While President Cyril Ramaphosa, his government and his police minister and commissioner have all withdrawn their opposition to the R167m constitutional damages claim by victims’ families and survivors of apartheid atrocities, former president Thabo Mbeki and his justice minister Brigitte Mabandla have signalled their intention to fight the case.
The lawsuit, which dropped like a bombshell in the Pretoria high court on January 20, represents the culmination of more than two decades of mostly ineffective legal wrangling and emotional pleading by a score of affected families, across racial lines, for the prosecutions against perpetrators of all political persuasions promised by the Truth and Reconciliation Commission (TRC).
The Foundation for Human Rights (FHR) and 25 affected families argued in their founding affidavits in January, in the country’s largest constitutional damages suit yet, that their search for justice and closure had been deliberately sabotaged by illegal interference in the prosecutions process by ANC cabinet ministers.
The unprecedented claim by the FHR and the applicants, is headed by Lukhanyo Calata, son of Fort Calata of the “Cradock Four” who were abducted, beaten and murdered by Security Branch police in 1985. At the heart of it is what they term “the betrayal” — the ultra-secret negotiations conducted by a cherry-picked group of cabinet ministers under first Mbeki then Jacob Zuma with old apartheid generals to prevent any prosecution flowing from the TRC.
The talks, while highly controversial and aimed at blunting the prosecutorial recommendations of the TRC — 358 perpetrators across the political divide were denied amnesty — were arguably not illegal as the intention was to pass new enabling legislation allowing for an extended, post-TRC amnesty process.
But after the attempt at a deal with the generals fell through on February 17 2003 — the generals demanding a blanket amnesty for all, but the ANC desiring amnesty for full disclosure on a case-by-case basis — the ANC continued, on its own volition, to scuttle apartheid-era prosecutions by interfering in the independence of the National Prosecuting Authority (NPA).
The lawsuit seeks a court order declaring this unlawful obstruction of justice “a violation of the rights of... survivors and families of victims of apartheid-era crimes... to their constitutional rights of human dignity and equality and the right to life and bodily integrity of the victims”.
It seeks to compel Ramaphosa to institute a commission of inquiry into the “suppression of the investigation and the prosecution of the TRC cases” and seeks R167m in damages to establish a trust to ensure TRC-derived prosecutions, to monitor such progress, and for memorialisation “to honour those who made the ultimate sacrifice for SA”.
While legal counsel for respondents such as Ramaphosa, the government, and the police minister and commissioner initially indicated they would oppose the case, within days and in swift succession they formally withdrew their opposition.
Presidency spokesperson Vincent Magwenya told News24 investigative journalist Karyn Maughan in January: “The president deeply appreciates the pain the families have gone through for the many years they’ve been seeking justice and closure on the killings of their loved ones.
“Hence, the presidency has taken the position not to oppose the matter and to rather refer it to mediation, as well as being in support of instituting a commission of inquiry that will look into these delays in prosecutions.”
It was a belated recovery of heartfelt humanity, as the Khulumani Support Group of elderly apartheid victims led by the indefatigable Nomarussia Bonase, had been camping on the pavement outside the Constitutional Court for more than a year in inclement weather, demanding reparations for all 21,748 TRC-identified victims of apartheid.
Although their involvement in the secret talks with the generals and the subsequent NPA interference is key to the applicants’ case, Mbeki and his then justice minister Mabandla were not cited as respondents because it is the position of the FHR and the families that it is the inheritors of the state institutions involved that must answer to their charges.
But on March 31, Mbeki and Mabandla applied to intervene, to be added as respondents to the lawsuit, and as such to be given complete sets of the papers filed. Mbeki states in his founding affidavit that “the Calata applicants’ allegations are highly defamatory and damaging of our dignity and reputation. Our character is beyond all price.”
“In such circumstances, Ms Mabandla and I are entitled to intervene to dispute the serious and damaging accusations made and to place direct evidence before this court for it to determine the correctness or otherwise of the serious and damaging allegations against us on which the applicants rely for their relief.”
Mbeki continues: “Ms Mabandla and I dispute the allegation that we, or the administration of which I was president, interfered with the NPA’s prosecution of TRC cases and committed unconstitutional, unlawful and criminal acts as the Calata applicants allege.”
This is the core of the reason they wish to intervene: more than their reputations are at stake — the NPA interference amounts to the criminally seditious undermining of what is statutorily an independent prosecutions entity.
The question is why Mbeki took so long to respond — and why Zuma has never bothered at all.
The claims about cabinet interference in the NPA first came to public attention in 2007 in an affidavit submitted by former national director of public prosecutions (NDPP) Vusi Pikoli in a case brought by a victim’s family against the NPA.
This was followed in 2009 by the first detailing of the secret talks between the SADF generals — led by Lt-Gen Constand Viljoen, and the ANC led by Mbeki and then Zuma — in a report published by German lawyer Ole Bubenzer, based on interviews with Viljoen and the ANC’s convener of the talks, Mbeki’s friend Jürgen Kögl. There was no response to that, but perhaps the report lacked a public profile.
Then, in 2020, neither Mbeki nor Zuma (nor Kögl) responded when asked for comment on a more fully fledged account of the talks for my book Death Flight, based on Bubenzer’s report, and on an interview with and documentation from the convener of the talks on the SADF side, Maj-Gen Dirk Marais.
This icy silence was maintained for several more years despite requests for comment made to Mbeki and Zuma on numerous subsequent stories on the TRC cases that referred to the talks and the NPA interference.
But in February 2024 Mbeki finally cracked and issued a statement: “During the years I was in government, we never interfered in the work of the National Prosecuting Authority. The executive never prevented the prosecutors from pursuing the cases referred to the NPA by the Truth and Reconciliation Commission.”
Asked to assess why Mbeki broke his silence, Maughan told Business Day: “He has kept quiet for so many years; there’s been prodigious writing on this issue [but] he did not seek to challenge the high court ruling that was made that said there was political interference...
“Finally when it came to the constitutional damages, tellingly [it was] the case was brought by all the people who had been so fundamentally let down by this non-prosecution, everyone from the Cradock Four to the Pebco Three and Rick Turner, this entire repository of the ghosts of all those heroes who never got justice, that appeared to be what ultimately moved him.”
Now, in Mbeki’s affidavit, he novelly, and against all the evidence of those involved in the talks who have spoken out, claims the talks with the generals “were solely and exclusively about the demands made by some Afrikaners about such matters as the ‘volkstaat’ and the ‘right to self-determination’.”
Meanwhile, former police assassin and spy Maj Craig Williamson, has questioned why, now that the NPA has reopened 19 TRC cold cases, they only relate to alleged state perpetrators and none to crimes committed by the liberation movements.
Williamson was amnestied by the TRC for bombing the ANC’s London headquarters, and of the parcel-bomb assassinations of activists Ruth First, Jeanette Schoon and her six-year-old daughter Katryn.
“It was what amounted to a civil war, and things were done on both sides that were ethically and morally questionable. We are fully prepared to testify about what was done, but the same must apply to the other side.”
Still sticking to her guns in opposing the constitutional damages suit is, weirdly, national director of public prosecutions Shamila Batohi — the very person on whom the victims and the families of the dead and disappeared are relying for the mere 10 prosecutions still estimated to be viable to finally proceed.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.