Jails are overcrowded
When Victor Nkomo arrived at Johannesburg Prison's notoriously overcrowded awaiting-trial detention centre, he had to sleep on a cold concrete floor for a few nights.
A step up would be sharing a narrow bunk bed with two other men in the communal cell that was built to accommodate 30 inmates. But in Medium A, 75 men were housed in the cell and they had to share one toilet among them. At night, the rattling coughs of inmates – likely because of the tuberculosis epidemic – and erupting quarrels kept him awake. This was in 2006.
Nkomo, who was arrested for complicity in a R3.6-million robbery in Montecasino in Johannesburg, where he had worked as a cashier, is still waiting for his trial to end. He has his own bed now, but he is still stuck in Medium A.
Given the pace of his court case, Nkomo might spend another six years in an overcrowded communal cell. He has been to Randburg Regional Court about 53 times and Wynberg Branch Court 23 times. Last week, Magistrate Vince Pienaar (he replaced Magistrate Johan Muller, who died in October 2008) announced the next court date – October 22, another three-month wait. And the whole case has to start from scratch again because there is a new judge.
"I really want this trial to finish," Nkomo managed to say as he was escorted to the underground courtroom cell. He is not the only one. In MediumA, Nkomo is just one of about 400 awaiting-trial detainees who have been inside for three years or more; some have been there for seven years.
Unreasonable delay
Nationally, there are about 2 700 awaiting-trial detainees who have been incarcerated for more than two years. This is despite constitutional requirements that stipulate that awaiting-trial detainees have a right to a trial that begins and ends without unreasonable delay. The Criminal Matters Amendment Act also provides for a branch within the department to deal specifically with remand detention matters. However, no time limit has been set for the implementation of these provisions.
The Act also states that the prison head has to notify the National Prosecuting Authority of delays lasting longer than two years. According to Koos Gerber, a spokesperson for the department of correctional services, the NPA takes part in monthly case flow management meetings, during which cases of long-term awaiting-trial detainees are discussed. Gerber confirmed that Nkomo's name is on this list.
The causes of judicial delays are manifold. Nkomo's predicament is partly owed to bad luck – the presiding magistrate died and the whole case had to be redone. Throughout his six-year trial, witnesses did not arrive and the availability of lawyers, magistrates and the prosecutor threw spokes in the wheels of a speedy trial – a common occurrence throughout the national court system.
A ministerial task team undertook an audit of the South African prison system in 2011. It revealed that because awaiting-trial detainees are "a group classified unofficially as dangerous, they have no contact visits and spend an average of 23 hours a day in the cell".
According to the report, awaiting-trial prisoners are perceived to be a high flight risk, even though risk assessments or classifications are not carried out. Staff shortages in the prisons, which have three times the allowed population, exacerbate problems of violence and lengthy lockups.
Non-contact inmates
In his 2010-2011 report, the former inspecting judge of correctional services, Deon van Zyl, said one-third of the 160 000 prisoners in South Africa were awaiting-trial detainees. They are considered "non-contact inmates", which means they cannot touch or hug their visiting loved ones. They have to make themselves heard and understood in overcrowded meeting rooms, where a glass partition and often broken speakerphones separate them from their visitors.
Nkomo's wife visited in the first few years of his incarceration, but two years ago she divorced him after she met another man in his absence. His 16-year-old son has also stopped visiting.
Nkomo worries about the future of his child; he desperately wants him to attend a better school. There is not much Nkomo can do to improve his chances on the job market as he waits to find out his fate, because there are no libraries, training facilities or other skills development provided in remand detention centres.
Although the law presumes awaiting-trial detainees' innocence, they are locked up in overcrowded cells and have minimum exercise periods in the fresh air and no chance to improve their skills. Medium A is 246% overcrowded, according to Van Zyl.
One obvious solution to the problem of court delays and the resulting overcrowding in remand detention centres is bail. Nkomo, for example, could have been awarded bail and have awaited trial at home, but his bail application was refused because one of his co-accused had escaped and disappeared.
Only 18% of all awaiting-trial inmates are awarded bail, the authors of the prison audit pointed out, and many accused are too poor to afford even the smallest sum.
Ad hoc
Nkomo's case is not unique. Eleven accused in a murder and armed robbery trial currently pending at the South Gauteng High Court were also refused bail. They have been remanded in Medium A for five years and have been transported to and from court for the past four years, often only to find out that a lawyer, prosecutor or stenographer did not turn up.
The accused allegedly robbed and murdered the owner of a Krugersdorp brick production company in October 2007. There have been more than 50 ad hoc postponements in their case over the years, including judges being allocated to other cases.
One of the detainees held the longest in Medium A was Uakeraije Maunda. Accused of complicity in a R3-billion airport heist that took place in 2006, he was locked up for six years. Maunda was charged with possession of R10000 of the stolen money. He was finally awarded bail of R3 000 on May 10. A few weeks ago, he heard he was a free man and received a suspended sentence of six years.
"I want this case finalised, I want to go home and take care of my family," Nkomo said in March. "Enough is enough."
But with the court only hearing two witnesses and the next court date three months away, it does not seem likely Nkomo will return to his home town in KwaZulu-Natal any time soon.
Ruth Hopkins is a journalist for the Wits Justice Project, which investigates miscarriages of justice