(Raphaely is a member of the Wits Justice Project (WJP) which investigates miscarriages of justice related to the criminal justice system. The WJP is located in the University of the Witwatersrand’s journalism department.)
It would be surprising if last week’s public display of impunity in Parliament, including members of the security forces assaulting and beating MPs, did not give Port Elizabeth High Court Judge Dayalan Chetty serious pause for thought. Not to mention a disconcerting sense of déjà vu. Since 2 February – a quarter of century to the day since the announcement of Nelson Mandela’s release from prison – Chetty has spent his time listening to testimony about mass-beatings, brutal assaults and torture allegedly inflicted on St Albans prison inmates by State officials.
Forensic pathologist Professor Lorna Martin probably felt the same while testifying on behalf of Xolani Siko and Simphiwe Mbena in a landmark civil damages claim, resulting from injuries sustained during a prison-wide orgy of violence following the murder of a warder by Mbena. “The majority of these injuries are horizontally aligned tram-track scarring, consistent with evidence of blunt force trauma,” Martin told the court after examining reams of photographs of bruised and battered survivors.
In her capacity as Hillbrow District Surgeon at the end of the eighties and in her role as head of UCT’s department of forensic medicine, Martin has seen her fair share of similar injuries. Not to mention the extensive injuries resulting from spousal abuse and community assaults, she’s analysed in the thousands of autopsies she’s conducted, or overseen, at Cape Town’s Salt River mortuary.
“A baton, or anything shaped like that, causes a tram-track,” Martin explained. “As you beat down on the area of soft tissue, the bit that hits the body squashes the tissue and pushes the blood in those tissues to the sides where it bursts the capillaries and causes those beautiful straight lines parallel to each other. If you do that, you get parallel bruising and tram-track bruising.”
What’s more, according to Martin, the injury pattern was “consistent with the allegation that the men were made to lie on the floor in a line, face-down, with their noses up the inmate in front’s buttocks whilst they were beaten… The injuries are all in an advanced stage of healing and the majority appear as scars which appear to be of a recent nature… And they all appear consistent in terms of healing and scarring with each other, and consistent with having been inflicted around the same time on all the men.”
Should the court accept Martin’s testimony, and if Siko and Mbena’s application is successful, the decision will pave the way for one of the largest damages claims ever instituted against the Department of Correctional Services (DCS) – 229 other St Albans inmates have also informed the Minister of Justice and Correctional Services of their intention to sue.
However, practical considerations regarding the huge number of potential witnesses and limited available court time compelled the parties to agree to reduce the number of plaintiffs to two, constituting a test-tranche. Mbena was substituted, and included, as part of this first trial-tranche following a court directive at the request of the defendant.
“The plaintiffs have argued that the force applied to them was unlawful,” explained PE human rights lawyer Egon Oswald, who has represented the inmates since 2005. “Mbena testified that after he stabbed warder Babini Nqakula, he surrendered his knife, offered no resistance and never posed a threat. Nonetheless, he says he was severely beaten while taken from the dining hall to the single cells, where he collapsed, and that the assaults and beatings continued over the next few days.”
Former St Albans inmate Bradley McCallum, a potential litigant intent on seeing justice served, was one of the initial larger tranche of plaintiffs. In 2008, represented by Oswald, McCallum lodged a complaint against SA with the United Nations Human Rights Committee (UNHRC) in Geneva, alleging gross human rights abuses by State officials.
The tattooed and toothless sentenced offender told the UNHRC how during the course of retributive attacks by prison officials for Nqakula’s death, he was raped by a warder with a baton, shocked, beaten and forced to lie naked in a human-chain with his nose in the anus of a fellow inmate. After ignoring five requests by the UNHRC to respond to these allegations, SA was found guilty of human rights violations.
To date, despite a UN directive stipulating that the assaults were properly investigated and disciplinary proceedings instituted if necessary, none of the 60 – 80 warders implicated in the prison violence has been disciplined.
The ongoing, undisciplined conduct of St Albans officials is one reason the St Albans matter has dragged on for so long. For example, last June, Oswald discovered that Mbena had been unlawfully and unjustifiably detained in solitary, or segregated, confinement for 42 days before being called to testify.
Following a report submitted to the court by psychiatrist Peter Crafford, which made it clear that Mbena was psychologically compromised as a result of his segregated confinement and in no position to testify, the case was postponed until February this year.
When the court re-adjourned last week after a seven-month break for the final chapter of a saga that has dragged on for almost a decade, Mbena appeared in far better health. Dressed in navy prison-manufactured denim overalls, he freely admitted to having lied twice during his criminal trial about his motivation for murdering Nqakula, but now claimed he wanted to come clean.
In cross-examining Mbena, seasoned advocate Hilton Epstein SC, acting for the State, asked him why Judge Chetty should believe him. “I do not say he must believe me, or not believe me,” Mbena countered in almost inaudible tones, “but Allah knows that today I am telling the truth… Previously, I did not think straight but now I see that it is not a good thing to tell lies…”
Though Epstein maintained the murder was part of a collective plot conceived by wide-spread St Albans gang structures within the prison – a version of events proposed by the State to justify its alleged collective punishment for what the defence claims was an individual crime – Mbena claimed he was acting alone for personal reasons.
Mbena, a self-confessed member of the 26 gang, said that when he noticed his family’s regular prison visits had abruptly ceased, he discovered Nqakula had visited his family home: “He told my mother I was influencing other gangsters in jail to join the gangsters, and I’m sodomising other prisoners.” She decided never to visit her son again.
After Mbena denied these allegations, his mother agreed to a meeting with her son and Nqakula to resolve the matter. When the appointed hour arrived, Nqakula was nowhere to be seen and Mbena determined to resolve the matter in the only way he knew. “I wanted to stab the person who told my parents lies…
“I wanted to stab him so I can be taken to court and a case opened against me so I can reveal what he has done to me. I was not intending to kill him.” A few days later, Nqakula met his nemesis in the prison dining-hall, and events rapidly spiralled out of control, turning the prison into a bloody battlefield. During the ensuing week-long purported search for knives, inmates were forced to strip naked, were beaten with batons, trampled on, bitten by dogs, assaulted, sprayed with water and shocked by warders using shock shields.
Could existing channels for complaint have served to avert Nqakula’s murder? “The fact that Nqkula took the steps he did,” noted one observer, “illustrates the sometimes dire consequences of the failure to impose a simple and effective complaints mechanism.”
Mbena’s sorry saga, his inability to control his anger or resolve his complaints and grievances through official channels, shone a discomfiting light on the efficacy of prison oversight body, the Judicial Inspectorate for Correctional Services (JICS). Professor Lukas Muntingh, who heads the University of the Western Cape’s Civil Society Prison Reform Initiative, told the court that “regarding serious allegations of human rights violations and deaths in custody, my assessment is that JICS has been largely ineffective…
“Through its independent visitors, the Inspectorate collects hundreds of thousands of complaints from prisoners annually – in excess of half a million complaints for 150,000 prisoners last year, almost three complaints per prisoner. And the profile of these complaints has remained remarkably consistent since 2000, when the Inspectorate was established – access to health care; assaults; trials that take too long.”
Muntingh explained that post-Apartheid, the creation of a police oversight mechanism was regarded as an imperative, but the interim and final Constitution never created that obligation in respect of the prison system. Though a similar body, now JICS, was subsequently created, Muntingh expressed “concerns” about its institutional and administrative independence and oversight capabilities.
For example, the organisation receives its budget directly from DCS – the organisation it is supposed to oversee; the majority of JICS support staff were seconded from DCS, at least in the early stages, and the National Commissioner of Correctional Services is responsible for the discipline of JICS’ CEO.
Perhaps of even greater concern was DCS’ response to oversight. During a Parliamentary Portfolio Committee on Correctional Services meeting around 2010/11, Muntingh recalled Chief Deputy Commissioner Jenny Schreiner conceding to the committee that DCS had effectively ignored the Inspectorate’s reports and recommendations.
Muntingh also proffered some damning evidence solicited during the 37th session of the UN Committee on Torture in Geneva in 2006 implicating DCS. Muntingh told the court that DCS Chief Deputy Commissioner Jabu Sishuba, the most senior correctional official in the SA delegation to the UN, publicly admitted that St Albans warders had assaulted inmates.
“When the Committee Members inquired about events at St Albans, she (Sishuba) confirmed there was a stabbing which developed into an assault and her exact words were that this happened because ‘the officials were overcome by the moment.’”
While torture and solitary confinement were routine procedures for political prisoners in the past, the fact that torture at the hands of SA State officials and gross abuse of power behind bars is still the subject of judicial inquiry in 2015 is a shameful wake-up call.
Whichever way the St Albans case pans out, it illustrates the critical importance of effective, ethical leadership and the need for the culture of impunity prevalent in SA’s correctional facilities, and in Parliament, to be dealt with urgently and immediately. DM
Terry Pratchett forged his own sword from iron and meteorites purely for the occasion of the awarding of his knighthood.
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