Vindication

Almost 20 years ago Zandra Mitchley and teenagers Shaun Nel and Claire Silberbauer were murdered in a notorious armed attack on a car approaching Eikenhof, which is near Johannesburg. All the occupants were white people with no connection to the Apartheid state.

The attack shook the country. It happened as South Africa’s transition from Apartheid to majority rule was taking shape. If its aim was to derail that process it almost succeeded, as the police and prosecutor tried to make political capital from the tragedy, accusing and falsely convicting three innocent men – men they knew were innocent.

The African National Congress and its armed wing Umkhonto we Sizwe had ended their armed struggle against Apartheid. This case was used to try to claim that the ANC were negotiating in bad faith – they were not. The interests of justice were disgracefully sacrificed to shameful political expediency and the perceived interests of a criminal regime – a crime against humanity, no less. In a system pock-marked by terrible affronts to justice this remains one of its worst ever miscarriages of justice.

It is the clearest of South Africa’s vindication cases – a difference-making travesty of justice that could and should have ensured that the new South Africa, the so-called Rainbow Nation, has a criminal justice system that is the envy of the world. Instead apathy, cynicism and political opportunism reign in a sorry tale of justice betrayed again and again.

Shameful

Three men were wrongly convicted of the three murders and the attempted murder of Norman Mitchley and Craig Lamprecht in the Eikrenhof attack. Siphiwe James Bholo, Sipho Gavin and Boy Ndweni (the Eikenhof Three) had strong alibis that they were in Wesselsbron, about 380 kilometres away when the attack occurred. It mattered not a whit to investigators and South Africa’s criminal justice system past and present.

Alibi witnesses were shamefully bullied. Perjury was committed. There was colossal non-disclosure of vital evidence that not only proved the Eikenhof Three innocent, but that the whole case was a gross conspiracy to pervert the course of justice. It was well known that the Eikenhof Three were members of the African National Congress (ANC) and that the attack had been organised and executed by the Azanian People’s Liberation Army (APLA) – the armed wing of the Pan Africanist Congress of Azania (PAC).

This information and more was ruthlessly suppressed. But even after it emerged the South African criminal justice system kept the lid on the scandal, denying innocent men the clear acknowledgement of vindication that had been proved beyond reasonable doubt – any really. Despite a plethora of causes for concern there has been no investigation of the notorious case to establish what went wrong and prevent repetition to date, let alone criminal sanctions of those responsible.

Precedent and Necessity

The convictions of the Eikenhof Three were eventually quashed on appeal. A retrial was ordered, but it has never taken place and almost certainly never will. It leaves an element of doubt about their innocence where no credible doubt exists. Their case is too important to be left in limbo. It is part of a wretched pattern of abuse of justice, even in vindication cases like this.

The case of the Eikenhof Three is the difference-making case for South Africa. During the transition from Apartheid the Truth and Reconciliation Commission (TRC) was established. Among those who applied for amnesty was Phila Dolo. He ordered the attack. A raid on a PAC (Pan Africanist Congress of Azania) ‘safe-house’ in Botswana yielded documents including Dolo’s report on the Eikenhof attack.

There is no doubt that it was an attack carried out by the APLA. Even weapons used in the attack were linked to Dolo and therefore the APLA. Gavin and Bholo had been sentenced to death and Ndweni to 17 years – only his youth saved him from a sentence of death for a crime the authorities knew full well none of the Eikenhof Three committed.

Despite a change in government – a landslide in favour of three innocent activists’ party the ANC – they remained in prison. Even after the TRC reported, giving amnesty to Dolo, meaning it believed his account of the Eikenhof attack, the Eikenhof Three were not immediately freed. Absurdly it was the PAC who picketed the jail they were held in, demanding their release.

And now over a decade after they were released on appeal with a retrial ordered they remain cheated of even an explanation of why they were deemed expendable casualties of a war that had ended and of a peace process that has yet to deliver justice and an apology to them. It is the very least that they deserve. In fact, it is the very least that the new South Africa deserves.

Injury to Insult

The Eikenhof Three are still waiting for apologies for what they went through almost two decades after they were subjected to a terrifying ordeal that could have ended on the gallows for two of them, even though police knew beyond doubt who was really responsible for at least four of the six years they were in prison for a crime they did not commit.

Siphiwe Bholo, Sipho Gavin and Titi Boy Ndweni were framed for the murder of Zandra Mitchley, Shaun Nel and Claire Silberbauer and the attempted murder of Norman Mitchley and Craig Lamprecht as Apartheid was coming to an end. The Azanian People’s Liberation Army (APLA) quickly claimed responsibility for the Eikenhof attack, which occurred on March 19^th 1993.

The current President of the Pan Africanist Congress of Azania (PAC), Letlapa Mphahlele had documents verifying this seized by police when he was arrested in a raid in Lesotho in 1995. Despite this the Eikenhof Three remained in prison until 1999. Shamefully, these documents have gone missing along with much of the original docket.

“The time we have wasted before in prison, nothing can buy that, but I think there’s a lot that the State should have done for us”, Ndweni told me exclusively. “There are a lot of programmes that they could have done, like for instance, if you realise that you have wasted somebody’s time, you can assist that person. For example, take him to school and make sure that he has a roof over his head. Those are some of the things that they should have done. We had to get them for ourselves”.

Regret

However while the State and police have not apologised at least one organisation regrets what they endured. “On behalf of myself and the Pan Africanist Congress of Azania, I hereby express our sincerest regret that you were unjustly arrested, tried, convicted and sentenced following the Eikenhof Operation of March 19^th 1993”, Mphahlele wrote to each of the Eikenhof Three in December 2010.

The current President of the PAC and its only MP continued. “The operation was planned and executed by members of the Azanian People’s Liberation Army (APLA), the military wing of the PAC. We were taken aback when you and two of your colleagues were arrested and suffered for something you certainly knew nothing about. Although it is a long time since the incident took place, I hope you will accept our humble gesture of regret over what you subsequently went through”.

A Welcome Gesture

It was accepted by the Eikenhof Three. Disgracefully, it remains the only apology, or even expression of regret, they have ever received over their ordeal. “Regarding PAC and APLA I don’t have a problem about them, like they have apologised to us for us being convicted of their deeds,” Ndweni told me. “With regards to justice system, I think there’s a lot that needs to be done about it”. His sentiments are echoed by Gavin and Bholo, although the latter says the PAC don’t owe him an apology.

“I do accept their apologies”, Mr Bholo said. “Whatever happened then happened during struggle, so they were fighting a just cause … according to them they were doing the right thing. I don’t have a problem with their apologies. In fact, I would say, they don’t owe me any apology, because they are not responsible for my arrest. The only thing that was supposed to happen was the proper investigation and the proper presentation of the case in court and it could have resulted in the right people being arrested”.

The statement of regret by Mr Mphahlele remains the only apology that the Eikenhof Three have ever received for their ordeal, even though there is no doubt that they were completely innocent of any involvement in the Eikenhof attack.

Bholo calls for apologies from those he holds responsible. “They have to tell us exactly what happened, including the government, I would say so, because there are different heads to that – the head of Justice and the head of Safety and Security”, he said. “The ANC, they don’t, but the Justice Department, they do”.

Nevertheless, Ndweni believes that the African National Congress (ANC) hasn’t done enough to help them, but the apologies he wants most are not from them. “I would say the police, the prosecuting authority, the witnesses who gave the false evidence about us”, he says. Ndweni says that the Justice Minister owes him an apology too and that he is ‘disappointed’ that he has not received such an apology.

The twentieth anniversary of the Eikenhof attack is less than a week away. Even now it seems sorry is the hardest word to say.