Double murderer says State owes him for extra five years

Date: 15 July 2018 By: Andries van Zyl

A convicted double murderer is planning to sue the State for compensation, claiming that he was wrongfully incarcerated for an extra five years on top of his original 20-year life sentence.

The now 57-year-old Mr Reuben Mashudu Netshiavha from Makhado saw the outside of a prison for the first time after 25 years on 5 March this year. He was convicted on two counts of murder and one of assault at the young age of 32 by the High Court in Johannesburg and sentenced to life imprisonment. He started serving his 20-year sentence on 18 March 1993.

At face value, many readers might ask what exactly Netshiavha’s defence is going to be, seeing that a life sentence constitutes 25 years behind bars. There might also be those who firmly believe that a life sentence should mean just that: Spending the rest of your life in a prison cell. The South African justice system, however, makes provision that even a person who received a life sentence can be set free when a certain number of years had been served. This argument forms the basis of Netshiavha’s planned claim against the State.

As a young man, Netshiavha was no angel. “To my mind you deserve the death sentence, but in all the circumstances of this case I just cannot say that that would be the only appropriate sentence. You have proved yourself to be an utter enemy of society,” said then Judge Schabort in his sentencing remarks. Netshiavha himself admits that he had made a mistake when he killed his father-in-law and the father-in-law’s 16-year-old son, while almost killing his consort in a fit of rage. “But I served my time,” said Netshiavha.

The dilemma came when authorities had to decide how much time Netshiavha should serve. He was originally sentenced to life under Act 8 of 1959 of the Correctional Service Act which, at the time, stated that a sentence of life constituted a 20-year prison term.

Netshiavha, however, ended up serving 25 years, after legislation changed and Act 8 of 1959 was replaced by Act 111 of 1998. In a nutshell, Act 111 of 1998 increased the old 20-year life sentence to 25 years, meaning that all inmates receiving life sentence after 1 October 2004 may not be placed on day parole after serving at least 25 years of their sentences. All inmates sentence before 1 October 2004 would serve out their life sentences under Act 8 of 1959. In short, Netshiavha was only to serve 20 years.          

In an interview with the Limpopo Mirror, Netshiavha described his long battle with authorities, first to have him released on day parole and later just to be released as he had already exceeded his original sentence.

It all started with the Pretoria High Court ruling in favour of convicted murderer Cornelius Johannes van Wyk on 26 November 2012. Van Wyk took the minister of Correctional Services to court, arguing that as he was convicted under Act 8 of 1959, he was eligible for parole after serving 13 years and four months of his 20-year sentence.

The older residents of the Soutpansberg might remember Van Wyk as the man convicted for his role in the brutal murder of three people on 14 October 1991 in what was to become known as the Roux murders. Van Wyk and Matthew White killed Mrs Maria Roux and two of her farm workers, Mr Wilson Dobani and Ms Makwarela Dobani, on a farm just outside of Louis Trichardt while in search of firearms for an extreme right-wing movement called the National Socialist Partisans (NSP). White, and another member of the NSP Jurgens Grobler, died following a shoot-out with police a couple of weeks after the murders near Noenieput in the Kalahari.

Van Wyk was convicted on 11 charges including three counts of murder for which he received three life sentences on 5 September 1994.

“This man [Van Wyk] was the man who fought for all prisoners who were sentenced under Act 8 of 1959. I was with him in C Max,” said Netshiavha. On 26 November 2012, the Pretoria High Court ruled that Van Wyk must be placed on day parole as from 1 January 2013.

Netshiavha also base his argument for compensation on the successful court case by yet another prisoner, Paul van Vuuren. Van Vuuren was convicted of, among others, murder and robbery with aggravating circumstances. He was sentenced to death on 13 November 1992, but his death sentence was commuted to life imprisonment on 20 September 2000.

In both Van Wyk and Van Vuuren’s cases (2010) against the State, the court ruled in their favour, stating that all inmates sentenced to life before 1 October 2004 would be dealt with under Act 8 of 1959 and that they would not only have to serve 20 years, but that they were also eligible for parole after only serving 13 years and four months of their 20-year sentence.

Netshiavha said that following Van Wyk and Van Vuuren’s successful court cases, his name was one of the 209 names which appeared in several daily newspaper in April 2011 whereby the then Minister of Correctional Services, Ms Mapisa-Nqakula, called for victim participation in the parole consideration of offenders, especially offenders sentenced to life before 1 March 1994. “My name was there, number 131. From Limpopo, we were 12 or 14. All were released except me,” said Netshiavha.

According to Netshiavha, he should have been released in March 2013. “I do not know why they didn’t release me ... I once asked them and was told that they could not find my file,” said Netshiavha.

When Netshiavha went to jail, he could not read or write. “I wanted to create a better future for myself. I started school from ABED (Adult Basic Education) level 1 until I passed Grade 12 … So, when I was at school in prison, I did law subjects. I knew that what they were doing was not right,” said Netshiavha.

Being able to now read and write, Netshiavha started his own paper battle against the prison system, a system which saw him starting the serve his sentence at C Max in Pretoria, being transferred to Matatshe Prison (Thohoyandou) in November 1996, then being transferred to the Kutama Sinthumule Maximum Security Prison in February 2002, only to be transferred back to Matatshe in April 2015.

Netshiavha kept detailed accounts of all his correspondence, including all his applications for parole. All went unheard. “I first applied for parole in 2009 … I think the parole board never exercised their duty in a good manner,” said Netshiavha.

Netshiavha was finally released in March this year, only after he wrote to the Minister of Correctional Services in January. “I took a chance and wrote a letter stating that my attorney indicated that I must be released immediately because I exceeded my sentence. Almost immediately I was called in and informed that the Minister ordered my release,” said Netshiavha.

“I should have been released five years ago. My victims’ family members had forgiven me, because my children were suffering. They (the prison authorities) could give me no explanation as to why they kept me for an extra five years,” said Netshiavha.

He has since acquired the assistance of a local attorney, Mr Hennie Erwee from Musina, who undertook to start legal proceedings against the State for compensation. "It would seem that my client indeed has a good chance of success in court ... I will leave no stone unturned to take action against all parties involved who violated my clients' human rights," said Erwee.

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Andries van Zyl

Andries joined the Zoutpansberger and Limpopo Mirror in April 1993 as a darkroom assistant. Within a couple of months he moved over to the production side of the newspaper and eventually doubled as a reporter. In 1995 he left the newspaper group and travelled overseas for a couple of months. In 1996, Andries rejoined the Zoutpansberger as a reporter. In August 2002, he was appointed as News Editor of the Zoutpansberger, a position he holds until today.

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