TRC cases: Call for commission of inquiry

July 1st, 2024

Picture source: Getty/iStock

By Haroon Aziz

The State Attorney in Pretoria (Ref: Mr S Khosa: 5107/2022/Z45) issued instructions for an ‘Opinion for National Prosecuting Authority concerning the TRC Component and TRC Prosecutions’ (6 March 2023). It sought the Opinion of advocate Dumisa B Ntsebeza SC (with Sha’ista Kazee).

The Opinion (dated 30 June 2023) is profound and reinforces the struggle for truth, justice, punishment, healing wounds, amnesty, prosecution, and reconciliation. It is very sensitive to the frustrations of the Apartheid-era Victims’ Families Group (AVFG).

The Opinion acknowledges that ‘South Africa made a constitutional pact to honour the men, women and children who sacrificed their lives for our democratic freedoms.’ Their stories lay interred with their unearthed bones. Many perpetrators remain unprosecuted but enjoy state pensions while the victim-family members live in poverty with ongoing traumas. Why did various government ministers including those whose portfolios had nothing to do with legal justice matters protect the perpetrators?

The Opinion records: ‘The courage of all survivors who have carried their childhood wounds into their adult lives, and lived to tell the truth, did not receive reciprocal respect, dignity and compassion from the state’.

It finds that the National Prosecuting Authority (NPA) has failed to bring justice to the victims and survivors of apartheid-era crimes between 1 March 1960 (the month in which the Sharpeville Massacre took place) to 10 May 1994 (late former President Nelson Mandela’s inauguration).

The Opinion asks, ‘how it is even possible to realise the national social compact struck with victims and all South Africans – to achieve accountability and justice?’

It suggests to the NPA that it ‘should adopt a stance on whether it is prepared to pursue charges of a crime against humanity’.

It recalls that on 29 October 1998 the Truth and Reconciliation Commission (TRC) published its report based on facts, objective information, and evidence. It referred to the NPA’s 300 cases for the fearless prosecution of those people (mainly Special Branch (SB) members) who did not apply for or were denied amnesty.

The Opinion restates that the allegation of political interference is well-known to have started in 2004 with backdoor amnesties for the SB. Former President Thabo Mbeki launched his ‘Special Dispensation for Political Pardons’ without an African National Congress (ANC) mandate. In 2010 in the matter of Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) it was set aside. Ngcobo CJ held at para 61 that ‘the principles and the spirit that inspired and underpinned the TRC amnesty process must inform the special dispensation process whose twin objectives are nation-building and national reconciliation.’

In a letter, dated 8 February 2007, then Minister of Justice Brigitte Mabandla addressed to Vusi Pikoli about ‘TRC Matters’ and expressed surprise at media reports that the NPA would go ahead with prosecutions of TRC matters.

The 15 February 2007 NPA Secret Internal Memorandum to Minister Mabandla referred to the ‘Past: Interpretation of Prosecution Policy and Guidelines’.

In August 2007, there was a plea and sentencing agreement in the Reverend Frank Chikane matter with A Vlok, J van der Merwe, and three others.

In December 2008, the High Court declared the 2005 amendments to the Prosecution Policy be inconsistent with the Constitution – in Nkadimeng and Others v National Director of Public Prosecutions and Others (T) (unreported case no 32709/07, 12-12-2008) (Legodi J). Should this judicial declaration not have automatically abrogated the Vlok agreement?

On 23 September 2007, Pikoli was suspended for carrying out his legal duties by abiding by his conscience and acting professionally without fear, favour, or prejudice.

In 2007 – 2009, Mbeki initiated a process to consider applications for pardons by perpetrators who refused to participate in the TRC amnesty process and claimed that their offences were ‘politically motivated’. Again, Mbeki without an ANC mandate established a so-called multi-party ‘Pardons Reference Group’ (PRG) to consider crimes committed before June 1999, namely, five years after the cut-off date of 5 May 1994 and one year after the TRC report of 29 October 1998 – set aside in Centre for the Study of Violence and Reconciliation and Others v President of the Republic of South Africa and Others (GNP) (unreported case no 15320/09, 29-4-2009) (Seriti J).

In May 2015, because of the delays in the investigation the Simelane family filed a court application seeking a finalisation of the investigation into Nokuthula Simelane (uMKhonto we Sizwe guerrilla) and the NPA’s prosecutorial decision. ‘The supporting affidavits of Adv V Pikoli and Adv A Ackermann provide accounts of political interference, by people including then Minister of Justice Mabandla and the circumstances on which the investigation was stopped’ – Nkadimeng v National Director of Public Prosecutions and Others (GNP) (case no 35554/2015) (application to compel).

The Ahmed Timol inquest: A historic precedent

In 1971, Ahmed Timol was held, interrogated, tortured, and killed in solitary confinement on the tenth floor of John Vorster Square building, which served as the national headquarters of the SB. In the 1972 inquest the apartheid magistrate exonerated the SB from his death.

Timol’s nephew, Imtiaz Cajee, was five years’ old in 1971 and was traumatised by his uncle’s death and by his grandmother’s pain. His love for them motivated him later in life to find out the truth about the death. Thus, began the human story of his persistence and patience, intuitively – much against the pressure on him by ‘comrades’ to desist from his pursuit of truth. Thirty years later in 2001 he approached the lead investigator at the time, Mr Pigou, of Priority Crimes Litigation Unit (PCLU), which in 2006 closed the case allegedly due to insufficient evidence. The backdoor amnesty was at play. Ten years later he with non-state assistance succeeded in reopening the inquest.

In 2017 – 46 years after the murder – in a historic judgment Mothle J ruled that Ahmed Timol’s death ‘was brought about by an act of having been pushed from the 10th floor or roof of the John Vorster Square building to fall to the ground, such act having been committed through dolus eventualis as the form of intent and prima facie amounting to murder’ – The re-opened inquest into the death of Ahmed Essop Timol (GP) (case no IQ01/2017, 12-10-2017) (Mothle J) at para 335(d).

Cajee and South Africa saw partial justice. The re-inquest created a precedent for other TRC inquests and served as a model for investigation and prosecution. He convinced the NPA to charge criminally three SB members for the murder, viz, Joao Rodrigues, Neville Els, and Seth Sons. For six months the docket lay with the PCLU and Director of Public Prosecution Johannesburg. Rodrigues first appeared in court on 30 July 2018. After 19 court appearances Rodrigues died on 7 September 2021 – a tragic twist to the NPA plot of marginalisation of TRC cases. The state had paid R3,5 million for Rodrigues’ legal fees, to which Cajee referred as ‘political and a business proposition that did not always benefit victims.’

In the Rodrigues proceedings Pikoli filed an affidavit, supported by three affidavits from three advocates, viz, Ackermann, Macadam, and Pretorius. They confirmed the ‘depth and extent of alleged political interference in the prosecution of TRC cases’.

In his affidavit Pikoli attests at 8: ‘As a result of my decision to authorise prosecution of a former Commissioner of Police on corruption charges, I was suspended … by the then President, Mr T Mbeki on 23 September 2007.’ He further confirmed ‘that there was political interference that effectively barred or delayed investigation and possible prosecution of the cases recommended for prosecution by the TRC.’

On 20 May 2020, the NPA informed Cajee that they had declined to prosecute Els and Sons. He is critical of the appointment of former SB members investigating TRC cases. Having faced 16 years of direct hostility he did not trust anyone of them.

Crimes against humanity

The Promotion of National Unity and Reconciliation Act 34 of 1995 defines gross violations of human rights and permits prosecution under international law because apartheid is a crime against humanity, as confirmed by the Rome Statute of the International Criminal Court. The Apartheid Convention of 1973 binds 109 State Parties. The Additional Protocols to the Geneva Conventions of 1949 also regards practices of apartheid as war crimes. The categorisation has been reconfirmed in the jurisprudence of International Court of Justice (ICJ) and the International Law Commission’s Draft Articles on State Responsibility and Crimes against the Peace and Security of humankind. South Africa having emerged from institutionalised apartheid is best placed to give effect to the content of the crime, develop customary international law, and contribute to the development of international law from the perspective of the global south.

‘This begs the question,’ the Opinion points out, ‘whether South Africa is under any international law obligation in domestic law to take cognisance of, and give effect to, its international law obligations.’ Section 232 of the Constitution entrenches customary international law as part of South African domestic law and the alleged crimes are prosecutable. Section 232 arguably imposes an additional constitutional injunction on the NPA to pursue charges against the perpetrators of apartheid-era crimes. Reciprocally, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) provides for domestic prosecution of war crimes, genocide, and crimes against humanity. The domestic Criminal Procedure Act 51 of 1977 places no statutory limitation on the prosecution of crimes against humanity and war crimes as contemplated in the ICC Act.

The Zondo Commission

The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Zondo Commission), on the fact-based and heartfelt presentation by Lukhanyo Calata on behalf of the widows of the Cradock-four (Fort Calata, Matthew Goniwe, Sicelo Mhlauli, and Sparrow Mkhonto) accepted that political interference in the prosecutorial discretion on TRC matters formed a part of State Capture. The Calata affidavit, which identifies 16 powerful politicians and bureaucrats, motivates for a commission of inquiry to bring out the political interference publicly.

The 342 years (1652 – 1994) of Black pain and suffering are distilled in the historic TRC evidence and national consciousness and yet powerful politicians have been insensitive to their essence – treating victim-families callously, arrogantly, maliciously, evasively, and disrespectfully. While the families felt frustrated the politicians acted with impunity and the fascist perpetrators felt safe under the democratic government, which piled more pain and suffering on the pre-existing pain and suffering since apartheid times.

The invisible Scorpions

Although the Scorpions were closed down in 2009 the Whites continued to occupy executive positions in the NPA until 2021 – a period of 12 years. Mbeki had created the Scorpions in 1999 without an ANC mandate. On the recommendation of the Judge Sisi Khampepe Commission the Scorpions were closed down on an ANC mandate. In those 12 years White executives continued to sabotage the TRC cases and protect their brethren, the former members of the SB, Brixton Murder and Robbery Squad, and Terrorism Trial prosecutors from prosecution.

They escaped prosecution of historical atrocities, domestic and international crimes, and war crimes, protected by the new democratic government. The victim-families that courageously pursued prosecution were frustrated, blackballed, marginalised, and ignored by government. They forgot that the victim-families are real living human beings in flesh-and-blood and not paper objects in filing cabinets.

A call for a Commission of Inquiry

The Commission of Inquiry (COI), parallel to a legal process would ‘unintentionally’ function as a psychological/healing process.

Should the National Prosecuting Authority (NPA) be unable to find sufficient basis to investigate and charge any persons implicated in political interference under s 41(1) of the National Prosecuting Authority Act 32 of 1998 it is important that any COI should give an opportunity to respond to the grave allegations against them. The COI to be established under s 84(2)(f) of the Constitution, alternatively, under s 1 of the Commissions Act 8 of 1947, as amended.

The aim is to determine whether the conduct of individuals holding senior political office and positions in the period 2003 – 2017 ‘acted improperly to dissuade, interfere, hinder or obstruct the investigation and/or prosecution of the cases the TRC referred to the NPA in 2003.’

The terms of reference and powers of the COI would have to authorise the subpoena of individuals who have already submitted evidence on affidavit: authorise the subpoena of persons implicated in the affidavits, including President Mbeki and former ministers and state bureaucrats; and permit limited cross-examination of witnesses.

Government owes COI to AVFG members and to South Africa.

Haroon Aziz is a retired physicist, author, and researcher and is part of the leadership collective of the Apartheid Era Victims’ Families and Support Group.  

This article was first published in De Rebus in 2024 (July) DR 16.

De Rebus