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APARTHEID PROSECUTIONS ANALYSIS

Thabo Mbeki’s claim that ‘we never interfered’ in prosecuting TRC cases ignores the facts

Thabo Mbeki’s claim that ‘we never interfered’ in prosecuting TRC cases ignores the facts
Former South African President Thabo Mbeki. (Photo: Gallo Images / Sunday Times / Alaister Russell)

Former president Thabo Mbeki has denied his government ever interfered in the prosecution of cases referred to the NPA by the Truth and Reconciliation Commission. History says otherwise.

Former president Thabo Mbeki has denied – in the face of overwhelming evidence to the contrary – that his government interfered with or suppressed the prosecution of about 400 cases referred in 1999 to the National Prosecuting Authority (NPA) by the Truth and Reconciliation Commission (TRC). 

Mbeki proclaimed in a 1 March 2024 press release issued by the Thabo Mbeki Foundation: “(I)t is with some reluctance that I respond to Ms Karyn Maughan’s article: ‘Long-awaited NPA report gives no answers on ANC govt’s alleged blocking of apartheid trials’ published on News24 on 21 February.

“During the years I was in government, we never interfered” in NPA work, Mbeki stated. 

“The executive never prevented the prosecutors from pursuing the cases.”

Maughan’s News24 article focused on a report the NPA commissioned on allegations the Mbeki administration had interfered in the prosecution of apartheid cases.

The report, compiled by advocates Dumisa Ntsebeza SC, a former TRC commissioner, and Sha’ista Kazee, recommended that a commission of inquiry investigate the extent of, and rationale behind, the political interference with the NPA between 2003 and 2017.

The NPA has refused to release Annexure 3 of Ntsebeza’s report into whether anyone should be charged with “interference” with the TRC cases.

Read more in Daily Maverick: NPA’s apartheid case shame: State prosecutors have ‘failed’ to investigate crimes exposed by the TRC

In an attack on former National Director of Public Prosecutions (NDPP) advocate Vusi Pikoli, Mbeki said: “I repeat, no such interference ever took place. If the investigations Adv Pikoli referred to were stopped, they were stopped by the NPA.

“There is no record of a single instance when the NPA stopped investigating and prosecuting any case on account of the so-called ‘executive interference’ – at least not during the period 1999-2008,” Mbeki claimed.

In a rebuttal published on 21 March 2024, Maughan wrote that Pikoli had said there was “no need to respond to this except to say that I stand by my evidence in the Ginwala Commission and in all other subsequent affidavits I deposed to and admitted in court”.

This flies in the face of Mbeki’s allegation: “I also recall that the same Pikoli who allegedly buckled under pressure… earned a lot of respect by portraying himself as an independent and principled NDPP who defied an ‘all too powerful’ President Mbeki, who was supposedly hell-bent on stopping him from investigating and arresting the late former National Commissioner of Police, Jackie Selebi.”

Mbeki, in his press release after Maughan’s first article, also had thrown former justice minister Brigitte Mabandla under the bus: “There was never any Minister of Justice during those years who was ever authorised to instruct any NDPP to act in one way or another.”

Mabandla responded to News24’s questions with the following WhatsApp message: “Not true. There is nothing more I can say. It is his word against mine. Minister [Ronald] Lamola is addressing the matter. Apology.”

We all know that politicians never lie. And they never put a spin on events.

But let’s first rewind the clock for a bit of factual history.

Aftermath of TRC process

thabo mbeki trc tutu boraine

TRC deputy chairperson Dr Alec Boraine (left) and chairperson Archbishop Desmond Tutu (second left) at a TRC hearing on 11 November 1997. (Photo: Gallo Images / Business Day / Lori Waselchuk)

The TRC was meant to help heal the terrible traumas and excessive barbarity of apartheid. The TRC heard 21,519 victims telling their stories of 30,384 gross human rights violations.

The TRC Report made 15,000 findings, in 3,500 pages, and of the TRC’s 37 recommendations, most were ignored by Mbeki’s government. 

Of the 7,115 applications for amnesty, only 1,154 were granted, with a further 250 getting partial amnesty.

Of those who were refused amnesty, nearly all escaped prosecution. 

The work of investigating and prosecuting TRC cases was given to a special NPA unit created in 1998 by then-NDPP Bulelani Ngcuka. 

On 23 March 2003, a Presidential Proclamation created the Priority Crimes Litigation Unit (PCLU) within the NPA, tasked with identifying and prosecuting priority cases, chosen from the 500 or so cases the TRC had referred to the NPA. (No list of the cases the TRC referred to the NPA exists publicly. Estimates vary from a minimum of 300 to around 500.)

Two prosecutors were assigned to head the PLCU. Advocate Anton Ackermann and advocate Chris Macadam identified 150 cases for immediate investigation including, among others, the 1983 disappearance of ANC courier Nokuthula Simelane and the 1985 Cradock Four assassinations.

It is the PLCU that suffered the political interference which Mbeki has denied ever occurred. The scandal blew up in 2015.

The Simelane family had gone to court to try to force the NPA to hold an inquest into Nokuthula Simelane’s disappearance at the hands of the Security Police. Pikoli supplied a supporting affidavit which detailed the involvement of former justice minister Mabandla – and Mbeki himself – who had suspended Pikoli when he pushed back against the interference. More on all this later.

Read more in Daily Maverick: ‘Scourge’ of political interference post-TRC suppressed cases of murdered anti-apartheid activists – Advocate Varney

But why now, eight years later?

Mbeki and the ANC leadership still fear they themselves could be prosecuted. So they shut down all attempts to prosecute the TRC cases.

The TRC had denied amnesty to the following top leadership of the ANC:

Thabo Mbeki, Jacob Zuma, Mac Maharaj, Joe Modise, Andrew Masondo, Steve Tshwete, Ngoako Ramathlodi, Godfrey Ngwenya, Lambert Moloi, Snuki Zikalala, Peter Mokaba, Barry Gilder, Billy Masethla, Mathews Phosa, ZP Tolo, Charles Nqakula, NN Maphisa, SW Sigxashe, BA Manci, Ruth Mompati, Sipho S Makana, Tokyo Sexwale, Joel Netshitenzhe, PRF Mdlulu-Sedibe, JK Nkadimeng, Jacob S Selebi, Alfred Nzo, Baleka Mbete-Kgositsile, Raymond Suttner, Ebrahim Ismail Ebrahim, Garth Strachan, Essop Pahad, Pravin Gordhan, Lincoln Ngculu, Keith Mokoape, Joe Nhlanhla, Biki Minyuku, Mtikeni Sibande, Johannes Mudimu, Trevor Manuel, Pallo Jordan, Sankie Mthembi-Mahanyele, Dullah Omar, Penuell Maduna, Zola Skweyiya, Geraldine Fraser-Moleketi, and Manto Tshabalala-Msimang.

In March 2024, Lamola was asked in the National Assembly why the NPA had failed to prosecute TRC cases. He claimed TRC matters had been prioritised by the NPA since 2021 and that “certain matters were identified for fast-tracking”.

ANC’s clandestine talks 

Mbeki should remember that he occasionally attended ANC-initiated clandestine talks with high-ranking former SADF and SA Police officers during the transitional period. Two separate independent researchers have told how these secret negotiations began. 

The researchers, Michael Schmidt and Ole Bubenzer, investigated what Major-General Dirk Marais, former deputy chief of the (apartheid) army and convenor of the SADF Kontak Buro (Contact Bureau), which coordinated military responses to the TRC, called “the Pact of Forgetting”.

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

Marais said that Zuma and General Jannie Geldenhuys met “frequently” until 2003 to discuss how to avoid trials and reduce the level of SADF amnesty applications. The ANC facilitator was businessman Jürgen Kögl, who was closely connected to Zuma.

Geldenhuys told the researchers the government was “not at all keen to promote post-TRC prosecutions”. And Marais chimed in: “They won’t want us to be charged, and they don’t want them to be charged.” 

The ANC group included Mbeki (then deputy president), Joe Modise, Sydney Mufamadi and Dullah Omar, said one of the researchers. The other researcher was told the group included Zuma, Penuell Maduna, Charles Nqakula, Mathews Phosa and Mufamadi, occasionally with Mbeki attending. 

The SADF was represented by generals Geldenhuys, Malan, Viljoen, “Kat” Liebenberg and others. It was later reported that General Georg Meiring had also been part of the clandestine discussions.

In parallel, talks with former police national commissioner Johan van der Merwe and former law and order minister Adriaan Vlok also sought a “solution” for those police who had lied to the TRC, and others who had not applied for amnesty at all for their crimes. 

A political advocacy group, the Foundation for Equality before the Law (FEL), had been formed for former Security Police who had not received amnesty.

FEL and Pretoria-based attorney Johan Wagenaar had compiled complete dockets to support the prosecution of top ANC members, including Mbeki, Van der Merwe told one of the researchers. When the NPA requested the dockets, FEL refused – obviously keen to halt all prosecutions.

One of the researchers says the consulting parties had agreed on a legal mechanism that practically amounted to a new amnesty law by the end of 2002, but that Mbeki rejected it in early 2003. The talks foundered. 

Government, undeterred, began a new process.

The ANC wanted impunity for human rights abuses in exile, and so adopted a policy of (illegal) suppression of the post-TRC prosecutions. This was the ANC’s route to a “back-door amnesty deal” for both soldiers and police.

What was said and agreed upon in these furtive “deals” has never been publicly revealed. 

Yet they were highly instrumental in creating our culture of impunity and had many serious consequences for our emerging democracy.

Impunity begins when you believe there is no need for consequences.

Tellingly, everyone from the ANC side refused to comment or be interviewed by the researchers.

Secret task team

On 23 February 2004, the government’s Director-Generals’ Forum, chaired by Justice Department DG Vusi Pikoli, appointed a secret Amnesty Task Team (ATT) to report on a future prosecutorial process for the “consideration of a process of amnesty on the basis of full disclosure of the offence committed during the conflicts of the past”.

The secret ATT discussed in camera their report to a Heads of Department Forum on 3 March 2004. The Indemnity Bill’s (2nd draft) terms of reference included the “views of our intelligence agencies” and the “national interest”. But the two-stage process recommended by the ATT was rejected as unconstitutional.

So when the NPA attempted to proceed with the Reverend Frank Chikane poisoning case (he had been poisoned in 1989), the intervention was swift and authoritative.

On 11 November 2004, prosecutor Anton Ackermann was phoned while police were on the verge of arresting three former Security Branch policemen and told to withdraw the arrest warrants immediately.

“On the same morning, I received a phone call from Jan Wagenaar, the attorney for the above-named suspects (Major-General Christoffel Smith, Colonels Gert Otto and Johannes ‘Manie’ van Staden). He told me that I would receive a phone call from the Ministry of Justice and I would be advised that the case against his clients must be placed on hold,” Ackermann said in a 2015 affidavit in the Simelane case.

“Shortly thereafter, I received a phone call from an official in the then-Ministry of Justice. I was informed by the said official that a decision had been taken that the Chikane matter should be put on hold pending the development of guidelines to deal with the TRC cases. I told him that only the NDPP could give me such an instruction.  

“A few minutes later the NDPP contacted me and instructed me not to proceed with the arrests. I believe that it can be safely assumed that the NDPP was instructed at a political level to suspend these cases,” Ackermann’s affidavit said.

“The suspension of the arrests was mainly the result of a political settlement behind the scenes,” Wagenaar told a researcher later. This led to a complete moratorium on all TRC cases.

The justice and security cluster developed a new set of prosecutorial guidelines which allowed the NDPP to stop a prosecution if it was deemed “detrimental for the overall progress of reconciliation and nation-building”. The new guidelines came out on 1 December 2005. 

It seemed things were back under political control.

Read more in Daily Maverick: Post-TRC prosecutions: ANC’s ‘silent abuse’ is a betrayal of the struggle against apartheid and its martyrs

Meanwhile, in a 2006 audit of TRC cases, Ackermann sent an internal memo to Dr MS Ramaite, the acting NDPP, which outlined the history of the TRC cases and listed 395 dockets. It also stated the NPA had “no intention” of prosecuting then president Mbeki.

Mbeki had also established a special dispensation to process applications for pardons by offenders who had not participated in the TRC amnesty process but who had claimed their offences were politically motivated.

A multiparty Pardons Reference Group was established in January 2008 to consider applications for pardons for politically motivated crimes committed before June 1999.

Mbeki pledged his ultimate pardoning decisions would be guided by the values and principles enshrined in the Constitution, as well as the “principles, criteria, and spirit” of the TRC.

Mbeki’s subsequent launch of the Special Dispensation for Political Pardons was set aside in 2010.

The new pardons policy “essentially created a backdoor amnesty for perpetrators of so-called political crimes”, said Thembi Nkadimeng in a 2015 affidavit. 

With the Cradock Four widows, Nkadimeng (Nokuthula Simelane’s sister) had earlier challenged the policy in court. Later, in 2008, the Pretoria High Court struck down the new policy, calling it “absurd and unconstitutional”. 

Nkadimeng says that during the case, the NDPP had disclosed a secret 2004 government report entitled, “Report of the Amnesty Task Team”, which explored ways of promoting impunity for perpetrators.

The ATT had been concerned about “the absence of any guarantee that alleged offenders will not be prosecuted”. 

Some of the ATT’s report was accepted (witness Mbeki’s introduction of a Special Dispensation for Political Pardons). The amendments allowed specifically for the involvement of the executive in the decision-making process of the NPA (such as the National Intelligence Agency, the SAPS, the Justice Department and the Hawks.

An affidavit by NPA prosecutor Chris Macadam dated November 2018 in the Joao Rodrigues case recalls 2003 meetings with the Directorate of Special Operations (DSO, or the Scorpions), in which he was told the DSO would not investigate any TRC cases. Macadam confirmed a moratorium had been placed on all TRC investigations and prosecutions. The SAPS also refused to help.

In January 2007, the NPA under Pikoli’s leadership announced it would push ahead with a second attempt to prosecute Adriaan Vlok, Van der Merwe and the three Security Branch cops for the Chikane poisoning.

By August 2007, the accused had made a plea bargain, which should have opened the door to the prosecution of General Basie Smit, who had succeeded Van der Merwe as Commander of the Security Branch in October 1988, as well as other senior officers of the both the SAPS and the former South African Defence Force (SADF).

Vlok and Van der Merwe each got 10 years suspended. Smit was never prosecuted. Nor were any other senior officers in both the SADF and the SAP.

Mbeki suspends the NDPP

Pikoli was now a target. 

His independence as NDPP got him into further trouble with Mbeki when he was about to arrest former National Police Commissioner Jackie Selebi for corruption. Mbeki suspended Pikoli.

The Ginwala Commission was appointed on 23 September 2007 to examine the fitness of Pikoli to hold the office of NDPP.

In May 2008, Pikoli filed an affidavit with the Ginwala Commission which explained how Cabinet ministers and the Commissioner of Police were frightened that advocate Anton Ackermann, head of the PLCU, would prosecute ANC members.

Pikoli’s affidavit picks up the story earlier in 2006: 

“Some time later a meeting was convened at the home of Minister Skweyiya, the Minister of Social Development. The meeting was attended by the Ministers of Safety and Security, and Defence Minister Thoko Didiza (Acting Minister of Justice and Constitutional Development representing Minister Mabandla who was indisposed) and Mr Jafta (President’s Office). The meeting was called by Acting Minister Didiza and I was told it related to the prosecution in the Chikane matter. It was originally suggested that Adv Ackermann accompany me to the meeting but I elected to go on my own in order to establish what the concerns were. 

“It transpired at the meeting that: The Minister of Safety and Security was concerned about the decision to proceed with the prosecution and with Advocate Ackermann’s involvement in the process and the issue of whether it was Adv Ackermann or me who was behind the decision to prosecute. 

“The Minister of Social Development was concerned about the impact of the decision to prosecute on the ranks of ANC cadres who were worried that a decision to prosecute in the Chikane matter would then give rise to a call for prosecution of the ANC cadres themselves arising out of their activities pre-1994. 

“The Minister of Defence had concerns about where the decision to prosecute rested – did it rest with me or did it rest with Adv Ackermann.”

Pikoli told Ginwala: “Towards the end of 2006 it became clear to me that powerful elements within government structures were determined to impose their will on my prosecutorial decisions.”

Selebi was pushing for a reversion to the two-stage process in which Pikoli’s decision would be “dependent upon a prior recommendation by an intervening committee” of DGs.

On 6 February he met Mabandla, and she appeared to “have gained the impression that I had agreed not to pursue the TRC cases”. 

On 8 February 2007, she wrote to Pikoli, claiming he had “mentioned” to her that the NPA would not proceed with the prosecutions and asked for this in writing. Pikoli said he was “at a loss to explain how the Minister reached such a conclusion”.

Pikoli then sought guidance from Mabandla. His memo to her was entitled “PROSECUTION OF OFFENCES EMANATING FROM THE CONFLICTS OF THE PAST: INTERPRETATION OF PROSECUTION POLICY AND GUIDELINES” and dated 15 February 2007.

He never received a response from Mbandla, which “suggested to me that she preferred for the deadlock between the NPA, the SAPS, NIA and DoJ to remain in place”.

‘Improper interference’

The police used the excuse of the commission to stop all TRC investigations pending the outcome. 

After the plea bargain in the Chikane matter, the newspaper Rapport on 19 August 2007 published a forged document claiming the NPA was now going after the ANC. 

Pikoli was summoned to a meeting of a sub-committee of the Justice, Crime Prevention and Security Cabinet Committee on Post-TRC matters, held on 23 August 2007. Ministers attending included Ronnie Kasrils (NIS), Mabandla (DoJ) and Skweyiya. Selebi threatened him, saying “the gloves are now off” and that he was “declaring war” on Pikoli.

As Mbeki had told Parliament on the tabling of the TRC report in Cape Town on April 15 2003, “We imposed a heavy burden on the millions who had been the victims of this oppression to let bygones be bygones… Our people heeded all these calls.”

On the fabricated letter to Rapport (allegedly written by Ackermann), Mabandla told Pikoli in the meeting to shut down the investigation as they “could not be seen to be taking each to court”. Pikoli refused. He said that the “political interference or meddling” was “deeply offensive to the rule of law”. 

Former Speaker Frene Ginwala exonerated Pikoli; her report was finalised and issued on 4 November 2008. A month later, the high court struck down the new prosecution policy. 

Pikoli has confirmed in all his affidavits that political interference had effectively barred the investigation and possible prosecution of TRC cases. 

His view was confirmed in a supporting affidavit by advocate Anton Ackermann himself. Both prosecutors state it was no coincidence that there had been not a single prosecution since Pikoli’s suspension and the removal of all the cases from Ackermann in September 2007.

Pikoli’s in-camera affidavit in 2015 reaffirmed that there had been “improper interference” in relation to the TRC cases and that he had been obstructed politically. 

He complained that such interference impinged upon his conscience and his oath of office, and he indicated he was no longer able to deal with these cases in terms of normal legal process. 

Pikoli included his secret memo to Mabandla as an annex to his in-camera affidavit in the Nkadimeng matter in 2015. In 2017, Macadam discovered several documents in a room being cleaned out that further indicated political interference, including Pikoli’s 2007 secret memorandum to the then Minister of Justice Mabandla. 

‘Pact of Forgetting’

The “Pact of Forgetting” that Gen Marais called the secret talks and the policy of suppressing the post-TRC prosecutions by any means necessary has been a shocking betrayal of the social compact reached around the TRC and has resulted in many calls for a commission of inquiry into the political interference in the work of the NPA. 

The latest is the 2023 Ntsebeza Report commissioned by the NPA as a result of a high court order. 

All previous calls for an inquiry have been met with a stubborn, stony silence from both the government and the Presidency. 

In February 2019, a number of former TRC commissioners called on President Cyril Ramaphosa to offer an apology to apartheid-era victims and to appoint an inquiry into the political inference in the investigation and prosecution of TRC cases. He did not respond.

On 3 April 2019, the NDPP decided that all TRC matters would be migrated from the PCLU to the relevant provincial DPPs. In June 2021, the NPA and the Hawks issued a press statement about the “new approach” to investigations and prosecutions of the TRC cases.

An important Supreme Court of Appeal ruling in June 2021 confirmed the 2019 North Gauteng High Court judgment that the NPA had provided undisputed evidence that between 2003 and 2017, “the executive adopted a policy position” that apartheid atrocity cases the TRC had recommended for prosecution would not be pursued. 

The Appeal Court said it was “perplexing and inexplicable why such a stance was taken”. 

Then, in July 2021, the Zondo Commission accepted representations from the son of one of the Cradock Four, Lukhanyo Calata, regarding the political interference in the prosecution of TRC cases and related matters as a form of State Capture. 

The Calata affidavit names 16 prominent political individuals and officials who held positions between 2003 to 2017 in the Office of the President, the Ministry of Justice, the Ministry of Safety and Security, the SAPS, the DSO, the NIA, the Ministry of Defence and the NPA. The pressure was growing. 

Time to account

The fact that the NPA has had eight NDPPs – none of whom completed their term in office – is testimony to the unlawful political pressure and interference they have faced. 

The ninth NDPP is advocate Shamila Batohi, appointed in February 2019. On 6 September 2021, she established a separate portfolio within the Office of the DNDPP, the TRC Component, which currently has 134 matters pending.

But it is very late in the day. Some cases have lapsed due to the deaths of perpetrators. Other perpetrators are claiming they are too old, ill or unfit to stand trial. 

The SAPS has delayed trials for years by refusing to pay the legal fees of former Security Police, and many of the SAPS investigators were former Security Branch members themselves. 

On 5 November 2021, Minister of Justice Lamola publicly announced he had appointed an inquiry to investigate the suppression of the TRC cases. Nothing has been heard of this inquiry yet. 

In June 2022, NDPP Batoyi informed the justice portfolio committee that the PCLU had been closed down.

Ntsebeza’s 2023 Report to the NPA stated that the commission of inquiry should “authorise the subpoena of persons implicated in the above-mentioned affidavits, including former president Mbeki and the former ministers of justice, police and defence, and the former heads of the NIA, SIU and DSO”. 

Is Mbeki trying to avoid his day in court? Will the political interference of his former government, ministers and officials finally be revealed?

The Ides of March is the deadline day the ancient Romans set for settling debts. Possibly Mbeki will be forced to realise it is time for him to settle his debts with South Africa and the neglected and traumatised victims of apartheid. DM

David Forbes is an independent award-winning multimedia specialist and commentator.

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Comments - Please in order to comment.

  • ST ST says:

    And there-in lies one the first insults added to the SA injury. Some of us want to move on but it seems it’s about to get really painfully really deep before the healing ever truly begins.

    This is what happens when politicians fight the same war on both sides. Conniving with enemy, arming the others side…SA, UK, US all guilty of it. Or is it being pragmatic? Either way…it’d be embarrassing for the ANC, when we think people who should by prosecuted post TRC, we don’t think ANC. Very uncomfortable questions

  • drew barrimore says:

    Mbeki always at the core of the rot and destruction.

  • Alan Watkins says:

    Very detailed report shows just how much of a lie Mbeki’s claim of non interference is/was. A WHOPPER! And also gives the motive – just about the entire top structure of the ANC implicated back then is still in office today!

  • virginia crawford says:

    “ignores the facts” , alternative facts amounts to the same thing, lies and lying. Or supreme ignorance, like flat earthers. Utterly disgraceful, deceitful and disrespectful to all those who suffered and whose people were murdered.

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