Hacked to death with a panga - that was how Ed Neumeister, the 67-year-old owner of a restaurant in the Midlands of KwaZulu-Natal was killed in broad daylight on the first Saturday of June 2020 (Regchand, 2020).
Mutilated by her estranged husband, Johan Kotze, it was a mere miracle that Ina Bonnette survived the atrocious deeds perpetrated by the Modimolle Monster as he cut off her nipple with a small saw; took out a nail to push it into that raw wound before cutting her private parts with a side-cutter (Geldenhuys, 2014).
By Annalise Kempen
It is almost impossible to make sense of the facts of what had happened to victims when one reads about how they have been dehumanised. Is it even possible for one human to inflict so much pain to another human being? Do torturers want to command some power over their victims or should we accept that they are cruel and inhumane individuals?
What is torture?
Many Hollywood movies show how intelligence services or police agencies use torture techniques to interrogate their subjects to get information from them. Does that make the members of these agencies criminal or is torture justified when used by the authorities? To answer these questions, it is important to have an understanding of “torture” which is described as “the action or practice of inflicting severe pain on someone as a punishment or in order to force them to do or say something” (Oxford Dictionary). Article 1 of the 1984 United Nations Convention against Torture describes torture as: Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him (or her) or a third person, information or a confession, punishing him (or her) for an act he (or she) or a third person has committed or is suspected of having committed, or intimidating or coercing him (or her) or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from inherent in or incidental to lawful sanctions (Williams and Van der Merwe, 2013). These two authors note that this definition has been extended to include violence by unofficial agents, as in civil conflict, but that all definitions refer to intentional infliction of pain and/or suffering. The Prevention and Combating of Torture of Persons Act 13 of 2013 uses a similar definition as the UN Convention against Torture.
The Prevention and Combating of Torture of Persons Act 13 of 2013 which came into operation in July 2013, criminalises torture, whereas prior to the enactment of this statute, anyone who was found guilty of torture would have been charged with other crimes, such as assault, rape, culpable homicide or murder (SAHRC, Nd). According to section 3 of Act 13 of 2013,
“(1) Any person who -
(a) commits torture;
(b) attempts to commit torture; or
(c) incites, instigates, commands or procures any person to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.
(2) Any person who participates in torture, or who conspires with a public official to aid or procure the commission of or to commit torture, is guilty of the offence of torture and is on conviction liable to imprisonment, including imprisonment for life.
(3) Despite any other law to the contrary, including customary international law, the fact that an accused person –
(a) is or was a head of state or government, a member of a government or parliament, an elected representative or a government official; or
(b) was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither a defence to a charge of committing an offence referred to in this section, nor a ground for any possible reduction of sentence, once that person has been convicted of such offence.
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture.
(5) No one shall be punished for disobeying an order to commit torture.”