Rotting while they wait

24 February 2014 - 02:48 By KATHARINE CHILD
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Mthunzi Mhaga. File photo
Mthunzi Mhaga. File photo
Image: Supplied

Thousands of awaiting-trial prisoners are languishing in jail because of delays in the justice system, such as witnesses not appearing, missing documents and lengthy postponements.

Experts say innocent people are being deprived of their freedom because of delayed justice.

With a third of all prisoners - 45612 - awaiting trial, prisons are overcrowded and the conditions inhumane.

The report Guilty or Not But Behind Bars Anyway, compiled by the Wits Justice Project and the Helen Suzman Foundation, says that 40% of awaiting-trial prisoners will eventually be acquitted.

"This means that a staggering number of innocent people are being deprived of their freedom," the report says.

Jacob Tsiane, 43, has been awaiting trial in Pretoria Central prison for seven years. The father of two , a suspect in a Pretoria hijacking, believes justice has failed him and his family.

Department of Correctional Services spokesman Britta Rotmann confirmed that Tsiane is one of the 20 longest-imprisoned waiting for their case to be finalised.

"We will set new targets each quarter," she said, referring to a plan to speed up trials and investigate why some prisoners have waited so long for justice.

Tsiane, who shares a cell with 40 others, many of whom smoke all day, has been represented by six lawyers, which has added to the delays. The unavailability of witnesses has also caused months-long postponements.

His situation is not unique.

In the case of Jabulani Radebe and Mthuli Dube, suspects in an armed robbery, there has been no progress for two years because the Upington Regional Court magistrate retired. The Wits Justice Project was able to get bail for the two prisoners just before Christmas - after 89 postponements in five years.

A wait of so many years was "unconscionable", said the director of the Wits Justice Project, Nooshin Erfani Ghadimi.

And Civil Society Prison Reform Initiative co-founder Lukas Muntingh said it raised questions about whether the prisoners had had a fair trial, a constitutional right.

Awaiting-trial prisoners are innocent until proved otherwise, according to section 35 of the constitution, but experts say they experience worse conditions in prison than those convicted.

On Saturday two weeks ago, Tsiane met his 13-year-old son for the first time in six years. The teenager had believed his father lived abroad but had finally been told the truth.

The two sat together in the prison social worker's office and the boy "cried and cried".

But when he returned home he could not stop talking to his grandparents and aunt about being reunited with his father.

The mother, who asked not to be named, said her child, who is normally quiet, was very talkative after the visit. "He needed it."

She pays for her child to attend a former model C school in Pretoria and struggles financially.

Said Muntingh: "The system keeps busy with nonsense cases . cases that do not pose a threat to public safety."

One of the reasons for the overburdening of the justice system, said Muntingh, was the number of arrests police made - 1.6million in the 2011-2012 financial year. People were arrested, kept in jail and then released because there was insufficient evidence to prosecute them.

"Half of all awaiting-trial prisoners will never go to trial," said Muntingh.

Prison exposes people to TB because of overcrowding, HIV from rape, violence, and social stigma. Suspects might lose their jobs even if later found to be innocent.

Another reason for the severe overcrowding in jails is that poor people accused of petty crimes are unable to afford bail amounts of even R1000.

The Wits Justice Project's Erfani Ghadimi said: "In terms of the law, magistrates are supposed to take into account what people can afford but it doesn't always happen."

Department of Justice spokesman Mthunzi Mhaga said the management of remand detainees had "greatly improved" since the establishment of a branch within the department that dealt exclusively with remand detention.

"The development of specific legislation dealing with remand detainees, specifically the Correctional Matters Amendment Act, has further assisted."


Tsiane hopes to appear before the chief magistrate of Pretoria on March 17 to ask why his case has taken so long to be finalised and to request that a new magistrate be appointed to preside over his case.

Tsiane has asked prison officials to allow him outdoor exercise for an hour a day. He has been told there is insufficient manpower to allow this.

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