Op-Ed: South Africa needs an effective legal remedy for wrongful convictions

Ruth Hopkins works as an investigative journalist for the Wits Justice Project

Thembekile Molaudzi spent 11 years in prison for a crime he didn’t commit, the murder of a policeman. While the only evidence against him was the statement of a co-accused who later recanted his testimony, his appeals were nevertheless dismissed. His saving grace came when his co-accused appealed to the Constitutional Court. That court decided the evidence against them was inadmissible and ruled that Molaudzi should also be released from custody. My colleague Carolyn Raphaely chronicled Molaudzi’s long struggle for justice for the Daily Maverick.

Molaudzi is the first Wits Justice Project case that has seen justice restored and with it the hope and faith in the legal system that is so essential to the rule of law. Many other inmates and their family members contact us, asking for help with what they claim are wrongful convictions. We have an anecdotal idea of the scope of the problem. But the real number of people in South Africa who shouldn’t be behind bars, is unknown, because there is no effective remedy for people who have exhausted all their legal options, yet still maintain their innocence. And that should change. Our cases will show you why.

Fusi Mofokeng and Tshokolo Mokoena are two friends who were at the wrong time and the wrong place after a police officer was killed by a self-defence unit just outside Bethlehem in the Free State, at the tail end of apartheid. The killing triggered a township raid and Mofokeng and Mokoena were arrested. There was no evidence against them except for a witness statement that was later recanted because that witness claimed the police had pressured him. Mofokeng and Mokoena were sentenced to life under the doctrine of common purpose, a legal principle with a low evidentiary threshold that allows for the arrest and conviction of groups of people. The actual perpetrators were pardoned following a confession before the Ttuth and Reconciliation Commission in 1998, but Mofokeng and Mokoena maintained their innocence and, in an unbearably ironic twist of fate, they were sent back to jail. They spent 19 years behind bars and were released on early parole in 2011, with criminal records and their lives subject to parole conditions.

Thuba Sithole is a former Pick n Pay worker who walked 50 minutes every day to and from work. One day, in 2007, on his way back, he turned a corner and was faced with two police officers aiming a gun at him. They thought he had just robbed three girls at gunpoint in the area, and despite the fact that Thuba was walking calmly towards the officers, they claimed he was on the run from the police. One of the three girls could not identify him. The only evidence against him were the witness statements of the other two 18-year-old girls who had just been robbed. They saw Sithole exiting the police van after his arrest and claimed he was one of the three men who had robbed them. The girls later told me they were never sure and that there was a police officer urging them, just before they took the stand, to “say it is him”. Sithole was sentenced to 15 years and has spent five years behind bars.

Then there is the ‘Harrismith Five’, a group of five co-accused who were convicted, under the doctrine of common purpose, of crimes committed on three different dates. Two co-accused were in a Swaziland prison at the time of one of the crimes and another was in Mozambique when another crime was committed. The strong evidence they have to support their innocence was disregarded during the trial, when a police officer accused them of lying.

The examples illustrate that the South African legal system is anything but perfect. And that should come as no surprise. Not only because South African law enforcement is in disarray, following the Marikana massacre, the Mido Macia ruling, the 10 police officers currently on trial for the alleged murder and torture of a man in Ivory Park and the complex political jousting at the top level management of the National Prosecuting Authority and the Independent Police Investigative Directorate.

However, wrongful convictions are not a uniquely South African problem. Any system designed by humans is inherently flawed. South Africa’s legal system obviously has its faults, but even in some of the best-resourced legal systems in the world, there are numerous cases of wrongful convictions.

The question therefore is not how do we create a perfect system but should be: how can the system address its inherent flaws?

In this country, section 327 of the Criminal Procedure Act (CPA) deals with wrongful convictions after all legal remedies have been exhausted. It provides for the option of a full pardon, which means the criminal record will be expunged, as if the conviction in question had never occurred.

The provision outlines a legal route the applicant should take: the Department of Justice should be petitioned with further evidence that has become available since the conviction. The justice minister may then decide that the petition and relevant affidavits with the evidence are directed to a court in which the conviction occurred. The court will then assess the evidence and will advise the president whether such evidence affects the conviction. The president has the power to decide if a full pardon will be provided. Worryingly, there are no known cases of successful applications under section 327 of the CPA, which means there are no statistics and no idea of the scope of wrongful convictions in South Africa.

Separation of powers

This provision is not only dead in terms of its actual application; it also flies in the face of the doctrine of the separation of powers, the cornerstone of the rule of law. President Jacob Zuma is politically accountable for the police, as his current deliberations with National Police Commissioner Riah Phiyega illustrate. Shoddy police investigations, however, often form the core of wrongful convictions. The executive should not be mandated to decide on these matters, as he has the power to protect or expose the police, while also being politically accountable.

Nor would it be right for the judiciary alone to decide on these matters. When the criminal justice system fails to produce justice and instead leads to innocent people being locked up, checks and balances should be put in place. Checks and balances that do not involve peers assessing each other. Legal systems in other countries have arrived at this very conclusion and independent bodies have been set up that assess possible wrongful convictions after the appeals process has been exhausted.

Netherlands

In June 2000, in a park in Schiedam a boy, Maikel, was assaulted and his friend, Nienke, was stabbed to death. Both children were also sexually assaulted. Cees B, a known paedophile, who had previously harassed the son of a police officer, was arrested and later convicted. When his defence pointed out that his DNA was not found at the scene of the crime, the courts accepted the baffling explanation proffered by police and the prosecution that he could have removed his DNA. Four years later another man spontaneously confessed to the crime. The consternation at this wrongful conviction and the utter failure of the legal system was huge. Not only were protocols surrounding the storage of forensic evidence ignored, outright warnings by forensic experts who said they had the wrong suspect were also ignored by the prosecuting authority.

This high-profile case led to introspection and ultimately to the establishment of the Commission Evaluation Finalised Criminal Cases (CEAS) in 2006. The members of the commission were retired judges, prosecutors, legal experts and police officers. Their focus was to analyse the police investigation and prosecution to assess if any mistakes or omissions could have informed the assessment by the judiciary. The CEAS received 63 applications from 2006 to 2010. Several convictions were later overturned.

Birmingham Six/Guildford Four

In the UK, a series of convictions of suspected Irish Republican Army bombers known as the Guildford Four and the Birmingham Six later turned out to be entirely wrong. Dozens of citizens were killed when bombs went off in several pubs in England. The Guildford Four all confessed to the bombing, but it later transpired that these confessions were made under torture. The investigating officer’s notes of the interviews with the suspects had been heavily tampered with and their convictions were finally reversed in 1989.

The Birmingham Six showed visible signs of bruising and ill treatment when they appeared before the judge in 1974. They were deprived of sleep and food and threats were made against their family members and themselves. During their final appeal in 1991 evidence of police fabrication and suppression of evidence was presented, and the men were acquitted.

In the wake of these acquittals the Royal Commission on Criminal Justice was established. However, this commission disbanded itself, because it found that the role of the home affairs minister, who referred cases back to the courts, was in conflict with the doctrine of separation of powers. That was why the Criminal Cases Review Commission was established in 1997. It is an independent body mandated to review potential wrongful convictions and refer them back to an appeals court. Since its inception it has received 19,773 applications. Of these, 392 appeals were allowed and 167 dismissed.

The wrongful convictions I mentioned in this country, the UK and in the Netherlands, were not caused, but rather reaffirmed by the courts. The police either wrongfully arrested someone, or did not follow procedure in terms of the chain of evidence and storage of evidence, they developed so-called ‘tunnel vision’ by focusing on one suspect, they tortured and unlawfully pressured suspects and witnesses, tampered with evidence or they outright lied.

The current state of the South African Police Service should be cause to worry about how the flaws at the bottom of the criminal justice chain inform the prosecution and shape the evidence presented to the judiciary. It calls for more introspection about the inherent weaknesses of our legal system. And because lives are at stake, we should build in checks and balances that will highlight and address these weaknesses.

An independent body of experts could very well provide these checks and balances. It should be mandated to review cases and should have the power to refer cases to an appeal court, where new evidence can be presented and assessed. This commission should not be dependent on the executive but it should also have no direct links to the judiciary.

Such a body is not a panacea for the plethora of problems afflicting the criminal justice system and should not be a substitute for the ongoing training, development and improvement of criminal justice actors.

A criminal cases review body would not only have huge potential for people like Thembekile, Fusi, Tshokolo and Thuba, it would also serve as a diagnostic tool for the criminal justice system, flagging its wrongs and offering an avenue to make things right. DM