For Fusi Mofokeng and Tshokolo Joseph Mokoena, the question during the past two decades has not been whether there exists a light at the end of the tunnel - but whether there is a tunnel at all.
Mofokeng and Mokoena have spent 17 years in prison for a crime that it seems they did not commit. They have petitioned people from President Thabo Mbeki to Desmond Tutu, the Human Rights Commission, the African National Congress (ANC), and the department of justice.
Most of these people or organisations have not replied, repeatedly fobbed them off, or said they cannot help. But yesterday morning at 10, suddenly a tunnel opened up and at its end there was a not-too-shabby light.
It opened up for Mofokeng and Mokoena in a committee room in a largely deserted parliament - most members are absent this week on "constituency duty" - occupied by the Petitions and Private Members' Legislative Proposals Select Committee of the National Council of Provinces, chaired by Archibold Jomo Nyambi, an ANC MP from Mpumalanga.
Mofokeng and Mokoena's story
In 1992 an ANC self-defence unit (SDU), commanded by a high-ranking ANC underground officer, Donald Makhura, came through Bethlehem in the Free State, ferrying arms to cadres in KwaZulu-Natal. The unit had been ordered that it was not allow itself to be disarmed, that it had to shoot its way out of any sticky situation.
One of the SDU members was the brother-in-law of Mofokeng, then 25 years old and a low-level employee at Checkers. The SDU stayed over at the house where he lived.
The next day the SDU left in a bakkie. But when it broke down just outside Bethlehem, the SDU members were approached by two police constables. The unit members opened fire, killing one of the policemen while the other sustained permanent brain damage. A farmer was also shot in the stomach when he tried to pursue the SDU.
Police launched a manhunt for the killers, shot dead two, while two escaped to Lesotho. Others hid at the house where Mofokeng lived in Bethlehem. The police caught them all - and, nine months later, six men appeared in front of former Free State Judge President PJ Malherbe.
Makhura, three SDU members, Mofokeng and Mokoena were charged with murder, attempted murder and conspiracy to commit robbery. The state alleged that Mofokeng and Mokoena had conspired with the SDU to rob a smallholding in the area. The state relied on the evidence of a childhood friend of Mofokeng's, a man called Thabo Motaung.
Motaung, who died a few years later, later went to see Mofokeng and Mokoena in jail. He told them that, under intense pressure from the security branch and having been promised money, he had given false evidence against them.
Everyone charged was given a life sentence for murder, even though the court acknowledged that some of the state's evidence was a little questionable.
Even though the court also acknowledged that Mofokeng and Mokoena had not been present at the killings, the two were found guilty in terms of being part of the "common purpose" of the others.
The ultimate irony
In 1995, Mofokeng and Mokoena were visited by an ANC delegation and told to apply for amnesty before 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. 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. Mokoena and Mofokeng stayed behind in prison.
One of the most obvious proofs of the innocence of the two men was that if they had not continued to insist on their "innocence", they would have probably been given amnesty and have been hailed as struggle heroes.
"But," Mofokeng said to me when I visited him a month and a half ago, "the truth is the truth. I was not going to lie. We had nothing to do with any of that stuff. I can't handle a gun. I wouldn't know what to do with one."
I had come to visit Mofokeng and Mokoena because Mofokeng had written to the Wits Justice Project in about August last year and my predecessor at the WJP, investigative journalist Jacques Pauw, had investigated their story and written about it.
Nyambi
A few weeks ago, Jomo Nyambi said to me: "I left Kroonstad [prison] traumatised by the injustice that I encountered there in the persons of Fusi Mofokeng and Joseph Mokoena."
Nyambi, chairman of the Select Committee on Petitions and Members' Legislative Proposals in the NCOP, said this after he and some members of his committee had met Mofokeng and Mokoena. At the beginning of March they had received a petition from the men via someone in the Kroonstad ANC.
"I immediately arranged for an urgent meeting of my committee. Unfortunately not all the necessary documentation was available in Cape Town. But I soon travelled to Kroonstad where committee members and I met the regional commissioner, members of the parole board, and of course Mofokeng and Mokoena," said Nyambi.
Nyambi said it was crystal clear, after meeting the two men, that there had been a massive miscarriage of justice in their case; that he had immediately written to the president's office and the ministry of justice; and that, although he did not want to pre-empt any decisions that would be made in parliament, he believed that following a meeting of his committee, there would at last be a light at the end of the tunnel for the men.
"There is absolutely no reason for the two men to be in jail," Nyambi said. ‘This is one of the most serious and tragic injustices I have ever come across."
NCOP, Thursday April 29 2010
Nyambi's committee convened yesterday and heard presentations from chief state law advisor and a representative of the department of correctional services. The chief state law advisor, Enver Daniels, outlined two of the options available to the two men: requesting a pardon, which does however require the admission of wrongdoing (which the men will not do); or applying to reopen their case, which generally requires new evidence.
Ruben Mbuli, Director: Legal Services, Department of Correctional Services, discussed the option of parole for the two men - but this would be possible in 2012 only, and besides, once again, "admission of guilt" is generally required for parole.
It appeared that the best option was in terms of Section 82 of the Correctional Services Act, which allows the president the power to grant a pardon.
"Members," reported the Parliamentary Monitoring Group yesterday, "noted that the petitioners were in an extremely invidious position. They could well have been released had they agreed to admit guilt, but had consistently maintained their innocence and seemingly refused to accept the stigma of a crime that they did not commit.
"Members agreed that they seemed to have been convicted on the basis of circumstantial and perhaps suspect evidence and that they may have been poorly served by their lawyers, who had not cross-examined critical evidence.
"Members said that the tense political circumstances and the stance of the apartheid-era courts in 1992 were further factors that should be taken into account, and one suggested that the fact that leave to appeal was refused was in itself an indication that the court had not reached a correct decision."
The committee members agreed that that they needed to move as fast as possible and that the minister and director general of Correctional Services, and their legal team, would be asked to attend a meeting of the committee next week.
The matter would be discussed fully with them so that the minister "could convey fully informed recommendations to the President in respect of a Section 82 application for pardon. The chairperson would ensure that this decision was also conveyed to the Chairperson of the NCOP and to the petitioners."
If ministerial approval is given, the committee will formally approve the recommendation that Mofokeng and Mokoena be pardoned, report it to the NCOP chamber for formal approval, and then the release will happen.
In the 18th year of their incarceration, it looks as though 2010 could be a good year for Mofokeng and Mokoena.
* Gordin is the director of the Justice Project of the Wits Journalism School (WJP). THE WJP investigates miscarriages of justice. Additional reporting by members of the Parliamentary Monitoring Group (PMG) (http://www.pmg.org.za/)
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