Johannesburg - Soft-spoken teacher Mu-Aalima Amyna (Amy) Fakude is finally free but forever in chains – until she clears her name for what she asserts was a wrongful conviction and incarceration for the murder of her husband 29 years ago.
Her parole ended on August 13, but freedom means little because she believes there has been an injustice.
“I am the victim of a grave miscarriage of justice, I was falsely accused, arrested on the 9 November 1995, denied bail, then tried and convicted for the murder of my husband, Mandla Anthony Aarif Fakude,” she said.
“The truth must come out. I killed no one,” said Fakude, who served as the Gauteng Provincial Speaker of Women’s Parliament in 2014 and is studying towards a doctorate.
The mother of four, from Ekurhuleni on the East Rand, was sentenced to 35 years’ imprisonment on February 13, 1997 after her husband was killed in 1991.
She was arrested along with family members and others in connection with his death.
Her husband was a financial adviser for insurance and financial services at Southern Life. The couple were married on October 13, 1975.
In court, family members alleged that although the couple were living together, their relationship was not harmonious.
When Fakude was arrested, her husband’s vehicles, a Ford Sierra and a VW Jetta, were stolen.
She was convicted on November 18, 1996 in the Witwatersrand Local Division of the High Court by Judge Lucy Mailula.
“I was punished for a crime I did not commit. My arrest for the murder of my husband was based on fraudulent evidence. The evidence presented had been ‘ trumped up’. There was no evidence that put me at the scene of the crime.
“The scene of crime information had disappeared with the original docket that the investigating officer told the court went missing from police records. I felt helpless in the situation. I believe that the motive for the false accusations of my late husband’s family is sinister,” she said.
Fakude has made more comments in an affidavit she plans to use in her fight to clear her name.
The appeals judge, Justice RM Marais, said although Fakude was described in court as the instigator and mastermind in the plot to kill her husband, “the evidence falls short of establishing beyond reasonable doubt that such was indeed the case”.
“Her brother may have played that role. Be that as it may, I am unable to see any good reason for sentencing accused 1 (Fakude) any differently from accused 3 and 4. She too should have been sentenced to 25 years’ imprisonment.”
Justice Marais said Fakude was found to have been party to a conspiracy to murder her husband and that the plan was executed by the remaining accused, her brother and three others.
They waited for her husband on the night of his death.
When he arrived, he was attacked with pangas and assegais, hacked and stabbed to death in the street.
Justice Marais said Fakude remained in the house while her husband was being murdered, left the deceased lying in the road after the attack ended and feigned shock the next morning when his body was found.
But Fakude says she’s innocent and her conviction was wrongful, based on:
The theft and disappearance of the original police docket resulted in the disappearance of all the evidence that was collated shortly after the deceased’s murder. This means that original evidence was never made available during trial.
In place of the original evidence, fabricated evidence to place the accused person at the scene of crime was adduced.
The testimony of the witnesses called was fabricated and witnesses were forced, coerced, coached and even promised money for adducing false evidence. Witnesses who visited her in prison confirmed this.
When Fakude raised a complaint in court about this, the investigating officer who was accused of threatening witnesses, was sent alone to fetch the witnesses who were intimidated by him.
“I certainly declare that the witnesses in my case were falsely identified, as I subsequently learnt from them that each witness had been paid R25 000.
"The judge was misled and misdirected, as was the case in my trial. My experience was that she appeared to assume a bias against me and to dislike me.
“She repeatedly asserted to my defence attorney during trial: ‘Your client is intelligent’, as if intelligence heightens the propensity for women to kill their husbands.
“I became concerned that my trial had been totally improperly conducted, with dire consequences for myself and my family. Upon sentence, I was not allowed to appeal against conviction.
"All efforts to change that needed money, which I did not have,” she said.
On November 19, 2000, the Supreme Court of Appeal in Bloemfontein reduced Fakude’s sentence from 35 years to 25 years, with comments almost vindicating her.
She spent 15 years in prison, from 1995 to 2010, largely in the Johannesburg Prison Correctional Facility, using her time behind bars to establish schools in every prison she was transferred to.
“I devoted my life to the education of fellow inmates across prisons in Gauteng and Mpumalanga, an initiative that catalysed transformation that endures to date,” she said.
She was released on parole on September 1, 2010. Her parole ended on August 13 this year.
Fakude wants to clear her name and make a life for herself.
She said that after she was imprisoned, her widow’s pension was stopped, along with her children’s monthly allowance. Medical aid for her and her children and all accruing benefits from her husband’s business were withheld.
“I survived by the mercy of the Almighty. No one would employ me with a criminal record despite my high level of education, professional skills and academic prowess,” she said.
“My wrongful incarceration happened almost 5 years after the untimely death of my husband on the 3rd February 1991. At that time, various statements were made by people, police and forensic experts deemed relevant to do so, including statements by the police."
Fakude fights incarceration
AMY Fakude said that more than four years after her husband’s death on November 9, 1995 at midnight, members of his family arrived at her home accompanied by police officers.
“They had presented the SAPS with evidence that had been connived against me. I was arrested, kept in police cells, denied bail and put on trial for the murder of my husband.
“Upon my arrest and trial, the file containing the original case docket and all the information collated at the time my husband was found dead went missing from police records and was never recovered.
“The initial investigating officer appointed to the case disappeared and was never traced. The evidence in my defence disappeared when my file disappeared from police records. I stood trial before Judge Lucy Mailula in the South Gauteng High Court,” she said.
Fakude said she was represented by an attorney who she could not afford to continue paying before the Legal Aid Board appointed the same attorney on her behalf.
“The prosecutor in my case was particularly vicious. No one would listen to me. I was convicted, sentenced and sent to jail,” she said.
When the judge pronounced her verdict, she asserted that had the death penalty not been repealed, she would have sentenced me to death; an utterance that to date traumatises me”.
Fakude has made several unsuccessful efforts while incarcerated to have her case reviewed by the SA Human Rights Commission and public protector.
“There appears to be no remedy for my wrongful conviction despite the devastating impact my incarceration has had on my children’s lives, and on my relationship with them that was interrupted for the 15 years of my incarceration.
“My husband’s mother often visited me in jail and wept each time, assuring me that she knew the truth. She would lament: “My heart is bleeding for you, my child”.
Fakude believes that the outcome of the trial for the alleged murder of her husband impugned her integrity and landed her with a false criminal record. “I was unable to secure redress for my wrongful conviction despite my many efforts. I resigned myself to never giving up my stand for truth and justice in a system that delivered a grave injustice in my case.
“I have experienced obstacles in being unable to correct a wrongful conviction for a crime I did not commit. The trauma of a wrongful conviction is perpetuated in the practice of having to apply for the expungement of a criminal conviction or a presidential pardon in order to secure a clean record. This has implications for any application I might make for employment, especially in the public service or for a passport or visa.”
Fakude said she is determined to fight to clear her name, although “the odds are against any person” who is wrongfully convicted for a crime they did not commit securing a cleansing of their record and a declaration of their innocence”.
| Naidu is a journalist at the Wits Justice Project (WJP). Based in the journalism department of the University of the Witwatersrand, the WJP investigates human rights abuses and miscarriages of justice related to South Africa’s criminal justice system
Sunday Independent