It was second time unluckily for Thabo Bester in his urgent bid to be transferred from the eBongweni Supermax Prison in Kokstad in KwaZulu-Natal back to a prison in Gauteng after the Gauteng High Court on Tuesday turned his application down.
Judge John Holland-Muter said the Department of Correctional Services made it clear that they had moved Bester from C-Max Prison for security reasons. This was within their rights, he said. He added that none of Bester’s constitutional rights were infringed, as claimed by his lawyer.
Lawyer Benjamin Moafrika wa Maila once again argued on behalf of Bester that the move to eBongweni made it impossible for his legal team to consult with him in light of his pending trial. But Judge Holland-Muter pointed out that the department made it clear in their answering papers that there are consultation facilities at the super jail. Bester’s lawyers only had to make arrangements to see him, and it will be arranged, the judge pointed out. This was also confirmed by counsel for correctional services in court on Tuesday.
Bester’s urgent application to be moved back was struck from the roll last month after Judge Elizabeth Kubushi found the department was only given one day in which to file their opposing papers.
Bester re-enrolled the matter to Tuesday, without filing any new papers. This time around the department did submit opposing papers. Acting head of C-Max, Ntsizi Qebengu, had set out in detail as to why it was necessary to move Bester to KwaZulu-Natal. He also stated that shortly before his transport to eBongweni, Bester was informed of his move. He was happy with this decision and in fact welcomed it, Qebengu said.
Maila, however, maintained that his relocation severely hampered his preparations for his forthcoming criminal trial in Bloemfontein. Judge Holland-Muter pointed out that the trial has been set down for some time during the third court term, which is around July or August.
Maila in return said they also have to consult for the pre-trial court sitting on March 18, when all the problems are due to be ironed out before the main trial resumes. It was once again pointed out by the judge that consultations can also take place virtually. Maila responded that this is very difficult, as the defence team has numerous exhibits which the State is expected to rely on during the main trial, such as video clips and pictures on memory sticks. They need to discuss this with him in person, and they need to take devices with them to jail to display these visuals. Being so far makes it very difficult, he said.
In dismissing the application both on its merits and on urgency, the judge said in this new era we are living in, it is easy to consult with him virtually if his legal team did not want to travel to Kokstad.
It may be more convenient for him to be in the Gauteng area but there is nothing untoward about his transfer to Kokstad. He was transferred for security purposes, which is within the rights of correctional services to do. He also does not need to be told of his transfer beforehand, the judge said.
“Nothing procedurally wrong or unfair took place. His right for legal representation was also not infringed,” Judge Holland-Muter said. He added that it must be kept in mind that Bester has a record for escaping from jail and the judge said a better eye will be kept on inmates in a super maximum prison. “I see no urgency and no merits why he should be transferred back,” he said in turning down the application.
Zelda Venter
iol.co.za
