The formerly convicted killers of Rustenburg councillor and corruption fighter Moss Phakoe may have been released, but the case is by no means over.

So say trade union federation Cosatu and the family of the murdered man, who are questioning the competence of the South African Police Service (Saps) in investigating the case.

However, the National Prosecuting Authority (NPA) says it is done with the matter. Now the case remains unsolved and Phakoe’s killer may still be walking the streets of Rustenburg.

For corruption fighters across the country, this no doubt is a disheartening turn of events – the realisation that so far Phakoe’s work and sacrifice has come to nothing – but for courageous whistleblowers like him, the battle goes on.

“We presented evidence to the best of our ability and a conviction was secured at the lower court. We acknowledge the right of the accused to appeal and we respect and abide by the decision of the appeal court. We will not take the matter any further,” said NPA spokesperson Nathi Ncube.

Phakoe was shot and killed outside his home in March 2009, two days after submitting a dossier containing incriminating evidence of corruption in the municipality. In July 2012 the North West High Court found Rustenburg mayor Matthew Wolmarans and his bodyguard Enoch Matshaba guilty of the crime, after a court case during which the prosecution expressed its confidence in securing a conviction.

This it achieved – the two were sentenced to 20 years and life in prison respectively, the former for allegedly ordering the hit and the latter for allegedly carrying it out.

During the trial a witness, Emmanuel Masoka, who was awaiting trial at the time and had shared a Brits police cell with Wolmarans, recanted his testimony in an affadavit, claiming that police had offered to give him money and drop the case of theft against him if he stated that Wolmarans had confessed to him. Another witness, Freddy Mashela, claimed to have seen Matshaba at Phakoe’s home, holding a gun – but the defence also viewed him as unreliable, saying that his phone records showed that he was in another province at the time.

In June 2014 the Supreme Court, sitting in Mahikeng, overturned the convictions, after an appeal was lodged by the two in 2013 on the basis of Masoka’s recantation.

No justice yet for Phakoe

“Justice was not done,” said Cosatu’s North West regional secretary Solly Phetoe, speaking to Corruption Watch. “We see that a politician was involved who is well-connected, and he is treated with kid gloves in Rustenburg, he is a hero. The court sentenced them, the same court initially rejected their appeal, and the same court has now said that they can go free.”

He questioned the apparent reluctance of the Saps to deny Masoka’s claim. “If this guy says the police bribed him, why are they not challenging it? Why has the state not said anything?”

If Masoka’s allegations are proven to be true, the state should open a case against the police, said Phetoe. “The dossier that Moss handed to [the late Cogta minister] Sicelo Shiceka was later found in the office of Richard Mdluli. And now nobody knows where it is.”

The Phakoe family is equally outraged. “We at the Phakoe family honour and respect the court judgment, but we believe that it is a total injustice,” Tlholo “Papiki” Phakoe told Corruption Watch. “We don’t agree with the decision.”

Like Phetoe, he is not done yet. “Five years on and still there is no resolution for us, but we won’t rest until the right people have been arrested. We are smelling a big rat and we won’t surrender now.”

Every story has two sides

Matthew Wolmarans, now a free man, has his own story to tell. In an interview with the Mail & Guardian, he stated that he had been framed for the murder, and had every intention of taking the state and Saps to court for wrongful arrest, malicious prosecution, loss of income and injury to social standing.

Wolmarans had to wait for over a year to see his appeal succeed, after the Supreme Court found that the North West High Court “failed to ensure the case was properly investigated, relied on information that could not be corroborated and failed to follow the leads that could have disproved the two men’s alleged involvement in the murder”, according to the newspaper.

He too would like the real killers to be found, and blames Saps for not only misleading the Phakoe family, but also for the way the case has seemingly been bungled.

“It is the cops that we are really after. They must be hounded out because they are the ones who destroy people’s lives,” said Wolmarans’s lawyer Raphepheng Mataka.

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Excerpt
The release of the formerly convicted killers of Rustenburg councillor and whistleblower Moss Phakoe is a blow to the fight against corruption, as it means that five years later his sacrifice has yet come to nothing – but his family is determined that the case is by no means over.