Prioritise TRC matters and bring the culprits to account
April 27, 1994 heralded the beginning of a new dawn in South Africa. Decades of white minority rule entrenched with apartheid’s racial segregation laws had ended.
The Government of National Unity established the Truth and Reconciliation Commission (TRC) that was set up under the Promotion of National Unity and Reconciliation Act, No. 34 of 1995:
“…a commission is a necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation,” said former justice minister Dullah Omar.
South Africa avoided going the Nürnberg trials option that severely punished perpetrators for crimes committed, but rather opted for the TRC, seeking truth and healing as a means of nation building.
The final TRC reports were handed over to the government of the day in 2003, with recommendations for implementation. There were about 400 cases that needed investigating.
The Priority Crimes Litigation Unit was set up under a proclamation by president Thabo Mbeki in 2003. One of its mandates was and is to investigate and prosecute criminal cases, which emanated from the TRC process.
In 2005, Mbeki’s administration attempted to institute a back-door amnesty deal that was rejected by the courts in 2008.
Progress made in the reopening of the 2017 Ahmed Timol and 2021 Dr Neil Aggett inquests in democratic South Africa can be attributed to the persevering role played by victims’ families, supported by the Foundation for Human Rights, Legal Resource Centre and the pro-bono section of Webber Wentzel. This formation has demonstrated to the State how cases are to be investigated and successfully brought to a court of law.
Disconcerting is the lack of progress in the criminal trial of João Rodrigues for his role in the murder of Ahmed Timol, as per the judgment of Judge Billy Mothle on October 12, 2017.
Almost three-and-half years later, the criminal trial of Rodrigues has not commenced. The National Prosecuting Authority (NPA) has also decided not to charge security police officers Neville Els and Seth Sons for perjury in the 2017 inquest, despite the evidence led at the inquest showing them torturing detainees.
The NPA declined to prosecute Els and Sons and the decision has been appealed. A clear message to apartheid perpetrators that they remain protected by the NPA despite committing perjury in the reopening of inquests.
Counsel for Rodrigues argue that charges against him must be dropped due to his age, allegation of gross political interferences and secret amnesty deals. In their affidavit filed before the Full Bench of the South Gauteng High court, they also raised the issue of political interference within the NPA between 2003 and 2017. In two sworn affidavits filed by senior Special Director of Prosecutions, advocate Chris Macadam and Torie Pretorius, both alluded to political interference preventing them from performing their functions.
The full Bench dismissed the application and directed that the conduct of the relevant officials and others at the time needed to be brought to the attention of the National Director of Public Prosecutions (NDPP) for her consideration, so that she may take any necessary action. All indications are that the NDPP has not taken any action against the relevant officials. Judge Seun Moshidi concluded: “This case shows that justice will not be compromised”
The painful reality is that 18 years after the handing over of the final TRC reports, very little progress has taken place in implementing any of the TRC recommendations. The The Priority Crimes Litigation Unit was the entity at the NPA that was mandated to prosecute the matters and the unit that acquiesced in the suppression of hundreds of murder cases from the apartheid era. As alleged, apartheid-era perpetrators and key family witness members are passing on, dockets mysteriously disappearing with little or no investigations conducted to apprehend the culprits.
The intention of successfully reopening apartheid-era inquests are rapidly diminishing.
My journey fighting for truth and justice for Uncle Ahmed has brought me into contact with families across the country. They have continued mourning and grieving for their loved ones since the dawn of democracy in 1994. The 2017 Timol inquest has energised apartheid-era victims demanding to know what happened to their loved ones. The apartheid-era investigations and inquests were merely a cover-up to protect perpetrators who continued to operate with impunity.
The democratically elected government has a moral, ethical and legal responsibility to victims’ families to reopen apartheid-era investigations. Families need to know the truth about their fallen loved ones and comrades while others are painstakingly looking for the remains of their loved ones.
There has to be a national initiative to prioritise TRC matters and hold those accountable who have failed to investigate matters timeously. TRC matters can no longer be ignored. They deserve urgent attention, paying tribute to our fallen martyrs who can never be forgotten.
The chairperson of the TRC, Archbishop Emeritus Desmond Tutu coined the term “rainbow nation”, referring to South Africa after the inaugural elections in 1994. The unfortunate reality is that South Africa remains polarised. Most apartheid-era beneficiaries have no intention to apologise for apartheid. Victims of apartheid-era crimes continue reaching out, seeking truth and justice for their loved ones.
* Imtiaz Cajee is the nephew of slain activist Ahmed Timol.
** The views expressed here are not necessarily those of IOL.
*** Read more Human Rights Day stories here.