OPINION | Partisan justice in Bloemfontein Magistrate’s Court

todayJuly 3, 2023 293

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The Thabo Bester case has exposed cover ups by Free State SAPS management, police and justice ministers, and now it seems that this case receives preferential treatment in the Bloemfontein Magistrate’s Court.

In April 2023, Zolile Sekeleni, father of Bester’s partner Nandipha Magudumana, himself a
major role player in Bester’s escape from prison, was released on unopposed bail.

Recently, Bester himself was allowed to appear in court remotely.

However, the offer by her then legal representative for whistleblower Patricia Mashale, whose life remains in grave danger, for her to appear remotely in court on 3 March, was turned down by the presiding magistrate. Her current situation is dire because this same court has colluded in abuses of domestic violence legislation by granting suspect ‘harassment orders’ to police members
to stop their corruption being exposed.

Worse still, these courts seem to have no regard for the way in which their actions, as in the case of Mashale, result in gross violation of her Constitutional rights and those of her children, especially
her minor son. Like the SAPS, Department of Justice staff are deeply divided with those who strive to implement the law professionally silenced by fear of exposing corruption among their colleagues, including those who collude with police management members – a fear which is palpable in this regional court.

While all this is happening, Chapter 9 Institutions remain silent in deference to the violators. The disgraceful treatment of Mashale by Parliament – bowing and scraping to the SAPS and their Minister, instead of holding them to account, is a case study illustration supporting Chief Justice Raymond Zondo’s timely warning that Parliament continues to fail in its oversight function, for
Magashula’s Free State remains firmly captured.

What is completely inexcusable is that neither Chapter 9 bodies nor Parliament appear to care
about the way the children of Mashale, especially the minor son, whose rights are spelt out in detail in the Constitution have suffered grievously because of the inhumane persecution of their mother.

 Collusion in Bester cover-up

On 7 April 2022, the body of an unidentified man at the Bloemfontein government mortuary was claimed, as a supposed relative, by Magudumana.

On 29 April, the same body was found in the local Bloemspruit River. A senior mortuary staff member reported to the Bloemspruit SAPS that a crime had been committed for the body had previously been in the mortuary, and asked for a criminal case to be opened. The request was declined, and it subsequently
transpired that the matter was being handled by provincial management.

Later in April, another body of a man who had apparently died before or after being brought from a taxi rank to a Bloemfontein hospital was claimed, as a relative, by Magudumana. That body, subsequently identified as that of Katlego Bereng (Mpholo), should not have been released by the hospital as the cause of death had not been properly established.

On 27 April, Magudumana’s father hired a car which, two days later was used by an accomplice to transport Bereng’s body to the Magaung Maximum Security prison, where it was found badly burnt, in Bester’s cell, on 3 May. It was identified as that of Bester.

Allegedly, the crime scene was interfered with by police investigators who tried to disguise the smell of petrol on the body. DNA tests subsequently revealed the body was that of Bereng, not Bester.

Although the autopsy was not nearly rigorous enough, it did reveal that his skull had been fractured, confirming he had been murdered – which begs questions about who murdered him, and how Magudumana knew that his body had been taken to hospital. That the body in the cell was not that of
Bester was known to SAPS management (and by extension, the police minister who is close to them).

By August and shortly thereafter (through JICS judge Edwin Cameron) to the Minister of Justice. However, it was only months later, through a leak to the media that the public became aware that Bester had escaped, his presumed body having been substituted by that of an innocent man.

Would they have ever known had the media leak not occurred?

Collusion Bloemfontein courts and police

Increasingly, SAPS management members in the Free State have turned to its courts to silence colleagues – and the media – who speak out about corruption. Shamefully, family courts, which are not even dealing adequately with serious gender-based violence crimes, have been assisting them in covering up by issuing them, willy-nilly, with ‘harassment orders’.

Patricia Mashale’s problems had started after she reported alleged Free State management corruption to National Commissioner Sitole in January 2021. In August 2021, one of those she had named – Deputy Provincial Commissioner, Solly Lesia, obtained a harassment order against her in the Family Court, and she immediately applied for a rescission (he claimed that WhatsApps circulating about him within a group of police members, which included her and husband George, were derogatory).

Her reports to Sitole had been made, internally, in terms of anti-corruption legislation and Oath of Office, and it was Lesia himself who placed the matter in the public court arena. The matter dragged on for over a year, with a huge waste of SAPS resources by Lesia on a private, civil, matter of his own, until judgment turned down Mashale’s rescission application without any evidence having been heard – over a year later.

She was then charged with breaking the order because of an interview the SABC had conducted over three months before the order was finalised. Charges were then changed to bring them under updated legislation intended to deal with serious crimes involving domestic g violence (as opposed to WhatsApps).

Mashale had been forced into hiding in latter February 2022 after receiving credible reports that she would be arrested on trumped up charges and ‘disappear’. Then, and since, she has been told that bail would be refused and, given what has happened to her colleagues speaking out about corruption,
there is evidence of collusion between certain prosecutors and police accused of corruption in opposing bail (one member has, illegally, been denied bail application for six months).

While it initially appeared that her anti-corruption work had only threatened SAPS management members, it is now known that they were collaborating with State Security officials, including a senior
government functionary against whom the Zondo Commission had recommended criminal investigations. They apparently believed that she and George had damning information, which could further expose their corruption, probably including about the siphoning off of SAPS money to politicians.

Inevitably, since he colludes with the Magashule police, the Minister of Police is implicated.

After being criminally charged with breaching the harassment order in September, Mashale appeared in court, protected by close associates, at a remand hearing on 16 November, 10 days after she had narrowly escaped being killed.

After she explained her situation to the court, including that prosecutors were alleged, with evidence to back it up, to collude with police accused of corruption, the magistrate agreed that she did not have to appear in person (Lesia always attended court with a phalanx of armed police members), provided her lawyer represented her, and that he would note the request for an independent prosecutor.

At the January hearing a legal representative appeared for her, so it was assumed that the court was aware of the undertaking given. However, it now transpires that there is absolutely no evidence on the court record of what happened at the November hearing, despite the recording machine having been in working order (the magistrate’s comments are confirmed by independent witnesses who have made

Mashale had assumed that the same would apply on 3 March, when a legal representative was present, but the presiding magistrate ordered that she appear in person – despite her life being in danger, a threat assessment being available, and the request of a remote appearance having been made – and then issued an arrest warrant because Mashale was too scared to do so. It is known that not even courts are safe for witnesses and whistleblowers, as an assassination in Wynberg recently, and the shooting dead
of Glebelands witness Sipho Ndovela at Umlazi court in 2015 demonstrate. Umlazi police were well aware of the threat to Ndovela’s life.

Free State court managers, the NDPP and Ministry of Justice, and the Magistrate’s Commission, have been asked to investigate reports that a senior prosecutor, who is alleged to have a family relationship with one of Mashale’s persecutors, participates in meetings of magistrates at which court rosters and
presiding magistrates are determined.

As is the plight of most South Africans, who lack the funds to engage good lawyers, Mashale has suffered through lack of adequate legal representation.

She wanted the court order immediately appealed but discovered it had not been done, and the fact that her lawyer had apparently told the court she was in Witness Protection – a blatant untruth – has counted against her.

She immediately dispensed with his services (he is, co-incidentally, now representing Thabo Bester) and sought the services of an experienced advocate who could, if necessary, on a pro bono basis, take the matter to the high court. It was a fruitless search.

However, she is grateful to the University of the Free State Law Clinic for agreeing to act as briefing attorney, and special thanks go to Whistleblower House, which has confirmed recently that it will
employ the services of an experienced criminal advocate.

While no effort was made to find convicted murderer and rapist Bester and Maguduma until the truth of what had happened exploded in the media, Mashale’s name (because of a few fairly innocuous WhatsApps) is now on a widely- circulated police ‘wanted’ list – all because she did the right thing and
exposed corruption.

Minister Bheki Cele had until it was publicly exposed, and apparently without the knowledge of the National Commissioner – deployed his Crime Intelligence Services (CIS) henchmen from KwaZulu-Natal to hunt her down, harassing her family in the process. One of Cele’s recent appointees to CIS in the Free State was implicated in the killing of Sindiso Magaqa.

Eighteen months of virtual solitary confinement-cum-house arrest – and the gross violations by this government, and its courts, of the rights of the minor Mashale’ child, Mashale is owed many months of salary by the SAPS, but she lacks funding for legal fees for civil action.

She has been assisting the Special Investigation Unit (SIU) with, among other things, investigations into serious pension fraud, but even her fraudulently paid out pension monies, sitting in an unclaimed fund, have not been transferred to her.

Her own health has suffered very badly from her isolation, but the worst pain for her is the separation from her children and her inability to care for them emotionally and financially, as she has done for the
past 30 years.

The Mashale family has always relied on two salaries to sustain their household and ensure all their children’s needs are met. Now there is no money for university fees for a student daughter and schooling costs for an 11-year old son. She is grateful for the limited financial assistance she has received
(limited because NPOs, even internationally, do not have nearly enough funds to meet legitimate demands, and the government provides no financial assistance for whistleblowers) but that does not meet the children’s needs.

It is the South African state, through its Executive, SAPS and courts, which are, through this despicable treatment of Mashale for reporting their corruption, guilty of breaching international charters and the SA Constitution regarding the rights of her children.

The African Charter on Human Rights emphasises the right to family life, especially for the wellbeing of children, and the UN Convention on the rights of the child highlights the crucial role of the state in protecting children’s families.

The rights of children are enshrined in detail in Section 28 of our Constitution, and they are given legislative impact in the Child Justice Act of 2008. The context for the ‘best interests’ of children is the crucial need to maintain the stability of the core family and its existing parent/child relationships, and the extent to which the children’s needs are being met, including in protecting them from harm. From the narratives of her older children and her minor son.

The fact that she has done an outstanding job as a mother could not be clearer.

The consequences of separating young children from nurturing parents are potentially serious. For fear not only of her own death, but of potential harm to her children if she stayed with them, Mashale went into hiding because their family home was under constant surveillance.

Living in isolation, Mashale considers that the worst thing about what has happened to her is being away from her children.

As she puts it: “It is not standing alone that is the hardest, its being forced to leave your children and not be part of their achievements, their jobs, their heartbreak and their development anymore….”

She apologises to her children for having misled them about what was expected after 1994.

“That is much, much, worse than apartheid and that’s the reality, the ANC government has become the deadliest weapon against black people and they will keep on hunting and killing whistle-blowers…”

My similar sentiments have been expressed by other black Africans.

Her older children describe, in heartbreaking detail, how their lives have been torn apart and turned upside down, unable to bring friends to their home given ever-present surveillance, constantly looking over their shoulders to see if they are being followed and worrying every single day about whether their mother will be killed. The worst affected is her 11-year old son.

In late 2021, he had to be moved from his boarding school because the family car was followed all
the way to his home by police in unmarked vehicles, who lost interest when they found his mother was not in it. Immediately after Lesia opened the breach of court order criminal case, armed policeman arrived at his home when he was alone with a relative to arrest his father, who was not at home – without an arrest warrant.

Months later, TRT members with rifles arrived to deliver another ‘harassment order’ for which they forced his care-giver to sign (a grossly irregular court procedure). Now, when he is sick, his mother who has always been very close to him, is not there, and it is his older sisters – working and studying – who act as substitute mothers. He does not understand what is going on because these police are from the very same SAPS that both his parents have served with distinction for many years.

Recently, a huge contingent of armed police arrived at a shop Mashale’s older son often goes to
and arrested – and then released – someone at the shop. His mother worries that he is being tracked because her persecutors believe he will lead them to where she is.

For all the attention this government pays to our Constitution, it might as well not exist.

As Mashale puts it: “I am deprived of a normal life with my children and family, our Constitutional
rights have been suspended by the South African government….sanctioned to exile right in front of the world, we are under constant surveillance with compliments of the taxpayers contribution…….”

The rights trampled on include those described under apartheid by the TRC (Volume 2) as ‘gross human rights violations, including ‘mental or psychological torture (isolation akin for most of the time to solitary confinement) severe ill-treatment (attempted killing, and all forms of inflicted suffering which includes mental harm) and harassment, the threat of violence and surveillance. Constitutional rights breached include Section 12 (Freedom and security of person), and Section 21 (Freedom of Movement).

Mashale’s ‘dismissal’ from the police was illegal, breaching labour legislation informed by Section23 of the Constitution and Section 33 to ensure Just Administrative Action.

The continued surveillance of the family home, and the children’s fears of being followed, is in breach of their right to their privacy (Section 14). Worst of all is the State’s failure to uphold Section 28(b) of the Constitution, which decrees that every child has the right to family and parental care.

Expectations that the courts will uphold the Constitution have been dashed by those Justice Department officials who fail to administer ‘impartial justice (Section 165) and, instead of exercising much-needed oversight of police investigations, choose to side with accused senior members widely accused of
gross corruption.

By refusing to give Mashale the privileges it accords to rapist and murderer Bester (a remote appearance), and issuing an arrest warrant for her – thereby making it easier for her police persecutors to kill her – the court has forced her – to try and safeguard her right to life (Section 11), and potentially the lives of family members if she is with them – to distance herself even further from her family, the family who love her so dearly and who she loves and misses so very much.

She knows that that, were she to be arrested, she would almost certainly be denied the bail given to a man who played an integral role in orchestrating Bester’s escape from prison.

In terms of Section 8 (1) of the Bill of Rights, the Constitution applies to all our law and binds the legislature, the executive, the judiciary and all the organs of State. The Chapter 9 bodies which are supposed to ensure that these rights are upheld have failed whistleblowers in every sense of the word, and, under current leadership, have created the distinct impression of taking instructions
from the governing party, especially the Minister of Police.

By turning a blind eye to what has been reported to all of them about the gross violations suffered by Mashale and her children, the serious danger to her life, and the partisan ‘justice’ administered by the Bloemfontein court, are they – particularly those who have the power to stop these rights abuses, and have failed to do so – not all, themselves, in breach of their Oath of Office to our Constitution?

Written by Political and Human Rights Activist Mary de Haas

Disclaimer: The views expressed in the content belong to the author and not Y, its affiliates, or employees.

Written by: Lindiwe Mabena

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