Shining a Light on South African (In)Justice

‘I’m still in darkness.’

This story I wrote for Leadership magazine could well be made into a film. Every now and then a story grips you emotionally, even as a supposedly dispassionate journalist. The oppression of Thembekile Molaudzi is such a story.

Just over a year ago, the editor at Leadership magazine asked me to cover Molaudzi’s release from prison after having spent 11 years incarcerated for a crime he did not commit.

What I discovered was a giant of a man (literally and spiritually), and the dogged and noble work of an amazing institution housed in the Wits school of journalism:

An Indictment on our Country

‘I’m still in darkness.’

These are the words of Thembekile Molaudzi, nearly two months after being released from prison on the 26th of June 2015. Molaudzi’s prison sentence had been set aside following a Constitutional Court ruling acquitting him of his 2004 conviction for the murder of Mothutlung policeman, Dingaan Makuna, in North West province.

The story of how Molaudzi came to spend eleven years in prison for a crime which was completely unrelated to him, represents an indictment on our entire criminal justice system.

It is a story that has come to light, and indeed to a hopeful resolution, because of the efforts of the Wits Justice Project (WJP), a division of the Wits Department of Journalism that investigates miscarriages of justice in our criminal justice system.

Carolyn Raphaely of the WJP would be alerted to Molaudzi’s plight by a prison warder who had become convinced that Molaudzi was innocent. Eight years into his sentence, Malaudzi had found a public ally. Three years later, Molaudzi would be completely exonerated and freed, and Raphaely would tell his story to the country.

In the words of Molaudzi, it is indeed a story of ‘darkness’ – where the trail of justice makes no logical sense, where the convicted are denied their basic right to appeal, and lives are destroyed as a result.

It is both a moral and procedural darkness because over a decade of litigation failed to secure the basic rights of a citizen of our democratic republic – until a brave Constitutional Court set aside the time-honoured legal principle of res judicata in order to ensure a gross injustice was no longer perpetuated.

Molaudzi’s story begins in 2002 when Warrant Officer Makuna was shot in his driveway, apparently in a bid to steal his bakkie.

Fatefully, Molaudzi has no recollection of his whereabouts that night – it would only hold any significance for him months later, when, in February 2003, he was arrested along with seven other co-accused for the crime.

During an identity parade, Makuna’s daughter recognised four suspects – Molaudzi was not one of them, a telling sign considering Molaudzi is a striking man, and over two metres tall.

The trial would drag into 2004, and the only evidence produced by prosecution and police would be the admissions of three of the eight accused who would implicate all eight in the murder and subsequently they were all sentenced to life in prison by Judge Leeuw, now the North West Judge President.

The key feature of the trial had been the trial-within-the-trial which decided that the out-of-court admissions of the co-accused (admissions which would be recanted by the co-accused later) were indeed admissible, despite the defence’s insistence that said admissions were made under threat of assault and the promise of reward. Beyond the admissions, there was literally no independent, corroborating evidence.

It seems, crucially, that the defence did not challenge the admissibility of out-of-court admissions against co-accused in and of itself. This may have made a difference.

As to why he was fingered by the co-accused, Molaudzi says this remains ‘the million dollar question’ as he really did not know the particular co-accused who had implicated him, at all.

And so Molaudzi’s life slid into darkness, as he entered into incarceration for the next eleven years.

He has no real words to describe his prison experience – and indeed in interviewing him one is almost hesitant to invade such a tender space.

‘I could not adapt – I could not adapt to prison life. I knew I was innocent.’

Molaudzi would write to cabinet ministers detailing the torture and inhumane treatment he would receive in prison, but he would never receive any response to his complaints.

Perhaps the greatest trauma of this time consisted in the fact that for Molaudzi, the wheels of justice got stuck in a morass of incompetence and injustice.

It is a right guaranteed by the Constitution for the convicted to have leave of appeal his conviction. In order to do this, a prisoner and his counsel must have access to the records of his first trial – the trial’s transcripts. Without these, a trial cannot be examined and appealed.

Molaudzi’s representation at his trial was granted him by Legal Aid, who subsequently were unable to access the records of his trial.

Despite being legally entitled to gaining transcripts at the state’s expense, Molaudzi and his co-convicted would ultimately raise money via their families (to a total of R21 000) to pay legal professionals to access the records.

This process took two years. But, when the transcripts finally arrived, it was discovered that large portions were missing.

For the next six years, Molaudzi would flounder in a legal no man’s land, as he desperately tried to get hold of his full transcripts, just so he could begin to prepare an appeal.

As the WJP would later report, over this period Molaudzi wrote to the then President Thabo Mbeki, the Minister of Justice, the Public Protector, the Human Rights Commission, the Judicial Service Commission, Parliament and the Judicial Conduct Committee.

Despite only having been educated up to the end of Grade 10, he studied the Constitution and all the legislation relevant to his case.

His letter to the Judicial Conduct Committee in 2012 (eight years after his conviction) is particularly poignant, coming towards the end of a long, excruciating, Kafkaesque nightmare.

‘I am a patriotic citizen serving life-sentence for the crime I did not commit,' Molaudzi wrote. 'I am unable to appeal or review because essential parts of the records that include illegalities, irregularities and partiality have been deliberately omitted… With all the information before the court, it is impossible to understand how was the verdict reached [sic]. Serving life sentence for the crime I did not commit is a terrible ordeal…

‘No one has felt the agony and anguish I’ve been through, I’ve endured horrors almost beyond human imagination. This [my conviction] is a shocking failure of our legal system and no person in this country is prepared to face that reality. Many nights I lay awake pondering what I can do to get assistance. I did not commit crime, crime is committed against me. Should I just fold my hands and rot in jail for a crime I did not commit?”

For eight years, Molaudzi had languished, paralysed by a decrepit system. It is perhaps impossible to understand the depths of despair such a situation must induce in a human being.

His son, Mark, who was only one at the time of his conviction, slowly ceased to believe his father’s promises that he would one day return home.

‘He began to believe I was simply a liar,’ recounts Molaudzi.

Finally, help would come from the unlikeliest source.

By this stage, Molaudzi was serving his time in Zonderwater Prison. One of the warders he dealt with was Levi Maphakane. Molaudzi would by necessity have to direct all his correspondence via Maphakane’s office. Maphakane had heard thousands of prisoners declare their innocence but Molaudzi’s story stood out for him.

And so he conducted his own informal investigation. He realised to his horror that Molaudzi had simply been unable to appeal his case because of a seemingly malign bureaucracy.

The break in the case came when Molaudzi read an article in the Pretoria News detailing how the WJP had helped two men who had been wrongfully imprisoned for 19 years.

Molaudzi alerted Maphakane to this possible source of help, and Maphakane in turn made contact with Carolyn Raphaely of the WJP.

Raphaely notes that initially Molaudzi’s guilt or innocence was not of immediate concern.

‘My attention was grabbed by the fact that Thembekile had struggled for eight years to gain access to his transcripts. For the WJP this had serious human rights implications.’

Raphaely would try to access his police docket in a bid to begin again the legal battle for his full transcripts, but to no avail. At this point, the WJP directed the attentions of Lawyers for Human Rights (LHR) to Molaudzi’s case.

A paralegal helped Molaudzi to receive new transcripts in a matter of days. Yet again, however, the transcripts were seriously flawed. A third was missing and the paginations were incorrect.

Finally, LHR convinced Judge Leeuw of the original case to order a new transcription. Three weeks later, Molaudzi was finally able to appeal.

The appeal before a full bench of the North West High Court would, however, be yet another body blow when the appeal was dismissed.

In the judgement of the High Court the admissions of the co-accused, despite being found to be ‘the recanted evidence of a reckless liar’ was considered to be admissible in court. Unbelievably, the High Court adjudged that the ‘question of whether the interests of justice require it [the admissibility], has no application here.’

In short, the High Court dismissed the appeal on a technicality that released them from the responsibility of assessing the merits of the case.

Raphaely recalls that the appeal was strange in atmosphere.

‘Nothing made sense. At one stage the prosecutor burst into tears and left the court.’

Raphaely admits that over this period she experienced doubt – surely there must have been some reason for the arrest and conviction of Molaudzi that she had missed? Paradoxically, the lack of any case against Molaudzi and the possibility that the justice system could simply not be this flawed, had induced a doubt in Molaudzi’s innocence.

‘Over the three years I was involved in the case it often occurred to me that the case simply made no sense. There was just no understanding of how Thembekile came to be associated with the case at all.’

Later Raphaely would come to believe that this darkness that surrounded Molaudzi’s ordeal was the result of a system that was failing numerous citizens.

Issues like his lack of an alibi for the night of the murder simply pointed to the lack of guile in an innocent man faced with a leviathan of legal persecution.

After the failed appeal, Molaudzi and his co-accused attempted to appeal to the Supreme Court of Appeal, but this was dismissed with no reason given. By this point, Legal Aid could offer Molaudzi no more assistance.

He did not give up.

He turned to the Constitutional Court, with the legal aid of a fellow inmate who had once been a prosecutor, but his application was dismissed on the grounds that it did not raise any constitutional issues and so had no chance of success.

By now, Molaudzi had appealed to three different courts, one of which is the highest in the land, and failed each time, and thus was still behind bars only on the evidence of a witness who had been named by one of those courts as ‘a reckless liar’.

But hope re-appeared in the form of another application to the Constitutional Court – this time by two of his co-accused, Boswell Mhlongo and Alfred Nkosi. Like Molaudzi, the two men had also insisted on their innocence from the beginning. Mhlongo and Nkosi, like Molaudzi, had presented their case 'in person' to the court, meaning without legal representation. The Court decided to hear their case, unlike Molaudzi's, because their application had raised specific issues of constitutionality regarding the admissibility of out-of-court admissions from co-accused in a trial.

The obvious concern with such admissions is that they are not made under oath in court. The North West High Court had ruled that the co-accused's testimony in court when it corroborated portions of the admissions automatically rendered the entirety of the admissions as legally admissible. (This was owing to the fact that the High Court held that the admissions were not confessions – or unqualified admissions of personal guilt – and thus could be used against co-accused.)

It was this dubious reasoning that the Constitutional Court believed needed further investigation.

Once the Court decided to hear the matter, it was necessary for legal representation to be appointed for the two applicants so as to argue the matter before the Court. And so the Court approached the Pretoria Society of Advocates, whose Pro Bono Committee subsequently appointed Advocate Donrich Jordaan.

Once the Court heard the matter, it was quickly decided to acquit both Mhlongo and Nkosi.

The Chairman of the Pro Bono Committee, Advocate Rudolph Jansen, explains the rationale behind what in retrospect seemed to be an obvious ruling:

'The only evidence against them was admissions made by co-accused in statements outside of court. They were therefore not convicted on the basis of evidence that was given under oath in court and that could be tested by way of cross-examination. Once the legal point was decided that such evidence is inadmissible, in other words, it may not even be placed before the court, the acquittal followed automatically, as there was no other evidence on which to convict.'

It is important to note that the State did not even challenge this finding. (The State would not challenge Molaudzi's subsequent re-application to the Constitutional Court either.)

Molaudzi had been named in the Mhlongo and Nkosi application as 'Accused Number Five' on the grounds that he had been similarly convicted and thus deserved his liberty too. This was done by the State Prosecutor, Advocate Nigel Carpenter. Jordaan had decided he would also represent Molaudzi, free of charge.

However, there is a principle of the common law known as res judicata which holds, in the interest of finality, that a court cannot hear the same matter twice. This meant that technically Molaudzi should not have been allowed to re-apply to the Constitutional Court as they had already denied a previous application of his that was dismissed. This principle is rigidly applied.

But, thankfully, on the merits of the case before them, the Court made an exception. Their ruling stated 'that where significant or manifest injustice would result if a final order stands, the doctrine ought to be relaxed in a manner which permits this Court to revisit its past decisions in accordance with its inherent powers and constitutional mandate to develop the common law. This requires rare and exceptional circumstances, where there is no alternative effective remedy.'

On the 25th of June, 2015, Thembekile Molaudzi finally became a free man. In a cruel twist of fate, load shedding that day meant his release could not be processed immediately. His first night as a free man for the last eleven years was spent behind bars.

How could something like this happen in a supposedly free country?

'This is a case that does leave one with a strong sense of unease,' says Jansen. Despite acknowledging that all legal systems have cases wherein the system fails, Jansen believes that the High Court judges bear responsibility for failing Molaudzi and his co-accused.

'Even if such evidence is admissible [the out-of-court admissions], the quality of such evidence is so weak that it can never sustain a conviction on its own. There needs to be strong corroboration for such evidence. This really is a case that slipped through the system, and everybody in the system needs to take some blame.

'Ultimately the judge and the three judges on the full bench appeal must take some responsibility.'

Many have noted that the fact that the original victim was a policeman may have caused pressure on the justice system to sustain heavy sentences on all the accused no matter the lack of corroborative evidence.

Molaudzi is simply now trying to adjust to living free. He believes his faith kept him sane throughout the ordeal.

He has the benefit of the support of an extended family of eighteen with whom he lives, along with his wife and son, in Onderstepoort. He works in Johannesburg.

He is remarkably not bitter.

As Raphaely puts it, he holds no grudges against the judge who convicted him.

'She is only human; she was misinformed,' he says.

At this stage, he has not even given any thought to seeking restitution or compensation. He is instead grappling with the complexity of the emotion of being free.

Raphaely says he has needed time to adjust, to think. He has met Levi Maphakane several times since his release, and Raphaely was at the prison on the 26th of June.

Both Molaudzi and Raphaely have some clear ideas on where the direction of reform of our criminal justice system must tend.

'The problem is with the police and the prosecutors,' says Molaudzi. 'Judges are misled because all the focus is on convictions, convictions.'

He is also adamant that the issue of transcripts must be radically addressed.

'The recording is essential. There should be a digital recording. It is a constitutional right.'

Raphaely believes, from the point of view of the WJP, that changing perceptions of prisoners' rights is vital.

'It has to be understood that prisoners' right are indivisible from human rights.

'In our prisons, there seems to be a culture of impunity, with little accountability for how prisoners are treated. There are gross abuses of power.

‘Equally, members of our judiciary need to be cognisant of the fact that they are dealing with individual human beings, not simply cases.’

Raphaely believes, sadly, that Thembekile Molaudzi's story is not unique.

The 'manifest injustice' spoken of by the Constitutional Court ruling in his case perhaps is mirrored in thousands of similar stories throughout the country.

But that injustice is not the limit to the meaning of Thembekile's story.

The dignity which he never lost in the midst of his suffering is a reminder of the better angels of our humanity – angels represented too by the likes of the WJP, LHR, Donrich Jordaan and indeed the justices of the Constitutional Court.

And it is that humanity which must spur the country on to doing better in its fight against crime and in its bid to make criminal justice fair, transparent, and worthy of a free people.

It is the innocence of Thembekile Molaudzi, in the face of the guilt of our justice system, which compels us to right such wrongs.