Press Release: PROGRESS UPDATE: CONSTITUTIONAL DAMAGES & COMMISSION OF INQUIRY CASE

PRESS RELEASE

To: All Media
ATT: News Editors, Human Rights Reporters
For Immediate Release
29 April 2025

PROGRESS UPDATE:

CONSTITUTIONAL DAMAGES & COMMISSION OF INQUIRY CASE

PARTIES AGREE TO ESTABLISH A COMMISSION OF INQUIRY INTO THE ALLEGED POLITICAL INTERFERENCE IN THE TRC CASES

PARTIES ARE DEADLOCKED ON THE BALANCE OF THE RELIEF

The families and survivors of apartheid-era gross violations and the Foundation for Human Rights (hereinafter referred jointly as “applicants”) who sued the President and the government for constitutional damages in January 2025 welcome the undertaking of the President to establish a commission of inquiry to investigate the alleged political interference in TRC cases. However, they reject the President’s proposal for the commission to deal with the declaration of their rights and the constitutional damages claim since a commission has no power to determine rights and remedies.

The applicants are very disappointed at the about-turn of the President. In February, the President stated in the media that he deeply appreciated the pain experienced by the families for the many years they had been denied justice. He stated firmly that they needed closure. The President withdrew his notice to oppose the court case and publicly called for mediation to resolve the issues raised by the families and survivors.

The families and survivors viewed the President’s statement as the first serious acknowledgement of their plight, after so many years of silence on the part of the authorities. The statement that mediation was the way forward was particularly welcomed, as it suggested that the President was serious about resolving their issues expeditiously. It gave them much hope.

Yet, just weeks later, the President rebuffed all attempts by the families to commence mediation. Instead of entering into mediation, he has decided to offload the declaration of rights and constitutional damages onto a commission of inquiry, which has no authority to deal with it, aside from offering advice.

This fundamental shortcoming was pointed out to the President’s legal team, as well as the fact that it will likely result in the issues remaining unresolved for years. This will perpetuate the pain and trauma that the families and survivors have experienced for many years.

In the circumstances, the President’s statements made in February acknowledging the pain of families and calling for closure and mediation cannot be taken seriously. His extraordinary about-turn has caused the families much anguish.

Main outcomes of the settlement negotiations

The President will establish a commission of inquiry into the alleged political interference by the end of May.

The President insists that the full relief sought by the applicants, including the claim for constitutional damages, be handled by a commission of inquiry.

The applicants welcomed the establishment of a commission of inquiry to investigate the alleged political interference, but did not agree to the balance of relief being handled by the commission and sought mediation on the constitutional damages.

Although withdrawing his opposition to the case and calling for mediation, the President has since refused to engage in mediation on the constitutional damages and the declaration of rights.

The President has decided that, notwithstanding the objections of the applicants, he will proceed to promulgate terms of the reference for the commission that will include the claim for constitutional damages and the declaration of rights.

The President will apply to court to stop the litigation from proceeding pending the outcome of the commission of inquiry (‘the stay application’).

The stay application and the application by former President Mbeki and Justice Minister Mabandla to intervene will likely be heard by the Court in late July or early August.

The families will oppose both the stay and intervention applications.

/END

Media queries:

Lukhanyo Calata: 082 394 6481

Foundation for Human Rights: Zaid Kimmie: 082 883 4934

Background

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 a declaration of their rights and constitutional damages for the government’s failure to prosecute apartheid-era crimes. They also sought an order compelling the President to establish an independent and public commission of inquiry to determine the reasons for this failure of justice.

Withdrawal of notices to oppose

The Minister of Justice and the National Director of Public Prosecutions (NDPP) filed their notices to oppose the application on 10 February 2025, while on 17 February the President, Government, Minister of Police and National Commissioner of Police filed their notices to oppose. The President, Government and Minister of Justice withdrew their opposition on 18 February, while the Minister and Commissioner of Police withdrew their opposition on 19 February 2025.

The applicants assumed that once the respondents withdrew their notices to oppose, they were no longer disputing that political interference blocked the TRC cases from proceeding. In addition, it was assumed that the respondents accepted that relief in the form of a declaration of rights, constitutional damages and a fact finding commission was warranted.

President calls for mediation

On 26 February 2025, the Presidency stated in a media article that “the families need closure” and that the President “appreciates the pain experienced by families of apartheid-era atrocity victims whose killers were never prosecuted – and supports their call for an inquiry into why these cases were not pursued.”

Presidency spokesperson Vincent Magwenya, told News24 that President Ramaphosa “became concerned when he found out the State Attorney had filed a notice of opposition, on behalf of his office, to far-reaching litigation launched by 22 survivors and families of those forcibly disappeared or killed, allegedly by the apartheid security forces.”

Magwenya stated that the President wished to resolve the issues raised by the victims and their families through mediation:

“The president deeply appreciates the pain that the families have gone through for the many years that they’ve been seeking justice and closure on the killings of their loved ones.

Hence, the Presidency has taken the position not to oppose the matter and to rather refer it to mediation, as well as being in support of instituting a commission that will look into these delays [in the prosecution of these cases] because families deserve closure, and they deserve justice.”

The applicants welcomed the approach of the President and commenced steps to initiate a mediation process with the President and the other respondents.

Engagement with the NDPP

The NDPP never withdrew her notice to oppose, indicating through her spokesperson that this was a procedural step, but she has since aligned herself with the other respondents.

At the request of the NDPP, the applicants have agreed to amend the declarator sought in respect of the period of the alleged political interference. The applicants have also welcomed the NDPP’s decision to investigate the feasibility of appointing a Special Director of Public Prosecutions to deal with the TRC cases.

The applicants undertook to conduct any monitoring of the work of the DPCI and NPA on the TRC cases in a respectful and helpful manner, and to promptly supply all leads, ideas, and information on the cases to both organizations.

The applicants also undertook to constructively engage with the NPA for purposes of establishing a structured means of conducting regular communications, information and early warning sharing; and establishing a TRC Cases Unit under a Special Director.

Attempts at settlement

On 4 March 2025 a case management meeting was held before Honourable Deputy Judge President Ledwaba (DJP), who directed:

The parties to meet on 17 March 2025 to commence settlement discussions, and to use the period 17—31 March 2025 to attempt to settle.

That former President Thabo Mbeki’s intervention application be filed by 31 March 2025, and the non-opposing respondents to file any explanatory affidavits by 15 April 2025.

Subsequently, the President proposed that a commission of inquiry be established that would not only investigate the alleged political interference but would handle the full relief sought by the applicants, including the declarator and claim for constitutional damages. According to the President, more parties could be involved in the commission, which would make recommendations on the constitutional damages to him for his consideration.

The applicants welcomed the President’s agreement to set up a commission of inquiry into the political interference (as per prayer 6 of the Notice of Motion) but rejected the balance of his proposal to transfer the full relief sought by the applicants from the court to the commission. The applicants pointed out that:

They have a right under law and the Constitution to have their application for a declarator and their claim for constitutional damages determined by a court.

Since a commission of inquiry is not a court, it has no power to determine rights and remedies, such as the question of constitutional damages. It can only make recommendations.

Commission of inquiry recommendations are made to the President, who is a party to this litigation and will be a party to the commission itself, thereby placing him in a deeply conflicted position.

The President is not bound by a recommendation made by a commission of inquiry, and even if he did accept its recommendation, since it would not be a court order, he would have no power to appropriate public funds to pay damages and would have to present a bill to Parliament for this purpose.

The President’s intended course of action would delay the finalisation of the declaration of rights and constitutional damages by years, which is not acceptable to applicants.

Accordingly, the applicants declined to abandon their application for a declarator and their claim for constitutional damages. They asked the President to engage in mediation or negotiation by making specific counter proposals on the nature and quantum of damages.

Further attempt at settlement – a plea for mediation

The applicants urged the President to revert to his earlier undertaking made in the media to pursue mediation in order to bring expeditious closure to the families. They also indicated that they would be open to the mediation process receiving inputs from other interested parties, beyond the parties to the litigation.

As the first step in a possible mediation process, the applicants asked the President to indicate whether he agreed with the composition and quantum of constitutional damages sought, and if not, to make counter proposals in respect of:

the 3 categories of damages,

the nature and extent of each head of damage,

the quantum attached to each head of damage,

the proposed time duration of such damages, including the proposed schedule of payments; and

the vehicle of an independent trust to hold and manage the damages.

Since the President’s legal team viewed the declarator as pre-empting the work of the commission of inquiry, the applicants agreed to amend it by removing references to the political interference. The amended version would simply state that the violation of rights arose from the failure to pursue the TRC cases. It would then be left to the commission to investigate whether it was political interference that stopped the cases, and if so, the extent thereof, and who was behind it.

The applicants proposed that whatever agreement was reached could be enshrined in a court order by consent, together with the amended declarator and the agreement to establish the commission of inquiry. However, if no settlement was reached on the declarator and constitutional damages then the parties would have to seek directions from the DJP for the filing of papers and arguments on those aspects, while the commission proceeded with its investigations.

The President declined to engage in mediation and rejected the applicants’ proposals. He indicated that he intended to establish a commission of inquiry by the end of May and that the terms of reference would include the full relief sought by the applicants, notwithstanding their objections.

Since the President did not respond specifically to the applicants’ proposal to amend the declarator the applicants sought an answer. No response was received, which brought an end to the negotiations.

On 15 April 2025, at a case management meeting the DJP directed that:

The Helen Suzman Foundation be admitted as an amicus curiae, since there was no opposition to its application.

The various interlocutory applications will be heard between 28 July and 8 August 2025 on dates to be agreed between the parties. The applications include:

- the applications by the President and other respondents who had withdrawn from the case to reinstate their opposition,

- the application by former President Mbeki and Minister of Justice Mabandla to intervene in the case, and

- the application by the President to suspend the legal proceedings.

The applicants will decide whether to oppose the application by the President and other respondents to reinstate their opposition, once they have considered the justifications offered in those papers.

The applicants will oppose the application by former President Mbeki and Minister of Justice Mabandla to intervene in the case as well as the President’s application to suspend the legal proceedings.

Relevant documents:

Media briefing notes can be downloaded on this link.

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

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.

General background on the constitutional damages case can be viewed on this link.