Know Your Rights
||03 June 2012 07:00
|Show: ||Carte Blanche|
"Sipho" was orphaned and rejected by his family and was virtually living on the street by age 20. He came to Gauteng to find work. Late one Thursday afternoon he was walking along the road after visiting a friend when two men approached him and apprehended him, saying they were police.
'Sipho': "I heard the other one asking him, the other one, 'Is it him?' And the other one says, 'Ja.' The one came with a gun over my head, holding me by my belt."
"Sipho" was bundled into an unmarked car and taken to a police station. When he tried to ask what he was being arrested for, they would not tell him.
'Sipho': "I was told to take off my shoelaces and my belt, and I was put into the cells. At night my name was called, my fingerprints were taken, and they wrote there that I was being arrested for murder."
[On screen] Sipho; Age: 20; Arrested for murder
Bongani Bingwa (Carte Blanche presenter): "There are approximately 162 000 inmates in South African prisons. About 50 000 are awaiting trial. 'Sipho' was one of them. Accused of murder, he spent eight months in jail and was finally set free after being found innocent. This is his story... But it could be yours."
Prof Stephen Tuson (WITS School of Law): "I think there is a certain arrogance; a wilful refusal to comply with the law by many policemen."
Professor Stephen Tuson from the Wits School of Law says that the criminal justice system is failing society at every level.
Prof Tuson: "The core of the problems start and end with our police force, because their conduct has a ripple effect throughout the system, through to the prosecution, and whether we get a conviction or not."
Bongani: "But is Sipho's case an isolated one? We spoke to an ex-policeman who was falsely accused of robbery. He spent three gruelling years in jail awaiting trial, so he has an insider's perspective both as a policeman and as a prisoner. By the time he was set free and found innocent his life had completely fallen apart. He wishes to remain anonymous, so we'll call him 'Andre'."
'Andre': "Police officers nowadays have too much power. A police officer can arrest anybody, lock you up, and you will stay in prison as long as it takes you to prove yourself innocent."
So what was wrong with Sipho's arrest? Let's go back.
Prof Tuson: "Procedurally they are required to identify themselves as police officers, to tell them [him] the reason for the arrest and they only need to apply force if he resists or shows in any way an intention to flee."
Ideally, the police officer should have a warrant of arrest, but this is not always possible and the suspect's rights should be read to him within a reasonable time. According to "Sipho" none of this happened; he had been arrested for a crime he didn't commit and he had no idea why. Andre says there is pressure for the police to achieve certain arrest quotas, and the stations get evaluated based on this.
'Andre': "You will find that a lot of police officers will just arrest somebody to be able to prove that he did his quota of arrests for the month. Other police officers will just close down dockets that could actually have been investigated just to get their load down."
"Sipho" says he was never allowed to make his mandatory phone call to contact someone who could help him.
'Sipho': "The phone numbers and the money that I had was confiscated."
Bongani: "Did you ask them... did you say: 'Can I phone someone?''
'Sipho': "Yes. And they asked me: 'Do I have coins?' I told them, 'I don't have coins.'"
Bongani: "So you had to pay for your own phone call?"
'Sipho': "I have to pay for the phone call."
Prof Tuson: "It's absurd to take his money away from him and then say, 'You need to pay for the call,' which on two counts is wrong: he shouldn't have to pay for his own call and he should be afforded the means of making the call."
Bongani: "A simple thing like a phone call shouldn't be all that difficult to achieve. But "Andre" says this happens all the time."
'Andre': "Whenever l asked for a call it was said, 'Oh, the guy with the pin code is not here.' They don't even allow you to use the public phone to phone your people."
The next day, "Sipho" was moved to another police station. Still not allowed to contact anyone, they told him he would get his chance in court on the Monday morning.
Bongani: "Basically, no-one knew where you were?"
'Sipho': "Nobody knew."
Prof Tuson: "It's very common. Police see the 48-hour maximum period of detention as just that."
Professor Tuson says that "Sipho" should have been advised of his right to remain silent, his right to apply for bail even after hours, his right to make a phone call and his right to obtain legal counsel timeously.
Prof Tuson: "There is a lack of accountability; there is a lack of diligence; there is a lack of know-how - a proper forensic investigation, pursuing leads, talking to witnesses; no holding people responsible for their failure to do their job."
'Andre': "I don't trust the police. We've got to be very careful of them because, due to lack of training, due to the lack of knowledge of the law, they can be very dangerous. They can ruin your life."
After a weekend in the police cells, "Sipho" was taken to court and the system let him down once more.
Bongani: "So when you went to court, didn't you speak up and say, 'Excuse me, what's going on? Why am I here?'"
'Sipho': "No, I couldn't speak for myself because I wasn't given the opportunity to speak for myself."
Bongani: "What about your lawyer?"
'Sipho': "I only got the lawyer on my third appearance to the court."
"Sipho" says that at no point did the State attorney consult with him properly. "Andre" also found his public defenders to be inaccessible.
'Andre': "They don't care. You don't get consulted by them... they will see you maybe two minutes before court."
Bongani: "Due to the high volume of cases, public defenders often arrange for postponements, in advance. Of course, sometimes they simply don't show up."
Prof Tuson: "And that is very wrong, because they should be there to make sure that each and every request for a postponement is done properly on good reason."
Bongani: "If we look at Sipho's case... he didn't have money; he didn't have really anyone to fall back on, to appeal to... and he certainly didn't know what his rights were."
Prof Tuson: "He would be the person who is most vulnerable, because no access to funds to pay an attorney."
Bongani: "But his ordeal was just beginning. When his case was remanded, 'Sipho' was sent to an overcrowded prison, where he was immediately targeted by one of his cell mates."
'Sipho': "I was also made to be somebody's wife. He told me to take off my clothes. And then I said, 'No, I can't do that.' He was violently threatening me. He said, 'I'll stab you right now.' That's when I was actually raped."
When "Sipho" complained to a warden the following day, he discovered that his rapist had already bribed the officer into silence.
'Andre': "There are some of the guys that get locked up in single cells, and they would give the warden money to put a young boy that they prefer to be with, with him in a cell where he ... actually he gets raped. Once you're in prison you are nothing."
Prof Tuson: "There is an entire network of corruption and payment for privileges which are completely illegal."
But Chief Deputy Commissioner Zacharia Modise seems to think that corruption within Correctional services is not such a serious problem.
Zacharia Modise (Chief Deputy Commissioner: Correctional Services): "For me I would say five percent of officials engage themselves in corrupt activities, mainly bring contraband to offenders."
"Sipho" was also turned into a drug mule by his cell mate. Every time he had a court appearance he was made to smuggle contraband like dagga into the prison, by inserting it into his rectum.
'Sipho': "Somebody from outside would come with the things into court and would pay the police officer to take it down and give it to that person who actually ordered those things."
Prof Tuson: "The system functions best with an uncomplaining, un-protesting individual until such time as that system works him out of the system."
Bongani: "And that's exactly what happened to 'Sipho'. When he finally got his day in court after eight months and 16 postponements, the family of his alleged victim showed up to testify and said: 'He wasn't the guy.' So he was found innocent and sent home with an apology."
Branded with the mark of the 28s gang, a broken man with nowhere to go and no one to turn to, "Sipho" had been spat out of the system.
'Sipho': "Since then I've had this problem: I can't go to the toilet as a proper person anymore. There has to be that pain. The question of suicide still remains in my head - should I do it or should I not do it?"
Bongani: "Ultimately who do you blame for what happened to you?"
'Sipho': "It's everybody: police, prison the court the lawyer... basically everybody."
Prof Tuson: "My problem with the system is that there are many unnecessary arrests where they only begin the investigation after the arrest. They then establish his innocence and he's released and there is no recourse."
"Sipho" tried to get recourse by initially telling his story on YFM with Faith Mangope; and Minister of Police, Nathi Mthethwa, was there.
[Asi-B Films] Nathi Mthethwa (Minister of Police): "This is a very unfortunate story as he's experienced..."
Bongani: "Apparently the minister of police has assigned someone to look into Sipho's case. We've approached the ministry for comment, but haven't received any as yet."
'Sipho': "As it happened to me it might happen to anybody else, and at the end of the day, you are left with no say whatsoever."
IMPORTANT DISCLAIMER:While every attempt has been made to ensure this transcript or summary is accurate, Carte Blanche or its agents cannot be held liable for any claims arising out of inaccuracies caused by human error or electronic fault. This transcript was typed from a transcription recording unit and not from an original script, so due to the possibility of mishearing and the difficulty, in some cases, of identifying individual speakers, errors cannot be ruled out.