A Recipe for Injustice

by Satish Sekar © Satish Sekar (February 20th 2013)

A Curious System?

Twenty-nine year model, law graduate and 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.
Her boyfriend, the Paralympian icon Oscar Pistorius 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 certainly result in contempt of court charges here. 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 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.
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. Consequently, it is being tried in the court of public opinion long before it came to trial. In high profile cases there is a real danger of justice miscarrying, either in the OJ Simpson sense or in the Cardiff Five sense.
There is a clear and unequivocal miscarriage of justice that highlights the dangers of this system in South Africa, but nobody is talking about it. Why not?
It took an unusual method to begin the process of correcting this miscarriage of justice – the Truth and Reconciliation Commission.

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. The Eikenhof Three were subsequently wrongly convicted by the notorious Judge David Curlewis. Zipho Gavin and Siphiwe Bholo were sentenced to death and Titi Boy Ndweni to seventeen years. They were undoubtedly innocent.
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 Mitchley were adults, the others teenage children who knew nothing about the political situation and apartheid.
Colonel Charles Landman headed the investigation, which used a combination of brutality and rewards to secure evidence. The star witness complained of both, including not being paid the full reward offered. The Eikenhof Three had a strong alibi, which made this necessary. Bholo and Ndweni were brutalised into confessing. Gavin was handed in for questioning in return for guarantees that he would not be treated badly. He did not confess.
The three were members of the African National Congress and 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 David Curlewis ignored the discrepancies, which were legion and convicted the three.
Their first appeal was dismissed and had it not been for the Truth and Reconciliation Commission hearing an application for amnesty from Phila Dolo who had been convicted of another offence the truth may never have emerged. Dolo was a commander in the APLA. It was his unit which carried out the Eikenhof attack. He provided the weapons which were tested. They had been used in both the attack he was convicted of and crucially the Eikenhof attack too.

Proved Innocent

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. 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 that convicted them remains intact.
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 accepted 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.