Incarcerated since 2007 – but trial hasn’t progressed

The sound of clanging leg irons is audible in the courtroom before the 11 accused appear. It gets louder as the shackled prisoners shuffle up the steps that lead from their underground cell below the court and take their seat on the bench.

The 10 men and one woman have been in remand detention for 53 months, charged with a murder and armed robbery committed on October 24, 2007.

The 11 stand accused of conspiring to murder the owner of a brick company and tying up his employees and wife in Westonaria. They are also charged with armed robbery – money, jewellery and two cars were stolen.

The men allegedly consulted a sangoma before they committed the crime and went to her house after the robbery to “cleanse the weapons and cars of fingerprints”.

They were arrested there.

The sangoma, a 47-year-old woman, is one of the 11 accused.

Since then, their case has been postponed nearly 50 times in 166 court sessions. Given this torpid pace, the trial will probably drag on for many months, or years, more.

“We have been coming to court nearly every day, since this case started at the high court, 20 months ago, mostly just to hear that we will be remanded again. Sometimes the judge even postpones in our absence (and) we are left in the underground court cell.

“It’s so cold down there. We are chained and kept like animals,” says TM, 30, one of the accused.

With a total of 54 witnesses summonsed by the State, the accused fear they will never see the end of this trial.

“On court days, we are woken at 3am (and) take a cold shower. We are given some bread, then at 7am we’re driven to the court, where we have to wait around endlessly in the underground cell.

“At 1pm we are served a meal of pap, some meat and sweetener,” says accused NT, 29.

NT says: “My resources have run out. My family can’t afford to come to see me in jail. I haven’t seen them for ages. I have paid R54 000 in private legal fees at the start of the trial. I’m now completely dependent on lawyers who are instructed by Legal Aid. I feel we are all considered guilty and there is nothing we can do about it.”.

The accused were arrested on October 24, 2007, in Krugersdorp. A year later, the case was transferred from the magistrate’s court to the Johannesburg High Court.

The actual trial started another year later. That in itself might seem like an unreasonable delay, but there was much more to come.

No one seems to be able to answer any questions about the delays. The eight Legal Aid defence lawyers claim they have no information on this issue.

The prosecutor, Preshelia Ranchod, declined to comment and her communications officer remained silent after repeated requests for information. The judge’s clerk, Peter Kabai, who is responsible for the court records – which should be publicly available – stated: “I don’t give public records to strangers.”

However, in the bowels of the office of the director of public prosecutions there is a dusty old book with records of all of Ranchod’s court appearances in this case.

This information, cross-referenced by notes the accused have kept over the years, sheds an interesting light on this reticence and on what appears to be an ill-organised criminal trial. Since the start of the trial in October 2009, the court proceedings have ground to a complete standstill for 13 months in total.

First, one of the accused had an operation. Then it took months to find a judge to preside over the case. When one was finally appointed, the presiding judge was absent for months, because he was allocated to a civil case twice. In addition to these months where nothing happened, there have been about 50 ad hoc postponements. The reasons are manifold.

The lawyers were ill, had vehicle problems, or they simply didn’t show up. The prosecutor also caused postponements, once claiming she “had a headache”, another time that “a public works strike in Lenasia jeopardised her children’s safety”.

Witnesses, stenographers, assessors and interpreters didn’t turn up or couldn’t be located. Then the case couldn’t proceed because the court was without running water for three consecutive days.

When it was announced that the court building was going to be renovated, Judge Gidfonia Mlindelwa Makhanya drew the line. This would lead to unacceptable further delays, he said, adding: “Justice delayed is justice denied.”

The strangest delay in this case took place on February 24 this year, when six of the eight defence lawyers complained to the judge about the presence of a reporter – myself – who was, according to them, “playing funny games” and “interfering with court proceedings”. The lawyers spent a whole day expounding on their grievances.

As a result, the State witness, who had waited for hours, was sent home. The judge ignored the submissions and encouraged the advocates to consult with their clients more frequently.

The Criminal Procedure Act stipulates that the court may “issue an order as it deems fit”, if trial delays are unreasonable.

On September 21 last year, the accused instructed their lawyers to send a letter of complaint to the deputy judge president of the Johannesburg High Court, Judge Phineas Mojapelo.

However, the deputy judge president informed the lawyers that Judge Makhanya would again be called to the civil court in 2012. This will delay the trial another six months.

The sluggish process is wearing down the accused. They are desperate to get out of Medium A prison, Joburg’s notorious remand detention centre. That sense of urgency heightens when NT arrives at court with a bandaged ear.

“A warder beat me after I refused to strip naked for an ‘internal investigation’, to see if I was harbouring drugs or weapons. He hit me till my ear bled and grabbed and pulled me by my balls.”

The Department of Correctional Services instructed an independent correctional centre visitor to investigate the matter several weeks ago, but that has not yet yielded any outcome.

TM says: “We have to share one toilet with 60 men and there are no toiletries such as soap provided.”

Exercise and fresh air are restricted to a few minutes a day.

Family and friends of remand detainees – known as “non-contact inmates” – can visit their loved ones briefly once a week, in a room with a glass partition and often faulty speaker phones.

While overcrowding and poor sanitary conditions are unconstitutional, some of the stringent conditions of remand detention stem from the idea that prisoners are supposed to be remanded for only a brief period – during the investigation and trial.

But hundreds of accused are locked up in Medium A for several years.

A heavily armed policeman, who guards the courtroom, has little sympathy for the rights of these prisoners. “They are criminals. It’s in their blood. If they ever get out, I will shoot them and plant a gun, so it looks like I did it in self-defence.”

* Ruth Hopkins is a senior journalist at the Wits Justice Project, which investigates miscarriages of justice