A Recipe for Injustice

by Satish Sekar © Satish Sekar (February 20th 2013)
A Curious System?
Twenty-nine year model, law graduate, aspiring actress and television presenter Reeva Steenkamp should have had the world at her feet. Instead she was cremated yesterday at a private ceremony in Port Elizabeth, South Africa. She died in fear shot dead by her boyfriend, the Paralympian icon, Oscar Pistorius on St Valentine’s Day – a day traditionally associated with love.
He has been charged with her premeditated murder. He denies the charge, claiming that he believed an intruder was in the bathroom. He shot through the bathroom door. Steenkamp was hit in the head, hand, arm and pelvis.
Impossible to prejudice?
Lurid details – almost certainly the result of extensive leaks by both Pistorius’ side and the police – are already in the public domain. Far from all of the published information is accurate. Such reporting is tolerated there, while it would almost certainly result in contempt of court charges in Britain.
The South African criminal justice system does not have juries. It abolished jury trial in 1969, largely because all-white juries were hardly likely to be fair during Apartheid. As a result of this hangover from the Apartheid era a judge sits alone, but can have experts if he or she wants them as well. The system is closer to the Dutch rather than English model, but it can and has produced gross injustices before.
The Jury’s Out
With no jury to prejudice details can be published without rendering a trial unfair. The Pistorius case is controversial and has already put South African justice in the dock in the post-apartheid era, as Pistorius’ supporters and opponents are free to free to speculate on the leaks as the judge cannot be prejudiced by it – well that’s the theory.
Consequently, it is being tried in the court of public opinion long before it comes to trial. In high profile cases there is a real danger of justice miscarrying, either in the OJ Simpson sense or, more worryingly, in the Cardiff Five sense.
There is a clear and unequivocal miscarriage of justice that highlights the dangers of this system in South Africa – the Eikenhof Three – but nobody is talking about it. Why not?
A Preposterous and Notorious Failure
As South Africa was moving towards reconciliation after Apartheid a car was carrying five white people was attacked near Eikenhof in March 1993. Zandra Mitchley, her son Shaun Nel and his friend Claire Silberbauer were killed in a hail of bullets at Eikenhof, near Johannesburg. Norman Mitchley and Craig Lamprecht survived. The Mitchleys were adults, the others teenage children who knew nothing about the political situation and Apartheid.
The Eikenhof Three were subsequently wrongly convicted by the notorious Judge David Curlewis – an obvious problem with the no-jury system is that judges’ prejudices have no counterbalance. Zipho Gavin and Siphiwe Bholo were sentenced to death and Titi Boy Ndweni to seventeen years. They were undoubtedly innocent.
Colonel Charles Landman headed the investigation, which used a combination of brutality and rewards to secure evidence. The star witness, Nelson Mpunge, complained of both, including not being paid the full reward offered. The Eikenhof Three had a strong alibi, which made these abuses necessary if there was to be any prospect of convictions which were politically necessary to try to boost the negotiating position of F W de Klerk and the National Party.
Bholo and Ndweni were brutalised into confessing. Gavin was handed in for questioning by Tokyo Sexwale, later to become Human Settlements Minister in 2009, among others, in return for guarantees that he would not be brutalised. Significantly, he was not and he did not confess, but his refusal to confess made no difference.
The three were members of the African National Congress, but the Eikenhof attack was not an ANC operation. The Azanian People’s Liberation Army – the armed wing of the Pan Africanist Congress of Azania quickly claimed responsibility. There was no scientific evidence against the three, but none of this mattered. Judge Curlewis ignored the discrepancies, which were legion, and convicted the three.
Among the evidence not disclosed to the Eikenhof Three at the time of their trial was that police knew and concealed the fact that five witnesses to the Eikenhof attack had identified APLA members Sipho Xuma and Muzi Motha as two of the attackers from photographs shown to them by police. This shows that the police were investigating the APLA at the time.
A Novel Approach
Their first appeal was dismissed, and that ended legal remedy for them, or would have done, but for an unusual method to begin the process of correcting this miscarriage of justice, the Truth and Reconciliation Commission (TRC), and even then it was more by luck than design that justice prevailed –partially.
The TRC heard an application for amnesty from Phila Dolo who had been convicted of another offence – an attack on police. He had never been charged over the Eikenhof attack, yet applied for amnesty for that too. Dolo was a commander in the APLA. It was his unit which carried out the Eikenhof attack. The weapons which he used in the attack on police were subjected to ballistic tests. That proved that those weapons had been used in both the attack he was convicted of and, crucially, the Eikenhof attack too.
Dolo made it clear that the APLA had carried out the attack and that the Eikenhof Three were totally innocent. He had told the truth and was granted amnesty – that could not have happened unless the TRC believed him. Incredibly, Jan D’Oliveira, for the State, resisted the application for a rehearing made in 1999, claiming Dolo was not credible and was a schemer.
A retrial was subsequently ordered by the South African Court of Appeal. The Eikenhof Three were freed after six years, pending a retrial that never happened. They still await formal vindication and an apology. Despite the end of Apartheid, the system of ‘justice’ that convicted them remains intact – for example, there are still no juries. Pistorius will face a judge not jury.
The Hardest Word
The President of the PAC, Letlapa Mphahlele has apologised to the three for what they went through even though they are in no way responsible for the failings of that country’s criminal justice system. “I accept their apology,” Mr Gavin said. His sentiments were echoed by Mr Ndweni and Mr Bholo, who went further. “They don’t owe me an apology.”
All three are scathing about the criminal justice system that wrongfully convicted them and did so knowing that it was an APLA attack that they had nothing to do with. A raid in Lesotho in 1995 gave the South African state access to damning documents – ones that proved Dolo was telling the truth. He was telling his superiors about the Eikenhof attack. The Eikenhof Three were not mentioned.
The state prosecutor knew of this and ignored it. Still the Eikenhof Three remained in prison. Among the plethora of unanswered questions is what happened to the 250,000 Rand reward and whether investigating officers took some or all of it? If ever a case cried out for a Truth and Justice Commission to establish how and why the injustice happened, and how repetition can be prevented, this was it.

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