Johannesburg - Convicted murderer Fusi Mofokeng didn’t kill anyone. Yet he was arrested in 1992, imprisoned for 19 years and today continues to struggle with parole restrictions on his personal freedom as he fights to clear his name.
Investigative journalists with the Wits Justice Project have campaigned for Mofokeng’s exoneration for years, along with lawyers who are working pro bono on his case.
Over time, appeals failed, a proposal for presidential pardon was denied and transcripts disappeared. Now Mofokeng’s advocates are considering taking his case to the Constitutional Court in a bid to wipe his record clean.
The difficulty, his sponsors say, is that the state isn’t willing to admit to having wrongfully detained a man for nearly two decades. It doesn’t help that there is no recourse in the criminal justice system for the wrongfully convicted seeking exoneration.
Mofokeng’s life changed on April 2, 1992, when he was arrested for hosting Mofokeng’s brother-in-law and seven other men at his house. The guests were members of the ANC’s self-defence units (SDU), and they were passing through Free State to assist the ANC cause in KwaZulu-Natal.
The day after the men stayed with Mofokeng, they were caught in a shootout with police in Bethlehem. One officer was killed and another was critically injured. Later, police arrived to arrest Mofokeng, his brother-in-law and Tshokolo Mokoena, who had also coincidentally visited Mofokeng on the same day.
On March 5, 1993, when Mofokeng was sentenced to life and 18 years imprisonment, the State’s rationale was that he was guilty of murder by association. Under the common purpose doctrine, Free State civilians Mofokeng and Mokoena were said to have conspired with their friends in the Johannesburg-based SDU because they spent time together that could have been used for plotting acts of terrorism.
Wits Justice Project reporter Ruth Hopkins described the doctrine of common purpose as a “fluid” and “undefined” law instituted during the apartheid era to quell township riots and arrest large groups of people without having to prove individual guilt. It has been controversial in recent years - during Marikana, for instance, prosecutors used it in an attempt to charge miners for the deaths of their fellow protesters.
“It’s controversial because it can be misused. I really don’t know why it is still law because it dates back to the apartheid era, for one thing,” said Hopkins.
According to the National Prosecuting Authority, wrongful convictions are extremely rare because the South African criminal justice system prides itself on putting the onus on the State to prove guilt beyond a reasonable doubt.
“You would rather err on the side of actually letting a person who is guilty of a crime go rather than convicting someone who hasn’t committed a crime,” said NPA spokeswoman Bulelwa Makeke. “This is why you would hardly ever get a situation where someone who has been convicted and sentenced did not commit the crime.”
Yet as Mofokeng’s lawyers continue to explore an increasingly desperate range of options to exonerate him, a new probem has arisen with the discovery that a large portion of court transcripts from his case have disappeared. Without the original record of proceedings, his advocates cannot fully refute the findings of the court.
“It’s very difficult because court-keeping in South Africa is very patchy,” said Hopkins. “And that’s it. You’re stuck.”
Price of maintaining their innocence:
In 1998, Mofokeng and Mokoena appeared before the Truth and Reconciliation Commission amnesty hearing where their co-convicted apologised for their roles in the shooting to death of a police officer seven years earlier.
They were released from prison the following year, but Mofokeng and Mokoena remained incarcerated because they would not ask forgiveness for crimes they did not commit.
When Mofokeng reached out to the Wits Justice Project in 2009 for assistance in overturning his conviction, it was the additional 11 years he spent in jail maintaining his innocence that convinced researchers to support his case.
In 2011, Mofokeng and Mokoena walked out of Kroonstad prison to a waiting entourage of Wits Justice Project staff. They were “free”, but only as long as they obeyed the conditions of their parole.
These days, Mofokeng must stay at home every Tuesday night. He cannot leave his property after 6pm. He is also not allowed to leave his hometown of Bethlehem without the consent of his parole officer and he cannot leave the country at all.
Moreover, a criminal record often comes with a stigma that complicates job searches and a school admission application, interpersonal relationships and more.
Mofokeng is studying public administration towards his goal of doing community work - a continuation of his prison career of facilitating life skills programmes for other inmates.
“I kept my innocence all these years because it is very difficult for one to say he committed a crime that he did not, particularly murder. I strongly feel that my entire youthful years ebbed away in prison unnecessarily,” he said.
“It took me more than six years to accept my imprisonment, and that had a very negative impact on my health.
“Through counselling from the prison officers, I managed to change and accept that I am serving time, and what I need is to find a way of proving my innocence”.
Mofokeng, who qualified for a certificate in adult basic education and training through the University of South Africa, recalled that many other prisoners had claimed to be innocent. Unlike him, however, they did not have the knowledge of the appeal procedures to fight for themselves
Infringements of prisoners’ rights:
Even if an inmate succeeds in securing a lawyer to argue his case, freedom is far from guaranteed. In fact, the official number of “exonerations” in South Africa is a resounding zero.
People can appeal against judgments and sometimes win, but there is no available legal remedy for revoking wrongful convictions passed down in a miscarriage of justice.
“In theory you should have a corrective mechanism in the legal sphere, but there is no recourse for someone to seek an exoneration,” said Wits Justice Project reporter Ruth Hopkins.
“There just seems to be no one who is willing to stick out his or her neck and say in public, ‘Hey, these guys are innocent. Let’s just give them back their lives.’ “
Mofokeng spent 19 years in prison because his culpability in the murder of a police officer was not properly investigated. And there are many other ways in which innocent people are wronged by the system.
Missing dockets and court documents are common but the courts’ reliance on junk science, false eyewitness testimony, forced confessions and insufficient forensic evidence can also play a role in locking people behind bars when they don’t deserve to be there.
University of Cape Town Professor Sean Davison founded the Innocence Project SA to revisit the cases of people who were convicted when DNA technology was inferior, or in instances when biological material from crime scenes existed but simply wasn’t tested.
“If they didn’t have the advanced technology we have today, they can’t be blamed for having the improper DNA profile,” said Davison.
“We only take on cases where the DNA is available because they’re easier to prove. When you start going into the other areas of evidence it’s very difficult but DNA is absolute.”
Davison envisages that as Innocence Project SA develops, staff will also be called on to assist in cases where wrongful convictions are the result of systemic defects in the justice system other than limitations to DNA analysis – unreliable informants, plea bargaining, ineffective legal representation and police misconduct.
“It is of the utmost importance that Innocence Project SA is not only dedicated to assisting those who have been wrongfully convicted, but also assists in addressing the causes of wrongful convictions by making representations to government on the reform of the criminal justice system,” Davison said.
Wits Professor Peter Jordi’s main area of study is civil cases raised against the police for wrongful detention and torture. Regardless of how regulated and institutionalised the SAPS is, he is sceptical of the earnestness with which complaints against the police are investigated. Considering the services’ culture of camaraderie, he said, although the police apparently have checks in terms of how they treat detainees, the reality is that they don’t exist.
Police are notorious for using a variety of methods to gain confessions, real or false, including illegally hooding suspects, torturing them out of sight of police stations in vehicles or jail cells, and lying to them that pleading guilty to a crime would save them further harassment.
“The kind of institutionalised violence that has gone on for many, many years is unlikely to be successfully prosecuted,” Jordi said.
“The attitude that police have toward suspects is ‘just shoot them in the head, they must be dealt with as a dog does a bone’.”
The Star