I read in the papers the other day that the convicted killers of North West corruption whistleblower Moss Phakoe have been released on bail. How can convicted criminals be set free? What kind of message is that giving out about our justice system and how seriously we take the plight of whistleblowers? Surely this news will put off whistleblowers from speaking out in future? I also read on the Corruption Watch site last year that, for a period, the convicted killers were getting paid a salary in jail. It feels like a message is being sent out that if you silence whistleblowers, you will be rewarded. Surely it should be the other way round? I am so frustrated by this news and feel powerless. Please tell me what I can do. — Exasperated
Dear Exasperated,
It is important to get the facts straight before we get too outraged here. We also need to keep in mind that, although deterring corruption and promoting whistleblowing are vital democratic goals, we should not pursue them at the expense of the right to a fair trial.
Mr Phakoe was killed in 2009. The court found that former Rustenburg mayor Matthew Wolmarans and his bodyguard, Enoch Matshaba, were responsible. The supposed motive for the killing was that Mr Phakoe had compiled a dossier that implicated numerous municipal politicians in corruption.
Mr Wolmarans and Mr Matshaba were convicted by the High Court in Mafikeng and sentenced to 20 years in jail and life imprisonment respectively. However, they have been granted leave to appeal their conviction to a full bench of the high court and released on bail pending the outcome of the appeal.
There are two reasons this should not concern us. First, it is common for convicted criminals to be granted bail. If their conviction is eventually upheld, they will still have to serve their sentences. The release on bail should not worry potential whistleblowers — it means the law is simply taking its course.
Second, one of the reasons for the appeal is that Emmanuel Masoka — a state witness who had implicated Mr Wolmarans and Mr Matshaba in Mr Phakoe’s murder — stated after the trial that he had lied on the witness stand.
In a sworn statement, Mr Masoka alleged that the police had offered him freedom and money if he testified against Mr Wolmarans and Mr Matshaba. In granting leave to appeal, Judge Rodney Hendricks, who had convicted the pair, said: “This court cannot exclude the possibility that, in the event further evidence is presented on appeal before the full bench of this division, this may well have a bearing on the outcome of the appeal. The recanting of this witness most definitely may have a different outcome of this case on appeal.”
Although you are right to be outraged by the killing of Mr Phakoe, it is not yet clear that Mr Wolmarans and Mr Matshaba are indeed the men who killed the municipal councillor. If a key witness lied to the trial court, there are good reasons to suspect that the men may be innocent.
In our eagerness to ensure that justice is done for Mr Phakoe, we should not forsake the basic commitment to a fair trial that our constitution guarantees, including the right to an appeal.
Moreover, if Mr Masoka’s allegations against the police are true, we should be equally outraged that they were willing to pay for testimony to convict innocent men. That is also a terrible act of corruption.
Mr Phakoe’s spirit will be best honoured and remembered by ensuring that the right people are punished, not by relying on corruption in prosecution.
This article was first published in the Sunday Times' Business Times on 9 June 2013.
