2 September 2009 – Gardener wrongly accused of assault is lucky to be a free man, writes Jeremy Gordin.
If it had not been for a concerned employer and a committed attorney, Pedro Maboya, 35, would have been jailed for six months in Johannesburg’s notorious Diepkloof Prison for a crime he did not commit.
If he had survived that period in Sun City – he is a Mozambican – the mild-mannered and smiling gardener would have been deported to Mozambique, although he has a common law South African wife, Sophie, and a six-year-old daughter, Orlinda.
Maboya’s troubles began four years ago after he left his squatter camp shack to stay and work at a townhouse complex in Northwold, Johannesburg. A vacancy had existed for a gardener at the complex and Maboya had joined the group of gardeners already working there. But it was no secret that the group felt a foreigner had taken a job that a South African could have had.
One night the group held a “party” at which much beer was consumed. There was a small fight – during which Maboya claims he was attacked for xenophobic reasons and defended himself. But he then went to his room to sleep.
In the early hours of the next morning, however, one of the gardeners was found severely beaten, his face having been badly lacerated with an iron bar. Maboya was arrested but released after he explained that he had been sleeping when the crime was committed and that his wife could attest to this. The police also accepted that the injured gardener had been assaulted in the early hours of the morning in a notorious “park” outside the complex.
Maboya was, however, then re-arrested by a police officer related to the injured gardener – a policeman from outside the Northwold jurisdiction – and held in custody for one night.
Caroline Macdonald, who lives in the complex, intervened, hiring the services of attorney Ashley Slamat, and paid bail for Maboya, who had been charged with assault with intent to do grievous bodily harm.
“I won’t bore you with the various appearances – there were many – and the change of venue, from the Randburg court to the Wynberg courts and so on and so forth,” said Slamat. ”It was a mess-around that went on and on for weeks. What I can tell you is that the State’s case was weak, especially forensically – for one example, the victim had been very badly assaulted yet there was no blood on Maboya’s clothes.”
Slamat assumed that the worst that would happen to Maboya was a fine – and Macdonald’s family started “putting together” some money for him.
But the regional magistrate found Maboya guilty of assault GBH and, although he was a first offender, sentenced him to six months’ jail with no option of a fine. ” I was gob-smacked,” said Macdonald. “The magistrate said he had shown no remorse ‘for his crime’. No remorse! The man can hardly speak English – and spoke even less then. ”How was he supposed to show remorse for something he hadn’t even done – and in a foreign language?”
Slamat said: “I’m sorry to say that there is a tendency among magistrates, especially given the crime statistics in this country, to punish mercilessly, even first-time offenders. I’m afraid also that xenophobia is not confined to black people. ”
“Anyway, obviously we went on appeal – and, of course, if Caroline Macdonald had not gone with it, Pedro would have simply gone to jail and then been deported. He had neither resources nor any idea what to do. And, if not for Caroline and her family, I would not have been around, so …”
When Maboya’s case finally reached the Gauteng High Court, a two-judge bench dismissed his conviction in about 20 minutes. But Maboya did have to spend a weekend at Sun City – before Slamat could bring a bail application pending the appeal – and he said it was “terrifying”.
“It was not nice to be a prisoner there,” he said on Thursday night.
“The scary thing,” said Slamat, “is to think what would have happened if not for Caroline and her family. It’s implicit in our constitution and legal system that your legal representative, who is provided by the state if you are poor, is competent. But I am afraid that is not necessarily true in South Africa.
“Second, Pedro’s case is just one of a 100 cases like his that happen almost every day – and those people, who might often be wrongfully convicted, are simply sent to jail. That is not how the system is supposed to work.”
Jeremy Gordin is director of the Justice Project of Wits Journalism. The project investigates the plight of those unfairly/unjustly locked up in South Africa’s prisons. The project can be contacted by e-mailing email@example.com