South African Court Decides in Favor of Torture Victims in First Case to Apply the South African Torture Act  

On 31 August 2023 the High Court of South Africa (Gauteng Local Division, Johannesburg) found the Minister of Justice and Correctional Services responsible and liable in damages for the torture inflicted by prison officials on five inmates of the Leeuwkop Maximum Correctional Centre in Gauteng.  

The incidents of torture happened on 10 August 2014 after one of the inmates in a communal cell jammed the cell door, preventing prison officials from entering. The inmates later refused to participate in a prisoner count, but eventually complied. However, after they complied, they were slapped, punched and kicked repeatedly, beaten with batons, given electric shocks, and forced to squat in painful positions. Some of the victims were also forced to undress, undergo anal examinations and defecate in front of prison officials. Subsequently, the victims were kept in solitary confinement.  

The five plaintiffs – Llewellyn Smith, Xolani Zulu, Benson Qibi, Abel Phasha and Mthokozisi Sithole – sustained severe physical and psychological injuries. They were represented in court by Lawyers for Human Rights. 

This is the first case in which South African courts applied the Prevention and Combating of Torture of Persons Act 13 of 2013 (Torture Act), adopted to implement the obligations derived from South Africa’s ratification of the United Nations Convention against Torture.  

Applying the definition of torture contained in section 3 of the Torture Act, the Court concluded that the treatment the inmates suffered amounted to torture. It also found that the solitary confinement suffered by four of the victims was unlawful, and the conditions under which they were kept in isolation were inhumane.  

The Court considered “the cumulative effects of the violations that the plaintiffs endured, including protracted and egregious assaults, humiliation, unlawful and inhumane segregation and the denial of timely and adequate medical treatment”, concluding that “[t]he assaults that were inflicted on [the victims] rose to the level of torture as defined in the Torture Act”. 

The Court also concluded that the injuries sustained by the victims were severe and included both physical and psychological harm.  

The decision found the Minister of Justice and Correctional Services liable for the harm caused to the victims, including for future medical expenses, the pain and suffering caused, the violation of the victims’ privacy, dignity, freedom of security of the person and psychological integrity, loss of amenities of life and past medical expenses.  

The Court noted that “[i]t is rather sad and disturbing that some of the events that took place during the dark days of Apartheid continue to take place in our beloved country at correctional facilities where some of the people in charge have learnt from their former masters about how to treat inmates who do not toe the line”.   

The Judge also stated that the fact that the victims “are convicted criminals does not prevent them to be treated like human beings and to deny them the protection afforded to them by our Constitution”, and that “[t]he fact that the perpetrators are high ranking officials does not give them the license to do as they please”.  

In deciding the case, the Court cited numerous international standards and jurisprudence relevant to the examination of torture claims. During the case, REDRESS intervened as amicus curiae, arguing that South Africa’s international obligations required the Court to take into account regional and international law when interpreting the concepts of torture, and other cruel, inhumane and degrading treatment. The Court’s decision acknowledged REDRESS’ intervention. 

REDRESS Legal Advisor, Julie Bardèche, said: 

“This is a win for victims of torture in South Africa and a historic precedent by which South African courts are fully implementing the Convention against Torture’s obligation to investigate torture effectively and to provide redress to victims”.  

REDRESS would like to acknowledge the support received in this case from BOWMANS (REDRESS’ Solicitors acting pro bono), Gilbert Marcus SC, Chris McConnachie, and Natalie Chesi-Buthelezi (REDRESS’ Counsel acting pro bono), as well as the pro bono team at Three Crowns assigned to the case.  

More information about the case can be found here.  

For media inquiries, contact REDRESS’ Head of Communications, Eva Sanchis, at [email protected] or +44 (0)20 7793 1777.