The Historical Context of Cases

From 1948 to 1994, South Africa was governed by the National Party (NP) under the system of apartheid. This was a political and social system which institutionalised racism; segregation along racial, cultural and religious lines; and White minority rule. The word means ‘separateness’ in the Afrikaans language, and the system was supported by much of the White population at the time. Although the system is primarily associated with these dates, it was built on a foundation of repressive laws dating from the 1850s.

Under the system, the people of South Africa were separated by race, and the races were physically divided from each other. Three broad racial groups were recognised under the system: White, Black, Mixed Race (Indian and Coloured). Racial classification determined each person’s access to political, social, and economic resources. The government controlled the distribution of resources, enforcing an intensely unequal system favouring the White minority.

In order to enforce discipline in an increasingly repressive regime, the police were given wide-ranging powers. The Security Branch of the South African Police (SAP) was authorised to track down, detain, and torture suspected activists and opponents of the regime. Often, detainees would die under suspicious circumstances while in police custody. However, as South Africa operated under a system of parliamentary sovereignty (meaning the Legislature held supreme power, over even the Executive and Judiciary), the courts could provide little help.

Over the years, the State promulgated a large body of laws formalising and institutionalising racial discrimination and inequality. The following were particularly notorious from the perspective of curtailing political freedoms:

• Black Land Act 27 of 1913 – This prohibited Blacks from owning or renting land outside of designated areas. This effectively limited Black occupation of land to about 7% of the country.
• Electoral Laws Amendment Act 20 of 1940 – This provided for the registration of only White voters on the Voters’ Roll.
• Population Registration Act 30 of 1950 – This officially set out the racial classifications recognised in the country.
• Suppression of Communism Act 44 of 1950 – Although mainly directed at the Communist Party of South Africa, the law also targeted other organisations opposed to the apartheid system. It could punish any individual or organisation seeking to bring about political, social, or economic change.
• Group Areas Acts – This was a collection of laws in the 1950s, which assigned different residential and business areas to the races. It effectively prevented non-Whites from living and working in urban and developed areas.
• Bantu Education Act 47 of 1953 – This established a separate education system for Blacks. This education system was decidedly inferior to the White system, lacking in funding, resources, and government support.
• Public Safety Act 3 of 1953 – This Act was passed in response to the African National Congress’s (ANC’s) civil disobedience campaign. It provided for a state of emergency to be declared, which allowed the Minister of Law and Order, the Commissioner of the SAP, a magistrate, or a commissioned officer, to detain any person for reasons of public safety. The Act did not envisage any appeal of this decision, nor was there an independent body to decide whether a state of emergency was justified or not.
• Unlawful Organisations Act 34 of 1960 – This authorised the banning of any organisation declared to be threatening the public order or the safety of the public. The ANC and the Pan Africanist Congress (PAC) were banned under this Act.
• General Law Amendment Act (Sabotage Act) 76 of 1962 – This act extended presidential powers to declare an organisation unlawful, and introduced the offence of ‘sabotage’.
• Terrorism Act 83 of 1962 – This defined terrorism very broadly, and allowed the police to detain suspicious individuals indefinitely without trial.
• General Laws Amendment Act 37 of 1963 – This Act provided for suspects to be detained for up to 90 days – renewable at expiry – in isolation, without access to courts, for the purposes of interrogation.
• Criminal Procedures Amendment Act 96 of 1965 – This Act introduced detention up to 180 days, in solitary confinement, with no access to courts and legal representation. The stated purpose of the Act was to extract information from potential witnesses, but in fact, interrogation was the main purpose.
• Internal Security Amendment Act 79 of 1976 – This Act was introduced following the Soweto Uprising and provided for long-term and renewable ‘preventive’ detention of up to 12 months. It also allowed for the detention of up to 6 months of potential witnesses, in solitary confinement.
• Internal Security Act 74 of 1982 – Adopted as a result of recommendations by the Rabie Commission of Inquiry to streamline and supersede all previous security legislation. The Act introduced a number of repressive provisions. It authorised: indefinite preventive detention and detention for interrogation; no appeal recourse to a person detained; the Attorney General to refuse bail; a 14-day preventive detention ordered by lower rank police officers for the reasons of public safety; and the banning of individuals, organisations, or publications.
• Internal Security Amendment Act 66 of 1986 – This Act added a further category of detention without trial. In particular, a policeman at or above the rank of lieutenant colonel could authorise continued detention for a period of 180 days, if this would contribute to the ‘termination, combating or prevention of public disturbance, disorder, riot or public violence at any place within the Republic’.

The apartheid era officially came to an end in 1994, with the election of the first democratically-elected President in South Africa, Nelson Mandela. The transition to democracy came about through intense negotiations over several years between the ruling National Party and several resistance movements, including Mandela’s ANC. The negotiations were conducted against a backdrop of increasing political resistance and violence in the country.

Of these negotiations, one of the most impactful was the Convention for a Democratic South Africa (CODESA), held on 29 and 30 November 1991. The agreed agenda for the CODESA plenary consisted of drafting general constitutional principles for the country to follow under democracy, arrangements for a transitional or interim government, agreements on the future status of the Bantustan territories (these were black homelands set up by the apartheid government), and agreeing on the role of the international community, among others. The standing rules prescribed that where full consensus was not achievable, ‘sufficient consensus’ would suffice. CODESA established 5 working groups to deal with constitutional principles, interim government arrangements, Constitution-drafting, reincorporation of the homelands, and establishing a timeframe for negotiations. A steering committee with one representative from each organisation was also established to draft a statement of intent after CODESA’s first meeting. Although most of the representatives had a mandate and the support of their constituencies, this was not the case for the NP. In fact, many NP politicians were fearful that CODESA was in essence taking over their role, and the party’s grip on power was weakening. As a result, then President FW de Klerk elected to hold a ‘whites only’ referendum, to shore up support. Two further issues emerged: the ANC was reluctant to disband its armed wing, uMkhonto weSizwe (MK), and the parties could not agree on how to restructure the South African Broadcasting Corporation to ensure a neutral, fair, and accountable media. The first CODESA was followed by a second in 1992, two months behind the original schedule.

Following South Africa’s transition to democracy in 1994, apartheid laws were abolished, and the new government set about building a more equitable nation. Parliamentary sovereignty was abandoned in favour of constitutional supremacy. This meant an equal distribution of power between the Legislature, Executive, and Judiciary, and all organs of State were bound under a new national Constitution. Such a system was considered better to ensure the checks and balances that would prevent future atrocities of the scale the country had suffered. The interim Constitution of South Africa Act 200 of 1993 and the final Constitution of South Africa Act 108 of 1996 laid the foundation for the new democratic order.

The dreaded SAP was transformed into the South African Police Service (SAPS), which committed itself to the ‘creation of a safe and secure environment for all people in South Africa’ and ‘with integrity, [to] render a responsible and effective service of high quality which is accessible to every person’.

An amnesty provision was included in the Interim Constitution, which would pave the way for the future adoption of the Promotion of National Unity and Reconstruction Act 34 of 1995. A blanket amnesty was specifically rejected, instead the amnesty process would be managed by the Truth and Reconciliation Commission (TRC), established under the Promotion of National Unity and Reconstruction Act. Amnesty could be granted to individuals who had applied for amnesty, and who had fully disclosed the truth. This was seen as a compromise to ensure that perpetrators could not simply erase evidence of human rights atrocities, and the country could fully understand its dark history, and move forward.

The TRC was a temporary body vested with strong quasi-judicial powers, which held hearings on matters brought to it by victims of serious human rights violations committed in the context of apartheid. The Commission was one of the first truth commissions set up globally, and developed many of the rules which typically characterise truth commissions today. The Commission comprised three committees: the Amnesty Committee (AC), the Reparation and Rehabilitation Committee (R&R Committee), and the Human Rights Violations Committee (HRV Committee).

As its name suggests, the HRV Committee was tasked with investigating human rights violations that occurred during apartheid. It determined the identity of victims, their fates or whereabouts, the harm they had suffered, and the persons or organisations responsible. Once these facts had been determined, the case was sent to the R&R Committee. This second committee oversaw the reparation due to victims. Its priority was restoring victim dignity, and making provisions for the rehabilitation and healing of victims, their families, and communities. The committee could formulate policies and make recommendations to government to achieve this. Finally, the AC considered whether certain perpetrators of apartheid-era crimes could be granted amnesty. Although in a perfect world, no perpetrator should escape punishment for their crimes, the AC was felt to be a necessary compromise allowing the country to move on from the past.

The TRC was the first truth commission to offer amnesty to individuals who fully disclosed their involvement in politically motivated crimes in public. The amnesty hearings were held in public before the AC, composed solely of judges. The process thus resembled a judicial process to some extent. Both amnesty applicants and the victims affected by the amnesty application had the right to legal representation. In the applicants’ case, the State provided free legal representation where needed. Victims also had the right to oppose the amnesty application. While some perpetrators of apartheid crimes applied for amnesty, others chose not to. Of those who had applied, some were refused amnesty because their crime was not politically motivated, or they had failed to disclose the whole truth, as required.

The TRC conducted its work under a restorative approach to justice. This is a legal philosophy aimed at rehabilitating offenders and encouraging reconciliation between perpetrators and the people they have harmed. It is in contrast to a retributive approach to justice, which would focus on punishing offenders. The restorative approach was felt to be more in line with the new democratic nation based on respect and tolerance.

The TRC hearings began in 1996, and continued until 2000. In its Final Report released on 21 March 2003, the TRC stressed that amnesty should not be seen as promoting impunity, and 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. As many of the crimes were of a serious nature, such as murder, enforced disappearance, torture, and abduction, these could amount to crimes against humanity. The compromise of granting amnesty for some, in order to support a peaceful transition, did not negate the State’s responsibility to pursue criminal investigations and prosecutions in cases where amnesty had not been applied for, or had been refused. This compromise formed the heart of the compact struck with victims.

Upon the tabling of the TRC’s report, then President Thabo Mbeki reiterated that criminal accountability must follow where necessary. In his statement to Parliament and the nation on 15 April 2003, Mbeki stated that:

• There should be no general amnesty. However, the follow-up process should accommodate those who, for various reasons, did not take part in the TRC process
• A renewed amnesty process was off the table, as it would violate the constitutional rights of victims
• The investigation and prosecution should be in the hands of the National Prosecuting Authority (NPA) for it to ‘pursue any cases that, as is normal practice, it believes deserves prosecution and can be prosecuted’
• However, as part of the process and in the national interest, the NPA was permitted to negotiate with individuals who had information which could help to uncover the truth, and make alternative arrangements that were permitted by law
• In such instances, the victims would be consulted, in order to determine the appropriate course of action

Following the end of the hearings before the TRC, several hundred cases were thus forwarded to the NPA for further attention. This body was established under section 179 of the Constitution and the National Prosecuting Authority Act 32 of 1998. Its task is to ensure justice for all victims of crime by prosecuting perpetrators, and solving and preventing crimes. It is comprised of six units:

• National Prosecutions Service (NPS)
• Priority Crimes Litigation Unit (PCLU)
• Asset Forfeiture Unit (AFU)
• Sexual Offences and Community Affairs (SOCA)
• Specialised Commercial Crime Unit (SCCU)
• Witness Protection Unit (WPU)

The NPA is headed by the National Director of Public Prosecutions (NDPP). This individual is appointed by the President for a term of ten years, and is supported by a Chief Executive Officer and four Deputy National Directors. Notwithstanding the official term of office, the post of NDPP has passed through several individuals as the result of resignations or removals. Additionally, the NPA has faced allegations of political interference and improper conduct at various levels. Victims of apartheid have been particularly vocal about a seeming lack of political will, which has resulted in decades-long delays in prosecuting TRC cases. Most notably, the Simelane, Timol, and Aggett families have engaged in protracted deliberations with (and sometimes legal proceedings against) the NPA in order to push matters forwards.

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.