The cost of court bungle

2013-11-26 00:00

TWO clerical errors by a judge’s registrar in 2001 could cost taxpayers a massive R16 million.

Sivion Mkhize (28) of Ladysmith is suing the Department of Justice for this amount for the two years and three months he wrongly spent in jail because Judge Leona Theron’s registrar — whose name is not known — allegedly failed to record that he was granted bail of R5 000 pending his appeal, and also allegedly incorrectly noted the case number for his trial the day he was sentenced on November 14, 2001.

He was released from Waterval Prison on February 13, 2004 after judges Jan Combrink, Chris Nicholson and Kevin Swain set aside his convictions for armed robbery and murder, because they found that evidence by a single state witness identifying him was unreliable.

But testifying yesterday in support of his damages claim, Mkhize told Acting Judge Piet Bezuidenhout that even then he wasn’t aware that his appeal had succeeded.

Instead he was under the impression he had finally got out of prison on bail because that was what some warders told him.

He continued to sign a bail register at a police station — as the judge ordered him to do as part of his bail conditions — until 2007.

His numerous efforts to find out when his appeal was due to be heard were to no avail because no one could find any record of his case.

It was only in May 2008, after he had gone from pillar to post, that his current lawyer, Kamlesh Gurlal of Newcastle, found out at the Pietermaritzburg high court that he had been acquitted.

At the same time his attorney also found documents proving that Judge Theron had in fact granted him bail pending his appeal, as he had always alleged.

The state is defending the action based on the fact that Mkhize’s claim has lapsed because it was not brought within the required three years.

Mkhize stood trial on his own before Judge Theron at the circuit court sitting at Dundee for the murder of Phumlani Masondo and robbery of R39 000 cash and a vehicle at a garage at Ezakheni, Ladysmith, on August 29, 1999.

This was because his two alleged accomplices absconded before the trial.

Judge Theron found Mkhize guilty and sentenced him to life plus 15 years’ imprisonment.

However, judges Combrink, Nicholson and Swain found subsequently that the evidence by a single witness — Tsibiso Mokoena — who identified Mkhize as one of the perpetrators based on the clothing he wore even though his face was covered by a balaclava, could not be relied on, and they ordered his release.

Mkhize told the court yesterday he had been “deeply disturbed” when his relatives arrived at Waterval prison to pay his bail pending his appeal in the days after it was granted, only to be told that it didn’t appear anywhere that he was given bail.

At first prison warders tried to help him and advised him to write to the high court.

He wrote to the KZN Judge President (Judge Vuka Tshabalala) in 2002, who replied on April 30, 2002 that although he was granted leave to appeal it appeared he was not granted bail pending his appeal. “I didn’t know what to do … He was my last hope,” he testified.

Mkhize said he and his family also wrote to the Public Protector’s office and the Jali Commission (which investigated prisons) over time, but to no avail.

He told the court that life in prison had robbed him of his youth and “traumatised” him because he was incarcerated with dangerous convicts.

“I was in fear of these people,” he said.

He said he was held in Maximum B section at Waterval. Each cell accommodated 36 prisoners and “every day there would be fights”.

The case is proceeding.

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