Wally Mbhele
The credibility of the police and the prosecution – led by the Transvaal Attorney General, Jan d’Oliviera – has come under heavy assault from lawyers defending three African National Congress members who were convicted for the 1993 Eikenhof massacre.
Fresh evidence pointing to prior police knowledge of the identity of the real perpetrators of the massacre has begun to emerge as the Eikenhof Three – who claim to have been falsely convicted for the killings – begin a fresh quest for freedom.
The defence team has launched a scathing attack on one of the key witnesses who continually changes his testimony. It is alleged he “was unduly influenced by the attorney general or the police”.
Last week the three brought an urgent bail application before the Pretoria High Court. It was postponed when the judge who sentenced them in 1994, Mr Justice David Curlewis, refused to hear new evidence – although he did agree that another judge could hear new evidence for the bail application.
The three – Siphiwe Bholo, Boy Ndweni and Sipho Gavin – were convicted in 1994 for the gruesome murder of a Vaal Triangle woman, Zandra Mitchely, her son Shaun and his friend Claire Silberbauer.
In March 1993 Mitchely’s car was hit with a hail of AK-47 rifle fire by unknown assailants near Eikenhof in the Vaal Triangle.
The three were arrested and convicted following a controversial police investigation led by the former commander of the notorious Brixton murder and robbery unit, Charlie Landman. They narrowly escaped going to the gallows when the death penalty was abolished.
Instructed by Mohamed Randera, the defence team – led by David Soggot, assisted by Gcina Malindi – charges that the prosecution failed to place certain vital documents before the court which could have proved the innocence of their clients.
Evidence of witnesses who positively identified Azanian People’s Liberation Army (Apla) members as those responsible was not made available to the defence team during the trial. It is alleged that the state also failed to call those witnesses to give testimony.
Police intelligence reports show that at least three schoolchildren saw and identified two Apla operatives who participated in the massacre. Documents showing that one of the witnesses stated that the persons he saw at a police identification parade were not those responsible for the attack was also not produced at the trial.
“There was . a duty on the prosecution to inform defence counsel in the trial of information favourable to the accused and a corresponding duty to make documents available . The obligation arose out of an ethical obligation of the state to make available information . in order that there should be a fair trial,” charges the defence.
The key to the motivation for police switching attention from Apla to ANC members during the investigation was “to provoke in the white population a disbelief in the ANC’s protestations of non-racialism, non-violence and ANC claims to have suspended the armed struggle”.
This happened at a crucial stage in 1993 when delicate constitutional negotiations were in progress with a view to “the surrender of exclusive white power”, says the defence.
The Eikenhof case has also been muddied by a constant changing of statements by two of the crucial state witnesses. At the 1994 trial, Abel Korope destroyed the three’s alibi, and Mziwamadoda Mpunga identified them as the men who hijacked his BMW, which was used in the massacre.
But Mpunga confessed last year that he was twice shown photographs of the convicted men before he was taken to the identification parade to point them out. He made this statement to the deputy attorney general, Anton Ackerman.
Korope confessed in a sworn affidavit to lying in court because he was promised a R250 000 reward by Landman.
The two men have subsequently changed their stories, once again implicating the Eikenhof Three. Mpunga has denied that he “was unduly influenced by the Attorney General Jan D’Oliviera or the police. This explanation cannot stand, bearing in mind that in his statement to the Ackerman inquiry . he was making a revelation of police misconduct,” argues the Eikenhof defence.
The defence says “Korope’s assertion that he was ignorant of the contents of the affidavit when he signed it is romancing and cannot bear scrutiny . His silence as to whether he took any steps to correct the record by contacting the police or the Mail & Guardian [which published his affidavit] is yet further proof of a thinly veiled dishonesty .”
It has emerged that in 1995 when the police raided the house of Letlapa Mphahlele, a senior Apla official, they discovered two secret reports by the people who carried out the attack.
The reports – confiscated from Mphahlele’s house in Lesotho – were addressed to Apla’s director of special operations and the explanation given fits in with events of what happened at Eikenhof. Names of Apla operatives responsible for the massacre are mentioned in the reports.
It appears that these Apla members had planned to attack a bus-load of white schoolchildren. However, they abandoned the idea when the bus passed carrying only a few pupils.
That’s when they decided to attack what is called in their report “any settler car”. The target happened to be Mitchely’s car.
“We never spent four minutes in the attack. We went to Orange Farm and Bongani left an AK-47 cassette in the car,” says the report. The BMW car used to execute the operation had earlier been hijacked from Mpunga.
New evidence pointing to Apla’s responsibility unfolded in July last year when Apla commander, Phila Dolo, who claims to have ordered the attack, applied for amnesty from the Truth and Reconciliation Commission. Dolo’s amnesty application is due to be heard from September 4 to 18.
Dolo’s affidavit to the commission confirms he ordered the attack. He says he does not know the ANC members serving sentences for the attack.
The defence also has documents proving that one of the AK-47s used in the massacre was used by Dolo when he shot and killed a policeman in Diepkloof, Soweto, in 1994. The ANC three were already in custody but the police ballistic report has proved that Dolo’s AK-47 is the same as the one used in Eikenhof.
The hearing has been postponed “indefinitely” until another judge is available to hear the bail application, which is opposed by the state. The postponement followed Soggot’s plea for Curlewis’s recusal, charging that Curlewis’s refusal to hear fresh evidence would amount to a miscarriage of justice.