Looking at the video recording of the assault there is little doubt that the actions of the two police officers meet the prima facie requirements of the definition of the crime of torture.

[dropcap size=big]T[/dropcap]he assault with intent to grievous bodily harm case against former SAPS warrant officers David Gunn and Gerrit Januarie was postponed last week until August 18 2014. They were filmed by a member of the public when they brutally assaulted a Nigerian man and stripped him naked in a Cape Town street. Apart from the brutality involved as well as the arrogance of the two police officers, there are a number of disconcerting issues about the case.

The first is that the two officers, who are no longer in the employ of SAPS, respectively had 24 and 25 years of service with the police. Is this how police officers behave after they had been working for SAPS for 20 years under democratic rule? Have they been entirely untouched by the Bill of Rights and more specifically the minimum force requirement in the Criminal Procedure Act, or the absolute prohibition of torture in the Constitution? While they must be held to account for what they did, some of the blame must also be placed on the police leadership.

The fact of the matter is that SAPS management is reluctant to take disciplinary action against errant officials even when the Independent Complaints Directorate and the Independent Police Investigative Directorate (Ipid) recommended this. For example, of the 788 cases recommended by Ipid for disciplinary action in 2012/13, this was followed in 16.7% of cases. Criminal prosecutions against police officers are an even rarer event. Of the 545 cases recommended by Ipid for prosecution in 2012/13, this happened in 14.3% of cases. In the end only 27 police officers were sentenced to direct imprisonment, or 4.9%. It is the poor enforcement of discipline and weak management that creates the environment for Gunn and Januarie to behave in the manner they did.

The second issue of concern is the charge against the two former police officers. They were charged with assault to cause grievous bodily harm and not the crime of torture. In August 2013 (the clumsily named) Prevention and Combating of Torture of Persons Act (13 of 2013) came into force. The Preamble to the Act notes that South Africa “has a shameful history of gross human rights abuses, including the torture of many of its citizens and inhabitants” and that, as a country, we are “committed to the preventing and combating of torture of persons, among others, by bringing persons who carry out acts of torture to justice as required by international law”. The Act also defines, for the first time under domestic law, what the crime of torture is. In short, it results in severe mental and/or physical suffering; it is committed intentionally for such purposes as extracting information, punishment or based on any form of discrimination; it is committed by a public official or at the behest or acquiescence of a public official, and it excludes pain and suffering incidental to a lawful action.

Looking at the video recording of the assault there is little doubt that the actions of the two police officers meet the prima facie requirements of the definition of the crime of torture. At the risk of becoming too technical it must be noted that under international law as well as South African law that the prohibition of torture is absolute: there can never be any excuse for the use of torture. Not a state of war or a state of emergency or any other reason can be used as a justification for the use of torture. It is because of this absolute prohibition of torture and its status in law that it is essential to charge persons suspected of having committed torture with the crime of torture and not a lesser crime.

The South African legislation guides courts on factors to be taken into consideration when passing sentence for the crime of torture. For example, if the crime involved any discrimination against the victim, and if the victim was also the victim of a sexual offence (under the Sexual Offences Act) and if serious mental or physical harm was caused. The video recording clearly shows that the victim is beaten, then stripped naked and subsequently kicked in the groin area. This would constitute two offences of sexual violation under the Sexual Offences Act. The first being the unlawful exposure of the victim’s genital area and secondly, the unlawful contact between the victim’s genital area and any other part of the perpetrator’s body. There is thus a case to be made that the officers should not only be charged for the crime of torture but also for two sexual violations under the Sexual Offences Act.

The third issue of concern is that only the two police officials have been charged with assault to do grievous bodily harm. On the video three other individuals can be seen assisting the two police officials; two in day-glow bibs and the other without identifying them as members of the Central City Improvement District. They are thus also public officials. While they may not have landed any punches or kicks, there is no doubt that they were assisting the police and that they did nothing to stop the police from torturing the victim. They are accomplices to the crime of torture and should thus be charged accordingly.

The fourth issue is how the public has reacted to the incident. The persons recording the video are clearly shocked and disgusted at what they are observing and a number of comments posted on the EWN website also reflects this revulsion. However, there are a number of comments that appear to seek justification for the actions of the two police officials. Some commentators note that the victim deserved this treatment because he is Nigerian and others allude to the notion that he must have done something terrible and thus also deserved it. These views are not only contrary to what the law and Constitution requires, but they are morally reprehensible. Because a person comes from another country and may have done something bad, it is permissible for the police to strip him naked in public and kick him repeatedly in the groin?

After 20 years of democracy we have legislation criminalising torture and prosecutors need to use it to address the culture of impunity in law-enforcement agencies. If prosecutors need to be trained on the new legislation, then this must happen. In the long term it will only be to the benefit of the police when those officers who make themselves guilty of human-rights violations are punished in a manner that reflects the gravity of their crimes. The integrity of SAPS is in urgent need of repair work and prosecuting police officers implicated in torture and other violations will make a substantive contribution to restoring public faith in the police. Moreover, the sooner SAPS management realises that they are sitting with a systemic problem on their hands, the better. The case of Gunn and Januarie is not an isolated incident, there are many such cases but they are seldom recorded on video and its SAPS management’s responsibility to ensure that police officers are properly trained in the use of minimum force and the absolute prohibition of torture and when they break the law, that they are held accountable

Professor Lukas Muntingh is co-founder and project coordinator of the Civil Society Prison Reform Initiative, a project of the Community Law Centre at the University of the Western Cape.

Will we ever see police officers prosecuted for torture was first published on the 2nd July 1014 in the South African Mail and Guardian. Circus Bazaar has the rights to republish this opinion piece.