incarcerated man
6 February 2007
The Public Protector's office has helped secure the release of a man
unjustly kept in jail for 18 more months through a failure of government
administration systems.
The Public Protector, Advocate Mabedle Lawrence Mushwana, has issued a
report urging the Department of Justice and Constitutional Development to
consider an ex gratia compensation out of compassion for the miscarriage of
justice and gross injustice suffered by Mr L Khumalo who spent 18 months more
than was necessary in prison.
The recommendation arose out of a complaint to the Public Protector by Mr L
Khumalo in February 2006 that he never received a response from the Germiston
Magistrate's court regarding an outcome of his appeal lodged in 2003. When the
Public Protector's office investigated, it was established that the
complainant's appeal succeeded on 14 September 2004. His conviction was set
aside and, as he was not serving any other sentence, he should have been
released immediately.
The investigation found that the Germiston Clerk of the Court failed to take
the necessary steps to issue a warrant of liberation for the release of Mr
Khumalo in September 2004 and to notify the head of Kutama Sinthumule
Correctional Centre, where Mr Khumalo was incarcerated, that he should be
released immediately as his conviction had been set aside.
After the intervention of the Office of the Public Protector, Mr Khumalo was
released on 17 March 2006.
The Public Protector found that the failure of the state to comply with the
constitutional obligation to provide administrative assistance was improper and
amounted to maladministration.
"Mr Khumalo was severely prejudiced by the above maladministration to the
extent that his right to freedom has been violated by the actions of the
state," Mushwana said.
The Public Protector recommended that the Department of Justice and
Constitutional Development should take the necessary steps to establish the
reasons why the staff members responsible at the time did not issue a warrant
of liberation for Mr Khumalo, and to consider whether any additional measures
or steps were required to prevent a recurrence.
The report on the case will be submitted to Parliament, the Minister and
Director-General of the Department of Justice and Constitutional Development,
the Chief Justice of South Africa, the President of the Supreme Court of
Appeal, as well as the Court Manager: Germiston Magistrate's Court.
The Public Protector's office is established in terms of the Constitution of
South Africa. It strengthens our young constitutional democracy through, among
others, investigating maladministration, delays in service delivery, and
allegations of impropriety or prejudice by public administration in any sphere
of government.
It is an office of last resort, meaning that all other avenues to address a
complaint must be exhausted before the Public Protector is approached. It does
not investigate court decisions.
For more information, please contact:
Charles Phahlane
Tel: (012) 366 7006
Cell: 082 856 8188
Issued by: Office of the Public Protector
6 February 2007
