Apartheid-era survivors and families sue Ramaphosa's government seeking 'justice'

Twenty-five families and survivors of apartheid-era crimes are suing President Cyril Ramaphosa's administration “to seek justice”.

The lawsuit, filed in the Pretoria high court on January 20, alleges that the government failed to adequately investigate and prosecute apartheid-era political crimes after the Truth and Reconciliation Commission (TRC) process.

The applicants, including survivors of the Highgate Hotel Massacre and family members of the Cradock Four, are seeking damages and calling for the establishment of an independent commission of inquiry to investigate possible political interference that has hindered the prosecution of apartheid-era crimes.

“Constitutional damages are last resort legal remedies for addressing egregious violations of constitutional rights by the state,” said Odette Geldenhuys, head of Webber Wentzel's pro bono department, which is representing the applicants in the case.

“In this case, the suppression of post-TRC accountability efforts has led to the loss of witnesses, perpetrators and evidence, making prosecutions impossible in most cases and denying survivors and victims' families rights to justice, truth and closure.”

Lukhanyo Calata, son of Fort Calata who was murdered in 1985, is among those seeking justice for his family.

“Our families were denied our constitutional right to justice when successive governments, starting with the one led by former president Thabo Mbeki, failed to implement the recommendations of the TRC’s amnesty committee. One recommendation was to prosecute unresolved apartheid-era cases of forced disappearances, deaths in detention and murders of anti-apartheid activists,” Calata said.

“Instead, in the more than 20 years after the handover of the TRC report to Mbeki, government ministers have intervened to prevent the NPA from carrying out its constitutional mandate to investigate and prosecute the perpetrators. Justice delayed in this manner has ensured that justice is permanently denied to our families.”

Mbeki has maintained his government never interfered in cases related to apartheid crimes. In February last year the NPA released a report by advocate Dumisa Ntsebeza, who it commissioned to review the structures and effectiveness of its TRC component, effective since 2021, after findings in the 2019 Rodrigues judgment that there was political interference in the work of the TRC prosecutions team between 2003 and 2017.

In his report, Ntsebeza recommended the NPA establish an independent commission of inquiry to determine whether individuals holding senior political office and positions between 2003 and 2017 acted improperly to dissuade, interfere, hinder or obstruct the investigation and/or prosecution of cases the TRC referred to the NPA in 2003.

Mbeki was insistent there was no executive interference, despite a 2021 Supreme Court of Appeal judgment which found, on the strength of uncontested submissions by former national director of public prosecutions (NDPP) advocate Vusi Pikoli, that the NPA “investigations into the TRC cases were stopped as a result of an executive decision” which amounted to “interference with the NPA”.

“I repeat, no such interference took place. If the investigations Pikoli referred to were stopped, they were stopped by the NPA and not at the behest of the government as alleged by the advocate,” Mbeki said previously.

There was no record of a single instance when the NPA stopped investigating and prosecuting a case on account of “executive interference” — at least not during the period 1999 to 2008.

He said there were questions the NPA must answer honestly.

Dr Zaid Kimmie from the Foundation for Human Rights emphasised that this case is not only about individual rights.

“The co-applicants are pursuing this case not only on behalf of their own rights but also in the public interest and for all survivors and families of victims who aim to address the systemic failure caused by political interference in the investigations and prosecutions of the TRC cases.”

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