Parolee Sabelo Ngani remains angry. “I’m still saying I didn’t do this thing because I didn’t,” he says. Cases like his are just the tip of the iceberg, writes Carolyn Raphaely
After nearly 11 long years behind bars for the gang-rape of 24-year-old Mpho Suping, Sabelo Ngani was released on parole from Johannesburg Correctional Centre last month. He was still protesting his innocence.
“My conscience is completely clear,” he told the Wits Justice Project (WJP), “I’m not a rapist. Absolutely nothing links me to this crime except the claimant’s testimony.”
Sometimes truth is stranger than fiction. Though Suping testified in open court that Ngani was the first of six men to rape her, his three co-accused all arrested at the crime scene in various stages of undress testified that Ngani wasn’t present.
According to Constable Colin Sithole, Suping was “heavily under the influence and couldn’t speak”.
She was “totally drunk” when he took her to hospital shortly after the rape.
This meant he was unable to obtain her statement until the following day when Sithole arrested Ngani.
What’s more, DNA tests were inconclusive. No semen was found on three vaginal swabs taken from Suping nor was any DNA evidence found matching Ngani’s blood or pubic hair.
“The statement of the security guard who called the police to the rape scene next to Florida train station is missing from the docket and he wasn’t called to testify,” Ngani adds.
Nonetheless, in 2007 Ngani was sentenced to 18 years in prison and convicted on the sole eyewitness testimony of the rape survivor.
Now, despite his new-found freedom, Ngani can think about nothing except appealing his case, establishing his innocence and having his conviction and sentence set aside.
Though neither the National Prosecuting Authority nor the Department of Justice and Correctional Services keep records of wrongful convictions, anecdotal evidence in the form of letters from inmates received by the WJP and reports from correctional officials suggest cases like Ngani’s are just the tip of the iceberg.
In the US, wrongful conviction exonerations are common. Most get little publicity. Last year, the US National Registry of Exonerations recorded 149 wrongful convictions – an average of three exonerations a week. And in the past 25 years since the register was established, nearly 1 800 innocent people, serving sentences of life and even death, have been released after being incarcerated for decades.
A former tractor-parts salesman with a mechanical engineering diploma and an IT diploma acquired in prison, Ngani, 39, protested his innocence from the moment of his arrest.
“My mother paid a private lawyer R16 000 in cash which she borrowed to appeal my case. She never got a receipt and the lawyer stopped taking our calls. We had no more money and never heard from him again.”
Nine years after being sentenced and due for parole, Ngani still refused to accept responsibility for Suping’s rape or show remorse.
The conundrum, however, is that in terms of the Department of Correctional Services’ (DCS) Restorative Justice Programme which all long-term offenders are expected to complete, remorse is almost a quid pro quo for parole.
“The criminal justice system has betrayed me and failed me,” Ngani says. “I’m a law-abiding citizen. How could I show remorse? The lady I was accused of raping is no longer alive – she died of unrelated causes – but even if she was, I was never going to apologise.”
Though Ngani fulfilled all the Parole Board’s (PB) requirements – including completing and repeating three anger-management courses, sex-offender courses and life-skills – he was refused parole three times.
“There was absolutely no benefit in refusing to admit guilt,” he explains. “All that happened was the board said I was disrespectful, argumentative, in denial, my attitude showed the programmes had no effect and I was denied parole. If I told them what they wanted to hear, I’d have been out sooner.”
Ngani was finally released after lodging a notice of motion in the high court in Joburg compelling the board to comply with an earlier court order granting him parole.
“I swear between you, me and God that I never committed this crime,” Ngani told Justice Sharise Weiner during an emotional courtroom outburst.
Unable to comment on the merits of Ngani’s case but moved by his insistence that he’d been wrongfully convicted, Weiner referred the matter to the WJP for further investigation. Currently classified as a high-risk parolee and under house arrest, Ngani remains emotional and angry.
Director of the University of Cincinnati’s Ohio Innocence Project (OIP) Professor Mark Godsey believes that “in the US, faulty testimony – caused by errors in perception and memory – is the single greatest cause of wrongful convictions".
"Of the first 325 DNA-based exonerations in the US, 75 percent involved mistaken eye-witness identification testimony. Bad forensic testimony was the second major cause.”
Take for example the case of Ricky Jackson, the longest-serving exoneree in US history. After spending 39 years behind bars – including two on death row – for a crime he didn’t commit, Jackson was exonerated two years ago. He was convicted on the eyewitness testimony of a 12-year-old boy who, at 51, finally recanted.
He was persuaded by a priest to admit he lied to the police, prosecutors and juries after being intimidated into giving false testimony. He said the police told him his parents would be imprisoned for perjury if he told the truth. Meantime, Jackson, sentenced to death by electrocution for the murder of a Cleveland businessman, escaped that fate on a technicality.
“Human memory is fallible in SA, just as it is in the US. Eyewitnesses get it wrong more often than the typical person on the street expects,” Godsey notes. “We must be very cautious, and consider possible innocence when a case is based on shaky eyewitness identification and other evidence does not corroborate the conviction.”
In addition to mistaken eyewitness testimony, Godsey says other causes of wrongful conviction are malleable memory, corruption, false confessions, unreliable forensics, tunnel vision and confirmation bias on the part of the police and prosecutors as well as police misconduct. Not to mention bad defence lawyering.
And Godsey knows what he’s talking about: Since he established the OIP in 2003, the organisation has investigated thousands of Ohio inmates’ claims of innocence and master-minded 24 exonerations.
In South Africa, the cases of Thembekile Molaudzi, Boswell Mhlongo and Disco Nkosi, whose convictions were overturned by the Constitutional Court last year with the assistance of the WJP, drew attention to the fallibility of our criminal justice system.
The only evidence implicating the men, found guilty on four counts including murder and robbery, was the recanted confession by a co-accused whom a full bench of the North West high court described as a “reckless liar”.
During a bungled investigation characterised by incompetent investigation, no gun residue was found, there were no witnesses, no independent corroboration, no fingerprints and no tangible evidence linking them to the crime. All the accused pleaded not guilty but all were convicted and sentenced to life by Justice Monica Leeuw, now North West judge president.
The men’s appeals were subsequently dismissed by the high court and the Supreme Court but were ultimately successful in the Constitutional Court.
Molaudzi’s appeal was initially dismissed by Concourt as well on the grounds that “it had no reasonable prospects of success”. However, he made legal history when Concourt overturned its own ruling for the first time and issued his warrant of liberation.
The men collectively spent 37 years behind bars for crimes they did not commit.
In all likelihood, there are many more Molaudzis, Mhlongos, Nkosis and Nganis languishing behind bars. The majority of inmates have no means of proving their innocence, obtaining DNA evidence or any other new evidence, few can afford private lawyers and Legal Aid lawyers don’t have the resources to conduct investigations on their behalf.
Ngani is hopeful that hunting down the missing testimony of the security guard and further DNA testing will assist in securing his exoneration.
Though there hasn’t been a single post-conviction DNA-based exoneration known to the WJP recorded in South Africa, to date 343 people in the US have been exonerated by DNA testing – including 20 who did time on death row.
For example, Steven Avery, subject of the popular Netflix documentary Making a Murderer, served 18 years for attempted murder and sexual assault before being exonerated by DNA in 2003.
Arrested again in 2005 for murder, Avery continues to protest his innocence and what he claims to be his second wrongful conviction. Only time will tell. Coincidentally, the day after Ngani’s release, the conviction of Avery’s co-accused nephew Brendan Dassey – a 16-year-old with an IQ of 70, brow-beaten into an involuntary confession – was overturned by a US court.
“My mother says I must just move on, but I don’t know how to do that. I can’t begin to explain how much pain I’ve been in since my arrest in 2003," says Ngani.
“I can’t rebuild my life until I’ve cleared my name. I need to appeal my case and for justice to be served. I’ll take this to the highest court in the land if I have to.”
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What is restorative justice?
According to DCS spokesperson Manelisi Wolela: “Restorative justice programmes are not compulsory and offenders engage voluntarily. Participation in these programmes gets considered by correctional supervision and parole boards when considering the suitability for parole placement of offenders.
“Remorse and taking responsibility for crimes committed are just some of the factors which are taken into consideration when an offender’s possible placement on parole is due.
“When the possible placement of an offender on parole is being considered, various factors are taken into account. They include the offender’s response to rehabilitation programmes, which includes participation in restorative justice programmes, the existence and quality of support system in the community and their families, the probability of re-offending and the risk such an offender may pose to the community at large, as well as the risk to the victim/s.
“These factors are considered by the case management committee as the basis for its recommendation to the parole board to take a decision, or further recommend to other delegated structures.
“According to restorative justice values and principles, an apology from any offender has to come voluntarily; no one should be coerced or forced.”
* Carolyn Raphaely is a member of the Wits Justice Project (WJP) which investigates miscarriages of justice related to the criminal justice system. The WJP is based at Wits’s journalism department. Raphaely was recently a guest of the University of Cincinnati’s Ohio Innocence Project