WHILE politicians have spent much time of late pontificating about respecting the human rights enshrined in SA’s constitution, no one would have blamed Port Elizabeth attorney Egon Oswald if he appeared just a tad cynical. For Oswald is the first South African lawyer to have prosecuted SA with human rights violations and torture at the United Nations (UN) Human Rights Commission in Geneva and won his case, Bradley McCallum vs SA.
Acting on behalf of the tattooed and toothless St Albans Prison inmate, the attorney who runs a one-man practic e from an old house in Port Elizabeth’s Bird Street, was last year voted human rights lawyer of the year by the Cape Law Society for his efforts.
“The first time I saw Egon, I knew he was the one who would show the world how we were treated inside,” says McCallum, now released on parole. “He gave me the confidence to talk about what happened.”
Although McCallum and Oswald’s “journey” to Geneva is a David and Goliath tale of the triumph of good over evil and the small man over the state, the last chapter remains to be written. Now Oswald is suing Correctional Services Minister Nosiviwe Mapisa-Nqakula for damages on behalf of McCallum and 230 others. Based on their constitutional right to be free from torture, it’s likely to be the largest damages claim yet instituted against correctional services.
McCallum, for one, was raped by a St Albans’ Prison warder using a baton during the winter of 2005. He was also beaten, attacked by dogs, trampled on and given electric shocks during a prison-wide orgy of violence in retribution for the murder of fellow warder Babini Nqakula — a relative of then safety and security minister Charles Nqakula , husband of Mapisa-Nqakula.
“About 70 prisoners from Bradley’s section were forced to run naked down a corridor through a tunnel of about 50 warders,” Oswald says. “They were beaten, sprayed with water and forced to lie on the wet floor in a long human chain with their noses pressed into the anus of the person in front of them.
“The warders beat them with batons, broom sticks, shock boards, pool cues and pickaxe handles. As result of the terror and electric shocks, the prisoners urinated and defecated on each other.
Forced to run back into their cell, many of the inmates incurred further injuries as they slipped, tripped and fell on top of each other on the wet floor which was covered in water, urine, faeces and blood.”
To make matters worse, Oswald says they were denied access to medical assistance for a month as well as HIV/AIDS testing, and other privileges such as a phone, access to legal representation and family: “They tried to treat themselves by burning toilet paper, then applying ash and sand to their wounds.” He has photographs and medical records to prove their allegations.
Predictably, McCallum is one of Oswald’s greatest fans: “Egon is different from other people. He cares about other human beings and shows respect to everyone. He doesn’t look down on people, or judge them. He’s a cool person, an angel in disguise. He is my hero. “
Oswald also happens to be doggedly determined and highly principled. Even after the UN found in 2010 that SA had violated its obligations in terms of at least two conventions — the UN Convention on Torture, Cruel, Inhuman and Degrading Treatment, and the UN Convention on Civil and Political Rights — he had no intention of abandoning his fight.
Driven by what he describes as a “complete antipathy to the abuse of power”, Oswald was incensed by the fact that SA ignored five requests by the UN to respond to McCallum’s allegations. Not to mention the fact that the “darling” of the international human rights community was also flouting the provisions of its own constitution.
“Egon’s success at the UN was an outstanding, significant achievement — particularly because of the international recognition and implications for human rights in SA,” says Cape Law Society councillor William Booth. “Hopefully, his case will cast some light on the inhumane conditions in our jails and bring about some necessary change.”
In post-apartheid SA, it wasn’t surprising that Oswald’s initial response when told about events in St Albans was disbelief. However, when the complaints turned from a trickle into a flood, he realised the reports were consistent and correct.
“All my clients were injured, some far worse than Bradley,” he says. “They had bruises, blunt force contusions, dog bites and broken limbs. “
So when all independent oversight mechanisms failed and no action was taken against the warders, Oswald realised he had to access a different set of laws. To date, despite the UN ruling, SA has failed to prosecute those responsible and an official investigation remains incomplete. Nor has SA published the UN findings as instructed, or provided the international body with requested information.
As Oswald sees it, the case is about “unethical leadership, the abuse of power and the catastrophic failure of internal control mechanisms. This really ticks me off. The UN views represent a great opportunity for SA to take a diplomatic high road, to demonstrate to the world that we’re willing to take a lead with regard to human rights issues.”
As a former commercial lawyer, Oswald seemed an unlikely candidate to take up these cudgels.
“I wasn’t looking for this case. It was ways too big for me and my small practice. But I do believe that if you do the right thing, things always work out.”
For the past seven years, Oswald has funded the litigation himself, on behalf of McCallum and the other inmates.
When former St Albans inmate Bafo Duru first met Oswald, he “knew straight away that justice would be served. He’s that kind of man. Money is not our first priority, nor is it his. It won’t really change anything for us. The best compensation will be when the people who injured us are punished and get what they deserve in terms of the law.”
Meantime, Oswald has his work cut out as he processes individual applications for each of his 231 clients.
He’s adamant that the upcoming damages claim does not become a financial footnote in Department of Correctional Services’ books — the reason he’s currently preoccupied with laying the groundwork for a Constitutional Court case.
“This matter is about total disregard for human rights in a system where brutality is the order of the day.
“Some of the warders involved in the case are still in their same jobs at St Albans. I believe that the rule of law must be upheld and public officials held accountable. It’s a matter of principle.
“I’m not the same person I was when I first met these guys. I’m even more determined to seek justice now, not less.”
• Raphaely is a member of the Wits Justice Project which investigates alleged miscarriages of justice.
Article source: http://www.businessday.co.za/Articles/Content.aspx?id=168186