Waterkloof Four: How the system collapsed

2011-12-23 15:06

The system failed the two victims of the Waterkloof Four killers.

Documents submitted to the court as part of Gert van Schalkwyk and Reinach Tiedt’s applications for correctional supervision reveal a series of blunders, contradictions and “highly problematic” legal decisions that led to their early release.

Having spent three years in jail, they were released on Monday after a week-long battle with the correctional services department, who will now challenge the decision by the Zonderwater parole board to allow them to go.

The documents reveal that:
» John Mdaka, the chairperson of Zonderwater prison’s case management committee (the CMC, responsible for referring cases to the parole board), applied for conversion of their sentences in July, although the same committee argued in its application that the two had served too short a sentence to be considered for release;

» Mdaka’s July recommendation, that the two should not be released, is in stark contrast to a glowing report he wrote in favour of Van Schalkwyk a month earlier. Then, he said Van Schalkwyk was a “lovely young man, filled with passion and joy” and that he would make a success of himself if released; and

» Instead of securing a legal opinion from the state attorney, parole board chairperson Hendrik Theron asked Jenny Brewis, the attorney for the two convicted killers, to supply them with a legal opinion on whether the parole board could convert their sentences.

Brewis obtained and submitted an opinion by Advocate Jaap Cilliers (SC), who represented the killers during their criminal trial.

The conversion application by the prison case management committee was not opposed by the department, raising questions as to whether correctional services was ever informed of the decision.

Prison rights activist Golden Miles Bhudu has called on President Jacob Zuma to appoint a judicial commission of inquiry into the Zonderwater parole board and said it was a “known fact that if you want to get your sentence converted, you must go to Zonderwater”.

This is not the first time the Zonderwater parole board has been at loggerheads with the department. Its former chairperson, Justin Setshedi, was suspended in 2009 for alleged irregularities regarding the granting of bail to former Noordelikes rugby captain Riaan Botha.

Botha was serving a sentence for murdering an alleged 17-year-old game thief, Tshepo Matloha.

In what was widely regarded as one of the worst race murders after apartheid, Matloha’s body was tied to a metal gate and dumped into a crocodile-infested dam.

The department responded to a Parliamentary question by the DA that Setshedi was charged because he did not inform prison officials of the decision to release Botha.

Two Zonderwater sources – a former senior prison official and a former parole board chair – said the parole board was hamstrung by power struggles between members of correctional services and civilians on the board.

Winston Campbell, who preceded Setshedi as parole board chair, was in charge of the board when a member of the Boeremag also had his prison sentence converted to correctional supervision in 2005.

Convicted terrorist David Oosthuizen admitted guilt in 2003 and was sentenced to an effective eight years imprisonment, of which he served two years.

Campbell said all procedures were followed in the case, but that correctional services officials were “unwilling to serve under people from outside” and were “obstreperous and undermining”.

City Press understands there were similar arguments within the parole board when it dealt with the Waterkloof case.

In his affidavit, Theron acknowledges that the “CMC’s recommendation, not supporting its own application, appears to be a contradiction in terms”.

It is also clear from his affidavit that there was legal uncertainty over whether Van Schalkwyk and Tiedt qualified for correctional supervision.

He then asked Brewis for a legal opinion.

Referring to Cilliers’ opinion, Theron states: “It is ... not deemed to be within the parole board’s mandate to question the desirability or acceptability of statutory provision regarding minimum periods of detention.”

The parole board had accepted a legal interpretation offered by lawyers for the killers, which appears to be at odds with the current legal position.

DA member of Parliament James Selfe said the fact that lawyers for the offenders had been consulted was “highly problematic”.
Theron declined to be interviewed.

About 19 326 prisoners were out of prison on correctional supervision, but only 51 have had their sentences converted through the provisions Van Schalkwyk and Tiedt relied on.

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