As SA’s first remand detainee to be electronically tagged, Fakude (50) agreed – as a condition of bail – to participate in a Department of Correctional Services (DCS) electronic monitoring pilot project which had to date involved only sentenced offenders. As a result, on his release from Grootvlei Correctional Centre, an electronic tracking device was attached to the nappy-wearing, wheelchair-bound paraplegic’s right leg permitting his movements to be tracked 24/7.
“My main restriction is that I can’t leave the Jo’burg area,” Fakude explained. “Otherwise, I can’t feel the device. I can even bath with it. ….” Magistrate Rashid Mathews’ 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 till 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 and make me shit blood. I have one kidney and my intestines are sutured because of injuries from my hi-jacking. I have pains and pins and needles throughout my body because I can’t exercise or get physiotherapy.”
While Pistorius’ fast-tracked trial is being battled by SA’s best legal brains, Fakude’s reliance on legal aid, innumerable repeated postponements of his trial and grave human rights abuses he has been subjected to in prison are symptomatic of rich man’s justice and a disturbing inequality before the law for those who are poor, and not Pistorius. How British millionaire murder-accused Shrien Dewani, now awaiting his 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 remains theoretically innocent until proven guilty. Unlike Pistorius, who was granted R1m 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 that was beyond his means.
While Pistorius spent the past year awaiting his trial in his uncle’s 24-room luxury Waterkloof mansion and holidaying in Mozambique, an indigent Fakude whiled away his time in a chronically over-crowded 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 Sbu Ndebele, about one third of SA’s approximately 157,394 prison inmates are remand, or awaiting trial detainees. About 15 -20 % of whom – unlike Pistorius or Dewani – are in custody because they can’t afford bail. The majority have been accused of relatively petty crimes but 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 DCS provide Fakude with a physiotherapist, occupational therapist, stoma sister, dietician and a psychologist – conditions the prison proved completely 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 DCS’ 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 ten months ago, Fakude said he’d 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.” [You will not eat rice in jail; you are not white or a celebrity.] Moreover, since DCS was unable to even provide him 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 A 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 grudges (sic),” Nelane wrote.
Three months previously, 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, from vastly different backgrounds, seem to have little in common. Yet in terms of DCS policy, they’re all categorised as “Offenders with Disabilities” – a classification including inmates with deafness, paraplegia, quadriplegia, non-certifiable mental conditions, blindness or extreme impairment of vision. Surprisingly, DCS currently has no knowledge of the number of inmates with disabilities in its facilities.
Though policy dictates the establishment of a centralised data base, Rotmann confirms that no such tool exists and that these statistics 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.” If Fakude’s experience is anything to go by, policy and practice are poles apart.
For example, while Dewani was transported to CT from Britain in a private plane at taxpayers’ expense and driven to court in a fancy 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/hr, maybe more,” he recalled. “I was facing backwards with nothing to hold onto and my wheelchair was sliding all over the place. It was terrifying.”
Meantime, Fakude appears to have been sentenced before he was sentenced: “I’ve never killed anyone, I’m accused of an economic crime,” he said hours after he was released. “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…” Who knows what fate will befall Pistorius, or Dewani, should they fall foul of the law? DM
Response from Department of Correctional Services (DCS) Chief Deputy Commissioner Britta Rotmann: “DCS’ electronic monitoring pilot programme, instituted in February 2012, was intended to establish whether the system worked…Not more than 150 people – mainly lifers – have been tagged at any one time but, as of February this year, 235 have been tagged. …Designed for sentenced offenders, the pilot will be completed in July and will roll over into a five-year programme involving at least 1,000 sentenced offenders and remand detainees a year.
“Sentenced offenders and remand detainees are a very different group. The responsibility for enrolling sentenced offenders in the electronic monitoring programme lies with DCS. We don’t have the same mandate with remand detainees. We do what the courts tell us to do. Ultimately, the call for tagging a remand detainee will be made by a judge or magistrate.
“We have to be certain we can respond effectively and efficiently to the number of people tagged. As we check efficiencies, we’ll develop protocols and extend the programme further. Remand detainees don’t know if they’ll be found guilty, or what their sentence will be, so stress levels are much higher than those of sentenced offenders. High stress levels and less predictability means higher risk.
“DCS is bound by various sections of the Constitution to promote and protect the human dignity of all prisoners and we have very clear policies regarding people with disabilities. Anyone coming into the system will be assessed and appropriate decisions made. Some of our facilities are wheel-chair friendly and some are more wheelchair friendly than others. Every decision must take into account the security and dignity of the person. Each disability is treated uniquely.”
Carolyn Raphaely is a senior journalist with the Wits Justice Project (WJP) which investigates miscarriages of justice related to the criminal justice system. The WJP is located in the department of journalism at the University of the Witwatersrand.
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