doubts
Sechaba ka’Nkosi
Former Transvaal attorney general Jan d’Oliveira confessed his doubts about the state’s case against the Eikenhof Three to the Chief Justice Ismail Mahomed as early as last September.
However, exactly six weeks later, D’Oliveira surprisingly revoked his earlier stance, citing “certain consultations” and said he would oppose any application for remittal
D’Oliveira has been unable to explain these consultations to his boss, the National Director of Public Prosecutions, Bulelani Ngcuka.
After new evidence presented to the Truth and Reconciliation Commission suggested that a Pan Africanist Congress hit squad pulled off the attack – and not the African National Congress members accused of the crime – D’Oliveira wrote to Judge Mahomed asking him to expedite the appeal of the case.
“The effects of the new evidence and information could result in there being, at the end of the day, reasonable doubt in favour of the convicted persons,” D’Oliveira said in a letter to the chief justice on September 15 1997.
The details of this letter emerged this week as Ngcuka indicated he was uncomfortable with the state’s handling of the case.
D’Oliveira pleaded with Judge Mahomed to set a date for early in the fourth quarter of the year so that a hearing could be scheduled at the earliest possible opportunity for remittal. D’Oliveira signalled his doubts about the case following an admission by former Azanian People’s Liberation Army commander Phila Dolo to the truth commission that he ordered the killings.
Referring to Dolo’s refusal to identify three other people he claimed participated in the killing, D’Oliveira wrote: “The accused in casu may or may not be the co-perpetrators, but they claim that they are `ANC’ people.”
D’Oliveira told Judge Mahomed that the prosecution would readily concede that the matter should go back to trial.
“Normally the defence would have to apply on appeal for the matter to be remitted for the purpose of introducing new evidence,” stated D’Oliveira.
He said the Eikenhof Three – Siphiwe Dolo, Sipho Gavin and Boy Ndweni – could wait a long time in prison for the matter to be finally disposed of. “In the present circumstances, this will not be fair to them.”
Six weeks later, D’Oliveira wrote again to Judge Mahomed arguing that as a result of “certain consultations” he was convinced there was no case for remittal. He said he would oppose the appeal and any application for remittal, as well as the new evidence that was coming to light.
“In the circumstances I am also no longer of the view that it would be unfair for the accused to wait in prison pending the outcome of the scheduled process of appeal.”
When challenged on his somersault, D’Oliveira was unable to explain why key state witnesses in the case told his former deputy advocate, Anton Ackerman, the police told them what to say, but stuck to their original “confessions” when interviewed by D’Oliveira.
D’Oliveira’s inability to present Ngcuka with answers to this question led to serious tensions between the two. This has frustrated Ngcuka who is said to be convinced that the state has completely lost its case on the Eikenhof killings.
Ngcuka is understood to have told some of his colleagues that he does not see himself leading the opposition to the appeal because of the weaknesses in the state’s case.
Ngcuka downplayed the impact of the divisions in his fledgling office this week. But he confessed that the controversial case has put the credibility of some of his top officials on the line.
The Eikenhof Three, all members of an ANC self-defence unit in the Vaal Triangle, were convicted in 1994 for the slayings in Eikenhof of Zandra Mitchely, her son Shaun (14) and his friend Claire Silberbauer (13) in 1993.
They have already spent five years in jail for crimes allegedly perpetrated by PAC militants.
There is also no further clarity on anonymous affidavits Judge Piet van der Walt claimed during the bail application last week were from co- prisoners at Pretoria Central prison.
The affidavits are alleged to have been made by prison warders who took statements from prisoners who allegedly overheard the three accused boasting about how they were pressing the PAC to claim responsibility for the killings.
Ngcuka was this week attempting to arrange a meeting with Judge Mahomed to discuss the case and see if the three’s appeal could be expedited. Ngcuka also wants to explain his unhappiness with Judge van der Walt’s attack on his decision not to oppose the bail application last week.
While Ngcuka and D’Oliveira were initially agreed that the state needed to oppose the bail application by the three ANC cadres who maintain their innocence in the killing, Ngcuka is now understood to be angry and frustrated at his office’s reluctance to admit the flaws that have weakened their case.
D’Oliveira also blocked numerous attempts by the defence to interview key witnesses to establish whether they were forced into making the crucial statements that led to the conviction of the three.