Several important steps have been made over the last two weeks on the thorny and long-ignored plight of the prosecution of post Truth and Reconciliation Commission (TRC) cases. These include the announcement two weeks ago that the TRC’s victims’ database has after a nine-year legal battle been made accessible to the public, thanks to the work of the South African History Archive (SAHA); the dismissal, by a full bench of the Gauteng High Court, of the application for a stay of prosecution by former security policeman Joao Rodrigues in the Ahmed Timol matter; and the granting of an order in the case of disappeared Umkhonto weSizwe activist Nokuthula Simelane that she be officially regarded as deceased.
On the surface, it seems that some of the bureaucratic obstacles that have hampered the search for justice for many families who lost loved ones during the struggle are slowly being moved aside by the government. This seems to show a new willingness by government to make good on one of the fundamental agreements made in order to ensure the peaceful negotiation to democracy a quarter of a century ago. That promise was the prosecution of those responsible for human rights violations who did not use the opportunity for amnesty made available to them by the TRC process.
It seems that the complicated, murky, probably deeply uncomfortable but perhaps ultimately revealing truth of these cases is being approached. However, there are still questions about and serious accusations against previous members of the government concerning their involvement in attempts to use the organs of state, including the prosecuting authority, to prevent proper investigation and prosecution of perpetrators.
How the NPA dropped the ball, blaming others
In particular, the judgment handed down in the Timol matter made some very scathing assessments of the National Prosecuting Authority and its attempts to wriggle out of taking responsibility for its lack of action. It sought also to blame members of the Thabo Mbeki administration, asking that we believe that in these cases the NPA is as much a victim of political interference as the families of the victims of apartheid-era atrocities and human rights violations.
“For want of a nail, the horse was lost, for want of a horse, the king was lost, for want of a king, the kingdom was lost,” or so the supposedly politically independent institution tasked with the pursuit of justice for all South Africans would have people believe. They didn’t lose the nail, it was taken away from them and there was nothing they could do about it.
The NPA’s lack of enthusiasm to deal actively with political interference puts it in an awkward position – at worst guilty of perpetrating a further crime against those who have spent decades searching for answers; at best an accessory to the crimes of political interference committed by those in government. Either way, it is not adequate for the NPA to point to newly increased capacity in the Priority Crimes Litigation Unit (PCLU) or the reopening of the inquest into the death of Neil Aggett as evidence of its commitment to pursuing justice. These should have happened long ago, after the PCLU was set up with a specific mandate in 2003 to investigate TRC cases, following the handover of the commission’s final report to President Mbeki.
“We admit we didn’t do our job, but we’re doing it now so please be patient,” says the NPA. But that isn’t enough because its failure to do its job until now or to alert parliament to interference in its mandate means that perpetrators who did not apply for amnesty and should have been subject to prosecution have escaped justice thanks to the passage of time.
Waiting for interrogators and perpetrators to die
Aggett’s main interrogator Stephan Whitehead died just days before the decision to reopen the inquest was announced, in spite of the fact that his whereabouts had been known for several years and he had been offering his services to intelligence agencies in his post-apartheid reinvention as a security services expert.
The two main interrogators in the Timol case were both alive for many years and the family knew their whereabouts, but both died before that inquest was reopened.
One of the accused in the Nokuthula Simelane matter died after the case was reopened and in many other cases it is likely that time has allowed those who had answers to go to their graves with their secrets.
The NPA has certainly contributed to this situation through the political interference that it suffered, which contributed to long delays in getting answers for families.
At last, public release of TRC victims’ database
Likewise, the Department of Justice has also been found wanting in its attitude to the public release of the TRC’s victims’ database – a collection of potentially rich information for researchers and more importantly for victims’ families to use in their attempts to prosecute. After a nine-year battle between the SAHA and the justice department, these documents have finally been made public.
As Timol’s nephew Imtiaz Cajee pointed out recently in an interview with the Financial Mail: “A wealth of evidence resides in these databases. I am of the view that there are definitely apartheid security records in government institutions, and you can rest assured that some of these are in the hands of former officials.”
He also noted that state documents relating to former members of the apartheid regime and other security files were significant in the reopened inquest into his uncle’s death in 2017, which found that Timol had not committed suicide but had been murdered by the security police.
What really happened to Simelane, Timol and Aggett?
Meanwhile in the matter that first brought evidence of political interference to light and which has set off the recent spate of action in many apartheid-era cases – the prosecution of members of the former security branch for their role in the kidnapping and disappearance of Umkhonto weSizwe courier Nokuthula Simelane – lawyers for the family have been forced to bring and were granted an order to officially declare Simelane dead, allowing them to proceed with a prosecution on the basis that the accused were indeed responsible for her death.
This case has been hampered by bureaucratic wrangling since it began almost four years ago. First, it was an argument about whether or not the current police service should be responsible for paying the legal fees of former members (which they are); then it was the possible bringing of an application for a stay of prosecution by the accused (which the judgment in the Timol matter will likely head off).
Justice Moshidi weighs in
The high court in the Rodrigues judgment didn’t necessarily have to deal with the question of political interference directly, but the judges chose to. They were very clear about the NPA’s duty under the circumstances. In delivering the judgment, Judge Seun Moshidi said:
“Rather than simply succumb to it, it was open and incumbent upon the NPA to have brought this interference into the open.
“Victims of those crimes where investigation and prosecution was being suppressed certainly had the right to know what was happening and why such cases were not being prosecuted. Society as a whole had an ongoing interest in the work of the TRC and the follow-up that the government had committed itself to.
“Parliament, which ultimately represents the legislative authority of the State, had a right to know when the letter and spirit of legislation that it had passed was being deliberately undermined. None of this occurred and the NPA must accordingly accept the moral and legal consequences of this most serious omission and dereliction of duty on its part.
“…. It is also for these reasons that the conduct of the relevant officials and others outside of the NPA at the time should be brought to the attention of the National Director of Public Prosecutions for her consideration and in particular, to consider whether any action in terms of section 41 (1) of the NPA Act is warranted.”
Government must show it can fix and explain its failures
Two approaches have been made to authorities. One is in a letter written by several former TRC commissioners and interested parties to President Cyril Ramaphosa asking him to investigate the issue of political interference. The other comes in a submission made to the Zondo Commission of Inquiry into State Capture by Lukhanyo Calata, son of the murdered Cradock Four activist Fort Calata. Calata argues that the NPA was captured in relation to the prosecution of TRC cases and that as such it should form part of Zondo’s investigation.
With the judgment in the Timol case recommending that those responsible for interfering in post-TRC prosecutions be held accountable by the new National Director of Public Prosecutions, Shamila Batoyi, it is now incumbent on the government not only to show that it can do the job it was tasked with in regard to TRC cases, but also to explain its failings up to now.
The investigation of the very serious and potentially anti-constitutional behaviour of authorities and the use of the prosecuting authority, not as a tool for justice for citizens, but rather a further weapon against them, is not a sideshow to the main act of providing answers about the past. There may be a new gatekeeper but the previous ones need to be brought to book before, they too, like the perpetrators of crimes in the service of the previous regime, escape justice.