OPEN SECRETS: UNACCOUNTABLE 00035
Johan van der Merwe — apartheid’s last police commissioner
General Johan van der Merwe was the last commissioner of the apartheid police. He died on 27 August 2022 before he could face justice for human rights abuses perpetrated by the police under his watch. Why was he never held to account by the democratic state?
In the early hours of 3 December 1988, gunshots ripped through the home of a family in mourning. A relative had just died, and family members had peacefully gathered to pay their respects. But their home would soon be the site of a massacre.
The assailants gunned down 11 people and wounded two. The youngest victim was a four-year-old boy, and the eldest a 66-year-old woman. The killings became known as the Trust Feed massacre, named after the rural community in the Natal Midlands where the killings took place.
In the aftermath, the case publicly exposed how the apartheid police and military had conspired with members of the Inkatha group to assassinate activists in liberation movements, namely the ANC and United Democratic Front (UDF).
At the time the massacre took place, Johan van der Merwe was the Deputy Commissioner of the South African Police (SAP). He had been a career policeman since the age of 16, working his way up from 1990 to 1995 to the top rank of Commissioner .
Van der Merwe led the police at one of the deadliest periods of South African history. The Human Rights Committee (HRC), an important NGO which documented apartheid abuses, estimated that almost 14,000 people died in violence between 1990 and 1994 in a submission to the TRC. Many of these deaths were the result of state-sponsored violence between Inkatha and liberation movements. The HRC attributed the surge of deaths to the “collusion by the security forces” and the “hidden hands of the hit squads”, which were created by Inkatha and the security forces.
In a 2007 submission on Van der Merwe’s conduct, the South African History Archive, the Human Rights Media Centre and the International Center for Transitional Justice criticised Van der Merwe’s role as Police Commissioner in this period.
“Far from maintaining law and order, Van der Merwe, who was Commissioner of Police during this entire period, presided over the most violent and lawless period of South Africa’s history,” the submission reads.
“Van der Merwe’s role in this period should be closely investigated. If anything, his conduct during this period constitutes particularly aggravating circumstances.”
But Van der Merwe died before any investigation into his tenure as SAP Commissioner could begin. His knowledge of the Inkatha death squads, and the systemic killings of liberation activists, was never fully disclosed at the TRC.
Instead, he died after living comfortably on his police pension, dedicating his last years to defending his former colleagues in the apartheid police from prosecution.
The police state
At the TRC, Van der Merwe would have had to answer for his role in the violent, final years of apartheid. Much of this violence was the result of coordinated attacks that devastated townships caught in the crossfire between Inkatha and liberation movements.
A joint operation between the apartheid military, the police and Inkatha led to the establishment of Operation Marion — a training programme by the South African Defence Force (SADF) to train groups of Inkatha recruits.
Operation Marion was funded by the apartheid regime with money from Treasury coffers secretly being funnelled to Inkatha and operatives on the ground.
The project, which ran from 1986 to 1992, was expensive: for the 1986/1987 financial year, the cost of Operation Marion totalled R19.5-million (more than R200-million in today’s terms). It was crucial that the funds for the operation were never traced back to the state to protect the “political credibility” of Inkatha leader Mangosuthu Buthelezi. Cash was also secretly transferred from Armscor for the supply of arms and ammunition.
The operation involved the training of recruits at a camp in the Caprivi Strip in Namibia by the SADF. At least 130 of these recruits became “special constables” employed by the police, who would later carry out orders to assassinate liberation activists. It was these constables who were involved in the Trust Feed massacre.
At the TRC, Van der Merwe was implicated in helping to cover up the crimes of the Caprivi trainees. The TRC found that the police, under Van der Merwe’s leadership, had attempted to secure bail and then hide arrested trainees.
In its final report, the TRC stated that Van der Merwe “must have at least attempted to defeat the ends of justice”.
The commission also found that the special constables “committed gross human rights violations on a wide scale, including killing, attempted killing, torture, arson and severe ill treatment, and that these violations were part of a systematic pattern of abuse for which the former government, and in particular the minister of law and order and the commissioner of police, are accountable”.
These special constables were still in operation in the early 1990s, when Van der Merwe was SAP Commissioner. Van der Merwe told the TRC that the Caprivi recruits were trained only for the purpose of protecting Inkatha head, Buthelezi. He maintained that there was no systemic attempt by police to cover up the violence of the Caprivi trainees, and that each case was investigated fairly.
But Van der Merwe had already been implicated at the TRC in violence and the cover-up of one other killing.
In the late 1980s and early 1990s, South Africa experienced surging violence as the regime’s efforts to suppress resistance harshened and liberation movements responded through armed resistance.
In the period between 1986 to 1988, Van der Merwe was head of the SAP’s most notorious and violent police unit — the Security Branch (SB). Known for torture, hit squads and the killings of people in detention, the SB operated with impunity. As Security Branch boss, Van der Merwe likely knew details of many of the violent atrocities that led to the suffering of at least 600 families who lost loved ones at the hands of the police in the time he led the SB.
Although Van der Merwe testified at the TRC, his submissions were regarded with scepticism by victims and victim support groups who believed he failed to make full disclosures — a requirement for amnesty.
Despite this, the TRC granted him amnesty for numerous violations, including the cover-up of anti-apartheid activist Stanza Bopape’s violent death in police detention in 1988. Bopape died under electric shock torture, and his body was allegedly thrown into the crocodile-filled waters of the Komati River to hide the role of the police in his murder.
Van Der Merwe ordered the cover-up and for years he lied to conceal the facts around the 27-year-old’s disappearance. At the TRC, he maintained that the lie was necessary to prevent further mass action by activists.
The TRC also granted Van der Merwe amnesty in the deaths of eight people killed by hand grenades provided by police in 1985, the bombing of Cosatu House in 1987, and for the bombings of cinema screenings of the film Cry Freedom in 1988.
He was, however, convicted of the attempted murder of Reverend Frank Chikane in 2007. Van der Merwe and his co-accused never applied for amnesty at the TRC for their role in the assassination attempt. In 1989, the apartheid regime attempted to kill Chikane by poisoning him. Van der Merwe, former Law and Order Minister Adriaan Vlok, and two others entered into a plea and sentencing agreement with the National Prosecuting Authority (NPA) in 2007.
The agreement was confirmed by the Pretoria High Court and the group was handed a suspended 10-year sentence, despite the seriousness of an admission of guilt for attempted murder. The Chikane case is the only one where Van der Merwe came close to facing prison, yet there was widespread criminal misconduct by police under his leadership.
For almost 10 years, Van der Merwe was employed in elite, high-ranking positions within the SAP. He applied for amnesty for only six instances of violence, but there were many more under his leadership.
In a joint submission to the TRC with three other former SAP commissioners, Van der Merwe said that “most of the said acts, incidents, omissions did not occur with our afore knowledge, and in some cases, may have occurred against our express instructions”.
However, the TRC found that police and senior leaders were involved in and sanctioned systemic violence to suppress resistance.
Van der Merwe’s failure to disclose his secrets meant that even in his final years, he was committed to protecting the old guard from accountability for the human rights violations they committed.
The eternal apartheid general
One year into South Africa’s democracy, in 1995, Van der Merwe retired from the police. But his former colleagues described his continued dedication to shielding members of the apartheid police from accountability.
The Foundation for Equality before the Law dedicated an online tribute to Van der Merwe after his passing. The organisation, which Van der Merwe helped establish, provides support to apartheid-era policemen to protect them from facing prosecution for past atrocities.
In the tribute, former apartheid policeman Hennie Heymans stated that Van der Merwe “worked every day on cases with associated problems stemming from the past”, while another former policeman, retired general Bertus Steyn, said: “He unwaveringly supported many of our ex-members.”
Van der Merwe also co-founded the Former SAP Members Benevolent Fund — a fund to support the “welfare” of former apartheid police officers — and was chairman of the Old SAP charity trust, a formalised donation trust for his former colleagues.
He maintained that liberation activists — particularly those in the ANC — must be prosecuted for crimes related to the anti-apartheid resistance. However, Van der Merwe defended his own colleagues from the same fate.
At every turn, the democratic government and its institutions gave Van der Merwe and the old guard the chance to escape justice.
The TRC provided an amnesty process in the hope that full disclosures would be made, but it was also premised on prosecutions for those denied amnesty — a sore point for families who still wait for justice.
In addition, the Mbeki administration offered a mechanism for those implicated in apartheid crimes to apply for presidential pardon. Van der Merwe and his co-accused applied for pardon for their attempt to kill Chikane. Their application ultimately failed after the Constitutional Court struck down the entire presidential pardon process because it did not include victim participation.
The delays in justice by the NPA and Hawks have only added further opportunity for perpetrators of human rights violations to evade accountability. In various unfinished TRC cases, the families of victims have waited decades for those accused of torturing and killing their loved ones to face prosecution.
The TRC referred 300 cases to the NPA for prosecution, but in the past 20 years, there have only been four known indictments in TRC-related cases. The Chikane case also appears to be the only TRC case which has successfully gone to trial.
The Stalingrad-like delays employed by former apartheid police officers to fight justice — and the NPA and Hawks’ slow-paced action — have meant that implicated former police officers are succumbing to old age before they can be brought to justice.
The wait for justice
In 2021, Lukhanyo Calata, the son of Fort Calata, and the widows of Matthew Goniwe and Sicelo Mhlauli, launched a court action to compel the Hawks to finalise its investigation, and for the NPA to decide if it would prosecute the case of the “Cradock Four” who were killed by apartheid security forces in 1985.
Calata, Goniwe, Mhlauli and their friend and comrade Sparrow Mkonto had been influential activists in the town of Cradock in the Eastern Cape. In his affidavit, Calata described the pain caused by the failure of law enforcement agencies to ensure justice was done.
“My family and I have not rested since the murder of our beloved father and husband, Fort Calata. We did not expect the former South African Police to investigate themselves. However, we firmly believed that the new democratic South Africa would take the necessary steps. We were wrong.
“This was a betrayal of the Cradock Four and everything they stood for. This betrayal cut the deepest. It deprived me and my family of closure and our right to dignity,” Calata said in his affidavit.
Van der Merwe was cited as a respondent in the matter. At the time of the killings, he was the SB deputy commander and may have had access to vital details about the killings of the high-profile activists. But the slowness of the NPA and Hawks has meant that Van der Merwe’s involvement in the Cradock Four killings was never established by the time he died, more than 20 years since the case was first handed to the NPA.
The TRC cases were transferred to the office of the NPA’s National Director of Public Prosecutions after a directive was issued in 1999. In June 2018, Calata met with then NPA national director Shaun Abrahams for an update on the case. But by that time, the Cradock Four docket had already been lost by law enforcement agencies.
The application to compel the NPA and Hawks to do their jobs is a significant step toward justice, but one that shouldn’t be necessary.
In court papers, the NPA accused the Calata, Goniwe and Mhlauli families of unreasonableness in bringing the application, stating that the families haven’t considered the impact of Covid in the delays, and the limited resources available to the NPA to complete these matters.
The NPA’s Priority Crimes Litigation Unit (PCLU) has been tasked with handling TRC cases, but the unit has itself been mired in controversy over years-long allegations of political interference and misconduct in State Capture cases.
In 2015, former PCLU head Anton Ackermann and former NPA national director Vusi Pikoli revealed the extent to which the Mbeki administration interfered in the prosecuting authority to stall progress on TRC cases.
The failure of law enforcement agencies to prioritise TRC cases and rebuild capacity to deal with serious crimes of the past has allowed former policemen like Van der Merwe to escape accountability forever.
Van der Merwe’s legacy is marred by his failure to tell the truth and fully disclose what transpired while he was in leadership roles within the SAP. His colleagues may laud him as a hero and eternal serviceman, but the families of victims will remember him as the violent oppressor who was never held to account.
Unaccountable, we have not forgotten. DM
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