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A law divorced from justice

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pnFusi Mofokeng

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Fusi Mofokeng, left, and Tshokolo Mokoena were in prison for 19 years for crimes they did not commit. Many innocent people dont qualify for parole or amnesty as they refuse to admit guilt. Picture: Paballo Thekiso

‘Then the law is an ass,” said Mr Bumble in Charles Dickens’s Oliver Twist when he was told that the law considered his wife to act under his direction.

Few truer words have been said – or written. And not only in relation to who dictates to whom. Because the law, that body of regulations that can shelter stupidity, pedantry, vindictiveness and sheer bloody-mindedness behind the veil of justice, is frequently an ass.

Yet the popular myth persists that the law should be equated with justice. It is not. At best, these concepts are on nodding terms because the law has a much closer acquaintance with wealth and power than it does with justice.

In the face of abusive political power or very deep pockets, justice can be ignored in the legal process.

So the classic figure of blindfolded justice, scales in one hand and sword in the other, characterises much more myth than reality. And there are plentiful examples to illustrate this.

The law, the legal establishment, because it claims to embody truth and justice, is also reluctant to admit mistakes. For example, convicted individuals who continue to plead their innocence do not qualify for parole or early release, no matter how well behaved they are in prison.

Until and unless they confess to their claimed crimes and “show remorse”, they remain incarcerated.

In other words, only those who are prepared to bolster the myth of the fundamental infallibility of the system qualify for a modicum of fair and just treatment.

This amounts to an encouragement of the wrongly convicted to commit perjury. And the fact that hardened criminals will readily adopt a remorseful posture to secure an earlier release does not seem overly to concern those who administer the law.

Superior courts, as many lawyers will admit, are also wary of overruling the judgments of lower courts. This is often on the basis that the senior judges, hearing an appeal, will state that they were not present at the original trial and therefore unable to assess the “demeanour” of witnesses or accused.

This immensely fallible system allows for cases such as the recent release of Fusi Mofokeng and Tshokolo Mokoena after serving 19 years of a life sentence for a crime they did not commit – and refused to plead guilty to. They were released on parole – meaning conditional release of guilty individuals – on Freedom Day last year after a long campaign by various groups.

Under President Jacob Zuma’s Freedom Day announcement last July that saw thousands of prisoners freed on parole, Mofokeng and Mokoena were told that they would be truly free next year, rather than having to wait until the end of 2050, should they live that long.

They have continued to plead their innocence – and all the evidence points to the fact that they were not involved in the 1992 shoot-out between security forces and members of an ANC self-defence unit (SDU) in which a policeman died.

Those who were involved were also arrested, sentenced and subsequently granted amnesty in 1998 by the Truth and Reconciliation Commission.

No evidence was led that the two friends had been involved; it was enough that they were friends and associated with the local SDU. And because they would not lie and admit to guilt, they could not apply for amnesty to the TRC.

Because they remained true to themselves, they remained behind bars, labelled as criminals who failed to show remorse. It was such an obvious injustice that the local community, NGOs and church groups campaigned for their release for more than a decade before parole was granted. It was a classic case of the sheer bloody-mindedness of a system that continues to bask in a myth of infallibility. That it does so despite much evidence of its fallibility and refusal to admit it does not appear to matter.

We will never know how many other cases of this kind exist; how many innocent people rot in prison because they refuse to confess to crimes they did not commit. There are cases that stand out clearly, perhaps none more so than that of Donovan Leibrandt, the naval rating who spent 13 years fighting what several lawyers have called a “terrible travesty”. He was taken to Pollsmoor Prison in Cape Town last December first, mistakenly, on the basis that he was to serve eight years for an arson conviction.

Yet, on appeal, his sentence had been reduced to four years. More importantly, no evidence was led that he had been at the scene of any arson either before, during or after the event.

However, it was alleged that he had known about, and therefore was involved in, an attempt to burn down the records office at Simon’s Town naval base.

Thomas Ramalahla, also a naval rating and a former member of the ANC’s armed wing UmKhonto weSizwe, broke into the office and set about trying to burn the place down.

But he set himself on fire and fled the scene, suffering grievous burns in the process.

Leibrandt and his friend Leontoane Rantai, both activists in the then-still unrecognised military trade unions, later met the critically injured Ramalahla, wrapped him in a wet duvet and drove him to hospital where he later died. About this there is no dispute.

Key to the case was the notion of common purpose – that Leibrandt and Rantai had agreed with the attack.

When they were charged, they demanded – not trusting the military – to be tried by a civilian court.

This was denied and they were sent to court martial. After more than two years, the charges against both men were dropped. The case had prescribed, because of the delays admitted by the military authorities, and Leibrandt and Rantai were acquitted and went back to work, where Leibrandt was recommended for promotion.

But in 2002 the arson charge was handed over to the civilian courts.

“It simply doesn’t make sense,” says former defence lawyer Cecil Burgess, now an ANC MP. “If you elect to try someone in one court and fail, you can’t simply change to another court.”

But such, it seems, is the nature of the law. And vindictiveness does seem to play a part.

The magistrate in Cape Town’s Wynberg Regional Court admitted into evidence a “confession” signed by Rantai after three days of “physical interrogation” by military police and which Burgess categorised as “torture”.

Although the magistrate “condemned” Rantai’s factually flawed confession, she allowed it into evidence and sentenced the two to eight years in prison. So began a 13-year odyssey that ended with Leibrandt in prison and Rantai, having given up and left for the rural areas, having apparently disappeared.

But in prison with Leibrandt are many men and women who are ill, even terminally so, but who lack the connections and resources that will see them discharged before they die.

When Zuma last week announced the parole of former police commissioner Jackie Selebi and six others, Leibrandt’s wife Zoliswa hoped he would be included. He was not. He has still not admitted guilt; still not expressed remorse for something he says he did not do. And so a man, who remained gainfully employed for a decade, fighting an almost single-handed battle to have his innocence established, remains in prison, reaffirming that the law is, all too often, an ass.

l Terry Bell is a writer, editor and broadcaster specialising in political and economic analyses and labour issues.


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