South Africa has witnessed seismic judicial shifts in the last week, which have a profound moral and constitutional impact on justice, accountability and the rule of law. The Supreme Court of Appeal (SCA) rejected Joao Rodrigues’ appeal against his indictment for the murder of Ahmed Timol. It was followed by the groundbreaking Constitutional Court’s judgement confirming former President Zuma’s contempt of court, and sentencing to 15 months in prison. Judge Sisi Khampepe, speaking for the majority stated ““[i]n our system, no one is above the law. Even those who had the privilege of making laws are bound to respect and comply with those laws.”
In an equally stunning rebuke of the Executive for the political suppression of apartheid-era cases, and of the NPA for its failure to comply with its constitutional obligation to act independently and without fear and favour, the SCA stated that it was perplexing. The SCA judgement prompted the NPA and the DPCI’s joint acknowledgement that “…the unmerited delay of prosecutions of these cases amounts to the denial of justice to the victims of apartheid era atrocities”.
While victims’ families welcomed this acknowledgement and the stated commitment to establish an enhanced capacity within the NPA and the Hawks to deal with the TRC cases, they are clear that any future decisions must be informed by questions of policy, process and substance, and consultations with them.
The painful experiences of these families, highlight how their struggles for truth and justice have been compromised by democratic state institutions, which includes the deliberate failure over the last 23 years to act decisively in these cases.
The NPA’s failure to indict the killers of the Cradock 4 resulted in many perpetrators passing on before providing the truth. We are yet to learn why the four activists were murdered by apartheid-era death squads, or who ordered the shadowy death squads to do so. Commemorating the 36th anniversary of his father ‘s death, Lukhanyo Calata, expressed his anguish that Eric Winter, implicated in his father’s death, is ill and dying and that former president De Klerk also implicated, has cancer.
Imtiaz Cajee, the nephew of Ahmed Timol, while welcoming the SCA judgement in the Rodrigues matter, noted that four years had elapsed since Rodrigues’ indictment. Had the NPA pursued investigations timeously in 2003 when first approached by Cajee, Gloy and Van Niekerk, the security branch officers primarily responsible for Timol’s interrogation and torture, would have been compelled to testify as to their complicity in his murder. Unfortunately, both of them have passed on. Seth Sons and Neville Els, two security branch officers implicated in Timol’s interrogation, are yet to be indicted, despite a directive by Judge Billy Mothle, in October 2019.
The trial of the Soweto death squad for the murder of Nokuthula Simelane is scheduled to begin in August this year, but the delays by the NPA has seen a key accused, Timothy Radebe, who failed to apply for amnesty, dying in 2019. Another accused, Frederick Mong also recently died.
The deaths of critical witnesses, begs the question as to who should ultimately be held responsible for policy decisions amounting to a denial of justice – the Executive or the NPA, or both? Surely the conduct of those implicated in political interference and those who facilitated the political suppression of the TRC cases constitute a human rights violation as well as possibly the criminal act of obstruction of justice. An acknowledgement of the denial of justice is just not enough.
In welcoming the NPA’s and DPCI’s commitment to establish a dedicated TRC unit, it must be noted that the structural obstacles to effective prosecutions remain. The Foundation for Human Rights and the Apartheid-Era-Victims’ Families Group called upon the NPA and the DPCI to establish a dedicated capacity led by a Special Director appointed by the President. To date, no mention has been made of a Special Director - without whom there is room for ambiguity, and no clear line of accountability exists. This is exacerbated by the NPA’s expressed commitment to continue its decentralization policy, which has proven unworkable over the last 18 months. The vetting and screening of former prosecutors and investigators who are being rehired is critical to ensure that those implicated in complicity are not back on the team.
The Minister of Justice’s spokesperson raised the inquiry into the political suppression of the TRC cases but provided no further details. Unless an independent and manifestly transparent commission of inquiry is established, it will just become another cover up. South African society needs to learn that apartheid-era security forces were not on a private frolic and the crimes they perpetrated were apartheid state crimes, constituting crimes against humanity and therefore must be prosecuted as such.
* Yasmin Sooka is a human rights lawyer and former member of the SA Truth and Reconciliation Commission
** The views expressed here are not necessarily those of IOL and Independent Media.