Late-morning on Thursday, a delegation from parliament, headed by Archibold Jomo Nyambi of the National Council of Provinces (NCOP), met Fusi Mofokeng, 42, and Tshokolo Joseph Mokoena, 49, in the office of Oupa Moleke, deputy director of the Centre A at Kroonstad prison.

The delegation was there to "report" to the two men on whether and when they might get out of jail, as required by parliamentary rules on the rights of petitioners.

Mofokeng and Mokoena have been in prison for 17 years for crimes that it seems they did not commit. Their trial record shows they were convicted mainly on the evidence given by a man, now dead, who later admitted giving false testimony as a result of pressure from the security police, coupled with the promise of a pay-off.

Their case has been taken up by the NCOP's Petitions and Private Members' Legislative Proposals Select Committee that is chaired by Nyambi. After being alerted to the plight of the men and having met them a couple of months ago, Nyambi arranged for his committee to be briefed by the departments of justice and correctional services and by the state law adviser, Enver Daniels.

The committee heard at the end of last month that it appeared that Mofokeng and Mokoena had been victims of a miscarriage of justice and that the best option for having them released quickly was in terms of section 82 of the Correctional Services Act, 1998 (Act No 111 of 1998), which gives the state president the power to remit any part of a sentenced offender's sentence.

For the president to use the powers invested in him by section 82, the person or people to be pardoned need not admit guilt, apologise or anything of this nature. (Part of the four-person delegation, "Mum" Jabu Sosibo, whip of the petitions committee in the National Assembly (NA), said: "Maybe it is this society that owes the two of them an apology.") This is an important point when it comes to Mofokeng and Mokoena because, notwithstanding 17 years in jail and another three until parole (if they are not pardoned now), they continue to maintain adamantly that they are innocent and to refuse to admit any culpability.

In 1993, Mofokeng and Mokoena - then aged 25 and 32 respectively - were each jailed for life for their alleged involvement with an ANC self-defence unit (SDU) that killed one policeman and caused permanent brain damage to a second, near Bethlehem in the Free State.

They were each sentenced to an additional 18 years for attempted murder and conspiracy to commit robbery. This related to the state allegations that Mofokeng and Mokoena had conspired with the SDU to rob a smallholding in the area, an aborted operation during which a local farmer was shot in the stomach.

Even though the court acknowledged that Mofokeng and Mokoena had not been present at the killing and shootings, the two were found guilty in terms of having had a "common purpose" with the SDU members.

In 1995, Mofokeng and Mokoena were visited by an ANC delegation and told to apply for amnesty at the TRC. This they did. But, in what would become a massive and tragic irony, they also told the truth.

This was: that they had not been involved in the shoot-out, had no political motivations of any kind, did not know how to handle a weapon, and were not members of the SDU or the ANC. Donald Makhura, the SDU commander, testified before the TRC that the two men had had nothing whatsoever to do with his unit.

"This being the case," said the TRC officials before whom they appeared, "you have come to the wrong place; we cannot give you amnesty".

Makhura and the others were given amnesty but Mokoena and Mofokeng stayed behind in prison.

Nyambi, accompanied besides Sosibo by Kgoshi Mokoena, also an ANC MP, told the men that the decision of his committee to help them was across party lines and it involved the whole of parliament (hence the presence of Sosibo from the (NA).

The options presented to his committee were three: that the case be re-opened (very time consuming); that the men be paroled (they not entitled to this until 2013 and would have to indicate some level of remorse - which they are not willing to do because they say they are innocent); or a section 82 parole, which appears to be the fastest option.

Nyambi said that for the president to invoke section 82 of the CSA, the pardon needs to be recommended to the president by the Minister of Correctional Services, Nosiviwe Mapisa-Nqakula. She had already been briefed and is scheduled to meet formally with his committee in the week commencing 17 May.

Nyambi said that his committee would "not go into recess" [in the first week of June] if the Mofokeng/Mokoena matter had not been laid to rest.

"We are committing ourselves to you," Nyambi said, concluding the formal part of the proceedings.

Nyambi then told Moleke and Thabo Sejale, acting area commissioner for the DCS, who had also joined the meeting, that during an earlier visit to Mofokeng and Mokoena, Nyambi and colleagues had tried to slip the two men some money - close to R2 000 - an act contrary to prison regulations.    

But, although there had been no prison authorities anywhere near, Mofokeng and Mokoena had told the parliamentary delegation to hand in the money for them, as per the regulations.

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Comment:  

There were no reporters or camera people to be seen anywhere near the gates of Kroonstad Prison on Thursday when the parliamentary delegation arrived to see Mofokeng and Mokoena on Thursday. In fact there has been no coverage - other than in Die Volksblad on 1 May by Kroonstad correspondent Johan Brits - since Jacques Pauw wrote about the two men at the end of August.

Yet Nyambi, a former Mpumalanga youth leaguer, has clearly set his heart on, and tied his career to, this issue. And if things go according to plan - if Mapisa-Nqakula and Zuma apply their minds, if they see the political capital that could be earned from releasing the two men rapidly, and if they act swiftly - the release of Mofokeng and Mokoena could be one of the government's big coups of this 2010 world cup "era".

Certainly, as we know, Zuma is not going to get away easily with pardoning, say, Schabir Shaik or Eugene de Kock. But no one in his or her right mind could complain about the release of Mofokeng and Mokoena - especially as they have been left where they are largely as a result of the lackadaisical attitude of the ANC.

* Gordin is the director of the Justice Project of the Wits Journalism School (WJP). THE WJP investigates miscarriages of justice.

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