This column is about official indifference and grave injustice and I’m writing it in a spirit of outrage and frustration.
In 1992, two young men from the eastern Free State town of Bethlehem, Fusi Mofokeng and Tshokolo Mokoena, were convicted of murder, along with several others. The only witness to their involvement in the crime was a 19-year-old. His mother later confessed that the family had coerced him into the witness box after the security police offered them money in exchange for his testimony.
Mofokeng and Mokoena appealed against their conviction and lost; their advocate, who had been assigned to the case by the legal aid board, simply went through the motions, barely consulting her clients.
In SA law, only one remedy is available to those who have been wrongly convicted and lost their appeal. You petition the justice minister under sSection 327 of the Criminal Procedure Act, making a case that new evidence has arisen to question the original verdict of the court. The justice minister hands the petition to the National Prosecuting Authority (NPA) for evaluation. If the NPA finds the petitioner’s case compelling, the matter is referred to a judge who then advises the president to expunge the conviction from the record.
Unread petitions
Mofokeng and Mokoena lodged a petition in 2001. Twenty-one years later, they still have not received an adequate response. Nor has anybody else who has ever lodged such a petition. In 2013, journalist Ruth Hopkins asked a senior department of justice & constitutional development official why no section 327 petition has ever been successful. What he does with these petitions, he replied — off the record, of course — was stuff them in a drawer, unread.
In this case, the department has not had the luxury of simply throwing the petition away, because Mofokeng and Mokoena will not let the matter rest. In their latest tryst with officialdom, in November 2021, two decades after they filed their original petition, their lawyers sent supplementary submissions, 11 lever arch files thick, to a certain Mrs Nieuwoudt at the department.
She did not even bother to acknowledge receipt. Only after Mofokeng and Mokoena’s lawyers wrote to a senior official to ask whether Mrs Nieuwoudt was still alive and breathing and employed by the department did she reply. She said that the files would be passed to the NPA for study. Six months later, there is no word from the NPA.
Success against the odds
The story may well go on like this for another 20 years. Certainly, Mofokeng and Mokoena will keep hammering on the door until the day they die. I am writing this column in the hope that somebody with a larger audience will be inspired to shame the department into action.
I suspect, though, that it is beyond shame. Most likely, Mofokeng and Mokoena will have to approach a court to demand administrative action that is lawful, reasonable and procedurally fair. They are fortunate to have the pro bono department of a large commercial law firm on their side. That is probably the only good fortune they have had since they were thrown in jail.
In 2019, I published a book on Mofokeng’s life. In the years it took to write, I got to know him well. He was 24 when he went to prison, 43 when he was finally released on parole. He put the past behind him and made up for lost time. He fell in love and married and got a good job.
That he is flourishing despite the travesty that befell him is a mark of his extraordinary character. He has succeeded against the odds, because he has the wisdom to manage his rage.
But he will not be at peace until the president has expunged his criminal record. To wake up each morning with the knowledge that his conviction for murder stands is intolerable to him.
The apartheid state connived to throw Mofokeng and Mokoena in jail. When they walked free, SA had become a democracy, and yet it has treated them with as much contempt as apartheid did. Now, as then, they are black and poor and seemingly without consequence.
• Steinberg teaches part-time at Yale University.
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