Ntsebeza Releases Opinion on TRC Matters: What Next?

Imtiaz Cajee, Ahmed Timol’s nephew, recalled how the Security Branch frequently visited his family home.

Imtiaz Cajee, Ahmed Timol’s nephew, recalled how the Security Branch frequently visited his family home.

Published Apr 12, 2024


Imtiaz Cajee

On 3 June 2019, the Full Bench of the South Gauteng High Court handed down judgment in the matter of Roderigues vs the National Director of Public (NDPP) and eight others. At paragraph 65 it held that “it is also for these reasons that conduct of the relevant officials and others outside of the NPA at the time must be brought to the attention of the National Director of Public Prosecutions for her consideration and in particular to consider whether any action in terms of Section 41(1) of the NPA Act is warranted”.

The court referred to the conduct of former NDPP Advocate Vusi Pikoli, supported by Advocates Ackerman, Pretorius, Macadam and others who in their filed affidavits inferred that political interference prevented them from pursuing TRC matters.

After a deafening silence from the NPA, I had written to the NDPP Adv. Batohi in February 2020 drawing her attention to the above ruling. To date, I have received no response.

Three and a half years later and during January 2023, the NPA announced the appointment of Adv. Dumisa Ntsebeza SC, to amongst others, investigate 1) the measures, checks and balances put in place by the TRC Component to deal with TRC matters and 2) to investigate allegations of political interference that prevented the NPA from pursuing post-TRC prosecutions.

Released in February 2024, Ntsebeza’s report reveals that adequate checks and balances are in place for the TRC component to conduct its work. Importantly, it emphasized enhancing capacity and resources to the unit. For the first time in two decades, a TRC model is now in place.

As for political interference, an independent Commission of Inquiry (COI) was recommended to investigate the matter further. No investigation was conducted. Neither were statements obtained from NPA officials or those who allegedly interfered with the processing of TRC matters. Almost five years later, the very public spat on whether there was political interference or not, is been played out in the media.

I am reminded of the sentiments echoed by Chief Justice Mbuyiseli Madlanga who stated during his interview at the Supreme Court of Appeal (SCA) that there is no evidence of a single COI in South Africa where recommendations were successfully implemented.

Simply put, they offer, amongst others, opportunities for role-players to line their pockets, making huge sums of money. Whilst the COI is advanced as a solution, history has shown that an investigation must still take place to present evidence. Opening an official police investigation will ascertain who exactly defeated the ends of justice by failing to ensure that TRC cases were investigated. Would this not serve as a more effective purpose than a costly COI?

As per the 2019 Full Bench Ruling, investigations should have been directed to senior NPA prosecutors Dr Torie Pretorius and Adv Chris Macadam who formed part of the Priority Crimes Litigation Unit (PCLU) that was created by Presidential proclamation on 24 March 2003.

It should also include government officials whose names have been in the public domain since the finding on the Nkadimeng (Nokuthula Simelane) matter.

Located in the office of the NDPP, PCLU’S mandate included amongst others “to manage and direct investigations and prosecutions relating to matters emanating from the TRC process: Prosecutions and Missing persons.” Prosecutors are bound by their oath of office and the NPA Act, to pursue justice without fear, favour and prejudice.

The question ought to have been asked after Pikoli’s departure, what and who prevented the NPA from conducting post-TRC prosecutions?

Furthermore, the ruling states, “[57] Whilst it is manifestly clear that the political interference materially affected the ability of the NPA to properly deal with the TRC cases in that the resources that were necessary to conduct proper investigations were not forthcoming, the NPA cannot, as it seeks to do, portray itself purely as a victim of the political machinations of the time.

Whatever form the political interference took, the NPA was enjoined in terms of both its constitutional and legal responsibilities to act on behalf of society and protect the public interest.

Due to the location of the PCLU within the Office of the NDPP, should successive NDPP’s after Pikoli and those prosecutors seized with TRC matters not also be held accountable for the failure by PCLU to deal with TRC matters?

As per Section (32) of the NPA Act, “Impartiality of, and oath or affirmation by members of prosecuting authority. (1) (a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law”.

An official police investigation would ensure that all officials are held accountable and that any accomplice(s) be exposed through this process. Accountability would commence with Mr Pikoli, Advocate Ackerman, Advocates Pretorius and Macadam followed by persons of interest such as President Mbeki, former Justice Minister Brigitte Mabandla and others to be approached for statements.

Once all statements are collated and properly investigated, a decision would then be taken on the investigation whether to charge anyone or not. If necessary, the NPA must refer relevant matters for criminal investigation in terms of Section 41 of the NPA Act.

The current public discourse between journalist Karyn Maughan (supporting Pikoli) and President Mbeki is a diversion. Our focus must be on the TRC model that is in place as well as other recommendations made by Ntsebeza, including grave but disputed concerns around the NPA’s Missing Task Team (MPTT), de-classification of apartheid-era records, etc.

Lastly, the Portfolio Committee on Justice and Correctional Services through its oversight responsibility must ensure that the work of the TRC component is implemented, including the aforementioned ruling of the High Court.  Furthermore, the Committee must ensure that both the NDPP and Minister of Justice is held accountable in this regard.

Imtiaz Ahmed Cajee is the nephew of the murdered Ahmed Timol. He writes in his personal capacity and is busy with his third book focusing on events post the 2017 Timol. www.ahmedtimol.co.za