Here is a legal issue for South Africa.

In late 1997 a South African citizen was separately accused by two convicted murderers of having recruited them to murder their victim, by offering them money. One of them claimed this alleged sponsor of the killing provided him with the murder weapon.

The assassins had no previous knowledge of their victim, no money was stolen, and the murder took place less than 10 years before the separate statements of the assassins, which received publicity in the media.

Yet no charge was laid against the alleged sponsor of the murder.

This anomaly in the South African legal process took place under the ANC government. By declining to prosecute, the National Prosecuting Authority effectively protected not the law or the citizens of South Africa, but the alleged sponsor of a murder, whom it shielded from legal scrutiny in open court in which both the accused and witnesses would be subject to cross-examination. This could only have been a conscious decision, in high places.

Initial responsibility for the decision would have to lie with the first National Director of Public Prosecutions, Bulelani Ngcuka, appointed by Thabo Mbeki, then Deputy President, on 16 July 1998, and serving until 2004.

Ngcuka, a former political prisoner, according to Wikipedia, was “the leader of the ANC Preparatory Delegation to parliament from 1993 to 1994. From 1994 to 1997 he was the ANC’s Chief Whip to the Senate and in February 1997 he was elected permanent Deputy Chair of the National Council of Provinces and was largely responsible for implementing the provisions of the Constitution relating to the council. He was chairperson of the Joint Committee on Human Rights….”

Ngcuka was clearly an experienced ANC political appointee, taking office as NDPP under the presidency of Nelson Mandela. His wife, Phumzile Mlambo-Ngcuka, became minister of Mineral and Energy Affairs in Thabo Mbeki’s Cabinet in June 1999, serving until June 2005, when she was appointed by Mbeki to the post of Deputy President of South Africa, serving until September 2008.

The person accused by the two assassins who are serving life sentences for commissioning them to commit the murder was Nomzamo Winifred Zanyiwe Madikizela-Mandela, the divorced wife of Nelson Mandela, then president of South Africa.

Non-prosecution meant that the ex-wife of the president of South Africa escaped prosecution under the presidency of her ex-husband, while responsibility for non-prosecution lay with a senior political appointee belonging to the same governing political party.

An ANC MP, Madikizela-Mandela was re-elected president of the ANC Women’s League in April 1997. At the ANC’s national elective conference in Mahikeng in mid-December 1997 she withdrew her candidacy to be elected as ANC deputy president, after stating on 4 December 1997 at the final session of the Truth and Reconciliation Commission’s inquiry into the Mandela United Football Club, which she had initiated and commanded, that “things went horribly wrong”.

As reported in the Los Angeles Times (5 December 1997):

“I am saying it is true, things went horribly wrong. I fully agree with that. … And for that part of those painful years, when things went horribly wrong – and we were aware of the fact that there were factors that led to that – for that, I am deeply sorry.’”

The previous day, however, she had stated:

“The two youths who claimed I ordered them to kill Dr (Abu-Baker) Asvat were lying.” (SAPA, TRC labels Winnie’s testimony ‘painful’, 4 December 1997).

That claim by the “two youths” and Madikizela-Mandela’s denial were never tested in court. She made no admission of guilt to the TRC for the murder of Dr Asvat, meaning that her statement that she was “sorry” because “things went horribly wrong” was vague and meaningless. She made no application for amnesty.

In fact, as she told a reporter in 2010: “I am not sorry. I will never be sorry. I would do everything I did again if I had to. Everything.”

The issue here is the ability of the legal system in South Africa to find the truth, in order to defend the people of South Africa under the rule of law.

The concept of truth was itself put in question, however, in the same interview by Madikizela-Mandela, when she stated: 

“Look at this Truth and Reconciliation charade. …What good does the truth do? How does it help anyone to know where and how their loved ones were killed or buried? That Bishop Tutu … turned it all into a religious circus….”

In the film Winnie, recently shown on eNCA, Madikizela-Mandela went further, saying that Archbishop Desmond Tutu, as chairperson of the TRC inquiry, had been “acting there for the public… acting there for Stratcom”.

Contrast this with the evidence given to the TRC by Zakhele Cyril Mbatha, the murderer who actually shot Mrs Mandela’s personal physician, Dr Abu-Baker Asvat, as he sat in his surgery in Soweto on 27 February 1998.

As reported by Sapa, Mbatha described how on the day of the murder he and fellow co-accused, Thulani Dlamini, had visited Madikizela-Mandela at her Soweto home.

“She greeted us warmly. She said ‘good day boys’ and we said we were fine,” Mbatha told the hearing.

“Madikizela-Mandela had commented on their youth and asked whether they understood what they had been asked to do, Mbatha said.

“She said she had a problem with a certain man who was disturbing her in her political work. She wanted people to remove this person,” Mbatha testified.

“According to Mbatha, Madikizela-Mandela asked if they were prepared to carry out the murder. The pair said they would.

“Mbatha said Dlamini had explained that the gun in his possession was ‘not good enough’.

“She didn’t answer but she disappeared into the house and came back with a parcel with a cloth over it.”

Asked if he would prefer to remain in jail or “take advantage of the ‘law’s facilities for release’.” Mbatha replied: “I am prepared to be in jail for all the time can be, for I believe I am serving time for the crime I committed.”

“He then broke down and sobbed. …

“Finally Mbatha said: ‘In all that I have done, I did (this) because I was tempted by a very clever person who was older than me. She tried by all means to show me and convince me I should do that.

“ ‘She had her helpers, my accomplices, who ferried me to and from the scene of the murder. They came up with all the information for the commission of the crime.

“ ‘All the time the Asvat family has been puzzled by the circumstances surrounding their relative’s death, not getting any truth from anyone. I wanted to come to this commission and speak the truth. I want the Asvat family to forgive me.

“ ‘This is from the depths of my heart. I feel free because I told them I was the killer. You have seen me. I am the first and the last.

“Mbatha said his parents cried when he was given the death sentence for Asvat’s murder – later commuted to life.

“ ‘God has kept me alive to give me the opportunity to come clean,’ he concluded.”

On 5 September 1997, the Mail & Guardian reported how in an hour-long interview with the magazine in a Durban prison, Mbatha’s fellow assassin, Thulani Nicholas Dlamini, who was seeking amnesty for the murder, said: “Mrs Mandela promised us R20,000 to murder Dr Asvat.”

Let us say that nobody’s word should be trusted for its own sake in this saga. Nevertheless, an innocent and blameless man was killed, the people of Soweto were terrified and deprived of a dedicated and principled doctor, while his family was left shattered.

Cyril Mbatha committed suicide by poisoning himself soon after he came out of prison, more than 20 years after he was sentenced to death, commuted by President FW de Klerk. His suicide was not reported.

No amount of “struggle” politics could justify the murder of Dr Asvat, without cancelling democratic politics.

What followed was a fatal undermining of the principle of law itself, not remedied to this day. The truth was not able to be established. Justice was not secured. The judicial system was undermined, from the top.

Winnie Mandela was not a victim in relation to this crime. On the contrary, she was grotesquely privileged, protected unequally as a powerful political person from facing the ordinary process of the law. She was above the law. The democratic process of equality before the law deferred to her. She was the law, and the law deferred.

Her supra-legal status in relation to this crime is now even international.

There was no mention of this murder in the internationally-funded so-called documentary, Winnie, by the French filmmaker, Pascale Lamche.

It was not true, as Madikizela-Mandela stated in this film, that “I was the only one put on trial by her own government, the only one”, referring to how the ANC allegedly “betrayed” her in the TRC hearings.

The opposite was true. She was not put on trial, while the ANC government betrayed the fundamental principles of law.

There is a serious failure of justice here, and a very dangerous precedent. DM