Long Read | Covid-19 further delays TRC justice

Inevitably, the wheels of justice in South Africa have been turning slower than usual amid the disruptions brought about by the Covid-19 pandemic. It has put cases related to the Truth and Reconciliation Commission (TRC) on hold, including the reopened inquest into the death of anti-apartheid activist Neil Aggett.

And while the courts finally made the decision after a five-year delay to move ahead with prosecuting the former security police officers responsible for the death of Nokuthula Simelane, the scheduled October date for this case is now uncertain. For families still seeking answers to decades-old questions of what happened to loved ones brutally murdered, disappeared and tortured by the apartheid forces, such delays have become commonplace. And now they’ve had to endure several additional bitter twists unrelated to Covid-19.

The recent decision by the National Prosecuting Authority (NPA) not to pursue perjury charges against two former security police officers who testified during the reopened inquest into the death of Ahmed Timol in 2017. The continued delays brought about by former security police administrative clerk Joao Rodrigues in his attempt to fight his prosecution for murder for his involvement in Timol’s death. A lack of response from the office of the president to numerous letters asking for him to urgently address the issue of the lack of movement in the prosecution of post-TRC cases, and the allegations of political interference into the work of the NPA with regard to those cases.

Silence from the Zondo Commission of Inquiry into State Capture as to whether or not it will hear evidence relating to those accusations of political interference when it finally resumes its work. The desperate attempt by the families of the Cradock Four to get an answer from the NPA as to whether or not it will prosecute those responsible for the deaths of Fort Calata, Matthew Goniwe, Sparrow Mkonto and Sicelo Mhlauli on 27 June 1985.

This has all taken place during the government’s Covid-19 lockdown, threatening to extinguish the brief flicker of hope that emerged at the reopening in 2017 of the inquest into Timol’s death.

Getting away with it

In an email to Timol’s nephew Imtiaz Cajee on 21 May, acting director of public prosecutions George Baloyi declined to prosecute Seth Sons and Neville Els on charges of assault and torture or perjury. The former security police officers testified during the 2017 inquest that they knew nothing of the torture occurring at Johannesburg’s notorious John Vorster Square security police headquarters. This was despite affidavits from former detainees who remembered both men being either present or directly involved in incidents of torture, as well as presiding inquest judge Billy Mothle recommending that they be charged with perjury for lying under oath. Baloyi cited the age of Sons, 80, and Els, 82, and their ailing memories as mitigating factors in his decision.

It took the NPA 30 months to reach this decision and the “reasons provided by the acting DPP [director of public prosecutions] do not set out what investigations were carried out and what interviews were conducted. No explanation of time taken to conclude the investigation was provided,” say papers filed by Cajee’s lawyers, who also act on behalf of the Foundation for Human Rights. “It is particularly disturbing that the testimony and statements of detainees asserting that they were assaulted by Sons and Els were not evaluated in the reason for the decision not to prosecute … The five witnesses who implicated Sons in assault are not mentioned at all in the reasons. Shockingly, it is quite evident that they were not consulted or interviewed by the NPA.”

The ramifications of this decision could endanger other families’ struggles for justice, say Cajee’s lawyers. “The failure to act expeditiously, seen together with the refusal to prosecute Els and Sons, sends a powerful signal. It invites apartheid-era security policemen to continue with their charade in courts and to glibly fob off questions on torture with bland denials … with the virtual guarantee of complete impunity. Indeed, the approach makes a mockery of South Africa’s post-apartheid administration of justice.”

Cajee told New Frame he feels “that the only reason they made this decision is that I was literally hounding them. They were forced to come up with some sort of an explanation, simply to get rid of me. I think their strategy was to play this thing out for as long as possible, hope that I would get tired and the matter would simply disappear.”

Disingenuous decision

Baloyi’s decision seems to miss the point that the detainees’ affidavits were submitted to the NPA not to charge them with assault and torture but to show that they were not telling the truth to Mothle. Baloyi has failed to show an understanding of this.

Additionally, he accepts Sons and Els’ repeated assertions that they had no knowledge of the assaults, could not remember such incidents and only read about them in the newspapers, without examining evidence to the contrary in the affidavits. This is disingenuous given the mountains of evidence that torture was a common practice as demonstrated by testimonies during the TRC, reports from the time by human rights organisations and recent evidence in the reopened Timol and Aggett inquests.

Baloyi said “their advanced age will mitigate against a finding that they are deliberately lying”. But the perjury of which they are accused occurred in 2017 and in South African courts, the question of age only has bearing during the sentencing phase of court proceedings.

In its decision last year to dismiss Rodrigues’ appeal for a stay of prosecution for his involvement in Timol’s murder, the Johannesburg high court ruled that “age and infirmity are not grounds upon which the applicant can singularly rely as a form of prejudice. These are grounds which, generally, a trial court must consider at sentencing.”

In Europe, South America and other regions, the age of perpetrators of decades-old human rights violations has not been ruled a bar to those prosecutions. Former Nazi concentration camp guards and other officials have been tried well into their 90s.

Rodrigues is now awaiting a decision from the Supreme Court of Appeal. He is 81 years old and has repeatedly cited his age and infirmity as a reason why the case against him should not proceed. He has spent more than two years fighting his case at a cost to the taxpayer of R3.5 million in legal costs.

‘We would be content’

Cajee said that should the former security police clerk lose his case, he will attempt to take it to the Constitutional Court, which “will not cost him a cent”. Cajee added that he believes Rodrigues’ legal team is pursuing a strategy “to delay in the hopes that he will die. And with Covid-19, the chances of him ever coming back to a court of law and testifying are, in my opinion, very minimal.”

If Rodrigues were to answer Cajee and the Timol family’s questions – and “say that he was part of a cover-up, this is how Timol was killed, this is how he was instructed to lie in front of the court, these are the people that are implicated on a political level” – they “would be content because he would be making a full disclosure”.

Cajee and other families and interested parties voiced their frustration in a third letter to President Cyril Ramaphosa on 23 June. A letter to the president from former TRC commissioners in February 2019 asked him to address the question of political interference in TRC cases by appointing a commission of inquiry. Families sent Ramaphosa another letter in June last year asking him to intervene and settle the unfinished business of the TRC.

All three letters remain unanswered. The most recent asks “why our democratically elected government continues to neglect addressing our matters, leading to our perception that the government of the African National Congress (ANC) has adopted an attitude of no concern to what was a matter of life and death for our loved ones.”

Cajee said “Ramaphosa must stand up and take responsibility … It’s hypocrisy, you stand up and give speeches about George Floyd and you make reference to Bantu Steven Biko, but what are you doing about fighting for truth and justice in South Africa?”

Moral, legal and societal obligation

In May, the families of the Cradock Four took the same route as those of Simelane, Timol, Aggett and Hoosen Haffejee in calling for a decision from the NPA about prosecuting those responsible for their deaths. The NPA has until 10 July to make that decision and while Calata’s son, Lukhanyo Calata, has said the families of the Cradock Four are “still very much in the space where we are hoping that the NPA will finally take the right decision … should they come back and say they won’t be proceeding … we’ll take them to court because it’s still an avenue that’s open to us.

“We are of the opinion that the NPA has the moral obligation, has the legal obligation and has the societal obligation to prosecute the people responsible for the murders of the Cradock Four,” says Calata.

Calata and the families of the Cradock Four were spurred to push for an NPA decision by the success of the Timol and Aggett matters. On the eve of the 35th anniversary of his father’s murder, Calata said that the reopening of those inquests gave other families the impetus to “push a little bit harder, because beyond the horizon there is justice” and “eventually all of these families can get to a point where they, too, can say, ‘Yes, finally, our loved ones can rest in peace because we have been able to secure them justice.’”

Litmus test

National Director of Public Prosecutions Shamila Batoyi may be mostly in the news these days for her office’s movement on the case of the alleged looting of VBS Bank. But when she came into office, she mentioned the NPA’s commitment to pursuing justice for TRC cases and has held meetings with families and organisations on the progress of these cases. Despite this, many families and organisations remain unconvinced of any meaningful action within the NPA.

In a recent webinar with various organisations, Batoyi said the NPA regards TRC cases as a top priority and that it is aware time is running out and that limited capacity within special investigative unit the Hawks is a problem. She said the NPA will work more closely with families and lawyers on these cases in the future.

For Calata, the decision Baloyi makes about his family’s case will be a litmus test not only for her administration but for the country’s future. As he sees it, “Shamila has to. If she is a patriot in this country, if she is a person that wants the best possible society for her children, for her grandchildren, then she has to deliver on what she has promised. Not to us as a family, but to us as a country … We understand that there are difficulties, but she has a job to do. It’s a very difficult job, but she accepted it and she made promises to the country and she must deliver.”

The charter of the Apartheid Era Victims’ Family Group (AVFG) includes a commitment by families to assist the NPA’s investigations, to help mitigate some of the drain on the limited budget the authority has to investigate these cases. “The NPA calls themselves lawyers of the people, but then they must be lawyers of the people. We’re not asking them to spend millions on us unnecessarily, all we are saying is just keep us in the loop and we’ll help you along the way,” said AVFG spokesperson Cassiem Khan.

The 35th anniversary of the funeral of the Cradock Four falls on 20 July. It was an event much covered by the international media at the time and one that coincided with then president PW Botha’s announcement of a national state of emergency. That moment simultaneously buried the four struggle heroes and signalled the desperate, dying days of the apartheid regime’s attempts to suppress internal opposition. But without justice for the Cradock Four, it remains an empty and symbolic moment for those still waiting for the peace a prosecution of those responsible will bring.

Undoing an apartheid legacy

Meanwhile, former perpetrators, no doubt buoyed by the recent decision in the Sons and Els matter, will quietly continue to use the post-apartheid system to their benefit and say that their age, increasing frailty and failing memories make them incapable of offering anything useful to investigators or the families of their alleged victims.

Calata said that beyond their personal quest for justice, the prosecution of TRC cases is fundamental to rectify the situation that existed under apartheid in which “the criminal justice system … enabled the criminality of the apartheid government. The judiciary was an active participant in enabling the crimes against our humanity.”

In pursuing justice for his father, Calata sees an opportunity “to also undo a small part of that legacy, and to say that the judiciary in a democratic South Africa must set itself apart and must undo the injustices caused by the judiciary in the apartheid years … and hold apartheid criminals responsible for their crimes.”

Cajee is likewise committed to the successful prosecution of TRC cases beyond his family. He said his uncle and others like him “died for the betterment of the majority of the people of this country. That’s what they got involved in the struggle for. Not to loot and fill their own pockets. That’s why today it’s painful to see the gap between the rich and the poor. It’s painful to see during Covid-19 that the health facilities aren’t coping, the educational system is not functional, the transport system is not working, the economy is not moving because of incompetency and the looting of state resources. These people who died fought to ensure that this would never happen.”

Calata questioned why perpetrators sitting quietly and waiting out the NPA and its slow commitment to post-apartheid justice “would continue to deny us our humanity. Why it is that they continue to see us as things that are not deserving of the truth? Why it is that they don’t see us as human beings who hurt very much like them, as people who have a need for truth and closure, very much like them?

“They continue to dehumanise us by denying us what is rightfully ours, which is truth and closure. By continuing to keep quiet about the hurt that they’ve caused us, they continue to let our wounds bleed. So I would ask them why it is that they continue to be so cruel? Have they not hurt us enough?”

Tymon Smith

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