Constitutional Damages Case

On 20 January 2025, twenty-five families and survivors of apartheid-era crimes brought an application in the Pretoria High Court against President Cyril Ramaphosa and his government, seeking constitutional damages for the government’s gross failure to adequately investigate and prosecute apartheid-era political crimes following the Truth and Reconciliation Commission (TRC) process.

The suppression of post-TRC accountability efforts has allowed witnesses and perpetrators to pass away, effectively eliminating the possibility of prosecutions in most of those cases. These are cases that can never be revived. As a result, the government has denied survivors and victims’ families their fundamental rights to justice, truth, and closure.

The application is brought by 22 individual applicants (representing survivors and families) and the Foundation for Human Rights, a South Africa-based human rights organisation, as an institutional applicant.[1] Lukhanyo Calata, representing the families of the Cradock 4 activists, is acting as the main applicant.

[1] Tryphina Nomandlovu Mokgatle (5th Applicant) represents the family of the late Zandisile Musi as well as other COSAS Four families, including the families of Eustice ‘Bimbo’ Madikela, Ntshingo Matabane and Fanyana Nhlapo, hence the number of applicants is 22. However, the case is brought by 25 survivors and families of victims.

The respondents include:

• The President of South Africa
• The Government of South Africa
• The Minister of Justice
• The National Director of Public Prosecutions
• The Minister of Police
• The Commissioner of the South African Police Service.

The applicants are seeking three types of relief:

1) A declaration that the conduct of the respective governments in power from 2003 was a violation of the rights of the families and survivors to equality, human dignity and the rule of law, in suppressing the investigation and/ or prosecution of the TRC cases.

2) Payment of constitutional damages to affirm constitutional values and vindicate the rights of applicants by supporting their pursuit of inquests, private prosecutions, and related litigation, as well as enabling commemoration, memorialisation, and public education on TRC cases through events, publications, and documentaries, among others.

3) A declaration that the President’s refusal to set up an independent commission of inquiry into the suppression of the TRC cases is unconstitutional and violates the rights of families and survivors, and for an order directing the President to establish a commission of inquiry.

COURT PAPERS 

FOUNDING AFFIDAVIT AND ANNEXES

A full set of the court papers (signed and stamped) can be downloaded on this link

A full set of unsigned court papers with links can be downloaded on this link

Notice in terms of Rule 16A can be downloaded on this link

NOTICES TO OPPOSE 

Notice to Oppose (1st and 2nd respondents) can be downloaded on this link

Notice to Oppose (3rd and 4th respondents) can be downloaded on this link

Notice to Oppose (5th and 6th respondents) can be downloaded on this link

Notice of Withdrawal (1st and 2nd respondents) can be downloaded on this link

Notice of Withdrawal (3rd respondent) can be downloaded on this link

Notice of Withdrawal (5th and 6th respondents) can be downloaded on this link

APPLICATION FOR LEAVE TO INTERVENE AS AMICUS CURIAE

The Helen Suzman Foundation’s notice of motion and founding affidavit can be downloaded on this link

OTHER DOCUMENTS

Media briefing notes can be downloaded on this link

An overview of the court application can be downloaded on this link

The application has been brought by the following survivors and family representatives:

1) Lukhanyo Bruce Matthews Calata (1st Applicant) – representing the family of the late Fort Calata, one of the Cradock Four activists.

2) Alegria Kutsaka Nyoka (2nd Applicant) – representing the family of the late Caiphus Nyoka.

3) Bonakele Jacobs (3rd Applicant) – representing the family of the late Mxolisi ‘Dicky’ Jacobs.

4) Fatiema Haron-Masoet (4th Applicant) – representing the family of the late Imam Haron.

5) Tryphina Nomandlovu Mokgatle (5th Applicant) – representing the family of the late Zandisile Musi as well as other COSAS Four families, including the families of Eustice ‘Bimbo’ Madikela, Ntshingo Matabane and Fanyana Nhlapo.

6) Karl Andrew Weber (6th Applicant) – a survivor of the Highgate Hotel Massacre in East London on 1 May 1993.

7) Kim Turner (7th Applicant) – representing the family of the late Dr Rick Turner.

8) Lyndene Page (8th Applicant) – sister of the late Deon Harris, who died at the Highgate Hotel Massacre in East London on 1 May 1993.

9) Mbuso Khoza (9th Applicant) – representing the family of Musawakhe ‘Sbho’ Phewa, who was forcibly disappeared in 1987.

10) Neville Beling (10th Applicant) – a survivor of the Highgate Hotel Massacre in East London on 1 May 1993.

11) Nombuyiselo Mhlauli (11th Applicant) – representing the family of the late Sicelo Mhlauli, one of the Cradock Four activists.

12) Sarah Bibi Lall (12th Applicant) – representing the family of the late Dr Hoosen Haffejee.

13) Sizakele Ernestina Simelane (13th Applicant) – representing the family of the late Nokuthula Simelane, who was forcibly disappeared in 1983.

14) Sindiswa Elizabeth Mkonto (14th Applicant) – representing the family of the late Sparrow Mkonto, one of the Cradock Four activists.

15) Stephans Mbuti Mabelane (15th Applicant) – representing the family of the late Matthews ‘Mojo’ Mabelane.

16) Thuli Kubheka (16th Applicant) – representing the family of Ntombikayise Priscilla Kubheka, who was forcibly disappeared in 1987.

17) Hlekani Edith Rikhotso (17th Applicant) – representing the family of Ignatius ‘Iggy’ Mthebule, who was forcibly disappeared in 1987.

18) Tshidiso Motasi (18th Applicant) – representing the family of the late Richard and Busisiwe Irene Motasi.

19) Nomali Rita Galela (19th Applicant) – representing the family of the late Twasile Champion Galela, one of the PEBCO 3 activists.

20) Phumeza Mandisa Hashe (20th Applicant) – representing the family of the late Sipho Hashe, one of the PEBCO 3 activists.

21) Mkhontowesizwe Godolozi (21st Applicant) – representing the family of the late Qaqawuli Godolozi, one of the PEBCO 3 activists.

22) Mogapi Solomon Tlhapi (22nd Applicant) – representing the family of Nicholas Ramatua ‘Boiki’ Tlhapi, who was forcibly disappeared in 1986.

23) Foundation For Human Rights (23rd Applicant) – acting in public interest.