In April, Justice Shabangu and George Mphotshe were arrested and charged for leaving their homes to collect waste to sell – an offence that should have seen them fined R1,000 and released. But not only was this option not made available to the men, who were instead sent straight to jail; they were apparently never even brought before a magistrate.
Eventually last month, Shabangu and Mphotshe – represented by Lawyers for Human Rights – turned to the high court with an urgent application for their release. Yesterday, the case came before Judge Brenda Neukircher who did not mince her words.
The application was in the main unopposed by both the prison authorities and the police, with the only bone of contention being the punitive costs order Shabangu and Mphotshe had originally asked for. By yesterday, though, they had abandoned this.
Neukircher said the prison authorities and the police were “very fortunate”.
“I am extremely perturbed by this application, I find it absolutely unacceptable that these two men should have been released on admission of guilt fine in April already and it is now July and they are still languishing in jail,” she said, “You are very lucky that that concession was made because one of the ways that I would have exercised my discretion and expressed my extreme displeasure, was by making a punitive costs order”.
In the court papers, Shabangu’s wife, Mamosioua Kao, spoke of the desperate situation she and her family – along with other waste pickers in ‘Mushroomville’, as their Centurion base is dubbed – had found themselves in.
“Due to our socio-economic conditions, when Alert Level 5 lockdown commenced on 26 March 2020 we struggled to access food or other essential items as we were not permitted to continue our reclaiming activities and ordered to confine ourselves to our place of residence,” Kao said, “Out of desperation to make some money for food and other essentials we needed to replenish, on 14 April 2020 [Shabangu and Mphotshe] ventured out into Centurion to collect recyclable materials to sell”.
Kao explained that while they were sorting through waste, Shabangu and Mphotshe were arrested and taken to the Sunnyside police station.
Despite her efforts to get them released, two weeks later they were still in custody – only by then, they had been transferred to Kgosi Mampuru Prison.
Kao said Shabangu had called her from Kgosi Mampuru using a prison warden’s phone and told her the warden had advised him they could be released – for a fee.
In a desperate bid to free her husband, Kao – with the assistance of the local community – managed to scrape together R710 which she deposited into a Capitec bank account.
Regardless, Shabangu and Mphotshe were still not released.
Neukircher yesterday made known her suspicions about the money and said the deposit slips told “a very disturbing story”.
The judge ended up declaring their detention unconstitutional as well as unlawful and granting an order, by consent, that Shabangu and Mphotshe be released – emphasising this was to be immediate.
“I want it made extremely clear that these two gentleman are to be released today,” she said, “If they are not then there will be consequences”.
Late yesterday afternoon, Lawyers for Human Rights confirmed the men had, indeed, finally been released.
Thandeka Chauke – who was the instructing attorney – described what had happened to Shabangu and Mphotshe as a “miscarriage of justice” and said they were pleased with the outcome.
“We are happy that the court has vindicated Justice and George’s rights by declaring their detention unlawful and unconstitutional,” Chauke said.