Johannesburg - While Oscar Pistorius sobbed uncontrollably in the North Gauteng High Court two weeks ago, hundreds of kilometres away in the Bloemfontein Regional Court tears of joy and relief rolled down the cheeks of paraplegic fraud-accused Ronnie Fakude.
Sitting in a wheelchair in a dressing gown and pyjama pants, Fakude had just heard that he had been granted bail after 28 months awaiting trial behind bars, and was set to become an electronic monitoring “guinea pig”.
As South Africa’s first remand detainee to be electronically tagged, Fakude, 50 agreed as a condition of bail to participate in a Department of Correctional Services electronic monitoring pilot project which has to date involved only sentenced offenders.
On his release from Grootvlei Correctional Centre, an electronic tracking device was attached to his right leg, permitting his movements to be tracked.
“My main restriction is that I can’t leave the Joburg area,” Fakude said. “Otherwise, I can’t feel the device. I can even bath with it.”
Magistrate Rashid Mathews’s decision to grant Fakude R10 000 bail was relayed to him and Bastiaan Theunissen, his legal aid lawyer, not one moment too soon.
“I can’t go on like this,” Fakude told the court earlier in a tearful whisper. “I’ve only coped until now by the grace of God.
“I have no bowel or bladder control, which is why I wear nappies. I got TB while I was in Joburg prison prior to moving here which means I have a compromised lung and am prone to infections.
“Paraplegics need special diets and I have indigestion because of the bad prison diet. I have ulcers which cause me terrible pain.
“I have one kidney and my intestines are sutured because of injuries from my hijacking. I have pains and pins and needles throughout my body because I can’t exercise or get physiotherapy.”
While Pistorius’s trial is being battled by South Africa’s best legal brains, Fakude’s reliance on legal aid, repeated postponements of his trial are symptomatic of rich man’s justice and a disturbing inequality before the law for the poor.
How Shrien Dewani, now awaiting trial at Valkenberg pyschiatric hospital, is treated remains to be seen. The harsh truth is that those with money and privilege fare far better on the justice continuum than the poor or indigent from the moment of arrest, and this often starts with bail.
Like Pistorius and Dewani, Fakude theoretically remains innocent until proven guilty. Unlike Pistorius, who was granted R1 million bail and a subsequent relaxation of his bail conditions permitting him to travel and drink alcohol, Fakude never applied for bail because he believed he couldn’t afford it – his co-accused were granted bail of R15 000, a sum beyond his means.
While Pistorius has spent the past year awaiting trial in his uncle’s luxury Waterkloof mansion and holidaying in Mozambique, an indigent Fakude whiled away his time in a chronically overcrowded prison cell designed for 32 men but housing 88.
A year ago, by order of the court, Fakude was transferred to the prison’s hospital section which he describes as a converted cell where nine inmates died in adjacent beds.
According to Minister of Correctional Services S’bu Ndebele, about one third of South Africa’s approximately 157 394 prison inmates are remand, or awaiting-trial detainees.
About 15-20 percent are in custody because they can’t afford bail.
The majority have been accused of relatively petty crimes but are forced to await trial with murderers and rapists in the overcrowded, inhumane conditions that characterise remand facilities.
When Fakude’s family managed to raise the requisite funds for bail last year, his application was turned down in the light of a previous fraud conviction and the possibility that he might re-offend.
However, a court order stipulated that the department provide Fakude with a physiotherapist, occupational therapist, stoma sister, dietician and a psychologist – conditions the prison proved unable to meet.
Luckily for Fakude, he was able to re-approach the court in terms of a newly promulgated amendment to the Correctional Services Act – section 49G – which stipulates that a remand detainee may not be incarcerated for more than two years without his or her case being re-evaluated by the court.
During the course of this application, Fakude described his struggle to survive and the department’s failure to meet its obligations.
He told Mathews that in spite of the court order, he’d seen a stoma sister once to learn catheterisation techniques but was never provided with a catheter.
He saw a psychologist twice who told him his job was to consult with sentenced offenders, not remand detainees: “When I started crying, that psychologist said I was angry. I told him I was crying from the pain of ill-treatment, not anger. I never saw him again.”
After four appointments with a physiotherapist, whom he last saw 10 months ago, Fakude said he had forgotten everything he learnt.
As for the special diet prescribed by the prison dietician, according to Fakude, the warder-in-charge told him “jy sal nie rys in die tronk eet nie; jy is nie ’n blanke of ’n celebrity nie” (you will not eat rice in this prison; you are neither a white nor a celebrity).
Moreover, since the department was unable to provide him even with the rudimentary comfort of a wheelchair, the incapacitated inmate had been forced to drag himself daily to the kitchen on crutches “pulling his legs and throwing them to the front”.
To make matters worse, the court order stipulated that Fakude “must be kept in the hospital section and cared for properly. He must be helped to use the toilet and helped to bath as well”. No help was forthcoming.
“It’s a problem for me to get to the bathroom,” Fakude told the court. “Sometimes inmates who work as cleaners in the hospital help me but usually I crawl to the toilet.
“I suffer from chronic diarrhoea and sometimes mess up. There’s no toilet door and no privacy when I have to change my nappy.
“The cleaners help me clean the stool but don’t help clean me. If no one helps me to the bathroom, I have to pee in my nappy. The urine burns my private parts and the skin peels off because it is wet.”
The unwillingness of prison officials to assist the paraplegic was demonstrated in a letter written by Grootvlei Medium prison head Thamsanqa Nelane and submitted to the court.
“Various professionals… all confirmed that Fakude is not paraplegic as he alleged, can still stand and walk with both feet, but need walking crutches,” Nelane wrote.
Three months before, prison doctor Margaret Bikane had testified that she’d seen Fakude walking in the prison corridors.
To ascertain whether Fakude was shamming, Mathews referred him to independent Universitas Hospital neurologist Frans Kruger who confirmed “a lower motor neuron injury, that Fakude had no function of his lower limbs and that his condition (paraplegia) is permanent”.
Nelane chose to accept Bikane’s opinion rather than rely on the results of an MRI and Kruger’s report.
Superficially, Pistorius, Dewani and Fakude seem to have little in common.
Yet in terms of Correctonal Services policy all are categorised as “offenders with disabilities” – a classification including inmates with deafness, paraplegia, quadriplegia, non-certifiable mental conditions, blindness or extreme impairment of vision. Surprisingly, the department has no knowledge of the number of inmates with disabilities in its facilities.
Although policy dictates the establishment of a centralised data base, Rotmann confirms that no such database exists – these figures are recorded at individual facility level.
Policy also dictates that “the inherent human dignity of offenders with disabilities must be upheld by accepting them for whom they are and ensuring their humane treatment”.
Judging from Fakude’s experience, policy and practice are poles apart.
For example, while Dewani was transported to Cape Town from Britain in a private plane at taxpayers’ expense and driven to court in a black Hyundai with a police escort, Fakude was repeatedly taken to court in the back of a closed bakkie. “One time, we drove at about 160km/h, maybe more,” he recalled. “I was facing backwards with nothing to hold on to and my wheelchair was sliding all over the place. It was terrifying.”
Fakude appears to have been sentenced before he is sentenced. “I’ve never killed anyone. I’m accused of an economic crime,” he said.
“Now I have to stand up for the rights of people like me in prison. I know what goes on inside and I believe the way I was treated amounts to torture.”
* Carolyn Raphaely is a senior journalist with the Wits Justice Project which investigates miscarriages of justice related to the criminal justice system.