Country Report on Human Rights Practices for 1992
SOUTH AFRICA
In 1992 South Africa continued to be ruled by a parliamentary-style government
characterized by the domination by the white minority (13 percent of the popu240
lation), the partial parliamentary participation of the "coloured," i.e., mixed race (8
percent) and Asian (2.6 percent) minorities, and exclusion of the black majority (75.5
percent) from the formal political process. However, the multiparty Convention for
a Democratic South Africa (CODEJSA), which met from December 1991 to June 1992
to lay the groundwork for an interim government and the drafting of a new constitution,
set South Africa on a new poutical course. The National Party, presently
led by State President de Klerk, has formed every national (jovenunent since 1948.
In May CODESA deadlocked because participants could not reach consensus on
a package of agreements that would have allowed the installation of an interim government.
The African National Congress (ANC) suspended its participation in
CODESA following the June 17 Boipatong massacre, demanding, among other
things, that the (government take steps to curb violence, secure hostels, release remaining
"political prisoners," and agree to a democratically elected constitutionmaking
body. Pendmg implementation of these demands, the ANC limited discussions
with the Government to a dialog between a senior ANC official and a government
minister.
After several months of this limited communication, coupled with domestic and
international pressure, the Government and ANC signed a September 26 "Record
of Understanmng," which the ANC accepted as sufficient progress on its demands
to justify a return to constitutional ne^tiations. At year's end, senior (jovemment
and ANC negotiators met in wide-rangmg, substantive bilateral discussions to clear
obstacles to the resumption of multilateral talks. Follow-on bUaterals were scheduled
for January 1993; no date had been set for the resumption of more inclusive
multiparty negotiations.
According to 1990 census information, 33 percent of South Africa's black population
resides in the 10 ethnic homelands, which comprise 13 percent of South Airica's
area. The (lovemment mainttdns that 4 of the 10 homelands are independent.
The homelands, heavily subsidized by the Government, are mostly fragmented parcels
of territory in impoverished rural areas. No other government besides South Africa
recognizes the sovereignty of the four supposedly independent homelands.
Transkei, Ciskei, and Venda are ruled by military governments which gained power
by coup d'etat; Bophuthatswana is governed as a one-party state. Authorities in
Bophuthatswana and Ciskei, in particular, continued in 1992 to suppress free political
activity, particularly by the ANC.
White control of the Government is backed by a powerful defense and police establishment.
The South African Defense Force (SADF) has about 85,000 active duty
personnel, approximately 50 percent of whom are black, Asian or "coloured," and
291jOOO reservists, aU of whom are white. The multiracial South African Police
(SAP) numbers 112,(X)0 and is 40 percent white. The SADF assisted the police in
Satrolling unrest areas and continued to be active in responding to the violence in
fatal and the Trsmsvaal during 1992. New security laws in 1992 aimed at stemming
political violence, drug trafficking, and other crimes gave the police and attorneys
general significantly widened powers of detention and infringement of privacy;
these laws were widely criticized as excessive.
The Goldstone Commission and other official investigations uncovered misconduct
by the state security forces in 1992. The most publicized wrongdoings included evidence
that the SADF had hired Ferdi Barnard, a convicted murderer and former
member of the SADF's Civil Cooperation Bureau (CCB), to recruit or criminally
compromise members of the ANC's military wing, Umkhonto We Sizwe (MK), during
1991. In a separate incident, two SADF militaiy intelligence agents in London
attempted to discredit the ANC by gathering and feeding information to journalists
about alleged links between MK and the Irish Republican Army and the Palestine
Liberation Organization. One of those agents was implicated in an attempt to murder
Dirk Coelzee, an exiled, former captain of the South African Police (see Section
l.a.).
Opposition groups continued to allege in 1992 that security force members, operating
with or without orders from superior officers, engaged in various forms of violence
(e.g., train massacres, assassinations) aimed at weakening the ANC and its
allies. The revelations uncovered by the Goldstone Commission in 1992, along with
past findings of misconduct, such as those revealed by the 1990 Harms Commission
inquiry of the CCB and the 1991 findings of covert government funding to the
Inkatha Freedom Party (IFP), further undermined public confidence in the neutrality
of the security forces.
President de Klerk has reduced military spending and, in strengthening civilian
control, reduced the security establishment's role in domestic and foreign policymaking.
In 1992 he took a number of steps in an attempt to restore confidence in
the neutrality of the security forces, which included disbanding the CCB and two
other security units. His most publicized move came in December, when he an241
nounced the compulsory retirement of 16 SADF officers, including 2 generals and
4 brigadiers, and suspended 7 others. He revealed that an internal SADF investigation,
prompted by findings of the Goldstone Commission, had uncovered evidence
that these officers were engaged in activities aimed at preventing a successful negotiations
process. In August ne also took some steps to reform the police by establishing
a nominally independent body to investigate criminal allegations against the police,
decentrahzing some law enforcement functions, implementing new training
methods, and retiring 18 high police officials. In addition. President de Klerk had
legislation enacted granting amnesty to persons committing political crimes.
A number of nongovernmental, paramilitary oi^^anizations within South Africa
continued to influence considerably the human n^ts and political environment.
These included: MK, which has suspended armed struggle but continued to recruit
members and train them outside South Africa; the banian People's Liberation
Army (APIA), the armed wing of the Pan-Africanist Congress (PAC), which has
claimed responsibility for attacks on police and civilian targets; and the Afrikaner
Resistance Movement (AWB), the only rightwing paramilitary organization known
to have a sizable following which claims to be preparing for the day when it will
defend Afrikaners against ^lack domination."
On the economic side, South Africa has a well-developed formal sector based on
mining and manufacturing and a smaller, but important, sector based on agriculture
and services. Despite its free market ideology, South Africa has a mixed
economy, with substantial government intervention existing jointly with a strong
private sector. Suffering from a lengthy recession, the economy has created no new
jobs in the productive sectors in the past 10 years, and real per capita income
among all races has declined. Unemployment among blacks is estimated at 40 percent
nationwide; 350,000 new jobseekers of all races entered the maiket this year.
Although the Government has increased spending on blades in recent years, major
economic and social reform will be required to reduce continuing income disparities
and to redress the socioeconomic legacies of apartheid in such areas as education,
housing, and health care. Human rights groups estimate that 7.5 million black
South Africans have no permanent shelter and contravene the Illegal Squatting Act.
Despite the National Peace Accord, signed in Septenober 1991 by State FVesident
de Klerk, ANC President Mandela, and IFP Chief Minister Buthelezi and 23 others,
crime and political violence remained at a high level in 1992. Most observers a^'eed
that all parties—including the ^vemment security forces, the ANC, and the WP—
bear some measure of responsibility for the continuing pattern of violence. According
to the Human Rights Commission (HRC), 3,324 people had died from political violence
by the end of November.
Although the Government has repealed the broad legal pillars of apartheid, the
majority of South Africans remain disenfranchised, ^uth Africans who are not
white continue to face de facto discrimination, restrictions on due process rights,
and deprivation caused by generations of social, economic, and other legally enforced
inequalities. Positive developments in the area of worker rights continued in 1992,
but little, if any, effort was made to address legal and societal discrimination
against women.
RESPECT FOR HUMAN RIGHTS
Section 1. Respect for the Integrity of the Person, Including Freedom from
a. Political and Other Extrajudicial Killing.
South Africa continued to experience
high levels of political violence in 1992, which resulted in an estimated 2,924
deaths, according to the South African Institute of Race Relations and 3,324 according
to the HRC, both by the end of November. These figures represent an increase
from 1991 and are part of a marked escalation of violence that has occurred since
June 1990. According to police statistics, 226 police died in unrest incidents in 1992,
some of them in ambushes while responding to calls for help from township residents.
The Goldstone Commission recently concluded that the largest single cause of political
killings was the confrontation between groups claiming afliliation with me
ANC and IFP. Another major cause of deaths was random attacks by unknown terrorists.
Evidence of acts of political violence by individuals attached to the militaiy,
police, and homelands police also continued to emerge in 1992. Other groups which
contributed to the high level of violence and extrajudicial killings included APIA,
rightwing groups, local self-defense units (SDLTs), criminal gangs loosely affiliated
with political parties, and undisciplined labor strike enforcers.
The ANC and various human rights oi^ganizations have charged high officials in
the military, the police, and the homelands police with involvement in covert "destabilization"
activities. In December President de Kleik compulsorily retired 16 SADF
officers, including 2 generals and 4 brigadiers, and suspended 7 others. His decision
came after an internal SADF investigation, prompted oy findings of the Goldstone
Commission, revealed that these officers were engaged in activities aimed at preventing
a successful negotiations process. The extent of these activities is not yet
known.
The Goldstone Commission cited significant failures on the part of the miUtary
and police in responding to violence, as well as "well-documented criminEd conduct
by individual members of the South African Police and the KwaZulu Police."
For example, following an April incident at the Phola Park squatter camp near
Johannesburg, the Goldstone Commission found uncontested evidence that members
of SADF's 32 Battalion returned to the camp and committed "unspecified acts of violence"
after some SDU members fired on SADF personnel. The Commission recommended
that the Attorney General investigate alleged acts of assault, rape, and
murder by the security officials. The Commission also found that the 32 Battalion
was an inappropriate force for internal policing. State President de Klerk announced
on July 15 that the Government would begin to disband the 32 BattaUon. At the
end of 1992, however, individual members had yet to be charged with any crimes
stemming from the Phola Park incident.
President de Klerk also announced he would reopen the inquest into the deaths
of several eastern Cape activists. In May Transkei homeland leader Bantu Holomisa
leaked to the press a 1985 top secret military intelligence document in which the
current chief of miUtary intelligence requested the "immediate removal from society"
of several eastern Cape activists, who were murdered 2 weeks later. Although officials
confirmed the document's authenticity, the Government denied further allegations
that the State Security Council had approved the murders. State President de
Klerk was a member of the Council at the time of the alleged incident. At year's
end, the government-run inquest had released no findings, and the chief of miUtary
intelligence remained in his position.
The 1990 Harms Conunission implicated the CCB in at least two murders of
antiapartheid activists. Former police captain Dirk Coetzee testified before the Commission
that police forensic chief Lieutenant General Lothar Neethling furnished
poison to police operatives targeting antiapartheid activists. Coetzee's testimony apparently
precipitated the March 1991 killing of Bheki Mlangeni, who was killed by
a bomb intenaed for Coetzee. In April 1992, British officials arrested two SADF
agents in London on suspicion of setting up another assassination plot against
Coetzee. The SADF, denying the agents were acting under orders, fired one of the
agents for acting "outside the instructions given by the SADF," but only after the
incident became public 3 months later. The two agents were to be subpoenaed to
appear in the Mlangeni inquest.
The lack of convictions in the many cases of unsolved, political murders prompted
accusations that the police were unwilling to pursue those responsible. The
Goldstone Commission called attention to the deaths of two people associated with
witnesses to the Commission. Evidence arose of targeted deaths of other "jpeacemakers"—
mostly members of local dispute resolution committees in strife-torn
areas. In addition, Jan Shoba, a PAC and APLA organizer, was murdered in the
otherwise peaceftil Pretoria township of AtteridgeviDe in June. In another suspicious
set of murders, returned exile Rangwani Lifiedi was murdered in March, and 3
months later 8 members of his famify were murdered. No one has been charged in
any of these deaths.
After signing of the National Peace Accord in September 1991, the police formed
a special investigating unit to look into violence-related crimes and allegations of
police wrongdoing. The Accord called on the police to be more responsive in investigating
allegations of misconduct. A British poUcing expert working under
Goldstone Commission auspices found that the police had little public accountability
and generally inadequate skills to investigate unrest-related incidents. In his otherwise
very negative report, the official did find that the unit's inquiry into allegations
of police involvement in the Boipatong massacre had been "thorou^, well-manned
* * * well-led, and properly structured." The unit had not made its findings on
Boipatong public at year's end.
Homeland police have been involved in a number of violent incidents. According
to Black Sash, Democratic Party members who monitor violence, and others in
Natal, the KwaZulu police (KZP) have been actively involved in campaigns against
residents they perceive to be ANC-affiliated. According to the HRC's Natal regional
office, in August uniformed KZP members fired on residents and torched homes in
Malukazi, kuUng 5 people and destroying 40 homes. There were also allegations of
KZP involvement in attacks in Folweni, Adams Mission, Esihaweni, and
Umzinyathi in Natal. The Legal Resources Centre requested the Goldstone Commis243
sion investigate the alleged role of the KZP in the political violence; at year's end
it had not done so.
In Ciskei, the Ciskei Defense Force (CDF) on September 7 fired on ANC marchers
near Bisho, killing 29 and iniuring hundreds. The uoldstone Commission found that
the CDF's conduct was "deliberately aimed at causing as many deaths and iiyuries
as possible." The CDF fired a total of 425 rounds of ammunition and 4 grenades
at uje retreating crowd. Some of those shot were on the South Africam side of the
"border." Goldstone termed the CDFs claim that it was fired upon first by demonstrators,
"false or...highly exaggerated." Of the 29 people killea, 15 were shot in
the back, according to an independent pathologist (see also Section 2.b.). The Commission
also criticized ANC leaders for poor organization, for inadequate use of the
Peace Accord monitors present at the march, and for leading the marchers into unnecessary
danger.
In 1992 a number of court cases revealed evidence of police involvement in foblack
constables were each sentenced to 15 years' imprisonment. The court found
evidence that the captain worked closely with local Inkatha leaders to plan the attack.
A judge also found evidence of a mgh-level police coverup in the investigation
of the massacre. The police will conduct an inquiry of the initial police investigations
into the massacre.
The continued deaths of people in detention further undermined police-community
relations. In 1992 more than 100 people died while in police custody, according to
the HRC. This issue came to public attention in July, when Dr. Jonathan
Gluckman, a leading independent pathologist, called the police "out of control," and
asserted that 90 percent of the 200 cell death cases he investigated were due either
to police negligence or misconduct. In December Law and Order Minister Kriel publicly
repudiated Gluckman's broad allegations of police misconduct, claiming that a
police investigation found Gluckman's statistics erroneous. Gluckman has affirmed
his chai;ges regarding police misconduct.
Following (^uckman's allegations, deaths in detention continued at a slightly
higher rate than before, although one law enforcement expert noted that reporting
had increased and previously ignored cases were being featured in the press. In response.
Law and Order Minister Kriel promised in August to appoint retired magistrates
to inspect prison conditions. In October the Government gave permission to
the International Committee of the Red Cross (ICRC) to make unannounced visits
to detainees in police stations throughout South Africa, including those in the homelands,
which have ostensibly separate police forces. The agreement allows ICRC delegates
to meet detainees and prisoners alone, make repeat visits unannounced, and
pass their findings on police cell conditions to higher government officials. Investigations
of previous years' deaths continued.
In some instances police have been prosecuted for abuses. For example, in 1992
two police officers were found guilty in the August 1990 cell death of suspected car
thief Johannes Theme. At year's end, an investigation into deaths in Welverdiend
police custody found two policemen criminally responsible in one case. The case had
been forwarded to the Transvaal Attorney General for a decision. In December a
Natal court found a police warrant officer guilty of murdering an ANC member and
attempting to murder another, sentencing nun to 18 years' imprisonment. The presiding
judge sharply criticized the police investigating officer for "neglecting his honesty,
due to "misplaced loyalty" to another officer. m other instances the security forces have been cleared of charges. For example,
an inquest cleared the security forces of allegations of an assassmation operation
against head chief Mhlabunzima Maphumulo of the Congress of Traditional Leaders,
his stepfather, and his driver. In another instance, the Supreme Court rejected
an individual's claims that he was a member of a security forces hit squad. Overall,
the number of prosecutions of police for unlawful killings and other abuses compared
to the suspected incidence of such offenses was very low.
A major factor in the countiVs high death toll from political violence in 1992 was
the ongoing rivaliy between affiliates of the ANC and the IFF. This sometimes took
the form of fighting between hostel residents, usually but not always affiliated with
the IFP, and squatter camp/township residents, seen to be ANC supporters. Most
of the violence occurred in the Natal region and the greater Johannesburg area. According
to the HRC, internecine fighting in the Natal region claimed the lives of
1,279 people by the end of Novem&r. In the Johannesburg area, two of the deadliest
examples of internecine fighting were the hostel massacre in Boipatong and the
"war" between hostel and township residents of Alexandra. In Natal cycles of revenge
killings and targeting of IFP and ANC officials continued.
The worst single attack on civUians occurred on June 17 in Boipatong township
(an area of ANC support). In less than an hour at least 100 men roamed from house
to house, indiscrinunatelv killing 49 residents. Police said the attackers came fiiom
the nearby Kwamadala hostel, home to IFP members who had been driven out of
another local hostel. At the end of 1992, the Goldstone Commission had made no
findings on allegations of security force involvement in the massacre.
Over 500 IFP members were killed in 1992, according to the Inkatha Institute.
The ANC reported nearly 400 of its followers were killed bv the end of November.
In some cases a chain reaction of retaliatory attacks in which political leaders of
comparative importance were tai^geted for death seemed to occur. In March a cycle
of violence between Alexandra hostel and township residents resulted in the deaths
of dozens of people and made homeless hundreds more.
Similar cycles of violence, in which local or personal grievances are enlarged to
include political and socioeconomic rivalries, have been especially deadly in Soweto,
Sharpeville, Sebokeng, Thokoza, and parts of Natal. Murder bv necklacing" continued
to be an element of the ongoing factional violence. (Necklacing is setting fire
to a gasoline-soaked tire wedged around a person.) In some cases ANC-afBliated
youths carried out summary murders by nedclacing or battery against alleged IFP
supporters or government informants.
Tnere have oeen allegations that South African and homelands police played a
role in inciting the continuing cycle of black-on-black violence. Witnesses claimed
they saw merdiers of the KZP at the killing of nine ANC members in September
ana that a KZP van blocked an injured resident's way to the hospital. On the south
coast the following day, gunmen in military uniforms attacked a van of IFP supporters
on their way to work, setting fire to tne van and killing 8 people. According to
the Inkatha Institute, the van's driver was a well-known IFP supporter. The massacres
seem to be a well-coordinated effort by unknown forces to stoke violence in
the area.
Former ANC-held detainees, accused by the ANC of spying and treason, claim the
ANC has instructed assassins to eliminate members of tne Returned Exiles Committee
(REC). The group claims an ANC "hit squad" killed Bongani Ntshangase, a
former detainee in Natal in June.
In 1992 a number of deaths resulted from labor unrest and labor-led political
demonstrations, some of which were aimed at curtailing the violence. The largest
trade union in South Africa, the ANC-allied Congress of South African Trade
Unions (COSATU), was a leading organizer of many of the demonstrations. According
to the police, in a nationwide health workers' strike from June to September,
30 people died in 16 different attacks, probably due to failures on the part of the
miUtary and police in preventing violence by strikers against perceived strikebreakers.
Workers afidUated with Qie "IFP" umon, the United Woikers of South Africa
(UWUSA), were used as strikebreakers during the COSATU-sponsored strike.
Attacks on nonstrikers and their families, in the form of petrol bombs and
shootings, resulted in the deaths of nurses, shop stewards, unionists, and a 4-yearold
child.
Many additional groups and organizations were accused of or implicated in fomenting
violence in 1992. For example, in November and December, APLA claimed
responsibility for a series of attacks on white civilians that left five people dead.
APLA sdso publicly "ordered" the killings of police as "political tar^ts. Of the 226
police killea in 1992, it was not known how many deaths could oe attributed to
APLA.
Two rightwing politicians allegedly committed terrorist acts during 1992. Former
Conservative Party Member of Parliament Koos Botha and four members of the
rightwing AWB admitted to the January bombing of two post offices and to the July
1991 bombing of a school that returning ANC exile children were to attend. In a
separate incident, a Conservative Party local official was among those charged with
detonating a limpet mine injuring nine people on April 9 at a Johannesbui^ fair.
A fringe rightwing organization known as the Order of White Wolves claimed responsibility
for the explosion.
Terrorist-style attacks by unknown persons on train commuters in the Johannesburg
area, which began in August 1990, continued to claim lives and property in
1992. The police reported 363 train attacks and 173 related arrests through the end
of October. According to the independent board of inquiry, 231 people had died in
train violence by the end of October. The report by the independent board of inquiiy
on train violence found that victims were not targeted by political affiliation or ethnicity
but instead covered the "entire spectrum of olack commuters."
Many township youths, especially in the Transvaal, have formed well-armed selfdefense
units (SDtTs), allegedly to protect residents from outside attack. SDU's have
been accused of acts of intimidation, such as demands for "protection money" from
local shopkeepers, common crimes, such as car theft, and vigilante-style murders of
suspected "inwrmers" or Inkatha sympathizers. The MK created many SDlTs, while
others are loosely aflUiated with the South African Communist Psu-ty (SACP).
Former MK chief Chris Hani said the ANC has tried but is unable to control certain
SDU's that have branched into crimintd activities.
A former KwaZulu official testified to the Goldstone Commission that the KZP
fave weapons training to a youth gang in the eastern Transvaal town of Ermelo in
990. The gang later bombed the oflice of an ANC-linked attorney and fired on the
funeral of an ANC member, killing one person, allegedly on orders of a man who
carried both SAP and KZP identity documents. The official charged that the same
policeman who had given the gang its instructions also investigated the bombing,
and the gang leader was the Inkatha Youth Brigade chairman in the town.
b. Disappearance.
^There were no known cases of antigovemment activists disappearing
in 1992. The Goldstone Commission found prima facie evidence to investigate
two policemen in the western Transvaal on char:^es of kidnaping a local ANC
leader in December 1991. The ANC leader, Jerry Mame, was returned unharmed
and later gave statements to the media and the Goldstone Commission. Onlv after
6 months, and following a public statement by Justice Goldstone expressing nis impatience,
did the Attorney General recommend the case for trial. However, by December
1992 the trial had yet to convene.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
Court testimony and sworn affidavits support claims oy lawyers and human rights
activists that torture of detainees occurred in 1992. Alleged perpetrators include
members of the South African police and homelands police. Allegations of torture
in ANC prison camps in Angola, Tanzania, and Uganda during the 1980's were detailed
in a 1992 report by Amnesty International and have been acknowledged by
ANC President Nelson Mandela. For the most part, leaders of these organizations
failed to identify individuals responsible and did not pursue legal actions to the end.
There are no constitutional or statutory provisions against torture, in part because
the current Constitution has no biU of^ rights. The Government, however, has
stated that torture is not its policy and that, in cases where it has occurred, it was
in contravention of official guidelines and regulations.
In cases involving the police, a white South African alleged that the South African
police beat him and gave him electric shocks while interrogating him on a murder
charge. A 19-year-ola detainee in Pinetown was hospitalized for severe bums after
police officers allegedly "necklaced" him. The officers were standing trial at year's
end. In one case involving the homelands police, a Malawian woman claimed that
a Bophuthatswana police constable raped her while she was imprisoned in a police
station. Bophuthatswana human rights lawyer Patrick Huma suffered a broken arm
while allegedly being beaten in detention. Huma has reportedly received death
threats from the Bophuthatswana police.
In October upon release of the findings of an ANC-sponsored investigation, the
ANC acknowledged that detainees in its military camps had been tortured during
the 1980's but did not identify or recommend action against the individuals responsible.
In November the ANC appointed three persons to an independent panel to
recommend punishment for the individuals responsible. The commission is to begin
work in January.
A December 1992 Amnesty International report found that 70 prisoners died of
abuse and hundreds more were executed in ANC camps over the course of a dozen
years. ANC detainees have claimed they were put in solitaiy confinement for long
periods of time, beaten, and interrogated. Despite 1991 assurances by the ANC that
it held no more prisoners, Anmesty International said it was aware of the continued
detention of six prisoners at Dakawa camp in Tanzania. Amnesty also said it interviewed
former prisoners released during 1992 from other camps in Tanzania.
Prison officials occasionally use court-ordered whipping and deprivation of meals
to punish minor offenders. Prisoners with certain political affiliations alleged harassment
and denial of medical attention. Since July 1991, the ICRC has had access
to all inmates in South African and homeland prisons and can report substandard
prison conditions.
d. Arbitrary Arrest, Detention, or Exile
Several laws provide for detention without
charge if; in the opinion of a designated official, the person may commit an unlawful
act. The Public Safety Act authorizes detentions for up to 30 days "if necessary
for combatting or preventing public disturbance, disorder, riot, or public violence
or the maintenance or restoration of public order." The Internal Security Act,
as amended, allows senior police officers to detain and interrogate persons suspected
of terrorism or subversion or who withhold such information. After 10 days' detention,
continued incarceration requires judicial approval. According to Lawyers for
Human Rights (LHR), the police generally do not mock access to detainees.
According to HRC statistics, in 1992 the number of detentions in South Africa increased,
desmte a significant decrease in detentions in the so-called independent
homelands. The HRC reported that, as of November 30, the Government nad detained
227 people at one time or another under regulations applicable to unrest
areas as detailed in the Public Safety Act. During the first 7 months of the year,
an additional 48 persons suspected of terrorism were detained under the Internal
Security Act.
The Criminal Law Second Amendment Act (CLSAA) of 1992, described by the
Ministry of Justice as a "declaration of war against violence," along with other laws
aimed at stemming political violence, drug trafficking, and other crime, gives the
police and attorneys general significantly widened powers. Many observers criticized
these extraordinary powers as running counter to a rule of law culture and being
susceptible to abuse. The CLSAA shifted the customary burden of proof from the
State to the accused and criminalized the vague offense of "indirect intimidation,
while increasing sentences up to 25 years for certain intimidating acts. The CLSAA
also allowed special, shortened procedures for offenses involving violence and intimidation
and granted wide powers to the attorneys general to deny bail in such cases,
with no judicial review.
At the end of 1992, the HRC believed no persons were being detained under security
legislation in the homelands. The HRC reported the following total numbers of
detainees during 1992 for the homelands: Transkei (5), Bophuthatswana (26), Venda
(0), and Ciskei (120). In December the Bophuthatswana authorities announced a
general amnesty for prisoners with remaining sentences of between 6 and 18
months. In December the Transkei authorities announced they would reduce the
sentences of all their prisoners by 6 months.
In many cities, street children are arrested and sent to adult prisons while they
await trial. While some children are arrested on criminal charges, many are arrested
on petty charges, such as loitering. These children are often hela in overcrowded
cells and suffer physical and sexual abuse. Most prisons have no educational
or counseling facilities. The prison service reported in late 1992 that 2,656
children under 18 awaited trial in adult prisons countr3rwide.
e. Denial of Fair Public Trial
The South Africanjudiciary is headed by the appellate
division (Court of Appeals) of the Supreme Court in Bloemfontein and six
regional supreme courts. The appointment of the countrjr's first judge not from the
white minority occurred in 1991. Judges, appointed by the State President, serve
until age 70 and may only be removed through impeachment by Parliament. By tradition
judges of the appellate division and the supreme courts are chosen from the
senior ranks of the elite corps of South African Supreme Court practitioners ("advocates").
A March survey found about 50 black advocates, 3 of whom were "senior"
advocates. The power of the judiciary at all levels continues to be circumscribed by
the principle of parliamentary sovereignty, under which judges possess no authority
to alter, strike down, or refuse to enforce laws of Parliament.
South Africa has an adversarial system of criminal justice drawn from a mixed
heritage of Roman-Dutch and English jurisprudence. Lesser offenses are heard by
magistrates, career employees of the executive branch civil service. More serious offenses,
including capital crimes, are tried in the supreme courts. TTie presiding
judge or magistrate determines guilt or innocence. Juries were abolished in 1969.
Judges in capital and other serious cases may appoint two assessors, who serve as
fact finders and have the power to overrule the judge on questions of fact but not
on questions of law.
Persons chai^ged with common crimes are presumed innocent until proven guilty,
although Parliament has modified the general presumption of innocence for many
security offenses (as reflected in the new Criminal Law Second Amendment bill discussed
above). Both security-related and common criminal cases are tried in civilian
courts.
Although defendants in criminal cases may retain legal counsel, a 1990 study
found that 85 percent of those convicted in ormnary criminal cases had no representation.
The concept of public defense was significantly boosted when a widely representative
group, comprising members of the government-supported legal aid board
and all major legal organizations, met to develop such a system. A pilot public defender's
program began in Johannesburg in 1991 and has been highly successful.
Plans are underway for similar demonstration projects. As a matter of practice,
courts usually appoint counsel for capital cases when the defendant cannot afibrd
a lawyer.
Prospects for law school graduates to receive "articles of clerkship," which qualify
them for admittance to the bar, were enhanced in 1992. Currently, the only way
to receive articles is through a 2-year apprenticeship with a law firm. This sjrstem
has minimized opportunities for blacks to advance in the profession, thus contributI
ing to perceptions that South Africa has a "white" system of justice. In 1992 the
Association of Law Societies proposed new routes of entry into the profession, including
credit for work at offices of public defenders, university law clinics, and
similar community-based entities which offer legal assistance to indigent clients.
The Govemment-ANC Pretoria Minute of August 1990 included an ag^ement to
release political prisoners and grant indemnity for nonprisoners convicted or suspected
01 political ofTenses (mostly exiles). A continuing dispute over the interpretation
and implementation of that arrangement contributed to a September 1992 Govemment-
ANC agreement that political motivation would be the sole criterion in assessing
a prisoner's eligibUihr tor release. This led to the immediate release of 153
prisoners endorsed by tne ANC—including some who had been responsible for multiple
civilian deaths—and the establishment of Govemment-ANC case-by-case review
procedures for the purpose of further releases after November 15. m a move
from which the ANC disassociated itself, the Government also released a white prisoner
who had been convicted of randomly killing eight blacks on the streets of Pretoria.
In October the Government submitted to Parliament the Further Indemnity BUI,
allowing persons to apply without public disclosure for indemnity from prosecution
for politically motivated crimes. After Parliament rejected the proposal, tne Government
referred the provision to the President's Council, an infrequently used mechanism
with questioned legitimacy, for final passage (see also Section 3). Since most
ANC members have already gone throusdi an indemnity process—during which their
ofTenses were publicly disclosed—the bill was widely seen as protecting the security
forces.
So-called people's courts, which emerged in part due to the black community's distrust
of the existing court system, continued to operate but at a reduced level. A
human rights lawyer said that these tribunals pass judgment on criminal charges,
such as rape (for which the punishment is often whipping), or political charges, such
as acting as a police informer (which may result in a death sentence, carried out
by the community). The courts are headed by mostly self-appointed community leaders.
The system is very vulnerable to false rumors oased on political or person^ rivalries.
Women, in particulfir, have been tried for witehcraft.
f. Arbitrary Interference with Privacy, Family. Home, or Correspondence.—At the
end of its 1992 ordinary session, South Africa's Parliament adopted the Interception
and Monitoring Prohibition biU, whereby an attorney general or judge may authorize
the security forces to tap telephones, bug rooms, and intercept maU. Permission
to use these methods may be sought verbally by police, defense force, and national
intelligence service officers, who must demonstrate that an offense has been or is
being committed and cannot be investigated in any other way.
The new law gives the State significantly widened powers to interfere with correspondence
ana privacy. It empowers agents to enter premises at any time to install,
medntain, or remove a monitoring device. Surveillance is supposed to be used
only for serious crimes, such as treason, sedition, public violence, murder, kidnaping,
and theft. Opposition parties objected to the legislation, claiming it was rushed
through Parliament without proper debate and noting the absence of a requirement
forjudicial scrutiny over such intrusive surveillance.
Pblice are free to make searches, seizures, and arrests without warrants in all
"unrest areas," as designated by the Minister of Law and Order. In fact, according
to human rights lawyers, warrants are unusual for any search and seizure in black
homes, whether in designated "unrest areas" or not.
Insufficient housing nas resulted in an increased squatter population. Despite
government efforts to develop a more realistic policy toward illegal settlements,
many provincial and local authorities continued to pressure squatters to move. The
Prevention of Illegal Squatting Act requires all landowners—whether public or private—
to remove unauthorized structures from their property. As a result, even
when private landowners raise no objection, police have the option of prosecuting
the landowner, fining the squatters or evicting them. The police usually disperse the
squatters.
Although the repeal of the Land Acts largely failed to provide for either resettlement
or compensation of the estimated 3.5 million persons who had been previously
removed forcibly from their land, in late 1992 the Advisory Commission on Land
Allocation honored the historical land claims of two commumties and allocated them
state-owned land. Also, in 1992 human rights groups began to challenge evictions
in court with a measure of success. A community of^TOO people which had lived on
the Welverdiend farm in the western Transvaal since 1926 was threatened with
eviction after the land was allocated for residential purposes in 1989. The community
has obtained a succession of interdicts to prevent tne owner from evicting the
community. As a result, the landowner is now willing to sell the land to its occu248
pants. The community, however, has neither the money nor the desire to purchase
the land, arguing that after 65 years it is not a squatter camp.
Section 2. Respect for Civil Liberties, Including
a. Freedom of Speech and Press
In 1992 freedoms of speech and press were less
restricted in South Africa. Both the mainstream and alternate press have vigorouslv
informed the public and criticized both the Government and the opposition. Considerable
legislation permitting the Government to restrict and penahze the press remained
on the books, but it was used infreqpjently by the Government, wnile concern
over official harassment, both overt and covert, declined.
On the other hand, overt action by extreme right and left opposition groups has
become a growing concern to journalists, reporters, and photographers in the field.
At the beginning of the year. Parliament repealed section 27b oi the Police Act of
1958, which provided for a fine of up to $3,500 or a prison sentence of up to 5 years,
or both, for a journalist who published untrue information about the police without
having "reasonable grounds" for its accuracy. Section 205 of the Criminal IVocedure
Act, in which authorities can subpoena journalists to disclose confidential information
regarding the identity of sources under threat of imprisonment, remains in
force.
Other laws limit press freedom by restricting, inter alia, the publication of information
about the South African police, the South African Defense Force, petroleum
products, prisons, and mental institutions. Under the Publications Act any newspaper
or magazine which is not a member of the newspaper press union can be declared
"undesirable" and banned. The Internal Security Act allows the Minister of
Law and Order to ban organizations and their publications.
Opposition groups, and especially black militant youths, continued to harass the
press. For example, in April journalists from The Natal Witness who were covering
an IFP rally were charged by a group of youths, verbally abused, and attacked with
stones. In another incident in June, a group of PAC youths assaulted reporters and
photographers who were covering a funeral for some of the victims of the Boipatong
massacre. In August the ANC regional office in Port Elizabeth, apparently angered
by anti-ANC editorials by The Eastern F*rovince Herald, targeted the paper for a
boycott, demonstrations, and the public burning of newspapers. Black poumalists report
they have resorted to self-censorship out of fear of retribution m the form of
necklacing, shooting, and torching of homes.
The South African Broadcasting Corporation (SABC) was criticized from all sides,
including the Government. While the SABC has succeeded in delivering programs
containing a more balanced exposure of the various players on the South African
political scene than previously, opposition elements have called for its restructuring
and creation of an independent oroadcasting authority. The Government criticized
SABC for its extensive coverage of opposition political parties. Radio news reporting,
in particular that of privately-owned Radio 702, is both independent and balanced.
There are no official restrictions on academic freedom in South Africa. Some censorship
of publications and films exists, and in some cases these restrictions might
cause academic research to be limited.
b. Freedom of Peaceful Assembly and Association
Relaxation of security restrictions
on antiapartheid organizations resulted in increased freedoms of assembly and
association in South Africa, except in the homelands. These organizations have
taken advantage of the changed political climate to participate openly in the debate
for a new political order in South Africa.
Although the Government lifted its 15-year blanket ban on all outdoor political
gatherings in March 1991, specific assemblies are occasionally banned by district
magistrates or by the Minister of Law and Order. Also, under the current Internal
Security Act, the Minister has the power to reinvoke the blanket ban at a future
date. Lmrest area designation imposes curfew hours (usually 9 p.m. to 4 a.m.), allows
police to search homes without warrant, restricts gatherings, allows the use
of force to disperse gatherings, and grants security forces indemnity from prosecution.
The Government declared 40 localities unrest areas in 1992, according to the
HRC.
At midyear the Goldstone Commission issued a set of guidelines on mass demonstrations
that enshrined the right to peaceful assembly and proposed procedures
for planning and approval, with tne cooperation of the police and local authorities.
In a number of cases, the Government denied permission to groups wishing to
hold demonstrations or, in some instances, dispersed or arrested some engaging in
geaceful protest. For example, the Government dispersed and arrested groups on
larch 25 in Alexandra, on May 5 in Pietermaritzburg (Natal), on June 22 in
Cradock (eastern Cape), on July 4 in East London (eastern Cape), in July in
Rustenburg (western Transvaal), and on October 18 in the northern Transvaal.
In the so-called independent homelands, notably Bophuthatswana and Ciskei, political
organizing is subject to more stringent limits. In October the Bophuthatswana
legislature passed a bill making all marches or gatherings illegal unless permitted
by the minister for law and order. In violation of the Goldstone Commission's guidelines,
Bophuthatswana police are instructed to disperse illegal marches with force
if necessary. In August the Bophuthatswana Supreme Court overturned legislation
that prohibited "noncitizens" from speaking at public meetings. Internal security
regulations in Bophuthatswana restricted the political activities of the ANC and
other organizations, like the Black Sash.
On July 22, a Ciskei magistrate refused permission for the ANC to hold a meeting
in Keiskammahoek. Despite the ban, ANC supporters gathered at the arranged
venue. Ciskei police dispersed them with tear gas, injuring about 50 people. Over
100 Bophuthatswana police forcibly dispersed a peaceful protest march by 40 clei^gymen
in Bophuthatswana on Novennber 27.
The freedom to assemble peacelully was most flagrantly violated at an ANC alliance
march on the Ciskei "capital" Bisho on SeptenAer 7. Although the Ciskei court
granted a permit for the march, Ciskei Defense Force soldiers opened fire on unarmed
ANC marchers who had diverted from the approved march route in order to
"occupy" Bisho. Soldiers shot and killed 29 marchers and wounded approximately
200 more (see Section l.a.).
These incidents notwithstanding, various groups were able to hold legal peaceful
protests in cities throughout the country. In some cases, police cooperated with protest
organizers to try to ensure the safety of participants and nonparticipants. Notable
national protests include ANC and PAC demonstrations at the opening sessions
of Parliament in January and October in Cape Town.
c. Freedom of Religion
South Africa is religiously plural, and religious groups
are allowed to worship freely.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
In so far as is known, no passports were denied in 1992 to white or
olack antiapartheid activists, including trade union leaders. Although foreign governments
do not recognize homeland travel documents, blacks assigned to a socalled
independent homeland can easily obtain South African passports. The Minister
of Home Affairs continues to have absolute discretion to revoke or refuse to
issue a passport without giving reason for action.
Although South Africa is not a party to international conventions on refugees and
does not formally recognize any form of refugee status, the Grovemment did sign a
memorandum of understanding (MOU) with the United Nations Hi^ Commissioner
on Refugees (UNHCR) in 1991. The agreement allows the UNHCR to manage the
repatriation of South African exiles, most of whom were affiliated in some way with
antiapartheid organizations while in exile. The Government has extended the
UNHCR's mandate for operations until September 1993.
Since the 1990 Govemment-ANC agreement on procedures for indemnifying and
repatriating political exiles, 7,026 people have received indemnity, while 91 have
not. An estimated 7,000 exiles returned before the MOU, and 9,000 to 12,000 more
will return under UNHCR auspices.
The Government and monitoring groups estimate that 500,000 Mozambicans disglaced
by civil strife and economic hardships due to war and drought have entered
outh Africa, many of them considered illegal aliens by Pretoria. Approximately
250,000 of these refugees live in the homelands of Kangwane and Gazankulu, where
they have a legal temporary resident status based on their ethnic ties to homeland
residents.
The approximately 250,000 Mozambicans who live outside the two homelands of
Kangwane and Gazankulu are considered illegal aliens. According to the Ministry
for Home Affairs, every month about 3,000 are caught and forcibly repatriated,
without determining whether they can safely return. Many of these refugees immediately
return to South Africa. The 1991 Aliens Control Act gave immigration officers
greater internal control over aliens, allowing inunigration officers to enter private
premises without warning.
Section 3. Respect for Political Rights: The Right of Citizens to Change Their Government
Although Parliament repealed the remaining "pillars of apartheid" in 1991, under
the present Constitution the extent to which South African citizens have the right
to change their government still depends on their race. The black majority still lacks
the right to vote in national elections or otherwise to participate meaningfully in
the political system. While the Government has repeatedly stated that citizens of
all races will be able to participate equally in future elections, necessary constitu250
tional changes have not yet been made; they will depend on the outcome of
multiparty negotiations, wmch were in abeyance at the ena of 1992.
The current political order is based on the 1983 Constitution, which created a
tricameral Parliament with separate chambers for whites, "coloureds," and Asians.
Membership of the three houses is such that Asians have only one-fourth the number
of white representatives, and "coloured" representatives are one-half the number
of whites. Members of each house are elected in multiparty elections on a constituency
basis from separate racially based voter rolls. Each house has primary responsibility
for its "own affairs," i.e., lenslation affecting racially segregated services
such as education, housing, and welfare. In October Parliament gave authority to
the President to abolish the "own tiffairs" administrative system, but he has not yet
done so.
Such matters as foreign policy, defense, national security, and black affairs are
classified as "general aiiairs" and are debated in all three chambers. In the event
that the three Cambers cannot agree on a piece of "general affairs" legislation, the
biU may be referred to the President's Council for fmal determination. A majority
of the seats on this Council are automatically fiUed by the majority party in the
white chamber. Thus, while the 1983 Constitution allows for the representation of
"coloureds" and Asians, power over almost all important matters is kept in white
hands.
Similarly, the 1983 Constitution grants members of the "coloured" and Asian
chambers representation in the electoral college that elects the State President, but
again a majority of the college members are chosen by the majority party in the
white House of Assembly.
With the repeal of the Population Registration Act in 1991, South Africans are
no longer assigned ethnicity at birth. Blacks bom before repeal of the law remain
assigned to homelands, however. The legislation to repeal the Act stated that the
population register "as it exists at the commencement of this Act" shall remain in
effect until the current Constitution is repealed. Thus, blacks' rights to vote and
hold office remain limited to their respective homelands or, in the case of more than
10 million urban blacks, to their township councils. Blacks residing in supposed
independent homelands lost their South African citizenship upon receiving the "citizensnip"
of the homeland. An estimated 8 million blacks have been assigned citizenship
ofTranskei, Bophuthatswana, Venda, or Ciskei homelands.
Political rights vary within South Africa's 10 black homelands. During the period
1976-1981, the Government declared four homelands "independent" nations
(Transkei, Bophuthatswana, Venda, Ciskei). South Africa is the only country that
recognizes their "independence." Rampant corruption and other factors inspired successml
military coups in Transkei, Ciskei, and Venda. As of late 1992, all three were
controlled by military regimes. Bophuthatswana continues to be ruled as a oneparty
state.
Multiparty negotiations to create a new, nonracial and democratic constitutional
order for South Africa began on December 20, 1991, when the Convention for a
Democratic South Africa (CODESA) began deliberations. By May 1992, CODESA
working groups had made substantial progress on many fronts, including: designing
the structure of a transitional government; determining some of the ground rules
for free political debate and for the first nonracial election; designing a constitutionmaking
body; and laying out mechanisms for reincorporating the "independent"
homelands.
On Mareh 17, South African whites, in a special referendum, gave FVesident de
Klerk a mandate to negotiate an end to white minority rule. At a plenary session
in mid-May, however, CODESA deadlocked on issues relating to tne composition
and functioning of the constitution-making body. One month later, the ANC withdrew
from CODESA deliberations following the Boipatong massacre, bringing the
constitutional negotiating process to a halt. As of the end of the year, the multiparty
negotiations had yet to resume, though there was considerable bilateral discussion
among some of the parties that had attended CODESA.
Section 4. Govemmentcd Attitudes Regarding International and Nongovernmental
Investigation of Alleged Violations of Human Rights
Many local organizations are involved in a wide range of human rights questions,
contributing to the public debate on human rights issues and providing a mechanism
for puolic accountability for the Government and opposition groups. With some
exceptions, the Government did not interfere with the activities of numan rights
groups in 1992 and allowed them greater freedom than in the past to organize, investigate,
and publish reports. In December pathologist Dr. Jonathan Gluckman alleged
that his ofllce had been extensively bugged following his disclosures to the
press of deaths in police detention.
In July the Government dropped criminal chea*ge8 against human rights activist
Sally Sealey, who had been arrested in September 1991 on charges of intimidating
a police officer whom she alleged had detained a person who had accused the officer
of torture. Sealey claims her arrest and the legal case against her were instances
of intimidation and harassment. Sealey has been active in persuading Khutsong
township residents who were allegedly assaulted by the police during interrogations
to press charges against the police. Tnis has led to the suspension of 19 policemen.
Assaults and reported death threats by the Bophuthatswana police on Patrick
Huma, a human rights lawyer, were related to his human rights activity.
International human rights oi^ganizations became increasingly active during 1992.
The Government has become more cooperative with the United Nations. It allowed
various UJ^. representatives to make extended visits to South Africa, including the
official missions to South Africa on behalf of the U.N. Secretary General by Special
Envoy Cyrus Vance and Special Representatives Virendra Dayal and Tom Vraalsen.
The Government also allowed the visits of 10 U.N. observers in August and a longer
term 50-person U.N. observer team that arrived in September, along with observer
teams from the European Community, the Commonwealth, and the Organization of
African Unity. At year's end, approximately 90 international observers were in
South Africa in an effort to reduce the violence and strengthen the National Peace
Accords structures.
As noted earlier (see Section l.a and l.c.), the ICRC has now received permission
from all relevant authorities to visit prisons and police stations in South Africa and
the 10 homelands, with the exception of Venda (for which permission was not
asked). ICRC delegates have made numerous visits to both prisons and police stations
and have made confidential recommendations to the authorities on wajrs to improve
those facilities and the treatment of detainees and prisoners.
The International Commission of Jurists, Amnesty International, and British
criminologist Dr. Peter Waddington produced reports critical of South African policing
methods in 1992. The Government rejected the conclusions of the first two reports
but made no attempt to block their publication. The Ministry of Law and
Order has implemented some procedural changes in line with the Waddington report
recommendations.
Section 5. Discrimination Based on Race, Sex, Religion, Language, or Social Status
Race discrimination dominated social and legal institutions, despite the repeal of
major apartheid legislation in 1990 and 1991. Under the present Constitution,
blacks remain unable to participate in national elections or in most local elections,
except in segregated townships or homelands. President de Klerk announced in late
1992 that no rarther national elections or by-elections would take place until aU
South Africans become eligible to vote. De facto racial discrimination is prevalent
in many areas of life. As noted above, despite repeal of the Population Registration
Act, persons bom before 1991 remain classified in the race group to which they were
assigned at birth. The Government continues to discriminate in the payment of old
age pensions, with whites receiving the highest annuity, "coloureds" and Indians
somewhat less, and blacks the least. In recent years, however, rates have approached
parity.
Education is, perhaps, the most crucial area of continuing race discrimination; per
pupil spending on whites is roughly four times that spent on blacks. The Government
has admitted that the inequity is unacceptable and is moving progressively
to eliminate this bias, but maintains that it cannot allot more than the present 20
percent of the national budget for education. It also notes that to cut white spending
to the current level for blacks would generate insufficient savings to upgrade education
for the vast black majority significantly. In 1992 the Government
semiprivatized most white schools, requiring parents to assume a significant share
of the costs through payment of school fees.
White public sdiools formerly were prohibited from enrolling blacks. Effective in
1991, parents at each school were allowed to vote to determine the racial admittance
policy of the school, provided that at least 50 percent of the student body remained
white. Bowing to public pressure, the Government also began allowing white schools
that had closed due to shrinking enrollments to reopen as fully nonracial schools.
Legislation enacted in June 1991 following repeal of the Group Areas Act enables
local nei^borhoods to establish their own "norms and standards" regarding local
living conditions. This measure may serve to perpetuate discriminatory housing patterns.
In 1991 Parliament repealed the Land!^Acts of 1913 and 1936, which limited
land ownership in rural areas to whites. Blacks deemed to be citizens of one of the
supposedly independent homelands no longer face legal restrictions on where they
can live, according to the Department for Home Affairs.
South Africa's Defense Act requires all citizens to serve in the military except "females
or persons who are not white." In 1992 the Pretoria Supreme Court; upheld
this statute against arguments that such race-based conscription could not be enforced
because of the repeal of the Population Registration Act. The Court ruled that
for the purpose of the Defense Act, the definition of "whites" still had legal effect.
Sex discrimination remains a serious problem in South Africa, particularly against
black women. In many, if not most cases, women of all races do not receive equal
pay for equal woik. Benefits in the workplace, including higher pensions and preferential
home loans, are often restricted to men on the grounds that they are most
likely to be heads of households. Black women teachers who marry lose their home
loans, and in KwaZulu women teachers who become pregnant must resign immediately.
Women in all racial groups—particularly blacks—still sufler from legal, cultural,
and economic discrimination. Traditional African customs discriminate against
women in South AMca's blade homelands. In many areas a woman is legally and
traditionally a minor and cannot sign contracts or own property. She is under the
authority of her father before marriage, and her husband afterward. However, some
reforms are under way. La the homelands of KwaZulu and the Ciskei, a woman's
right to own some forms of property is now recognized. Violence against women of
all races is a serious problem, particularly because very little legal redress exists.
South Africa's rape incidence is oelieved to be among the highest in the world, more
than double that of the United States. A South African sociologist estimates, based
on police figures, that 750,000 women are raped each year, with only 1 rape in 20
reported. Marital rape is not considered a crime. A husband may be charged for assault
accompanying a rape, but courts will not convict upon the evidence of the
woman alone. There are no government-subsidized programs or counseling centers
for abused women, except for overextended welfare and social workers.
Section 6. Worker Rights
a. The Right of Association
South Africa's Labor Relations Act entitles all workers
in the private sector to join trade unions of their choosing. In 1979 legislation
granted blacks full status as employees with the right to form free and independent
trade unions. Membership in South Africa's 200 registered trade unions was approximately
2.75 million in 1992. An additional 300,000 workers are members of the
47 unregistered unions, bringing union membership to over 3 million workers or 45
percent of the employed, economically active population. Probably more than half of
all union members are black. The Labor Relations Act does not cover domestic servants,
farmworicers, or public servants, thus hindering trade union organizing in
those sectors. However, the Ministry of Manpower agreed, in an agreement reached
in November with the Congress of South African Trade Unions (COSATU), South
Africa's largest trade union confederation, to extend the Labor Relations Act to domestic
servants and farmworkers during the 1993 parliamentary session.
While South AMca's unions are formally independent of direct government control,
the legacy of apartheid continues to aflect all aspects of industrial relations.
Union suspicion of employer and government intent, management's often uncompromising
attitude during negotiations, and the rapid politicization of major strikes create
a tense and sometimes violent atmosphere which exacerbates industrial conflict.
COSATU continues to accuse the Government of attempting to undermine trade
union activity and organization through intimidation and violence. Specifically,
COSATU alleges that the United Workers Union of South Africa (UWUSA), linked
to the Inkatha Freedom Party (IFP) and until 1991 secretly financed by the Government,
has sent scabs to break strikes and led violent and sometimes deadly attacks
against COSATU members. COSATU claims that at least 45 of its members were
killed during 1992 in violence directed against legitimate union activities.
As a result of South Africa's pre-1990 ban on black political parties, trade unions
played an important political role during the midto late-1980's struggle against
apartheid, and they continue to exercise important political influence. COSATU is
formally alimed with the African National Congress (ANC) and the South African
Communist Party (SACP). South Africa's second lai^st trade union federation, the
National Council of Trade Unions (NACTU), while omcially independent from political
groups, has considerable contact with the Pan-Africanist Congress (PAC) and the
Azanian Peoples' Organization (AZAPO). Both federations have supported general
strikes and boycotts as useful tools to pressure the Government.
Since 1979 all private sector workers, regardless of race, have had the right under
law to strike. Industrial action during the first 9 months of 1992 was up nearly 50
percent over the comparable 1991 period, with strikes accounting for more than 3
million lost man-days. Nearly 75 percent of strike activity in 1992 was provoked by
wage disputes. Grievances, dismissals, and discipline accounted for the remaining
25 percent.
South African law prohibits all public employees from striking, a prohibition
COSATU alleges is too broad and not in keeping with internationally recognized
Sractice. Each minister, in consultation with appropriate oflices and advisory bodies,
etermines annual wage increases for his or her ministry, and legislation governing
each public service sector establishes machinery for collective bargaining with stall
assoaations. The cumbersome nature of this process and a lack of effective dispute
resolution mechanisms make public sector bargaining contentious and a potential
industrial relations flash point. The Government sought to introduce new public sector
labor legislation during the 1992 special parliamentary session. Opposition to
the legislation by COSATU and other trade unions delayed submission of the legislation.
The Ministiy of Manpower has since agreed to consult with COSATU on this
lenslation.
South Africa does not restrict union affiliation with regional or international labor
organizations. The countr/s two largest confederations, COSATU and NACTU, are
amliated internationally only with tne Organization of African Trade Union Unity.
Many of their affiliates, as well as independent unions, are members of international
trade secretariats and have developed contacts with their counterparts in
North America and Western Europe.
Although a member of the International Labor Organization (ILO) from its inception
in 1919, South Africa withdrew from the Oreanization in 1964 but remains
bound by the 12 ILO conventions it has ratified. In 1988 COSATU lodged a complaint
through ECOSOC with the ILO against the Government, clamiing that
amendments made that year to South Africa's Labor Relations Act give prelerence
to rticiaUy constituted unions and abridge the right to strike. The Government declined
to accept ILO jurisdiction over the complaint until February 1991, when it
invited the organization to send a fact-finding mission to South Africa. Even though
the immediate cause of COSATUs petition to the ILO had been resolved by 1991,
the designated ILO fact-finding and conciliation commission on freedom of association
visited South Africa. In June 1992 it made a number of recommendations regarding
how South Africa could bring its labor laws into line with internationally
accepted standards. In a November agreement with COSATU, the Ministry of Mangower
agreed to establish a consultative process with COSATU to determine how
outh Africa could implement the ILO recommendations.
b. The Right to Organize and Bargain Collectively
South African labor law now
provides a statutory structure for collective bargaining, including the establishment
of industrial councils, the registration and regulation of trade unions, trade union
federations, and employer organizations, as well as mediation, conciliation, and arbitration
procedures to resolve industrial disputes. This structure has effectively
eliminated direct government interference in private sector union organizing and
collective bargaining. South African law prohibits discrimination by private sector
employers against union members and organizers. Disputes over recognition in the
private sector are few.
Historically, black unions were excluded from the statutory system of industrial
councils. Nevertheless, black unions developed a plant-level collective-bargaining
tradition of their own. Typically, many employers established poUective bargaining
relations with shop unions on the basis of majority representation. The 1979 Labor
Relations Act, ana its subsequent amendments, included black unions within the
statutory structure of industrial councils and formalized black union participation
in collective bargaining, both at plant and industry levels.
COSATU will reenter the National Manpower Commission (NMC), a tripartite advisory
body to the Ministry of Manpower, in January 1993. This follows the November
1992 COSATU-Ministiy of Manpower agreement in which the Ministry promised
to submit to the 1993 Parliament the legislation necessaiy to extend basic labor
law to farm and domestic workers. Should the Government comply with its agreement,
labor law regarding collective bargaining wiU be extended to farm and domestic
workers, a significant portion of the working population.
South Africa's labor law does not apply to the so-called homelands, where labor
legislation has not matdied South Africa's and union organizing is often actively
discouraged. Nevertheless, trade union oivanizing and activity is on the increase in
almost ^1 of South Africa's homelands. Some, such as Transkei and Ciskei, have
responded to pressure by slowly brinnng their labor legislation closer to international
stanoards. Others, sucn as Bopnuthatswana, have tirfitened limits on
trade union activity. South African trade union confederations such as COSATU see
free trade union activity in the homelands as an important priority. In the November
1992 agreement, the Ministry of Manpower agreed to establish a consultative
process to explore harmonization of South African and homeland labor law.
Private mediation services are available and have been voluntarily resorted to by
management and black trade unions to resolve industrial disputes. The Labor Relations
Act establishes the Industrial Court to rule in labor-management disputes,
and its decisions appear to be balanced. The most common complaints filed with the
Court concern disnussals, followed by unfair labor practices. A Labor Court of Appeals
oversees the Industrial Court and can overturn its decisions.
South Africa has no export processing zones.
c. Prohibition of Forced or Compulsory Labor
South Africa does not constitutionally
prohibit forced labor, however, the countr^s system of Roman-Dutch common
law does not permit it, and it is not practiced. Relief workers in the
Mozambican refugee areas allege that refugees who work on South African farms
are paid significantly less than minimum wtige and that farmers sometimes turn
in such workers to the authorities immediately oefore payday to be deported.
d. Minimum A^e for Employment of Children.—The Basic Conditions of Employment
Act prohibits the employment of minors under age 15 in most industries,
shops, and offices. The Mines and Works Act prohibits minors under 16 from working
underground. There is no restriction, however, on the age at which a person
may work in agriculture. Legislation is only partially enforced by the Ministry of
Manpower and the Mineral and Energy Affairs Ministry. One of the best known and
documented instances of underaged employment is young boys employed in black
township coalyards.
Education is compulsory for all white and "coloured" children until they reach the
age of 16 or pass uie 10th grade and for Asian children until age 15. There is no
compulsory education for black children. The Department of Education and Culture
effectively enforces compulsory education for white children. It is less diligent in enforcing
it for "coloured" and Asian children.
e. Acceptable Conditions of Work
There is no legal minimum wage in South Africa.
The Labor Relations Act instead provides a mechanism for negotiations between
labor and management to set minimum wage standards industry by industry. At
present over 100 industries covering most nonagricultural workers come under the
provisions of the Act.
Establishing a "living wage," or a subsistence-level minimum wage has been another
priority goal of most industrywide unions. A survey by the Labour Research
Service found that of 17 sectors surveyed, only one paid a minimum wage above
what was estimated to be a "living wage." Further, the average minimum wage was
some 30 percent below the living wage. Wages paid unskilled workers, especially domestic
servants and agricultural woreers, are often significantly less.
Most industries have a standard workweek of 46 hours (which is also the wellenforced
legal maximum), as well as vacation and sick leave. Overtime is voluntary
and limited to 10 hours a week. The law does not mandate a 24-hour rest break.
The Basic Conditions of Employment Act which legislates minimum workplace
standards does not yet apply to agricultural workers and domestic servants. Their
work conditions and those of workers in the homelands depend on the good wUl of
their employers and range from acceptable to deplorable.
TTie state-fiinded National Occupational and Safety Association claims that the
Ministry of Manpower effectively enforces government-legislated minimum standards
ibr workplace environment; nevertheless, in some industries, injury or even
death at the workplace is still common. For example, the National Union of
Mineworkers reports that an average of two workers are killed eveiy day in mine
accidents.
South African occupational safety and health laws, while requiring employers not
to place their workers at unreasonable risk, do not give workers the right to remove
themselves from a hazardous job. An employee's decision to leave a hazardous worksite
could possibly lead to dismissal, but more probably would result in disciplinary
action. The occupational safety and health laws do provide protection for workers
who report or file complaints against unsafe working conditions. Such workers may
not be dismissed or reauced in rank or salary because of their actions.
