Two innocent men waited 24 years for a pardon. The Constitutional Court says four presidents failed them

Fusi Simon Mofokeng and Tshokolo Joseph Mokoena spent 19 years in prison for a crime the court found they had no part in, then waited another 24 years for a presidential pardon that never came while Mokoena was alive. On Wednesday the Constitutional Court ruled that four successive presidents violated their constitutional obligations in letting that application sit undecided, and ordered the state to pay constitutional damages.

Sunday World reported the judgment on 21 October 2026. The facts below are drawn from that report.

Justice Narandran Kollapen, writing for a unanimous bench of nine, found that former presidents Thabo Mbeki, Kgalema Motlanthe and Jacob Zuma, together with President Cyril Ramaphosa in his official capacity, failed to ensure the joint pardon application was decided diligently and without delay. Liability attached to the office of the Presidency rather than to the former presidents personally.

The two men were convicted of conspiracy to commit robbery, attempted murder and murder after a shoot-out between an ANC self-defence unit and police in Bethlehem in the Free State on 2 April 1992. One police officer was killed and another seriously injured. Neither Mofokeng nor Mokoena took part in the shoot-out and neither belonged to the self-defence unit. Their convictions rested on the doctrine of common purpose and the evidence of a single state witness the court found unreliable. They were sentenced to life plus a further 18 years.

During Truth and Reconciliation Commission proceedings, three members of the self-defence unit confirmed that the two convicted men had no involvement in the attack and were strangers to them. Four actual participants received amnesty. Mofokeng and Mokoena refused to admit guilt for crimes they said they did not commit, which closed the amnesty route to them. They were released on parole in April 2011.

They submitted a joint presidential pardon application in November 2001. It was processed by the Department of Justice and then never reached the president’s office. The Presidency could not explain why. The government argued the original application had been overtaken by later legal processes and that a fresh one was filed in 2021, and that the pardon department was understaffed. The court rejected all of it, found the 2001 application remained valid, and said the only way a 24-year delay could have occurred was through wilful neglect or gross negligence.

The judgment dealt at length with Mokoena’s last weeks. Officials were told he was in poor health and wanted his application decided before he died. Two weeks later the department was notified that he had died. There was no response. Kollapen called the conduct shocking, and rejected the government’s argument that Mokoena’s death barred his estate from pursuing constitutional damages as untenable and smacking of an uncaring attitude. His widow, Xoliswa Percival Mokoena, carried the case on behalf of the estate.

The litigation reached the Constitutional Court in August 2025. Ramaphosa undertook to decide the application by 31 January 2026 and then granted both men full pardons on 19 December 2025, posthumously in Mokoena’s case. The court held that granting the pardons did not erase the violations of the preceding 24 years, and that the right to have an application considered diligently is separate from the president’s discretion to grant or refuse one.

On remedy, the court found monetary compensation the most appropriate relief and held that forcing the applicants into another long damages action would be manifestly unjust. The applicants must file written argument on the amount by 11 November, and the respondents by 25 November. Separate delictual damages proceedings in the High Court remain open, subject to safeguards against double compensation. Ramaphosa, in his official capacity, was ordered to pay the applicants’ legal costs. The court declined to order a structural overhaul of the pardon system but said it expected the Presidency to review its processes.

Kollapen concluded that the two men had fallen between the cracks of the TRC and the criminal justice system, where people who admitted politically motivated crimes received amnesty while innocent people stayed in prison. They were failed, he wrote, and callously so.

For a South African reader the ruling settles a question that has hung over the pardon power for years: a president’s freedom to grant or refuse a pardon does not include the freedom to leave an application unanswered. The Presidency now has until 25 November to argue about money, and the family of a man who died waiting will be in the room.