Mofokeng & Mokoena: A 19-year trudge to freedom

Jeremy Gordin looks back over the campaign to have the two men released

Very early this (Friday) morning, a 43-year-old man called Fusi Mofokeng will get a lift with a relative from Bethlehem in the Free State to Thokoza township, south-east of Johannesburg, where he will visit his paternal uncle.

There is nothing especially remarkable about this except for one thing: it is more than 19 years since Mofokeng has been to Thokoza. In fact, he was incarcerated, first as awaiting-trial detainee then as a convict, for 19 years, from 2 April 1992 until 2 April 2011.

In the early hours of 2 April 1992 Mofokeng, who was working at Checkers, was swept up, along with a friend, Tshokolo Mokoena, a welder who is five years older, in a security force raid on Bethlehem's Bohlokong township. In those days it was called a "location" - and Fusi and Tshokolo still find it difficult not to use that word.

The security forces, policemen and defence force personnel were beside themselves with anger: a group of black men had opened fire, killing a young Bethlehem policeman and severely injuring another. I have met the second man and, although he is not "brain damaged," as has been averred, he was too severely injured ever to work again and he speaks with difficulty.

What the security personnel did not know then was that the group that had opened fire was about half of an ANC self-defence unit (SDU) under the command of an experienced MK fighter, Donald Makhura.

Carrying plenty of fire power in their bakkie, the SDU had answered a call for help from "brothers" in Natal and was on its way there to help do battle the Inkatha Freedom Party (IFP).

One of the SDU members, Johannes Nxala, was married to Mofokeng's sister (in Thokoza) and he had wanted to get some money from the Mofokeng family in Bohlokong. Hence the SDU stopping off there.

But, on leaving Bethlehem, the SDU members had had an argument and three headed back to the Mofokeng home. It was the other half, who had stayed with the bakkie, which had broken down, whom the police had approached.

And, after they had shot the policemen, some fled into the surrounding countryside. Others were picked up by a farmer who offered them a lift but - in their opinion - was driving them straight to the nearest police station. So they shot him too and also headed for Bohlokong.

The security forces shot two SDU members, one disappeared, and the others were all arrested in Bohlokong, along with Mofokeng and Mokoena.

In the ensuing trial, all the suspects were charged with murder, attempted murder (the second policeman and the farmer) - and robbery.

The "robbery" charged stemmed from evidence given at the trial by a friend of Mofokeng's called Thabo Motaung. He told the court that Mofokeng and Mokoena had "conspired" with the SDU members and that everyone had been on their way to rob this farmer. He also apparently suggested that Mofokeng and Mokoena had taken part in the shootings.

Motaung, now dead, later visited the men in prison and allegedly told them he had "turned impimpi" because he had been offered a reward by the security police and had been tortured as well. All the suspects were badly beaten and generally tortured before the trial.

At any rate, Mofokeng and Mokoena were sentenced in terms of the "doctrine of common purpose" to life imprisonment, along with the remaining SDU members.

Along came the Truth and Reconciliation Commission (TRC). In 1998, all the SDU members were exonerated by the TRC.

However, Mofokeng and Mokoena politely pointed out that they could not apologise and tell the "truth" about a crime with which they had not been involved. They were told to withdraw their amnesty application and to return straight back to jail, without passing Go and without collecting R200 - or anything for that matter.

The ANC's national legal affairs desk promised to take up the matter, and the men also wrote to President Thabo Mbeki and then Archbishop Desmond Tutu. But nothing was ever done for them.

... The years passed until 2009 when Mofokeng, incarcerated in Kroonstad prison, was advised to get to the Johannesburg area where he could be closer to "the media". From Leeuwkop prison, he wrote to my predecessor at the Wits Justice Project (WJP), investigative journalist Jacques Pauw. Pauw was on his way just then to head up an investigative unit at Media24 and he investigated the story and wrote about it in City Press.

In about November 2009 I travelled to Kroonstad - Mofokeng had returned there to be closer to his family and girlfriend - with an English attorney/advocate, Jim Nichol, who specialises in investigating wrongful convictions - and has freed a number of people from jail in the UK.

It didn't take us long to realise that Mofokeng and Mokoena represented a massive miscarriage of justice. The difficulty, however, in terms of re-opening the matter before the Supreme Court of Appeal, was that the "new evidence", required by the SCA for re-opening a case, was the evidence of Motaung - and he was dead and had never signed an affidavit, made a statement, or said anything in the hearing of anyone but Mofokeng, Mokoena and a prison warder who had long since also died.

At the same time that we were investigating the case, one strand of the ANC in Bethlehem - the ANC is badly fractured in the little town - woke up and, together with local churches, put together a petition that came into the hands of Archibold Jomo Nyambi, the chairman of the Petitions' Committee of the National Council of Provinces (NCOP), at the beginning of 2010.

The story grabbed Nyambi's imagination, and though he was told by many of his colleagues not to waste his time on "chancers," he travelled to Kroonstad, talked to the men - and, deeply moved, made their release his cause.

And so the WJP, the Petitions' Committee of the NCOP, ANC members in Bethlehem, and the media started work. It was hard going. The NCOP held a public hearing at which state law experts and correctional service personnel offered their opinions on the Mofokeng/Mokoena matter.

One senior law adviser said the fault did not lie with the trial judge but with the TRC judge ... Another said that the men couldn't get a presidential pardon because this also entails an overt or covert apology for sins committed ... And clearly too some members of government were worried about the recompense issue ... Money doesn't talk, it swears, as Bob Dylan once sagely remarked.

At the end of September last year, the Constitutional Court handed down its Van Vuren judgment. In terms of this, anyone sentenced to life imprisonment before 1994 (and many on death row had had their sentences commuted to life imprisonment) was to be eligible for parole after 15 years.

By November, there was jubilation in the hearts of myself, Nyambi and maybe even Mofokeng and Mokoena, though, given what they'd been through, they were more circumspect.

They were correct to be so. In a bizarre turn of events, the minister of correctional services said there were aspects of the judgment that were incomprehensible to her and her department because they did not refer to the National Council of Correctional Services (NCCS), her chief advisory body.

It was not until the last day of March 2011 that the Court politely told the minister to read her judgments properly - and to get on with things.

In November and December 2010, Mofokeng and Mokoena had completed all the courses that parolees and others have to finish before they are let loose on society, and on 2 April, a Saturday morning, they walked out of Kroonstad prison.

There's a great deal more that could be said about this story. But that's probably enough for the moment. In the meantime, I look forward to drinking a cup of coffee with Fusi at the weekend, somewhere in Johannesburg or Alberton or maybe even Thokoza.

Jeremy Gordin is the director of the Wits Justice Project, which investigates alleged miscarriages of justice. This article was published with the assistance of the Friedrich Naumann Foundation for Liberty.

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