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JUSTICE DELAYED

NPA’s apartheid case shame: State prosecutors have ‘failed’ to investigate crimes exposed by the TRC

NPA’s apartheid case shame: State prosecutors have ‘failed’ to investigate crimes exposed by the TRC
From left: Advocate Dumisa Ntsebeza. (Photo: Gallo Images / The Times / Trevor Samson) | Apartheid-era minister of defence Magnus Malan. (Photo: Gallo Images / Oryx Media Archive) | Journalist and author Lukhanyo Calata. (Photo: Gallo Images / Netwerk24 / Jaco Marais) | Advocate Vusi Pikoli (Photo: Gallo Images / Nardus Engelbrecht)

Former NPA head of prosecutions Vusi Pikoli welcomes proposals for a probe into allegations of political interference but remains sceptical about the political will of those in government to investigate their cadres.

The National Prosecuting Authority is in danger of not meeting its five-year deadline to conclude investigations into apartheid-era crimes referred to it by the Truth and Reconciliation Commission. 

This is according to a recent report concluded by advocates Dumisa Ntsebeza SC and Sha’ista Kazee who concluded a three-month probe into the workings of the NPA’s TRC component.

The investigation was commissioned by the NPA to determine whether the unit’s structure was effective for investigating and concluding 133 outstanding TRC-related cases linked to apartheid-era crimes.

The NPA has faced numerous problems in getting through these cases, including internal processes, lack of political will, the lapsing of time and cooperation with the police, the report pointed out.

“The need for a legal opinion of this type, some two-and-a-half decades after the conclusion of the work of the Truth and Reconciliation Commission, is a devastating indictment on South Africa…

“It is evident, though, that in our modern history, we have failed to honour those who suffered for justice and freedom in our land.

“Our finding is that the NPA, the state entity responsible for discharging the mandate to bring justice to the victims and survivors of apartheid-era crimes between 1 March 1960 and 5 December 1993, has failed in its mandate,” the report says.

Read more in Daily Maverick: Durban anti-apartheid activist Hoosen Haffejee was murdered, finds judge who slams NPA for failing to pursue TRC cases

The NPA set up its TRC component in September 2021 within the office of Deputy National Director of Public Prosecutions, Rodney de Kock. The unit is currently dealing with 133 cases referred to the NPA by the TRC, in matters where amnesty was not given or the alleged perpetrators did not come forward to give evidence.

Although it has dedicated staff, including 25 prosecutors and 40 investigators, the report raises concerns about the slow progress of the cases. 

The component has categorised its work into three groups:

  • A – cases where evidence still needs to be secured.
  • B – cases that need expert reports and DNA analysis.
  • C – cases where the investigation is nearing completion.

An examination of this categorisation showed that 64% of the cases are still in Category A, 10% are in Category B and only 24% – nearing the end of investigation – are in Category C.

“It is apparent that the majority of cases remain at the beginning stage of the investigation and require the location of and access to available evidence, the docket and the inquest report, for example. 

“It is surprising and concerning that the majority of cases remain in Category A, despite the passing of some 22 months of dedicated and focused work by the investigating officers and prosecutions working together.

“If the documents cannot be located over 22 months, in circumstances where there are full-time investigators and prosecutors on the task, it is inconceivable that these matters will move forward at an expedited rate and be prosecuted over the next five years,” the report says.

‘Systematic obstructions’

Ntsebeza and Kazee spoke to several investigating officers and prosecutors working on the cases and heard about some of the causes of the delays.

For instance, they had problems accessing important documents and tracing potential witnesses due to the amount of time that had passed. 

They also found that former police Special Branch members refused to cooperate, including those already given amnesty during the TRC process.

There had also been “delays in securing legal representation for accused persons who are former South African Police and Security Branch members”, which Ntsebeza and Kazee believe are “readily capable of resolution”.

“The consequence of the impasse is of serious concern because any delay by the SAPS in authorising the funding of legal representation to alleged perpetrators means that the matter is incapable of proceeding in court.

“This creates a backlog on the court roll and raises the grave possibility of the prosecution being struck from the court roll.

“It is lamentable that even after a decision to prosecute has been taken, cases are capable of being held hostage by another organ of state,” the report said.

Ntsebeza and Kazee note that the SAPS is “capable of effectively stymying the progress of TRC-related cases at the investigation stage”.

Read more in Daily Maverick: The secret ‘Pact of Forgetting’ and the suppression of post-TRC prosecutions

“The impasse concerning payment for essential work carried out by the SAPS Forensic Unit in Pretoria, particularly for scene reconstruction and simulation, and the finalisation of the report, also falls to be addressed at the national level.

“It is these systemic obstructions which may well result in the TRC component not meeting its five-year target.”

Ntsebeza and Kazee also note that the lack of progress in investigations and frequent changes in investigators has left the affected families with a “deep distrust of the investigation and prosecution process”, which is “not without foundation”.

Commission of inquiry

Ntsebeza and Kazee also investigated whether there was a need for a deeper look into allegations of political interference within the NPA, allegations which, if found to be true, would amount to criminal misconduct.

It has recommended a full commission of inquiry be set up in terms of section 84 2(f) of the Constitution or the Commissions Act of 1947 “to investigate the extent of, and rationale behind, the political interference with the NPA between the period 2003 to 2017.”

The report notes that while the allegations of interference have been made publicly, this legal opinion did not have full investigative powers that would allow it to subpoena witnesses. 

It has recommended that if an inquiry is set up, senior officials be subpoenaed, “including former president (Thabo) Mbeki and the former ministers of justice, police and defence”.

It also recommends the calling of the former heads of the National Intelligence Agency, the Special Investigating Unit and the now defunct crime-fighting unit, the Scorpions. 

The NPA is yet to confirm whether it will request the President to set up such an inquiry, as required by the Constitution.

Read more in Daily Maverick: The Truth and Reconciliation Commission has still not resulted in restorative justice

Former NPA head Vusi Pikoli, who previously complained about political interference in efforts to prosecute the TRC-related cases, told Daily Maverick that such an inquiry “all depends on political will on the part of the government”.

“Given the fact that it might implicate members of the former government, including ministers and senior officials, it would be like government taking itself to court,” he said.

Pikoli noted, however, that there was a legal obligation to fully probe allegations of interference in the work of the NPA, and criminal consequences attached to this through the NPA Act.

“The NPA is expected to carry out its function without interference. An inquiry won’t help the victims but it will serve as a deterrent in the conduct of government ministers to act in terms of the law and that there are consequences,” he said.

Lukhanyo Calata, whose father Fort was murdered along with Matthew Goniwe, Sicelo Mhlauli and Sparrow Mkhonto – the “Cradock Four” – welcomes the finding that a commission of inquiry should be set up.

“We haven’t had an inquiry into this issue. The Zondo Commission had nothing to do with allegations of political interference at the NPA when it came to TRC cases. The notion that South Africa has ‘inquiry fatigue’ is false. 

“We need to find out who the people are at the executive level who interfered with this case and we need to find out why they did this,” he said.

He added that the NPA’s previous decisions not to examine the TRC-related cases sent a message to families that they were “not deserving of justice”.

While happy that the NPA had decided to reopen the Cradock Four case, Calata was concerned about the impact the delays have had.

“We must welcome the small progress that has been made in the appointment of prosecutors and investigators. It shows that people in government are taking this seriously, But it is almost too little too late. We should have had specialised courts set up to deal with TRC cases. 

“When we say the ANC administration failed us, it is because they never put in place the building blocks to deal with these matters,” he said.

Cracking the whip

Ntsebeza and Kazee say that in addition to a commission of inquiry, NPA leaders need to move with urgency.

“There is a plan and a target and a structure. The NPA leadership must insist on results, on outcomes of the investigative process, of prosecutions that are based on solid evidence and cooperation from all other organs of state.

“There is no nice way to state this demand that needs to be made from the NPA. The NDPP must crack the whip.”

The report recommends that the NPA should urgently finalise its internal training manual and policy for TRC prosecutors and that all investigation reports, statements and affidavits be uploaded to a central database in electronic format to help facilitate links between cases.

The NPA had not responded to Daily Maverick’s questions at the time of publication, saying only that it needed more time to respond. DM

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Comments - Please in order to comment.

  • Sydney Kaye says:

    Nothing has changed in that you can get aesy with anything here as long as it’s serious, complicated and have lawyers who know to concentrate on the processes not the merits

    • JP K says:

      That’s exactly what Paul O’Sullivan said. Steal a loaf of bread and you’ll spend the weekend in jail. Steal millions and you might get a fine. Or, say, in the case of genocide, one might focus on standing, the clean hands doctrine, processes as it were rather than the merits…

      Anyway, this is a global problem.

  • virginia crawford says:

    65 people working × salary = no achievement.

  • J vN says:

    Stop worrying about stuff that happened 40, 50, 60 years ago, and rather focus on the gigantic numbers of current crimes. Start with arresting the entire infestation of Lootfreely House. There is probably not one of the inhabitants of said dump that isn’t guilty of a crime.

    • Rodney Weidemann says:

      “Stop worrying about stuff that happened 40, 50, 60 years ago”
      Spoken exactly like someone who never had family members murdered by the security police during Apartheid…

      • J vN says:

        Anybody who was around from 40, 50, 60 years ago must be 90 years old already, and won’t harm anybody else. The inhabitants of Lootfreely House, which you seem to be protecting, can very much cause untold harm. Send my regards to your ANC mates and good luck facing yourself in the mirror.

        • JP K says:

          I guess by your reasoning then it’s okay to let Jacob Zuma, Ace Magashule et al. off the hook?

          The problem of course is that apart from the selective justice you’re advocating for, you’re asking for amnesty for those who were never granted it. Furthermore, you’re ignoring that black people will basically get no justice. But hey, we already know you’re a racist so your odious opinion on this matter is hardly surprising.

          • J vN says:

            I guess you don’t realize that JZ783’s crimes were committed far more recently, in fact right up to 2021, when he committed contempt, if not later, do you? Or did you just not think it through properly, before posting your response?

      • Random Comment says:

        7,700 murdered in the last THREE MONTHS – with due respect to those who lost family during Apartheid, we are descending into lawlessness and anarchy.

        The trials SHOULD have taken place after the conclusion of the TRC but my guess is that the politicians made a backroom deal to let sleeping dogs lie…justice has been delayed for so long, it is pointless now.

    • Skinyela Skinyela says:

      Justice has no time limit, you will be brought to book even for crimes you committed 100 years ago.

      Where does it say that we cannot do both(prosecute the criminals who committed crimes 60 years ago and also prosecute the criminals commuting crime today) ?

      • J vN says:

        The NPA is not doing either. The useless deployed cadre auntie, with her permanently doleful expression, Shamilah Batoyi, is doing her real job to perfection. No connected individual will go to jail. The NPA has been captured and infested by cadres.

        • JP K says:

          Are you done playing pigeon chess?

          The problem is that you want to focus the law where you feel it should apply. Somehow Apartheid crimes should just be ignored even though it’s only in the last 30 years that any justice was even possible. But hey, according to you, it’s just sorry black people, Apartheid crimes don’t matter – by-gones, you know?. But when it comes to ANC crimes now you want to get all righteous….

          What we need is justice. The ANC criminals need to be held to account. And Apartheid criminals need to be held to account. But hey, I guess for some people, Apartheid wasn’t that bad, right?

      • Louise Roderick says:

        But that is the current ongoing problem with the NPA – they are unable or unwilling to prosecute either.
        There is no closure for victims of crimes committed 50 years ago nor those that were committed 50 minutes ago.
        No urgency, no desire to help. Another sick system of this broken country.

    • Casey Ryder says:

      They should clearly do both. The fact that they have done neither is a significant failure of the state.

  • Glyn Morgan says:

    This sounds like a lack of political will due the TRC being old history. There are more important things to do right now.

  • Iam Fedup says:

    So why are we surprised? The NPA doesn’t exactly have a record of success in prosecuting by far the majority of serious crimes, so why should we expect this to be different? Oh, I forgot, they can’t respond because they need more time to consider the evidence. Time to move on, nothing to see here.

    • JP K says:

      I don’t know. This could score some easy political points surely? The ANC’s new theme is assess its progress relative to apartheid so it would make sense to be seen to be firm on Apartheid era crimes.

      So maybe it’s just more incompetence from the ANC. Or maybe, it’s the case that those guilty of Apartheid still have some power and influence. Considering the crime against humanity that white people exacted on everyone else in the country, what reparations were really made? What justice was there really?

  • Geoff Coles says:

    The investigating advocates no doubt made a lot of moola in those few months!

  • Bob Fraser says:

    Bob F – February 22nd at 10:53
    This is par for the course with the
    NPA. Surely it is far more serious for them to be investigating the many members of the ANC government
    who were implicated in the Zondo commission. There is more than enough evidence of involvement of members of
    You obviously will not publish my comment

    • Ben Harper says:

      That’s probably why they are not pursuing those cases, the likelihood of the atrocities the anc committed against their own people in their “training camps” and their rivals like IFP will have to come out

  • Louise Roderick says:

    When last did anyone see or hear anything from Ms Batohi? During her tenure has she done anything other than bleat about lack of resources?
    Just another useless political appointee it seems.

    • JP K says:

      I don’t know. We’re all impatient with the lack of progress… have given up hope for justice.

      Whether it’s Batohi or not, I reckon that anyone stepping into her shoes would have a hard hard time. Think about it. People die if you push too hard against entrenched criminality. And there is criminality in all spheres of government, in the ANC, indeed – and this is the one that we prefer not to confront – in society.

  • andrew farrer says:

    without bothering to read this – the NPA fails to prosecute fullstop – they’s been so fucked up by the anc to ensure they, their thieving family and friends can never be held accountable for state/ city capture

  • Just Me says:

    The ANC has rendered the Judicial system quite ineffective.

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