Former Boksburg prison warder claims unfair dismissal

Johannesburg - Axed Correctional Services officer Themba Mabizela alleges the Department of Correctional Services (DCS) acted harshly by terminating his employment and did not give him a fair trial after being accused of assaulting an inmate, resulting in the prisoner's death.

Mabizela, whose life drastically changed when he was fired from his Correctional Services job in May 2020, said he demands answers as to why he was not given a fair opportunity to present his case before being sacked.

The now 48-year-old former correctional officer was fired following the assault of an inmate that occurred on February 3, 2016. The prisoner is said to have suffered a head injury inflicted using a blunt object, causing his death three days later.

The DSC alleged that the head injury was caused by Mabizela. However, he denied the allegations.

“At the time of the incident, I was on the eastern side of the unit. Without our knowledge, an inmate left his cell from the western unit.

“We just heard a commotion and ran to that side. We saw other wardens running towards the commotion and rushed after them.

“When we got there, we found the inmate who left his cell without authorisation, hitting another inmate with a padlock. We tried to disarm him, but he did not co-operate.

“I admit to hitting him with my tonfa on his hand three times, but never his head. That was not enough to kill him,” he said.

Mabizela said they took the inmate to his acting supervisor’s office once they disarmed him. The acting supervisor then told Mabizela and his three colleagues to resume their duties.

“After some time, the inmate was found lying on the floor in a different passage, wet and bloody. I was confused about how he ended up there because we had left him in the acting supervisor’s office.

“But what confused me was that his transfer to the outside hospital was written that he had overdosed. He died after a few days in the hospital," he said.

Mabizela was charged with assaulting an inmate and failing to take an inmate to a medical centre. Following the incident and death of the inmate, Mabizela, with five other colleagues, was suspended for about five months. However, only three were fired.

“We went back to work in the first week of July, but I was redeployed to escorting inmates. Before our hearing in December, an ID parade was done, and one inmate said I was among the three people who were assaulting the inmate before he died after we left him in the office.

“I still say today that it was a mistaken identity. The witnesses said the tonfa of the guard who hit the deceased was broken in the process, mine was still intact, but a colleague of mine, Bob’s tonfa was not,” he said.

Mabizela said the hearing process was unfair because he was not requested to bring his tonfa as part of his evidence or any other form.

He believes that would have spared him from being fired. More than two witnesses placed him at a different location from where the incident occurred.

"People involved admitted to me off the record that I was wrongfully accused. I asked them to come forth with the evidence to help acquit me, but they all refused.

“The supervisor asked me to change my representative because he felt as though my initial representative’s approach was wrong. That did not help either. The person who asked me to change reps turned on me," he said.

Mabizela said he tried in various ways to prove his innocence but failed. His Labour Court document cited that Mabizela could not have caused the inmate's demise based on his version of events.

He said the last few years have been tedious and emotionally draining. The department laid criminal charges against him in November 2018, but the charges were dropped in August 2019 due to a lack of evidence.

"I lost everything that I worked for over the years. I had put away money for my son's education, but all my investment policies lapsed. I can no longer give him the life I wanted him to have.

“A lot went wrong with my case. People know the truth but refuse to come clean because they want to save themselves. There initially was no incident report when I was being accused of all this," he said.

He said he wants the department to revisit the matter and give him a fair trial which would allow him to prevent his evidence and tonfa to the presiding officer.

Meanwhile, the department firmly stands by its decision that Mabizela was given a fair trial.

“After the incident occurred, an investigation was mandated, and at the conclusion, it was recommended that Mr Mabizela and eight others should appear before a disciplinary hearing.

“The hearing was convened, and four of the alleged transgressors were acquitted, two who were found guilty were given salary suspensions, and three, including Mabizela, were dismissed,” said DCS spokesperson Singabakho Nxumalo.

In addition, the department said whenever an employee claims unfair dismissal, they are allowed to refer the matter to a body created in terms of the law to check the employer's action under the Labour Relation Act.

“Mabizela has exercised that right, and the body, the Bargaining Council, found the employer’s action to be above board.

“Mabizela through his union of choice, Popcru, referred the matter to the Labour Court and served the department with a notice of motion. Thus far, we are of the opinion that the matter is still pending at the Labour Court,” Nxumalo said.

Furthermore, Nxumalo pointed out that an eyewitness placed Mabizela and two other co-workers at the centre of the incident.

“The eyewitness described the brutal assault in detail, and Mabizela was there to refute the evidence, which he did not do. Even during the arbitration hearing, he admitted assaulting the inmate.

“Whether the tonfa broke or not was not a requirement. The requirement that the department had to prove, which it did, was whether Mabizela assaulted an inmate.

“The answer to this question was a yes, and Mabizela admitted to having taken part in the assault of the inmate. Therefore, his action was unlawful. Assault by its very nature is a criminal offence and an offence in the department,” Nxumalo said.