As South Africans celebrate 27 years of Human Rights Day, we remember the 69 people killed in Sharpeville on March 21, 1960, by apartheid-era police, while protesting the inhumane pass laws.
Despite the UN declaring apartheid a crime against humanity in 1973, and the Constitutional Court in the 2005 Basson case confirming that murder, torture, persecution, forced removals, and enforced disappearance constituted a crime against humanity, not a single apartheid politician has been indicted for the crime of apartheid.
It is hardly surprising that the National Prosecuting Authority (NPA) has secured only two indictments post-apartheid in apartheid-era cases – those of Nokuthula Simelane and Ahmed Timol – primarily because of the advocacy of family members and litigation supported by the Foundation for Human Rights.
Mbuyi Mhlauli, Sicelo Mhlauli’s widow, one of the Cradock Four activists killed by the apartheid state on June 27, 1985, has waited 36 years to see her husband’s killers prosecuted. She asks why the NPA is unable to indict them while they are alive.
Like Mbuyi, Lukhanyo Calata, Fort Calata’s son, is embittered and feels betrayed by the political party that his grandfather helped found.
His sentiments are shared by other families desperate for justice.
Thembi Nkadimeng, the late Nokuthula Simelane’s sister, filed an application in 2015 against the state and the NPA, compelling them to act in her sister’s disappearance and torture by the security branch in 1983.
Affidavits filed by advocate Vusi Pikoli, then national director of public prosecutions (NDPP) and his deputy, Anton Ackerman, in support of the application, reveal political interference by the executive to suppress the Truth and Reconciliation Cases (TRC) cases.
Pikoli’s affidavit sets out his exchange with former Minister of Justice Bridget Mabandla: “It would appear that there is a general expectation on the part of the Department of Justice and Constitutional Development, SAPS and NIA (National Intelligence Agency) that there will be no prosecutions and that I must play along. My conscience and oath of office that I took, does not allow that.”
Pikoli’s stance had serious consequences, resulting in his suspension and ultimately his dismissal for upholding his oath of office.
The Full Bench of the High Court in the Rodrigues matter in 2019, confirmed that the executive, the NPA and the SAPS colluded in the suppression of TRC cases post-2003, and ordered that the executive and the NPA conduct inquiries into the political interference. No such inquiry has taken place.
In 2019, former TRC commissioners called upon President Cyril Ramaphosa to establish an independent commission of inquiry to investigate the political interference in the TRC cases.
Lukhanyo Calata subsequently filed a complaint before the Zondo commission, arguing that the political interference and the deliberate suppression of prosecutions in the TRC cases amounted to corruption and state capture.
The Zondo commission is unlikely to hear the matter, given its limitations. Consequently, the victims and former TRC commissioners have reiterated their call for an independent commission of inquiry, not to name and shame but to identify the political and structural impediments that hamper the investigation and prosecution of TRC cases.
In 2019, the foundation and its legal team’s engagement with the NDPP’s, advocate Shamila Batohi on the TRC cases, culminated in a successful workshop with the NPA in October 2019.
Unfortunately, the commitments made at the workshop have not been met.
Furthermore, advocate Batohi‘s decentralisation policy, adopted in 2019, has proved disastrous for the TRC cases, revealing the lack of an overall strategy for TRC matters and how the absence of a dedicated capacity entrenched impunity, deepening the distrust of families.
The foundation’s lawyers and the families have stated unequivocally that they will not accept a “business as usual” approach.
The foundation provided the NPA with two legal opinions on strategies that, if adopted, would accelerate TRC prosecutions.
The first opinion sets out comparative best practices and demonstrates that establishing specialised prosecutorial units in Germany and Argentina resulted in better co-operation between police and prosecutors which significantly improved the effectiveness of dealing with complex crimes.
The past 23 years have shown that without a specialised unit dedicated to dealing with the TRC cases, there is no prospect of success.
The second opinion sets out a legal framework for establishing such a dedicated capacity including a team of prosecutors and investigators led by a special director appointed by the president.
The proposal is modelled on the Special Commercial Crimes Unit, which has proved successful, given prosecution-led investigations with the Hawks and the NPA working together.
A new strategy is also predicated on identifying those complicit in the suppression of the TRC cases and vetting them, which is critical to ensuring that future investigations and prosecutions are not tainted.
Twenty-seven years into democracy and with only two indictments, the victims deserve no less.
* Yasmin Sooka is a South African Human Rights lawyer.
** The views expressed here are not necessarily those of IOL.