In its Final Report released on 21 March 2003, the TRC stressed that amnesty should not be seen as promoting impunity. It highlighted the imperative of ‘a bold prosecution policy’ in those cases not amnestied, to avoid any suggestion of impunity, or of South Africa contravening its obligations in terms of international law. Most victims accepted the necessary and harsh compromises that had to be made to cross the historic bridge from apartheid to democracy. They did so on the basis that there would be a genuine follow-up of those offenders who had spurned the process and those who had been refused amnesty. Sadly, this has not happened.
Even though the TRC had handed over a list of around 300 cases to the NPA with the recommendation that they be investigated further (with a view to prosecution), virtually all of these cases have been abandoned. The cases involved gross human rights violations such as torture, murder, and enforced disappearance, in which amnesty was either denied or not applied for.
The reasons behind the NPA inaction on the TRC cases were first exposed during the 2015 legal proceedings launched by Thembi Nkadimeng, who sought to compel the NPA to make a prosecutorial decision in the 1983 murder of her sister, Nokuthula Simelane. This application disclosed evidence of gross political interference in the operations of the NPA, as revealed by the supporting affidavits of former NDPP Adv Vusi Pikoli and Senior Counsel Anton Ackermann, former Special Director of Public Prosecutions in the Office of the NDPP and former head of the PCLU. The aforesaid NPA officials were instructed and cajoled by cabinet ministers and the then Commissioner of the SAPS to stop all work on TRC cases.
A secret Amnesty Task Team was established in 2004 to address ‘the absence of any guarantee that alleged offenders will be prosecuted’, which resulted in amendments to the NPA’s Prosecution Policy. These amendments effectively created a ‘backdoor amnesty’, together with the launch of President Mbeki’s Special Dispensation on Political Pardons. Both initiatives had to be stopped in court. The Nkadimeng case disclosed a memorandum addressed by Pikoli to then Justice Minister Bridgett Mabandla, in which Pikoli concludes that there had been improper interference in relation to the TRC cases, and that he had been obstructed from taking them forward. He complained that such interference impinged upon his conscience and his oath of office.
As a result, in 2003, when Imtiaz Cajee approached the NPA to investigate the death in detention of his uncle, Ahmed Timol, no investigation took place. The NPA stated that the matter had been investigated – when, in fact, it had not. Had it been investigated, the lead interrogators of Ahmed Timol could have been held to account, since the last suspect only died in 2012. The lack of investigation and accountability was thus a travesty of justice. Indeed, the NPA would only reopen the Timol inquest in 2017, after threats of legal repercussions.
The developments that emerged in the stay of prosecution application brought by Joao Rodrigues, a defendant in the Timol case, further confirmed political interference in the TRC cases. Adv Raymond Christopher Macadam, Senior Deputy Director of Public Prosecutions, in his affidavit dated 1 November 2018, revealed that in 2003, he had met with Ackermann and with Special Director of the Directorate of Special Operations (DSO), Adv MG Ledwaba. Macadam recalled that the meeting was ‘unpleasant as Ledwaba made it clear in no uncertain terms that the DSO would not investigate any TRC matters and that these should all be referred to the SAPS’. As a result, Macadam and Ackermann requested the Detective Service of the SAPS to initiate investigations, but were informed that it was the responsibility of the DSO, and the SAPS investigation could only be conducted following clear instructions from the President. Consequently, Macadam and Ackermann tried to persuade Ledwaba to reconsider his decision to refuse investigations into, and prosecutions of, TRC cases. They were unsuccessful.
In his affidavit, Macadam confirmed that a moratorium had been placed on all TRC investigations and prosecutions until the guidelines (amendments to the Prosecutorial Policy allowing for no prosecution in a case where the perpetrator had met the TRC amnesty criteria) had been developed for TRC cases. In 2017, Macadam also discovered a number of documents further indicating political interference, including a secret memorandum by Adv Pikoli to the then Minister of Justice.
The proceedings related to the application by Rodrigues to stay his prosecution also uncovered how the NPA seemed to have been trying to hide instances of political interference. During the course of the proceedings, it turned out that the NPA had seemingly intentionally withheld Macadam’s affidavit dated 1 November 2018, instead of submitting it with an answering affidavit on 8 December 2018 (when it had the first opportunity to do so). The NPA only submitted Macadam’s affidavit on 4 February 2019, following pressure by Imtiaz Cajee’s supplementary affidavit pointing out that the NPA had withheld said affidavit.
In 2019, the South Gauteng High Court ruled that the NPA had breached the Constitution by allowing political interference in its prosecuting duties. In particular, the Court found that ‘It is also for these reasons that the conduct of the relevant officials and others outside of the NPA at the time should be brought to the attention of the National Director of Public Prosecutions for her consideration and in particular, to consider whether any action in terms of Section 41(1) of the NPA Act is warranted’.
The majority of the TRC cases have yet to be satisfactorily finalised. As criminal accountability for apartheid crimes not amnestied is one of the cornerstones upon which the democratic South Africa is built, the unfinished work of the TRC is not a relic of the past, but a vital aspect of its future.