‘We’ll still meet you in court, Cyril’

THE families and survivors of apartheid-era crimes have rejected the President’s proposal that the inquiry into alleged improper influence in delaying or hindering the investigation and prosecution of these crimes also address the declaration of their rights and their constitutional damages claims.

Their reasoning is clear, a commission of inquiry lacks the legal authority to determine rights or grant remedies.

President Cyril Ramaphosa's announcement comes following settlement negotiations with families of victims of apartheid-era crimes who had sued the President and the government for constitutional damages over the gross human rights violations under apartheid.

The families alleged they were denied their right to justice due to political interference and suppression of the cases by the Truth and Reconciliation Commission (TRC), which was established to investigate political crimes such as murder, kidnapping, and torture during the apartheid regime.

“Following discussions involving The Presidency, the families and other government bodies cited in the application, there was a joint agreement to establish the Commission.

“While the parties have agreed to the establishment of the Commission of Inquiry, they were not able to reach a settlement on other matters in the application. These include the application for an order that declares the actions of various government entities unlawful and a violation of the applicants’ rights, as well as the payment of constitutional damages by the State,” Ramaphosa said.

The government maintains these issues should be addressed through the Commission of Inquiry, and will be included in its terms of reference.

However the families intend to continue to seek an order on the violation of their rights and constitutional damages through the courts.

Nombuyiselo Mhlauli, the elderly widow of one of the Cradock Four activists who was killed by the apartheid operatives, said she was waiting with keen interest for the start of the recently announced commission of inquiry.

The Cradock Four were among many whose murders were not accounted for, although the names of those who committed them were disclosed in the TRC. Ramaphosa came up with the commission after allegations that certain leaders of the ANC may have obstructed the NPA's work.

“I would be really disappointed because the comrades that were denied their human rights were also members of the ANC, of which we expected the ANC to hold them in their hands as families and investigate what happened,” Mhlauli said.

Mhlauli stated that she had been waiting for more than 40 years to see justice for her husband and his comrades. She said even the money that was given to the families of apartheid victims was nothing to repair the loss of their loved ones.

“The payment was not given to us according to the TRC recommendations, and we were just given the blanket amount of R30 000 while the cost of living was too high,” she said.

The Cosas 4 families said: “We think it is a breakthrough after waiting patiently for 43 years. The hardest part was when we lost my brother Zandisile Musi in 2021 after suffering for 39 years. As the Cosas 4 family we hope that the commission of inquiry will speed up the process in court and justice should prevail for our long lost family members.”

Webber Wentzel Pro Bono department, which represents 25 survivors and families of victims of apartheid-era crimes and the Foundation for Human Rights (FHR) said the litigation has forced the President to establish the commission of inquiry.

“The President's decision to establish a commission of inquiry to investigate the suppression of TRC cases through political interference is welcomed.

“For the past two decades, the democratic authorities have deprived survivors and families of victims of apartheid-era crimes of truth, justice and closure because they failed to investigate and prosecute these crimes. The survivors, families and the broader community deserve to know why the cases were not investigated and prosecuted,” said Asmita Thakor, a Partner in the Webber Wentzel Public Interest Law department. 

“The remaining relief that our clients are seeking, a declaration that their constitutional rights have been violated by the failure to investigate and prosecute apartheid-era crimes and the payment of constitutional damages to remedy the violation, is still pending before the Pretoria High Court and we have been instructed to persist with the litigation.”

The FHR said they were disappointed because the Commission would ultimately delay justice, as it could only provide recommendations.

While they welcomed the establishment of a commission of inquiry to investigate the alleged political interference, they did not agree to the balance of relief being handled by the commission and sought mediation on the constitutional damages.

“The applicants are very disappointed at the about-turn of the President. In February, the President stated in the media that he deeply appreciated the pain experienced by the families for the many years they had been denied justice. He stated firmly that they needed closure. The President withdrew his notice to oppose the court case and publicly called for mediation to resolve the issues raised by the families and survivors.

“The families and survivors viewed the President’s statement as the first serious acknowledgement of their plight, after so many years of silence on the part of the authorities. The statement that mediation was the way forward was particularly welcomed, as it suggested that the President was serious about resolving their issues expeditiously. It gave them much hope,” the FHR said.

However they were taken by surprise, when just weeks later, the President rebuffed all attempts by the families to commence mediation.

“Instead of entering into mediation, he has decided to offload the declaration of rights and constitutional damages onto a commission of inquiry, which has no authority to deal with it, aside from offering advice. This fundamental shortcoming was pointed out to the President’s legal team, as well as the fact that it will likely result in the issues remaining unresolved for years. This will perpetuate the pain and trauma that the families and survivors have experienced for many years.”

While the President will apply to court to stop the litigation from proceeding pending the outcome of the commission of inquiry (‘the stay application’), the families said they will oppose it as well as intervention applications by former President Thabo Mbeki and former Justice Minister Sylvia Mabandla.

Former TRC investigative unit head, Advocate Dumisa Ntsebeza, said the TRC’s Amnesty Committee ended up with about 300 cases involving perpetrators who were denied amnesty because they did not make a full disclosure of their role in the crimes, while others refused to apply for amnesty and, therefore, should have been prosecuted. However to date most cases have not been prosecuted.

Additional reporting by Bongani Hans.

Cape Times