New hope for victims' families that apartheid crimes will be investigated

TRC commissioners back call for cold cases to be reopened

24 February 2019 - 00:00 By tymon smith

When the Truth and Reconciliation Commission (TRC) handed its final report to parliament in 2003, the country was assured by then president Thabo Mbeki that perpetrators of human rights violations who had not applied for amnesty or were denied amnesty by the commission would be prosecuted. The priority crimes litigation unit - an office in the National Prosecuting Authority (NPA) - was tasked with the investigations.
However, as more evidence that emerged this week shows, the unit was never given any independent investigation capacity. It had to rely on the police and the Scorpions, who both hampered its ability to pursue cases.
Papers filed in the dispute between the family of murdered activist Ahmed Timol and former security police clerk Joao Rodrigues claim the NPA was subject to political interference from the department of justice and the police. This argument is made by the head of the priority crimes unit, Torie Pretorius. He submitted papers to challenge Rodrigues's application for a stay of prosecution.
Pretorius is seeking to answer the question of why it took 14 years to reopen the Timol inquest and to defend the NPA against accusations of political interference in the prosecution of TRC cases. He acknowledges that there was interference, but says that it came from Mbeki-era ministers and officials.
The argument the NPA is making is that it was not responsible for the political interference and that there was nothing it could do about it.
In his affidavit, Pretorius said the delay in prosecuting Rodrigues and reopening the Timol inquest was not of the NPA's "doing or malice" but was due to political interference and the "severe political constraints" on the NPA. The NPA seems to be claiming that it is as much a victim of interference as the families of Timol and other victims of apartheid human rights violations.
This is disingenuous and another a slap in the face for victims and their families who have been pursuing justice for more than 15 years.
The NPA has failed to explain why nobody said anything about it at the time. Especially so when it was made abundantly clear in the affidavits of a former national director of public prosecutions (NDPP), Vusi Pikoli; a former head of the priority crimes unit, Anton Ackerman; and now in an affidavit by the unit's senior deputy director of public prosecutions, Chris MacAdam. It was obvious to prosecutors that their independence was thwarted in their attempts to make headway on TRC prosecutions. The NPA did not approach any parliamentary committee or the office of the president to alert them to what was happening. Instead, prosecutors shrugged their shoulders, made reports of perfunctory investigations and moved on to other tasks.
A memo sent by MacAdam to Pikoli in May 2003 provided an audit of TRC cases with the priority crimes unit. It showed frustration with the slow pace and apparent lack of investigation in many of the cases. Some had been neglected for more than 15 years. These included the deaths of Neil Aggett, the Pebco Three, the Cradock Four and Timol.
MacAdam's affidavit shows that he and Ackerman were sent from pillar to post by the Scorpions and police, who refused to provide investigators for TRC cases.
In the case of Timol, an interview with a journalist that resulted in no new evidence is provided as proof of the priority crimes unit's attempt to investigate. This was in spite of Timol's main interrogators, former security policemen Gloy and Van Niekerk, being alive at the time. Neither man had applied for amnesty. One of Aggett's chief interrogators, Stephen Whitehead, is still alive. He has not been questioned and did not apply for amnesty in relation to Aggett's death in detention at John Vorster Square in 1982.
MacAdam blames the priority crimes unit's failure on the Scorpions, whose director at the time was Malala Geophrey Ledwaba. In 2003 Ledwaba had put a moratorium on investigating TRC cases. The then head of detectives, Johan de Beer, told MacAdam and Ackerman the police would not investigate apartheid crimes allegedly committed by their own officers without a presidential directive. De Beer said this had been approved by then commissioner Jackie Selebi.
In a 2006 memo, Ackerman said that a former security policeman helping the priority crimes unit had been leaking information to an apartheid-era police commissioner, Johan van der Merwe. This was allegedly done to ensure that security policemen would only be prosecuted if ANC members were too.
Ackerman sent the memo to acting NDPP Silas Ramaite.
The shuffling of memos back and forth between agencies investigating TRC cases adds increasing evidence to suspicions of a campaign to ensure that the cases would not be properly investigated or prosecuted.
It may be that MacAdam's revelations will now be the straw that breaks the camel's back in this long, unnecessary and disheartening battle. This is thanks to a letter sent last week to President Cyril Ramaphosa by former TRC commissioners, among them Yasmin Sooka, Dumisa Ntsebeza, Wendy Orr and former chair Desmond Tutu.
The letter called on Ramaphosa to establish a commission of inquiry to investigate the claims of political interference into the prosecution of TRC cases. It said accusations made in the affidavits of Pikoli, Ackerman and MacAdam show "the manipulation of the criminal justice system to protect individuals from prosecution".
It said the "illegal purpose" was to interfere, with the independence of the NPA and amounted to "gross subversion of the rule of law".
"Those behind the suppression of these cases may very well have been involved in a conspiracy to obstruct or defeat the course of justice," said the letter.
It is time for those who stood in the way of the rights of victims and their families to be held to account. The victims and families were guaranteed justice in the contract between perpetrators and victims that formed one of the cornerstones of the agreement that achieved our fragile democracy.

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