20 November 2009 – On Tuesday this week prisoners’ rights activist Golden Miles Bhudu arrived unnoticed at the South Gauteng High Court in downtown Johannesburg, clutching a sheaf of papers. Masibulele Yaso and Jeremy Gordin write for the Mail & Guardian.

Ignoring the Jackie Selebi trial going on in the same building, Bhudu turned left and attempted to set down an application to the high court on behalf of Michael Millie and 28 other prisoners.

Bhudu discovered that he would be allowed to put in 10 applications at a time so returned to the court on Wednesday and Thursday to complete the job.

The application is a class action against the minister of justice, the registrar of the South Gauteng High Court, the Gauteng director of public prosecutions (DPP) and the manager of the Johannesburg “justice centre” of Legal Aid South Africa (Lasa), formerly known as the Legal Aid Board.

The prisoners — who are serving long sentences for a range of serious crimes from murder to rape and hijacking — are asking the respondents to cough up their trial records, mainly transcripts of their hearings, so that they can apply for leave to appeal. If the state cannot provide the 29 applicants with their records, the convicts will take the next step and demand to be released.

Michael Millie, convicted in 2006 of murder, robbery and possession of unlicensed ammunition, told members of the Justice Project of the Wits Journalism school: “I have been trying since 2006 to get my transcripts from the department of justice so that I can be given a chance to prove my innocence at the Supreme Court of Appeal. But till today I am sitting here not knowing what I am going to do.”

Millie and the other prisoners decided to bring the action after reading an article written by members of the Justice Project in the Sunday Independent (August 16) in which it was first mooted that hundreds of prisoners, convicted of crimes including murder, could be freed because the transcripts of their trials had apparently been lost by the department of justice and constitutional development or were “inaccessible” — and a judge could set aside their convictions and sentences and let them go.

They would be freed because their constitutional right to appeal had been infringed. Appealing sentences and/or convictions or applying for leave to appeal cannot be done without trial transcripts. “We decided after reading that article to go ahead,” said Millie.

Attached to the bundle of documents that Bhudu handed in this week is a report from the Sunday Sun newspaper in the Cape dated March 13 2005 about Michael Claassen, found guilty of raping a 15-year-old girl, who was freed by Western Cape Judge President John Hlophe because his court records had been lost.

The prisoners — all of whom are at Johannesburg Medium B prison, aka Sun City — have a letter from Lasa saying it will launch a class action in the Constitutional Court against the justice department for failing to provide transcripts of the trials of hundreds of convicted prisoners.

But Millie, speaking on behalf of the applicants, is frustrated: Lasa may have taken up their cause, but not fast enough for the prisoners, some of whom have waited for up to seven years for their transcripts. Funded by the state, Millie said, Lasa is proceeding “as always, very, very slowly …”

The letter from Lasa noted that delays in trial transcripts from audio to paper records are a direct result of administrative problems that have “been building up in the registrar’s office for the past 10 years or more”.

Attempts during the past three months to interview Justice Minister Jeff Radebe about the matter have been unsuccessful.

The registrar of the South Gauteng High Court, Vivien Pather, told the Justice Project — two weeks ago, before the prisoners’ applications were filed — that he was not at liberty to talk about the issue on the record but that “everyone is doing his best to sort out the matter”.

The justice department’s director of court services in Gauteng, Joyce Mokoena, said: “LOM [Business Solutions, the official court transcribers] has not been able to transcribe records required in certain cases for appeals due to non-availability of audio tapes. However, back-up tapes have been discovered.”

But, Mokoena said, back-up tapes were “not in the readable format required by LOM”.

Expressing its own frustration at the snail’s pace of justice, LOM Business Solutions recently wrote to the registrar’s office at the South Gauteng High Court to ask them to speed things up, saying “we are running out of excuses for our customers regarding the non-delivery of their transcripts …”

Mokoena said funding has been made available to convert the tapes into a readable format. The bulk of the missing files had been found, she said, and the department was doing its best to speed up matters.

But the prisoners said the matter had already taken years — and they did not expect it to take less than “many more years”.

“Prisoners could indeed use the Criminal Procedure Act to ask the court to set aside their cases because of unreasonable delays in their cases,” a Johannesburg attorney said.

Jeremy Gordin and Masibulele Yaso are  members of the Wits Justice Project, which investigates miscarriages of justice.This article first appeared on November  20 2009 in the Mail & Guardian.