Eikenhof Three …
Bryan Rostron
Both Judge Piet van der Walt’s response to the Eikenhof Three bail application and the disarray of evidence in the scandal display uncanny similarities to the many notorious miscarriages of justice that came to light in Britain during the 1990s.
In cases such as the “Guildford Four” and “Birmingham Six”, where innocent people were imprisoned for Irish Republican Army bombings they did not commit, the more evidence built up to prove their innocence, the harder police and prosecutors fought not to admit their mistakes. Judges, repeatedly, refused to believe “confessions” had been coerced.
In one instance, Britain’s then most senior judge, Lord Denning, dismissed such an allegation, later proved true, with the observation that it was “unthinkable.” The consequence of heeding such claims, declared His Lordship, were “too horrible to contemplate”.
Here, Judge van der Walt said that his main objection to bail for the Eikenhof Three was that two of the three had signed confessions. The defence claims these were extracted under duress and that the men were framed in an attempt to discredit the African National Congress during sensitive pre-1994 negotiations.
There are several striking similarities between this case and the high-profile British miscarriages of justice: flagrant abuse of police procedures, the withholding of evidence and of vital witness statements, dismissing the confession of guilt by a more likely suspect, and, most suspicious, the use of evidence from other prisoners to bolster a flagging case.
Here, the court has recently been presented with anonymous statements from fellow prisoners who allege the ANC men hatched an elaborate conspiracy to claim innocence.
It is as if there is a manual of dubious procedure that legal authorities everywhere follow when they fear losing face by being proved wrong.
For a decade in Britain I worked on a weekly investigative column with crusading journalist Paul Foot, who led the way in exposing such corruptions in the supposedly impartial British justice system.
His book, Murder At The Farm, for example, was instrumental in helping overturn the murder convictions of the “Bridgewater Three”, wrongly imprisoned for 16 years on the basis of all the above shady practices.
There, as the state’s case began to crumble, a fellow prisoner was suddenly produced at the appeal hearing to claim one of the three had confessed to him during a prison shower.
This nark, soon released for his services, was described in his official prison record as a “pathological liar”. But the judge, in his summing up, elected to regard him as a “witness for truth”.
Then, when the defence QC had a warder in knots as to why two prisoners were alone together in the shower against prison regulations, I watched dumbfounded as the judge constantly intervened to give the warder time to think, and then when he was hopelessly flustered declared an unscheduled recess.
Another similarity is the lengths police will go to – once having obtained a conviction – of ignoring a seemingly genuine confession. In the case of the Eikenhof Three, an Azanian People’s Liberation Army (Apla) commander admitted his responsibility to the Truth and Reconciliation Commission. There is even evidence Apla used the same AK-47 in another attack, and that it was found on the Apla commander when he was arrested.
In Britain, in one bizarre case I covered, a prisoner called Nick Moore actually escaped from prison in order to prove his guilt. He was appalled that another man, against all the evidence, was serving a 10-year sentence. Even the bank video of the robbery looked like Moore (who was serving time in another prison for two identical bank robberies).
Moore used to ring me from his hide- outs on the run, to report progress in proving his guilt.
“I’ve been admitting the robbery for two-and-a-half years, but no one will listen,” he complained.
“There are statements from four people who know I did the robbery. My girlfriend has made a full statement to the police. She even rolled around on our bloody bed in the money!”
The police did not want to know, but as the publicity built up they had to release the innocent man. Moore promptly gave himself up and returned to prison to a hero’s welcome.
This may be an extreme example, but it shows the reluctance of police, prosecutors and judges everywhere to admit they can be human, that they too can err. How much more so in South Africa, where we are still coping with the legacy of apartheid?
The first step towards a greater sense of justice might be for judges, especially those who turned their noses up at the truth commission, to admit – even if only to themselves – that they were never independent, and have a lamentable history of giving expression less to truth than to their own prejudices.