UNEQUAL PROTECTION:
The State Response to Violent Crime on South African Farms

RECOMMENDATIONS

Human Rights Watch, August 2001

http://www.hrw.org/

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To the South African Government:

• The government must ensure that the criminal justice system responds effectively and promptly to any reported serious crime, whoever the victim or the alleged perpetrator, and that all victims have equal access to the protection of the law, without discrimination in law or practice. 
• The government should ensure that all allegations of human rights abuses by any state agent are promptly and thoroughly investigated by those responsible within the criminal justice system, and that perpetrators of abuse are disciplined or brought to justice. Security services should ensure proper screening and effective disciplinary oversight of reserve, as well as of full-time, members.

  Commandos 

• The government should establish a special investigation into the activities of the commando units operating in southern Mpumalanga and northern KwaZulu-Natal (the Piet Retief, Volksrust, Vryheid area), with a view to bringing to justice all those identified by the investigations as having committed human rights abuses. 
• Commando units, made up of army reservists, should not be deployed for policing purposes. Civilians who wish to be involved in policing on a part-time basis should be police reservists, and should receive training in policing skills and instruction on the laws of South Africa and respect for human rights.
• The army should only be deployed for policing duties in exceptional circumstances, such as a national emergency declared according to the constitutional and legislative procedures. In any circumstances where soldiers or reservists are deployed for policing duties, they should not have full police powers, but only those that are required to fill a support role, and military personnel should be clearly and continuously under the command of civilian police structures. 
• The army should put in place procedures and designate authorities at all group headquarters to receive, investigate, and act promptly on public complaints against any soldier, whether full time or a reservist. The mandate of the Independent Complaints Directorate (ICD) should be expanded to include the investigation of complaints of human rights abuse by all state agents deployed for policing duties.

Farmwatches 

• Legislation should be introduced to regulate private non-profit security networks such as the farmwatch units. In particular, members of private farmwatch structures should be restricted to activities aimed at the prevention of crime, and at immediate response to crime in accordance only with the powers of ordinary citizens. Farmwatch structures should not act on information such as reports of the possession of illegal weapons, but rather pass such reports to the police to take appropriate action. 

    Regulation of Private Security 

• The Security Industry Regulation Bill should be passed into law and brought into force as a matter of urgency. As currently proposed, the act should provide for: an independent regulatory body, not linked to the industry; an effective system for screening out individuals with criminal records before an individual or company is registered; and a strict and legally binding code of conduct. The act should also provide for compulsory reporting by the police and courts to the new Security Industry Regulatory Authority of alleged crimes, charges, and convictions involving private security providers. It should be made clear that private security providers have no policing or other authority beyond that of private citizens, and are liable to prosecution for crimes to the same extent as other private citizens. 
• The laws forbidding the use of military-style uniform (including camouflage) for those who are not members of the army should be enforced. The Security Industry Regulation Act should specifically prohibit the use by private security providers of uniforms that could reasonably be mistaken for those of a state law enforcement agency. 

  Police 

• The government should institute a review of the collection of statistics in connection with violence on farms. The police should consider the creation of specific crime codes appropriate to distinguish between different types of crime: for example, for murders or assaults on farm owners or managers, murders or assaults on farmworkers or residents (including sexual assaults in all cases), and for illegal evictions. In collecting these statistics, the figures for "farms" and "smallholdings" should be disaggregated, and all statistics should allow for disaggregation by gender. A parallel effort to ensure that all reported incidents are correctly recorded by police will be necessary. The statistics collected should be made publicly available on a regular basis. 
• The government should evaluate the needs of rural police stations for staff and equipment, and ensure that rural as well as urban police stations have the human and material resources necessary to combat crime effectively and on a nondiscriminatory basis in their areas. 
• All reserve security force members, like full time members, should receive training that focuses on human rights within the criminal justice system, as protected by the South African constitution and international standards, including standards governing the use of firearms and force, as well as on South Africa's laws protecting farm residents from eviction. Emphasis should be placed on training to overcome racism and sexism and on nondiscrimination in responding to reported crime. 
• All police should be trained to respond effectively to rape and other physical attacks against women, including women on farms, to ensure that women receive a sensitive response to their complaints and are protected against possible retaliation. Rural police stations (like urban police stations) should be staffed with detective officers who have received full training on how to investigate cases of sexual violence, including training on collecting forensic evidence and the importance of medical evidence in rape trials.  
• The government should introduce a constitutional amendment to restore the Independent Complaints Directorate to the status it held under the interim constitution as one of the State Institutions Supporting Constitutional Democracy established under Chapter 9. As such, the ICD should report to parliament rather than the minister for safety and security. In addition, new legislation should be introduced, separate from the Police Act, to regulate the ICD and strengthen its powers. In particular, the ICD should have the duty and power to investigate criminal offenses and misconduct by members of the commandos when they are undertaking policing duties, including to investigate deaths in custody or as a result of action taken by the commandos. The army should be placed under an obligation to report such deaths promptly to the ICD, as well as to local police stations. The government should ensure that the powers and resources given to the ICD are sufficient to enable it to fulfill its statutory duties satisfactorily, including the investigation of systematic failures by the police to conduct proper investigations into abuses by commando units and private security companies.

  Courts 

• The National Directorate of Public Prosecutions (NDPP) should monitor prosecutions involving violence on farms, whether directed against farm residents or farm owners, and assess the backlog of cases in these categories, with a view to taking steps to ensure that any backlog is cleared. The NDPP should conduct exemplary prosecutions in especially egregious cases.
• The Department of Justice should monitor the handling of cases involving violence on farms by prosecutors, magistrates, and judges, with a view to ensuring that there is no race- or gender-based discrimination in the management of such cases.
• Rural magistrates courts (like urban courts) should be staffed with prosecutors who have received proper training in how to respond appropriately to cases of alleged sexual violence.

  Evictions 

• Police officers should receive training in and instructions to enforce section 23 of the Extension of Security of Tenure Act, which makes it an offence for any person to be evicted except on the authority of an order of court, or for any person to obstruct or interfere with a state official or a mediator in the performance of his or her duties under the act.  
• The NDPP should conduct exemplary prosecutions in particularly egregious illegal eviction cases, and should issue directives to all magistrates courts giving guidance on how to conduct prosecutions in cases of illegal eviction. 

  Legal Aid 

• The establishment of legal aid centers in commercial farming areas, providing assistance in civil as well as criminal cases, should be a matter of priority, to ensure effective access by all to the protection of the law. Pending the establishment of such centers, the Legal Aid Board should urgently consider resuming payments to legal practitioners under the existing "judicare" system in cases of alleged illegal eviction. 

  Protection of those Assisting Farmworkers

• The Extension of Security of Tenure Act should be amended in order to ensure that farmworkers' rights to organize and access legal protection are effectively protected. Lawyers, fieldworkers from NGOs working on land rights issues, union officials, and others with a legal right to consult with clients living on farms must be able to do so. Farm owners' legitimate concerns about security in relation to access by strangers to their farms could be addressed by, for example, the development of a system for the accreditation of NGO fieldworkers, in particular, with the Department of Land Affairs (DLA). 
• The South African Law Commission should be instructed to institute a review of the law of trespass, with a view to ensuring that it cannot be used to prevent legitimate access to farms. 

  Racial and Gender Discrimination and Working Conditions 

• The Department of Labour should ensure compliance on farms with international labor standards set out by the International Labour Organization (ILO) and with the provisions of national legislation. The government should ratify relevant ILO treaties, where it has not yet done so, including the Maternity Protection Convention, No. 183 of 2000, and the Protection of Wages Convention, No. 95 of 1949. The government should strengthen the labor inspectorate and increase the number of trained inspectors to ensure that it can carry out its mandate effectively. 
• Existing mechanisms responsible for resolving labor relations disputes, such as the Commission for Conciliation Mediation and Arbitration (CCMA), the Land Claims Court, and the Labor Court, should be strengthened and given financial support and staffing to enable them to fulfill their mandates. Staff should, in particular, be trained in women's rights and all existing legislation guaranteeing equality and equal protection of the law to women in the agricultural labor force.
• The government should strengthen the capacity of the South African Human Rights Commission, the Commission on Gender Equality, and the Independent Complaints Directorate to operate branch offices in all provinces with enough financial resources to carry out proper investigation of cases reported to them within their mandates and to identify and act in response to patterns of abuse. 

  Restructuring of the Rural Protection Plan 

• The government should convene a forum of the relevant parties to evaluate the operation of the rural protection plan, with a view to restructuring it to ensure equal protection of the law to all those resident in commercial farming areas. In addition, the government should commission an independent study of the effectiveness of the rural protection plan, and monitor the plan's operation on an ongoing basis. 
• Each government structure involved in implementing the rural protection plan, at national, provincial, and local level, should conduct an evaluation of all violent crime reported in the area for which it is responsible, with a view to identifying which crimes are of particular concern to different sections of the community, including violent crimes against farm workers and residents and women and children on farms. The results of this evaluation should be used to ensure that structures created to combat crime respond effectively to the needs of all sections of the community.
• The government should consider merging the local and area coordinating committees for the rural protection plan with the community policing forums, and establishing new structures chaired by local government and involving all relevant government agencies, as well as representatives of farmworkers and farm owners, to ensure effective coordination of efforts to combat crime. 
• The government should commission a thorough and independent study of the extent of and reasons for violence on farms, including violence against women, based on interviews with farm owners, workers and residents in all nine provinces, as well as members of the police, army, and court officials. 

  To the Human Rights and Gender Equality Commissions: 

• As currently planned, the South African Human Rights Commission (SAHRC) should hold comprehensive hearings on the issue of conditions on farms in different provinces in South Africa, with the aim of establishing the patterns of violence and abuse, as well as the extent of racial bias in the handling of cases by the criminal justice system, and making recommendations to government for these issues to be redressed.  
• The Commission on Gender Equality (CGE) should, in partnership with groups involved in programs for women on farms and in coordination with the SAHRC, conduct a detailed study of the situation of women farm workers and residents: in particular, it should document cases of rape by farm owners, managers, or other farm residents, and make recommendations to government to ensure that discrimination and violence against women farmworkers is ended. 

  To All Those Working for Rural Safety and Security: 

• Politicians, representatives of commercial agriculture, farmworkers' unions, nongovernmental organizations (NGOs) concerned with land or farmworkers' rights, and other interested parties, should consistently, unambiguously, and evenhandedly condemn all forms of violence on farms in South Africa, whether committed against farm workers and residents or against farm owners. Organizations should take steps to make clear to their members their opposition to violence, and should put in place procedures to respond to allegations that an employee or member has committed or incited a violent crime. 

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