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State drops cases as AIDS hits courts
by Siyabonga Mkhwanazi The Mercury, 7 October 2002. Republished courtesy of Independent Newspapers (Pty) Ltd
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Terminal illnesses - especially HIV/AIDS - are beginning to affect the administration of justice as the State is forced to withdraw scores of court cases.
The Inspecting Judge of Prisons, Judge Johannes Fagan, said that in 1995 there wre 186 AIDS-related deaths, but that figure had rocketed to 160 by last year. He said these figures were for both convicted and awaiting-trial prisoners. In 1996 there were 211 deaths, the following year 327 with the figure rising to 534 in 1998, the Judge said, adding that in 1999 there were 737 deaths and 1087 in 2000.
The last figures were recorded at the end of July this year (2002) and the number stood at 771, but "we are expecting the number to rise up to 1132 by the end of the year".
At the Johannesburg High Court this year, the State had to withdraw four cases becayse the accused were too ill to stand trial, said one prosecutor. One of the accused persons released from charges because of terminal illness was Kaizer Motshoega, co-accused of alleged Nasrec serial killer Lazarus Mazingane. The pair was charged with 73 counts, including 22 rapes and 17 murders. Mazingane's trial is continuing at the Johannesburg High Court.
Many awaiting-trial prisoners die in jail, Fagan said, adding that "if a sentenced prisoner is very ill, he can be released and we call that 'consolatory and dignified death at home'".
Spokesman for the National Director of Public Prosecutions, Sipho Ngwema, insisted that his Department did not routinely withdraw cases against terminally ill accused persons, but only did so "once we have received a death certificate". He did not know how many accused persons were suffering from AIDS or other terminal illness, but it would be a blow to the criminal justice system if cases were not concluded. "If we have a number of such cases it is unfortunate because it means we can't conclude the cases. We would prefer to go through the normal (legal) process because guilt has to be proven," said Ngwema.
Mr Martin Schonteich, senior researcher at the Institute for Security Studies, said: "In a few years' time, between 2005 and 2010, we will reach a point where one crucial person in a trial, it could be the accused, a witness, a magistrate, a prosecutor or a lawyer, will die (owing to HIV/AIDS)." The impact of the disease on the criminal justice system would cause further backlogs, resulting in more frustration for the victims, he explained.
"It must be extremely disillusioning for the victims because they want to see justice done. They want to see them (accused persons) punished," said Shonteich. "The people who are dying now are those who were infected eight years ago. The number is likely to increase because of the prevalence of AIDS inside prisons.
Mr Derrick Mdluli of the SA Prisoners Organisation for Human Rights agreed that the number of infected prisoners had increased over the years. "We have a high number of HIV-positive awaiting-trial prisoners, but it is difficult to measure because they come and go," said Mdluli. HIV-positive prisoners were only released once they were too weak to walk, he said. "We've got people (who are released from jail because they are close to death). They are rejected by their families because of their status," he said.
Gauteng's serial killer, Moses Sithole, had full-blown AIDS at the time of his sentencing in 1997.
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