REPORT ON A COMPLAINT BY MR L KHUMALO: FAILURE BY MAGISTRATES OFFICE, GERMISTON, TO ISSUE A WARRANT OF LIBERATION

Transcription

1 REPORT OF THE PUBLIC PROTECTOR IN TERMS OF SECTION 182(1)(b) OF THE CONSTITUTION, 1996 AND SECTION 8(1) OF THE PUBLIC PROTECTOR ACT, 1994 REPORT NO 13 OF 2006/07 REPORT ON A COMPLAINT BY MR L KHUMALO: FAILURE BY MAGISTRATES OFFICE, GERMISTON, TO ISSUE A WARRANT OF LIBERATION

2 INDEX 1. Executive Summary p3 2. Introduction. p4 3. Complaint p4 4. The Powers and Functions of the Public Protector p5 5. Initial Action..p6 6. Duties of the Registrar and the Clerk of the Court p7 7. Request for copy of warrant of liberation p8 8. Further investigation...p9 9. Comments: Legal and constitutional duties of the State..p Findings....p Recommendations..p16 2

3 1. EXECUTIVE SUMMARY Mr Khumalo approached the office of the Public Protector in February 2006 with a complaint that he never received any response from the Magistrates Court, Germiston regarding the progress or outcome of an appeal that he lodged in At the time Mr Khumalo was still incarcerated at the Kutama Sinthumule Correctional Centre. When the matter was investigated it was established that the complainant s appeal succeeded on 14 September 2004 in the Transvaal Provincial Division of the High Court of SA. The convictions were set aside and he should have been released. The Kutama Sinthumule Correctional Centre advised that according to their records the warrant of liberation was never received from the Clerk of the Court, Germiston, and they were not telephonically notified of the fact that Mr Khumalo had to be released. After the intervention of the office of the Public Protector the complainant was released on 17 March The Clerk of the Court, Germiston, could not provide any document to confirm that the warrant of liberation had been duly issued or processed to comply with the court order, and to effect the immediate release of Mr Khumalo in September The Public Protector found that the inference is unavoidable that the Clerk of the Court, Germiston, failed to take the necessary steps in terms of the relevant Departmental Instructions to issue a warrant of liberation for the release of Mr L Khumalo in September 2004, and to notify the Head of 3

4 Kutama Sinthumule Correctional Centre that Mr Khumalo s conviction had been set aside on appeal and that he had to be released immediately. Mr Khumalo was severely prejudiced by the above maladministration to the extent that his right to freedom has been violated by the actions of the State. 2. INTRODUCTION 2.1 This report is submitted to Parliament, the Minister and the Director- General of the Department of Justice and Constitutional Development (the Department), the Chief Justice of South Africa, the President of the Supreme Court of Appeal, as well as the Court Manager: Germiston Magistrates Court, in terms of Section 182 (1) (b) of the Constitution of the Republic of South Africa, 1996; and Section 8(1) of the Public Protector Act, It deals with an investigation of the alleged failure by the Germiston Magistrates Court to inform the complainant, Mr L Khumalo, of the outcome of his appeal against his conviction, and the suspected failure to issue a warrant of liberation after his conviction had been set aside on appeal on 14 September COMPLAINT 3.1 Mr Khumalo approached the office of the Public Protector in February He alleged that he had lodged an appeal against his conviction and sentence at the Germiston Regional Court during 2003 (case number SH 457/2000). He indicated that he never received any response from the Court regarding the progress or outcome of the appeal. 4

5 3.2 At the time Mr Khumalo was still incarcerated at the Kutama Sithumule Correctional Centre. 4. THE POWERS AND FUNCTIONS OF THE PUBLIC PROTECTOR 4.1. The Public Protector was established in terms of Section 181 (1) of the Constitution, as one of the institutions mandated to strengthen constitutional democracy within the context of the new constitutional dispensation in the Republic of South Africa Section 182 of the Constitution empowers the Public Protector, as regulated by national legislation, to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in an impropriety or prejudice. The national legislation contemplated in Section 182 was promulgated, inter alia, by way of the Public Protector Act. In addition to the investigative powers of the Public Protector, s/he has the powers to report on the conduct in question and take appropriate remedial action For purposes of the powers, functions and mandate of the Public Protector, improper conduct would include allegations of maladministration, abuse or unjustifiable exercise of power, improper or unlawful enrichment when performing public functions, improper or dishonest acts in respect to public funds, improper prejudice and undue delay Appropriate remedial action includes resolving disputes or rectifying acts or omissions by mediation, conciliation, negotiation and making appropriate recommendations to the responsible state 5

6 departments/institutions or functionary. The Public Protector does not have the powers of a court of law to award compensation or damages. 5. INITIAL ACTION 5.1 Upon receipt of the complaint the assigned Investigator in the office of the Public Protector contacted the Clerk of the Court, Germiston, to enquire about the status of the appeal. 5.2 The Clerk advised that the matter had been finalized in 2004 and furnished the office with a copy of the court order. In terms of this order the complainant s appeal succeeded on 14 September 2004 in the Transvaal Provincial Division of the High Court of SA and the convictions were set aside. The order was apparently forwarded toa) The Magistrate, Germiston; b) The Commanding Officer, South African Criminal Bureau; c) The Station Commander, S A police Service, Primrose; d) The Commissioner, Correctional Services, Pretoria; and e) The Registrar of the Appellate Division, Bloemfontein. 5.3 Since the complainant was still incarcerated after his conviction (and therefore sentence) was set aside 18 months earlier, the investigator immediately pursued the matter with the Prison Authorities at the Kutama Sithumule Correctional Centre to establish if the order had been received and whether the complainant was perhaps serving a sentence of imprisonment in respect of another case. 6

7 5.4 The Prison Authorities advised that according to their records the order was never received. Since Mr Khumalo was not imprisoned for any other case, he should have been released on receipt of the order in question. 5.5 The investigator immediately faxed a copy of the order to the Prison Authorities and requested them to verify the position with the Clerk of Court, Germiston. 5.6 Subsequently the Prison Authorities confirmed the release of Mr Khumalo on 17 March DUTIES OF THE REGISTRAR AND THE CLERK OF THE COURT 6.1 When a conviction is set aside on appeal or review, or when a sentence is amended to such an extent that the prisoner must be released immediately, the Registrar must, in terms of paragraph 132 of the Codified Instructions: Registrars (Department of Justice), notify the Magistrates office or trial court telephonically and telegraphically of such setting aside stating the case number, the accused s name and appeal serial number. 6.2 Upon receipt of such notification the Clerk of the Court is in terms of paragraph 264 of the Codified Instructions: Clerks of the Court (Department of Justice) required to take the following steps: a) Contact the office of the Registrar (or Director of Prosecutions) to verify the authenticity of the notification; 7

8 b) Immediately complete a warrant of liberation (J1) in duplicate; c) Have it signed and delivered by hand to the prison where the person concerned is detained; d) Request the official in charge of the prison to sign one copy thereof and to endorse it with the date and time on which it was received; e) Attach the receipted copy to the relevant record; f) If the prisoner is detained at a place other than where he was tried, inform the head of the prison where the prisoner is detained, telephonically that a telegraphic liberation warrant is being sent to him/her and request him/her to acknowledge receipt thereof by telegraph; g) Thereafter immediately send the telegraphic release warrant to the head of the prison concerned; and h) File the acknowledgement of receipt with the record. 6.3 The above-mentioned instructions warn that failure to comply in this regard could result in a claim against the State for which the clerk of the court may personally be held liable. 7 REQUEST FOR COPY OF WARRANT OF LIBERATION 7.1 When the matter was pursued with the Head of the Prison where Mr Khumalo was detained the office was advised that there is no record that the warrant of liberation was ever received from the Clerk of the Court, Germiston, or that they were telephonically notified of the fact that Mr Khumalo had to be released. 8

9 7.2 Although it could not be confirmed that the Registrar phoned the Clerk of the Court to notify them of the fact that Mr Khumalo s conviction was set aside and that he had to be released, it was confirmed that the Clerk did receive a copy of the relevant order of the High Court indicating the same. 7.3 The Clerk of the Court was subsequently requested to advise this office whether the steps prescribed by paragraph 264 of the Codified Instructions: Clerks of the Court (Department of Justice) had been taken on receipt of the notification from the Registrar, and if so, to provide the office with copies of the receipted copy of the warrant of liberation, or a copy of the acknowledgement by the Head of the Prison. 7.4 The clerk of the court, Germiston, failed to provide any document to confirm that the warrant of liberation was duly issued or processed by him/her to comply with the court order, and to effect the immediate release of Mr Khumalo in September FURTHER INVESTIGATION 8.1 The investigator of the Public Protector subsequently visited the Magistrates Office, Germiston and inspected Mr Khumalo s appeal file as well as the appeal register in which the Clerk of the Court records all actions in respect of an appeal from the lower courts. The investigator also consulted with the current Clerk of the Court (Ms Els), the Control Officer (Mr Ford) as well as with the Office Manager (Ms Louw). 8.2 According to the entries in the appeal register, the court order (dated 14 September 2004) was received by the Clerk of the Court on 28 October There is a further entry that the gaoler (Head of the prison) was 9

10 notified on 8 November 2004, but the column in which the outcome of the appeal was supposed to have been recorded ( conviction and sentence confirmed, altered or set aside ) is empty. 8.3 The officials confirmed that if the J1 warrant of liberation is issued, it is faxed to the Head of the Prison where the appellant is kept, a copy is retained in the appeal file, and the Clerk should verify that the warrant was received and that the order of the court has been complied with. The issue of the J1 is furthermore recorded in a separate J1-register, which is kept at a secure place in the office by a senior member of the office. 8.4 The appeal file was scrutinized but no copy of the J1, dating back to the time when the court order was originally received, could be traced. There is also no record of the fact that the Clerk of the Court contacted or consulted with the Head of the Prison where Mr Khumalo was detained to affect his release. Unfortunately the J1 Register for 2004 is missing and could not be inspected. 8.5 All the officials consulted agreed that there is no record on file that a warrant of liberation to affect the release of Mr Khumalo in accordance with the order of the High Court of South Africa, was duly issued by the Clerk of the Court. The only J1 in the file is the one issued by the Clerk of the Court on 17 March 2006, subsequent to the intervention of the office of the Public Protector. 8.6 The specific clerk of the Court who handled the administration of appeals at the time, as well as the then Office Manager, have in the meanwhile been transferred and were not available for consultation. 10

11 9 COMMENTS: LEGAL AND CONSTITUTIONAL DUTIES OF THE STATE 9.1 Chapter 2 of the Constitution 1996 (Bill of Rights) provides that Everyone has the right to freedom and security of the person, which includes the right- (a) not to be deprived of freedom arbitrarily or without just cause; 9.2 In terms of Section 35(2) Everyone who is detained, including every sentenced prisoner, has the right- (d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; 9.3 Section 35(3)(d) of the Constitution, 1996 provides that every accused person has a right to a fair trial including the right to have the trial begin and conclude without unreasonable delay. In terms of Section 35 (3) of the Constitution, Every accused person has a right to a fair trial, which includes the right... (o) of appeal to, or review by, a higher court. 9.4 Legal writers have emphasized that the right of appeal is, of considerable importance in the achievement of a fair criminal justice system because the effect of a criminal conviction on the liberty and dignity of the individual makes it imperative that adequate procedural checks and balances limit wrong convictions and inappropriate sentences to the barest minimum. 1 1 S v Steyn 2001 (1) SACR 25 (CC) 11

12 9.5 In Munoz Hermona v Peru, 2 the United Nations Human Rights Committee (HRC) held that the concept of fair hearing necessarily entails that justice be rendered without undue delay and that the inability of the state party to explain the delay constituted an aggravation of the violation of the principle of fair hearing. 3 In criminal cases, any delay causes hardship to accused persons, particularly those in custody. 4 Delay is also a denial of justice because contrary to the notion of presumption of innocence an innocent person may end up serving punishment for an offence he never committed. This erodes confidence in justice and the presumption of innocence In the case of Modderklip Boerdery 6 the Constitutional Court, citing Fose v Minister of Safety and Security, 7 confirmed that appropriate relief must necessarily be effective: (w)ithout effective remedies for breach [of rights entrenched in the Constitution], the values underlying and the right entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated Communication No 203/86 paragraph 11.3 Muknto v Zambia 768/97 M Bassiouni Human Rights in the context of criminal justice: Identifying International procedural protections in national constitutions 1993 (3) Duke Journal of Contemporary & International law 235, 285 Obiokoye Onyinye Iruoma Eradicating delay in the administration of justice in African Courts: A comparative analysis of South African and Nigerian courts (2005) LLM Theses President of the Republic of South Africa, Minister of Agriculture and Land Affairs v Modderklip Boerdery (Pty) Ltd (CCT 20/04) (3) SA 786 (CC) 12

13 9.7 The legal system is mandated to ensure the equality of all before the law and equal protection and benefit of the law. 8 The Bill of Rights is described in the Constitution as the cornerstone of democracy in South Africa. 9 The Bill of Rights not only enshrines the rights of all people in South Africa, it also affirms the democratic values of human dignity, equality and freedom The Constitution vests the judicial authority of the Republic in the courts. Their function accordingly is principally to serve as the arbiter of what is and what is not legal or constitutional. 11 Chief Justice Pius Langa emphasized that the Constitution envisages a competent and well equipped judiciary to undertake the task of adjudication. 9.9 In the Richtersveld case 12 the Court emphasized however, that the responsibility to strengthen and support and protect constitutional democracy does not lie with the courts alone. The Constitutional Court also emphasized during the certification of the Constitution that no constitutional scheme can reflect a complete separation of powers: the S9(1) of the Constitution O Regan J in S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at 329 Chief Justice Pius Langa The role of the courts in the protection of human rights Human Rights Lecture Series: HSRC 1 February 2006 Chief Justice Pius Langa Ibid Richtersveld Community v Alexkor Ltd and another Case No LCC151/98, Judgment date: 29 April

14 scheme is always one of partial separation. In Justice Frankfurter s words, (t)he areas are partly interacting, not wholly disjointed In Modderklip Boerdery (Edms) BPK v President van die RSA 14 the High Court reiterated that Section 164(4) of the Constitution places a positive duty on organs of State to ensure that the supremacy of the law is maintained: (4) Organs of State, through legislative or other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. The High Court continued to explain, citing Mjeni v Minister of Health and Welfare, Eastern Cape 15, that this obligation does not only deal with the adjudication of matters and the resolution of disputes: The process of adjudication and resolution of disputes in courts of law is not an end in itself but only a means thereto; the end being the enforcement of the rights or obligations defined in the court order. The obligation in Section 165(4) of the Constitution was described by the Court as the most important and fundamental obligation imposed on the State by the Constitution Chief Justice Mahomed 16 described the interaction between the tiers of Government and their interdependence as follows: In re: Certification of the Constitution of the RSA 1996 (4) SA 744(CC), (6) BCLR 638 (T) 2000 (4) SA 446 (Tk) 453 C-D I Mahomed The Role of the Judiciary in a Constitutional State 1998 SALJ 111,

15 Unlike Parliament or the executive, the court does not have the power of the purse or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier. They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refuses to command those resources to enforce the orders of the courts. The courts would be reduced to paper tigers with a ferocious capacity to roar and to snarl but with no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship In conclusion this office is in agreement with the sentiments expressed by Roshila Nair 17 that : a society can be judged by the way it treats its most vulnerable citizens. It is a sad truth that even though we have made the transition to democratic governance in South Africa, there are still many vulnerable groups of people in our society who are not yet reaping the benefits of our Bill of Rights. The poor, women and children and prisoners count prominently among these. While it may be easier to acknowledge the vulnerability of the former groups (women and children are common targets of sexual violence, for example), that of prisoners is perhaps more difficult because of the criminal guilt associated with them. Yet, those who are held under restraint and locked away from daily public scrutiny are vulnerable through their very isolation and dependence on those who imprison them. (our emphasis). 17 Roshila Nair: Introduction: When Punishment Exceeds Accountability : CCR Vol 2 Prison Transformation in South Africa 15

16 10 FINDINGS 10.1 In the circumstances it is found that - a) The inference is unavoidable that the Clerk of the Court, Germiston, failed to take the necessary steps in terms of the relevant Departmental Instructions to issue a warrant of liberation for the release of Mr L Khumalo in September 2004, and to notify the Head of Kutama Sinthumule Correctional Centre that Mr Khumalo s conviction had been set aside on appeal and that he had to be released immediately; b) The State failed to comply with the obligation imposed by section 165(4) of the Constitution to provide administrative assistance to ensure the effectiveness of the Judiciary; c) The failure of the State to comply with the above-mentioned duties and obligations is improper and amounts to maladministration; and d) Mr Khumalo was severely prejudiced by the above maladministration to the extent that his right to freedom has been violated by the actions of the State. 11. RECOMMENDATIONS 11.1 The Department of Justice and Constitutional Development should take the necessary steps to: 16

17 Establish the reasons why the staff members responsible at the time, did not issue a warrant of liberation for Mr Khumalo; and Consider whether any additional measures or steps are required to prevent a recurrence The continued incarceration of the complainant has undoubtedly given rise to the possibility of him instituting a civil claim against the State. In the circumstances it is recommended that the Department consider ex gratia compensation out of compassion for the miscarriage of justice and the gross injustice suffered by the complainant in this matter. ADV M L MUSHWANA PUBLIC PROTECTOR OF THE REPUBLIC OF SOUTH AFRICA DATE: Assisted by: Adv P Brandfort and N vd Merwe 17