Ref Not mEDECINS SANS FRONTIERS secrioN27 LAWYERS FOR HUMAN RIGHTS PEOPLE AGAINST SUFFERING, OPPRESSION AND poverty ane ‘THE DEPARTMENT OF HOME AFFATRS “THE NATIONAL DEPARTMENT OF HEALTH 'BOSASA OPERATIONS {P7¥9 LTD “THe SOUTH AFRICAN POLICE SERVICE ‘THE DEPARTMENT OF INTERNATIONAL RELATIONS: AND COOPERATION GP/2032/0134 a Oampiainant 2° Cumplainant a complatnant, 4 complainant, at Respandent Respondent 3" Respondent: 4” Respondent, 5% RemondentAa 12. 13. BASELINE INVESTIGATIVE REPORT amugepuction “The South Afican Human Rights Commission (the Commission) is an institution ‘establshed in terms of Secton 181 of the Constitution of the Republic of South ‘Africa, 1996 (the Constitution) “The Commission i specicaly mandated to Promote respect for human rg Promote the protection, development and attainment of human rights; and 1.23 Monitor and assess the observance of human rights in the South Arica Section 184(2) of the Consitution empowers the Commission to investigate {and report on the observance of human rights in the country and ta take steps to secure appropriate redress where human rights have been violated. The Human Rights Commission ct, 54 of 1994 (the HRCA)* provides the enabling framework for the exercise of the Commission's powers and imposes a ‘mandatory duty of cooperation on both pubic bodies and private individuals ‘Th mansory power, alin to ths instigation, confer by the HRCA hve na in any materi ‘way been ata by te provisos ofthe Sa Aras Hors Rights Cammison At No 0 of 2013,44, 1s. 2a. 22. 24, Section 9(6) of the HRCA determines the procedure to be followed in conducting an investigation regarding an alleged violation of, or threat to, a fundamental right CChepter 3 of the South Afiian Human Rights Commission's Complaints Handing Procedures (CHP), provides thatthe Commission has the juriscction, ‘after assessing a complaint for this purpose, to conduct or cause to be conducted, on its own accord or ypon receipt of a complaint, an investigation Inte any alleged violation ofor threat toa fundamental right ‘THE PARTIES ‘The First Complainant Is Médecins Sans Frontérs (MSF) an independent, International, medical humartarian organisation registered in South Africa as @ nomproft organisation (NGO) with ts principal place of busiress at 3rd Floor, (Oren Busing, 49 Jorssen Steet, Braamfontein, Johannesbure, ‘The Second Complainant is SECTION27, @ public interest itigation centre regstered as a NGO with its principal place of business at 23 Jorisen Street, 'Sthfloor Braamfontein Centre, Braamfontein, Johannesburg. ‘The Thied Complainant Is Lawyers for Human Rights (LR), an independent human rights organisation registered as a NGO with is principal place of bbushess at Kutiwanong Democracy Centre, 357 Visage Steet, Pretoria, ‘The Fourth Complainant is People against Suffering, Oppression and Poverty (PASSOP), a community-based NGO working to protect the rights of refugees, ‘asyum-seekers and immigrants in South Africa with its pincpal place of business at 37 Church Street, Wynberg, Cape Town.25. The Fist Respondent is the Department of Home Alfa (DHA), @ public body which fs accountable to the National Pariament of South Africa. The DHA is mandated inter aliato act asthe custodian, protector and verifier ofthe identity ‘and status of persons resident in South Afica; to control, regulate and faciitate immigration and the movement of persons through ports of entry and to determine the status of asylum-seekers and refugees in accordance with international obigations. The DHA is utimately “legally and administratively responsibe forall matters pertaining to the apprehension, holding, processing, repatiation and release’? of detainees at Undela. The DH's head office is at 909 Arcadia Sueet, Pretoria, 2.6. The Second Respondent is the National Department of Health (DoH), @ publi body whichis accountable tothe National Parlament of South Africa and which has overall responsibilty for healthcare in South Altica, with a specific responsibilty for publiesecar healthcare, The DoM's head office is at the Civitas Bulsing, Corner Thato Sehure and Struben Stree, Pretoria 2.1. The Third Respondent is Besasa Operations (Pty) Lid (Bosasa), a registered private company with its ariniepal place of business at 1 Windsor Road, Luipaardsvlel, Mogale Cty, Johannesburg. Bosasa Is contracted by the frst ‘Respondent to run the facies atthe Lindela Repartiation Centre (Lindela) 2.8 The Fourth Respondent is the South Affican Police Service (SAPS), a public body which is accountable to the National Parfament of South Africa and responsible inter ali for te upholiing and enforcing of the laws of South ‘ica. The SAPS head office is at the Koedoe Bulding, 236 Pretorius Street, Pretoria. The SAPS has been included as a Respondent, by vitue ofits role in * ofan basen center) 36ULZ7S/ndea-repartion cere,29, 210. au. 32, the apprehension, administration of and detention of nor-ationals presumed to be unlawfully n South Afi ‘The fit Respondent is the Department of International Relations and Cooperation (DIRCO), a public body which is accountable to the Nationa Parliament of South Africa and responsible for the foreign policy and International relations of South Aca, The DIRCO's head office is at 460 Soutpansberg Road, Pretoria, ‘The Second, Fourth and Fifth Respondents, although not parties to. the investigation, are cited as such on the bass of the respecte recommendations ‘rected to them resting rom this investigation. ‘BACKGROUND TO THE COMPLAINT (0n 28 May 20%2, the Commission received a writen complaint from the frst to fourth Complainants. “The complaint was premised on vatious grounds for concem that fed to the ‘Complainants all for an investigation into the the state of health and provision of health care services at Lindel, These grounds are a follows 3.24, The first Complainant, on 30 November 2011, requested access to LUndela for the purposes of conducting an independent medical ‘assessment ofthe state of health care provision at that facity. In denying this request, the Chief Director of the Immigration Directorate for the Department of Home Alfa, Mr Modi Matthews, indicated that the second Respondent and the Commission were the relevant bodies tasked with oversight over322, 323 3.24, 3244, $24.2, operations at Lindela in relation to medical standards and human Fights respectively; ‘An alleged lack of oversight at Lindela generally, in light ofthe lack of access accorded to independent human rights organisations spite reports of human rights volations; ‘That officals of the third Respondent allegedly indicated to the third Complainant that itis no longer responsible for health care services at Lindel Findings reported by various studies reiting to condtions at Lundeia that could impact an the state of health of detainees held there, These included! 'A finding In 2000 by the Commission that many detainees had complained of fimited access to medical care at Lindela as well as further findings in the same study indicating that there had been non-compliance by the then service provider at Lindela (Dyambu: Holdings), with regard to mera recommendstions and that periods between the serving af meals were too lengthy 'A 2010 report by the Forced Migration Studies Programme reporting thet detainees on chronic mediation, including anti= retroviat (ARV) treatment, eported not being given access to such medication This report further found thit a large number of etainees who had sought medical care were not satisfied that their condition had been adequately treated and that a large percentage ‘(pasa ara Cosson er Beterton ard Reparton: An asassvet of be canton of detention bythe Sau Aeon Maman fights Conlon” (Deeb 2000) arable st Fp or gucer.casomo/miratenesoarcs)erochaioreors/stre pd [Reith sst the Vortn Imeguzites nt Octet and Deparation ot Norio In Sou ‘nce (S010 faced tegration Shaes Posarme salle t Fo: nonroatin or sts ceaties/eprtf2010Lo5 nthe Vore Tapia Phe beertio and Deportation o Nan Asters Souh, is Oph32.43, 32.44, 4 101 of reported incidences of violence Involved officials ofthe frst and / or third Respondents* ‘A 2012 submission by the third Complainant to the Spedal Rapporteur on the Human Rights of Migrants in which it reported fon commen complaints by detzinees who were consulted at LUndela Such complaints included allegations of Inadequate medical cate and a neglect of the psychological wellbeing of detainees;* and In a report by Solidarity Peace Trust and the fourth Complainant, based on the results ofa 2012 survey, respondents indicate a lack of accezs to medical services at inde (this included ARVE)? Tri report futher indicated theta large numberof respondents alleged thet they fad been held In detention for more than 120 (one hundred ara twenty) days.* Reports received about a male whase meningts infection hac allegedly been mistreated by the fist Respondent and whose famiy was reportedly only informed of is hospitalisation approximately two months after his admission to hospital. 4.2, The Commission confirmed acceptance of the complaint in terms ofits CHP on the basis of prime face violations of human sights. On that basis, the Commission instituted an investigation ofthe complaint Tye Commsion was ova Sa of, but ot roid wih copes of he “DXA 1724 Nace of Deporstor end hates of Daten vray Afexting igs ofa Pera fms.7.7.2.6. Have thelr detertion for the purposes of deportation confirmed by a warrant of court. ILD. — Officials at Undela make use of a checkist™ to ensure al appropriate forms, including those mentioned n paragraphs 7I2A4 and 7.7.25, ate provided by the relent authorities. Detainees for whom such forms are not provided are not admitted to be detained at Lindela;>* 7.1.28, With regard to detainees’ right not to be detained for a period exceeding 30 (thity) calendar days, without 2 warrant of a Court extending such period, Mr Jackson indicated that, as detainees are made aware of their rights at the arrest stage, they are simply informed, should such an extension become necessary, that ‘an appliation wll be made to Court. As. The Commission noted that the forms described in paragraphs 7.7.24 and 7.725 above recognise the language needs of detained persons and make provision fora translator to be used to communicate its contents and for such interpreter to certiy the Interpretation and communication, 7.8. Post fled investigation comments provided by Complainants: 7.81, The thi Complainant provided the following response to comments made by Mr Jackson inthe past fld interview above: 5 copy of hich was roid to ad accepts by he Comision. she Cammacon smi at aero tested te veracty of th Rescordents reponse this rogue by vertyng, trough tered, that he vats sation had been proved othe (ddarens parscoag in fa rn ne paragraph 7 above). The statin onthe vette tea ints reoard ws arouse apa tote fac that he into vee corde te bass of (garartcs of arenyvty provided to respondents (se paragraph 6 142 sbove) Sesion 3H) oF See prayanhe 7.724 and 7.7.25 above, 2 See pragph 78.21 ote,78.1.1. That the third Complainant does sometimes act as legal counsel for issue a joint report to the Commission within three ($) monte from date of receit ofthis report regarding the steps to be taken by the departments to Implement such a system, and the Umalines for implementation of the system; 1 special report tabling detals of detanees in detention In excess cof 120 (one hundred and twenty) days at Lindela and the date of their expected release Isto be provided to the Commission within 48 {forty eight) houss of recelpt here 103. WITH REGARO TO THE FINDINGS RELATED TO HEALTH CARE “The Commission recommends as follows: 1034 103.2 103.21, 103.22. 103.23, 103.24 103.25. “That the frst Respordent unaertake afl Independent audit of the existing conditions ane practice Impacting on the right of detainees te access health care. “That the fst Respondent, within 3 (three) months from date of receipt of this repo, provide the Commission with a ‘comprehensive eport outlining: “The challenges ithes identified; “The steps it wil take to remedy such barriers to the realisation of the right to healthcare; “The timelines within which wl do 30; ‘Timelines within which the needs of persons alreaay in detention at the time ofthis report wl be addressed; and ‘Steps that wil be taken to ensure tha the rules and guidelines are ‘also made applicable to the fourth Respondent ard any other authority responsible fr the arrest or detention of foreign nationals for the purposes of deportation.3033. wo.334. 10.332. 10.333. 10.23.34. 103.35. 10.5, 103.4.. 103.42. 103.43. 10345. 103.45, 103.47, 103.48, Ln this regaed, the Chmmision requests thatthe folowing areas of concern be specially addressed: ‘Tha feck of amulabifty of eonoms; ‘ike faci oF guldaiines for heeith screzntag et the point of entry, ‘The leek of gullelines to aneure continuity of trantment eth respect to chranie medication, pertlcviary with regard to T8and HY treatmendy Theteck of YEH aad ‘The feck of mansures to ensure 2 continuum of care afeer deportation, {In thi regard, the fist and second Respondents are to: Take into account the guidelines developed by the second Respcndent and by the Southern Aftican HIV Cinicians Socety; Consier the davelopment ofa cross-border referal sjstem; Consier a system for the provision of raferra latters and butter for tele! steels of madieation for detainees on chronic medication; Consider partnering with vl society organisations to ensure provisina of information at distention cantrae snd at crass border reception centras about where health factities In the destination country ean be sccsssed. ‘Steps to ensure special provision for TB testing and for transfer of Infected persons to isolation areas, which recewe adequate ventilation and sunlight or utraviolet germicidal ght; “The Inek of paychological core; “The unevaliobllty of tetanus vaccines; Overcrowsling in rooms;103.49, The tims intarel betwen the serving of tha evening meal ad brawlcfast not complying with the time-periods prescribed the Regulations to the TA; and 10.34.10, A possible lack of appropriate and comprehensive training forall relevant staf. 11, ABPEAL ‘You have the right to lodge an appeal against this decison. Should you wish to lodge such an appea!, you are hereby advised that you must do so in writing wtnn 45 days ofthe date of recelnt ofthis finding, by writing to: ‘The Chalrperson, Ady M.L. Mushwane South African Human Rights Commission. Private Bag X2700 Houghton 2oea soso or —Losannajerntsor 5 8 IEE ow 2014. SsSmy=s Tir Mushwane Chairperson South African Humen Rights Commission