This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
F. Conditions of Detention
We have interpreted our mandate in ascertaining the conditions of detention broadly to encompass matter beyond mere physical conditions. In this regard, we were profoundly shocked by a number of cases in which detainees had been held for inordinate lengths of time without ever being given the benefits of a trial. Of the 17 former detainees who gave evidence before the Commission, 12 had no trial at all. Excluding Dr Pallo Jordan who was held for six weeks, their periods of detention without trial ranged from 3 years to 7 years.
The issue of the period of pretrial detention was addressed by the enquiry into the death of Thami Zulu. In that case, Mr Zulu had been detained for fourteen months without trial. We consider it appropriate to quote from the Thami Zulu Commission report in this regard. Having posed the question "was the length of his detention reasonable" the Commission stated:
"In some ways this is the most difficult question for us to answer, largely because no regulations existed establishing time periods, nor is there certainty as to what the criteria for release should be. In principle, we find it unacceptable that the only test for release should be positive clearance by security) or else considerations of health
The problem with open-ended detention is that the longer the person is detained, the stronger the desire on the part of security to prove that it has not made a mistake. This should never be a consideration. Security must do its duty to the best of its ability. The real difficulty in this case is that it was security itself which had to decide on whether it was proceeding correctly. We believe that this is the heart of the problem. There not only should have been rules prescribing the permissible periods for detention and the criteria for detention and release, there should have been an independent body making the necessary decisions.
The reality is that neither the time period nor the criteria nor the independent body existed, so we are called upon to express our opinion.
We regard fourteen months as a very long time for keeping someone in detention as a suspect. On the face of it, this is far too long, even bearing in mind all the objective contextual factors referred to earlier in this report We note, however, that twelve of these months were spent in relatively comfortable conditions of house confinement rather than detention. Our main problem is with the eight weeks he spent in what was in effect solitary confinement.... We regard it as unacceptable that the basic rights of detainees should be subjected to the organisational needs of security." (our emphasis)
We endorse the sentiments which are emphasised in the above passage, but go further. Unlike Mr Zulu, who was a high-ranking and respected member of the ANC, the detainees who testified before us, were suspected of committing grave offences and were labelled, upon their return to South Africa, as being the "most notorious" suspected agents and infiltrators. The periods of their detention were in no way mitigated by "relatively comfortable conditions of house confinement". On the contrary, the conditions of their detention were consistently harsh, only varying in degree of harshness. The mere fact that these detainees were detained for long periods of time (apart from the manner in which they were treated while in detention) constitutes, in our view, an extreme form of psychological torture. In the case of the detainees concerned, however, they have been precluded from reintegration into their own communities even though they were never found guilty of any offence. The mere fact that they had been detained by the ANC has been sufficient for them to be stigmatised as traitors to the cause of the ANC. This has resulted in ostracism and rejection. The fact that they were labelled upon their return as being amongst the "most notorious" suspected agents and infiltrators, notwithstanding the fact that they were never tried, has served simply to reinforce the view that they are traitors. Their punishment for unproven crimes, therefore, has been double: lengthy periods of detention without trial and ostracism upon their release.
We were informed by the witnesses that theirs were not the only cases of detention without trial. Indeed, we were led to believe that there were many other examples. The injustice done to such people is of the gravest sort and we make recommendations to deal specifically with this abuse.