Tuesday, June 4, 2013

Business Man Repeatedly Raped In South African Prison

A BUSINESSMAN who contracted HIV after being repeatedly gang raped in a South African prison today opens up on his horrifying two-year ordeal. 

Sean Smith, a business partner of Wales rugby legend Gareth Thomas, has poured his heart out to Wales on Sunday following newspaper claims he jumped bail from the country over alleged swindles of pounds 1.4m. 

Speaking to Wales on Sunday, the 42-year-old told how he was: * Arrested by the South African fraud squad and kept in the Eastern Cape's controversial St Albans Prison for 19 months; * Raped repeatedly up to eight times a day by gangs of prisoners; * Diagnosed with HIV and told he would die within four years; and * Fled South Africa in a car boot while under house arrest after he was finally granted bail. 

According to a report last month, which Sean disputes, the entrepreneur is being hunted by South African police for 14 charges of fraud and theft. 

Sean, who is currently battling lymphoma of the brain, says his ordeal dates back to May, 2007. At the time, he was living in the lap of luxury pursuing business interests in the sun-soaked country. He says he was quizzed by police over exchange control regulations in relation to the mortgage on his home - a matter of which he insists he is innocent. He was then escorted back to a local police station before being locked up in St Albans. 

Describing how dramatically his life altered, he said: "Overnight I went from having a lifestyle where literally when I get up in the morning I'd have a shower and be dried by a maid to, by close of business, being p***** on and locked up and no-one telling you what's happening." 

The businessman, who owns five firms including The Turbo Drinks Company which he bought with Thomas and former Wales player Gareth Williams in January, said he knew from the very first minute he was taken to St Albans he was in for a harrowing time. 

St Albans - which is 30km outside of Port Elizabeth - hit the headlines in South Africa earlier this year when a human rights lawyer announced he was suing for damages on behalf of 231 prisoners, over allegations of brutality. 

"When I arrived outside, the screaming and the noise of the prisoners was deafening," Sean said. 

"I was stripped naked and then held waiting with all the other intakes to be cavity searched. 

"The stench was unbelievable because there was no ventilation. 

It was hot, it was putrid, and I was literally gagging." 

It took four hours for Sean to be processed before he was then thrown into a small concrete cell, with no bed or toilet. The cells were supposed to sleep no more than 20 inmates but Sean was forced to share with around 90 others. Almost a week went by and while the conditions were "inhumane" they were, according to Sean, "bearable". 

That soon changed as he entered a nightmarish world that haunts him to this day. 

"All night all I could hear is crying because my cell mates were raping each other," he said. 

"The first few nights I wasn't touched because I was the only white man and I didn't speak Afrikaans. They left me alone - I don't think they knew what to make of me or who I was. 

"But after a few days they realised the white man wasn't dangerous and they started touching me. 

"It was day six when I was first attacked and that went on pretty much every day for the next six months and it wasn't just once a day, sometimes it was about seven or eight times a day and that was one after the other. 

"They did it not just as part of gang dominance but in my case it was showing supremacy over a white man - of which I was the only one." 

Sean was left psychologically and physically scarred by the brutal assaults and very soon gave up fighting, becoming a broken man reduced to a shadow of his former self and left a mental wreck. 

"Apart from the obvious effects of rape you've also got bleeding, you can't heal, you can't eat and this went on for months," he said. 

"There wasn't much left of me by then anyway. I was pretty much a skeleton - I couldn't complain because there was nobody to complain to, besides, that was life there." 

Sean - who has recently bought a house in the Vale of Glamorgan, and who set up Sean Smith & Associates with Thomas last year - said he began desperately looking forward to the days he was taken to court, even though he knew he would be rejected bail. 

Eventually, the British High Commission became aware of his plight and sought to provide him with consular assistance. But, according to Sean, its attempts proved in vain as they were repeatedly denied access. 

He also insists that despite "dozens" of court appearances, he has never faced formal charges. 

Meanwhile, after nine months behind bars Sean was given a medical examination during which he suffered another brutal, life-changing blow. 

"I remember seeing a male nurse as it was far too dangerous for a female nurse; who wants to work in a place where you are going to get gang raped and no-one is going to stop it? "Anyway, the nurse said 'we have to do the HIV test', and at that point I didn't give a damn. I was broken. I was broken physically and mentally, I had nothing left. I had no spirit at all so I didn't care. 

"He did an instant HIV test and we're standing there making silly conversation while we wait the three minutes for the test. It then turned pink - meaning positive - and we both looked at each other and said 's***' together. He then burst out laughing. 

"I asked what happens next and he replied 'I don't know, we'll call you' and that was it, I was bundled back into [the prison] population." 

In the wake of this trauma, the British High Commission was granted more access to Sean, although their meetings were still limited to 10 minutes at a time. 

"Eventually I was moved to a cell on my own and this was like being released - it was as good as," he said. 

"And that's where I saw there were another three white people who, funnily enough, were all there for fraud and who outside had successful lives and in there had nothing. 

"Forming a network with these guys, who you could have an intellectual conversation with, kept me alive. It re-ignited my brain. 

"Slowly I managed to get my mind back and slowly build my spirit up." 

Prison life began to become more bearable. Sean started to build up a relationship with the prison guards who made the use of his letter-writing skills in exchange for longer visitation rights. 

At one point Sean and the British High Commission were allowed the use of a private room for two hours, although South African authorities continued to block his exit from prison. 

But eventually he was able to contact a former partner who stumped up the money allowing Sean to hire some of the best lawyers in the country - some of whom had recently worked with President Jacob Zuma when he was acquitted of rape - along with a clinical psychiatrist. 

"At that point I was a skeleton, my eyesight was pretty much gone," he said. "I was deaf in one ear, and mind-wise I had lost it. The psychiatrist was there to help me, not to spin something to the court." 

After dozens of court appearances, the moment Sean had been waiting for nearly two years for arrived - bail was granted. 

"I remember looking at the prosecutor and the judge when the announcement was made. The courtroom started jeering at them and all the ladies who worked for me and their friends who had come to support me started singing in their language. 

"The judge stormed out, slamming the door behind him." 

Sean was forced to hand over his passport and was then placed under house arrest. 

Immediately, Sean sought the medical attention he so desperately needed - including a consultation with a HIV specialist. 

Yet despite in need of reassurance, the medic told him he was likely to die within four years as a result of his HIV. 

For now Sean, who in addition to his Welsh home also owns a luxury flat in London's Canary Wharf, says he has learnt to be more upbeat about his HIV. 

Despite not taking any medication for the condition he insists it does not affect him. Yet he is less positive about the prognosis for his lymphoma of the brain. 

He says doctors have warned him he is in desperate need of an operation within the next five months or he could die. 

Meanwhile, in South Africa another two years passed, during which he says charges were still not brought. It was during this time that he hatched his plan to escape the country. 

After managing to obtain a replacement passport, he says he was able to cross the South African border into Lesotho hidden in the boot of a High Commission car, before catching a flight to London. 

"While I may have travelled in the boot I do not believe for a minute any of the senior staff knew about this," he said. 

"The High Commission would never embarrass themselves in that way - they are the most professional people you will ever meet." 

He added: "When I arrived at Heathrow even though I had no money, no job, nothing, when the hatch opened and the supervisor gave me my passport and shook my hand saying 'Welcome home Mr Smith' it was still the best moment of my life." 

According to South Africa's national police spokesman Captain Dennis Adriao, a warrant is still out for Smith's arrest. 

Yet while Britain does have an arrangement with South Africa on extradition the Home Office said they were unable to say whether a request had been made. 

A spokesman said: "As a matter of long-standing policy and practice, the UK will neither confirm nor deny whether an extradition request has been made or received until such time as a person is arrested in relation to the request." 

A spokesman for the Foreign Office said: "We were aware of Mr Smith's detention in South Africa. We provided full consular assistance including visiting Mr Smith on several occasions." 



Two Days At The Arms Deal Inquiry

My First Two Days as an IFAISA Intern at the Seriti Commission.

The Arms Procurement Commission (APC) chaired by Judge Willie Seriti has been dogged by scandal in the last few months. The first two days that I spent at the APC were no different.

As an intern with the Institute for Accountability in Southern Africa (IFAISA), I was engaged to assist with noted activist Terry Crawford-Browne's testimony preparation. He was scheduled to give evidence to the APC on March 11th. It is through his work over many years that the APC has come to fruition: a never-ending determination to see the most controversial weapons deals in our (democratic) history thoroughly investigated. Considering that they cost this country an estimated R70 billion and have been discredited as illegal, unconstitutional and tainted by fraud, it is no wonder that Terry, an ex-banker, who organised banking sanctions against the Apartheid state, decided to take a stand.

I was briefed to go the APC premises so that I could inspect some of the documents that Terry had been offered inspection of by the APC and in respect of some of which he had won a High Court discovery order years ago. The International Offers Negotiating Team (IONT) documents are the inside working of the government's team that dealt with arms suppliers and ensure that South Africa received the best return for its investment. Considering that Terry and so many other high profile opponents of the deal (including Archbishop Tutu, Raenette Taljaard and Patricia de Lille to name a few) have accused the government of not fulfilling this basic mandate: the documents are crucial to establishing the truth.

And possibly, therein lies the problem.

On Monday, February 25th 2013 I was welcomed to the APC with open arms. I was shown the most gracious hospitality and had tea, water and general good spirit served to me in abundance. Even my meeting with Advocate Fanyana Mdumbe, the seasoned head of the APC's legal research team, went relatively smoothly. Considering what was written of him in Attorney Moabi's resignation letter, I expected our interactions to be bruising (Mr Moabi was a senior investigator with the APC and resigned accusing Fanyana and Judge Seriti himself of following a second agenda).

Consider this: a recently graduated LLB student from a 'troublesome' campaigner's legal team going up against an experienced advocate who was at the APC on secondment for the Department of Justice and Constitutional Development where he is the Principal State Law Advisor.

I expected to barely make it out of the meeting alive. But I was pleasantly proved wrong.

Mdumbe was most gracious and instructed the APC document managing team to bring me the first two of 9 lever arch files groaning under the weight of the IONT correspondence they contained. I was occasionally checked on and offered more tea. I spent the day reading through the documents noting what may have been of interest to our witness.

But when I returned the next morning, the same Fanyana must have been replaced with his slightly less accommodating doppelganger.

After initially bringing all 9 files to me, two hours after pouring over the close type-script, Mdumbe burst into the room and summarily informed me that I would not be allowed to read the documents anymore. My shocked expression was given a glib explanation: a decision had been made to limit access based on security concerns and that if anything changed it would be communicated to us in time.

Mdumbe was unmoving and indeed when I was joined at noon by my leader, Paul Hoffman SC and Terry himself, we made no headway. It seemed Mdumbe didn't want a fight for our legitimate access to the documents: we were told he had gone to Cape Town.

A few frustrating hours were spent submitting to Judge Seriti - through intermediaries as he refused to see us himself - that the APC was gravely mistaken:

First, Terry obtained a High Court order as far back as 2003 compelling the government (Trevor Manuel and Maria Ramos opposed him unsuccessfully) to allow him access to the documents. This was granted by the court without a need for a confidentiality agreement to be signed. Thus the documents in question could not be that sensitive or Terry would not have been given discovery. Any justification based on the documents being classified does not stand. The court order ought to have been persuasive.

Without getting into the detail of that, Terry's court order was ignored but the self-same documents were made available to the Commission 10 years later. Why the APC attempted to disallow access to the man who sought out the IONT documents in the first place and who needs them for his testimony - which he was invited to inspect by the APC itself - to aid it in its work is bizarre.

Second, and in any event, the APC's own summons of Terry invited him to come and inspect relevant documents to his testimony. As his legal team, that right extends to us too. It is quite baffling that the APC would allow access to documents, facilitate the entire legal team coming to the APC itself at taxpayers' expense to inspect the documents, only to be turned away and told that we could not inspect any longer. Especially when these documents are essential to the testimony that needs to be given.

It is regrettable that only after a threat of urgent legal action was made did Judge Seriti accede to our reasonable requests to be allowed to do what we had been invited to do. This bizarre treatment of Terry, a man who should be thanked for committing his life and all of his own resources to getting to the bottom of the Arms Deals, tends to add credence to Moabi's complaints.

If the APC wishes to inspire confidence in itself, it must not take a hostile attitude towards witnesses and their legal teams. If anything, it should do everything that it can to assist Terry and the other witnesses in the giving of their testimony so that the truth can emerge. The APC is not in place to protect the government: it is in place for reasons of accountability and transparency. Judge Seriti must ensure that the APC is beyond reproach, that it respects the Constitution and it gives real meaning to the mission that it has been accorded. Anything but is a travesty of justice.

As I wrote this, we received confirmation that the APC hearings would be delayed to resume in August. Despite having 17 months to get their house in order, the APC is going to be delayed. Something about 'justice delayed being justice denied' comes to mind.

I am hopeful that this is not the case. Based on a preliminary examination of over 8000 pages which constitute the single IONT document bundle, it cannot be doubted that there are mountains of evidence that need to properly examined in order to uncover the truth. It is thus commendable that the APC has chosen to keep its evidence leaders working hard and is committed to ensuring that the Arms Deal is fully investigated. No matter how long it takes and no matter how hard it may be, the APC must stay the course and use the opportunity it has to restore the faith in public discourse that South Africans have hitherto lost.

This delay gives the APC the opportunity to summons the ANC, its financial records of donations and its internal discussion documents, post-Polokwane, on the arms deals will go some way to doing that. The government too should not pass up the opportunity to come clean or in the alternative, show that it does believe in being transparent, accountable and subscribing to the rule of law in the words of the APC's motto. 

Kameel Premhid holds a BA and LLB from UKZN and was recently awarded the KZN Rhodes Scholarship. He is based at the Institute for Accountability in Southern Africa for a few months before heading to Oxford later this year. Follow Kameel on twitter: @kameelpremhid

Kameel Premhid
04 March 2013


Nathi Mthethwa Drops The Ball

Hot on the heels of exhorting police officers to police their colleagues so that the image of the police is not negatively perceived, the Minister of Police, Nathi Mthethwa appeared before the Police Committee of the National Assembly. He flew in to explain police brutality and wrongdoing to the members of Parliament who waited patiently for him to arrive, fashionably late, at the Old Assembly Chamber.

Speaking in the soothing tones of a school nurse attending to a gaggle of children with scraped knees from a minor playground mishap, the Minister delivered himself of an underwhelming performance. For the best part of half an hour, he managed to say absolutely nothing new about the problems facing the police service and the symptoms of dysfunction in its ranks.

As the responsible Minister, it was to be expected that he would seek the moral high ground, roundly condemning the excesses emanating from Marikana to Daveyton; announcing stern remedial measures and generally reassuring the public that the "rotten apples" have not taken over in the police. Instead he mouthed platitudes and skilfully ducked any and all questions that might require him to actually grapple with the issues posed by the deplorable track record of the police in recent times.

The Minister did concede that there is a problem with the command and control of the police. This much has been clear to any objective observer for years. It is a good first step that the Minister has brought himself to the point at which he is able to make the necessary concession. Former police chiefs Jackie Selebi was convicted of corruption, Bheki Cele was dismissed for mismanagement of the grossest kind. Present incumbent Ria Phiyega is currently on the carpet at the Farlam Commission of Inquiry into the Marikana massacre. It requires no genius to divine that the command and control problems in the SAPS go right to the top and have done so for some considerable time.

The ANC policy of cadre deployment in all centres of power in society, including SAPS - which is indubitably a centre of power, did not even warrant a mention in the discussion in the Old Assembly Chamber. Yet, cadre deployment is at the root of the problems, not only in SAPS but elsewhere in the public administration where labour intensive activities (think Home Affairs) are the required functions of the day. The ANC has persisted, despite all its bad experiences, in appointing politicians and non-police personnel into the leadership (jargon: command and control) of SAPS. The Constitution expressly requires a high standard of professional ethics of our police, and of public servants in general. The promotion and maintenance of these qualities is a primary task of government. Appropriate leadership is a sine qua non for the attributes of effectiveness, efficiency and the economical use of resources which are at the core of any successful police operations. These criteria are also constitutionally prescribed in section 195(1) of the Constitution. In the top structures in the police there is widespread cadre deployment with the results that are there for all to see. The fact that cadre deployment in the public administration is illegal and unconstitutional is conveniently ignored. Even by the Parliamentary Committee. When the Public Service Commission is publicly challenged on this, the answer is "prove it". Phiyega refused to admit her cadre status on being appointed, it was unnecessary to ask the question of her last two predecessors.

Cadre deployment's illegality has actually been proved in court in the famous case of Molokoti v Amathole District Municipality in which the Eastern Cape High Court sent a deployed cadre packing and replaced him with the candidate for municipal manager who should have been appointed on merit. The case was not appealed and remains good law. The feral elements in the administration continue to ignore its applicability in human resource management in the public administration with the sort of results we now see in the police. This is lamentable. It is also unacceptable that the use of proper recruitment methods, involving psychological assessment to weed out the socio-paths and psycho-paths before training starts and a functional literacy test to weed out the illiterate, are not in place. These simple measures do not occur to the Minister. Instead he suggested that the public should have a say in who should and should not be accepted as a police recruit. This is both novel and unworkable. It is a tacit admission that the police human resource personnel are not up to the job of recruiting suitable staff themselves and an invitation to all manner of shenanigans on the part of the public. The notion should be dumped unceremoniously.

The reason for the need for functional literacy testing lies in the dysfunction in evidence in the basic education system. Far too many young people are given a matric certificate in circumstances and at a pass rate that leave their functional literacy open to doubt. The private sector has long been wise to this and does not regard a matric certificate as evidence of functional literacy. The SAPS say a driver's licence and a matric certificate are the basic requirements. Those who have these two pieces of paper and are unable to find work elsewhere tend to gravitate toward the police, who employ a relatively large cohort each year, whether they have any interest in police work or not. This the Minister, to his credit, did recognize at question time. Literate constables would at least be able to take down a statement.

The National Development Plan's (NDP's) recommendations to "demilitarise" the SAPS were fudged away by the Minister on the same day that his Chief of Police is quoted as saying "It is difficult for me to say I agree or I don't agree [with the NDP recommendations]. With certain reservations and discussions we will embrace the recommendations". Perhaps she has not been told that the ANC has adopted the NDP as policy; perhaps she thinks her management and control of the SAPS gives her the power to second guess official policy. It ought to be deeply worrying to the ANC that its own resolution adopting the NDP is not whole-heartedly embraced by both the Minister and the Chief of Police. The Constitution contemplates a police service that protects and secures the inhabitants of the country and their property. It does not envisage a police force that perpetuates the unfortunate power relations that existed between police and public under apartheid.

The Minister did make a concession that will have Bob Glenister and the Helen Suzman Foundation cheering in the aisles in their challenge to the constitutionality of the new legislation governing the Hawks unit of SAPS. At question time he solemnly said: "Negative perceptions envelope whatever is there and they matter in issues of crime". The issue of public perception of policing is one of the hottest topics in the pending litigation. The Constitutional Court is already in full agreement with the sentiment expressed by the Minister. The new legislation is however out of kilter with this notion. All good South Africans should thank the Minister for this important concession, however unconsciously it may have been made.

Paul Hoffman SC
27 March 2013.