24 August 2009 — Hundreds of prisoners, convicted of serious crimes including murder, could be freed due to bureaucratic bungling.
At least 400 serious offenders could walk out of jail because the transcripts of their trials have apparently been lost by the Department of Justice or are “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. They are all prisoners trying to appeal their convictions and/or sentences before the Supreme Court of Appeal (SCA), or petitioning the SCA for leave to appeal, but neither of these can be done without transcripts.
Lawyers are struggling to draft the necessary petitions because, according to a leaked internal memo of Legal Aid SA (Lasa), previously the Legal Aid Board, “the Department of Justice and its officially-appointed transcribers have been unable to provide” certain required records to Lasa attorneys.
The memo continues: “It was recommended to Lasa management some time ago that action be instituted against the Department of Justice to force them to provide us with the records we require, alternatively to have the sentences of our clients affected by this problem set aside on the basis that clients are being denied their rights to appeal due to the actions or omissions of the department.” The justice department is aware of the situation and its representatives are, with those of Lasa, trying to find “a solution”.
The 400 prisoners referred to are in the Gauteng area alone and the number applies only to prisoners whose cases are being handled by Lasa. In other words, there might be thousands, not just hundreds, of missing transcripts.
According to Brian Nair, the national operations executive of Lasa, difficulties related to obtaining records have been going on for two years. Another senior official at Lasa, who did not want to be identified, said: “We’re going softly-softly on this, we’re trying to be as understanding as possible about the department’s problems, even though we represent the prisoners, because we know that it would not exactly be a boon to society if hundreds of criminals were released on a technicality. ”
Still, something needs to be done by the department quickly, or 400 criminals could be released – not for the correct reasons. We are all between a rock and a hard place,” he said.
Of the 440 “problematic” petitions that Lasa attorneys are working on in Gauteng, in 200 matters there are no transcripts available and, in the other 240 matters, the attorneys have been told that they had requested information that was simply “not available”.
Nair confirmed that in many cases, Lasa had requested “as long ago as 18 months, the transcript of proceedings from the transcriber, but have not yet received a particular transcript”. Lasa’s Johannesburg Justice Centre, he said, “had requested transcripts in approximately 200 matters over the past 24 months, none of which have been received”.
Nair said that Lasa had not yet initiated any court application against the Department of Justice.
The nub of the matter appears to be that the company that won the most recent tender for transcription services, LOM Business Solutions, has been unable to access, technically as well as physically, cases captured by the previous contractor.
But Obakeng Masenamela, the managing director of LOM, denied that his company was culpable. He conceded that his company could not supply certain transcripts, but said the cause was twofold. “First, the Department of Justice has been unable to give us the necessary audio tapes – so obviously we cannot transcribe them,” said Masenamela. “Second,” he continued, “the previous contractor has failed to hand over certain material for which it was responsible and/or in some cases our machines and theirs are not compatible.”
The prisoners trying to petition the SCA, the ones dealing with Lasa, were the people on the bottom rung of the whole system, said Golden Miles Bhudu, the chairman of South African Prisoners for Human Rights. “They do not have the luxury of appointing private lawyers and they depend entirely on legal aid attorneys, who themselves have such a big backlog. ”So they are not a priority – and then, when their transcripts have been lost, well, they sit around for years.”
Louis Hanekom, the acting director of court operations for the Department of Justice, said the department could only respond to “allegations” if it was given full particulars about each of the missing transcripts.
*Yaso and Gordin are members of the Justice Project of Wits Journalism. The Justice Project investigates the plight of those unfairly/unjustly locked up in South Africa’s prisons.