Imtiaz Ahmed Cajee
A SIGNIFICANT finding in the recently released opinion of advocate Dumisa Ntsebeza, SC, is that the public now has the assurance that the National Prosecuting Authority (NPA) has adopted sufficient measures, checks and balances to deal with matters emanating from the Truth and Reconciliation Commission (TRC).
The opinion was sourced by the NPA after it appointed Ntsebeza to consider and evaluate the measures instituted by the NPA’s TRC Component, a separate portfolio created specifically to prioritise TRC matters, in September 2021.
In applications filed on behalf of the NPA, senior prosecutors Dr Torie Pretorius and advocate Chris Macadam alleged political interference prevented them from executing their duties.
Surprisingly, both prosecutors appointed before 1994, remained silent on the subject matter from 2003 until 2019 without raising this concern. In its scathing judgment against the NPA, the Full Bench ruled, among others, that the conduct of the officials be investigated. The silence from the NPA was deafening.
The following observations are made of the report:
Firstly, the finding that the NPA did not execute its mandate for post-TRC prosecution is not a secret. The report repeats allegations from Dr Pretorius, advocate Macadam and former NDPP advocate Pikoli of political interference from the offices of President Thabo Mbeki and Minister of Justice Brigitte Mabandla.
Ideally, it would have been a golden opportunity to have approached their offices for a response. Ntsebeza SC and his team did not require subpoenas to approach all concerned for them to provide affidavits on the matter. Instead, they recommend a Commission of Inquiry (COI).
I am reminded of the sentiments echoed by Chief Justice Madlanga who stated during his interview at the Supreme Court of Appeal (SCA) that there is no evidence of a single COI in South Africa where recommendations were successfully implemented. Simply put, they offer opportunities for role-players to line their pockets, making huge sums of money. The TRC and post-TRC prosecutions must be seen in context with the political settlement of the country. It cannot exclude holding capital and all apartheid beneficiaries accountable.
Secondly, after years of publicly criticising the NPA and SAPS for failing in their duties in post-TRC prosecutions, we now have reassurance that there are sufficient oversight mechanisms that will prevent a repeat of any form of political interference in post-TRC prosecutions. Adequate checks and balances are in place dealing with TRC matters.
This is welcoming for families who for the first time since 2003 (when TRC reports were handed over to government and the Priority Crimes Litigation Unit (PCLU) established to implement TRC prosecutions) now have confidence that their matters will be investigated. This explains the progress in recently reopened inquests of Dr Neil Aggett, Mr Ernest Dipale, Dr Hoosen Haffejee and Imam Abdullah Haron, spurred by the catalystic Ahmed Timol matter.
Moreover, more matters are set to take centre place in the courts this year, including the Cradock Four, Northcrest Five, Highgate Hotel, etc. We also saw the first TRC prosecution, with evidence and sentence in 2023, with numerous indictments under way.
The recently appointed TRC component must be supported, capacitated and resourced adequately in order to continue working speedily as time is not on our side.
Moreover, the successful approach adopted by the NPA / DPCI TRC components is principled on the model that was adopted by the second (2018) task team that was established and subsequently collapsed. Had the team not collapsed, progress would have been far greater.
Thirdly, the investigations into the disappearance of the Ladybrand Four symbolises the frustration of many families. The rotating of investigating teams and mistrust of some investigating officers, former apartheid policemen appointed on contract after retirement, does not help the situation.
In other words, they belonged to the apartheid system that killed comrades and are now appointed to investigate apartheid killers, their former colleagues.
They cannot be judge, jury and executioner.
As early as 2018, I highlighted this in deliberations during my involvement in the second TRC task team in 2018. My objection resulted in my eviction from the task team and the ultimate collapse of the second of three task teams that I was involved in.
The ministries of Justice, Police and their respective accounting officers are ultimately to be held accountable for the appointment of apartheid-era investigating officers and prosecutors.
While some of them remain committed in assisting families in ascertaining truth and justice, there are others who continue to remain loyal to the apartheid system and work actively to disrupt and prevent the reopening of post-TRC cases.
As for families, we have no alternative but to continue working closely with them, monitor their actions in order to ensure our cases are investigated properly.
The report highlights concerns around the NPA’s Missing Persons Task Team (MPTT) in the Ladybrand Four matter. Established in 2005 as per the recommendations of the TRC, it is responsible for locating the graves of the deceased who were killed during the apartheid era.
The TRC was clear: perpetrators who were not granted amnesty were liable for prosecution.
However, the family was informed that discussions were initiated with Eugene de Kock, offering him amnesty for making full disclosure. Was this criteria applied for the unit recovering 179 missing persons as per the NPA presentation to the justice and portfolio committee in November 2022?
Lastly, it is indeed a travesty of justice that since 1994 apartheid-era records remain classified. How can we reopen apartheid-era inquests and prosecution of alleged apartheid-era perpetrators without access to these records? Since the dawn of democracy, three decades later, and these records have not been de-classified and released to the public.
Re-investigating apartheid-era cases is sensitive and the necessary security precautions must be applied. Many apartheid-era operatives and comrades are in cahoots in democratic South Africa and remain hell-bent to prevent progress in these cases. These cases have the potential to expose relationships between apartheid-era handlers and their sources in the anti-apartheid movement.
In conclusion, post-TRC prosecutions are not only the responsibility of the NPA and SAPS, but must be driven by the Executive.
The TRC was a pivotal component of South Africa’s transition. It laid the foundation for building reconciliation. It is a travesty of justice that its recommendations have not been implemented. They need to be constantly reminded that they hold political office because of the blood of our martyrs and they are indebted to their families finding closure. This must form part of national memorialisation projects in the country.
Personally, my humble attempts contributed towards the reopening of Uncle Ahmed’s 2017 inquest. As per the judgment of Judge Billy Mothle, I relentlessly pursued the DPCI and NPA to hold Joao Rodrigues accountable. He made 19 court appearances between July 2018 and his death on 7 September 2021, which brought the matter to an end.
The judgment also referred to conducting investigations into Security Police officers Neville Els and Seth Sons for perjury and torture. Witnesses provided affidavits of torture inflicted by Sons. Six years after cases were opened against both, the NPA decided not to charge them.
Despite my journey being over in the Timol matter, I will continue rendering assistance to families seeking my guidance on their matters. Importantly, continue representing families working with the newly appointed TRC component representing the Apartheid-Era Victim’s Family (AVFG).
For the first time in 20 years, we have a model that must be supported.
The onus is now on the portfolio committee on justice and correctional services which has a fiduciary role in overseeing the work of the TRC component.
Imtiaz Ahmed Cajee is the nephew of the murdered Ahmed Timol. He writes in his personal capacity and is busy with his third book focusing on events post the 2017 Timol Inquest. www.ahmedtimol.co.za