nationally recognized diploma or certificate; b) specialized training in which a prisoner would be given at least one month's intensive training before being put to work; and c) constructive unskilled labour. All education and training programmes involve literacy training. These literacy programs are offered free of charge and are available to all prisoners who are unable to read or write.

Medical services are provided by medical officers who are assigned to a prison or group of prisons. Prisoners are routinely examined on admission, prior to transfer, prior to release (when possible), at their own request, when they have been injured, or when the district surgeon's attention is drawn specifically to a case.

Psychological services are also provided directly by the Department of Correctional Services to sentenced prisoners or persons under correctional supervision. The following target groups fall under the care of psychologists: Prisoners identified as having suicidal tendencies, prisoners referred by psychiatrists and district surgeons for treatment, prisoners for whom the court recommended treatment, prisoners who were found guilty of serious aggressive and sexual misdeeds, prisoners who are referred for treatment because of problem behaviour, prisoners who have previously received psychological or psychiatric treatment, and prisoners who personally request to see a psychologist.

Individual psychotherapy, group therapy, married couples and family therapy, and therapeutic milieu programmes are provided. Psychiatric services are provided by the Department of National Health at a few major centers. In cases where prisoners cannot receive psychiatric treatment in prison, medical officers may refer prisoners from smaller centers to prisons near a suitable hospital.

Prisoners who require special treatment are referred to specialists who conduct clinics within the prison, or, where clinics are not available, they are referred to specialist outpatient departments of public hospitals or any health care facility outside the prison. All persons detained in prisons are entitled to the comprehensive health care system.

Individual prisoners are allocated to privilege groups A, B, C, and D. They are then granted the package of privileges that are specified for each group. Prisoners are interviewed within 3 months of admission and at monthly intervals at which time their privilege group is upgraded or downgraded. The following areas are considered privileges: visitation from outsiders, delicacies during visits, letters and cards, photo albums, telephone calls, access to radios, television sets and reading matter, private musical instruments, writing and poetry, library, hobbies, wearing of jewelry, pets.

 

In the mid-1990s, South Africa's Department of Correctional Services operates 234 prisons. Of these, 226 are primarily or solely for male prisoners, and 119 of these have separate women's sections. The department also operates twenty prison farms.

There were roughly 114,000 prisoners nationwide--nearly 92,000 serving prison sentences and about 22,000 not yet sentenced--as of 1995. Some 70 percent of prisoners were black, 25 percent were coloured, 4 percent were white, and less than 1 percent were Asian. This prison population constituted roughly 130 percent of prison capacity. More than 400,000 people were jailed at some time during 1995, most for periods ranging from a few days to several months. Nearly 26,000 people per day were on parole. In 1997, South Africa had a prison population rate of 320 per 100,000, the highest rate in Africa. (For comparison, Japan's rate was 40 per 100,000 but the U.S. rate was 645 per 100,000 that same year.)

The Department of Correctional Services has roughly 22,500 employees, at least 4,500 fewer than its workload requires, according to official estimates. Severe staff shortages are sometimes ameliorated by employing some of the 1,500 members of the Prisons Service Reserve Force (mostly retired prison staff) and as many as 1,000 military reservists.

Four categories of prisoners are held: unsentenced prisoners, most of whom are detained pending a hearing or sentencing; short-term prisoners, who are serving terms of less than two years; long-term prisoners; and juvenile prisoners, who are under twenty-one years of age. Through 1994 women made up about 4 percent of the prison population, but late that year, the new government granted an amnesty to all female prisoners with children under the age of twelve, if they had been convicted of nonviolent crimes. In late 1994, 250 prisoners over the age of sixty also had their sentences remitted and were released from prison.

In 1995 the prison population included 1,278 children under the age of eighteen, half of them awaiting trial, according to the Department of Correctional Services. The number represented less than half the number of juveniles in prison in 1992. A small, but unknown, number of children under age fourteen were among the juveniles in prison, according to international human rights observers.

Literacy training and vocational courses are offered in some prisons. Parole supervision is generally strict, and parole violators are returned to prison, where they must serve out their original terms and sometimes additional periods of incarceration. Some jurisdictions instituted a system of correctional supervision as an alternative to prison sentences in the early 1990s, partly in response to prison overcrowding. Correctional supervision entails community service, victim compensation, house arrest, treatment sessions, a prohibition of alcohol consumption, or a combination of these programs. The department also established correctional boards in 1992 to provide a communication link between its officials and residents of local communities. In addition, the department established a National Advisory Board on Correctional Services to advise prison authorities on legal and policy concerns. The National Advisory Board is chaired by a Supreme Court judge, and its members include specialists from the court system and the police, as well as social welfare authorities, and business and community representatives.

Prisons do not meet international standards, and prison conditions do not always meet the country's minimum legal requirements. Food, especially for prisoners with HIV/AIDS and other medical problems, frequently is of poor quality and insufficient quantity. NGO's reported that prison employees steal food from prisoners. Although prisoners generally have access to health care, prison officials sometimes withheld prescribed treatment as punishment. Severe overcrowding in some prisons led to poor health; as many as 75 inmates may occupy a cell designed to hold 40 inmates. The Department of Correctional Services (DCS), which manages prisons, reported that in September there were 165,000 prisoners in facilities designed to hold only 105,000. Prisoners often are required to sleep in shifts because of a lack of space. Overcrowding is cited as the main reason for the high rate of HIV/AIDS infection in prisons and a reported increase of more than 300 percent in deaths among inmates. Concerns have been raised over the potential threat to thousands of juvenile offenders. In the first 7 months of the year, 1,101 inmates died of HIV/AIDS, with the rate of infection among prisoners increasing by 36 percent over the same period in 2000. Prison employees and other prisoners abused prisoners, including physically and sexually assaulting them. Press reports indicated that some detainees awaiting trial contracted HIV/AIDS through rape. Male and female prisoners are held separately; however, female prison wards often are on the same grounds as male wards, and Amnesty International reported that prisoners raped women. Pretrial detainees are not held separately from convicted prisoners.

Juveniles between the ages of 14 and 18 accused of serious crimes, including murder or rape, sometimes are placed in pretrial detention in prisons with adult offenders. DCS statistics from September documented that there were 29,873 youth offenders (prisoners under age 21), 3,556 of whom were 17 years of age or younger. Juveniles normally are not housed with adults; however, in April 320 juveniles under 18 years of age awaiting trial were transferred to secure care centers after it was discovered that they were detained with adult prisoners at Pollsmoor Prison near Cape Town. A similar transfer took place in 2000. There were credible reports that youths from juvenile wards were sold to adult prisoners for sexual exploitation, including rape.

C-MAX prisons are designed to hold the country's most dangerous criminals. Human rights groups have raised serious concerns regarding C-MAX facilities, including the Government's criteria for transferring prisoners from other prisons to a C-MAX facility and the restrictive, solitary conditions of the prisons. No additional C-MAX prisons were opened by year's end, but a new prison based on the C-MAX model was under construction and scheduled to begin operations in January 2002.

Parliament passed legislation in 1998 to restructure the prison service and bring prison law in line with the Constitution. Sections of the Correctional Services Act on parole board policy were not implemented by year's end. The parole boards still are staffed by lower ranking DCS employees; NGO's have attributed the low number of parole decisions and an exacerbation of the overcrowding conditions in prisons to this.

A Judicial Inspectorate for prisons began operations during 1999, and a number of official civilian prison visitors were approved throughout the country. Visits were conducted during the year 2001; however, most of the official civilian prison visitors were not trained in legal matters. Those who received some training from NGO's generally were more successful in encouraging compliance with regulations on inmate treatment.

The Government generally permits independent monitoring of prison conditions, including visits by human rights organizations; however, only those organizations that are able to send legal practitioners are allowed to visit prisons. Other prisoners' rights organizations routinely are denied access.

 

WOMEN

In general, all racial and ethnic groups in South Africa have long-standing beliefs concerning gender roles, and most are based on the premise that women are less important, or less deserving of power, than men. Most African traditional social organizations are male centered and male dominated. Even in the 1990s, in some rural areas of South Africa, for example, wives walk a few paces behind their husbands in keeping with traditional practices. Afrikaner religious beliefs, too, include a strong emphasis on the theoretically biblically based notion that women's contributions to society should normally be approved by, or be on behalf of, men.

Twentieth-century economic and political developments presented South African women with both new obstacles and new opportunities to wield influence. For example, labor force requirements in cities and mining areas have often drawn men away from their homes for months at a time, and, as a result, women have borne many traditionally male responsibilities in the village and home. Women have had to guarantee the day-to-day survival of their families and to carry out financial and legal transactions that otherwise would have been reserved for men.

Apartheid imposed new restrictions on African women beginning in the 1950s. Many lived in squalor in the former homelands, where malnutrition, illness, and infant mortality were much higher than in urban areas. Other women who followed their husbands into cities or mining areas lived in inadequate, and often illegal, housing near industrial compounds. Women often left their own families to commute long distances to low-wage jobs in the domestic work force in white neighborhoods. Substantial numbers were temporary workers in agriculture; and a growing number of women joined the burgeoning industrial work force, as has been carefully researched in Iris Berger's Threads of Solidarity: Women in South African Industry, 1900-1980 .

Women became the major source of resistance to many race-related restrictions during the apartheid era, especially the pass laws, which required Africans to carry documents permitting them to be in white-occupied areas. The Women's Defence of the Constitution League, later known as the Black Sash, was formed in 1954, first to demonstrate against such laws and later to assist pass-law violators. Black Sash established pass-law advice centers in many cities and helped reduce sentences or assist violators in other ways.

The African National Congress Women's League (ANCWL), formed in 1943, was able to organize more than 20,000 women to march on government buildings in Pretoria to protest against the pass laws and other apartheid restrictions in 1955. Their protests eventually failed, however. In the early 1960s, pass-law restrictions were extended to women and new legislation restricted black women without steady employment to stays of no more than seventy-two hours in any urban area. Also in 1964, many senior ANC leaders were arrested, and others fled from South Africa or went underground, and the ANCWL became almost defunct.

Women continued to join the urban work force, and by the late 1980s, women made up at least 90 percent of the domestic work force and 36 percent of the industrial work force, according to labor union estimates. Women's wages were lower than men's even for the same job, however. In addition, positions normally held by women had long hours and few benefits, such as sick leave; women often were dismissed without advance notice and without any type of termination pay.

Conservative Afrikaner women have organized in support of Afrikaner cultural preservation and apartheid since the 1970s. The Kappiekommando was established in the late 1970s to demand a return to traditional Afrikaner values. This organization was named for its distinctive Voortrekker dress, which caused some young Afrikaners and others to ridicule its members' appearance and their militancy. The Kappiekommando's militant opposition to political reforms eventually contributed to its marginalization, even among staunchly conservative Afrikaners.

The Afrikanervroue-Kenkrag (AVK), another Afrikaner women's organization, was formed in 1983 and worked primarily to oppose racial integration in schools and other public places. AVK membership grew to about 1,000 during the mid-1980s. The group published a monthly newsletter and cooperated with other Afrikaner organizations, but like the Kappiekommando, the AVK lost support when mainstream Afrikaner political leaders began working toward racial inclusiveness in the 1990s.

Women in the 1990s

The ANCWL was resurrected in 1990, after the ban on the ANC was lifted, and women in more than 500 towns and cities organized to press for consideration of gender issues in the upcoming constitutional negotiations. At the insistence of its Women's League, the ANC accepted, in principle, the proposal that women should receive one-third of the political appointments in the new government. Other symbolic gains by the ANCWL have included strong policy stands on women's rights and protection against abuse and exploitation, but translating these standards into enforceable laws proved to be a difficult task.

Women are achieving new prominence in politics as a result of the sweeping political reforms of the 1990s. In 1994 women won election to eighty of the 400 seats in the National Assembly, the only directly elected house of parliament, and a woman, Frene Ginwala, was elected Speaker of the National Assembly. Women also were elected to almost one-third of the seats in the nine provincial assemblies.

President Mandela appointed two women cabinet ministers in May 1994, and a woman succeeded the late minister of housing, Joe Slovo, after his death in January 1995. Three women were deputy ministers in early 1995. One of these, President Mandela's former wife, Winnie Mandela, was appointed deputy minister of arts, culture, science, and technology.

Mrs. Mandela had been a courageous fighter for the rights of the downtrodden for more than two decades while her husband was in prison, and she had achieved high office within the ANC. But her association with violent elements of the ANC Youth League in the late 1980s and other accusations against her in the 1990s led many within the ANC to shun her. She was also outspoken in her criticism of the government in early 1995 for its failure to move more quickly to ease the extreme poverty of many citizens. Her defiance led to her removal from office in March of that year.

Eliminating violence against women and improving educational opportunities for women are almost universally supported goals in South Africa in the mid-1990s, but these goals receive only rhetorical support, in many cases. More urgent priorities are to eliminate the vestiges of apartheid legislation and to improve economic and social conditions for the very poor, for children, and for other groups that were especially disadvantaged in recent decades. Gender-related inequities appear likely to be decried, but relegated to secondary importance, well into the twenty-first century.

There is an extremely high rate of domestic violence, including physical, sexual, emotional, and verbal abuse, as well as harassment and stalking of former partners. Entrenched patriarchal attitudes towards women are a significant factor in underreporting. It is difficult for abused women's cases to be prosecuted effectively, and abused women often are treated poorly by doctors, police officers, and judges.

A study conducted in three provinces by the Medical Research Council (MRC), a statutory body, found that 27 percent of women in the Eastern Cape, 28 percent of women in Mpumalanga, and 19 percent of women in the Northern Province had been abused physically in their lifetimes by a current or ex-partner. In a 1999 study by the MRC of 1,394 men working for 3 Cape Town-area municipalities, approximately 44 percent admitted to abusing their female partners. In a MRC study of 1,800 working men in the Western Cape Province over a 10-year period, 22 percent reported forcing their wives or girlfriends to have sex.

The law defines victims of domestic violence, facilitates the serving of protection orders on abusers, requires the police to take victims to a place of safety, and allows police to seize firearms at the scene and arrest abusers without a warrant. The law defines marital rape as a criminal offense and allows women to obtain injunctions against abusive husbands in a simple, less expensive, and more effective manner. The law extends legal protection from domestic abuse to persons who are not in legal or common-law marriages. Violating a protection order is punishable by a prison sentence of up to 5 years, or 20 years if additional criminal charges, including indecent assault, rape, incest, attempted murder, malicious damage to property, or pointing a firearm, are made.

The implementation of domestic violence legislation was hampered by societal attitudes and a lack of infrastructure, resources, and training for law enforcement officials. Researchers at the University of Cape Town's Institute of Criminology reported that while many police and other judicial system officials are committed to complying with the law, it has not been implemented adequately. It is believed that the number of women who filed complaints represented only a fraction of those who suffered abuse. Statistics on prosecution and conviction of domestic abusers were not available at year's end. Domestic violence has been the subject of extensive media coverage, much of which has been focused on the need to improve implementation of domestic violence legislation and to impose longer sentences on convicted abusers. At year's end, the parliamentary monitoring committee on women's affairs was completing consultations with NGO's and local and national government officials regarding defects in the domestic violence laws, preparing a report for the relevant ministries on how the legislation could be modified to ensure more effective implementation, and focusing on efforts to ensure that the budget oversight process included greater emphasis on the effects of government programs on women. The report was completed but the committee had not considered it by year's end.

The Government finances 25 shelters for abused women. This number is inadequate, particularly in the rural areas. The SAPS operates 12 Family Violence, Child Protection, and Sexual Offenses (FCS) Units, which deal specifically with these issues and which are intended, in part, to increase victims' confidence in the police, thereby leading to increased reporting of such crimes. Six training courses for FCS Investigating Officers are held annually, and there are numerous additional workshops and seminars for other members of the police force, including gender sensitivity training. The Government conducts domestic violence awareness campaigns and counseling services in partnership with the Network of Violence Against Women, an NGO consortium.

Rape, including spousal rape, is illegal. There is an extremely high incidence of rape for reasons including a poor general security climate and societal attitudes condoning sexual violence against women. In the large majority of rape cases, the perpetrator goes unpunished.

The SAPS reported that between January and March, 2001, there were 144.2 rapes reported per day or 29.5 rapes per 100,000 persons. According to a 2000 report by Statistics South Africa, a governmental body, 2.7 percent of women between the ages of 16 and 25 years who were interviewed in a 1998 survey said they had been raped in the previous 5 years, as compared with 1.8 percent of women between 26 and 45 years old. In 2000 approximately 52,860 rapes were reported; however, according to a 1998 SAPS survey cited in the Statistics South Africa report, only half of all respondents who were raped reported the incident to the police. Of the cases reported, 47.6 percent were referred to court after an investigation. Of the cases that went to court, 45.6 percent were withdrawn in court, and an additional 4.5 percent settled out of court; 19.8 percent of the cases that went to court resulted in the conviction of the accused. The Rape Crisis Organization of South Africa reported that only 8.9 percent of reported rapes resulted in a conviction.

Rape, sexual assault, and sexual harassment of black female farmworkers by farm owners, managers, and by other farmworkers was common in 2001.

The Office on the Status of the Women, located in the Presidency, reported in the 2000 National Policy Framework for Women's Empowerment and Gender Equality that "there are few support structures for victims of rape. At police stations, rape victims face a lack of facilities coupled with the unsympathetic treatment women frequently receive from both the police and the justice system." Although judges in rape cases generally follow statutory sentencing guidelines, judges occasionally are criticized by women's advocacy groups for using questionable criteria, such as the victim's behavior or relationship to the rapist, as a basis for imposing lighter sentences.

The Government has established 22 sexual offense courts throughout the country. In 2000 the Government launched a pilot project in two communities aimed at providing holistic care for rape victims. The Government also has designated waiting rooms for victims, established counseling, installed more than 2,000 intermediary facilities at courts, and provided training of judicial officers.

The issue of rape was covered widely in the media during the year 2001, although NGO's working with rape victims reported a decrease in attention from 2000. There were a number of demonstrations against rape; one followed the murder of a young girl by gang members who previously had raped her and threatened to kill her if she reported the crime. In July students at a girls' high school in Cape Town organized a demonstration in which thousands of students joined hands to form a solidarity chain for a young girl who had been raped.

Female immigrants and asylum seekers were abused sexually during detention. The Lindela Repatriation Center has no special facilities for women, and although male and female detainees resided in separate sections of the Center, they often used common facilities.

In August 2001 the Constitutional Court ruled that a woman could be awarded damages on the basis that the Government failed to protect her security.

Female genital mutilation (FGM), which is condemned widely by international health experts as damaging to both physical and psychological health, still is practiced in some areas of the Eastern Cape and KwaZulu-Natal, although it is not considered to be widespread. The law specifically prohibits FGM as unfair discrimination.

Prostitution is illegal, but it is widespread and practiced fairly openly. There have been incidents of harassment by policemen demanding sexual favors of prostitutes under threat of penalizing them for lewd conduct or public loitering. There is no law that specifically prohibits sex tourism, although it is covered under the general prohibition against prostitution. The Government is not involved in sex tourism. There were reports that women are trafficked into the country for prostitution. In August 2001 the Pretoria High Court ruled that sections that prohibited prostitution in the Sexual Offences Act were unconstitutional.

Polygamy continues to be practiced by several ethnic groups. Exacting a bride price ("lobola") also is a traditional practice of some ethnic groups. The Recognition of Customary Marriages Act recognizes customary marriages, both monogamous and polygamous, but it does not address religious marriages, which are not recognized by the law. The law was introduced in 1998 but not implemented by year's end.

 

CHILDREN

Violence against children, including domestic violence, remains widespread. Domestic violence against children is prohibited under the law, which also compels medical, educational, and other practitioners working with children to report abuse immediately. While the Government, the public, and the media have paid increased attention to the problem, a lack of coordinated and comprehensive strategies to deal with violent crimes continues to impede the delivery of needed services to young victims. In July a senior police officer reported to a parliamentary committee that there was a significant increase in reports of child abuse. Although corporal punishment in schools is prohibited by law, there are reports that teachers use physical violence to discipline their students. In addition there continued to be high levels of racially-motivated violence among students in schools.

Reports of child rape have increased significantly, as have reports that men are committing rape due to a growing myth that having sexual intercourse with a virgin can cure HIV/AIDS. Between January 2000 and June, the police reported 31,780 cases of rape and attempted rape of children; however, observers believe that these figures represent a small percentage of the actual incidents of child rape, because most cases involve family members and are not reported. The country has a low conviction rate for rape and child abuse. There was a reported 2.6 percent conviction rate in cases of child abuse in Johannesburg. The minimum sentence for rape of a child is life in prison, but judges have the discretion to grant more lenient sentences. Courts reportedly convicted approximately 70 persons for rape and similar offenses and sentenced them to life sentences during the year 2001. In November a 9-month-old girl was raped in Cape Town; six men were arrested for the crime. The incident followed a series of recent rapes of baby girls. On November 26, thousands of men demonstrated against the rapes as part of a 16-day awareness campaign.

In March 2001, Human Rights Watch released a report entitled "Scared at School: Sexual Violence Against Girls in South African Schools" that documented widespread rape, sexual abuse, sexual harassment, and assaults of girls at school by teachers, students, and other persons in the school community. According to the report, girls "are confronted with levels of sexual violence and sexual harassment in schools that impede their access to education on equal terms with male students." The report stated that the Government was working to improve its responses to domestic and sexual violence, but recommended "a more proactive, coordinated, and system-wide response." There was no reported action by year's end. The law requires schools to disclose sexual abuse to the authorities; however, administrators often disregarded the obligation by concealing sexual violence or delaying disciplinary action. The report further noted that "sexual violence and harassment in South African schools erect a discriminatory barrier for young women and girls seeking an education."

A 2000 survey documented that 39 percent of sexually active teenage girls reported being raped. According to Human Rights Watch, girls who experience sexual violence often leave school temporarily, change schools, or quit attending school to escape continuing abuse; those who remain in school have difficulty completing their studies. The level of sexual violence in schools also increased the risk for girls of contracting HIV/AIDS or other sexually-transmitted diseases, as well as unwanted pregnancies.

The Government has introduced initiatives to address school violence; however, it does not have a national policy to address sexual violence and harassment in schools. Human Rights Watch reported an absence of standard procedural guidelines governing how schools should treat persons accused of sexual violence or harassment.

Virginity testing on young girls and traditional male circumcision still are prevalent in various parts of the country. Virginity testing is a violation of the law and exposes women to a potentially higher risk of being raped because of the virginity myth. Human Rights Watch reported that virginity tests were conducted at some schools in KwaZulu-Natal during the year 2001. Traditional circumcision rituals still are practiced on teenage boys in rural areas of the Eastern Cape and KwaZulu-Natal and resulted in the hospitalization, mutilation, or death of several boys and young men. The provincial department of health reported at least 18 deaths, 5 mutilations, and 42 hospitalizations during the summer initiation season that began in September 2000. In December 2000, provincial health authorities began to regulate the practice by requiring the presence of trained medical personnel during the rituals. The Eastern Cape Provincial Government introduced legislation to regulate traditional male circumcision and improve health standards during the ritual; however, it was not implemented by year's end.

FGM still is performed on young girls in some rural areas of the Eastern Cape and KwaZulu-Natal.

Child prostitution increased in 2001, primarily in Cape Town, Durban, and Johannesburg. A 2000 report by the NGO Molo Songololo estimated that there are 28,000 child prostitutes in the country. The child sex industry increasingly has become organized, with children either forced into prostitution by gangs or exploited by their parents to earn money for the family. The law prohibits the commercial sexual exploitation of children, sexual intercourse with children under 16, and allowing a female under 16 to stay in a brothel for the purpose of prostitution. The 33 SAPS Child Protection Units lack the capacity to deal adequately with the problem of child prostitution.

Legislation regulates limited pretrial detention of juvenile offenders accused of serious crimes. The law states that any child under the age of 14 must be released within 24 hours into the custody of a parent or guardian when possible. In 2000 juveniles awaiting trial were transferred to secure care centers after it was discovered that they were being held with adult prisoners and receiving insufficient medical attention at Pollsmoor prison near Cape Town. Immigrant children detained in the Lindela Repatriation Centre received the same general treatment as adult detainees, were not provided with separate sleeping facilities from adults, and were not always provided with food and clothing by the facility.

There were reports that children were trafficked for prostitution and forced labor.

Child labor, including forced child labor, is a problem.

 

TRAFFICKING IN PERSONS

The law prohibits trafficking in persons; however, the country is a transit and destination point for the trafficking of persons from other countries in Africa, Asia, Eastern Europe, and the former Soviet Union for prostitution and forced labor. Women and children are trafficked into the country by domestic and international organized crime syndicates for the sex industry.

The extent of trafficking operations is not known; however, it has been estimated that an average of 1,000 women are trafficked across the country's borders every month. Molo Songololo, an NGO in Cape Town, conducted a 2000 study of 44 women working in the sex industry in the country and found that women who are trafficked to the country are 18 to 25 years of age with limited English skills, limited job opportunities, and dependent families. Of the 44 women surveyed, 10 of the women were trafficked from Thailand, Eastern Europe, and the former Soviet Union; the remaining women were South African, and 4 of them were trafficked.

Women and children are lured by traffickers with the promise of jobs and decent wages, and then forced to work as prostitutes, in some cases to pay off debts to those who smuggled them into the country. While many women come willingly, some claim that they were tricked into coming, or that they were forced to continue working as prostitutes until they had paid off the cost of their transport. The Eastern European syndicates contact women through acquaintances of friends and offer employment opportunities in the South African hospitality industry, usually offering to pay airfare and obtain travel documents; the women usually enter the country with a holiday visa or claim political asylum. The women generally travel alone; upon arrival they are met by an agent at the airport and taken to a house in the Gauging province, Eastern or Western Cape, or Kwazulu Natal. Trafficked women usually are threatened if they do not comply, and their documents are confiscated.

In Asia employment agencies, female agents, and newspaper advertisements are used in recruiting women with promises of employment in hospitality, catering, teaching, and service industries. These agencies create "books" with the photographs and personal information on the women, which are circulated among prospective buyers who are either agents or brothels and escort service owners. The women are "ordered" and brought to South Africa, where they reside in the same house and are monitored closely. The women usually are debt-bonded to the agent who recruited them and are required to make a profit for both their trafficker and employer.

In Africa women are trafficked from neighboring countries including Angola, Zimbabwe, Lesotho, Swaziland, Zambia, Cameroon, Malawi, and Rwanda. Namibia and Botswana reportedly are transit countries. The trafficking operations are run by Nigerian, Angolan, and Congolese networks; South African also are involved in trafficking syndicates. The method of recruiting in Africa reportedly is with promises of employment in the hospitality industry, and women are transported via roads into the country; the trafficked victims are indebted to the recruiting organizations.

The country also is a transit point for trafficking operations between developing countries and Europe, the United States, and Canada. Migrants from foreign countries, particularly China, India, the Middle East, Eastern European countries, and other African countries, are lured to the country with accounts or promises of money and jobs in the West. Once in the country they are provided with documentation and accommodation before being moved on to final destinations, where they are forced into prostitution, drug dealing, or other criminal activity until they pay off the debt of their travel expenses. Traffickers apparently have identified the country as one in which temporary entry permission often is granted, fraudulent documents are easy to obtain, and direct flight and shipping routes are available to most countries in the developed world.

There are four major criminal syndicates in the country that traffic women: The Chinese Mafia from Asia and operating in Swaziland; Bulgarian syndicates from Eastern Europe; the Russian Mafia; and African criminal groups, mainly from Angola, Nigeria, and the DRC. The African syndicates appear to be the managers and owners of specific establishments within the sex industry. Individual criminals from South Africa and neighboring countries also engage in trafficking. It is reported that women from Eastern Europe are trafficked by a well-organized syndicate that is run by ex-military personnel of senior rank.

Trafficked women who work in the sex industry live with other trafficked victims in segregated areas; are under constant surveillance; have no money or identifying documents; are indebted to the agents who arranged their travel; work up to 18 hours each day; work double shifts, on weekends, and when ill; are fined for infractions of strict rules; and have little communication with other workers.

The country does not have legislation that specifically prohibits the trafficking of persons; however, there are other laws that can be applied to prosecute offenses related to trafficking, including laws dealing with illegal aliens, employment, occupational health and safety, sexual offenses, domestic violence, and organized crime. Various entities of the Government investigate trafficking cases on an ad hoc basis. The Government made efforts to address the trafficking problem with investigations and arrests by the police. These efforts are hampered by police corruption, lack of training, and understaffing. In 2000 police discovered prostitutes from Thailand, Bulgaria, Russia, the Czech Republic, Romania, and Zambia at a brothel in Johannesburg, closed the establishment, arrested the owner, and seized his assets. Some of the women were returned to their home countries, and the criminal case against the owner and various civil cases were pending at year's end. On July 31, the Pretoria High Court ordered the brothel to be closed. The courts generally deal with trafficking through deportations and fines, rather than exacting criminal penalties.

Trafficking is not a focus for the Government, and few government resources have been allocated to combat trafficking. There is no plan or program in place to assist trafficking victims. There has not been any specialized training for dealing with trafficking victims. However, during the year 2001, the border police included protection of women and children from trafficking in its strategic plan.

There were no reported government anti-trafficking public awareness campaigns or other programs to prevent trafficking. The NGO Molo Songololo is the only NGO that has worked with the Government to address trafficking, and the cooperation has been limited to interviews with government officials for the Molo Songololo study on trafficking. Molo Songololo has raised some awareness with the publication of its study and through programs in Western Cape schools.

DRUG TRAFFICKING

After South Africa's international isolation ended and border trade increased in the early 1990s, problems associated with narcotics trafficking and drug use increased dramatically, according to the South African Police Service (SAPS). In 1994 South African authorities confiscated more than 2.4 million ounces of cocaine; nearly 25,000 grams of heroin; more than 16,000 units of LSD; 27,000 ounces of hashish, and 7 million kilograms of cannabis (marijuana), according to police records, and most of these figures were expected to increase in 1995 and 1996. At the same time, officials at the National Council on Alcoholism and Drug Dependence reported an increase in problems related to substance abuse and addiction, and police officials reported that narcotics dealers often were involved in other forms of crime, such as arms smuggling, burglaries, or car hijackings.

South Africa continues to be a significant transshipment point for cocaine from South America and heroin from the Far East, with domestic or European markets the final destination. In addition to being a large producer of cannabis, South Africa is perhaps the worlds largest consumer of mandrax (methaqualone). In 1998, negotiations on a bilateral extradition treaty between the U.S. and South Africa began. The Parliament passed breakthrough legislation that strengthens existing legislation outlawing money laundering. Despite the forward movement, South Africa still has not become a party to the 1988 UN Drug Convention.

Accompanying South Africa's transition to democracy and its emergence from international isolation has been an apparent increase in the use of South African territory for the transshipment of contraband of all types, including narcotics. (N.B.: There were some indications from the truth and reconciliation hearings that a cozy relationship may have existed between the apartheid government and certain international criminal groups and that the apartheid government may even have acquiesced in, if not encouraged, the trafficking in narcotics to some ethnic groups as a means of social and political control. This connection is certain to be examined further by government investigators in the near-term.) Situated along major smuggling routes, South Africa has the most developed transportation, communications, and banking infrastructure in Africa. South Africa's modern international telecommunications systems, its direct air links with Latin America and Europe and its serious lack of border controls provide opportunities for international narcotics traffickers. It is indicative of the current situation in South Africa that the Foreign Ministry estimates that over 100 South African citizens languish in South American prisons after having been arrested as drug couriers.

South Africa continues to rank among the worlds largest producers of cannabis. Apparently, most of the South-African produced cannabis is still primarily marketed and consumed domestically or within the Southern African region. Nevertheless, exports to the UK and Europe appear to be on the increase. We have no evidence that significant amounts of South African cannabis find their way to the U.S. market, although some trafficking occurs.

Combating narcotics trafficking ranks high on the South African government's (SAG) anti-crime agenda. As a practical matter, however, SAG resources are more focussed on combating serious, violent domestic crime (South Africa has one of the world's highest murder rates and may lead the world in number of rapes per capita). Moreover, contraband of all types-from stolen cars to precious metals-is trafficked across South Africa's porous borders. The Inter-ministerial Working Group for the National Crime Prevention Strategy (NCPS) has become more active and effective in coordinating law enforcement and criminal justice activities in the last year. Nevertheless, the narcotics bureau (SANAB) remains virtually alone on the counternarcotics front lines. Although undergoing some reorganization, SANAB continues to suffer from a lack of training, resources and personnel.

Officials accused of corruption are prosecuted under the 1992 Corruption Act. Although accusations of widespread police corruption are frequent, the USG is unaware of any credible evidence of narcotics-related corruption among senior South African law enforcement officials. There is concern, however, that low level corruption among border control officials may facilitate the transport of all types of contraband, including narcotics, across South Africa's borders. Of course, a lack of training and resources may be as much of a factor as corruption.

Cannabis is a traditional crop in many rural areas, particularly the Eastern Cape and Kwa-Zulu Natal provinces. In some areas, it is possible to have up to three crops per year. As noted, the vast majority of South African-produced cannabis is consumed domestically or in the Southern African region. However, increasing amounts apparently are being exported to Europe and the UK. Figures for cultivation and eradication during 1998 are currently not available, but SAG eradication efforts were halted mid-year due to lack of resources needed to maintain the helicopters used in spraying operations.

A significant amount of cocaine is smuggled into South Africa from South America; judging from the arrests made of couriers, Brazil seems to the most popular departure country. Authorities continue to believe that the bulk of the cocaine imported eventually is re-exported to Europe. Recently, however, there is a growing body of evidence that domestic consumption of cocaine, both powder and crack, is, and has been, greater than previously acknowledged. Heroin is smuggled into South Africa from Southwest and Southeast Asia; much of this is destined for onward shipment to Europe and, possibly, the U.S. Mandrax, primarily from India, is another drug imported illegally to South Africa, although there is evidence of increasing domestic production. Sufficient data is not available to allow a definitive judgment concerning the direct impact on the U.S. of drug trafficking through South Africa.

South Africa has had a long history of mandrax and cannabis abuse. Drug counselors have also noted a sharp increase in the number of patients seeking treatment for crack addiction in the past two to four years. General budgetary constraints have meant that SAG subsidies for non-government drug rehabilitation agencies have been cut the last two years.

Criminology Links
History
Criminal Codes
Incidence of Crime
Trends
Trend Analysis
Drug Trafficking
Legal System
Women
Police
Courts
Corrections
Prison Population Rates
Juvenile Delinquency
Crime Prevention


Other Links
Online literature
Travel tips
International criminal justice agencies
Legal system
News and media
Correspondent email addresses
Feedback
Distance learning courses
Databases
Careers
Comparative criminology-related sites

A Comparative Criminology Tour of the World
Dr. Robert Winslow
rwinslow@mail.sdsu.edu
San Diego State University