Dumisa Ntsebeza has been a nurse to South Africa during some of the country’s most painful and revealing moments, including the Truth and Reconciliation Commission (TRC) and the Marikana Commission of Inquiry.
So when he says he recently lost his son, Xolani, one instinctively wants to reach out to squeeze his hand, or his shoulder, in the hope that touch will bring just a little bit of the healing that he has consistently sought out for fellow South Africans traumatised by the violence of the racist apartheid state and the democratically elected one that succeeded it.
But these are not ordinary times and an interview that would ideally have been done in person – through intellectual and human connection, wisecracks and laughter, through being able to read a person’s eyes and face – is being done over the phone because of the coronavirus pandemic.
There is pain in the silence that follows. Some words of commiseration. An acknowledgement by Ntsebeza “that one can’t philosophise about these things”. A quick reference to the meditation and daily walks he uses to try and clear his mind of the unbearable heaviness that must accompany parents who lose their children; Ntsebeza had lost another son a few years earlier.
Despite an ache remaining in our conversation, we move on to the reason for this call, The Art of Being Human. A documentary that chronicles Ntsebeza’s life, it is being screened at the Encounters Documentary Festival that is available free online until 30 August.
The film is about Ntsebeza’s success, achieved through a deep humanity and sense of justice that propelled him from being a precocious school kid recognised throughout the Eastern Cape village of Cala as a very smart boy, to a senior counsel of great integrity in Johannesburg.
The first failures of time and the TRC
Yet, on the phone, we are talking about failure. The failure of the TRC in particular, which hangs spectrally over postapartheid South Africa. The country is still polarised by race and racism, where a traumatised black population bears the brunt of relentless and harsh inequality.
“The first failure of the TRC was that it was expected to do so much in such a short space of time … So much was expected to be unearthed by the TRC, which was then expected to provide a remedy for these human rights violations, which was an overestimation by society,” says Ntsebeza.
The TRC was scheduled to complete its work in 18 months, later extended to two years. According to the Promotion of National Unity and Reconciliation Act, it was mandated to investigate the period from when the ANC and the Pan Africanist Congress of Azania (PAC) declared hostilities against the apartheid regime in 1960 to May 1994.
These dates, Ntsebeza says, demonstrate another failure for the commission as they exclude the bloody post-1994 period, when the so-called Third Force – the apartheid-era security apparatus that had been funding, training and directing violence against the United Democratic Front and ANC during the 1980s – continued to wreak fatal havoc in various parts of the country through its proxies.
Areas such as Tsolo in the Eastern Cape and Richmond in the southern KwaZulu-Natal Midlands continued to be riven by bloody violence well into democracy. There was, perhaps, no more ghastly example of this than the Shobashobane massacre on Christmas Day in 1995, when a bloodthirsty Inkatha impi, armed with automatic and traditional weapons, descended from the hills above the small, pro-ANC village outside Port Shepstone on KwaZulu-Natal’s south coast and laid waste to everything and everybody in sight.
Nineteen people were murdered and hundreds more injured as huts were looted and set on fire. An atrocity, like many others, that would never come before the TRC.
In 2020, 30 years after Nelson Mandela walked out of Victor Verster Prison, black South Africans’ abiding sense of the country’s failed rainbow nationalist project has been that while so much has been asked of them – to forgive perpetrators, to forget their pain, to ignore the everyday trauma they suffered in a racist society, to drop the unanswered questions about disappeared loved ones where truth was not forthcoming – so very little has been asked of white society.
Ntsebeza says this points to the very heart of the second failure of the TRC, that people who ought to have testified didn’t and of those who did, many lied or failed to fully disclose their part in apartheid-era atrocities but were never prosecuted.
“The letter of the law is very clear,” says Ntsebeza. “At the end of the TRC, there were a number of files not dealt with and I had about 17 files, with about 200 cases for which prosecution was needed, but no prosecutions took place.”
This denied closure – and justice – for hundreds of families who lost loved ones to the apartheid machinery of death squads, murderous police and army personnel, and the Special Branch, as well as those who lost families to the ANC’s human rights violations in exile guerrilla camps across the continent.
Ntsebeza says “what is most offensive is that fact that we now know from statements made by [former National Prosecuting Authority boss] Vusi Pikoli and Anton Ackermann [the former head of the National Prosecuting Authority’s Priority Crimes and Litigation Unit] that there was political interference by the Thabo Mbeki government. That former justice minister Brigitte Mabandla told them to stay away from TRC cases,” he says.
The Priority Crimes and Litigation Unit was tasked specifically with prosecuting TRC cases. But Ackermann and Pikoli both confirmed this political meddling last year, in court papers filed in the case against former Security Branch police officer Joao Rodrigues, who was charged for the 1971 murder of South African Communist Party activist Ahmed Timol.
“The question remains: What is it that the ANC government wanted to keep quiet to not prosecute cases coming out of an instrument of their own creation? … That is the greatest tragedy of all.”
When his question is thrown back at him, Ntsebeza chuckles in his trademark conspiratorial gurgle, which hints at mischief and the love of a good debate. He then says: “Well, both Mabandla and Mbeki are still alive, someone should really ask them these questions.”
We then go on to talk about the human rights abuses in ANC camps, especially in Angola, and if these things that are kept secrets, these “small nyana skeletons” that are never discussed, has contributed to an ANC that embraces opaqueness over transparency, even when it is no longer preparing for a guerrilla war but actually running a country.
The atrocities are many, especially in the Quatro camp in Angola and in Zambia. They include former arts minister Pallo Jordan being kept in a chicken coop outside Lusaka for several weeks, where he was interrogated about being a spy by Mbokodo, the ANC’s counterintelligence wing. Mbokodo leader, former president Jacob Zuma, was conveniently not in the country when he was to have testified before the TRC.
The life of Bra D
It is difficult to talk about The Art of Being Human without talking politics. But this is the life of Ntsebeza, who is affectionately known as “Bra D” in the legal fraternity and more widely.
The film reveals how this son of Cala in the Pondoland area of the Eastern Cape – Ntsebeza is quick to point out that another esteemed advocate, Tembeka Ngcukaitobi, and Minister of Mineral Resources and Energy Gwede Mantashe also come from this area – was made politically conscious at a young age.
In the film, Ntsebeza remembers reading a 1966 report about the political assassination of then prime minister Hendrik Verwoerd by Dimitri Tsafendas, which noted that students at the University of Fort Hare had “celebrated” the news. “This caught my eye, and strengthened my resolve to go there,” he says.
Expelled from Fort Hare, where he is now the chancellor, because of his political activity, Ntsebeza eventually found a job at Jongilizwe College for the sons of Bantustan leaders, amakhosi and rural headmen.
Ntsebeza, who with activists such as Matthew Goniwe was now a member of the People’s United Front for the Liberation of South Africa, would teach future Bantustan leaders like the then Transkei’s General Bantu Holomisa.
But for the teacher who was known to his students by the moniker “The Cat”, for his cool-as-you-like demeanour, jazz hipster vibes and sartorial sense, this was an opportunity to subvert the curriculum, which included subjects such as current affairs, African law and the conduct of public events.
Ntsebeza remembers well-resourced classrooms with radios to pick up the news and a well-stocked library, to which he added various newspapers so that students could read more widely.
“When we dealt with the history of decolonisation in Africa, we looked at the rise and fall of the Portuguese Empire, which allowed us to look at Angola, Mozambique and Guinea Bissau [where the liberation movements were influenced by communism], so you had to deal with things like the philosophy of Marx and things like that. This legitimately allowed me to introduce these children of chiefs and headmen to all these -isms and -schisms,” he says with another chuckle.
Ntsebeza was arrested soon after a visit by the minister of education at the time and was inspired to become a lawyer because of the “courageous” manner in which his own defence advocate had sought to keep him out of jail.
The Marikana massacre
Ntsebeza would become one of South Africa’s best human rights lawyers, defending activists all through the 1980s and its brutally repressive states of emergency.
His work at the TRC was propelled by the notion of “never again”, that such bloody-minded atrocities perpetrated by the state would never happen again.
Yet in 2013, a year short of South Africa celebrating 20 years of democracy, Ntsebeza stood up in a municipal hall in Rustenburg on behalf of the families of the majority of the 34 mineworkers murdered by the police at Marikana on 16 August 2012.
When he stood up, Ntsebeza pointed to the empty seats in the auditorium and asked the commission’s chairperson, retired Supreme Court of Appeal judge Ian Farlam, why the people for whom the truth-finding nature of the commission, the families of the dead men, were not present.
This was a pivotal point early on in the commission. It was an attempt to humanise it. To put a human face to the suffering of those left behind and to lend import and significance to the lives of the men who were mowed down, or hunted down and killed, by the police. To restore justice to the families and humanity to the relatives they had lost.
The interview happens a day after the eighth anniversary of the Marikana massacre. Inevitably, our conversation again turns to failure: Of Farlam, who did not find that “the police acted in a manner that could have been avoided, but anyone who analyses the evidence can only come to that one conclusion”. The failure of the South African government to finalise compensation settlements eight years later. The failure of President Cyril Ramaphosa, then a non-executive director of mining company Lonmin, to reach out to the families of the deceased, as promised, and apologise to them. The failure of the South African police to act in a way that suggested it had transformed in its thinking, personnel and actions. The failure of a South African democratic project to hold true to the promise of “never again”.
“I never thought it would happen again. Never, never,” says Ntsebeza. “But we should have seen it coming. The warning signs were there when Andries Tatane was shot dead by police at close range on television. We must always look out for the warning signs,” he says.