Llewellyn Smith v The Minister of Justice and Correctional Services, South Africa (third party intervention)
The five plaintiffs in this case are (1) Mr. Llewellyn Smith, (2) Mr. Xolani Zulu, (3) Mr. Benson Qibi,(4) Mr. Abel Phasha and (5) Mr. Mthokozisi Sithole.
The plaintiffs brought two separate civil claims against the Minister of Justice and Correctional Services for the actions of correctional officers employed by the defendant. The plaintiffs made allegations of torture and ill treatment, at the hands of these officers, during their time as inmates of the Leeuwkop Maximum Correctional Centre in Gauteng, South Africa.
In their first claim, all five plaintiffs alleged assault and torture by several correctional officers. This claim is based on an alleged incident that occurred in August 2014 during a search of the plaintiffs’ cell. The plaintiffs locked the cell door from the inside and were subsequently stripped of their privileges. The plaintiffs later refused to participate in a prisoner count, but eventually complied. Upon compliance, they were, according to them, assaulted and tortured by the offcers. Allegedly, this included, among other measures, beatings with batons, shocks with electric shock shields, attacks by dogs and repeated squatting in painful positions for prolonged periods of time.
In the second claim, the plaintiffs Mr. Zulu, Mr. Qibi, Mr. Phasha, and Mr. Sithole complained about their alleged unlawful detention in isolated segregation following the incidents giving rise to the first claim.
The plaintiffs claimed that the treatment they suffered not only constituted assault but rose to the level of torture as defined in the South African Prevention and Combatting of Torture Act 13 of 2013 (the Torture Act). This is the first occasion on which a South African court will be required to interpret and apply the Torture Act and the relevant international law in the context of a civil claim for acts of torture alleged to have been committed in South Africa.
REDRESS applied to be admitted as amicus curiae in December 2020, at which time REDRESS’ brief was filed. Leave to intervene in the case was granted on 17 June 2022.
The intervention was brought on grounds that, considering South Africa’s international obligations, the court is required to take into account regional and international law when interpreting the concepts of torture, and other cruel, inhumane and degrading treatment (CIDT). South Africa is a party to UNCAT, the African Charter and the Rome Statute, all of which contain provisions which explicitly prohibit torture and CIDT. The prohibition of torture and related violations is also enshrined in the South African Constitution, which guarantees to every person the right not to be tortured and not to be treated or punished in a cruel, inhuman or degrading manner. The Constitution also states that every court must interpret domestic law in a manner consistent with international law.
REDRESS’ intervention also addressed the historical context to the international and domestic prohibition on torture and CIDT; the elements of torture and CIDT; the evidentiary standards that apply in cases of torture; the distinction between permissible and impermissible use of force in detention settings; and the duties of the state regarding torture, particularly the duty to provide redress to victims.
Closing arguments in the case took place on 19 August 2022 and the judgement is currently pending.
Case name: Smith and Others v Minister of Justice and Correctional Services
Court/Body: High Court of South Africa, Gauteng Local Division, Johannesburg
Date on which the intervention was filed: 10 December 2020
Current status: Judgement pending
Legal representation: REDRESS, BOWMANS (REDRESS’ Solicitors acting pro bono), Gilbert Marcus SC, Chris McConnachie, Natalie Chesi-Buthelezi (REDRESS’ Counsel acting pro bono).