Thanks to an electronic monitoring device that went missing, Dineo Kgatle spent 26 months behind bars for doing nothing wrong. In a ruling that could see a precedent-setting damages claim, his arrest and incarceration have been declared unlawful. By CAROLYN RAPHAELY for the Wits Justice Project.
When Dineo Kgatle walked out of Baviaanspoort prison into the purple haze of a hot Tshwane day a year ago, he had two things on his mind: caring for his elderly mother, and suing the State for his wrongful arrest and the traumatic 26 months he had just spent behind bars.
In September, thanks to the persistent efforts of the Wits Justice Project (WJP), ProBono.Org and Bowman Gilfillan attorneys, North Gauteng High Court Justice Peter Mabuse declared Kgatle’s arrest and incarceration unlawful – a ruling likely to pave the way for a substantial and possibly precedent-setting damages claim.
Though every compensation claim is decided on its particularities and peculiar circumstances which inform any damages awarded, in 2015 a full Bench of the Gauteng High Court awarded Nicolaas van der Westhuizen R200,000 in compensation for just 36 hours of unlawful detention. The amount former prisoner-turned-pastor Kgatle could claim – for his 26 months behind bars – should he choose to do so, is anyone’s guess.
Kgatle’s nightmare began in 2002 when the then 21-year-old was convicted on charges of armed robbery, housebreaking, attempted murder and rape and sentenced to 28 years behind bars. Twelve years later the model inmate, who qualified as a plumber while in prison, was granted parole and released from Kgosi Mampuru on condition he agreed to have an electronic monitoring device permanently attached to his ankle.
Eager to remake his life, Kgatle secured plumbing work on a Pretoria construction site with the electronic tag – operating in tandem with a GPS base station permitting DCS to monitor his movements 24/7 – hidden under his overalls. As luck would have it, eight months later, Kgatle forgot the base station in the bakkie in which he travelled to work. By the time Kgatle realised this, the bakkie and driver had disappeared.
After immediately reporting the loss, Kgatle accompanied his parole officer on a search for the device which they tracked to a building near the Hatfield Gautrain station. Since the office was locked and the officer’s airtime depleted, the search was abandoned.
When Kgatle returned home, he was arrested and taken to Baviaanspoort prison where he remained locked up for more than two years without ever appearing before a court – a violation of both his constitutional rights and the Correctional Services Act which prescribes that he appear before a court within 48 hours.
The post-prison life Kgatle, 36, had struggled so desperately to create was destroyed in a heartbeat: “No one in my community believes or trusts me any longer. Why would they? They don’t want anything to do with me. All they know is that I was in prison for 12 years and then I went back there. The relationship I established with my girlfriend after I was released was also destroyed.”
Dineo’s suffering was not unique. The Department of Correctional Services’ recently abandoned electronic monitoring project using former inmates as guinea pigs has left a trail of human damage and devastation in its wake. Though electronic tagging is widely utilised in the US and countries like Australia, the Netherlands and Sweden, DCS’ attempts to introduce tagging in SA have been dogged by difficulties and doomed from the get-go by defective technology, official ineptitude as well as possible corruption.
For example, three years ago Minister of Justice and Correctional Services Michael Masutha appointed beleaguered ethically suspect auditing firm KPMG to conduct a forensic probe into the electronic monitoring project bidding process and extended tender awarded to Engineered System Solutions (ESS). Initially awarded the tender for an electronic monitoring pilot project in 2011, ESS was also awarded the tender for the programme’s full roll-out during the short tenure of Sbu Ndebele as Minister of Correctional Services.
Though KPMG’s audit results have never been disclosed and both KPMG and DCS this week declined to comment, President Jacob Zuma in 2016 authorised the Special Investigations Unit to investigate allegations of electronic monitoring project tender-related irregularities. Meanwhile, Ndebele, also a former Minister of Transport, is set to appear in court in November facing charges of accepting bribes of more than R10-million for facilitating the extension of tenders related to the electronic national traffic information system, eNatis.
In July 2017, DCS terminated ESS’s five-year contract two years prematurely, allegedly because of DCS’s inability to pay bills of more than R80-million. According to DCS spokesman Logan Maistry, the contract was terminated following “irregular findings pertaining to the contract”. Brainchild of former DCS National Commissioner Zach Modise, the project has been suspended until further notice. As a result, 562 former inmates previously deemed risky enough to require round-the-clock monitoring have now been detagged.
Photo: Former DCS National Commissioner Zach Modise with the electronic tag. The electronic monitoring project was his brainchild. Photo: Carolyn Raphaely.
For example, paraplegic fraud accused Ronnie Fakude, the first of only six remand detainees to have been tagged, had his device removed three months ago. Ironically deemed a flight risk, the wheelchair-bound former inmate’s trial, which dragged on for seven years, was coincidentally struck off the Bloemfontein High Court roll two weeks ago – the same week Kgatle’s arrest was declared unlawful.
After spending 27 months in a grossly overcrowded Grootvlei prison cell without even the comfort of a wheelchair, in 2014 Fakude begged Bloemfontein magistrate Rashid Mathews to grant him bail and suggested he’d be an ideal tagging candidate – a choice he came to regret: “I was never found guilty but was sentenced before I was sentenced,” Fakude says. “I’d have preferred to have been back in prison awaiting trial than to have worn that tag. And I know how bad prison is…”
Prior to being detagged in July 2017, Fakude was bedridden for eight months with multidrug-resistant TB, acquired in Grootvlei prison and misdiagnosed as bronchitis. “The tag was attached to my paralysed leg for three years solid. No matter how swollen my leg, that device was stuck to it like a handcuff, sometimes causing bad sores. The officials had no clue how to deal with me, or the tagging device.
“Once when I was in court, I was told I was violating my bail conditions because the monitor wasn’t readable on DCS’s radar,” Fakude says scathingly. “The device was often faulty, indicating I was at the airport. It relied on the cellphone network, gave false alarms and false locations.”
In an interview with the Wits Justice Project in 2016, former DCS Director of Supervision, Parole and Probationers Ronald Ntuli acknowledged initial problems and complaints with the GPS’s signal technology which he maintained resulted from reliance on a single service provider: “Our indicators demonstrate a 98% level of compliance with parole conditions because we can easily track offenders’ movements.
“Any violation will trigger an alarm and a parole officer can immediately be deployed to deal with the situation – for example, if a paedophile enters a prohibited area, an exclusion zone. Tagging won’t stop a person committing a crime, but it’s a deterrent. The offender knows there’s a good possibility he’ll get caught and violations can lead to parole revocation. … I can only think of three or four incidents nationally where a monitored individual has committed a crime. The project has been very successful.”
Perhaps Ntuli’s assessment never accounted for psychological injury? Like Fakude, Simone Roets, the first woman in SA to be electronically tagged and the only woman included in the pilot project, says she’d also have preferred returning to prison where she spent 20 years previously, rather than endure the stress the faulty device caused her.
According to Roets, her device was defective from day one until it was removed at the end of 2015. Roets remains so traumatised that she asked her husband, Juan Moore, to talk to the Wits Justice Project on her behalf. “It never worked properly and DCS officials handled her like shit,” Moore recalls. “They threatened her and swore at her.
“Every time Simone moved from the lounge to the dining room it went off and she was told she was violating her parole conditions. This meant she couldn’t work and was effectively under house arrest for three years. It was a nightmare. Sometimes we’d be in the house and the signal would say we were in Ermelo, or Nelspruit. It would beep at 1am or 2am when we were sleeping and indicate she was out of town.
“What happened to Dineo was her worst nightmare. She worried continually that she’d be thrown back into prison, and had to get medication for stress. Once she forgot the base station in a restaurant toilet and it was stolen. We pinpointed exactly where it was and got it back. Even her parole officer didn’t know how the thing worked. It was a total balls-up. Simone came out of prison with good intentions, ready to take on the world. This project broke her psychologically.”
Kgatle’s wrongful arrest and detention might also have broken him, had it not been for his prison “job” distributing newspapers. After reading a story about assistance rendered by the Wits Justice Project to allegedly tortured Leewukop inmates, a desperate Kgatle contacted the Wits Justice Project for help. At WJP’s behest, ProBono.Org n-ordinator Fatima Laher to take on the case.
“I appeared before the Parole Board three months after my arrest,” Kgatle explains. ”When I was told I’d violated my parole conditions, would remain in prison until 2030 and spend a minimum of seven to eight years in prison before being considered for parole, I decided to appeal my case without legal representation.”
Predictably, his unsuccessful application was incorrectly enrolled.
Languishing behind bars unfairly deprived of his liberty, Kgatle embarked on a hunger strike in a futile attempt to compel the PB to deal with his matter urgently – a Parole Board investigation into the circumstances of the base station loss took 16 months to complete, rather than the requisite 14 days.
It took the full weight of a Bowmans team – including partner Mandisi Rusa and two candidate attorneys, Werner van der Westhuizen and Stewart Payne – to secure Kgatle’s release a short while later. “Though Bowmans does not generally take on criminal matters,” Rusa explains, “from time to time we take on matters in the public interest where the rights of the poor and marginalised are affected… The deprivation of liberty through arrest and detention is one of the most severe infringements of a person’s fundamental human rights….
“Today, the Constitution binds the state to a justiciable bill of rights and a substantive rule of law. Detained persons have the right to challenge the lawfulness of their detention in open court, and in cases where the State has abused its power it must be held to account. Dineo’s matter is one of those cases. While it celebrates the accountability and human rights enshrined in the Constitution, it also laments the egregious consequences of unlawful State conduct… The judgment confirms the supremacy of the Constitution and the inviolability of fundamental human rights.”
Though the now derailed electronic monitoring project fell far short of its goals of reducing prison overcrowding, mitigating the negative psychological effects of incarceration in a meaningful manner, or providing judges and magistrates with alternative sentencing options, at least in Kgatle’s case justice has finally been served. Should he institute a successful damages claim, it is hoped that it will help pay for surgery for his mother at a private hospital and also help him realise his long-held dream of becoming a stockbroker. DM
Carolyn Raphaely is a senior journalist with the Wits Justice Project (WJP), based in the University of the Witwatersrand’s journalism department. The WJP investigates miscarriages of justice and human rights abuses related to the criminal justice system.
Photo: Free at last, Dineo Kgatle walks outside Baviaanspoort prison. Photo: Carolyn Raphaely.
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