Maverick Citizen

MAVERICK CITIZEN: TUESDAY EDITORIAL

Apartheid-era crimes: A commission of inquiry is needed to establish the truth

The Cradock Four memorial overlooks Lingelihle and the town, from a hill visible for miles around. (Photo: David Forbes)

The former TRC commissioners and the families of victims of apartheid-era crimes believe that a commission of inquiry is the only way to bypass the vested and conflicted interests of political leaders who are hiding the truth.

Judging by the happenings at the Zondo Commission, the reports of ongoing corruption and the desperate poverty so many people find themselves in, the ANC has a lot to answer for.

But in the quest for renewal and unity based on principle and public service, one of the issues it must also provide answers for is why 300+ cases handed over by the Truth and Reconciliation Commission (TRC) to the National Prosecuting Authority (NPA) in 2003 for further investigation continue to gather dust.

In March 2021, a fresh appeal for President Cyril Ramaphosa to act was written by former commissioners of the TRC. Their plea had been made several times before, as well as by families of victims and 18 of South Africa’s leading human rights organisations.

However, in light of the stonewalling and non-responses in the past (the first letter was written in 2019), the latest letter calls for the president to:

“Appoint, without further delay, an independent commission of inquiry into the suppression of the TRC cases in terms of the Commissions Act 8 of 1947, with the necessary powers to compel the production of testimony and evidence.”

A proposed terms of reference for the commission “to investigate the alleged suppression of cases referred by the TRC to the NPA” is also attached to the letter.

Unfortunately, as with past letters, it seems it didn’t merit the president’s consideration. In May, a letter of acknowledgement was received from the acting head of legal and executive services in the Presidency, passing the buck to the Department of Justice and Correctional Services. Since then, silence. Again.

Is this how little we value ensuring criminal justice against those who murdered many of our heroes? 

Why another commission? 

The former TRC commissioners — Yasmin Sooka, Archbishop Desmond Tutu, Fazel Randera, Dumisa Ntsebeza, Mary Burton, Richard Lyster and Glenda Wildschut — and the families feel that a commission of inquiry is the only way to bypass the vested and conflicted interests of political leaders who are hiding the truth.

Calling for a commission is a last resort needed to compel the state to reopen the cases of the people who disappeared and died at the hands of apartheid-era security operatives with probable sanction by high-ranking political players and apartheid government appointees.

The Cradock Four are a case in point. The anniversary of their murder in 1985 falls on 27 June.

For nearly three decades there have been too few honest answers about just how far up the chain of command complicity crept. Nor is it clear why these individuals are being protected even now, 27 years into democracy, by an ANC government.

Last week we marked another June 16th.

We remembered once more those killed during and after that uprising. Yet, the whole truth remains elusive and still unsettles the birth story of South Africa’s democracy. The negotiations that led to the miracle of 27 April 1994 were clearly not just about necessary trade-offs and compromises on constitutional questions. The suspicion is that there were also dark deals with devils and unspeakable pacts aimed at protecting guilty parties on both sides from exposure and prosecution.

The question is: who still benefits from cover-ups and the continued suppression of information and why?

As we witness the noble quest to find the truth around State Capture, the government and ANC must come clean about other forms of corruption and complicity. And if it won’t, an independent commission must compel it to.

It’s necessary for families of victims who ache still for answers.

But it’s also required because otherwise, a series of court rulings recognising and condemning political interference in blocking prosecutions seemingly hold no weight. Ignoring the much-vaunted rule of law can only spell further peril for democracy.

As far back as 2015, Vusi Pikoli, the former national director of public prosecutions (NDPP), and Anton Ackermann SC, former head of the Priority Crimes Litigation Unit, submitted affidavits disclosing evidence of political interference in the prosecution of the TRC cases by Cabinet ministers and senior officials in the SA Police Service. 

In 2019, former Security Branch cop and murder accused Joao Rodrigues bought a case against the NPA seeking a stay of prosecution for his role in the murder of anti-apartheid activist Ahmed Timol in 1971. In its judgment, a full Bench of the Gauteng North High Court recognised and rebuked the NPA for permitting political interference and said (at para 64 & 65):

“Society as a whole had an ongoing interest in the work of the TRC… Parliament, which ultimately represents the legislative authority of the State, had a right to know when the letter and spirit of legislation that it had passed was being deliberately undermined. None of this occurred and the NPA must accordingly accept the moral and legal consequences of this most serious omission and dereliction of duty on its part.

“There must be a public assurance from both the Executive and the NPA that the kind of political interference that occurred in the TRC cases will never occur again. In this regard they should indicate the measures, including checks and balances, which will be put in place to prevent a recurrence of these unacceptable breaches of the Constitution.”

This still hasn’t happened.

In fact, on Monday when the SCA dismissed Rodrigues’ appeal, it recorded that there “was indeed interference with the NPA… as a result of an executive decision”. It called this “perplexing and inexplicable”. It also noted that “The Full Court rightly recommended a proper investigation into these issues by the NDPP and a determination whether any action in terms of s 41(1) of the National Prosecuting Authority Act 32 of 1998 (NPA Act) was necessary.” 

In May, Krish Naidoo, speaking as the ANCs’ legal expert on My Father Died for This, an Al Jazeera documentary about Lukhanyo Calata’s quest for truth and justice, said that there was “no explanation” for the non-prosecutions — “it could have been lack of focus, bad planning, not being prioritised properly” and that “some matters would have slipped through the cracks”.

This response shows how easy it’s become for the ANC to dodge accountability and why a commission with legal teeth has become a necessity.

Naidoo’s comments are also a damning revelation that the ANC never took seriously its responsibility to put in place frameworks or mechanisms to effectively continue where the TRC left off.

It’s time the ANC breaks its silence and names the individuals who deliberately blocked (and are still blocking) the investigations politically and procedurally.

Naming names and demanding that they answer questions about their motives is the starting point to mapping the web of complicity.

But time is of the essence. According to leading human rights lawyer Yasmin Sooka, “We are now in a major battle against time and age.”

Each passing year those implicated in murders they committed decades ago get to claim more strongly fading memories as their defence. If we don’t act fast, the ageing cohort of killers, from foot soldiers to senior politicians; suspects and witnesses alike, are likely to never testify. The danger is they will go to their graves with information and secrets that might provide answers for families who will never know what happened to their loved ones in the last weeks, days and moments of their lives.

It also has the damning effect of keeping the door slammed shut on reparations for families of victims. And so the cleavages in society pull still further apart without a strategy for redress and restitution for historical injustices.

That the ANC has allowed this to happen is a shameful middle finger to those who stood for and died for liberation in South Africa. 

This makes the call for a commission of inquiry not just about the 300 families that have been forgotten and ignored, but about every South African who needs light to be shed on a dark history so a true new dawn can begin to shine above the clouds of our past. DM/MC

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All Comments 13

  • Every single word you wrote, every single sentence, is true. What concerns me is the immense effort made to investigate (expose) things that happened from 1946 to the early ninety-nineties. When will this sorry saga ever end? What real benefit is there to do all this? When will South Africa ever move forward? The hatred I saw in the eyes of Ahmed Timol’s nephew for the crime committed by security police when his uncle was murdered is just difficult to fathom. He was not even born when his uncle was murdered, but this hatred that he has, and the desire for revenge, is difficult to understand. Off course the crimes by the apartheid government is a crime against humanity, and should be punished. But where does it leaves us, the current generation, and our young kids. Do we really want our young people to be reminded of the past, is there any benefit in it? All it does is to increase racism and hatred against each other. The dream of Nelson Mandela to have a unified country, a rainbow nation, will never materialise if the past is held onto at all costs, at the expense of the future. Our country has slowly but surely slide into into a country of despair. Joblessness, poverty, fighting against crime/corruption, building our infrastructure, and unifying people of all races, that is where our efforts should be. But I guess to many it is more important to hang on to the past at all costs. This country can thus not move forward, and our kids, and the future generations, will suffer the consequences of things that is happening today, not 50 years ago. Let those guilty be punished, but for heavens sake, concentrate on the current, not on history

  • Human rights of millions are being trampled on on a daily bases
    In Zimbabwe
    In South Africa
    What is happening in SA today is that the past is used as a smoke screen for the nefarious activities of the day, digging further will only cloud the present issues.
    All our effort today has to go into getting our country to at least what it was in 1994
    -clean water
    -good roads
    -a working Eskom
    -functioning schools and hospitals

  • This would be a useless exercise that will serve no purpose except to give the ANC another opportunity to detract from its criminal trashing of the country right now.

  • Maybe there are many skeletons in the ANC’s cupboard (pun intended). Maybe prosecuting those guilty of apartheid crimes would offer the accused with a courtroom platform to provide some keys to that cupboard in order to argue mitigating circumstances. Think Quatro, think the KZN wars in the 90’s, think landmines on farm roads, think murder of worshippers in St George’s Cathedral, think impimpis, etc. Do we really know the full story behind these and so many other events? All we have is the ANC’s version of history.

  • This gives scant hope that anything will happen post the Zondo Commission.I also don’t understand how prosecuting people for crimes against humanity that took place decades ago will serve any purpose accept to perhaps re-open the wounds of the past.

  • Here we go again. We can’t even investigate and prosecute recent crimes that have had far more impact on more the people of this country but we now want to go scratching over earth that has already been turned over. Or is this just an attempt to brush the findings of the Zondo commission under the carpet? Mark Heywood, I can understand and appreciate your interest in this part of history but let’s face it the SAPS are no closer to solving the murder of a soccer player ten years ago than they were at the time of the crime. So let’s concentrate on this current bunch of skelms before we go back to what the TRC should have done and should have followed up on.

  • This is a matter that does need a spotlight on it. Like slavery and the holocaust ignoring the details leaves the door open for denialists. Yes the ANC will blame apartheid but if the facts are out there then the ANCs crimes will also be hung out to dry in public view. It may seem a luxury to work on the past as well as the detritus of corruption, but if its not done, we and future generations will surely pay for our neglect of due diligence in sifting through the rubble of our past and choosing our truths and enemies arbitrarily. If the government is stonewalling maybe a few journalists and academics could get the demolition ball swinging..

      • Karathine, I agree with you but where is the capacity? The NPA cannot cope with what they have and the SAPS, including Hawks and SIU, are completely inadequate for the job. And the problem is where do we stop. The Anglo Boer War was probably one of the unfairest wars in history of man but it happened because of things way beyond the control of anyone in this country. Do we investigate that? Not a chance because we know what the cause was.

        • Apologies, I digressed there. We have to remember these things so that we don’t repeat them. Unfortunately, every generation needs to learn it’s own lessons.

  • Already posted a comment, whom seamed to agree with, and more. Mr Haywood, having high regard for you as a journalist, I just wonder why you wrote this article? What motivated you? Are your feelings so strong for this issue that you are prepared to place an enquiry such as this ahead of all the current crimes, especially treasonable crimes committed by a president of the country, for which it seems “less than likely” action will ever to be taken. But as a result of him, and those supporting him, anyone naught plus 1 day old or older will have to suffer the consequences thereoff for their entire lives. If you do, can you please also write an article of support for an enquiry into a crime of humanity and war crimes by the British Government in the Boer War of 1899 to 1902, against millions of Blacks killed by the British especially in what is now called Kwazulu-Natal And then, the brutal murder of White (and some Black) women in the then concentration camps, of whom my great, great Grandmother was one!

  • Mark i will not argue with your premise but add ANC era crimes too the inquiry for fairness. The destruction and looting of SA has caused at least as much material,emotional,physical and inhumane damage as 40 years of Nazus did if not more.