Having represented the torture-survivors for ten years with no remuneration, Egon Oswald has now lodged an application for leave to appeal Judge Dyalan Chetty’s decision to dismiss claims by Xolani Siko and Simphiwe Mbena - the first of 231 potential St Albans plaintiffs. If the plaintiffs’ application is successful, it could pave the way for one of the largest damages claims ever instituted against the Minister of Justice and Correctional Services. On the other hand, Chetty’s judgement was more than damning in its criticism of both the claimants and the defence witnesses. By CAROLYN RAPHAELY.
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 a project of the University of the Witwatersrand’s journalism department.
Defending the indefensible is all in a day’s work for Hilton Epstein SC, President Jacob Zuma’s legal counsel on matters like Marikana. For much of this year, Epstein has also represented Minister of Justice and Correctional Services, Michael Masutha, in a civil claim for torture-related damages emanating from a 2005 orgy of torture, brutal mass-beatings and assaults carried out by Correctional officials in Port Elizabeth’s St Albans prison. At the heart of both matters is the excessive use of force by the State.
Prior to the Marikana massacre, few people would have believed the excesses displayed by the police were possible in post-apartheid SA. Similarly, when attorney Egon Oswald first heard about the rape of inmate Bradley McCallum by a St Albans warder using a baton and how prison officials had tortured and assaulted prisoners he was entirely disbelieving. That is until the trickle of complaints turned into a flood.
McCallum was referred to Oswald – a commercial attorney and unlikely candidate to take up the cudgels of an assault and torture case – by a former attorney doing time behind bars. After Oswald had exhausted all domestic avenues he became the first SA attorney to successfully prosecute SA for human rights violations at the United Nations Human Rights Committee (UNHRC) in Geneva, and win his case – Bradley McCallum vs SA.
In 2010, with little fuss, fanfare or subsequent publicity, the UNHRC ruled that SA had violated its obligations in terms of at least two conventions – the UN Convention on Torture, Cruel, Inhuman and Degrading Treatment and the UN Convention on Civil and Political Rights. SA was instructed to investigate McCallum’s claims, prosecute those responsible and provide a remedy and information about measures taken within 180 days.
Back in Port Elizabeth, little changed. Even the implicated warders remained in their jobs. However, Oswald had no intention of abandoning his one-man crusade against what he considers to have been an “egregious miscarriage of justice.” Having represented the torture-survivors for ten years with no remuneration, he has now lodged an application for leave to appeal Judge Dyalan Chetty’s decision to dismiss claims by Xolani Siko and Simphiwe Mbena – the first of 231 potential St Albans plaintiffs.
One thing is certain: If the plaintiffs’ application is successful, it could pave the way for one of the largest damages claims ever instituted against the Minister of Justice and Correctional Services. On the other hand, Chetty’s judgement was more than damning in its criticism of both the claimants and the defence witnesses.
Characterised by unusually colourful language, Chetty accused first plaintiff Siko of “disingenuousness which permeates his testimony” and dismissed his evidence as “the product of a fertile imagination.” He added that Siko’s sojourn in the witness stand demonstrated “unequivocally that he is a consummate actor.”
The testimony of respected University of Cape Town forensic pathologist, Professor Lorna Martin was similarly dismissed. After detailed examination of photographic evidence of 40 inmates’ injuries incurred in the wake of warder Babini Nqakula’s murder by Mbena, Martin found evidence of severe beatings consistent with blunt force trauma. In chilling testimony eerily reminiscent of SA’s ignominious past, Martin described a pattern of injuries “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….,” Martin told the court. “The injuries all appear consistent in terms of healing scarring with each other and consistent with having been inflicted around the same time on all the men.”
Nonetheless, Chetty maintained Martin’s testimony was “limited and of no evidential value.”
Occupational therapist Letitia Strauss, testifying about Siko’s fractured hands which he claimed resulted from extensive beatings while he was unconscious, came in for similar treatment. Though Strauss described Siko as “being honest and sincere at all times,” Chetty said it was obvious thought so because she had “succumbed to Siko’s wile.” He also dismissed second plaintiff Mbena’s evidence as that of a pathological liar “whose deceitfulness held no bounds.”
An appeal would certainly shed light on two diametrically opposed versions of events which emerged during the drawn-out 14-month trial. While Epstein argued that the wide-spread prevalence of gangsterism in the prison was to blame for Nqakula’s pre-meditated murder, Bruce Dyke, for the defence, maintained that Nqakula’s murder was motivated by personal reasons which led to retributive collective punishment for an individual crime.
The State claimed that rival gang members were in unlawful possession of knives, that a cell search subsequent to Nqakula’s murder involved only the necessary use of force and that the murder was part of a collective plot conceived by wide-spread, sophisticated prison gang-structures. Mbena claimed to have acted alone for personal reasons related to Nqakula telling his mother that he had been sodomising juveniles behind bars.
Relying heavily on the testimony of expert witness Major-General Jeremy Veary, head of SAPS Operation Combat and expert on gangs, Chetty chose to accept the official version of the alleged torture and mass beatings. According to Veary, an assault by an inmate on a Correctional official always requires the sanction of the gang-hierarchy and must be witnessed by what Chetty described as “one or more of their coterie of similarly minded miscreants.”
None of the State’s claims justified the torture Siko alleged he had endured at its hands. In addition to having been forced to strip naked and lie on the cement floor with his nose in the anus of the inmate in front of him, Siko said he was electro-shocked, beaten with batons and assaulted. He was also forced to lie naked for two days in mid-winter on the wet concrete floor of a single cell in his own blood and bodily fluids.
A still visibly traumatised Siko broke down while describing how he was dragged naked from his cell to the prison’s B section where he said Warder Padayachee cuffed him by his legs and hands to a grill door in a crucifix position and instructed Warder Manuel to set his dog on him. “And the dog kept on biting me, and the dog kept on biting me. Biting my legs and my thighs up to my hips,” he told the court.
On one occasion while lying naked in the corridor, Siko said he saw two female warders “beating people in their private parts with batons… Ladies were shouting “You are going to die” and “Jou ma se poes.” (Your mother’s vagina) He recalled how he was dragged under a cold shower by his legs, repeatedly shocked and assaulted as well as beaten on his testicles by a female warder, Lulu Kabase, until he fainted.
In an attempt to diminish Siko’s testimony, Epstein suggested that Kabase would never have beaten the naked inmate on his testicles with a baton – particularly not in the presence of her husband – who also worked at St Albans and especially not since she was pregnant. “I’m told this would be inhumane … Correctional officers would never have allowed that to happen,” Epstein observed.
“Some of these Correctional officers … have got families and children..? You paint a picture of them as being these monsters? Are they all monsters?” To his credit, Siko retorted, “No, not all.”
Epstein’s ingenuous line of defence offered an insight into the extent of education required – not only by DCS officials but by the public and members of the legal profession – in order to prevent and combat torture and abuse of power by State officials. Meantime, under Chetty’s inscrutable gaze implicated warders – like Padayachee – sat in the almost deserted public gallery laughing as survivors testified about chilling abuse at their hands.
In terms of the law, the only permissible force by Correctional officials is minimum or necessary force used to stop, or prevent a dangerous situation. Any other force is regarded as gratuitous, excessive or unlawful. Yet prison officials and the police, operating in the context of a prevailing culture of violence appear to routinely exceed accepted boundaries and resort to violence as a default position.
For example, during bruising cross–examination by Dyke, acting head of the prison’s Emergency Security Team (EST) Mthuthuzeli Swartbooi admitted he had used force, not kept records of who he beat nor recorded the search on video cameras as required by law. In the context of serious allegations that numerous inmates were injured and beaten on his watch, a list of injuries compiled by an official investigator and testimony by Martin regarding bruising on inmates caused by batons, Swartbooi consistently maintained that no injuries were incurred during searches on his watch.
Unfortunately, Swartbooi seemed to have forgotten that six weeks after the beatings, lawyers acting on behalf of 57 inmates who had been refused access to their legal representatives brought an urgent Supreme Court Application seeking access to their clients, and permission to photograph their injuries.
“There was a conspiracy of silence. You were part of that conspiracy of silence…” Dyke told Swartbooi. “You knew you could hit prisoners and beat prisoners with impunity and nothing would happen to you because the prison was shut down and nobody had access to doctors, to lawyers, or visitors …”
Neither Swartbooi nor any of the other warders were banking on Oswald’s subsequent dogged intervention. As it transpired, the events that occurred at St Albans were not unique. Oswald is currently representing more than 200 survivors of mass-beatings and torture in an episode which occurred in the same prison in March last year – an almost direct replication of events which occurred a decade earlier.
Today, with no compensation for either the Marikana or St Albans survivors in sight, Oswald remains driven by “a complete antipathy to the abuse of power and the culture of impunity increasingly prevalent in SA institutions. This claim is about total disregard for human rights in a system where brutality is the order of the day,” he says. “It is about much more than money. I believe the rule of law must be upheld and public officials held accountable. It’s a matter of principle….” DM