Carolyn Raphaely is a journalist with the Wits Justice Project (WJP), which investigates miscarriages of justice and is a project of the Journalism Department of Wits University.
Finding a safe place to hide your knife has always been an issue of paramount importance in prison. This was the reason strip searches, cavity searches and hiding a knife on your person – “poking a knife” in prison parlance – was the subject of scrutiny in the Port Elizabeth High Court last week. Detailed examination of “poking” procedures employed during a 2005 orgy of torture, assaults and mass-beatings in St Albans prison highlighted the conduct of the prison’s Emergency Support Team (EST), and its apparent disregard for the law and inmates’ rights.
During the course of a resultant ongoing St Albans torture–related civil damages claim, St Albans EST head Mthuthuzeli Swartbooi told Judge Dyalan Chetty he knew the rules but ignored them during a knife-search, following the stabbing and murder of warder Babini Nqakula by prisoner Simphiwe Mbena.
According to former inmate Xolani Siko, he and his cellmates were sworn at by warders and members of the EST, repeatedly beaten and forced to lie naked in a long human chain on the cement floor with their nose in the anus of the inmate in front. Siko was also shocked by warders using electric shock shields and trampled on before being dragged unconscious to the single cells where he was left naked for seven days on a mattress on the floor.
Subsequently, he was chained to a grille door in a crucifix position and dogs set upon him. In addition, four days after Nqakula’s murder Siko claimed he was dragged naked to the showers where he was again shocked and beaten – including on his testicles by a female baton-wielding EST member – in an attempt to force him to defecate a knife he was unable to produce.
“I asked him where it is, he must hand it over to me. He said that it is on himself, he had poked it,” Swartbooi recalled. “I asked for the cell to be opened. There he undressed his trousers and he squatted. On about the third time the knife got out of his anus. It was covered in a plastic. I picked it up and washed it….and we took him to the shower to wash. We then took the knife to the head of the prison. That was the end of it.” At least, that was what Swartbooi thought.
Nearly ten years after the event, Bruce Dyke, Counsel for Siko and 230 other plaintiffs in what is believed to be the largest damages claim ever lodged against the Minister of Correctional Services, maintained that Swartbooi’s version of events would have been impossible. Not least because Siko’s hands were so badly broken during the assault – he is currently unable to work and receives a disability grant as a result – he couldn’t even button up his shirt, let alone wrap a knife in plastic, Dyke said.
If Siko had been subjected to the abuse he claimed over a four-day period, Dyke added, it’s highly unlikely that he would not have defecated a knife – if he had it – before then. In addition, no Okapi knife, which Swartbooi claimed Siko produced, appeared in the prison’s register of photographs of confiscated knives; it wasn’t recorded in the head of prison’s diary or reported to him. Nor were any other details recorded and the search was not carried out by a nurse, or medical practitioner as prescribed by law.
“I put it to you,” Dyke told Swartbooi, “[that] you were Constitutionally and ethically delinquent in everything you did…in every single action undertaken by the EST under your command during ongoing searches conducted over a four-day period in July 2005.”
Disregard for the rules and regulations governing cavity searches appears to be just the tip of an iceberg of impunity exhibited by St Albans warders, State officials and members of the much-feared EST – aka the “Taakmag”, Black Shirts or Ninjas. As a result, the current damages claim, which has dragged on for almost a year, has profound implications for South Africa, extending way beyond the narrow confines of the mostly deserted Port Elizabeth courtroom where the matter has been heard.
Apart from fellow plaintiff Bradley McCallum’s successful attempts to prosecute a claim against South Africa for human rights violations at the United Nations Human Rights Council, details of the mass beatings and torture that occurred in St Albans, have mostly stayed in St Albans – until Siko’s story of brutal assault and violence was heard in court last year.
Explaining the raison d’etre for the searches, which continued over the course of a week, prison head Siphosandile Mshunqane said, “The fact that Nqakula was stabbed with a new knife means there… was a breach of security… This told us there are more knives inside the centre… It signalled we were sitting on a time-bomb in Correctional Centres because the centres, especially Maximum, [are] not safe for visitors, for inmates or members working there.”
Whether inmates also require protection from those assigned to protect them is a moot point. Before embarking on the searches, Mshunquane deemed it necessary to brief EST members in order to “sensitise” them about rules and procedures because, he said, inmates had been assaulted during similar searches in the past.
“It’s common practice,” Mshunquane told the court, “that when the EST is searching, inmates always complain of being assaulted. I cannot run away from that… You (have to) sensitise members not to assault the inmates because there’s a high level of cases of assaults for the whole Department of Correctional Services.”
One thing is clear: the use of force behind bars is a highly contentious issue. In terms of the law, the only permissible force is minimum or necessary force used to stop, or prevent a dangerous situation. Any other force is regarded as gratuitous, excessive and unlawful. Yet prison officials operating in the context of the prevailing culture of violence appear to routinely exceed accepted boundaries resorting to violence as a default position.
“It’s common cause that force was used. The question of whether force was excessive… is the issue in dispute,” Dyke told Mshunquane. “If force is used against an inmate (the rules dictate) he must immediately undergo medical examination [and] an injury report must be filed – particularly when there’s an allegation of an assault on an inmate by an official.” It’s also the responsibility and obligation of the head of prison to report any complaints of assault by a warder on inmate to SAPS for investigation – none of which occurred.
Despite three official investigations into Nqakula’s death and its aftermath, DCS investigator Michael Bones disturbingly conceded in cross-examination that he had been set up for failure, since he was not in a position to question his superiors about the actions of the EST. To date, not one of the 60 – 80 implicated officials have been prosecuted, and all remain in their jobs.
Facing bruising cross-examination by Dyke, Swartbooi admitted he had used force, not kept records of whom he had beaten, nor recorded the search on video cameras as required by law. In the context of serious allegations that numerous inmates were injured and beaten on his watch, a list of injuries compiled by an official investigator and testimony by forensic pathologist Professor Lorna Martin regarding linear bruising on inmates caused by batons, Swartbooi consistently maintained that no injuries were incurred during searches on his watch.
Swartbooi seemed to have forgotten that six weeks after the beatings, lawyers acting on behalf of 57 inmates who had been refused access to their legal representatives brought an urgent Supreme Court Application seeking access to their clients, and permission to photograph their injuries.
“There was a conspiracy of silence. You were part of that conspiracy of silence,” Dyke told Swartbooi. “You knew you could hit prisoners and beat prisoners with impunity and nothing would happen to you because the prison was shut down and nobody had access to doctors, to lawyers, or visitors.”
Counsel for the State Hilton Epstein SC argued that the widespread prevalence of gangsterism in the prison was to blame for Nqakula’s premeditated murder. However, Dyke maintained the murder was motivated by the inmate’s purely personal reasons, which unfortunately resulted in retributive collective punishment for an individual crime.
Whichever argument the Judge accepts, the resultant prison chaos was probably exacerbated by prison conditions. According to Mshunquane, on the day of the murder, 1,672 inmates were housed in a Maximum Security facility designed to accommodate 717, with only 178 officials on duty – including administrative and management staff.
“I left St Albans…nearly six or seven years ago. It is worse now…because government is not employing staff,” Mshunquane said. “It’s frustrating the inmates because… nobody is attending to their complaints. That is the biggest problem we are sitting with even today.”
While the State appears to be utilising the legal system to avoid liability and accountability for what transpired during that fateful winter in 2005, prison walls are porous and the truth will out. Though Siko is still in pain and his hands permanently disabled, if the plaintiffs’ action proves successful and 231 victims receive some measure of compensation from the State, hopefully Siko will feel that justice has finally been served. DM
Photo: Former inmate Xolani Siko and the instructing attorney Egon Oswald in front of Port Elizabeth High Court.