14
[28] I turn to how the evidence of torture should be approached in the
light of the Constitution. On this matter the Constitution speaks
unequivocally. Section 12 states that:
‘(1)
Everyone has the right to freedom and security of the person, which includes
the right –
(a)
...
(b)
...
(c)
to be free from all forms of violence from either public or private sources;
(d)
not to be tortured in any way;
(e)
not to be treated or punished in a cruel, inhuman or degrading way.’
[29] There can be no doubt that the police violated all these rights in the
manner that they treated Ramseroop, and probably other witnesses, after
his arrest. On the face of it, the evidence obtained as a result of these
violations ought to be excluded because of its ‘stain’ on the
administration of justice.17 For present purposes it is necessary to deal
only with the electric shock treatment that Ramseroop was subjected to.
[30] The Convention Against Torture (CAT), which South Africa
ratified on 10 December 1998, defines torture18 to include:
‘. . . [A]ny 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 a third
person information or a confession . . . when such pain and suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public official or any
other person acting in an official capacity . . ..’
17
S v Tandwa above para 120; S v Pillay 2004 (2) SACR 419 (SCA) paras 9 and 11 of the judgment of
Scott JA.
18
Article 1.
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