Mofokeng and Mokoena petitions: deliberations

Committee: NCOP Petitions and Executive Undertakings

Chairperson: Mr A Nyambi (ANC, Mpumalanga)

Date of Meeting: 28 Apr 2010

Summary

The Committee convened to discuss the petitions received from Mr Fusi Mofokeng and Mr Tshokolo Mokoena, who had been convicted, under the doctrine of common purpose, of three crimes and were presently serving the eighteenth year of their life sentences, despite maintaining their innocence.

The Committee received presentations from the Chief State Law Advisor and the Department of Correctional Services, who stressed that they had been notified only very recently of this meeting and had not had a chance to study the full record of proceedings in the Court. The Chief State Law Advisor summarised the judgment of the lower Court and noted that leave to appeal had not been granted. Although the petitioners’ co-accused had subsequently applied to the Truth and Reconciliation Commission, were granted amnesty and released, the petitioners were not eligible for amnesty because they denied any wrongdoing on their part. A State witness whose evidence was relied upon to convict them had apparently later visited the petitioners and admitted that he had been bribed to give false evidence against them, but he had subsequently died. The Chief State Law Advisor outlined the options that he believed were open to the petitioners and to the Committee. The problem was that normally a person asking for pardon or submitting a petition was required, as with the Truth and Reconciliation Commission, to admit wrongdoing, which the petitioners could not do. He suggested that it was possible that they could apply to reopen the case, on the basis of new evidence, alternatively that it might be that they should have had separate legal representation from their co-accused.

Representatives from the Department of Correctional Services outlined the position in regard to those who were eligible for parole and indicated that in normal circumstances a person convicted of a life sentence prior to 2004 would need to serve at least twenty years of a life sentence before being eligible to apply for parole. In the case of the petitioners, they would only become eligible for parole in 2012. Once again, it was noted that admission of guilt was usually one of the elements of rehabilitation. However, the President retained the discretion to grant a Presidential pardon or to reduce a sentence, in terms of Section 82 of the Correctional Services Act, and this route could be followed. The Chairperson added some background gleaned from discussions with the petitioners and with two of their co-accused.

Members noted that the petitioners were in an extremely invidious position. They could well have been released had they agreed to admit guilt, but had consistently maintained their innocence and seemingly refused to accept the stigma of a crime that they did not commit. Members agreed that they seemed to have been convicted on the basis of circumstantial, and perhaps suspect evidence, and that they may have been poorly served by their lawyers, who had not cross-examined critical evidence. Members said that the tense political circumstances and the stance of the apartheid-era Courts in 1992 were further factors that should be taken into account, and one suggested that the fact that leave to appeal was refused was in itself an indication that the court had not reached a correct decision. Members agreed that the petitioners may not be fully aware of the implications of the doctrine of common purpose, and thought it would be useful to have this explained to them, but also questioned whether it was correctly applied. Members felt that it was necessary to decide upon an approach that would ensure a speedy resolution to the matter and resolved that the Minister and Director General of Correctional Services, and their legal team, be asked to attend a meeting of the Committee at which the matter could be fully discussed, and the views of the Committee clearly stated, so that the Minister could convey fully informed recommendations to the President in respect of a Section 82 application for pardon. The Chairperson would ensure that this decision was also conveyed to the Chairperson of the NCOP and to the petitioners. Members also felt that a public announcement should in due course be given by the Committee.


Minutes

Petitions of Fusi Mofokeng and Tshokolo Mokoena: Departmental briefings
The Chairperson noted that the Deputy Minister of Justice and the Deputy Minister of Correctional Services had tendered an apology for their inability to attend the meeting, although representatives from the Department of Justice and Constitutional Development (DOJ) and the Department of Correctional Services (DCS) were present to give the Committee a presentation on the petitions received from Fusi Mofokeng and Tshokolo Mokoena.

Chief State Law Advisor presentation
Mr Enver Daniels, Chief State Law Advisor, Office of the Chief State Law Advisor, noted that the Department of Justice had provided him with some of the documents that had been submitted to the President. He had been asked by the Deputy Minister to outline the position to the Committee. He tendered the apologies of Mr Neville Gawula, the person responsible for dealing with applications to Parliament.

Mr Daniels noted that Mr Fusi Mofokeng and Mr Tshokolo Mokoena (the petitioners) stated in their petition that they were convicted of attempted robbery, murder and attempted murder on the basis of the doctrine of common purpose. Both denied having participated in any crime. They were accused and convicted with four others who were subsequently granted amnesty by the Truth and Reconciliation Commission (TRC) and were released. Initially the petitioners did participate in the TRC process, but when they realised that in order to apply for amnesty, they would have to admit guilt, they did not proceed, as they maintained their innocence throughout. They had remained incarcerated since their conviction, eighteen years ago.

Mr Daniels noted that he had not managed to study the full record of the Court’s proceedings, although he had studied the judgment, but he noted that he had only had since Monday to do so. Although he could not make a final finding on this matter, he stated that it was possible that the petitioners did not fully understand the doctrine of common purpose.

He outlined how the doctrine was applied by the Court in this matter. He noted that in general, an accused could be found guilty if he had committed unlawful conduct, knowing it to be unlawful. He stressed that a person must have had the intention to commit the crime, at the time that it occurred. However, this limited definition was extended in South Africa by the doctrine of common purpose, which stated that a person did not have to actually participate in the actual physical act of the crime, in order to be found guilty, if it was shown that he had actively participated in the planning of that crime The Constitutional Court had supported that this doctrine was rational and was indeed necessary to control crime in the country.

The petitioners stated that their only involvement with their co-accused had been that the co-accused had stayed with one of the petitioners. The three crimes were linked. Mr Daniels stressed that he could not make any finding that the petitioners were involved in the crime, but would outline to the Committee what Judge Malherbe, had stated in his judgment (he noted that page 18 of the judgment was missing). Judge Malherbe had found that there was common purpose to commit the three crimes for which they were convicted. The Court, while admitting that some of the evidence given by the State witness was unsatisfactory in some respects, had nonetheless relied upon it. This evidence was to the effect that the accused had discussed obtaining money by committing a robbery against the Orsmonds, and that Mofokeng had participated in discussions about the robbery, and had later told the State witness that some people had arrived from Johannesburg to assist in the commission of the robbery. Much of the evidence against the petitioners were circumstantial; Mr Mokoena was the only one of the accused who knew where the Orsmonds lived, the co-accuseds' journey was consistent with the crime, five of the passengers in the bakkie were armed, and the bakkie had false numberplates. The co-accused had been on their way to the Orsmonds, but had stopped and opened the bonnet of the bakkie, apparently to create the impression of engine trouble. Before the Orsmond’s home was approached, Mrs Orsmond had noticed the bakkie and had asked the police to investigate. The police approached the vehicle, and a shoot-out ensued, resulting in the death of one policeman and the serious injury of another. police and there was a fatal shooting and injury of another.

In respect of the murder and attempted murder charge, the Court had to decide whether any of the accused who were not present (and who were therefore being charged under the common purpose doctrine) foresaw the fatal consequences, and the evidence was accepted that suggested that although Mokoena and Mofokeng were not involved in the actual commission of the proposed robbery, they were aware of the planned robbery and knew that weapons would be used. The petitioners denied that they had any knowledge of any of the plans and had never been involved in any of the discussions, although they had seen the weapons, but did not apparently question what they were for. 

The Court had indicated that some of the issues that should have been dealt with during cross examination were not. However, it refused leave to appeal. The petitioners then applied to the Supreme Court of Appeal, which also refused permission to appeal, meaning that in law, the petitioners were regarded as having been correctly convicted. However, Mr Daniels stated again that the petitioners were clearly not present at the scene of the crime.

Mr Daniels reiterated that the petitioners’ application could not be considered by the TRC because they had refused to admit their guilt. It was possible for the petitioners, subject to the provisions of the Correctional Services Act (CSA) to apply to the Parole Board to consider their release on parole. In addition, in terms of Section 82 of the CSA, the President had the power to make decisions on incarceration but the Minister would make recommendations to the President. The Department of Correctional Services would deal with parole and all other options in terms of the CSA.

Mr Daniels noted that he had read an article in City Press of 18 October last year. It had occurred to him that perhaps not all legal options had been fully exhausted by the petitioners. This article noted that the main State witness had subsequently visited the petitioners in prison and informed them he had lied, having been promised money by a police official if he did so. That State witness had subsequently died, and so he could not be called to corroborate this version of events, although he was apparently accompanied on that visit by two of his uncles who would presumably be in a position to testify as to what he had said. The petitioners could apply, even at this late stage, for leave to reopen the case for the purposes of leading new evidence, which would be material to their case, and which could lead to the case being reopened and the conviction overturned. He suggested that perhaps an independent legal adviser from Legal Aid South Africa should assist them and advise of the prospects of success.

Mr Daniels noted that the Department of Justice, in respect of petitions, also took the line that they would not recommend to the President that any petition be granted where the petitioners had not admitted guilt; admission of wrongdoing was regarded as an essential part of the rehabilitative process and was an important factor to be taken into account. In view of the continued denial of wrongdoing, the Department had not been able to make any recommendation. Mr Daniels also noted that if a pardon were to be granted based on a complete denial of guilt, there were likely to be financial implications. For this reason it had been suggested that they should instead seek parole through the Parole Board.

Department of Correctional Services presentation
Mr Ruben Mbuli, Director: Legal Services, Department of Correctional Services, noted that he had not had sight of the judgment but had noted that the doctrine of common purpose had been applied to this matter, and the remarks of Mr Daniels made it clear that there was circumstantial evidence before the Court that the Court felt had justified the conviction. He said that it was not necessary to repeat the principles that Mr Daniels had outlined. When the petitioners sought leave to appeal, the trial judge had noted that no material aspects of the evidence had been challenged, and the petition to the Appeal Court was also refused.

Mr Mbuli noted the possible courses of action suggested by Mr Daniels. The issue of the Presidential pardon was still theoretically possible to pursue, but he would not like to comment on the chances of success. The possibility of applying to lead further evidence could also be pursued.

Mr Mbuli outlined the requirements in respect of parole. A person convicted and sentenced to life imprisonment before 1 October 2004 would be required to serve 20 years of his sentence before becoming eligible to apply for parole; this principle had been clearly confirmed in 2009 by the full Bench of the North Gauteng Court. A person convicted after 1 October 2004 would need to serve a minimum period of 25 years of a life sentence before being eligible for parole. He stressed that this did not meant that a person who applied for parole would simply walk free, merely that consideration would be given to parole; a number of other circumstances would be taken into account by the Parole Board before making a decision. In the case of a person sentenced to life imprisonment, the Parole Board would make a recommendation to the Minister via the National Council for Correctional Services (NCCS), and the Minister, based on that advice, would take a decision on the matter.

Mr Mbuli, at the request of the Chairperson, then outlined the provisions of Section 82 of the Correctional Services Act. This outlined that the President, despite any other provision to the contrary, may at any time authorise the placement of any sentenced offender, subject to such conditions as may be recommended by the Parole Board or by the Minister. The residual power was vested in the President to unlock a deadlock and he had the right to pardon or reprieve a sentenced offender. Depending on the facts, a case could be presented to the President, who would call for the recommendations of the Parole Board and then make a decision. This was a departure from the normal parole provisions. He was not aware of all the special features in this matter that might persuade the Minister of Justice to make out a compelling case to the President; he noted that the petitioners in this case had not shown remorse in that they had maintained their innocence. He echoed the remarks of Mr Daniels that it was normally necessary that a person admit guilt before being pardoned. He was not aware of any Court decisions where the issue of pardon had been fully discussed.

The Chairperson asked for clarity if any life sentenced offender could be released after serving less than 20 years.

Mr Mbuli said that this would only happen if he was pardoned by the President.

Mr Mbuli then added, in answer to another question by a Member, that an offender could be considered for parole if he had reached the age of 65 years, provided that he had also served at least 15 years of his life sentence. He added that there were also some offenders over 65 years of age who were not released, and reiterated that other circumstances, such as the extent of their rehabilitation and the comments of the victims, would be taken into account.

The Chairperson noted that it was a pity that Mr Mbuli did not have all the facts of the case to hand, since the Committee’s decision must be based on fact. 

Dr Zachariah Modise, Regional Commissioner, Free State/Northern Cape noted that he had gone through the record, but had not had sufficient time to apply his mind fully to all issues. He noted that there were complex issues around the crime, including the situation in the country at the time that the crime was committed; the accomplices had apparently been hired to do a certain job for their political party. Secondly, he pointed out that if the petitioners were to apply for parole, they would have to wait until 2012 to do so. He believed that they wanted their matter attended to urgently, so parole might not be the best option for them.
He also stressed that when considering parole, an applicant for parole should indicate his remorse, which carried the corollary that he must admit that he had committed the crime. The two petitioners consistently maintained their complete innocence. This made it difficult for the DCS to consider parole.

Dr Modise also added that the latter part of Section 82 of the CSA dealt with the President’s power to remit part of the sentence. This could well be an immediate option to consider, since otherwise the DCS would be obliged in terms of the Act to hold the petitioners until 2012.

Discussion
The Chairperson added some further background to the issue. He noted that in theory it would have been possible for the petitioners simply to have lied, in order to make application for amnesty, but it had been made clear to them that the families of those who had died during the incident were intending to ask questions about the incident and the petitioners would not have been able to answer these. The Chairperson indicated that he had spoken to two of the co-accused who were later released and they had apparently told the TRC that the petitioners were not involved and should be released and they were shocked to find that this had not happened.

The Chairperson added that he had noted the remarks that pardon would normally be granted only if remorse was shown and there was admission of guilt. The petitioners had at no stage changed their version of the events. One of the lawyers for the TRC had noted that he had no doubt that they were innocent and felt desperately sorry that their matters were not able to be dealt with by the TRC. He stressed that if the two had lied, they would have been released years ago. They were still waiting to see justice done. He noted that the evidence of the State witness that had convicted them was, according to reports, manufactured, but the matter was more complex because that witness had subsequently died. The Committee would have to base its decisions on facts, the court records and the other evidence.

Mr A Matile (ANC, Gauteng) asked if it was likely that a person would maintain a plea of innocence for 18 years, which effectively caused him to remain in prison for all that time, if he was not innocent. If that person had lied and admitted to the crime, he would have been released. The behaviour of the petitioners in the correctional centre did not indicate that they were involved in the crime. He asked that DCS should consider the human factor.

Mr T Chaane (ANC, North West) said that the Committee could not deal with the matter as if the Committee were a court of law. He was concerned that from the outset, these two petitioners may well have been badly served by their attorneys. He wondered if they had been advised never to admit any knowledge of the facts. He questioned whether the doctrine of common purpose was fair; there was no suggestion that they had been actively involved, and he wondered if they had ever questioned the fact that weapons were being carried by the other accused. He also noted that the tense political situation that existed at the time, and the fact that an apartheid-era judge was presiding over the matter, may also have influenced the case and the harsh sentence. He questioned what the situation would have been if the petitioners were asked whether they were aware of the guns; he might then only have been charged with failing to report the matter to the police. They were effectively being punished for the failure of their attorneys to question the critical evidence before the Court. He also noted that books from DCS that recorded the movement of visitors in and out of the correctional centre were missing, but he wondered whether the lawyers might not have insisted that no confessions should ever be made.

Mr Chaane agreed that there seemed to be a need to explain to the petitioners in detail what the doctrine of common purpose meant and implied, so they could then clarify exactly what they had been aware of or known for certain. He noted the four options presented of approaching the Parole Board in 2012, or using Section 82 for remission of sentence, or applying for a Presidential pardon (although this implied admission of guilt) or reopening the case (which could take another ten years, and was largely dependent on whether the uncles of the deceased witness could give evidence). These were all legal options. He would like to hear about the prospects of success, should the Section 82 option be pursued.

Mr D Bloem (COPE, Free State) asked about the other two crimes for which the petitioners were also convicted.

Mr Daniels confirmed that they were convicted of murder, attempted murder, and attempted robbery. They were acquitted on charges of possession of arms.

Mr Daniels wished to comment on the points made by Members. He agreed that the politically-charged and violent context of 1992 was important. He emphasised again that he had not read the full record of the court proceedings, but he had some doubt whether the conviction on the doctrine of common purpose, certainly in respect of the murder and attempted murder charges, was correct. Even if there had been plans to rob the Orsmonds, the murder and injury to the policemen occurred when the police chanced upon the scene.

Mr Daniels also noted that accuseds 1, 2, 3 and 5 were represented by Mr Landman, while another lawyer represented accused 4 and 6. The legal representatives must have known that accused 1 and 5 (the petitioners) denied any participation in that crime. He did not think that Mr Landman should properly have been acting for accused 1 and 5. A lawyer could not cross examine his own client and so the petitioners should have had separate legal representation. It was also possible that the petitions for leave to appeal might have been prepared by the same legal representative, and once again the two petitioners had consistently denied that they were involved in the actual commission of the crime. Their constant denial that they were not involved in the commission of the crime was consistent with the Court’s own finding.

Mr Daniels added that the judge had explained some of the aspects in which the State witness’s evidence was not considered satisfactory, and he reiterated that the judge himself had said that some of the issues raised by the defence were not pursued in argument, and some of the evidence led by the State witnesses was not challenged and therefore was relied upon by the Court. He said that both on the basis of the new evidence, and possibly on the basis that they were not properly represented, they might be able to make out a case for the matter to be dealt with under Section 82, or for the reopening of the trial. He stressed that he was not in a position to comment upon what the views of the President or the Court might be.

Mr Daniels again suggested that, irrespective of what the petitioners would ultimately do, an independent lawyer should be appointed, perhaps through Legal Aid South Africa, to do a thorough investigation as to what happened.

The Chairperson clarified that the petitioners were sentenced to six years for conspiracy to commit robbery, for 12 years for attempted murder and for life for  murder, all charges to run concurrently. The Court record confirmed that they were not present at the scene of the crime and the doctrine of common purpose was applied to all.

Mr Bloem noted that the Correctional Services Act used the wording “recommend”. Even if application was made to the Minister, this would not guarantee their release. The last option presented by Mr Modise seemed to be the preferable one.

Mr F Adams (ANC, Western Cape) noted that the petitioners had approached the Appeal Court. The Supreme Court of Appeal and the Constitutional Court had both found, in many other cases, that trial judges had erred. The same could well have happened here. He believed that the fact that leave to appeal had not been granted was in itself an error.

Mr Adams asked if the Minister had any right to waive the 20 years of a life sentence that must be served before a person was eligible to apply for parole.

Mr Mbuli noted that the President alone could do so, on the recommendation of the Minister of Correctional Services.

Mr Adams said that this was a prime example of the need to transform the judiciary. He asked what more must a person do; these petitioners had protested their innocence for 18 years.

Mr T Mofokeng (ANC, Free State) asked, in regard to the conspiracy to commit the robbery, whether it was established that the petitioners were part of the planning.

Mr Mofokeng noted that there were many criminals who had exploited the TRC process, claiming that their actions were politically motivated. He said that it would have been easy for the petitioners to have taken advantage of the situation and lied to the TRC, but obviously had been absolutely adamant that they could not accept the stigma of a murder that they had not committed.

Mr Mokgobi said that a “strictly legal” stance had been offered by DCS; he would have liked to have heard more options. He said that if the doctrine of common purpose was applied to convict and imprison the petitioners, so should the other side of the coin apply so that if some were freed, all should be freed. He said it was not correct to insist that a person should admit to a crime (which he did not commit) in order to be set free.

Mr C Maine (ANC, Western Cape) noted that this should be seen from a political perspective. He maintained that a legal opinion was only an opinion, and politicians could not make decisions based on opinions. He appreciated the advice of the administrators. He believed that the route of a petition under Section 82 of the CSA was the best route to take. The matter need not be debated further; the Committee must ensure that fairness prevailed.

Mr Matila agreed that administrators implemented policies and did not take political decisions. He said it was unfortunate that the presenters had not had more time to apply their minds to the matter.

Mr Daniels stressed again that the Committee must not lose sight of the fact that the petitioners did not regard themselves as having committed the murder. Having suggested what options were open to the Committee, he agreed that the Committee must now make its political decision.

Mr Mbuli echoed these sentiments. He noted that if the option of ordinary parole was followed, there was a practical problem for DCS.

The Chairperson emphasised that the Committee was cautious not to set any incorrect precedents, nor entertain a petition where all other avenues had not been exhausted by a petitioner. Parliament was the custodian of all Acts and Rules it was happy to receive advice on what options would not undermine the law. He thanked the presenters for coming to speak to the Committee on such short notice, and they were excused.

The Chairperson then reminded Members of Section 235 of the Rules of the National Council of Provinces, which stated that a Committee could refer any subject matter to the Executive, subject to the approval of the Chairperson of the Council. It could also recommend to the House any course of action it deemed fit and proper. He noted the general consensus of Members that it would be preferable for the petitioners to use Section 82 of the CSA and asked them to discuss how best to proceed.

Mr Adams noted, from his past experience, the Committee could invite the Minister and Director General of the Department (as the Executive) to engage on Section 82. Those officials had not engaged fully with the Committee. The Minister had the power to make recommendations to the President but he believed that this Committee should have a full engagement with the Minister in regard to these cases. He noted that the Chairperson should recommend to the Chairperson of the Council that the Executive engage with this Committee.

Mr Bloem felt that this would not take the matter forward. He did not think it was necessary to have another meeting. The Committee should, in his view, take its recommendation to the Chairperson. He thought that the Committee must be very specific on how exactly it though that Section 82 should apply; he pointed out that this referred also to remission of sentence.

Mr L Nzimande (ANC, KwaZulu Natal) felt that Mr Adams’s suggestion would be quicker and more effective. He believed that calling the Minister and Director General to the Committee would ensure a more speedy conclusion to the matter, as going via the Chairperson of the Council was likely to take longer.

The Chairperson was comfortable with this decision. He agreed that a strict legal viewpoint had been presented although Mr Modise had made it quite clear that he was not a legal expert. The Director General of the Department of Justice had stated that this was apparently not a matter that could be dealt with by that Department, and had suggested that the option of applying for a Presidential pardon was always open. He agreed that the Committee should not simply write to the Department or Minister; he would not like to see another administrative process taking its course. He noted the consensus of Members that this matter must be disposed of quickly, and that the petitioners should be released..

Mr Chaane noted that if the buy-in of the Minister was obtained, this would ensure that the matter could be dealt with quickly, and that the views of the Committee should be clearly set out in a meeting with the Minister. He was not sure whether this would need to be endorsed by the House before a letter was addressed to the President by the Minister.

Mr Matila agreed with the proposal. He thought that the reasons for the Committee’s decisions should be spelt out quite clearly to the Minister, after the Committee had consulting with legal advisors, so that the issues were quite clear.

Mr Bloem said that the Committee should be very direct in its instructions to the Minister; and that she should also be asked to attend together with her legal division, so that any legal questions could be discussed and conclusions reached then and there.

Mr Chaane also felt that the Committee, or an independent lawyer, should meet with the petitioners and explain the doctrine of common purpose to them – and that all of this should ideally happen within 21 days. .

Mr Maine did not agree that any further delegations should be sent to the petitioners, but that the Minister should be engaged with.

The Chairperson noted that in Kroonstad the Committee had given an undertaking that the petitioners would be kept fully advised of what was happening. He had spoken to them on the previous day. He noted that this case was likely to attract some attention, and whatever the Committee felt could be done to assist them should be done.

Mr Adams pointed out that the Rules of the NCOP made provision for the Committee Chairperson to keep the petitioners informed of the progress of the matter. There was another Rule that noted that the Committee must inform the Chairperson of the Council that the Executive was being called.

The Chairperson confirmed that this would be done.

The Chairperson then confirmed that the Minister of Correctional Services would be called to a meeting next week, and the suggestions of Members would be taken on board.

Mr Mofokeng noted that on Freedom Day, a signature campaign had been initiated to secure the release of the petitioners, to back up the efforts of the Committee.

The Chairperson said that, particularly in view of the public discourse, the Committee must be seen to be acting strongly.

Mr Mokgobi also suggested that a public announcement be made.

The meeting was adjourned.