Why were apartheid crimes not prosecuted? Judge Sisi Khampepe tasked with finding out

President Cyril Ramaphosa has signed a proclamation for the establishment of a judicial commission of inquiry to determine whether attempts were made to prevent the investigation and prosecution of apartheid-era crimes.  

The commission will be chaired by retired Constitutional Court judge Sisi Khampepe. She will be assisted by retired Northern Cape judge president Frans Diale Kgomo and advocate Andrea Gabriel SC.

The commission is part of an agreement reached in settlement discussions in a court application brought by 25 families of victims of apartheid-era crimes.

The lawsuit, filed in the Pretoria high court in January, alleged that government had failed to adequately investigate and prosecute apartheid-era political crimes after the Truth and Reconciliation Commission (TRC) process.

“For many years, there have been allegations of interference in these cases. This alleged interference is seen as the cause of an unacceptable delay in the investigation and prosecution of brutal crimes committed under apartheid. This has caused the families of victims great anguish and frustration,” Ramaphosa said.

“All affected families — and indeed all South Africans — deserve closure and justice. A commission of inquiry with broad and comprehensive terms of reference is an opportunity to establish the truth and provide guidance on any further action that needs to be taken.”

The commission must inquire into, make findings, report on and make recommendations on:

• Whether, why, to what extent and by whom attempts were made to influence members of the SA Police Service or National Prosecuting Authority (NPA) not to investigate or prosecute cases identified by the TRC;
• If any members of the SAPS or the NPA improperly colluded with such attempts to influence or pressure them; 
• Any action should be taken by an organ of state, including possible further investigations or prosecutions, of persons who may have acted unlawfully; and
• Whether the payment of any amount in constitutional damages to any person is appropriate.  

The commission will be expected to complete its work within six months and to submit its report within 60 days thereafter.

The Presidency said while the families of victims and government have agreed to the establishment of the commission, agreement was not reached on other matters in the court application.

The government believes that these matters will be addressed through the commission of inquiry while the families want the matters to be determined by a court.

Ramaphosa's office said it respects the decision of the families to seek a court order on the violation of their rights and constitutional damages through the courts. However, the government is seeking a stay of application on these outstanding matters pending the conclusion and outcomes of the commission.

“This commission of inquiry is an opportunity to draw a line under a painful period in our country’s history. It is an opportunity to establish the truth and take steps, to the extent possible, to put right what may have gone wrong.

“We are determined that those individuals responsible for apartheid crimes and who were not granted amnesty by the TRC be held to account.”

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