The South African Civil Society Information Service

If They Come for You, Who Will Speak Out?

By Jane Duncan · 8 Jul 2011

Picture: Open Clipart Image Library

The African National Congress’ (ANC) next elective congress is looming. Already, there are signs that President Jacob Zuma has lost the confidence of key constituencies in the ANC-led alliance, owing to indecisive leadership and his failure to re-orientate the state in a pro-poor direction. This growing disquiet among working class alliance members may well trigger a succession battle.

In response, the new elite clustered around Zuma could be tempted to fight back to retain power, using the same strategies that former president, Thabo Mbeki and his fellow-travellers used. 

Fractious leadership conflicts within the ruling party should be of concern not only to ANC members. If left unchecked, they are bound to spill over into broader society. In the case of the Zuma-Mbeki battle, several state institutions were compromised as Mbeki’s supporters manipulated them in an attempt to keep Zuma out of office, especially the security cluster.

When he first came to office, Zuma promised to rise above Mbeki’s dirty politics and unify the party. But there are worrying signs suggesting that his supporters may be employing the very tactics used by Mbeki to ensure Zuma a second term of office.

Dumisani Mahaye is an ANC activist from the township of Wesselton near Ermelo in the Msukaligwa Municipality. The Municipality falls in what is without doubt the most treacherous province in the country for activists with principles, namely Mpumalanga. 

Mahaye is a staunch Mbeki supporter. According to Mahaye, “Even a blind [person] can see that Zuma is not fit for office. The comrade is not disciplined. How can you have intercourse without protection? Everything that he has touched has had problems. He does not have what it takes.”

Mahaye maintains that he and other Mbeki supporters in the area are paying the price for having campaigned against Zuma, as they are denied opportunities, while Zuma supporters are rewarded with jobs and tenders. According to Mahaye, “In my ward we supported Mbeki, but when the Zuma camp won, that is when they suppress you. They sabotaged all comrades who supported Mbeki.”

The Msukaligwa Community Committee, which he and his comrades formed, allege that residents need to produce ANC membership cards to qualify for employment. They allege further that tenders are only available to ANC members and a mining trust established in the area is also controlled by the ANC, and those ANC members who are not in favour with the new ruling elite are unable to access opportunities. 

More specifically, the Committee alleges that a powerful ANC member linked to the current Premier, David Mabusa, controls deployment decisions in the area, starving Mabusa’s critics of resources. Furthermore, they allege individuals linked to Mabusa’s competitor for the Premier position in 2008, Lassy Chiwayo, as well as ANC Provincial Executive Committee member, Fish Mahlalela, have been marginalised. 

These grievances led to violent protests against the ANC-controlled council in February and Mahaye become the de-facto spokesperson of this struggle. 

After these protests, according to Mahaye, things took an ugly turn.

One night, he alleged that several armed policemen broke down the door to his house, saying they were looking for guns and petrol bombs. Mahaye said that in spite of the fact that they did not find anything, “They ordered me to lie down and pray, and after praying they said I must crawl to the car. In the car was someone who was involved in the protests who was beaten up to show directions. Both of us had to pray in the big van until we got to the police station.”

“Then they gave us to the Hawks and Intelligence. We went to the control room [in the police station]. The first person introduced himself [as being] from the Middleburg Hawks. Some were from Nelspruit and Polokwane. They wanted to know who was paying me to instigate the protests. I was told I was supplying petrol bombs and that I was buying drugs for people. I was told to make it easy for myself otherwise I will be tortured. I denied all of this. That was when the torturing started.”

Mahaye lay on the floor, demonstrating how they made him lie on his stomach. Some sat on him, he claimed, while others forced his arms back over his head to the point where he could not breathe. He also claimed that they then smothered his face with plastic, and dipped his face into water to stop him from breathing, and repeated these actions over and over again. 

According to Mahaye, “You feel that you are gonna die now. They make you say things that are wrong. Until I ended up admitting everything they wanted me to, that I made petrol bombs and was paid for the protests, that I was being paid by Lassie Chilwayo and Fish Mahlalela. I made five different statements about this. They tell you, we know what is going on. We are the Intelligence. You are paid by Bongani Phakati, Lassi and Fish. I was not the only one in the room. Thirty to forty people had been arrested. In each and every room you would hear screams.”

Mahaye was released several days after the alleged torture incident, by which time his injuries had almost healed. According to City Press journalist, Sizwe Sama Yende, who covered the Wesselton protests, other activists that were released at the same time complained of torture at the hands of the police. Sama Yende related, “Some said they were suffocated, others said they were kicked. Some were smothered with the tube [a piece of an inner tyre tube]. They were all asked the same questions. They were asked if they were linked to particular politicians.”

Sama Yende went on to explain, “The torture [of activists] has become quite common these days, especially in Mpumalanga. The police ask people political questions. They ask you, which faction do you affiliate to? [Former Premier] Matthews Phosa is one name that comes up often, as are Mahlalela and Chiwayo.”

Provincial spokesperson for the Mpumalanga SAPS, Captain Leonard Hlati, declined to comment on Mahaye’s claims as the matter was under investigation by the Independent Complaints Directorate (ICD). According to the ICD’s spokesperson, Moses Dlamini, they are investigating the case. He said that a complicating factor in Mahaye’s case is that he did not consult with a doctor immediately after the incident. 

It is unclear how widespread the phenomenon of political torture is beyond Mpumalanga. Activists from various social movements have alleged torture at the hands of the police in the past.

One of the most publicised cases in this regard took place in 2004, when several members of the Landless Peoples’ Movement (LPM) alleged political torture at the hands of the police and the Crime Intelligence Division. They lost the criminal case at Magistrate’s Court level and did not pursue a civil case. Last year community leaders and their families from the former KwaNdebele homeland alleged that they were interrogated by members of the Middelburg Serious and Violent Crimes Unit who – they claimed - suffocated them with refuse bags and kicked, punched and electrocuted them.

Yet according to Wits University Law clinic attorney, Peter Jordi, who specialises in civil torture claims, criminal suspects are the main victims of torture and not political activists, which implies either that political torture is not a widespread problem yet, or that political torture is a growing problem, but that this has not been recognised as such yet. Activists tend not to document police harassment, making it difficult to pinpoint trends with precision. However, the anecdotal evidence points to a problem.

According to Dlamini, South African law does not recognise torture as a discrete offence, but defined these cases as assault with intent to do grievous bodily harm. This means that statistics about the prevalence of torture are difficult to extrapolate. But according to Jordi, using anecdotal evidence from his own caseload, the use of torture in South African prisons has continued from the apartheid era, with a slight decline in the early 2000’s. But, according to Jordi, “Now it is happening all over the place. They are torturing people for nothing.” 

In a workshop on police torture in 2010, the ICD noted as one of its challenges the “code of silence and culture of cover-up prevalent in the police.” Dlamini conceded that it was extremely difficult to investigate torture cases. However, they dealt with this problem by using specialist investigators. 

Given what appears to be an upswing in torture of criminals, it should surprise no one if South Africa experiences an upswing in political torture as well. Activists need to be both forewarned and forearmed with information, so that they know what to do if this happens to them. 

The problem with torture cases internationally is that they are difficult to prove, especially criminal cases. The burden of proof differs between criminal and civil cases: in the former, the prosecution needs to prove beyond reasonable doubt that the torture took place, whereas in the latter, the judge decides on the basis of the less onerous test of the balance of probabilities. 

The two most common methods used by the police are electrocution and suffocation where a rubber tube, towel, plastic bag, or condom is placed over the head to stop the victim breathing. The victim’s head may also be placed in a bucket of water, which is consistent with Mahaye’s account. 

Electrocution is easier to detect afterwards, as muscle damage can be picked up in blood samples; but the instrument favoured by police to administer the shocks, the dynamo used to power landline phones, is difficult to come by now. As a result, suffocation is becoming more prevalent, which is much more difficult to prove as little physical evidence is left afterwards. 

An additional problem identified by Jordi is that the police who use torture have learned how to cover their tracks to prevent successful prosecutions. This is easier in criminal cases as the accused are aware of a pending case from the outset of the investigation and can therefore destroy evidence, whereas in civil cases, evidence can be assembled before the accused become aware that a case is pending. But victims need to act quickly and provide evidence within a week of the incident having taken place, as prospects for success taper off sharply after that. Medical examinations need to take place as soon as possible after the incident.

According to Jordi, the ICD rely on the police to undertake investigations into torture allegations, although they oversee the investigations. “You cannot rely on the police to investigate the police,” he stated. By collecting direct and circumstantial evidence quickly, Jordi has won many civil cases for his clients.

Criminal cases are also traumatic for the victims, who may not want to continue with a civil case if they lose a criminal case. The LPM members who alleged torture never pursued the civil case after they lost the criminal case for lack of evidence, as the criminal trial was simply too discouraging. Furthermore, the prospects of an adverse costs order – always a risk in a civil case – was another chilling factor. 

The ANC has a strong social democratic history; but it also has a history of intolerance of those who think differently in the liberation movement. Many ANC members have allowed this culture of intolerance to take root, failing to take individual or collective responsibility for the actions it has led to. Now it would seem that the chickens are coming home to roost. 

While all citizens must take a stand against political intolerance, ANC members have a particular duty to do so, if this intolerance begins within the ranks of the organisation. As insiders, they are more likely than non-ANC members to be privy to how intolerance develops and is practiced.

The ANC forms the culture and identity of millions of South Africans. As a result, it will dominate the political landscape for some to come, in spite of signs of fragmentation of its support. Yet in spite of its dominance and the complacency it may breed, ANC members must think beyond their own noses on the need for political diversity. 

It is in the long-term interests of each and every member to break the cycle of retribution against critics. Today, an ANC member may support a particular leader’s bid for the highest office in the ANC on the understanding that if that candidate wins, then the member will be rewarded with jobs and tenders. But tomorrow, if the member’s leader is deposed, then he or she may be subjected to the very treatment that those who fell out of favour were subjected to. This is an unsustainable way of running a political organisation; in time, the organisation will tear itself apart. 

Then there are the civic duties of all South Africans to mobilise against intolerance. Crime-weary South Africans must not turn a blind eye to ordinary garden-variety torture of criminals, as tomorrow it could happen to them if they fall foul of the law. An ‘eye for an eye’ mentality can allow a culture of torture to take root in the security apparatus, which will affect criminals and non-criminals alike, including political critics. 

South Africans should be especially concerned if specialist policing units like the Hawks and the “intelligence cluster” are manipulated to stifle dissent, which is why Mahaye’s allegations should be taken so seriously and investigated to their conclusion.

This week’s revelations by the Sunday Times newspaper that its journalists Stephan Höfstatter and Mzilakazi wa Afrika are being harassed by members of the security and intelligence cluster, is a clarion call to all citizens to demand transparency and accountability from this increasingly powerful part of government, which appears to be turning into the Praetorian Guard of the ruling elite. 

To adapt Pastor Martin Niemöller’s famous ‘First they came...’ poem: First they came for the dissidents in exile and put them in the camps, and I did not speak out, because I was not a dissident. Then they came for the ‘Zim-Zims’ with tyres and matches, and I did not speak out, because I was a ‘Warara’. Then they came for the LPM supporters with rubber tubes, and I did not speak out, because I was not an LPM supporter. Then they came for the Mbeki supporters with plastic and buckets of water, and I did not speak, because I was a Zuma supporter. Then they came for me, and there was no one left to speak out for me.

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