The government, the President, senior government ministers and officials are being taken to court to end grave injustices and failures related to more than 400 cases that the Truth and Reconciliation Commission referred to the National Prosecuting Authority (NPA) in 2003.
The court action expresses the “deeply violated” rights of the litigant 23-member group of families of victims, while also seeking the truth about apartheid atrocities and murders, and the subsequent “brazen interference” in the administration of justice.
It is being led by journalist, author and son of the Cradock Four’s Fort Calata, Lukhanyo Calata, who has filed an explosive founding affidavit that seeks a court order to declare unlawful the in/actions of the six respondents, chief of whom is President Cyril Ramaphosa. The Cradock Four were murdered by the security forces in June 1985, and despite two flawed inquests and the TRC process, the perpetrators have never been brought to justice.
The other five are the NPA, the National Director of Public Prosecutions Shamila Batohi, Minister of Police Senzo Mchunu, Minister of Justice and Constitutional Development Mmamoloko Kubayi, and the National Police Commissioner, Lieutenant-General Fannie Masemola.
The litigants seek relief to end the suppression and obstruction of the investigation and prosecution of apartheid-era cases, restore their constitutional rights, and enforce the rule of law, which they believe has been severely undermined by political interference.
Seeking a commission of inquiry
The affidavit asks the court to force the President to establish within 30 days a commission of inquiry into the suppression of the investigation and prosecution of the TRC cases, saying Ramaphosa’s silence in ignoring calls for a commission of inquiry are inconsistent with his constitutional responsibilities.
Ramaphosa so far has refused to establish such a commission in the face of repeated appeals over the past five years by the families, civil society groups and individuals, and a recommendation by advocate Dumisa Ntsebeza SC, whom the NPA appointed to look into the matter.
It is also in the public interest to have a commission of inquiry, states the affidavit, not only due to public interest in these matters, but also because many of those affected are vulnerable and unable to bring a challenge of this nature.
The other applicants are Alegria Kutsaka Nyoka, Bonakele Jacobs, Fatiema Haron-Masoet, Tryphina Nomandlovu Mokgatle, Karl Andrew Weber, Kim Turner, Lyndene Page, Mbuso Khoza, Neville Beling, Nombuyiselo Mhlauli, Sarah Bibi Lall, Sizakele Ernestina Simelane, Sindiswa Elizabeth Mkonto, Stephans Mbuti Mabelane, Thuli Kubheka, Hlekani Edith Rikhotso, Tshidiso Motasi, Nomali Rita Galela, Phumeza Mandisa Hashe, Mkhontowesizwe Godolozi, Mogapi Solomon Tlhapi and the Foundation for Human Rights. It is, however, not a class action.
Constitutional damages sought
The group is seeking constitutional damages for a total of R167-million, saying the behaviour of the six respondents is not only a violation of their rights, as well as the rights of survivors and families of victims of apartheid-era crimes, but that it also violates their rights to human dignity, equality, right to life and the bodily integrity of the victims.
The damages (if awarded) will be put into an independent trust to advance truth, justice and closure for the families, affirming constitutional values, vindicating the rights of the applicants and their families, and deterring future political or other interference in the administration of justice, and will not be distributed personally to the families (R115.26-million).
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The remaining funds will be used to monitor the work of policing and justice authorities charged with investigating and prosecuting the TRC cases (R8-million) and pursuing commemoration, memorialisation and public education activities, including holding public events, book publishing and the making of documentaries (R44-million).
The affidavit also accuses the six of unlawful obstruction or failure to prosecute apartheid-era perpetrators, and that this is inconsistent with the principles, values and obligations arising from the 1995 TRC Act, the postscript to the Constitution of 1993, the NPA Act (1998), the SAPS Act (1995) and South Africa’s international law obligations.
Ramaphosa’s failure and refusal to appoint a commission of inquiry should be set aside, the affidavit says, and the new commission, led by a sitting or retired judge, should inquire into “whether, why, and to what extent and by whom, efforts or attempts were made to influence or pressure members” of the NPA and South African Police Service to stop investigating or prosecuting the TRC cases. The commission is also envisaged to discover whether any members of the NPA or SAPS “improperly colluded with such attempts”, and seeks to ensure that people found to have acted unlawfully be prosecuted.
The betrayal
Calata’s 260-page affidavit describes the “fundamental betrayal committed by the post-apartheid state against families and victims connected to apartheid-era crimes”.
Calata says of his own family’s experience: “The State-sanctioned abduction, torture, murder of my father and the desecration of his body have had a profound effect on me and my family. The inhuman acts of brutality committed against the family members of my co-applicants and certain of the applicants themselves, have had similarly devastating effects on them.
“We had to endure the murder and disappearances of our family members during apartheid. The post-apartheid era of political interference and denial of justice stand as a deep betrayal of their ultimate sacrifices. The interference adds insult to our injuries and exacerbates our emotional and psychological trauma, as well as the pain and suffering we have endured.
A press conference on the landmark constitutional damages case by survivors and families of anti-apartheid activists. (Photo: Abigail Calata)
“We are at our wits’ end as to why successive post-apartheid governments turned their backs, not only on us, but on our loved ones and so many others who paid the ultimate price for our freedom and democracy.
“The evidence discloses that decisions were taken at the highest political levels to undermine, and ultimately to block the investigation and prosecution of the cases referred by the TRC to the NPA.”
Read more: NPA’s apartheid case shame: State prosecutors have ‘failed’ to investigate crimes exposed by the TRC
“The brutal murder of our family members and the pain that we endure have defined us and our life choices. We have spent decades searching for the truth and struggling to do justice to the lives of our loved ones, which were so brutally cut short. We have done so in the face of the intransigence of the post-apartheid state, which has misled us and treated us with contempt.
“For most of us, it is too late. Our life-long struggle for accountability has come to naught. Suspects and witnesses have died, bringing an end to any prospect of prosecutions in most cases. These cases can never be resurrected… We are deeply scarred and will remain so until our dying day,” Calata’s affidavit states.
Turning to “The Betrayal”, Calata says the families have conducted themselves “with resilience and remarkable patience”. They had all committed themselves to the historical compromises, participated in the TRC process in good faith, including accepting that perpetrators granted amnesty would not face prosecution or civil damages claims.
There was “a general expectation founded on the constitutional obligations of the post-apartheid state that the state would prosecute perpetrators who were not amnestied and provide victims with reparations”.
The TRC and Department of Justice figures together show that 7,112 people applied for amnesty for more than 14,000 incidents, and about 5,034 were refused amnesty for not meeting the basic requirements. The rest were referred to hearings by the Amnesty Committee. Eventually, 849 applicants were granted amnesty, while about 358 were refused, most for murders.
Read more: Thabo Mbeki’s claim that ‘we never interfered’ in prosecuting TRC cases ignores the facts
“We gave up our claims, and in so doing, we spared the post-apartheid state from having to pay a vast sum of money,” Calata’s affidavit continues. “However, the state reneged on both of its constitutional obligations in relation to the post-TRC process… Its cruel and misguided ‘closed list policy’ excluded many thousands of victims from the benefits of reparations. R2-billion in the President’s Fund remains unspent. Successive post-apartheid governments have destroyed the social compact struck with us.
“For several years we have been asking for an independent and open commission of inquiry into the suppression of the TRC cases. President Ramaphosa and the former Minister of Justice, Ronald Lamola, have ignored our requests… We will accept nothing less than a fully transparent commission of inquiry armed with the normal powers of compulsion… to expose the truth behind how such a monumental miscarriage of justice occurred.”
The apartheid-era crimes
Other members of the group represent the families of murdered East Rand Cosas leader Caiphus Nyoka, Mxolisi “Dicky” Jacobs who died in detention in Upington in 1986, Imam Haron who was tortured and killed while in Security Branch (SB) detention in Cape Town in 1969, and the Cosas Four, three of whom were killed and one seriously injured in an SB-orchestrated bombing on 15 February 1982.
Karl Weber and Neville Beling are survivors of the Highgate Hotel Massacre in East London, 1 May 1993. Deon Harris was killed in the massacre.
MK underground operative “Sbho” Phewa from Lamontville, KwaZulu-Natal, was disappeared and later murdered by the SB in May 1987.
Other apartheid-era murders include Dr Rick Turner, assassinated on 8 January 1978 at his Durban home, dying in his daughters’ arms,
The Cradock Four case is perhaps one of the most notorious SB murders of the apartheid era. Two of the widows, Nombuyiselo Mhlauli and Sindiswa Mkonto, are supporting Lukhanyo Calata in that matter.
Dr Hoosen Haffejee was tortured and killed at the Brighton Police Station in Durban in 1977. ANC courier Nokuthula Simelane was abducted, tortured and murdered by the SB in 1983. Matthews “Mojo” Mabelane died in detention on 15 February 1977 while under SB interrogation at John Vorster Square.
MK operative Ntombikayise Kubheka disappeared in Johannesburg at the hands of the SB in 1987 and was never seen again. Richard and Busisiwe Motasi were shot dead by the SB on 1 December 1987 at the family’s Hammanskraal home, in the presence of family members. Nicholas “Boiki” Tlhapi was forcefully disappeared from the Stilfontein police station while in the hands of the SB in March 1986 and was never seen again.
The Pebco Three (Champion Galela, Sipho Hashe and Qaqawuli Godolozi were members of the Port Elizabeth Black Civic Organisation) were kidnapped by the PE SB and the Vlakplaas assassination unit on 8 May 1985 and murdered days later at the remote farm at Post Chalmers northwest of Cradock.
The 23rd applicant is the Foundation for Human Rights (FHR), established in 1996 by President Nelson Mandela and the EU to address the historical legacy of apartheid and build a culture of human rights, and one of its major projects is the Unfinished Business of the TRC which supports efforts of the victims’ families to pursue justice and closure.
Delays, secrecy and obstruction
These cases detail some of the most egregious and brutal acts of the Security Police. All of these matters have been subject to long investigative delays (some as long as 40 years), missing dockets, terrible communication by the SAPS and NPA, broken promises, cancelled meetings, Stalingrad-type court delaying tactics by various accused, and an intolerable and outrageous lack of transparency by public servants and policymakers.
The charges against former askari Thlomedi Mafalpitsa and former SB explosives expert Christiaan Rorich for the Cosas Four bombing in 1982 also include, for the first time, the charge of the Crime of Apartheid, using the Rome Statute’s definition of South Africa’s order before 1994 amounting to “an institutionalised regime of systematic oppression and domination by the white racial group over the black racial group”.
The TRC’s Final Report of 21 March 2003 stressed that amnesty should not promote impunity and required a “bold prosecution policy” to avoid any suggestion of impunity or South Africa contravening its international law obligations. Those charges were finally brought by the NPA in 2021, and then only under severe pressure. DM