He wanted to personally tell prison director Mabuti Tshele the Constitutional Court had overturned their life sentences and convictions on four counts – including murder and robbery – and ordered their immediate release.
“Officials say all inmates sing the same song. Tshele called me a liar when I said I knew nothing about this crime. After 14 years in jail for a crime I didn’t commit, the court has proved that I’m innocent.”
An elated Khanye, 37, and Moyo, 35, were vindicated by order of the highest court in the land. Thanks to the combined efforts of the Wits Justice Project (WJP), human rights attorney Egon Oswald, advocate Carol Steinberg and wrongfully convicted co-accused Thembekile Molaudzi, the men left the prison carrying little else besides a heavy burden of betrayal by the criminal justice system.
Ironically, North West Judge President Monica Leeuw, who convicted the men in 2004, also signed their warrant of liberation.
Both men had protested their innocence since their 2003 arrest when they were rounded up as suspects – with six others – following a botched hijacking and murder of Mothutlung policeman Dingaan Makuna.
Hoping truth would prevail, Khanye agreed to participate in a prison victim-offender dialogue programme, to meet Makuna’s family and “tell the truth” to help both obtain psychological closure.
“I told the truth,” Khanye said. “I said I never committed the murder. When I started crying, Tshele, who was at the meeting, told me to stop shedding crocodile tears and obstructing the course of justice.”
Moyo refused to meet the family. “I never killed anyone. The worst part was no one believed me. I saw a psychologist but all she could tell me was ‘be strong’.”
Failed by the police, the courts, Legal Aid lawyers, private attorneys and an advocate appointed by the Johannesburg Bar Council, Khanye and Moyo can expect no compensation from the state.
“I’m excited but I’m scared to face the real world,” Moyo said outside the gates. “I’ve been here a long time and everything is different now.”
Luckily, Khanye and Moyo can turn to “old-timer” exonerees Molaudzi, Boswell Mhlongo and Disco Nkosi for support as they try to rebuild their broken lives – Mhlongo and Nkosi’s convictions were the first to be overturned in a precedent-setting 2015 Concourt case.
Mhlongo and Nkosi’s exonerations paved the way for Molaudzi, who spearheaded the long battle to prove the men’s innocence, to appeal his own conviction and motivated Khanye and Moyo to fight for their freedom.
It was Molaudzi who alerted the WJP to Khanye and Moyo’s predicament and persuaded them to lodge their Concourt appeal. This was no easy feat.
Legal Aid SA was unwilling to assist them and neither could afford R6000 to print 25 copies of their trial record as required by the court.
“My brother gave me R3000 and I earned R60 a month as a cook in prison,” Khanye said. “I saved every cent my brother and sister gave me for toiletries.”
Added Moyo: “I only managed six copies. That’s why I was the second applicant and why we lodged a joint application. I come from a poor family.”
Eventually, the men scraped the money together.
Assisted by Johannes Mogoba, a fellow inmate studying law at Unisa, Khanye and Moyo lodged a joint Concourt application for leave to appeal in April last year.
The final ugly twist in the unfortunate tale came after the Concourt asked the Johannesburg Bar Council to appoint an advocate to represent the men on a pro bono basis, and Naome Manaka took on the case last July.
Initially overjoyed, the men’s excitement was short-lived. Manaka never consulted with her clients or informed them of progress, and mostly would not take their calls.
The Concourt fared no better in its attempts to chivvy Manaka along.
In spite of letters sent to her on behalf of Judge Johan Froneman and three subsequent letters from the registrar of the court asking when submissions would be filed, Manaka failed to respond, or even meet her own deadlines. Nor did she respond to four WJP requests for comment.
More than five months after her appointment, Khanye heard via the prison grapevine that she had submitted heads of argument on his behalf to the court.
“One of my co-accused heard from his legal representative, advocate Laurence Hodes. I phoned Manaka and asked to see the papers. She said she never had copies, not even in her computer.”
Manaka claimed the delays resulted from the fact that the court was unable to provide her with trial transcripts – an easily rectifiable situation had she consulted her clients or taken up the WJP’s offers to provide her with the transcripts and other documents.
By the end of January this year, the two inmates were desperate and Molaudzi asked the WJP to obtain copies of Manaka’s submissions from the court.
To their horror, they discovered Manaka had only made submissions on Moyo’s behalf, she had conflated and confused the two men’s alibis, the arguments contained discrepancies and she hadn’t dealt with all the relevant issues.
“Manaka just wanted to get rid of our case,” Moyo noted. “She never cared about us or our freedom ”
The men knew only too well that the Concourt was the last port of call in a protracted legal battle to prove their innocence. With their liberty at stake and buoyed by the support of the WJP, who roped in attorney Oswald to help, the two took an extraordinarily brave decision: they told the Bar Council to terminate Manaka’s mandate and asked for the urgent appointment of alternative counsel.
Steinberg stepped in and lodged replacement heads of argument three weeks later.
A few days later, the State conceded that Khanye and Moyo should never have been convicted and the court ordered their immediate release, with formal judgment to follow.
The five men’s freedom rested on complicated legal arguments relating to the admissibility of extra-curial evidence of a co-accused which the Concourt deemed unconstitutional after Mhlongo and Nkosi’s appeal.
All five were convicted on the recanted, uncorroborated hearsay evidence of accused number one, who a full bench of the North West High Court deemed was “a reckless liar”.
A bungled SAPS investigation failed to produce gun residue, independent witnesses, fingerprints or any other form of tangible evidence linking the five men to the crime. Khanye told the court during a trial-within-a-trial that he was forced to make a statement after being tortured by the police.
When the men arrived at Kgosi Mampuru C-Max after sentencing, they claim they were forced to strip naked, assaulted, shocked with electric shock shields and tortured for no apparent reason in front of female warders.
After being transferred to Kokstad’s eBongweni C-Max prison, designed to house the most dangerous criminals, they were assaulted and tortured again.
Throughout their ordeal, Khanye and Moyo leant heavily on Molaudzi for emotional and practical guidance as they struggled to obtain the transcripts needed to appeal their case.
Eight years after their conviction, prison-warder Levy Maphakane took pity on Molaudzi and asked the WJP for help. Prior to this, the Legal Aid advocate who initially represented Molaudzi claimed his office burnt down and he’d lost all his records.
After a second Legal Aid advocate failed to find the records, Molaudzi, Khanye and Nkosi’s families raised R18 000 between them and paid private attorneys to find the records, even though indigent inmates are entitled to these documents at state expense.
When the attorneys eventually delivered the transcripts two years later, more than half the 1 023-page record – including the most crucial evidence – was missing.
“We didn’t commit a crime,” Molaudzi said, “a crime was committed against us”
After repeated requests, Leeuw finally agreed to retranscribe the records and the men were in a position to appeal their case – a constitutional right and a delay Justice Edwin Cameron subsequently described as “egregious”.
Their appeal was dismissed by a full bench. Subsequent appeals were also dismissed without reason.
Mhlongo had twice tried to end his life, and a third attempt landed him in a six-month coma. “If it weren’t for my mom who stood by me and my son Jimmy, who is now 14, I’d have killed myself” Moyo wrote.
Fourteen years later, five men and their families are proof of the human cost of judicial error, the fallibility of an increasingly dysfunctional criminal justice system and the fact that not only guilty people find themselves behind bars – especially if they’re poor. “It’s not only me and Victor in prison for nothing,” Khanye said. “There are many, many others.” Sometimes truth is stranger than fiction.
* Raphaely is a senior jour- nalist with the WJP, based in Wits University’s journalism department. The WJP probes miscarriages of justice and human rights abuses related to the criminal justice system.