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Court application seeks commission of inquiry into suppression of TRC cases

by Shakirah Thebus

Picture: Supplied

 

By: Shakirah Thebus

 

A recent court application has brought into the spotlight the failure of the South African Government to hold to account those responsible for apartheid-era crimes through adequate investigation and prosecution of cases.

The litigation filed at the Pretoria High Court cited political interference in cases referred to the National Prosecuting Authority (NPA) by the Truth and Reconciliation Commission (TRC) following the commission’s work, which has seen a delay or “denial of justice” in investigating and prosecution.

The application was brought forward by 22 individual applicants representing survivors and families of apartheid-era atrocities and the Foundation for Human Rights.

The Foundation for Human Rights was established by former President Nelson Mandela and the European Union in 1996, to address “the historical legacy of apartheid and to build a culture of human rights”.

Unfinished Business of the TRC, one of the main programmes of the foundation, provides support to victims of apartheid in their pursuit for justice.

The decades-long delay has seen victims, witnesses, and perpetrators of apartheid-era crimes have either died or become unfit to stand trial.

The application seeking constitutional damages was officially filed last Monday and respondents included President Cyril Ramaphosa, the South African Government, Minister of Justice and Constitutional Development, Minister of Police, National Commissioner of Police, and the National Director of Public Prosecutions.

The respondents have until February 10 to file a Notice of Intention to Oppose the application.

Survivors, family members, and former TRC commissioners and legal representatives briefed the media at the Women’s Jail Atrium, Constitution Hill, Johannesburg last week.

Odette Geldenhuys, of Webber Wentzel said the papers read “one part tragedy, and one part political intrigue.”

“Tragedy because there are a few victims who have survived apartheid-era atrocities, there are many many many thousands of victims who have died because of apartheid-era atrocities and the generational pain that comes with that is ongoing.”

“They are asking basically for two very broad things. The first is for the President to establish a commission of inquiry to investigate why there has been this political interference in the work of the independent National Prosecuting Authority to investigate and prosecute the cases which had been handed over from the TRC when it finished its business, to the NPA…”

The commission of inquiry, if set up, should investigate the political interference and suppression of the TRC cases in the period 2003-2017, as well as identify individuals responsible for this, and make recommendations on reforms needed to ensure a similar interference does not occur in the future.

“The second relief that is being asked for is what we in law call Constitutional Damages. What that means is what the court is being asked to order from the government are sums of money which will be of assistance to all families, to all victims of apartheid-era atrocities to do certain things and those things are to investigate and prosecute in which there are still perpetrators to be prosecuted. It will be funds available to keep a watching brief over the work of the National Prosecuting Authority and the Police.”

Some of the funds will also be utilised for the purpose of memorialisation.

Yasmin Sooka, human rights lawyer and executive director of Foundation for Human Rights, had served on the TRC.

Sooka said: “ When we handed over around 300 cases for prosecution in 1998, we trusted that justice would follow. Instead, the deliberate political interference which is set out in these papers constitutes a decision that abandoned victims and casts aside the principles of dignity, of accountability and truth.”

The applicants have referred to the political interference and “denial of justice” by successive post-apartheid governments, as a betrayal of the victims who had made the ultimate sacrifices and their families who are still living with the pain and suffering.

The application does not seek individual compensation for the applicants or other survivors and victims’ families.

Journalist, filmmaker and author, Lukhanyo Calata, son of one of the murdered Cradock Four, Fort Calata, is the main applicant and representing the families of the Cradock Four.

Fort Calata, Matthew Goniwe, Sicelo Mhlauli and Sparrow Mkonto were abducted, tortured and murdered and their bodies burned by the Security Branch of the South African Police on 27 June 1985. The four activists became known as the Cradock Four.

Calata said the legal challenge was not what he had wanted personally but that there had been no other recourse.

“It’s sad for me, to be at this point, where I have to go to court just to get what was duly mine, justice.”

“There is no other place for me to go to get justice other than to get it from the government. So if the government does not give me justice, what other option do I have?”

He added that the money, should this be granted, would be placed in an independent trust.

Second applicant in the matter is Alegria Kutsaka Nyoka, sister of late student activist and East Rand COSAS (Congress of South African Students) leader, Caiphus Nyoka.

Caiphus was killed by the SAP Riot Unit and the Benoni Security Branch at his Daveyton home on August 24, 1987.

Nyoka shared that her brother was murdered by the Security Forces in 1987 while sleeping in his bed.

“We really feel betrayed as family of victims of the past apartheid-era atrocities, that we waited patiently for years to get justice and we thought when the new government came into power, they will solve and give us the truth that we have been longing to hear and justice for our loved ones that were killed brutally, but unfortunately nothing.”

“The TRC came, we went and presented our cases to their listening ears and we could see they were sympathising with us. Our cases were referred to the NPA for further investigations and prosecutions. Unfortunately, I think the handing over, they did that in 1998 but to date, our cases are still in limbo.”

She added that the government had a moral obligation to give the families the truth.

“It has been long, my brother died 37 years ago. This year it will be 38 years and we don’t know the truth. Why was he killed sleeping? Those answers we need and the only person we rely to give us that answer is the government… It is the justice system that should provide us with those answers… We’ll fight until we die as well.”

 

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