Leeuwkop prisoners v Correctional Services could be precedent-setting

Electroshocks under running water, dog attacks, forcible restraint, beaten with batons and brutal assaults. In 2014, 20 inmates at Leeuwkop prison in Johannesburg claimed they were the victims of a surge of mass torture at the hands of prison officials and emergency security team members.

Now, in a potentially precedent-setting civil case – which could mean major repercussions for the Department of Justice and Correctional Services – these inmates are seeking millions of rand in damages from the government.

The case is being led by human rights organisation Lawyers for Human Rights (LHR) who are once again stepping into obscure territory.

“There hasn’t been a conviction for torture since the commencement of the Torture Act … so whether it be prison officials or the police, there hasn’t been any conviction in terms of that act at all since it came into effect in 2013,” Clare Ballard, an attorney and head of the Penal Reform Programme at the LHR, told News24.

“In terms of civil remedies, in the prison setting it is my understanding that there hasn’t been a finding from a court that the minister is liable for damages sustained as a result of torture in the prison setting.

“In that respect, it would be precedent-setting [if] we were to be successful,” Ballard said.

Court documents explained in detail how inmates were allegedly made to go through brutal psychological and physical torture for hours on end in 2014.

Prison officials allegedly repeatedly shocked inmates with electric shields, set dogs on them, forced them to squat in painful positions for prolonged periods and repeatedly restrained them by sitting on top of them and pinning them to the ground while beating them, the documents said.

It added officials forced inmates “into a shower, and forcibly made these plaintiffs remove their clothes and placed them under running water while electrocuting them with electric shields”.

According to GroundUp, one Leeuwkop inmate recounted his experience of the alleged torture in the Gauteng High Court in Johannesburg.

“You feel like you can die,” Mthokozisi Sithole told the court of how he was shocked, adding he was made to feel sub-human by prison officials.

The publication quoted Sithole as saying: “The manner that they were shocking me was so hard… For them to stop shocking me in the shower, I told them that Pasha [another inmate] had the phone.”

The officials proceeded to assault Pasha as well.

According to court papers, a prison official allegedly forcibly anal-searched an inmate in public “without any reasonable grounds”, while another one was forced to defecate in the communal showers in the presence of prison officials.

More still, an official allegedly “sat on top of the face of [an inmate] for a prolonged period and suffocated him”. Other prisoners were allegedly chocked, beaten with batons and forced to ingest castor oil.

The reason for the mass brutality, according to the documents, was to obtain information or a confession from inmates regarding the possession of a cellphone and to punish them for this.

According to the same court papers, the department said officials were “acting within the course and scope of their employment” when they attempted to enter the blocked cells. They added that objects, including human faeces, were thrown at them during this time.

“The officers were accordingly constrained to take precautionary measures, including using force to, among other things, defend themselves”.

The department denied the officials assaulted or tortured the inmates in the manner detailed in the court papers.

It added, however, that their use of force was lawful and “even if the plaintiffs suffered the alleged consequences itemised, the defendant [the department] is not liable to compensate them for such damages”.

Despite the numerous reports of assaults in prisons, it was difficult to get a conviction for these crimes for myriad reasons, Ballard explained.

“When it comes to torture, I think it’s a different crime in that it has a motive element to it which other crimes do not have and that adds a certain element of complexity that you wouldn’t have in another case.

“There are certainly many cases of reported assault and torture and we know this from the annual reports that the JICS [judicial inspectorate for correctional services] releases.”

The entire system, Ballard said, was also extremely cagey.

“There is a glaring absence to get access to justice … in relation to inmates pursuing criminal charges against those who have assaulted or tortured them. To open a case, an offender must request a DCS [Department of Correctional Services] official to initiate contact with a police member.

“The obvious problem with this arrangement is that you’re essentially asking an official who may be a perpetrator and who is employed by the same entity as the perpetrator, for assistance with pursuing the perpetrator. Inevitably, the perpetrator and organisation employing that perpetrator will deny any liability or wrongdoing,” Ballard said.

She added that, for inmates, opening a criminal case was “extraordinarily difficult” but with help from the LHR a case was opened.

“It was the LHR that bridged the gap between the inmates and access to the police. We were able to present the police with the medical evidence collected by doctors not in the employ of the DCS and the statements of those who had been injured.

“However, it is difficult, generally, for the police to be able to engage in some of the detective work necessary for such investigations. Prisons are by their very nature covert institutions and where a DCS official – a custodian of such an institution – has committed assault or torture, he or she has reasons and the power to cover up such offences,” Ballard explained.

For this reason, she said, a win would be “an enormous victory” for prisoners.

“It will be a vitally important precedent were we to be successful and come home on the offence of torture as opposed to just assault … it would be really important and an enormous victory for prisoners’ rights.”

The DCS did not respond to questions by the time of publication.

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