The state attorney’s office came under fire in the Johannesburg High Court on Tuesday for its handling of an application by attempted murder accused Gary Beuthin for a restraining order against prison authorities for alleged intimidation and victimisation.
”It seems to be prima facie that it might well amount to a violation of his constitutional rights,” said Johannesburg High Court Judge Phillip Boruchowitz after hearing that the state had not responded to Beuthin’s application.
According to his affidavit, he claims that his parole conditions were revoked without a hearing which means he cannot be released on bail even if it is granted; he was not being given medication and the special high protein vegetarian diet he needs; he was not allowed access to a gym for his health and he was told on several occasions to pack his bags for a prison transfer which fell through after a lengthy wait.
He complained that he had not received an answer from prison authorities on his complaints, which he had been trying to resolve since December 2007.
He cited the Department of Correctional Services and the director and deputy director of Johannesburg Medium B prison, Tlabo Thokolo and Edward Dlamini in his restraint application.
”If the state does nothing, your application might be granted,” said an annoyed Boruchowitz after hearing that the state attorney who had been handling Beuthin’s application could not be contacted and that the state attorney in the court on Tuesday had only been briefed on Friday.
Earlier, two other prisoners were told to wait as their opposing counsel was not present.
Beuthin, who is representing himself, was released on parole last year for a 25-year sentence for the assault and kidnap of former girlfriend Jill Reeves. He was arrested again on November 20 2007 and on November 30 his parole was revoked, according to his affidavit. He currently faces charges of attempted murder and kidnap of former Hells Angels president Eduard Jacobs with his co-accused Melanie van Niekerk and Warren Schertel.
In his affidavit he claims that his treatment in prison is placing him under severe stress, is unconstitutional and is below the minimum standards set by the Bill of Rights and against the rules of the Department of Correctional Services.
Standing in the dock in his orange prison clothes and shackles, with his fiancee Van Niekerk in the public gallery, Beuthin said: ”I feel that I am being victimised to a certain degree.”
He told the court that he filed the affidavit on March 28, but the state did not file a response within the allotted 15 working days.
Boruchowitz demanded an explanation for Beuthin’s situation from state attorney Daniel Mpanza but Mpanza said he had only been briefed on the matter on Friday and so did not know what the problem was.
”That is not an answer, the state is as much bound by the rules as anyone else,” said Boruchowitz, asking that the state attorney who had been handling Beuthin’s case, a Ms Nkoana, be fetched and brought to the court. But Mpanza said her cellphone was switched off and she was not in her office.
”That is not an acceptable answer,” said Boruchowitz.
Mpanza said the state intended opposing the matter, but Boruchowitz shot back: ”If the state hasn’t filed intention to oppose, you can’t say they are opposing.”
Beuthin claimed the 30 days to place him before a parole board to answer allegations of alleged violation of parole conditions had lapsed in December and he had been incarcerated for five months.
His application for a restraining order included that he not be transferred from the Johannesburg prison management area until the finalisation of his criminal case, that he be given his medicine and a special high protein vegetarian diet for osteomyelitis. Osteomyelitis is an infection of the bone or bone marrow.
He said he was troubled by conditions in the prison, which included having to eat next to a toilet and share showers. He said he was upset by the way people spoke to each other in prison and that he was not allowed to mix with the prison population.
”I humbly submit that proper living conditions in prison are important for my sense of worth and dignity,” he wrote.
Boruchowitz ordered that Beuthin be granted his medical treatment and his special diet and that the state file an affidavit of explanation as to why the answering affidavit was not filed.
The matter will return to court on May 6.
Beuthin will go on trial in the Johannesburg High Court from October 20 to November 28 with Van Niekerk and Warren Schertel, who have been granted bail of R10 000 each. – Sapa