Solitary confinement case uncovers abuses_Carolyn Raphaely
1
December 15 2012 SATURDAY STAR NEWS 8 A NYONE who thinks solitary con- finement is a thing of the past, should spare a thought for Phakamisa Tozi, who has been detained in what is now termed “segre- gated confinement” for 293 consecutive days in Port Elizabeth’s St Albans Correc- tional Centre. This week Tozi launched an urgent ap- plication seeking a Constitutional Court or- der compelling Minister of Correctional Services Sibusiso Ndebele, the head of St Albans Maximum Correctional Facility, the area commissioner of correctional services and Minister of Justice and Con- stitutional Development Jeff Radebe to bring an end to his “unlawful segregation”. With a post-Marikana spotlight on South Africa’s increasingly dubious record of human-rights violations, it looks like Tozi will spend Christmas behind bars in a 4m x 3m single cell with 15 min- utes of exercise a day and drastically lim- ited privileges. For example, he is not per- mitted to attend church, school or communal exercise, has been barred from socialising with fellow inmates and has no access to reading material, TV or radio. Sentenced in 2009 to nine years for housebreaking and theft, Tozi, 29, has been held in segregated confinement since February 29 this year in contravention of the provisions of the Correctional Ser- vices Act which does not permit “segrega- tion” exceeding seven days. The act allows for a 30-day extension, only if a psycholo- gist certifies that further detention will not be harmful to the inmate’s health. In the past, solitary confinement was commonly employed as a punitive meas- ure for political prisoners. Now it appears criminals are suffering the same fate. In his Constitutional Court application this week, Tozi states that his continued segregation is unlawful in terms of South African law and infringes his constitu- tional rights – including his right to hu- man dignity, bodily and psychological in- tegrity, his right to be detained in conditions consistent with human dignity and his right not to be tortured or treated or punished in a cruel, inhuman or de- grading way. According to human rights lawyer Egon Oswald, who is representing Tozi, his ongoing segregated confinement is also in breach of South Africa’s international law and treaty-based obligations – particularly international principles relating to pris- oner rights, dignity, torture and cruel inhu- man or degrading treatment. “Tozi’s conditions of detention amount to torture. They contravene the Correc- tional Services Act of 1998, the South African Constitution and the UN Conven- tion on Civil and Political Rights…” After a fight broke out between a St Al- bans official and Tozi at the beginning of the year, Tozi claims he was assaulted by 10 correctional services officials, beaten with batons, kicked, hit and stabbed in the head with a knife by a warder before being placed in a single cell. Here, Tozi says, he was shocked by warders using shock- boards until a departmental official, who witnessed the assault, prevented the tor- ture from continuing. During the course of these assaults, Tozi sustained severe injuries to his head, face, legs, one of his hands and body, in- cluding two open bleeding head wounds. He was subsequently admitted to the re- gional hospital for six days before being re- turned to the isolation cell where he re- mains to this day. For the first 60 days of his segregated confinement, he was shackled inside his cell. Though prison officials have claimed that Tozi’s ongoing incarceration is a result of gang-related activities, he denies this in his Constitutional Court application. In May, Oswald wrote to the correc- tional services’ provincial commissioner, the minister of correctional services and the correctional services’ national com- missioner stating that Tozi was being de- tained under inappropriate inhumane con- ditions and demanding that his unlawful segregation be immediately terminated, but to no avail. As a result, two months ago Oswald launched an urgent application in the Port Elizabeth High Court to change the condi- tions of his client’s detention. When Justice Phakamisa Tshiki ruled that the matter was not urgent, Tozi was left with no alternative but to approach the Constitutional Court. “This is an extremely urgent matter,” says Oswald. “There’s no way the law per- mits segregated incarceration for a period of 292 consecutive days. If Tozi is guilty of an offence, he must be sent to court, tried and be sentenced. This is torture.” Now Tozi is claiming that his segre- gated confinement not only infringes his constitutional rights, but also poses an im- mediate threat to his mental and physical health. Following an earlier unlawful search by correctional services officials, Tozi was diagnosed with post-traumatic stress disorder and suicidal thoughts and started receiving treatment in late 2010. Tozi claims his mental and emotional state has deteriorated significantly since then as a result of his confinement. It’s not the first time allegations of tor- ture by prison officials in St Albans have come under the spotlight. In 2005, for example, prison officials went on a prison-wide rampage of as- saults, torture and beatings of inmates fol- lowing the stabbing of a warder. This re- sulted in former inmate Bradley McCallum, represented by Oswald, suc- cessfully prosecuting the government for violating its international treaty law obli- gations at the UN Human Rights Commit- tee in Geneva (UNHRC). McCallum and 230 others are now suing the minister of correctional services for damages in what is expected to be the largest damages claim ever brought against correctional services officials. The case is expected to be heard during the course of next year. Nonetheless, seven years later the warders implicated in these assaults remain in their jobs and a correc- tional services investigation has still not been concluded – in spite of an instruction by the UNHRC. Says Oswald: “Acts of seg- regation and torture are not limited to St Albans, this is a malaise occurring in pris- ons nationwide…” ● Carolyn Raphaely is a member of the Wits Justice Project. PHAKAMISA Tozi has neither been detained in solitary confinement in Port Elizabeth’s St Albans Correctional Centre, nor under “unlawful segregation”. Tozi’s incarceration is in accordance with the provisions of the Correctional Services Act. His rights have not been infringed. Tozi is known as a high-ranking leader of one of the prison gangs. Tozi assaulted correctional officials on two separate occasions. On February 19, 2012, Tozi stabbed an official (Mr Mahaluba) at St Albans, was found guilty, sentenced to 18 months imprisonment and reclassified as a maximum offender. Due to this classification, his transfer to Kokstad Super Maximum Correctional Centre is currently being processed. It is DCS’s prerogative to incarcerate offenders according to their classification and capacity of centres without prejudice. Tozi’s claims that he was assaulted by DCS officials are untrue. In fact, he has assaulted correctional officials on two separate occasions. Following the stabbing of Mahaluba, the offender was placed in the special care unit (a single cell, and not solitary confinement) in accordance with section 30 of the Correctional Services Act, Act 111 of 1998… The head of the maximum correctional centre applied for the extension of his incarceration in the special care unit to the area commissioner and approval was granted. This application was processed in accordance with section 30 of the Correctional Services Act. Tozi was to be transferred to Kokstad Super Maximum Correctional Centre after his reclassification as a maximum offender. Due to a pending criminal case against him, he has had to be kept at St Albans Maximum Centre pending the finalisation of this charge. This contributed to the number of days he was kept in the special care unit for security reasons. It was, and still is, practically impossible for the department to place the offender in a communal cell. URGENT MATTER: St Albans Correctional Centre inmate Wandile Tozi. DCS RESPONSE Solitary confinement case uncovers abuses After 293 days, man lodges Concourt application. By Carolyn Raphaely INJURY: Wandile Tozi has brought an urgent application to compel prison warders to stop assaulting him, and to ensure that he receives medical attention for his injuries. SAMANTHA HARTSHORNE SHOPPING malls around South Africa will be more than just a haven for buyers this festive sea- son. Thanks to Timberland, shop- pers can now also give to the needy at their favourite centres. “Old for New” bins in Timber- land stores aim to entice cus- tomers into donating second- hand clothing to The Star Christmas Fund beneficiaries, which include old-age homes, or- phanages, city welfare organisa- tions and NPOs. Shoppers not only get the chance to hand over used clothing to a bona fide distributor, but re- ceive 15 percent discount on Tim- berland purchase to boot. According to Bashir Bessy, re- tail manager for Timberland, the response to the charity drive has been overwhelming and the ini- tiative is a “good fit” for the out- door clothing brand’s core focus on recycling. “We are calling on people to donate their shoes and gear – any brand – for a good cause. People are taking off their shirts and shoes in store and walking out with the new ones on.” The bins were placed in all 24 of the outdoor and footwear stores countrywide on Friday for the festive shopping rush and will remain there early into the New Year. Timberland, an outdoor and footwear specialist manufacturer, has been trading in South Africa since 1996. After the Christmas season, the collected clothing will be dis- tributed to the underprivileged by the Star Christmas Hamper fund. The newspaper fund focuses on distributing food parcels to registered needy organisations at Christmas time and the same beneficiaries will be handed the collected clothing. Timberland sees the project as a local symbolic move to augment their brand in terms of protect- ing the planet. Their in-house earthkeepers range is the flagship green mer- chandise, sporting characteristic recycled soles and bio-degrade- able materials. “Timberland has been at the forefront of using earth-friendly products. As an outdoor brand we need to protect the outdoors or we (will perish). So getting second- hand clothing to the less fortu- nate is part of it,” said Bessy. Other earth-friendly projects include “re-netting” by re-using fishing web in a variety of ways and recycling coffee beans. Bessie says Timberland will be working with The Star on other initiatives, once the platforms for assembling the goods have been established in the stores. “It’s about time we showed the world that we can do something better than the rest.” BIANCA CAPAZORIO FACED with the prospect of huge crowds, pan-pipe Christmas car- ols on repeat and fights over park- ing spaces, more South Africans are opting to do their Christmas shopping online this year. South African site Kalahari.com, which sells every- thing from books to coffee ma- chines, says this week has been their busiest to date. The online retailer has seen a 30 percent in- crease in sales from last year. Their annual survey of shop- pers with an internet connection, released earlier this month, indi- cates that “more shoppers are foregoing the busy rush of festive shopping malls for the conven- ience of online shopping”, spokeswoman Liz Hillock said. Hillock said last year’s annual festive season shopping survey showed that only 13 percent of connected shoppers elected to hit the malls for their seasonal shop- ping – a number which had de- creased to 9.6 percent this year. The survey also showed that 92 percent were planning to shop online this year, up five percent from last year. Yuppiechef.com, a South African website selling cooking and kitchenware, said they were shipping double the number of daily orders this year. Gary Hadfield, chief executive of local online retailer Loot.co.za, said that, given the festive season trading period comprised just less than a quarter of their an- nual trading, “we tactically re- launched the Loot website at the end of November”. A survey this month of more than 6 000 shoppers, by online re- search group Columinate, found that 44 percent of South Africans still intended to shop in a mall. A third said they would buy certain things online. Old-clothes-for-new drive a good fit for Star charities More choose to do their festive shopping online OLD FOR NEW: Store manager Nondumiso Msikinya of the Timberland store in Hyde Park Shopping Centre holds up donated goods exchanged for 15 percent discount on new goods.
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WitsJustice Project senior journalist Carolyn Raphaely recounts the story of a St Alban's inmate who applied to the Constitutional Court after spending 293 days in solitary confinement, now known as "segregated confinement."
Transcript of Solitary confinement case uncovers abuses_Carolyn Raphaely
D e c e m b e r 1 5 2 0 1 2 S AT U R D AY S TA RNEWS8
ANYONE who thinks solitary con-finement is a thing of the past,should spare a thought forPhakamisa Tozi, who has been
detained in what is now termed “segre-gated confinement” for 293 consecutivedays in Port Elizabeth’s St Albans Correc-tional Centre.
This week Tozi launched an urgent ap-plication seeking a Constitutional Court or-der compelling Minister of CorrectionalServices Sibusiso Ndebele, the head of StAlbans Maximum Correctional Facility,the area commissioner of correctionalservices and Minister of Justice and Con-stitutional Development Jeff Radebe tobring an end to his “unlawful segregation”.
With a post-Marikana spotlight onSouth Africa’s increasingly dubiousrecord of human-rights violations, it lookslike Tozi will spend Christmas behindbars in a 4m x 3m single cell with 15 min-utes of exercise a day and drastically lim-ited privileges. For example, he is not per-mitted to attend church, school orcommunal exercise, has been barred fromsocialising with fellow inmates and has noaccess to reading material, TV or radio.
Sentenced in 2009 to nine years forhousebreaking and theft, Tozi, 29, hasbeen held in segregated confinement sinceFebruary 29 this year in contravention ofthe provisions of the Correctional Ser-vices Act which does not permit “segrega-tion” exceeding seven days. The act allowsfor a 30-day extension, only if a psycholo-gist certifies that further detention will notbe harmful to the inmate’s health.
In the past, solitary confinement wascommonly employed as a punitive meas-
ure for political prisoners. Now it appearscriminals are suffering the same fate.
In his Constitutional Court applicationthis week, Tozi states that his continuedsegregation is unlawful in terms of SouthAfrican law and infringes his constitu-tional rights – including his right to hu-man dignity, bodily and psychological in-tegrity, his right to be detained inconditions consistent with human dignityand his right not to be tortured or treatedor punished in a cruel, inhuman or de-grading way.
According to human rights lawyerEgon Oswald, who is representing Tozi, hisongoing segregated confinement is also inbreach of South Africa’s international lawand treaty-based obligations – particularly
international principles relating to pris-oner rights, dignity, torture and cruel inhu-man or degrading treatment.
“Tozi’s conditions of detention amountto torture. They contravene the Correc-tional Services Act of 1998, the SouthAfrican Constitution and the UN Conven-tion on Civil and Political Rights…”
After a fight broke out between a St Al-bans official and Tozi at the beginning ofthe year, Tozi claims he was assaulted by10 correctional services officials, beatenwith batons, kicked, hit and stabbed in thehead with a knife by a warder before beingplaced in a single cell. Here, Tozi says, hewas shocked by warders using shock-boards until a departmental official, whowitnessed the assault, prevented the tor-ture from continuing.
During the course of these assaults,Tozi sustained severe injuries to his head,face, legs, one of his hands and body, in-cluding two open bleeding head wounds.
He was subsequently admitted to the re-gional hospital for six days before being re-turned to the isolation cell where he re-mains to this day.
For the first 60 days of his segregatedconfinement, he was shackled inside hiscell. Though prison officials have claimedthat Tozi’s ongoing incarceration is a resultof gang-related activities, he denies this inhis Constitutional Court application.
In May, Oswald wrote to the correc-tional services’ provincial commissioner,the minister of correctional services andthe correctional services’ national com-missioner stating that Tozi was being de-tained under inappropriate inhumane con-ditions and demanding that his unlawful
segregation be immediately terminated,but to no avail.
As a result, two months ago Oswaldlaunched an urgent application in the PortElizabeth High Court to change the condi-tions of his client’s detention.
When Justice Phakamisa Tshiki ruledthat the matter was not urgent, Tozi wasleft with no alternative but to approach theConstitutional Court.
“This is an extremely urgent matter,”says Oswald. “There’s no way the law per-mits segregated incarceration for a periodof 292 consecutive days. If Tozi is guilty ofan offence, he must be sent to court, triedand be sentenced. This is torture.”
Now Tozi is claiming that his segre-gated confinement not only infringes hisconstitutional rights, but also poses an im-mediate threat to his mental and physicalhealth. Following an earlier unlawfulsearch by correctional services officials,Tozi was diagnosed with post-traumaticstress disorder and suicidal thoughts andstarted receiving treatment in late 2010.Tozi claims his mental and emotional statehas deteriorated significantly since then asa result of his confinement.
It’s not the first time allegations of tor-
ture by prison officials in St Albans havecome under the spotlight.
In 2005, for example, prison officialswent on a prison-wide rampage of as-saults, torture and beatings of inmates fol-lowing the stabbing of a warder. This re-sulted in former inmate BradleyMcCallum, represented by Oswald, suc-cessfully prosecuting the government forviolating its international treaty law obli-gations at the UN Human Rights Commit-tee in Geneva (UNHRC).
McCallum and 230 others are now suingthe minister of correctional services fordamages in what is expected to be thelargest damages claim ever broughtagainst correctional services officials. Thecase is expected to be heard during thecourse of next year. Nonetheless, sevenyears later the warders implicated in theseassaults remain in their jobs and a correc-tional services investigation has still notbeen concluded – in spite of an instructionby the UNHRC. Says Oswald: “Acts of seg-regation and torture are not limited to StAlbans, this is a malaise occurring in pris-ons nationwide…”● Carolyn Raphaely is a member of the
Wits Justice Project.
PHAKAMISA Tozi has neither beendetained in solitary confinement in PortElizabeth’s St Albans CorrectionalCentre, nor under “unlawfulsegregation”. Tozi’s incarceration is inaccordance with the provisions of theCorrectional Services Act. His rightshave not been infringed.
Tozi is known as a high-rankingleader of one of the prison gangs. Toziassaulted correctional officials on twoseparate occasions. On February 19, 2012,Tozi stabbed an official (Mr Mahaluba) atSt Albans, was found guilty, sentenced to18 months imprisonment and reclassifiedas a maximum offender. Due to thisclassification, his transfer to KokstadSuper Maximum Correctional Centre iscurrently being processed.
It is DCS’s prerogative to incarcerateoffenders according to theirclassification and capacity of centreswithout prejudice. Tozi’s claims that hewas assaulted by DCS officials areuntrue. In fact, he has assaultedcorrectional officials on two separateoccasions.
Following the stabbing of Mahaluba,the offender was placed in the specialcare unit (a single cell, and not solitaryconfinement) in accordance with section 30 of the Correctional ServicesAct, Act 111 of 1998… The head of themaximum correctional centre applied for the extension of his incarceration in the special care unit to the areacommissioner and approval was granted.This application was processed inaccordance with section 30 of theCorrectional Services Act.
Tozi was to be transferred to KokstadSuper Maximum Correctional Centreafter his reclassification as a maximumoffender. Due to a pending criminal caseagainst him, he has had to be kept atSt Albans Maximum Centre pending thefinalisation of this charge.
This contributed to the number ofdays he was kept in the special care unitfor security reasons. It was, and still is,practically impossible for thedepartment to place the offender in acommunal cell.
URGENT MATTER: St Albans Correctional Centre inmate Wandile Tozi.
DCS RESPONSESolitary confinement case uncovers abusesAfter 293 days, man lodges Concourt application. By Carolyn Raphaely
INJURY: Wandile Tozi has brought anurgent application to compel prisonwarders to stop assaulting him, and toensure that he receives medicalattention for his injuries.
SAMANTHA HARTSHORNE
SHOPPING malls around SouthAfrica will be more than just ahaven for buyers this festive sea-son. Thanks to Timberland, shop-pers can now also give to theneedy at their favourite centres.
“Old for New” bins in Timber-land stores aim to entice cus-tomers into donating second-hand clothing to The StarChristmas Fund beneficiaries,which include old-age homes, or-phanages, city welfare organisa-tions and NPOs.
Shoppers not only get thechance to hand over used clothingto a bona fide distributor, but re-ceive 15 percent discount on Tim-berland purchase to boot.
According to Bashir Bessy, re-tail manager for Timberland, theresponse to the charity drive hasbeen overwhelming and the ini-tiative is a “good fit” for the out-door clothing brand’s core focuson recycling.
“We are calling on people todonate their shoes and gear – anybrand – for a good cause. Peopleare taking off their shirts andshoes in store and walking outwith the new ones on.”
The bins were placed in all 24of the outdoor and footwearstores countrywide on Friday forthe festive shopping rush and willremain there early into the NewYear.
Timberland, an outdoor andfootwear specialist manufacturer,has been trading in South Africasince 1996.
After the Christmas season,the collected clothing will be dis-tributed to the underprivilegedby the Star Christmas Hamperfund.
The newspaper fund focuseson distributing food parcels to
registered needy organisations atChristmas time and the samebeneficiaries will be handed thecollected clothing.
Timberland sees the project asa local symbolic move to augmenttheir brand in terms of protect-ing the planet.
Their in-house earthkeepersrange is the flagship green mer-chandise, sporting characteristicrecycled soles and bio-degrade-able materials.
“Timberland has been at theforefront of using earth-friendlyproducts. As an outdoor brand we
need to protect the outdoors or we(will perish). So getting second-hand clothing to the less fortu-nate is part of it,” said Bessy.
Other earth-friendly projectsinclude “re-netting” by re-usingfishing web in a variety of waysand recycling coffee beans.
Bessie says Timberland will beworking with The Star on otherinitiatives, once the platforms forassembling the goods have beenestablished in the stores.
“It’s about time we showed theworld that we can do somethingbetter than the rest.”
BIANCA CAPAZORIO
FACED with the prospect of hugecrowds, pan-pipe Christmas car-ols on repeat and fights over park-ing spaces, more South Africansare opting to do their Christmasshopping online this year.
South African siteKalahari.com, which sells every-thing from books to coffee ma-chines, says this week has beentheir busiest to date. The onlineretailer has seen a 30 percent in-crease in sales from last year.
Their annual survey of shop-pers with an internet connection,released earlier this month, indi-
cates that “more shoppers areforegoing the busy rush of festiveshopping malls for the conven-ience of online shopping”,spokeswoman Liz Hillock said.
Hillock said last year’s annualfestive season shopping surveyshowed that only 13 percent ofconnected shoppers elected to hitthe malls for their seasonal shop-ping – a number which had de-creased to 9.6 percent this year.
The survey also showed that92 percent were planning to shoponline this year, up five percentfrom last year.
Yuppiechef.com, a SouthAfrican website selling cooking
and kitchenware, said they wereshipping double the number ofdaily orders this year.
Gary Hadfield, chief executiveof local online retailer Loot.co.za,said that, given the festive seasontrading period comprised justless than a quarter of their an-nual trading, “we tactically re-launched the Loot website at theend of November”.
A survey this month of morethan 6 000 shoppers, by online re-search group Columinate, foundthat 44 percent of South Africansstill intended to shop in a mall. Athird said they would buy certainthings online.
Old-clothes-for-new drivea good fit for Star charities
More choose to do their festive shopping online
OLD FOR NEW: Store manager Nondumiso Msikinya of theTimberland store in Hyde Park Shopping Centre holds up donatedgoods exchanged for 15 percent discount on new goods.
