In prison for 17 years for a crime they didn't commit, Fusi Mofokeng and Tsokolo Joseph Mokoena were promised they would be home for the holidays.
Six weeks ago, Jomo Nyambi, the head of the petitions committee in the National Council of Provinces, took the good news to Fusi Mofokeng and Tsokolo Joseph Mokoena, who are incarcerated at Kroonstad Prison.
Nyambi told the two men that at last, after 17 years in jail for a crime they did not commit, they would be at home for Christmas. He said that “finally, it is true”; after everything the two had lived through, those in power had found a relatively quick way to have them released.
I accompanied Nyambi and remember that as he iterated and reiterated his news, smiles slowly transformed the sombre, cautious expressions on the faces of Mofokeng and Mokoena.
Nyambi also grinned broadly that morning: he had been hustling for close to a year to have the men released and had not foreseen just how difficult it would prove to be. “We’re going to celebrate Christmas together,” Nyambi said.
He explained that the solution agreed on by the collective of legal brains of the departments of justice and correctional services, was that Mokoena and Mofokeng’s names would be put before the National Council for Correctional Services (NCCS).
The NCCS, headed by a judge, sits four times a year and recommends (or does not) parole for specific inmates—to the minister of correctional services. Parole had become an option, Nyambi explained to the men, due to a Constitutional Court judgement delivered on September 30: Paul Francious van Vuren vs. Minister for Correctional Services and Others (CCT 07/10).
But now it looks as though Mofokeng and Mokoena will not be home for Christmas and that yet again they are going to suffer for being in the wrong place at the wrong time.
In 1993, Mofokeng and Mokoena, then aged 25 and 32 respectively, were jailed for life for their alleged involvement with an African National Congress self-defence unit (SDU) that killed a policeman and caused brain damage to another on the outskirts of Bethlehem.
Even though the trial court acknowledged that Mofokeng and Mokoena had not been present at the shootings, they were found guilty in terms of “common purpose”.
In 1995, the surviving SDU members and Mofokeng and Mokoena went before the TRC. The SDU members were given amnesty. But Mofokeng and Mokoena—unable “to tell the truth” and to apologise, because they had not done anything—were refused amnesty and sent back to jail.
In August 2009, Mofokeng contacted the Wits Justice Project (WJP), which investigates miscarriages of justice, and Bethlehem ANC members sent a petition to Nyambi. The WJP and Nyambi started looking for a way to free the men.
Legally, the situation turned out to be knottier than expected. Having to arrange a “re-trial” or appeal would take years. By September-October, a temporary solution was reached: parole. This would get the men out of jail as quickly as possible. Other details could be sorted out later.
Then earlier this week disaster struck.
It emerged that on December 1 and 2, when the NCCS met, confusion about the interpretation of the Van Vuren Constitutional Court judgement led the NCCS not to consider the placement of any “lifers” at all on parole. (According to the minister, there are 483 cases, besides Mofokeng and Mokoena’s, requiring attention).
The reason for this was that the NCCS interpreted the Constitutional Court’s order as having removed its jurisdiction to deal with lifers sentenced before 1994.
When the Constitutional Court ordered that Van Vuren—sentenced to death, commuted to life, before 1994—had to be considered for parole “with immediate effect”, it ordered certain parole bodies (the Case Management Committee, the Correctional Supervision and Parole Board, and the minister) to do so.
But the court did not mention the NCCS.
However, Mapisa-Nqakula told Business Day that she could not grant anyone parole without a favourable recommendation from the NCCS. Therefore she had to get clarity from the Constitutional Court before granting any paroles. This will not happen till February 2011.
Mofokeng said this week that he and Tsokolo felt gutted by the latest news.
“This time it really looked as though we’d get out. We thought we’d be home for Christmas. But it doesn’t look like it any more,” Mofokeng said.