A 13-year legal travesty

Posted on November 4, 2011


The final act in a 13-year travesty of justice drama began shortly after midnight on Thursday last week. In a scene reminiscent of the apartheid era, four cars screeched to a halt outside a house in the Cape Flats township of Delft. Uniformed men, wearing flak jackets, leapt out, several of them vaulting the gate to bang on the door of the house.

They were not police. They were soldiers and they had come to deliver to the home of Donovan Leibrandt, warrants of arrest for Leibrandt and for Leontoane Rantai, two former naval ratings and early members of military trade unions.

I have written about the case in this column three times over the past 13 years and I make no apology for doing so again. In all this time, I have not come across a legal matter that is more — as several lawyers have said — of a travesty. It is almost incidental that I became involved because the men were members of then unrecognised unions that were opposed by the military hierarchy.

In 1998 Donovan Leibrandt was a member of the putative South African National Defence Union (Sandu) that took the union membership issue to the constitutional court in 1999 and won. Leontoane Rantai belonged to the then also unrecognised South African Security Forces Union (Sasfu).

Both were naval ratings and they faced what their attorney described, accurately, as a “common purpose charge”. The attorney was Cecil Burgess, now an ANC member of parliament, and he was defending them on the very serious matter of arson.

What was made clear from the outset was that neither Donovan Leibrandt nor Leontoane Rantai had set fire to anything. And no evidence was led that they had been at the scene of any arson either before, during or after the event. But it was alleged that they had known about, and been involved with, an attempt to burn down the records office at the Simonstown naval base.

Thomas Ramalahla also a naval rating and, like Rantai, a former member of the ANC’s armed wing, umKhonto weSizwe (MK), broke into the office, carrying cans of petrol, and set about trying to burn the place down. But he set himself on fire and fled the scene, suffering grievous burns in the process.

Leibrandt and Rantai later met up with the critically injured Ramalahla, wrapped him in a wet duvet and drove him to hospital where he later died. Where they found him and the circumstances of his transport to hospital are matters of dispute between the prosecution and defence.

However, Rantai was detained by the military police and held in detention barracks where he underwent three days and nights of “physical interrogation” that resulted in a confession of involvement. At the time of his court martial, Rantai admitted: “After three days I agreed to anything the military police told me to say.”

Burgess pointed out that the confession, extracted under “torture”, was clearly inadmissable. Both Leibrandt and Rantai also did not trust the military to provide a fair trial and, together with Burgess, demanded to be tried in a civilian court.

The navy twice rejected this appeal and ordered courts martial. So began a tortuous, lengthy, and at times almost farcical, saga.

After three years, the case against the two men was dismissed on a technicality: the charges had prescribed because of delays for which the military admitted responsibility. The men went back to work, only to be arrested again — and charged in the civilian court in Wynberg.

“A travesty,” said Burgess. Sandu and Sasfu agreed. Having elected a court martial and having failed with a prosecution, the navy should not be allowed to “have a another go”.

But the case went ahead and the magistrate, in a controversial decision, dismissed the alibi advanced by Leibrandt and admitted the confession by Rantai. The men were found guilty and sentenced to eight years’ in jail.

Lawyers, who at various times have been involved in the case, admit that none of the delays that then followed were caused by Leibrandt and Rantai. And parts of the delayed appeal judgments delivered provide cause for concern, one of them stating as fact that the men were at the scene of the arson attempt.

“The delays up to that point were also extraordinary,” says Keith Gess, one of the attorneys who, at one stage, dealt with the case. It is, he feels, a classic example of justice delayed being justice denied.

“Looking at the record, it is diabolical what has happened,” says a Cape Town attorney who does not wish to be named, because, he adds: “In my position, I can’t be seen to criticise judges and judgements.”

However, after more than a decade of living in a legal limbo and battling against what seemed insurmountable odds, Leontoane Rantai gave up and left Cape Town without providing a forwarding address. Donovan Leibrandt, without money for legal assistance, battled on, eventually drawing up, by himself, a petition to the Constitutional Court.

He was waiting to be given the reasons for the constitutional court’s negative ruling when the soldiers arrived at his door. So began the last, frenetic act in this tragedy as Donovan Leibrandt tried — and failed — to obtain an order halting the execution of the arrest warrant in the time given.
On Wednesday morning, the same camouflage-uniformed army sergeant who had been involved in last week’s raid, looked on as Donovan Leibrandt handed himself over at the Wynberg court and two police constables took him into custody. “The army was involved because we were told it was a military matter,” the sergeant said.

I walked with Donovan Leibrandt and his clearly distraught wife, Zoliswa, as he was escorted to the cells. “All I want is my life back,” were his last words to me.

However, the curtain is yet to fall on the final act of this travesty. The public protector and Lawyers for Human Rights have belatedly been informed. And inquiries are being made into what might still be done in the name of justice.