Public Protector�s intervention leads to release of unjustly 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, Adv 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, contact Charles Phahlane on 012 366 7006 or 082 856 8188.

For media releases, speeches and reports visit the Public Protector�s website www.pprotect.org .