The crime of apartheid (declared in 1966 by the UN) has largely gone unpunished since SA's transition in 1996. Most perpetrators have either died or are still living on comfortable pensions while the families of victims suffer in pain or die themselves.
The Goldstone Commission, which preceded the Truth and Reconciliation Commission, revealed in its interim report of March 18 1994 that top SA police commanders had instigated political violence that had claimed the lives of more than 15,000 people in five years.
The outrage that followed the exposure of a Third Force and the SAP's Vlakplaas hit squad however did not lead to criminal charges.
Some of those implicated include former SAP second in command Lt-Gen “Basie” Smit, SAP counter-intel head Maj-Gen “Krappies” Engelbrecht and Lt-Gen Johan le Roux. They were involved in gun-running, smuggling of arms from Namibia and Mozambique to Inkatha, orchestrating random train violence, assassinating activists, training Inkatha members to use firearms and grenades, blocking investigations, illegally destroying documents, and attempting to “persuade” Judge Richard Goldstone to cease his investigations into police complicity in crime.
It is clear that then President FW de Klerk must have known about these activities and approved them, but De Klerk denied until his death that he knew about any of it, and while he was alive, refused to take action. None of the political leaders have ever been prosecuted, except for Adriaan Vlok, who got a slap on the wrist for trying to poison the Rev Frank Chikane, and Magnus Malan who was acquitted of the kwaMakhuta massacre.
Every attempt by honest prosecutors at the NPA to drive the process forward was thwarted.
— David Forbes
Then came the TRC, which unveiled many other horrific crimes which had occurred between 1960 and 1994, provided information relating to human rights violations (HRV), and denied amnesty to those perpetrators who it was deemed did not tell the full truth.
The TRC found more than 19,050 people had been victims of more than 30,000 HRVs, and a further 2,975 were identified through applications for amnesty by perpetrators. Only 849 perpetrators were granted amnesty out of the 7,111 applications received, with 5,392 refused.
After the TRC process, the commission handed over to the newly established National Prosecuting Authority (NPA) about 400 cases to be further investigated, and prosecuted. The TRC recommended that “the granting of general amnesty in whatever guise should be resisted”, and urged the NPA to “pay rigorous attention” to prosecutions.
Some of the most infamous cases that require prosecution include:
Deaths in detention: Steve Biko, Neil Aggett, Ahmed Timol, Ernest Dipale, Hoosen Hafajee, Imam Haron, Suliman Saloojee, and Nicodemas Kgoathe.
Abductions: Nokuthula Simelane, the Pebco Three (Sipho Hashe, Qaqawuli Godolozi and Champion Galela), the Cradock Four (Matthew Goniwe, Fort Calata, Sparrow Mkonto and Sicelo Mhlauli), Stanza Bopape, Barney Molokoane and Thabo Melato.
Assassinations: Griffiths & Victoria Mxenge, Dulcie September, Muzi Mgwenya (MK name Thami Zulu), Ruth First, Jeannette and Katryn Schoon, David Webster, Chris Hani, Rick Turner, Reggie Hadebe, Bheki Mlangeni, Dr Fabian Ribeiro and his wife Florence.
Summary executions by police: Phila Ndwandwa, Caiphus Nyoka, Notemba Bozwana, Sizwe Kondile and many others not known about.
However, at this point, political interference took over and President Thabo Mbeki and his cohort of top ANC officials and ministers conspired to block any post-TRC prosecutions. It is already documented that the ANC and government held secret and unmandated talks with former apartheid military and police in efforts to find a way forward that would not involve prosecutions.
Mbeki publicly ruled out amnesty in 2003, though he knew negotiations were continuing through the back door. Deliberate administrative machinations took over, delaying the implementation of a “new prosecutions policy” until 2008 when a court struck down the new policy.
Every attempt by honest prosecutors at the NPA to drive the process forward was thwarted. Only three cases had been prosecuted by 2007 after which a moratorium was imposed on all TRC cases.
The real heroes at the NPA were Madeleine Fullard and her Missing Persons Task Team, who forged ahead with the ghastly task of digging up bodies and identifying them.
But the illegal political interference with the NPA's stated mandate to prosecute “without fear, favour or prejudice” came unstuck when Mbeki favourite Jackie Selebi (Interpol boss and national police commissioner) was about to be arrested for corruption.
It led to a major fight in 2006 between NPA boss Vusi Pikoli and people like Zola Skweyiya, Thoko Didiza, Charles Nqakula, Selebi himself, Ronnie Kasrils, and Brigitte Mabandla. Most of the ANC bigwigs had been denied amnesty by the TRC, and did not want to see comrades prosecuted. Jacob Zuma told a former top general that “prosecutions were not in the interest of the government”.
Pikoli revealed in 2015 how illegal political pressure had been put on him. Thembikosi Nkadimeng, the sister of “disappeared” MK courier Nokuthula Simelane had made a court application to force the SAPS to finalise their investigation and to compel the NPA to make a prosecutorial decision or refer the case to an inquest.
In a supporting affidavit to Nkadimeng's application, Pikoli said: “The political interference or meddling that I have set out in this affidavit is deeply offensive to the rule of law and any notion of independent prosecutions under the constitution. It explains why the TRC cases have not been pursued. It also explains why the disappearance and murder of Nokuthula Simelane was never investigated with any vigour and why the pleas of her family and her representatives were ignored.” The courts later confirmed “gross political interference” had occurred.
As the families have struggled, using pro bono lawyers and their own investigators to push their cases forward, the police, Hawks, the Department of Justice, and those who would rather not see prosecutions all worked to stop any progress.
Just like Jacob Zuma's “Stalingrad Defence”, any excuse to delay proceedings, including trumped-up “health issues”, technical legal points, frivolous requests for “further information” and so on were used. Every decision was appealed.
One only has to look at the Ahmed Timol case to see that the last surviving security policeman present when Timol was thrown out of a 10th floor window, Joao Rodrigues, attempted every possible avenue to avoid prosecution.
Timol was murdered on October 27 1971. It took until June 26 2017 to get the inquest reopened. It took just more than three months for a judge to reverse the inquest finding of “suicide”. In 2018 the NPA charged him with premeditated murder. In June 2021, his last court appeal to avoid prosecution failed. The family was set to see the trial finally begin.
But 50 years after Timol's murder, Rodrigues died on September 6 2021, before he could face justice and taking to the grave the secret of Timol's last moments.
This is not an isolated case. It has happened scores of times over the past 25 years since the end of the TRC. Other cases that families have fought for over this period include the Aggett inquest (“suicide” verdict overturned), the Cradock Four (son Lukhanyo Calata continues the fight to bring his father's murderers to trial), and the minister of justice had to be threatened with legal action before he reopened the inquest into Dr Hoosen Hafferjee.
In 2018 a further 20 TRC cases were placed before the NPA and the Hawks. Aggett’s main interrogator Stephan Whitehead died days before the justice minister announced the reopening of the inquest. Whitehead's location had been known for years, and he had reinvented himself as an expert in security services, even seeking work from intelligence agencies.
On February 5 2019 a group of former TRC commissioners wrote to President Cyril Ramaphosa requesting an apology to the victims and the appointment of a commission of inquiry into the political interference which has suppressed the TRC cases. The presidency failed to respond. Further appeals to the president met the same stubborn, stony silence. This is the “Pact of Forgetting” which has impeded the progression of justice and the ending of the culture of impunity which has plagued SA.
In December 2021, justice minister Ronald Lamola told sceptical MPs that the TRC cases would be prioritised, with a new dedicated capacity. NDPP Shamila Batohi told the justice portfolio committee that it was “unacceptable” that no significant new progress had been made, but committed to working with the families. Such promises remain to be translated into justice being seen to be done.
Meanwhile, the Cosas Four (the pretrial discussions continue today in the South Gauteng High Court after the SAPS was ordered to pay the legal costs of the last surviving former security policeman who has been charged, Christian Siebert Rorich.
The Cosas Four refers to an incident on February 15 1982 when four young students from Kagiso township on the West Rand were blown up in a security police trap which killed three of them and seriously injured the fourth.
Eustice “Bimbo” Madikela, 17, Ntshingo Mataboge ,18, and Fanyana Nhlapo,18, died. Zandisile Musi survived.
South Gauteng director of prosecutions advocate Andrew Chauke has made the “courageous and historic” decision to add charges of crimes against humanity in the revised indictment, according to the Foundation for Human Rights.
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