Watch – Declassified document shows ANC were favourable to offering indemnity to apartheid-era crimes

Minutes reveal former apartheid president FW De Klerk told his final Cabinet meeting that an agreement with Nelson Mandela and the ANC on indemnity for apartheid crimes was reached 48 hours before the 1994 election – igniting accountability questions. Daily Maverick’s Marianne Thamm explains.

Reporting by: Marianne Thamm
Filmed by: Joel Seboa
Edited by: Anda Tolibadi
Produced by: Emilie Gambade
Creative input by: Malibongwe Tyilo
Sub-edited by: Ian Wolstenholme

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In order to understand the significance of a now declassified 1994 memo of a special meeting of the last white cabinet led by the President FW De Klerk claiming that Nelson Mandela and the ANC had agreed to indemnity from prosecution for apartheid era crimes, we need to return to those turbulent times.

The Khampepe Commission of Inquiry into delayed TRC prosecutions has heard evidence from numerous witnesses that an alleged secret political pact or back-door agreement had been reached between the generals of the old guard and the new democratic government.

The declassification of this key evidence in February reveals a striking reality: just 48 hours before nearly 20 million South Africans voted for the first time, Mandela and the ANC agreed to immunity.

But, but... if you read the memo documenting De Klerk and his justice Minister Kobie Coetsee’s announcement to a full cabinet, bar finance minister Derek Keys, it reads “at this stage”.

So is this the smoking gun everyone was looking for?

This is a highly significant document as it highlights accusations of early discussions regarding a secret potential “political settlement” or “deal”.

On 25 April when De Klerk met his cabinet at the Union Buildings for the last time, the road to the historic 27 April vote two days later had been bedevilled by right-wing violence, a threat by the Inkata Freedom Party to withdraw with the party only being added to the ballot at the last minute.

In March that same year heavily armed members of the right wing Afrikaner Weerstand Beweging rode into the “homeland” Boputhatswana only to be shot dead by military live on TV.

The meeting with Nelson Mandela and the ANC took place behind closed doors where the leadership appears to have been positive about the indemnity process, in the interests of “national reconciliation”.

The claim is that this 1994 meeting was the opening move in what two authors, Michael Schmidt and Ole Bubenzer, have called “a Pact of Forgetting” — an early, informal understanding that ended up shielding people who never even applied for amnesty.

Vlakplaas commander Eugene De Kock, who applied for amnesty in 1997, was the only apartheid-era official in the command structure of the security police who did so, making a full, chilling disclosure.

He was granted amnesty for some crimes, but was later jailed on multiple life terms for multiple crimes. De Kock, known as “Prime Evil”, was released on parole in 2015 and testified recently at the reopened inquest into the killings of the “Cradock Four”.

Fast forward to 2005. Thabo Mbeki’s Cabinet approved new prosecution guidelines for crimes committed before the 1994 election. These were later declared unconstitutional.

Reverend Frank Chikane — the anti-apartheid activist turned senior government official — used those guidelines to navigate the post-TRC prosecutions.

Those prosecutions included his own case.

In 1989, Chikane was poisoned. His clothes were laced with a toxic organophosphate. He collapsed once in Namibia, recovered, then collapsed again in the United States after wearing more contaminated clothing from his own suitcase. He survived.

By 2007, the National Prosecuting Authority's Priority Crimes Litigation Unit was closing in on the men allegedly behind it: former police minister Adriaan Vlok, former police commissioner Johan van der Merwe, and three of their subordinates.

The arrests derailed everything.

Former NPA head Vusi Pikoli has told the commission there was political interference. His own head of prosecutions, Silas Ramaite, backs that up — he says then justice minister Bridget Mabandla called and asked for a moratorium on all outstanding TRC cases.

Vlok and Van der Merwe eventually pleaded guilty to attempted murder. A second charge, over their role in supplying and manufacturing the actual poison, was dropped.

Researcher Ole Bubenzer told the commission it was Jan Wagener, the lawyer representing former SADF generals, who approached Mbeki asking for the arrests to be suspended.

Then there's Jackie Selebi. The former police commissioner — a former -exile, like Mbeki — had been told by Wagener's circle that the NPA was preparing to arrest thirty-seven senior ANC and government figures, including Selebi himself.

That fear helped trigger two decades of instability inside the NPA. An instability that, today, connects directly to the Madlanga Commission — which has exposed how deep the ties go between intelligence services, police, politicians, and organised crime in South Africa.

Human rights lawyer Yasmin Sooka, a former TRC commissioner, told the inquiry she was deeply disappointed Chikane refused to publicly oppose the 2003 presidential pardons. She says the men who poisoned him never told the full truth — they protected people higher up.

Chikane disagrees. He says the 2007 court process forced Vlok and Van der Merwe to put their actions on record, and that was enough for him. Sooka's response: those men avoided naming a single living person, with one exception — an 85-year-old former counter-intelligence officer, who denies any involvement in the murders of the Cradock Four.

Chikane put it simply to the commission. This was a political project completing our struggle and ending our war, he said. There were conflicting interests in the old order and the new. The TRC Act, in the end, was a compromise document — not what people in the liberation struggle originally had in mind.

Thirty years on, that compromise is still being tested. And the families of people killed by still-unknown perpetrators are still waiting for the accountability that a secret conversation, two days before democracy, may have quietly put out of reach. DM