Public Protector’s intervention leads to
release of unjustly incarcerated man
06 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.publicprotector.org
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