Where is the justice?

2009-10-09 14:28

ON the surface, Fusi Mofokeng and Tshokolo Mokoena look like just another two orange-clothed jailbirds that are incarcerated in a high-security prison. Both have been convicted of murder and are serving life sentences.

Both claim they had nothing to do with a shooting in which a policeman died and two others were wounded.
 
While many convicts claim that they’re not guilty, the difference is that Mofokeng and Mokoena might be right.

They are almost certainly innocent and have spent the past 17 years in prison for a crime they did not commit.

Over the years the two have petitioned everyone from the state president to Desmond Tutu, the Human Rights Commission, the African National Congress (ANC), the public protector and the ­Department of Justice?– all of whom have either not bothered to respond or said they couldn’t help.

Yet evidence has existed for the last 14?years that security policemen might have bribed Mofokeng’s childhood friend to implicate them in murder, attempted murder and conspiracy to commit robbery.

Both men have lost everything.

The last time Mokoena saw his daughter, Dipova, was in 1992 when plain-clothed ­security policemen knocked on his door and bundled him into the back of a police van. Both men have lost their parents while in prison and are receiving almost no visitors.
 
Mofokeng and Mokoena’s story started in 1992 in Phola Park, east of Johannesburg. The township was engulfed in flames as war raged between the Inkatha Freedom Party and the ANC. At the centre of the conflict was a foreign-trained Umkhonto we Sizwe (MK) cadre by the name of Donald Makhura and his self-defence unit (SDU).

On the first of April of that year, a high-ranking ANC official ordered Makhura to load up five AK-47s and relocate to Inanda in KwaZulu-Natal to fight Inkatha in their backyard. That night, Makhura and seven SDU members left in a bakkie.

The unit travelled via Bethlehem because one of the SDU members had to collect money from someone. Mofokeng, the brother-in-law of one the members, lived at the house they visited.

“I was scared of them,” said Mofokeng, then 25 and a worker at Checkers. “I knew they were SDU or MK but we didn’t talk much.”

The SDU left again late that afternoon. Their bakkie broke down outside Bethlehem. A police car stopped and when the two constables got out, the unit opened fire. One policeman died and the other sustained permanent brain damage. A farmer was shot in the stomach in a later shoot-out.

“We had orders not to allow the police to disarm us. We had to shoot our way out,” said Makhura.

Police launched a manhunt for the killers and shot dead two. Some made it to the ­Lesotho border; others went to hide at the house in Bethlehem.

“There were lots of police and Casspirs in the township,” said Mofokeng. “I was very scared, but there was nothing I could do.
I just stayed in the house.”

Late that night, the police raided the house. Mofokeng was arrested with four SDU members.

Later that night police raided another house, that of Mofokeng’s best friend, Mokoena, a 30-year-old welder.

“They hit me like nobody’s business,” he said, “and then they said I had brought MKs from Phola Park to kill police and rob a farm. I told them I had never seen those ­people.”

Nine months later, six men appeared in the dock in front of former Free State Judge President PJ Malherbe.

Makhura, three SDU members, Mofokeng and Makhura were charged with murder, attempted murder and conspiracy to commit robbery. They pleaded not guilty.

The state alleged that Mokoena and Mofokeng had conspired with the SDU to rob a smallholding in the area. In order to prove this conspiracy, the state relied on a single witness: Thabu Motaung. He was Mofokeng’s childhood friend.

“I was shocked to see my friend in court,” said Mofokeng. “I had no idea what he was talking about.”

Motaung testified that a few months before the shooting, Mofokeng and Mokoena had conspired to rob the smallholding and got the people from Phola Park to do it.

Makhura told the court that Mofokeng and Mokoena had nothing to do with them. He refused to reveal the real purpose of their mission.

Malherbe accepted that neither Mofokeng nor Mokoena were present at the ­shoot-outs and that Motaung’s evidence was “not without its shortcomings”. He nevertheless convicted both according to the ­common-purpose principle on all charges. All the ­accused were sentenced to life imprisonment.

“I felt very sorry for them,” said Makhura. “They had nothing to do with this.”

Two years after the court case, Motaung walked into Kroonstad Prison and came face to face with Mofokeng. He was accompanied by Mofokeng’s two uncles, Lefu and Stephen.

“Thabu said the police had told him what to say and that he had given false evidence,” recounts Lefu, an estate agent in Bethlehem. “The police had promised him money, but never paid him.”

Motaung allegedly agreed to make a statement and come back to Kroonstad. However, he died before this happened.

Mpuo Motaung knew her son had gone to Kroonstad to see Mofokeng, but didn’t know what it was about. “He never spoke about that case,” she said. “He went to see Fusi and then he died. He was sick.”

One of the Bethlehem security policemen who investigated the case was Inspector T Maphalala, now retired after 39 years of service. He said he did not know anything about the set-up.

Another investigating officer Captain Hannes Steyn called the set-up “utter ­rubbish”.

Mofokeng and Mokoena were visited by an ANC delegation in 1995 and told to apply for amnesty.

They both stated that they had not participated in the crimes and had no association with the SDU.

In November 1998, Mokoena, Mofokeng, Makhura and two members of the SDU appeared before an amnesty committee in Welkom. Mofokeng and Mokoena didn’t qualify for amnesty because they had stated that they were innocent.

The committee found that the SDU had acted on orders from the ANC and the shootings had a political motive. Makhura and the others got amnesty; Mofokeng and Mokoena stayed behind in prison.

One of the members of the amnesty committee was lawyer JB Sibanjoyi, today an ANC MP.

He said his heart bled for Mokoena and Mofokeng, but that the TRC was legally prevented from granting them amnesty. “I have no doubt that they are innocent,” he said. “They shouldn’t be in jail.”

“The truth is keeping them inside,” said Makhura. “If they had lied, they would have been out.”

Mofokeng said that shortly after the release of the SDU, a senior member of the ANC’s truth desk, Patience Molekane, visited him and promised to help to get them released.

“That was 10 years ago,” said Mofokeng. “We are still waiting. They’ve done nothing.”

Their 2001 application for pardon to the justice department came to nothing. After complaining to the public protector about the delay Mokoena and Mofokeng were told in 2007 that the minister of justice had decided not to recommend a pardon, but had requested that the minister of correctional services consider releasing them on parole.

Mokoena and Mofokeng have never heard anything from correctional services. They don’t even know when they qualify for parole.

They have since applied for pardon from the president and have even petitioned ANC Secretary-General Gwede Mantashe to intervene.

“The ANC doesn’t care,” said Makhura. “I phoned them time and time again and they just promise. They drive nice cars and have now forgotten about Mokoena and Mofokeng.”

Molekane denied that she had done nothing. She undertook to provide further details, but did not return calls.
The justice department did not answer questions regarding Mofokeng and Mokoena’s petition to the minister.
The correctional services department didn’t respond at all.

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