By Corruption Watch reporter
The two men convicted of murdering Rustenburg councillor and corruption whistleblower Moss Phakoe in 2012 are out on bail after new evidence emerged and their application for leave to appeal was granted. Corruption Watch looks at the legal processes at play here and asks the National Prosecuting Authority for an explanation.
Ex-Rustenburg mayor Matthew Wolmarans and his former bodyguard, Enoch Matshaba, were sentenced to 20 years and life, respectively, in July last year by a North West High Court sitting in Rustenburg, for the murder of Phakoe, who was killed in 2009.
The 53-year-old father of three had reportedly uncovered massive corruption valued at millions of rands that implicated senior officials within the municipality for which he worked.
Criminal process explained
The latest turn of events, although rare in serious crimes such as murder, are not unique. The Criminal Procedure Act enables a convicted person to not only appeal his or her conviction or sentence, but also to go on to apply for bail if leave to appeal is granted. The accused can also make a bail application at any time throughout the criminal trial and during the appeal.
A person standing trial can apply for bail numerous times during his or her trial, whether appealing against a sentence imposed or a guilty verdict. In the case of a murder charge, the accused has to demonstrate to the court that exceptional circumstances exist that warrant release on bail.
Corruption Watch is not privy to the new evidence presented by Wolmarans and Matshaba that led to their bail being granted, although North West’s regional spokesperson for the National Prosecuting Authority (NPA) Frank Lesenyego told Corruption Watch that three affidavits were presented by the defence, but not put before the court.
According to the evidence presented before the court by the prosecution during the original trial, the two men’s supposed motive for the killing was to silence Phakoe after he had compiled a dossier detailing allegations of corruption amounting to millions of rands against Wolmarans and other senior officials in Bojanala Platinum District Municipality, under which Rustenburg Municipality falls.
Phakoe reportedly gave the dossier to the late Sicelo Shiceka, who was the minister of co-operative governance and traditional affairs at the time, two days before he was shot in his driveway.
It is a case that has seen its share of bizarre twists from the investigation phase to the trial – with the docket getting lost at one point, only to reappear months later. There was also the alleged suicide of a man who had been questioned by the police in the initial stages of the investigation.
The first application for leave to appeal by Wolmarans and Matshaba was made after the murder trial, but was refused by the North West High Court; it was then taken to the Supreme Court. While waiting for that ruling, the pair applied for bail.
Lesenyego told Corruption Watch: “The NPA still believes we have a strong case and we will successfully defend during the leave to appeal.”
Who was Moss Phakoe?
Phakoe was shot at close range shortly after returning home from putting up election posters for the ANC ahead of the 2009 general elections. He had been a member of the party from its underground days and in the early 1990s became a shop steward for the National Union of Mineworkers, while working at a factory in Brits.
According to media reports during the trial, in the months leading up to his murder, Phakoe had either met or phoned several ANC leaders on numerous occasions in an effort to get them to stop the rot he had uncovered in Rustenburg Municipality where he worked. His devotion to the ANC and dedication to the liberation struggle was illustrated in an opinion piece written for City Press by Cosatu general secretary Zwelinzima Vavi, shortly after the verdict was announced in the murder case. According to Vavi, although Phakoe had a unionist background, he remained focused on his work in the ANC as well, and became a local councillor in 2002.
“Phakoe’s tragic story provides a shocking insight into the crisis of crime and corruption in our country,” Vavi wrote. “He sacrificed his life for blowing the whistle on corruption in Bojanala…”
Fellow councillor and whistleblower Alfred Motsi testified during the trial that he too had approached the national leadership of the ANC with concerns of corruption in the municipality. Despite Phakoe’s death, Motsi is reported to have said, the contents of the dossier had still not been investigated, nor had any action been taken against those implicated.
During the trial, evidence was heard that Wolmarans planned Phakoe’s assassination, while Matshaba was the one who pulled the trigger. The appeal will be heard in the North West High Court, Mafikeng, on 7 June. Corruption Watch will follow the case and will continue to report on developments.