The Star THURSDAY OCTOBER 30 2014 13INSIDE

Masipa was wrong: the criminal justicesystem can cost the poor everything

ROBYN LESLIE, CAROLYN RAPHAELYAND RUTH HOPKINS

‘IT WOULD be a sad day if theimpression is created that one lawcounts for the poor and anotherfor the rich and famous,” Judge

Thokozile Masipa told the world last Tues-day when she sentenced Oscar Pistorius tofive years behind bars.

She listened carefully to the testimonyof acting National Commissioner of Cor-rectional Services Zach Modise and con-cluded she “had no reason to believe SAprisons would not be able to cater to theneeds of a disabled person”.

After dismissing the testimony of socialworker Annette Vergeer, who painted a dis-mal picture of correctional facilities, inscathing terms as “sketchy, outdated anduninformed”, Masipa described Modise asa “reliable and credible” witness.

Listening to the picture he painted ofour jails as places of safety and rehabilita-tion, informed observers were left wonder-ing if the court was made aware of theannual report of governmental prisonwatchdog – the Judicial Inspectorate forCorrectional Services (JICS).

It was presented to the parliamentaryPortfolio Committee on Correctional Ser-vices last Tuesday, with Modise in atten-dance. The Department of CorrectionalServices’s (DCS) own annual report alsosuggests a rather different situation.

Though Vergeer’s information mayindeed have been outdated, the JICS’sreport, for example, details a worrying risein the use of force in correctional facilities.In 2013/14 a total of 4 203 complaints alleg-ing assaults on inmates by officials werereceived by JICS representing a 25 percentincrease compared to 2012/13.

The Inspecting Judge of Prisons, VukaTshabalala, also voiced grave concernsabout the methods used by DCS’s Emer-gency Support Team (EST), with the reportspecifically noting the mass assault ofinmates by the team during a search forcontraband at St Albans earlier this year.

“There is prima facie evidence,” thereport stated, “that inmates were assaultedand tortured during the EST operation.”

The department itself noted several wor-rying trends in its 2013/14 annual report;7 370 inmates, for example, were assaulted.

While it fails to mention by whom – war-dens or inmates – it does detail that only 130internal disciplinary procedures were insti-tuted against wardens. There were 61unnatural deaths – not caused by illness orage – in prisons in 2013/14 with 21 being sui-cide, nine dying as a result of an assault and24 whose cause of death was “unknown”.

Furthermore, 15 percent of remanddetainees are in custody despite havingbeen granted bail. And nearly a third of theinmate population is in jail awaiting theirtrials. These presumed-innocent prisonersawait the finalisation of their trials inseverely overcrowded cells.

Yet Masipa told the court she had “nodoubt that if prisons fell below standard theever vigilant human rights organisations inthis country would take action”. The Wits

Justice Project regularly receives, investi-gates and writes about profound human suf-fering in our jails in both local and interna-tional media. The stories are in line withthe statistics in JICS and DCS reports.

With a focus on miscarriages of justiceand human rights abuses related to thecriminal justice system, the Wits JusticeProject has conscientiously exposed issueslike the fate of disabled prisoners, torturein prisons, the spread of deadly diseaseslike TB and severe overcrowding, to namejust a few serious issues Modise glossedover while testifying at the trial.

Perhaps the judge was unaware of thefire Modise came under from the Parlia-mentary Portfolio Committee on Correc-tional Services the previous day regardingDCS’s investigation into allegations ofwidespread human rights violations –including electroshocking and forced injec-tions of psychotropic drugs – at Mangaungprison in Bloemfontein. A year after theinvestigation ordered by former minister ofcorrectional services Sbu Ndebele, Modisesaid he was unable to produce the report.

Luckily for Pistorius, his fame andwealth mean he’ll probably inhabit a priv-ileged and protected parallel prison uni-

verse, not that of ordinary inmates. If the“trial of the century” emphasised onething, it was that the justice system oper-ates very differently if you are poor, black,male and without fame or notoriety.

Was Pistorius’s trial for the killing ofhis girlfriend, Reeva Steenkamp, truly rep-resentative of how criminal justice is typ-ically practised here? The facts suggestthis was not the case. Pistorius’s charge,trial and sentencing were completed in aremarkably speedy 20 months.

The trial was exceptional, not only forits shock value and media attention, but forthe manner in which criminal procedureunfolded and this began with bail.

The ability to hire and pay for a privatelawyer – as in Pistorius’s case – to argue ina three-day bail hearing, is certainly notthe case for the majority of South Africanswho must rely on over-extended lawyersprovided by the state via Legal Aid SA,which tackles more than 380 000 criminalcases a year with a budget of less than halfthat of the National Prosecuting Authority.

The heavy burden of such a large caseload makes the kind of arguments thatconvinced the court of Pistorius’s appro-priateness for bail less likely. The Parlia-

mentary Portfolio Committee on Justiceand Correctional Services has called thissituation “economic apartheid”.

Accused of a violent crime and demon-strably able to move about freely aided byhi-tech prosthetics, Pistorius was grantedbail and a subsequent relaxation of his bailconditions enabling him to holiday inMozambique and drink alcohol.

Compare that to the case of nappy-wear-ing paraplegic Ronnie Fakude, paralysedfrom the waist down after being the victimof a botched hijacking. DCS was unable tosupply fraud-accused Fakude with therudimentary comfort of a wheelchair.

He was denied bail for 28 months beforehe was released with an electronic moni-toring tag attached to his paralysed leg.

This speaks volumes about equalitybefore the law.

Three years after Fakude’s initial incar-ceration in Bloemfontein’s Grootvlei prison,his trial is far from over while Pistorius’strial was done and dusted in fewer thanseven months. Over 2 000 South Africanshave been awaiting trial for over two years.

DCS is making a concerted effort toreduce this number – including a compul-sory case review for remand detainees

awaiting trial for more than 24 months andthe electronic monitoring project designedto relieve over-burdened facilities.

Nonetheless, justice delayed is justicedenied and the wait can have horrific con-sequences for those who can’t afford costlycounsel. South Africa’s longest servingremand detainee, Victor Nkomo, awaitedhis trial for nearly eight years in Joburg’snotorious Sun City prison while repeatedlyattempting to challenge his unconstitu-tional lengthy incarceration.

Eventually, he saw no option other thanto plead guilty to a lesser charge, receiveda suspended sentence and was releasedearlier this year.

Or take the case of David Mkhwanaziwho, when late for work and running forhis train, was arrested, supposedly sprint-ing away from the scene of a recent mur-der. After six years behind bars (where hecontracted TB), Mkhwanazi was releasedwhen the judge deemed the evidenceagainst him non-existent.

Thuba Sithole is currently doing timein Leeuwkop prison. His crime? The factthat his girlfriend’s name is Ayanda. Con-victed of an attempted hijacking that hisPick n Pay employee log shows he was

incapable of committing, he had the mis-fortune to have a girlfriend who shared aname with the real culprit, who was alsorounded up: Ayanda Nene.

His phone records showed “Ayanda” inthe contacts list, which was highly suspect,according to the presiding magistrate,Phanuel Mudau. The police didn’t botherto phone the Ayanda listed on his phoneand phone records were not submitted asevidence. Nonetheless, Sithole was sen-tenced to 15 years in prison, which wasconfirmed on appeal.

Perhaps the most shocking example ofLady Justice turning a blind eye to theindigent is the experience of Fusi Mofo-keng and Tshokolo Mokoena. Wrongfullyconvicted for shooting and killing a policeofficer in 1992, their four co-accused weregranted amnesty by the Truth and Recon-ciliation Commission.

Mofokeng and Mokoena remainedbehind bars for 19 years because theyrefused to confess to a crime they nevercommitted. Released on parole in 2011, themen are still bound by parole conditionsand carry a criminal record.

Few South Africans have the actingnational commissioner of correctionalservices enter their court record – furtherevidence of Pistorius’s exceptional treat-ment. But while the state was persuasivelyexplaining how Pistorius’s disability willbe carefully and ethically navigated –including a full medical exam within sixhours of entering prison, a spot in the hos-pital wing, or the promise of a single cell –other disabled inmates have not been sothoroughly considered.

Former Kgosi Mampuru inmate EricViljoen, who has a prosthesis after losing aleg in a train accident, told the Wits JusticeProject how he was forced to navigate 56steps five or six times a day in the prison’sE section where he spent the last 10 monthsin an overcrowded communal cell.

Even so, the likelihood of Pistorius fac-ing overcrowding or inadequate medicalattention is slim – particularly sinceModise’s promise that he would be accom-modated in a single cell in the prison’s hos-pital section was broadcast worldwide.

So where does this leave those withoutmoney, fame and power – some of whomhave been wrongfully accused and nearlyall of whom are poor, male and black?

Pistorius has received a fair trial, andthe sentence he received is in line with theverdict that was handed down by JudgeMasipa, even though the NPA now plans toappeal it.

His well-run trial does not automati-cally mean our criminal justice system isconsistently high-functioning though; Pis-torius’s wealth and privilege have ensuredhis human rights were respected.

Those citizens who cannot afford to payto uphold their human dignity are facedwith a criminal justice system that is puni-tive towards the poor. Indeed, last Tuesdaywas a sad day in South Africa.

Robyn Leslie, Carolyn Raphaely and RuthHopkins work for the Wits Justice Project which

investigates miscarriages of justice

CASE IN POINT: Oscar Pistorius is led away as crowds and media chase the Nyala outside the high court in Pretoria to begin his jail term. The writers saythat contrary to what Judge Thokozile Masipa claimed last Tuesday, there is rich justice, and then there is poor justice. PICTURE: BONGIWE MCHUNU

Oscar Pistorius was lucky. His wealth ensured his dignity was respected. There are countlessexamples of indigent prisoners who wait too long for a fair trial if, indeed, they ever get one

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