Injustice for Some

In a previous article, we introduced the subject of a man wronged by the Police system. This man is currently in prison. I would like that clearly known from the outset. He has been sitting in prison for over 3 years because of failure layered upon failure. He has been failed by both the SAPS and the Legal Aid lawyers who were meant to protect him.

But let’s tell it like it is, for a minute. From the beginning.

Bongile Mbangane was arrested because he was implicated in a murder. The evidence that implicated him was a scrap of paper with his name and phone number, as well as recent telephonic records between he and the deceased. The nature of their business motivated the police to call him in and ask him questions. They even tried to impound and search his car. This he agreed to, but he said that he would like to be present when the car is searched. This is, of course, well within his legal rights.  After much back and forth, the police impounded his car and (are assumed to have) conducted a search of the vehicle without the owner, Bongile, present.

So it is a very worrying thing when bloody evidence is found in his car, pinning DNA to the allegations already facing him. Of course, Bongile denied the “evidence” brought forth by the police. Firstly, he was denied his right to be present during the searching of his property.  This was the first in many infractions.

His case file has so many holes in it, it is a wonder how they got to sentence him at all. For he is in prison, Dear Reader. He was denied an appeal 3 years ago. How so, when there are no transcripts of his testimony. When the docket and statements therein are inaccurate beyond belief.

It is a sad day indeed, when a man  becomes the victim of the system that he trusted to protect him. The straw that broke the camel’s back, forcing us to write this article, was the sheer numbers of people who share his story. He is one of many people who used the Legal Aid board and is now rotting in a prison. There are so many links to the story.

 

The public are not litigious enough. The South African Justice System, like many others, is expensive and long-winded. The liberty of affording a decent lawyer is not one afforded to many. D Holness, quoting Wachtler, once asked

“But what happened to all the justice reforms promised to us ... to provide equality before the law, such as in civil cases where cost rather than justice often remains the deciding factor”

Holness said this in 2013, the same year of Bongile Mbangane’s appeal. Appealing what? His docket is holey. Adding more fuel to the fire that pushed this-here write-up forward, is the fact that his Legal Aid  representative has been doing absolutely nothing to help me get this story out there.

Which makes sense, in some twisted way. She has a comfortable office, and a steady paycheck. She has overwhelming job security, as there are so many criminals in the Eastern Cape. Or should we say, there are so many crimes, in Eastern Cape? Because it seems to us, that after speaking to another prisoner and a lawyer from CT, this habit of inept investigation ending in life sentences for Black folks, is a thing. Bongile said he’s only seen under 10 White people in the whole prison. These Blacks cannot afford high profile lawyers. So they put their trust in Nolitha Jali and her peers. The people of the Eastern Cape have trusted the Legal Aid that is assertively given to them, for what other options do they have? But these lawyers have been consistently failing the people. There are so many people in Sterkspruit  and the surrounding prisons, locked in there unjustly.

Their dockets are shoddily put together and the South African Justice System truly does not deserve its name.  Legal Aid needs a fire burning under their ankles for the sheer number of terribly investigated and handled cases that they see.

This is an unfolding and developing story on the Chaotic Front, Dear Reader, so please bear with us over the weeks and months as we get to the bottom of this  long-running injustice.  

“The provisions of the South African Constitution dealing with legal aid in criminal cases has had a dramatic impact on the ability of the Legal Aid Board to deliver legal aid in non-criminal cases. The vast majority of the Legal Aid Board’s budget is earmarked for criminal legal aid.  For instance, of the 236 282 new matters dealt with by the Board’s justice centres during the period 1 April 2003 to 31 March 2004, 209 002 (88%) were criminal cases and only 27 280 (12%) civil matters.” David McQuoid Mason on Legal Aid Board.

So clearly we see that that is where the money is. The criminal cases, won or lost, seem to be the focus of the Legal Aid board of South Africa.

Why then has it taken 3 years to file something that should take 30 days? Why is the attention finally turning to the missing statements in the Bongani Mbangane case after we call the offices in Umthatha? Apparently this Writer was threatening.

“The sections in the South African Constitution referring to the provision of legal aid services to arrested, detained and accused persons “if substantial injustice would otherwise result” provide that such persons have the right to “to have a legal practitioner assigned to the accused by the State, and at State expense” (ss 35(2) and (3)). The Constitutional Court has interpreted this to mean that an accused is not entitled to be represented by a legal representative of his or her choice at State expense (S v Vermaas, S v Du Plessis 1995 (3) SA 292 (CC). It has been suggested, however, that where possible there is no reason why the State should not attempt to accommodate the choice of the detainee”

That’s a quote from Etienne du Toit ‘ Criminal Procedure’ in Mathew Chaskalson, Janet Kentridge, Jonathan Klaaren, Gilbert Marcus, Derek Spitz and Stewart Woolman (eds) Constitutional Law of South Africa (1996) 27-5).

Clearly our Justice System fails the people through actions judged from misinterpretation.  The courts of our land have been (dis)serving the people that walk through its door seeking justice.

The courts system in Umthatha is in a terrible state. Both the barristers and solicitors are in terrible shape. The State is meant to shoulder the burden of Legal Aid representation.  It is the same State that pays for the police investigation. And finally, it is the same state that profits from the Department of Correctional Services. This money trail leads down to the taxpayer, of course.  Side note: isn’t it funny how the wealthiest businesses in South Africa dodge taxes while someone who earns ZAR50,000 a year doesn’t?

There are too many conflicts of interest in one organisation. In our case, the State. The State has its fingers in too many pies.  Surely the system will not run properly with all these pie-stained fingers. The Legal Aid board has been consistently failing the people it represents. And with our prisons sitting 132% over their holding capacity, it’s clear. There are too many people in prison that should not be there.

Bongile’s file is inadmissible. He should not be sitting in a cell any day of the week. The Umthatha High Court has blocked him from accessing the Constitutional Court repeatedly. His Legal Aid representative has been sitting on her ass with a process she could have pressured into action within a month.

With the large number of the population being black, it becomes even more worrisome if we think 20 years ahead. What kind of South Africa will we have, when so many of our fathers, cousins, brothers and uncles are in prison? Who is our immediate male figure? What are we going to be left with if we let the Court’s interpretation of the constitution, coupled with inept legal representation, take away our Black men? For life! The futurist in me quakes, so the immediatism kicks in now. We have to expose the bad offices with bad lawyers that are meant to help our innocent men get free. Now.

The prison system takes Power(electricity), Civil Engineering(Cement, Steel, etc), IT(Security, computer systems) and Fast Moving Consumer Goods (Food) to run. It is a heavy burden to bear but extremely profitable to certain groups.  There is an interplay of interests in the simple case of Bongile Mbangane. He is a victim of ineptitude and injustice. Worst of all, he is just a statistic. There are too many like him and who cares? We are not the ones in prison. But you tell me what we become when we think like that? Whom do we serve?

Addendum:

We are actively pursuing the case of Bongile David Mbangane, case file 71 – 11.  More articles pending.

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