The South African government has a cavalier attitude towards its own people

It’s that time of the year when, in many parts of the world, political analysts are writing about those moments that have somehow captured the soul of a particular government or ruling party – perhaps even the zeitgeist of the country itself.

We in South Africa have of course had our share of those events in 2010. We learned, for example, that President Jacob Zuma’s 28-year-old son, Duduzane, who seems to have no business experience in the metals industry, has benefited from a black empowerment deal related to ArceloMittal (a large steel company) and that Khulubuse Zuma, the president’s plump and jovial nephew, has made a literal fortune (many millions) since Uncle Jacob came to power. Or perhaps one would prefer to point to the story about Blade Nzimande, the minister of higher education as well as the general-secretary of the SA Communist party, having chosen the Mount Nelson Hotel, the country’s top luxury hotel, as his temporary base in Cape Town – bearing in mind that many who belong to the SACP can’t even afford the taxi fare from their shanty homes to the gates of the place.

But for me there is one thing that has captured how the ANC government and its courts operate; its cavalier attitude towards its own people; and its ineptitude.

In 1993, Fusi Mofokeng and Tsokolo Joseph Mokoena, then aged 25 and 32 respectively, were jailed for life for their “involvement” with an ANC self-defence unit (SDU) that killed a policeman and caused permanent brain damage to another, on the outskirts of Bethlehem in the Free State. Mofokeng was related by marriage to one of the members of the unit.

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”. “Common purpose” was a bit of law introduced by the apartheid regime enabling courts to find people, especially in unrest situations, guilty of murder by association. In other words, if you were part of a crowd that “necklaced” someone, you could be found guilty of murder even if you did not strike the match yourself.

In 1995, the remaining SDU members (those not shot by the police and army in their swift reprisal) and Mofokeng and Mokoena appeared before the Truth and Reconciliation Commission (TRC). All 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, the University of the Witwatersrand Justice Project and Bethlehem ANC members joined forces with Jomo Nyambi, the ANC head of the petitions committee in the National Council of Provinces, the second tier of government (formerly the senate). Nyambi was appalled by what had happened to the men. He was especially angry that for 14 years Mokoena and Mofokeng had been fobbed off by the ANC in particular. The two were continually told by the ANC’s legal desk that their plight “was being looked into”.

So during the end of 2009 and into 2010, Nyambi worked long and hard, walking the ministerial corridors of (his own) government. At last, Nyambi was able to promise the two men that they would be present at the first game of the football world cup – in June. Well, Sepp Blatter was there, but not Mofokeng and Mokoena. Needless to say, the two men were distraught.

Despite the obvious fact that they had been in jail for 17 years for a crime they hadn’t committed, the situation seemed too legally difficult for anyone to unravel. Arranging a “retrial” or appeal would take years. The ministers of Justice and Correctional Services were unable to find a way to have the prison doors opened.

Since I was Zuma’s biographer, I contacted his office. There was no official response, though I did hear that his office had in turn made some enquiries at the minister of correctional service’s office.

In South Africa, the job as minister of correctional services is regarded as a bit of a political backwater. The present incumbent, Nosiviwe Mapisa-Nqakula, was a patently unsuccessful minister of home affairs in Mbeki’s government and the wife of Mbeki’s right-hand man, Charles Nqakula. Zuma has apparently retained her because he wanted to appease the ANC Women’s League and the folks from Eastern Cape.

Still, at the end of September, a lifeline was thrown to all. Parole became an option due to a judgment from the highest court in the land, the constitutional court. The court ordered that anyone sentenced to life imprisonment before 1994 had to be considered for parole “with immediate effect”.

Here was a temporary solution. Parole would get Mofokeng and Mokoena out of jail as quickly as possible. Other details could be sorted out later. I accompanied Nyambi to Kroonstad jail at the end of October and remember that as he told Mofokeng and Mokoena the news – that they would be home for Christmas – smiles slowly but surely transformed the sombre, cautious expressions on their faces.

Nyambi explained 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 parole for specific inmates to the minister of correctional services. In their case, however, he hinted, this would be merely a rubber stamp.

Big problem: it was discovered in December, a full two months after the judgment was made, that the court order does not mention the NCCS at all. Consequently, the NCCS interpreted the court’s order as having removed the NCCS’s jurisdiction to deal with any “lifers” sentenced pre-1994. The members of the NCCS packed their briefcases and went home.

No one knows why the judgment didn’t mention the NCCS; maybe the judge who wrote it, Justice Bess Nkabinde, simply didn’t know how the parole system operates; but eight of her fellow judges, the best in the land, found with her.

The Mofokeng and Mokoena families, who are from “the poorest of the poor”, as the ANC likes to say, are distraught.

But the rest – the law men, the politicians and the government ministers – well, quite frankly, they don’t seem to give a fig. Zuma has gone on holiday, to host his famous annual Christmas party for children. Mapisa-Nqakula has also gone on holiday. Mofokeng and Mokoena remain where they were put 17 years ago, despite not having committed any crime.

Jeremy Gordin, a journalist and author of Zuma: A Biography. He is director of the University of the Witwatersrand’s Justice Project, which investigates miscarriages of justice.

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