Kenneth Hansley was one of the many awaiting-trial prisoners who have lost faith in South Africa’s over-crowded jails as they wait for their day in court. But an amendment to the Criminal Procedures Act presents new hope for these detainees.
Hansley had gone through hell in jail, trying to come to terms with killing his brother and trying to clear his name.
Hansley and his twin brother Davide Mashiyane, from Empangeni, KwaZulu-Natal, had the close relationship shared by most twins. But in 2001 Hansley accidently shot his twin in the head while the two were playing with a gun.
Hansley not only lost his best friend, but had to stand trial for the murder of his twin. ”My conduct was negligent, but I did not intentionally cause the death of my twin brother,” he said.
He patiently waited to appear in court, but the overworked courts postponed his hearing month after month. Hansley was held in custody from October 2001 and he soon realised that the clogged-up court system would rob him of his right to a speedy trial.
Desan Iyer, Hansley’s Legal Aid lawyer, is part of a new project that is introducing plea-bargaining into South Africa’s legal system and felt this might provide a better way to ensure justice for his client.
For years the legal profession has advocated plea bargains as a means of unclogging South Africa’s notoriously over-stretched courts.
However, plea-bargaining legislation was only introduced with the Criminal Procedures Second Amendment Act that was passed in 2001, and only came into operation last year. It has never been used in a similar case by a Legal Aid lawyer.
The first plea bargain was struck last August in a high court trial involving a string of expensive private lawyers in a complicated case of fraud involving millions of rands.
Legal Aid had recently launched a programme to familiarise justice centre workers with plea bargaining. Iyers attended one of these workshop in his area. ”I benefited tremendously from the programme,” he said. ”Because I benefited, my clients would also reap the awards of this new system.”
Iyer felt that Hansley’s case was an ideal test for the new procedure. It was obvious from the circumstances that the shooting was a freak accident, though Hansley and his brother had been irresponsible in playing with a firearm, Ivers said.
The prosecutor agreed that Hansley was negligent, but that his actions were not deliberate.
Within 30 minutes Iyer settled the case and an appropriate sentence was delivered. The prosecutor agreed with Iyer that a just sentence, as envisaged by the Act, would be a wholly suspended sentence, the lawyer said.
”In reaching the agreement with the prosecutor we took into account the facts of the case, the circumstances leading to the death of the deceased, the interests of the community and the victim’s family, and the personal circumstances of the accused,” he said.
Magistrate NC Singh agreed with the plea and sentence agreement. In late February she convicted Hansley on a charge of culpable homicide and sentenced him to five years’ imprisonment, suspended for five years on condition that he is not convicted of a similar crime.
Hansley walked out of the court in tears, surrounded by his family and his ecstatic lawyer. He is now free to continue his life, which has been on hold since 2001.
”I was so relieved when the magistrate accepted the plea bargain. I really felt that we had accomplished something and had scored a victory for justice,” Iyer said.
Legal Aid spokesperson Mpho Phasha said Hansley’s case gives hope to thousands of other prisoners who are waiting for justice to be served. ”We are positive that this is a step in the right direction,” he said. ”We are proud of Iyer and pleased for Hansley that he finally received his just desserts.”