Gwénaëlle Dereymaeker and Dr Lukas Muntingh (University of the Western Cape)

Emerging from apartheid in 1990, South Africa embarked on an extensive law reform programme after the first democratic elections some four years later. The brutality of the apartheid regime was still fresh in the collective memory. The last years of apartheid saw a national state of emergency in place which granted the security forces unfettered powers with little oversight, resulting in the widespread use of torture and excessive force. Incommunicado detention and fatalities were common amongst those arrested for their opposition to the regime. The use of excessive force was also frequent in respect of common law suspects and prisoners, due to a criminal justice system driven by confessions and courts that were not questioning the origin of evidence.

After 1994, there were high expectations that the country would be a torch bearer in establishing a society characterised by its liberal constitution and Bill of Rights. The new South Africa would visibly be the antithesis of its predecessor. The first ten years of democracy saw rapid advances being made to dismantle the legal and institutional frameworks created under white minority rule. The Constitution afforded extensive rights and obliged the State to create a range of institutions to promote and protect democracy. This saw the creation of designated oversight institutions for the police and prison system. The first decade of democracy thus saw substantive structural advances being made to address torture and other ill treatment.

All the available evidence shows, however, that a gradual reverse took place approximately from 2005, and has resulted in an increase in the use of force by law enforcement and ultimately in the incidence of torture. This is attributed to a de facto situation of impunity created by a range of functional factors. Key amongst these are: poor political leadership and an increasing allergic reaction by the State to any form of accountability; the politicisation of key institutions (e.g. police and National Prosecuting Authority); a misdirected strategy to deal with high violent crime rate supported by provocative rhetoric from political leaders; poor training and weak enforcement of discipline in the police and prison system, and the lack of prosecutions against law enforcement officials for rights violations. The incidence of torture must furthermore be seen against the background that South Africa is a violent society. The South African case study clearly demonstrates the limits of law reform as a mechanism to reduce the incidence of torture and other ill treatment, and the relevance of broader societal and political factors in such incidence.