Former president Thabo Mbeki and erstwhile Justice minister Brigitte Mabandla want to intervene in the R167 million constitutional damages case brought by survivors and victims of apartheid human rights violations to protect their reputations.

For several years, Mbeki and Mabandla have been accused of exerting political pressure on the National Prosecuting Authority (NPA) and the police not to pursue hundreds of cases referred to law enforcement agencies by the Truth and Reconciliation Commission (TRC).

Earlier this year, several survivors and family members of victims of gross human rights violations under apartheid and the Foundation for Human Rights (FHR) approached the Gauteng High Court, Pretoria.

The survivors and victims’ relatives want a high court declaration on the conduct of the offices currently held by President Cyril Ramaphosa and his government, Justice and Constitutional Development Minister Mmamoloko Kubayi, her police counterpart Senzo Mchunu, National Director of Public Prosecutions Shamila Batohi and SAPS national commissioner General Fannie Masemola in unlawfully refraining and/or obstructing the investigation and/or prosecution of apartheid-era cases referred by the TRC to the NPA or unlawfully abandoning or undermining them.

They also want the conduct to be declared a violation of their right and more generally the families of victims and survivors of apartheid-era crimes to equality, dignity, and the right to life and bodily integrity in terms of the Constitution.

The court has been asked to declare the conduct inconsistent with constitutional values and the rule of law as enshrined in the Constitution as well as the principles, values, and obligations arising from the Promotion of National Unity and Reconciliation Act read with the postscript to the Constitution.

The survivors, families, and relatives want the government to pay constitutional damages for purposes of affirming constitutional values, vindicating the rights of the applicants and families, and deterring future interference.

In total, the R167m constitutional damages include about R115.3m over five years for purposes of enabling families and organisations supporting families to advance truth, justice, and closure by assisting them to pursue investigations and research, inquests, private prosecutions, and related litigation.

Another R8m over five years will be to enable families and organisations supporting families to play a monitoring role in respect of the work of the policing and justice authorities charged with investigating and prosecuting the TRC cases.

They also want R44m over 10 years to enable families and organisations supporting families to pursue commemoration, memorialisation, and public education activities around the TRC cases including the holding of public events, publishing of books, and making of documentaries.

They want the high court to direct Ramaphosa to promulgate, within 30 calendar days of its order, the establishment of a commission of inquiry chaired by a sitting or retired judge designated by Chief Justice Mandisa Maya. The commission will look into the delays in investigating and/or prosecuting the TRC cases and identify and establish whether, why, and to what extent and by whom, efforts or attempts were made to influence or pressure members of the NPA and/or the SAPS to stop investigating and/or prosecuting TRC matters.

The government, Ramaphosa, Kubayi, Mchunu, and Masemola have made a U-turn after initially indicating they were opposing the application by survivors and victims' families.

Mbeki, who was the country’s president between 1999 and 2008, and Mabandla, who was Justice and Constitutional Development minister from 2004 and 2008, both are alleged to have engaged in unconstitutional, unlawful, and criminal conduct.

"Those allegations are highly defamatory and damaging to our dignity and reputation. Our character is beyond all price," Mbeki explained in his affidavit filed last week.

In addition, Mbeki and Mabandla insisted that if the allegations against them were upheld, even though they were false, they would unjustifiably breach their right to human dignity.

He stated that because they are accused of interference with the NPA and its prosecution of TRC cases for alleged personal or private organisational interests, the current government may contend that the high court must find that there was unconstitutional, unlawful, and criminal conduct by him, his administration and Mabandla and that it was contrary to the public interest because the government and the public have an interest in protecting the rule of law and ensuring good governance.

"If the court were to make a finding along these lines, Mabandla and I may be exposed to potential personal liability by those that claim to have been victims of such unconstitutional, unlawful, and criminal conduct or whose claims derive from the rights of such victims," the ex-president explained.

Mbeki told the court that they fear being exposed to loss of indemnity as former government functionaries.

"Such a risk has far-reaching implications for our legal rights and financial interests," he added.

Mbeki said to the extent that common law does not accord them the right to intervene, common law rules must be developed in terms of the Constitution to recognise the right for a party to intervene as a respondent in the circumstances of the present case.

"Those circumstances are where the present administration is challenged for breaches of the Constitution relying directly on and only on the alleged conduct of the former administration, where named members of the former administration are expressly and directly alleged to have acted in an unconstitutional, unlawful, and criminal manner," he explained.

"This court would fail to promote the spirit, purport, and objects of the Bill of Rights if it does not develop the common law to recognise our right to intervene in such circumstances."

Cape Times

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