Speaker, in the Portfolio Committee on Justice and Constitutional Development, we regularly call this the "Torture Bill". However, it is important to note that it is, in fact, the Prevention and Combating of Torture of Persons Bill that we are dealing with here.
This Bill has been coming a very long time. South Africa signed the UN convention against torture on 29 January 1993 and ratified it on 10 December 1998. The fact that it has taken 14 years after ratification to enact into our legislation in terms of our international obligations is most unfortunate. Probably the most important feature of this Bill, as the Minister has said, is that it creates the offence of torture, which until now has not existed in our law as an offence on its own. It includes severe pain or suffering, both mental and physical, committed by, or at the instigation of, or with the consent or acquiescence of a public official. Torture, attempt to torture, and incitement or instigation to torture are punishable by imprisonment only. The same applies to conspiring with a public official to aid or procure the commission of torture, and no exceptional circumstances whatsoever, as has been said, may be used as a justification to commit torture.
A number of aggravating circumstances are specified in the Bill, which must be taken into account when sentencing, including discrimination against the victim, whether the victim was under the age of 18 or also the victim of a sexual act. We have also provided for extraterritorial jurisdiction and the protection of people from being extradited or returned to a country where there are substantial grounds for believing that the individual would be in danger of being tortured. A number of submissions were made to the portfolio committee, and we believe that all valid concerns have been addressed. Several submissions wanted us to also criminalise acts by private individuals, but that is not the purpose of this Bill, nor is it in line with the convention. Any offences by private individuals can be dealt with under the common law.
The subject of torture is not a simple matter. In this Bill, we are criminalising it under any circumstance. When considering that torture involves the intentional infliction of severe pain, it appears obvious that this is what we should be doing. However, when one considers issues such as the terrorist and the ticking time bomb, or a car thief who has abandoned a vehicle with a child in it and will not disclose its whereabouts, one may start to think that perhaps, just sometimes, it may be justifiable. Should we not perhaps legalise it in certain extreme circumstances? An article from the Stanford Encyclopedia of Philosophy sets out very well the moral dilemmas that can be faced in this regard. It is also very persuasive that in a constitutional democracy the concept of torture is anathema, that legalisation thereof cannot be reconciled with constitutional democratic principles, and that it will damage democratic institutions.
That is not to say that there can never be any individual situation in which it could arguably be regarded as being morally preferable to commit torture than to survive the alternative. In that situation, the person committing the torture would have to be found guilty of torture and any possible moral justification could be taken into account in respect of mitigation of sentence. Even though the sentence of imprisonment is compulsory, a court could, if satisfied that the circumstances justified it, impose a very short sentence. One would also think that in a suitably justifiable case a presidential pardon may be in order. The Stanford article highlights the fact that the military police and correctional institutions are very receptive to the practice of torture and that once it is a part of these institutions, it is very difficult to remove it. It is argued further that should torture be legalised, even if only in extreme circumstances, it would have a major impact on the direction, culture and practices of these institutions and a torture culture would be created. One point which the article makes that is of particular concern is that these institutions are particularly prone to torture, even when it is not legal.
One would have hoped that such a Bill would not be necessary in this day and age. Unfortunately, despite South Africa's specific horrific history of torture by public officials during apartheid, this scourge has not been eliminated from our country. It certainly has not been eliminated from other countries, and we know the horror stories that have emerged from Guantanamo Bay and Abu Ghraib, for example. The South African Truth and Reconciliation Commission stated that torture was used systematically by the security branch, both as a means of obtaining information and of terrorising detainees and activists. Well, have things changed that much?
We have seen the Tatane matter. In October this year, a group of police officers in Steenberg, Cape Town, were reportedly being investigated for allegedly using apartheid-style assault methods, such as stripping people naked, smothering them in plastic bags and hitting them with baseball bats and hockey sticks. In September, it was reported that Lebogang Legodi was allegedly tortured on the West Rand at the Chamdor police station and died as a result. In August this year in the Marikana matter, the Independent Police Investigative Directorate, IPID, took 194 affidavits from miners who alleged that they were beaten up in the police cells. On 25 October, at Wonderkop, Marikana, Tholakele Dlunga was reportedly assaulted and choked with a black bag over his head by police in his home. He was then taken to Phokeng police station where he was again tortured, reportedly for information related to the location of others involved in the Lonmin strike.
On 23 October, Anele Zonke, 26 years old, was reportedly also arrested by plain-clothes policemen, beaten and suffocated. The effect of this torture is vividly described in an article in the Daily Maverick:
The torture he suffered has left him ashamed and withdrawn. Torture shames the victim. Shames him because he is rendered powerless, at the mercy of his tormentors; ashamed that he undoubtedly gave the police many of the answers they sought.
The preamble to this Bill reminds us of our shameful history of human rights abuses. The events that I have highlighted are no doubt just some of those that are actually still taking place today. We must not allow our country to revert to these horrific practices as part of daily life. We must not create any space for a torture culture to develop or thrive. Torture must be criminalised and the penalties enforced. The DA supports this Bill. [Applause.]