Policy on the Prevention of Torture and the Treatment of
Persons in Custody of the South African Police Service
The right not to be tortured is entrenched as a fundamental
right in Chapter 2 of the Constitution of the Republic of South
Africa, 1996 (Act No. 108 of 1996) which is the highest law of
the land. The fundamental right of an individual to be protected
against torture is widely accepted as a rule of international
law. With the signing of the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984) on 29 January 1993, South Africa explicitly
acknowledged the prevention of and protection against torture as
part of international law. By signing the Convention government
also undertook to work towards ratification and thereby binding
the State to adhere to the Convention. This requires government
to work actively towards the prevention of torture and to
protect people against any act of torture.
In terms of the Convention, every state that has signed it,
shall take effective legislative, administrative, judicial or
other measures to prevent acts of torture in any territory under
its jurisdiction.
This necessitated a re-evaluation of the treatment of persons
in custody of the South African Police Service, and the approach
of the South African Police Service towards interrogation
methods, detention, etc. By order of the National Commissioner
policy has been developed to ensure that torture and other forms
of cruel, inhuman or degrading treatment of persons in custody
of the South African Police Service, are prevented.
The Policy, adopted by the Service in this regard, is aimed
at -
- preventing the torture (including cruel, inhuman or
degrading treatment) of persons in the custody of the
Service; and
- protecting our members against false allegations of
torture.
This purpose is achieved by creating a system of checks and
balances throughout a person's custody in the Service. The
policy places certain obligations on members while they are
working with persons in the custody of the Service. These
obligations serve as controlling mechanisms to ensure that the
human rights of these persons are respected while they are in
the custody of the Service. At the same time, the system ensures
that the member and the Service will be protected against false
allegations of torture and ill-treatment of persons in custody.
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In order to ensure that a person in custody is duly informed
of his or her rights in terms of the Constitution, the Policy
provides that a person must be given a written notice setting
out his or her rights upon his or her arrival at the police
station. The written notice is contained in a Book called the
Notice of Constitutional Rights.
The instructions contained in the Policy necessitated that
the current Cell Register be amended to include the recording of
all actions taken by a member regarding the person in custody. A
Custody Register was developed for this purpose.
The Policy makes it clear that no member may torture any
person, permit anyone else to do so, or tolerate the torture of
another by anyone. No exception will serve as justification for
torture - there can simply be no justification, ever, for
torture. Any order by a superior or any other authority that a
person be tortured, is therefor unlawful and may not be obeyed.
The fact that a member acted upon an order by a superior will
not be a ground of justification for torture.
When the effects of an act of torture on the person subjected
thereto, the legal and other consequences thereof in relation to
the Service and the community and the importance attached to
protection against torture in the international community, are
considered, it becomes clear that any conduct by a member which
constitutes torture will be regarded in a very serious light.
It should be noted that the Policy Document does not deal
with pain or suffering arising from, inherent in or incidental
to, lawful use of force and is therefor not dealt with in this
Policy.
The Policy contains instructions, which will eventually be
incorporated into National Orders. Until this is done, it is the
responsibility of every station commissioner and other commander
to ensure that members under their command at all times adhere
to the instructions.
The Service calls upon all its members to once again commit
themselves to uphold our Constitution and to protect and respect
the fundamental rights of all persons. In so doing they will
contribute to building an effective police service which does
not rely on fear and physical force, but rather on honour,
professionalism and compliance with the law.
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