Registrar ‘did not hear’ bail was granted

Image courtesy

Image courtesy

A man was left incarcerated for three years because a high court judge’s registrar did not hear that he had been granted bail, the High Court in Pietermaritzburg heard on Wednesday.

Registrar Sharon Candy said she did not hear bail being granted to Sivion Mkhize, and would have tried to rectify the matter immediately had she been informed afterwards.

She told the court she did record that Mkhize was granted leave to appeal against his murder and aggravated robbery convictions.

Mkhize, 28, was convicted by Judge Leona Theron in the Dundee Circuit Court in February 2001.

Theron sentenced him to life for murder and 15 years for aggravated robbery at a garage near Ladysmith.

Two of his co-accused absconded, leaving Mkhize as the sole accused.

Theron granted him leave to appeal because part of the evidence against him rested on voice identification. She also granted him bail of R5000.

Mkhize’s leave to appeal was recorded, but not the granting of bail.

He has lodged a R16 million claim against the ministry of justice and constitutional development for unlawful detention plus loss of earnings as a technician.

Candy told the court she was probably out of the court performing routine tasks or an errand for her judge when the decision was made.

She often had to liaise between the high court and magistrate’s court staff, she said.

The high court sat in the magistrate’s court building during the trial.

Mkhize was sent to Waterfall Prison in Utrecht where officials refused to release him on bail.

Eventually, he wrote to the then KwaZulu-Natal Judge President Vuka Tshabalala, who wrote back to him informing him that he had been granted leave to appeal, but not bail.

Despite efforts by Mkhize and his family to have the record set straight, he stayed in jail until February 2004 when a full Bench set aside his conviction and freed him.

An emotional Mkhize told the court he had started doubting his mental condition while in prison, as both he and his family knew he had been granted bail, but he was still in prison.

He was held in the maximum security section of the prison, where he shared a cell with about 35 other inmates, who formed gangs.

There was gang warfare almost every night, so he joined a gang for protection.

He lived in constant fear, and his relatives smuggled money to him to pay for protection.

The ministry’s counsel has opposed the claim on the basis that it is no longer valid as it is more than three years old.

Acting Judge Piet Bezuidenhout postponed the case to December 10 for arguments.



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