Johannesburg - Had George Louca lived just a few more days, a potentially precedent-setting urgent application to have him released from prison would have been argued in the High Court in Joburg.
Louca, accused of murdering Teazers boss Lolly Jackson, was diagnosed with advanced lung cancer in March, with his legal team doing their utmost to have him released to die among his family and community in Cyprus.
On Monday night, Louca died in prison from complications relating to his disease.
After an unsuccessful urgent application in the High Court sitting in Palm Ridge to have Louca released, his trial was postponed to a date six months after doctors believed he would die.
Louca’s lawyer, Owen Blumberg, said this meant it was integral to approach the high court through a different legal avenue.
At the first attempt last month, known as a Section 49e application, his lawyers argued that, as an awaiting-trial prisoner, he had the fundamental right to receive the best palliative care – something his prison warders could not easily provide – and to die surrounded by his relatives.
Judge Geraldine Borchers, however, refused Louca’s application.
She said she felt compassion for him, but could not allow him to be released, adding that the prison was treating Louca adequately.
Based on his past behaviour, it was unlikely Louca would return to South Africa, even if he were alive and fit to stand trial, Judge Borchers said. She also found an undertaking to return to South Africa if he were well “improbable”.
She said that if she allowed his release, it would be tantamount to dropping the charges against him because the inability or unwillingness to return would prevent the State from prosecuting him.
But Blumberg said the new application would have focused on Louca’s right to human dignity, and that, as a man who had yet to be convicted of any crime, his client had rights that should have been considered even above those of sentenced criminals applying for medical parole.
Blumberg took The Star through the case law used in the legal journal Law, Democracy and Development, which referred to the rights of inmates within South Africa’s prison systems.
“To insist that (a terminally ill inmate) remain incarcerated until he has become visibly debilitated and bedridden can by no stretch of the imagination be regarded as humane treatment in accordance with his inherent dignity,” the journal states.
Blumberg said he would insist in court on an investigation into the delays in Louca’s postponements.
“The goal would be to create case law to help terminal awaiting-trial prisoners so this doesn’t happen again,” he added.
The Star