Innocent man’s long walk to freedom

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Were it not for a prison warder, Thembekile Molaudzi would still be behind bars, writes Carolyn Raphaely. Johannesburg - “I’m innocent” is a refrain prison warders hear with such monotonous regularity, they mostly don’t listen. Zonderwater warder Levi Maphakane proved the exception to the rule. He not only listened to repeated protestations of innocence by inmate Thembekile Molaudzi – sentenced to life imprisonment on four counts including murder and robbery more than a decade ago – he contacted the Wits Justice Project (WJP) for help. Last week, the Constitutional Court reversed its own ruling regarding Molaudzi and ordered his immediate release. “No one has felt the agony and anguish I’ve been through, I’ve endured horrors almost beyond human imagination,” Molaudzi wrote in an impassioned letter to the Judicial Conduct Committee in 2012. “This (my conviction) is a shocking failure of our legal system and no person in this country is prepared to face that reality. Many nights I lay awake pondering what I can do to get assistance. I did not commit crime, crime is committed against me. Should I just fold my hands and rot in jail for a crime I did not commit?” His plea fell on deaf ears.

Were it not for Maphakane, Molaudzi, 37, would still be behind bars.

“We deliberated too much about his case and I conducted my own informal investigation,” Maphakane says. “I had access to his files, family and friends and his co-accused, who all told me he’d been wrongfully convicted. I’ve worked as a warder for 21 years. Thembekile is the only inmate whose story I’ve believed.”

With 11 lost years and an uncertain future ahead of him, Molaudzi strode out of Kgosi Mampuru prison last Friday carrying only the files of correspondence he accumulated while trying to prove his innocence, a few clothes and a lot of psychological baggage. The former Pretoria taxi driver’s struggle against seemingly insurmountable odds – including torture, solitary confinement and an eight-year battle to obtain his trial transcripts – had finally come to an end.

Molaudzi’s nightmare began in 2002 when Mothutlung policeman Dingaan Makuna was murdered during a botched hijacking. Eight men were arrested, including Molaudzi. During two identity parades, Makuna’s daughter, who witnessed her father’s murder, fingered four suspects. Molaudzi, an easily identifiable 2m-tall man with an imposing presence, wasn’t one of them.

The only evidence implicating Molaudzi was a recanted confession by a co-accused who a full bench of the North West High Court later described as a “reckless liar”.

During a bungled investigation characterised by shoddy detective work, no gun residue was found, there were no witnesses, no independent corroboration, no fingerprints and no tangible evidence linking him to the crime. All the accused pleaded not guilty but all were convicted and sentenced to life by Judge Monica Leeuw, now North West judge president.

After their conviction, the men were admitted to Pretoria C Max, where Molaudzi says they were made to strip naked and were tortured by warders for no reason. “We were made to squat up and down in front of females with our genitals showing. They shocked us with shock shields, just for fun. And they klapped me because they said I was a gangster.”

Molaudzi complained to then minister of correctional services Nosiviwe Mapisa-Nqakula, the parliamentary portfolio committee on correctional services and the head of prison. To no avail: “The same thing happened when we were sent to Kokstad later that year – we were tortured again by warders using shock shields and I was put in solitary confinement for four years.”

When Molaudzi set about trying to access his trial transcripts, required to appeal his case, the process proved almost as tortuous. First, the Mahikeng Legal Aid advocate who represented him during his trial claimed his office had burnt down and he’d lost all his records. A second Mahikeng Legal Aid advocate also failed to deliver. Though indigent inmates are legally entitled to their records at the State’s expense, after a three-year wait, Molaudzi’s family and the families of two of his co-accused raised R18 000 to pay private attorneys to find the missing transcripts.

Another two years passed before the records materialised. More than half of the 1 023-page trial record – including the most crucial evidence – was missing. Molaudzi began bombarding anyone he could think of – the minister of justice and constitutional development, the Public Protector, the SA Human Rights Commission, the Judicial Service Commission, the Judicial Conduct Committee and the portfolio committee on correctional services – asking for help. Again, to no avail.

With only Grade 10 education under his belt, Molaudzi spent his time studying the constitution and the Criminal Procedure Act and advising other inmates of their rights. By May 2012, Molaudzi was depressed, angry and frustrated. Not even the prison psychologist could help him: “I don’t think she believed I could have been wrongfully convicted.”

His battle to obtain his records and appeal his case was getting the better of him and he sent an impassioned letter to the Judicial Conduct Committee accusing Judge Leeuw of unethical misconduct.

“I am a patriotic South African citizen serving a life sentence for the crime I did not commit,” he wrote. “I am unable to appeal or review because essential parts of the records that include illegalities, irregularities and partiality has been deliberately omitted. With all the information before the court, it is impossible to understand how was the verdict reached. Serving life for the crime I did not commit is a terrible ordeal.”

Armed with only prayers, faith and the courage of his convictions, Molaudzi soldiered on, bolstered by an overwhelming need to prove his innocence and be reunited with his wife Paulina and son Mark: “When I went to prison, my son was three months old, now he’s 12. Sometimes I’d put my head on my hands and just cry.”

When he discovered his docket had disappeared from Mothutlung police station, he complained to Police Minister Nathi Mthethwa and the docket mysteriously re-materialised.

Seeing Molaudzi’s distress, Maphakane took matters into his own hands and contacted the WJP.

“The WJP regularly receives requests for help from inmates whose transcripts are missing,” says project co-ordinator Nooshin Erfani-Ghadimi. “It’s an issue with serious human rights implications.” After numerous unsuccessful attempts to access Molaudzi’s docket and records, the WJP asked Lawyers for Human Rights (LHR) to intervene.

With the help of LHR paralegal Louis van der Merwe, Molaudzi received his records in a week. Once again, substantial chunks of crucial evidence were missing. “The pagination of the court records was incorrect and the pleadings started at the wrong page,” Van der Merwe recalls.

At LHR’s behest, Judge Leeuw ordered that Molaudzi’s transcripts be retranscribed. Three weeks later, Molaudzi was in a position to appeal his case – a basic constitutional right which had taken eight long years.

At the end of 2012, Molaudzi, along with six of his co-accused, appeared in North West High Court, optimistic about the outcome of their appeal before a full Bench. After enduring what felt like an intolerable delay awaiting judgment, he fired off a frustrated letter to Chief Justice Mogoeng Mogoeng, chairman of the Judicial Service Commission: “The reserved judgment and my incarceration are exacerbating my ordeal and serve to punish me for the crime I did not commit.”

When their appeal was dismissed, Molaudzi set his sights on the Supreme Court, assisted by a Legal Aid lawyer: “After this application was dismissed without reason, Legal Aid said they couldn’t assist me any further.” Unbowed, Molaudzi roped in an ex-prosecutor inmate to help him lodge a Constitutional Court appeal.

According to the judgment, no constitutional issues were raised, it challenged the factual findings of the court, and the case had “no reasonable prospects of success”.

By now, Molaudzi believed he had exhausted his legal options. A victim of an egregious miscarriage of justice, he could only pray that a Constitutional Court application by two of his co-accused – Boswell Mhlongo and Alfred Nkosi – would open up further legal possibilities for him.

His prayers were answered when the court appointed advocate Donrich Jordaan to represent the men who had been assisted with their application by a “prison lawyer”, an inmate studying law. Molaudzi’s life might have taken a very different turn had it not been for Jordaan’s intervention.

Nigel Carpenter, a senior State advocate committed to the pursuit of justice, proved an added bonus. Carpenter and Jordaan told the court that the only evidence implicating Mhlongo and Nkosi was extra-curial, out-of-court statements by a co-accused, which both advocates said were inadmissible and unconstitutional.

When Carpenter told the court that an unnamed “Accused Number Five” had been similarly convicted and deserved the same legal fate, Molaudzi’s life changed course in a heartbeat. Though he was not party to his co-accused’s appeal, he was allowed to piggy-back on the coat-tails of their application, and Jordaan agreed to represent him free of charge. Two weeks later, the court overturned Mhlongo and Nkosi’s convictions and sentences and ordered their release. But for Molaudzi, this didn’t mean an immediate jail-free pass. When it emerged that he was “Accused Number Five”, Molaudzi found himself unwittingly mired in complicated legal arguments regarding the doctrine of res judicata – the principle that on the same set of facts, only one bite of the legal cherry is permitted.

Since Molaudzi’s application had been heard and dismissed by the Constitutional Court in 2013, the court needed to resolve whether it had the jurisdiction to hear the matter again. This took three months.

Last week’s landmark judgment which overturned Molaudzi’s sentence and conviction stated that his case “demonstrated exceptional circumstances that cry out for flexibility on the part of the court” and that the “interests of justice” required the relaxation of the legal principle.

“I’m not coping,” Molaudzi told the WJP while awaiting judgment a few weeks before his release. “I have terrible mood swings. I’ve been through a terrible ordeal and I’m still going through a terrible ordeal. I’m not really angry, I’m just traumatised. It’ll take me a long time to heal. I can’t think normally at the moment. I need a psychologist.”

When Molaudzi’s “warrant of liberation” was finally issued, load shedding in North West meant processing was delayed and he spent his first night as a free man in prison.

“I don’t know whether I have feelings,” he said outside the prison gates the next day. “I’ve missed my family and I’ve missed my son’s childhood. I wasn’t there for his first day of school and all the other important days. From the time he could talk, every time he visited, he’d ask when I was coming home. I kept saying ‘soon’, but could never keep my promise. My son thinks I’m a liar.”

* Carolyn Raphaely is a senior journalist with the Wits Justice Project, which investigates miscarriages of justice related to the criminal justice system. The WJP is located in the department of journalism at the University of the Witwatersrand.

The Star