This is the story of inmate 97714821: Albertus Kleynhans. He is serving a life sentence for murder. This article serves to highlight the plight of indigent inmates who may have been wrongfully convicted and the difficulty they face in trying to access justice in South Africa.
Kleynhans is 50 years old and has served 27 years for a murder he (and his co-accused) insists he did not commit. He remains incarcerated. The two co-accused who did commit the murder are on parole.
It is time to shine a spotlight on South Africa’s parole/release system which is deeply flawed and too often arbitrary. Periodically, we get smacked by another appalling release decision by either a parole board, the National Council of Correctional Services (NCCS)/Minister of Justice and Correctional Services (in the case of lifers), or the courts – in the case of Section 286 (a) of the Criminal Procedure Act that deals with inmates who have been declared dangerous offenders.
This was graphically illustrated a few weeks ago with a parole board’s decision to grant parole to former Claremont policeman Marius van der Westhuizen, despite the findings of criminal behavioural experts who did not recommend release.
This inmate has served only 13 years of a 24-year sentence for shooting his three children in the presence of his wife, to teach her a lesson for not obeying him. As Charlotte (his ex-wife) said: “Is that justice? I don’t think so.” Perceived rehabilitation should be tempered with retribution.
Administrative
The parole process in South Africa is purely an administrative function designed to adhere to policies, legislative requirements and meeting targets. It is not a behavioural function conducted by professionals – which it should be.
Parole boards, generally, do not have requisite behavioural professionals such as psychologists, psychiatrists, criminologists or social workers serving on them. They tend to be populated by priests and teachers: noble professions in their own right but not necessarily suitable for making decisions on whether offenders are rehabilitated and not a risk to the community. Redemption is great, but in these cases, rehabilitation is better.
The NCCS has some of these behavioural professionals including criminologists and psychologists (academics). It also has individuals from the National Prosecuting Authority and the judiciary. These individuals mostly have not worked in a prison environment where they would have conducted needs and risk assessments and/or therapeutic interventions.
Prisoners sentenced to life
They also have no contact with the lifer they are considering and rely on reports in their profiles, which is problematic given the often shockingly poor quality of assessments and concomitant referrals for treatment in the DCS (Department of Correctional Services).
As an aside, and varying between provinces, the ratio of psychologists to offenders is anything up to 1:3,000. Therapy is only a part of their workload. The DCS (besides the Western Cape) does not employ criminologists, who can be used primarily to conduct needs and risk assessments and are criminal behavioural specialists.
The NCCS considers the profile of the lifer and makes recommendations to the minister who either concurs with these recommendations or changes them. Perhaps the most dysfunctional part of the lifer parole process is the time it takes for the minister to sign off on the profiles – this can sometimes take years. It then takes some time to return the profile to the inmate. Only once the lifer has been notified of the outcome can the prescribed interventions take place.
By way of illustration, if a profile takes two years to be returned to the lifer and he gets a 24-month further profile, that’s four years before it is submitted again; then it takes another year or more to be returned after it has been to the NCCS and the minister – and so it continues.
Through the cracks
This system is dysfunctional. I fully understand the lack of sympathy from victims and the public and the wish that they rot in jail, because of the heinous crimes committed by these individuals, but sometimes some fall through the cracks, like Albertus Kleynhans.
Kleynhans is an indigent inmate who has been left to rot in prison while the criminal “justice” system consistently and seemingly arbitrarily denies his freedom.
If a potential parolee disagrees with a parole decision taken by the parole board, they may apply for a review in terms of Section 77 (1) of the Correctional Services Act of 1998 to the Correctional Supervision and Parole Review Board.
If a lifer does not agree with the decision made by the NCCS/minister, the only recourse they have is to approach the courts, which costs money. What recourse does an indigent offender have?
In 2015, I conducted a risk assessment on Kleynhans for the parole board as his parole was not recommended by the NCCS/minister and he was given a further profile for 24 months in 2013 in order to complete stipulated interventions.
It was during this assessment for his next submission, in 2015, that he insisted he was not on the murder scene. My immediate thought was, “Here we go again, just another offender insisting he is innocent”. However, this case was different and I decided to dig deeper.
Kleynhans has had two subsequent parole submissions. The outcome of the 2020 NCCS hearing was devoid of substance or explanation. He was given a further profile for 12 months “to continue psychotherapy”. That’s it. He has had numerous interactions with DCS psychologists and will forever be “punished” for his lack of insight into his crime and his lack of empathy and remorse.
As stated by Kleynhans, he would rather die in prison than take responsibility for a crime he did not commit. Presently, he is again awaiting a response from the minister and, as per the history of his submission outcomes, I have no doubt they will find something else for him to do before any release is possible, forcing him to remain incarcerated for a few more years.
The crime
A tavern owner was murdered in the early hours of 1 June 1997 and Kleynhans and his two co-accused were arrested on the same day and denied bail. During the trial, one co-accused placed Kleynhans at the scene of the murder and robbery, ostensibly because he refused to “stand” for the robbery, which would obviously have placed him on the scene.
This is a typical gang instruction. The co-accused who demanded Kleynhans comply was a more senior member of the 26 gang at the time and expected to be obeyed. The third co-accused has always stated that Kleynhans was not on the scene. There was no trace of him in the victim’s house, as opposed to his two co-accused who left behind plenty of evidence of their presence.
The state also accepted the testimony of a single witness who must have had exceptional hyperopia as he recognised and identified three figures entering the victim’s house at 3am on a misty morning from 112 metres away. The inspection in loco was held in August at 9pm in very different conditions and there was a new structure altering the scene, forcing the witness to move in a different direction and closer to the house.
This is just one concern emanating from the 700-page court record. The pro bono counsel laboured through the record and compiled an excellent founding affidavit. Some superheroes do wear capes.
Pro bono help
During 2021, it was time to reach out to the legal fraternity for pro bono assistance to apply again for leave to appeal. The concerns and questions unearthed in this case should be allowed to be challenged in an appeal, as per the anomalies highlighted in the applicant’s founding affidavit, as there is enough reasonable doubt regarding Kleynhans’ conviction. In addition, his one co-accused has deposed an affidavit stating that he maliciously placed Kleynhans at the murder scene.
Enter the community-spirited superheroes from the legal profession. Only their first names will be mentioned. Western Cape superheroes: Edwin, Brenton, Mark, Shaina and Stephanie. Free State superheroes: Mark, Zureyda, Ovayo and Mamello. Special acknowledgement to Edwin who facilitated the search for these practitioners and to Shaina and Mamello who did the hard work at their (or their law firm’s) cost and many hours of volunteering their professional time. The documents that must be submitted to the Supreme Court are cumbersome, with different agencies to be served within strict periods. The process is expensive.
Kleynhans has made several attempts since his sentencing to get the assistance of Legal Aid to file a leave to appeal, beginning directly after his sentencing – they have steadfastly refused to help. The latest rejection was in 2018, with words that have come to be synonymous with all his applications for help: “no reasonable prospect of success”.
Only in 2016, after another “no reasonable prospect of success” verdict had been received from Legal Aid, were reasons given. Most of them were countered by the court record, which they ignored.
Supreme Court of Appeal
Once the hard work of the pro bono advocates and attorneys was complete, it was time to submit the copious appeal documentation to the Supreme Court of Appeal (SCA). The application was opposed by the state (NPA), and again, the applicant’s advocate wrote a legally informed replying affidavit which countered some of the state’s objections raised in their answering affidavit.
The two judges who considered the leave to appeal application simply stated: “The application for leave to appeal is dismissed on the grounds that there are no reasonable prospect [sic] of success and there is no compelling reason why an appeal should be heard.”
How can the outcome be predetermined if no hearing has taken place? SCA judges do not have to provide reasons for their decisions. This lends itself to much speculation.
Together with the pro bono attorneys from the Bloemfontein law firm, it was possible to lodge a Section 17(2)(f) of the Superior Courts Act application, also at the SCA, to be considered by the Judge President. It is a request for a review of the leave to appeal refusal. The state did not oppose this application.
Again, the outcome was as expected: “The application in terms of s 17(2)(f) of Act 10 of 2013 is dismissed for the reason that no exceptional circumstances warranting reconsideration or variation of the decision refusing the application for leave to appeal have been established.”
So, Albertus Kleynhans remains stuck in prison. How many of them are out there who have not even had their voices heard? Courts are not infallible. Where is the justice in this? DM