Former Commissioners of the
Truth and Reconciliation Commission
TO: All Media
ATT: News Editors, Human Rights Reporters
For immediate release
Tuesday, 09 November 2021
CALL FOR AN INDEPENDENT PUBLIC & OPEN COMMISSION OF INQUIRY INTO THE SUPPRESSION OF THE TRC CASES
Statement by the Former TRC Commissioners, Apartheid-Era Victims’ Family Members and Civil Society Organisations
On Friday, 5 November 2021, the Minister of Justice, Mr Ronald Lamola, in his address to the Inaugural Fort Calata Foundation Memorial Lecture, indicated that he had appointed an inquiry to investigate the suppression of the cases referred by the TRC to the NPA, which were more than 300 serious crimes that were not amnestied, mostly murder cases (“the TRC cases”). He indicated that the investigation would be presided over by a judge.
The Minister did not disclose the terms of reference of the inquiry or the identity of the judge. No indication was given as to how the judge was appointed and under what legal authority. When asked whether the inquiry would be open or closed the Minister said he would have to discuss this with the judge. He declined to give his own view on the matter stating it would amount to a policy statement.
Since the President is not involved in this appointment and no mention was made of the Commissions Act, the envisaged inquiry can only be an internal inquiry. Internal inquiries are held behind closed doors. If it was intended to be an open and transparent inquiry the Minister would have not hesitated to say so. Normally judges are not appointed to oversee internal inquiries launched by the executive and it must be asked why the Minister has taken this extraordinary step in this instance.
The Minister’s decision to appoint an internal inquiry must be seen in the context of the fact that the former TRC Commissioners and the Apartheid Era Families’ Victim Group (AFVG) have requested the President and Minister of Justice on no less than 4 occasions since early 2019 to appoint an open and public commission of inquiry into the suppression of the TRC Cases. Aside from letters of acknowledgment the requests were ignored. Given that the Minister has announced an internal inquiry, it can be deduced that an effective decision has been taken not to hold a commission of inquiry, which are typically public in nature.
Avoiding public scrutiny
It appears that the State wishes to avoid an open and public inquiry into the suppression of the TRC Cases. This may be for purposes of damage control to ensure that the truth behind the suppression is carefully managed by a closed-door inquiry, away from the glare of public scrutiny. This is unsurprising given the role of senior members of the executive, NPA and SAPS in the suppression of the TRC Cases. Since a closed inquiry will be viewed with great suspicion, the inescapable conclusion to be drawn is that a judge is being asked to oversee an effective secret investigation to give it an air of respectability.
Typically, a commission of inquiry includes public hearings, the power to subpoena witnesses and documents, the calling of witnesses, cross examination and the participation of victims and other stakeholders. While it is possible that attempts will be made to deflect criticism by allowing victims to make submissions and requiring the Judge to issue a report, it will remain a closed inquiry. There will be no public hearings and no opportunity for victim representatives to ask tough questions to those who shut down justice. Victims, the media and the public will be effectively shut out of this inquiry.
An inference will almost certainly be drawn that the inquiry has been so designed to protect powerful elements in society and shield them from scrutiny and embarrassment.
The executive investigating the executive
The Minister is appointing an executive inquiry to investigate members of the executive. The suppression of the TRC cases involved multiple entities and individuals across the public sector, including the Department of Justice, the National Intelligence Agency, the NPA, the SAPS and the Department of Defence. The available evidence suggests that politicians, cabinet ministers, senior civil servants, police officers and prosecutors were all involved in efforts to ensure that the TRC cases never saw the light of day.
An internal inquiry cannot hope to get to the bottom of a problem of this magnitude and sensitivity. An internal investigation will not be able to deliver the full history of the interference as it unfolded over time over multiple departments and within and outside government.
An internal inquiry, unlike a commission of inquiry, will have no power to compel the production of testimony and evidence and will have to rely on requests and cooperation of individuals and different government departments.
The track record of the SAPS and NPA in relation to the TRC Cases speaks for itself. It is well known that there remains considerable resistance to carrying out meaningful investigations of the TRC Cases, let alone investigations into the suppression of the cases. In these circumstances it is disturbing that the Minister has seen fit to reject a public commission of inquiry in favour of an internal investigation. Members of the executive will be expected to investigate their own colleagues. Such an inquiry will have little or no credibility in the eyes of the public, and the gloss of an ‘oversight’ role of a judge will not change this.
It is particularly disturbing that a Judicial Officer is required to lend judicial legitimacy to an investigation conducted by the executive. Not only is such an expedient function well outside the functions of the judiciary, but it is also harmful to that institution and is a breach of the separation of powers principle, rendering such an appointment unconstitutional, as the Constitutional Court has ruled.
The need for a Commission of Inquiry
There is no longer any dispute that political interference blocked several hundred serious criminal cases in which amnesty had been denied or not sought. A former National Director of Public Prosecutions and a former head of the NPA’s Priority Crimes Litigation Unit have provided affidavits to this effect in the 2015 matter of Nkadimeng v. National Director of Public Prosecutions. Senior officials representing the NPA admitted under oath in 2019 that the Authority succumbed to political interference in respect of the TRC cases in Rodrigues v National Director of Public Prosecutions of South Africa. The High Court and the Supreme Court of Appeal expressed their dismay at how such interference could take place in the new constitutional order.
While some evidence has been uncovered in the Nkadimeng and Rodrigues matters, the reasons behind the suppression of the cases are not known and the sources of such interference remains opaque. It is not known if arrangements and agreements were struck with individuals and entities outside government. The full means by which the will of outsiders was imposed on institutions such as the NPA and the SAPS is yet to be exposed. It is not known how institutions with firm constitutional and statutory obligations to uphold justice so easily abandoned their duties in respect of these cases.
The subject matter is of great public concern
Perhaps more than any other class of cases, the suppression of the TRC cases has been almost total in its impact. Virtually all the cases were blocked. Most of the cases cannot be resuscitated as many perpetrators, witnesses and family members have died over the past 20 years. The impact visited on the families of those murdered, their communities and on the fabric of society is incalculable. The harm done to the families and our society demands an expeditious, thorough, and credible inquiry into the machinations that resulted in such a massive denial of justice.
There is a critically important need to restore public confidence in the government as a whole and the institutions implicated in the suppression of the TRC cases. This is particularly the case in respect of the families of victims of apartheid-era crimes and their communities who have lost trust in the government, especially the SAPS and NPA. An investigation held behind closed doors is likely to destroy all confidence and trust in the state.
A closed-door inquiry will undermine the effort to reveal the full truth behind the suppression of the TRC cases. This will add considerable anxiety to the affected families and communities who have been waiting decades for the truth. The suppression of the TRC Cases deeply violated their rights to human dignity, equality and the rule of law. The refusal to hold an open and public commission of inquiry only exacerbates the violation of these rights.
The cost of a commission
It will no doubt be argued that the country is suffering “commission fatigue” and cannot afford yet another commission of inquiry, particularly after the State Capture Commission which cost some R1 billion. Such an argument is deeply insulting to the families who endured apartheid-era crimes. Their loved ones laid down their lives for our democracy and its enshrined freedoms. Not only has the post-apartheid state turned its back on them and suppressed their cases, but in raising such an argument, it says they are not worthy of a rigorous public inquiry. It is also insulting to the families given the readiness of state officials to squander billions on mismanagement, corruption and nepotism.
In any event, the State Capture Commission cannot be compared to an inquiry into the suppression of the TRC Cases. Unlike the State Capture Commission, there is an extremely limited set of witnesses and a very limited set of facts to explore. Whereas the State Capture Commission required years to complete its work, a commission into the suppression of the TRC Cases could be wrapped up in few months.
Call for a public and open commission of inquiry
The late Mr Justice Arthur Chaskalson, then President of the Constitutional Court, later Chief Justice of South Africa, said a few months after South Africa’s democratic elections in 1994:
“We need to remember that the first incursion into rights is often the most damaging; that once inroads are permitted, the will to resist subsequent incursions is lessened…”
The post-apartheid state engineered multiple incursions into the rights of victims of apartheid-era crimes over the last 20 years. The holding of a closed-door inquiry will constitute yet another incursion into their rights. This cannot be allowed to happen.
The families of apartheid-era victims deserve nothing less than a fully open, public and transparent inquiry. This must include public hearings, the power to subpoena and compel the production of evidence, and the right of victims to be represented in the commission and to lead evidence and put questions to witnesses. Only a commission of inquiry can allow provide for such accountability.
Accordingly, we the undersigned former TRC Commissioners, families and organisations again call on you to work with the President to speedily appoint an independent and public commission of inquiry into the suppression of the TRC cases in terms of the Commissions Act 8 of 1947, with the necessary powers to compel the production of testimony and evidence.
Signed by Yasmin Sooka on behalf of:
Former TRC Commissioners
Ms Yasmin Sooka
Adv Dumisa Ntsebeza SC
Ms Wendy Orr
Ms Glenda Wildschut
Dr Fazel Randera
Ms Mary Burton
Mr Richard Lyster
Former TRC Committee Members
Prof Piet Meiring
Mr Ilan Lax
Dr Russel Ally
Mr Lukhanyo Calata, son of the late Fort Calata
Ms Thembi Nkadimeng, sister of the late Nokuthula Simelane
Mr Mohammad Timol, brother of the late Ahmed Timol
Ms Jill Burger and Mr Stephen Aggett, sister and nephew of the late Dr Neil Aggett
Ms Fatima Haron and Prof Muhammed Haron, daughter and son of the late Imam Haron
Ms Nation Nyoka, niece of the late Caiphus Nyoka
The family of Mxolisi Dicky Jacobs
Mr Nkosinathi Biko
Nelson Mandela Foundation
Desmond and Leah Tutu Legacy Foundation
Foundation for Human Rights (FHR)
Fort Calata Foundation
Khulumani Support Group
Imam Haron Foundation
Human Rights Media Centre (HRMC)
Centre for Applied Legal Studies (CALS)
Institute for the Healing of Memories
Centre for the Study of Violence and Reconciliation (CSVR)
Violence Prevention Agency
Steve Biko Foundation
Apartheid-Era Victims’ Families Group (AVFG)
South African Coalition for Transitional Justice (SACTJ)
For media enquiries contact:
Lindiwe Sibiya, Media and Communication Officer, Foundation for Human Rights at firstname.lastname@example.org and 082 634 7154
Fort Calata Foundation
Lukhanyo Calata, 082 394 6481
South African Coalition for Transitional Justice (SACTJ)
Shirley Gunn, Executive Director of the Human Rights Media Centre
 On 5 February 2019, former TRC Commissioners addressed a letter to the President, calling on him to establish a commission of inquiry into the political interference. Calls for a commission of inquiry were also made in letters to the President on 23 June 2019 and 23 June 2020 by the families of Chief Albert Luthuli, Steve Biko, the Cradock Four, Nokuthula Simelane, Ahmed Timol, Dr Neil Aggett, Imam Haron, Matthews Mabelane, Dr Hoosen Haffejee, Ashley Kriel, Caiphus Nyoka and several other families. The former TRC Commissioners again wrote to the President on 18 March 2021 requesting a commission of inquiry. This letter attached proposed terms of reference for a commission of inquiry.
 T.P.D. Case No. 3554/2015), Gauteng Division
 3 All SA 962 (GJ) 2019; (2) SACR 251 (GJ) 2019