7 years stuck in jail

2014-07-06 15:00

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Awaiting-trial detainee Victor Nkomo dreamt of his freedom inside a dirty and overcrowded communal cell in Johannesburg’s notorious Sun City jail for nearly eight years.

Day after day, Nkomo hoped he would be given the chance to fight the case against him and be acquitted. But every time he appeared in court, the case was postponed. After seven years and eight months, the main witnesses still hadn’t been heard and the trial would likely drag on for another three years.

When his attempt to contest the constitutionality of his absurdly lengthy remand detention became bogged down by delays, Nkomo felt this was the last straw.

“I cannot wait forever in jail. I am so tired and scared of dying in there, it is not a safe place,” he said.

Another day in jail, he felt, would push him over the edge: “I was so depressed that I thought of ending my life,” said Nkomo.

So when, on June 12, the prosecution offered him a five-year suspended sentence for accessory to theft – instead of the original charge of armed robbery – he accepted.

His time in jail and the criminal record he now has is all the more tragic if the evidence against him put forward by the state is considered.

On June 28 2005, the police arrived at Nkomo’s home in Hillbrow. A robbery had taken place two days before at his place of work, Joburg gambling mecca Montecasino.

According to Nkomo, the officers bundled him into a police van, put a plastic bag over his head and drove out to the bush, where they threatened him: “Show us who is involved,” they said. “If you don’t, we will kill you.” Nkomo says the officers tried to strangle him; they kicked him and beat him up.

The day before the robbery, a colleague approached him and asked how much money was kept in the trollies used to transport cash through the casino. In his police statement, Nkomo said he had refused to reveal this information.

Nkomo was given bail in November 2005 and left the country for Zimbabwe, frightened by threats of torture by police officers. After his return to South Africa, he cooperated with the police in arranging his rearrest on October 24 2006.

Nkomo was shuttled back and forth from Johannesburg Prison to the court room countless times, mostly to be told that his case would be remanded again because the lawyers of his co-accused or the prosecutor weren’t there. In 2008, the case suffered a serious set back when the presiding magistrate died. The whole trial had to be started from scratch.

Nkomo appeared in court for four years, but there wasn’t a single trial hearing, only postponements. The trial started again on July 10 2012. Since that day, the trial only proceeded on seven occasions, with no real progress.

Nkomo appeared in court in vain well over 90 times.

In 2009, his lawyer died and his brother, who worked as a security guard at Sandown Chambers, approached Advocate Adrian d’Oliveira for help.

D’Olivera practises commercial and public law, and not criminal law, but he wanted to help. “I wanted to give back and help someone who couldn’t help himself.”

D’Oliveira contacted Peter Jordi of the Wits Law Clinic, who agreed to represent Nkomo and brief D’Oliveira as Nkomo’s counsel. D’Oliveira, who Nkomo affectionately describes as “one in a million”, told him that, based on the state’s evidence, he stood a good chance of being acquitted.

The only admissible evidence against him was a police officer’s statement that an unidentified woman, found with R74?000 of stolen money, claimed it belonged to Nkomo. There was no statement from the woman, who could not be traced and would not have testified. There were no phone records linking Nkomo to his co-accused, none of the stolen money was found on him, and he wasn’t even at work the day of the robbery.

D’Oliveria not only helped Nkomo to defend the criminal charges, he also challenged the legality of the lengthy remand detention Nkomo had to endure.

In 2012, D’Oliveira tried to have Nkomo’s case struck off the roll based on a provision in the Criminal Procedure Act that deals with unreasonable delays. But the presiding magistrate refused.

In June and again in September last year, D’Oliveira helped Nkomo apply to be tried individually, instead of with his five co-accused, which caused many delays. The same magistrate deemed this was “not in the interest of justice”.

When section 49G of the Correctional Services Act came into force in July 2013, Nkomo’s hopes were up again. The new provision stipulates that remand detainees who are incarcerated for two years or more have a right to see a magistrate who should reassess the detention. It is aimed precisely at relieving the harsh and prolonged conditions of remand detention that Nkomo has experienced.

Of the nearly 150?000 inmates country-wide, approximately 45?000 are waiting for their trials, 2?000 of whom have been waiting for more than two years. The clogged-up court system leads to prison overcrowding. According to the latest statistics, Johannesburg Prison is 175% full.

Nkomo knows how this statistic feels.

“I slept on the floor for the first three years and had to share my bed after that. There is one filthy toilet for about 50 men and no warm water. We were only allowed to exercise for an hour a week. Many inmates are ill, one of my friends died of TB while I was in prison.”

Remand detainees are also not allowed physical contact with their visiting loved ones, nor are they provided with any rehabilitative courses or studies.

Magistrate Vincent Pienaar, however, again had little time for Nkomo’s fate. In a three-minute ruling, he decided that Nkomo’s release, under section 49G, was “not in the interest of justice”.

In November 2013, D’Oliveira helped Nkomo apply for a stay of prosecution at the South Gauteng High Court, on the basis that Nkomo’s prolonged pretrial detention was unconstitutional. The presiding Judge Justice Tsoka ruled on April 8 that the delays were the fault of his co-accused and not the state, and therefore dismissed the case.

Nkomo’s lawyers then appealed at the Constitutional Court. But when that court held that it was not in the interest of justice to entertain the appeal before the Supreme Court of Appeal had dealt with the matter, the setbacks finally took their toll.

“It would take at least another year before the Constitutional Court would hear our case and my criminal trial was going to take another three years,” Nkomo said.

So he decided to accept the offer of pleading to a lesser offence, which was offered to him in January.

“I was forced by circumstances,” he said.

How can a system that promises citizens equal justice fail a possibly innocent man so dismally?

D’Oliveira says: “Presiding officers, especially magistrates, deal with hundreds and hundreds of cases every year where there are accused persons in remand detention. Regrettably, some become hardened by this. They fail to appreciate the ordeal suffered by the accused persons who wait in remand detention.”

Nkomo’s ordeal affected him deeply. His wife remarried and he was only recently reunited with his son, whom he hadn’t seen for six years.

“My son understands that I had to accept the suspended sentence. It was the only way I could come out of jail and be a father to him again.”

Despite his criminal record and the hardship he has been through, Nkomo is positive about the future. “This is my dream; this is what I held on to in prison. To be free. I am hopeful I will make it, that I will find a job and make a life for myself.”

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