South Africa is a State Party to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The Optional Protocol provides for an individual complaints mechanism overseen by the United Nations Human Rights Committee.
On 7 July 2008, a certain Mr Bradley McCullum lodged a communication with the Committee in relation to an incident that allegedly occurred on 17 July 2005 whilst he was incarcerated at St Albans Maximum Correctional Centre, in Port Elizabeth. Mr McCullum claimed to be a victim of violations by South Africa of articles 7 and 10, alone and read in conjunction with article 2, paragraph 3, of the ICCPR. Article 7 prohibits subjecting anyone to “torture or to cruel, inhuman or degrading treatment or punishment”. Article 10 deals with the humane detention of all persons deprived of liberty and article 2 deals with the obligation on State Parties to ensure that effective remedies are provided to anyone whose rights or freedoms guaranteed under the ICCPR have been violated.
On 2 November 2010, South Africa was found to have violated these provisions of the ICCPR in relation to the treatment of Mr McCullum.
The Committee arrived at this decision in the absence of any representations by the South African Government in response to the allegations made by Mr McCullum.
Had South Africa participated in the consideration of the communication, it is believed that the matter would have reached a different conclusion.
In the absence of any reply from South Africa, the Committee stated that due weight had to be given to McCullum’s allegations and thus proceeded to conclude the complaint against South Africa solely on the version of the complainant.
The Committee held as follows:
a) That South Africa violated article 7 of the ICCPR, which prohibits the torture, inhuman or degrading treatment or punishment;
b) That South Africa further violated article 7 read in conjunction with article 2, paragraph 3, of the ICCPR by not providing effective remedies to the complainant; and
c) That South Africa violated article 10, paragraph 1, of the ICCPR by not having responded speedily to the complainant’s request for medical examination.
The Committee recommended that the following actions be taken by South Africa:
a) South Africa is to provide Mr McCullum with an effective remedy, including:
i) a thorough and effective investigation of his claims falling under article 7;
ii) prosecution of those responsible; and
iii) full reparation, including adequate compensation.
b) Generally South Africa should treat McCullum with humanity whilst he remains incarcerated and the country is under an obligation to prevent similar violations in future. (Mr McCullum has been placed on parole on 4 January 2010.)
c) South Africa was requested to provide the Committee with a report on the steps taken to give effect to its views within a period of 180 days.
d) Finally, South Africa was requested to publish the Committee’s Views.
The South African Government hereby acknowledges its failure to participate in the processes of the Committee. Upon thorough reflection on the matter it is apparent that such failure is attributable to a number of factors, including inadequate communication amongst Government Departments.
In view of the nature of the issues raised in the Committee’s report, Government has decided to reopen the disciplinary and criminal investigations relating to this matter and to collaborate with Mr McCullum and his legal representatives with a view to conclude this matter.
In particular, individual Government Departments will take the following steps:
a) The Department of Correctional Services (DCS) is to take immediate steps to re-open the investigation into the actions of officials on 17 July 2005, which process will include:
a. The institution of disciplinary action within DCS against the officials identified in the investigation report of September 2005;
b. The institution of an investigation into the conduct of senior DCS officials who overturned the recommendations of the investigator in 2005;
c. The investigation of the conduct of medical personnel during the applicable period at St Albans Correctional Centre.
b) Complete the recently opened South African Police Services (SAPS) investigation into the McCullum case and submit it to the National Prosecuting Authority for a decision as to whether to prosecute or not.
c) Initiate a consultative process with Mr McCullum and his legal representatives with a view to concluding this matter.
The South African Government reaffirms its commitment to the promotion, protection and fulfilment of human rights and fundamental freedoms.
The Government also reaffirms its commitment to and compliance with its international treaty obligations.
To this end Government also expresses its commitment to prioritising the promotion of national legislation criminalizing torture in our domestic system.
Enquiries:
Sibongile Khumalo – Chief Director: Communications
