CHANGE IS PAIN was the prophetic title of Mzwakhe Mbuli's first album. Dubbed the "people's poet" his inspirational words resonated over the graves of struggle heroes during the 1980s. Tall and charismatic, the 38-year-old poet was the obvious choice to chant in praise of Nelson Mandela at his presidential inauguration in 1994. With eight albums of oral poetry - six of them gold -to his credit, steady demand for his live performances and active work for charity, Mbuli led a fulfilling life. Everything changed on October 28, 1997, the day he was arrested and charged with armed robbery.
Denied bail because he was seen as a flight risk, Mbuli languished in jail until his trial at Pretoria Magistrate's court began in June 1998. In March the following year he was found guilty and sentenced to 13 years. Mbuli has always protested his innocence, claiming he was framed, but in November last year his appeal to the Pretoria High Court was turned down. Now his last resort is the Supreme Court of Appeal in Bloemfontein. As Focus went to press no date had been set for this hearing.

His fans, of course, remain convinced of his innocence. There is a web site, set up by an American anti-apartheid activist, where you can sign a petition for his release (www.mzwakhe.org). There have been celebrity visitors - the ANC's Ahmed Kathrada, Frank Chikane and Winnie Madikizela-Mandela - but the only one campaigning for his release is Helen Suzman, for many years the only opposition MP in the years of National Party rule and patron of the Foundation that publishes this magazine.

She became involved after Mbuli's London agent alerted her niece, the actress Janet Suzman, to the poet's plight. She visits him regularly in prison. Although sceptical about Mbuli's case at first she says, "after meeting him and attending both court cases I became absolutely convinced of his innocence."

The First National Bank (FNB) in Waverly, Pretoria, was robbed of just over R15,000 shortly after 9 am on October 28, 1997. Twenty minutes later Inspector Barend Brits and Sergeant Hannes Venter pulled over Mbuli's blue BMW about 200 metres from the bank. The poet and his friends, Happy Shikwambane and Ben Masiso, were in the car. Mbuli and Masiso both had their licensed firearms on them. The police also found a blue bag containing about R13,000 in FNB sealed plastic bags. After a number of police vans had converged on the scene, a further search revealed a rusty unlicensed star pistol, a hand-grenade and a blue overall.

The only incontrovertible piece of evidence against Mbuli, and his friends, is the stolen property found in his car. Both the original magistrate's court trial and the High Court in Mbuli's appeal referred to the "slovenly investigative work on the part of the police".

"The circumstances are just so extraordinary," exclaims Suzman. "Why would a well-known man who commands in excess of R15,000 for a single performance and who can afford to run a BMW, walk into a bank with a hand-grenade and rob a bank of R15,000 without any attempt at disguising his striking looks, and then take his time to drive off slowly in his own car? It simply makes no sense."

"The identity parade was a farce," she says. At 1.96m Mbuli towers over most people and would have been much taller than the others in the parade. "He was asked to crouch so as to appear the same height, " she says. Another irregularity was that the investigating officer was present, which increases the likelihood of witnesses being prompted.

Only one of the six witnesses pointed out Mbuli in the line-up. She subsequently admitted under cross-examination that she worked for CNA stationers and had seen Mbuli's picture splashed over the front pages of newspapers before the parade. Witnesses pointed out Masiso and Shikwambane but also picked the "wrong" people. Magistrate F.J. Poolman concluded, "The result of the identity parade is of no help to us in finding the identity of the robbers."

The logical corollary of his conclusion was not raised in the trial or on appeal: if an eye-witness fails to identify an accused when he or she might have been expected to do so, this fact should be weighed in favour of the accused.

"There were no fingerprints," says Suzman. The witnesses could not agree on whether two or three people were involved in the robbery. However, they did agree that a gun and a hand-grenade were handled by the robbers and that they were not wearing gloves. Police failed to find fingerprints of any of the accused in the bank. No fingerprints were taken of the bag, hand-grenade, the gun or the money. There was also confusion regarding whether one of the robbers was wearing a clean or dirty overall - the one found in the car was dirty.

According to Inspector Brits, Mbuli's car was stopped because it had tinted windows and "looked suspicious". No other vehicle or person was stopped in connection with the robbery.

Finally, the video surveillance camera in the bank, which might have provided crucial evidence, was inexplicably not switched on at the time of the robbery. Hence, there is no evidence of identity linking Mbuli to the scene of the crime.

Ultimately, the case against Mbuli turns on his possession of the stolen property. In such cases if the prosecution can prove that an accused was found in possession of recently stolen goods and fails to give any explanation that could reasonably be true, the court is entitled to infer that he stole them or that he is guilty of some related offence, such as knowingly receiving stolen property. The inference to be drawn is governed by whether or not the goods were recently stolen, [S v Skweyiya 1984 (4) 712 (A)].

However, there is no onus - burden of proof - on the accused to prove that he acquired the goods innocently. If his explanation might reasonably be true, then the prosecution has not proved its case beyond reasonable doubt, [R v Du Plessis 1924 TPD 103].

In Mbuli's appeal, Judge Piet van der Walt described the principle thus: "Although there is no onus on the appellants to explain their possession, it cries out aloud for an explanation." But it is not that simple. In the absence of an innocent explanation that might reasonably be true, the court may, rather than must, convict him. In S v Parrow 1973 (1) SA 603 (A) Judge G. N. Holmes explains this subtlety further:

" . . . The court should think its way through the totality of facts of each particular case, and must acquit the accused, unless it can infer, as the only reasonable inference, that he stole the property . . . The onus of proof remains on the state throughout. Hence, even if after the closing of the cases for the state and the defence, it is inferentially probable that the accused stole the property, he must be acquitted unless the only reasonable inference is that he did so; for the law demands proof beyond a reasonable doubt."

Mbuli's explanation for the stolen property found in his car is complicated. He said that Masiso had arranged a meeting for him with a certain Dlamini who claimed to have information regarding the 1996 assassination attempt on Mbuli's life. In that incident armed men followed his car from Johannesburg to Leondale on the East Rand and sprayed it with gunfire. Mbuli escaped unhurt but has always sought to uncover who was responsible. Some think it significant that the attack occurred shortly after Mbuli had released an anti-drug song entitled "Unfriendly Cousins". Others suspected the late Inkatha MP, Themba Khosa, but he denied that he was behind the attack. The meeting with Dlamini was to take place in Pretoria on October 28, the day of the robbery.

That morning Mbuli drove to Pretoria, with Masiso and Shikwambane, to meet Dlamini. While waiting at the appointed spot, says Mbuli, a person approached his car and flung a blue bag through the window, saying something like "here is the evidence" and then ran off. Mbuli and his friends did not look inside the bag but drove around attempting to find the person responsible, whom they assumed to be Dlamini, until Britz and Venter stopped them.

Mbuli believes the whole incident was designed to frame him. He claims he has information about drug dealing by high-ranking government officials, which he obtained after an anti-drug tour to Swaziland. A month before his arrest, Mbuli says he talked to former Gauteng MEC for safety and security Jessie Duarte about his allegations. She told him the matter was too big for her to handle and that he should speak to President Mandela. He was arrested before being able to do so.

The frame up, Mbuli believes, was meant to silence him, prevent him from obtaining evidence confirming the information, or reduce his credibility as a witness. The gun and other evidence could have been slipped into the car at any time after the arrest, as the car was not properly secured. Indeed, there was some controversy over where exactly the grenade and star pistol were found.

Judge Van der Walt considered Mbuli's conspiracy theory and decided that it was not reasonably possible. It hinged on too many eventualities: how did the framers know how many people to use? What was in it for the robbers? How did they get the timing just right? How was it that the cash was found in Mbuli's car so soon after the robbery? "Is this [Mbuli's conspiracy version] possible?" he asked. "Of course it is. Is it reasonably possible? I would suggest no . . . Hardly a likely version and the converse would be that someone on the police wanted to make life difficult for appellant 1 [Mbuli], because he is the main target as a well-known person and planned this whole thing to get him to Pretoria to involve him in this robbery, but then that would call for the participation of not one person, but a number of persons on the part of the police. Hardly likely."

Suzman laughs in derision. "The police would never get involved in a conspiracy? Please. We know what the police were capable of doing before. Have they changed that much?'

But putting aside the conspiracy theory for a moment, surely the court should have considered not only whether Mbuli's version was reasonably possibly true, but also whether - to quote the Judge Holmes dictum above - "the only reasonable inference" from the evidence was that he stole the money?

In the absence of other evidence is it not possible that the genuine robbers, to cut their losses after finding their haul to be less than expected and with the police on their heels, did indeed lob the damning evidence into a car, which happened to be Mbuli's? Is it not also possible that the police were so convinced of the poet's guilt from the outset that they made no effort to conduct a proper investigation or unearth the truth? Surely an accused should reap the benefit of the doubt created by slovenly police work, which could so easily have established further evidence of guilt or innocence?

Furthermore why did the police so easily find Mbuli, a respected and outspoken figure, not credible? Suzman clearly finds him credible. Mbuli's conspiracy theory to explain his version of events might indeed be unlikely. But is it not possible that his version, divorced from the conspiracy theory, is nevertheless true? Is that not also a reasonable inference from the evidence?

The "conspiracy-free argument" may be his best bet to convince the court. Nevertheless, Mbuli does have reasons to believe in a conspiracy or at least to be a little paranoid. Besides the unsolved attempt on his life in 1966, the following points should be taken into account:

· The Truth and Reconciliation Commission recently granted amnesty to Kobus Klopper, a police officer who confessed to planting explosives in Mbuli's home in Soweto during the 1980s in order to frame him. Mbuli and his wife Nomsa were subsequently arrested. Klopper claimed not to have planted the explosives himself but did not disclose who did so. BONA magazine (March 2001) claims that Klopper knows Captain Fabby Fabricius (unfortunately named in the circumstances), a detective who was involved in the Mbuli investigations - particularly in attempts to pin other robberies on Mbuli.

· The state attempted to link Mbuli to a number of robbery cases, in particular, robberies of a businessman and a bottlestore, in Randburg and Duiwelskloof (Pretoria) respectively. In May 1998, reportedly at the request of Jesse Duarte, the Independent Complaints Directorate (ICD) launched a probe into these police investigations against Mbuli. An affidavit was reportedly obtained from a person who saw witnesses being coached to identify Mbuli. When the Randburg case went to trial, Magistrate George Andrews found the state had insufficient evidence. He found that the witness, Greg Van Der Merwe, had only a fleeting glimpse of his attacker and would not have been able to recognize Mbuli. The state also could not show that Mbuli had ever had the loot (R230 000) in his possession. In the Duiwelskloof charge, the owner of the bottlestore picked out Mbuli at an identity parade - but none of his staff could do so. The ICD is still finalising its investigation.

· The day before Mbuli's trial began on June 22, 1998, one of the two arresting officers, Sergeant Venter, committed suicide for no apparent reason. As a result the state's case against Mbuli relied solely on the evidence of Inspector Brits.

· The evidence of a cleaner at the bank, Alfred Ramela, was scrapped from the court record because he changed his evidence. In his statement to the police he identified all three accused as the robbers, but in court said he had never seen them before. Ramela had been with Brits and Venter in the police car when the arrest was made.

· In January 1999 the ANC issued a statement disassociating itself from Mbuli, saying it had not sent its officials to visit him in prison. "The ANC has nothing to do with the criminal charges Mbuli faces," said the statement. "Mbuli's innocence or guilt will be determined by the court process, whose independence the ANC respects." Mbuli, the former United Democratic Front activist, says the ANC has abandoned him.

· In 1996 the SABC was asked by IFP MPL Nomthandazo Mkhize to ban Mbuli's song "KwaZulu-Natal" from the airwaves. In the song Mbuli sings about politicians who place their political ambitions above the people and blames fighting within political parties as a source of violence.

If there is a conspiracy the obvious question is why does Mbuli not make public his specific allegations regarding the drug dealing? Mbuli himself told the court at the trial that no one would believe him if he were convicted. And Suzman says: "He has no hard evidence at the moment. Putting him in prison has certainly prevented him from obtaining that evidence."

Mbuli was arrested eight times during the apartheid era because of his anti-apartheid work and spent six months in solitary confinement. Now, innocent or guilty, Mbuli is a victim of the new South Africa's overburdened, painstakingly slow and sometimes capricious criminal justice system. He applied for bail three times while the state took eight months to bring him to court. All the bail applications were refused, partly on the testimony of Fabricius, who linked him to other crimes. Mbuli's supporters drew angry comparisons with the granting of bail to farmer Nicholas Steyn, arrested for the killing of baby Thobile Angeline Zwane in April 1998. Suzman describes conditions in Pretoria prison, where he spent most of time on remand as "appalling" - 64 people, many of them suspected murderers, in one cell with one toilet and four people to a mattress. At one stage, Mbuli joined a hunger strike. On one of the days of his trial a newspaper reported that the court adjourned early because of a World Cup soccer match.

After his conviction, it took 18 months for Mbuli's first appeal to be finalised. It has been 10 months since that judgment, but a date for his next appeal has not yet been set: Judge Van Der Walt, who had to wait for the recorders to type up the proceedings, took more than four months to file his written judgment, thus preventing Mbuli's lawyers from proceeding with the appeal.

Mbuli's latest album, a collection of greatest hits, is entitled "Born free but always in chains". One of his new songs, "Bank, Bottlestore and Businessman", ends with the line, "The truth is yet to come and the truth shall set me free."

Jean Redpath, a qualified attorney, is a writer and
researcher.

Focus 23, September 2001