Impact/prisons/justice system
The Star, 07 October 2002, State drops cases as Aids hits the courts, By Siyabonga Mkhwanazi

Many criminals may escape justice because they are too ill to stand trial - especially in the wake of the Aids stranglehold.

The impact of the disease on the criminal justice system is expected to cause further backlogs, causing more frustration for victims of crime.

At the Johannesburg High Court in 2002, the state has withdrawn at least four cases against terminally ill accused, according to a prosecutor.

One of the suspects against whom charges were withdrawn is Kaizer Motshegoa, the former co-accused of alleged Nasrec serial killer Lazarus Mazingane.

The pair had been charged in connection with 22 rapes and 17 murders. While Mazingane's trial continues at the Johannesburg High Court, Motshegoa is back on the street. The nature of his illness has not been disclosed.

Inspecting judge of prisons, Judge Johannes Fagan, said natural deaths in jails had soared over the last eight years. Almost all the natural deaths were Aids-related, he said.

In 1995 there were 186 Aids-related deaths, but that figure had skyrocketed to 1 169 by the end of 2001, Judge Fagan said.

These figures were for both convicted and awaiting-trial prisoners.

There were 211 deaths in 1996, 327 in 1997, and 534 in 1998.

The figures rose further still: there were 737 in 1999, 1 087 in 2000 and 1 169 in 2001.

The last figures recorded were at the end of July, when the number stood at 771. It is expected to rise to a projected 1 132 Aids-related deaths by the end of the year.

Many of the awaiting-trial prisoners die in jail, said Judge Fagan, adding that if a sentenced prisoner was very ill he could be released.

"We call that 'consolatory and dignified death at home'," the judge explained.

National Directorate of Public Prosecutions spokesperson, Sipho Ngwema, insisted that the unit did not routinely withdraw cases against terminally ill accused.

"We do so only once we have received a death certificate."

He said he did not know how many accused were suffering from Aids or other terminal illnesses.

The objective of his department was to ensure that all cases before courts were concluded, he said.

"If we have a number of those (HIV/Aids) cases, it is unfortunate because it means that we won't be able to conclude the cases.

"We would love to go through the normal legal process, because guilt has to be proved," Ngwema explained.

Martin Schonteich, a 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 (because of HIV/Aids).

"It must be extremely disillusioning for the victims because they want to see justice done. They want to see the accused punished," he said.

"The people who are dying (of Aids) now are the people who were infected eight years ago. The number is likely to increase because of the prevalence of Aids inside prisons."

Derrick Mdluli of the SA Prisoners Organisation for Human Rights said: "There are a high number of HIV-positive awaiting-trialists, but it is difficult to determine because the awaiting-trialists come and go."

He added that HIV-positive prisoners were released only when they were too weak to walk.

"We've seen people released from jail because they are close to death. They are rejected by their families because of their status," Mdluli.

Gauteng serial killer Moses Sithole, who was sentenced to 2 410 years for 38 murders, 40 rapes and six robberies, had full-blown Aids at the time of his sentencing in 1997. Sithole is serving his sentence at C-Max prison in Pretoria.