Restorative justice must take place if SA is to overcome the damage wrought by apartheid
Restorative justice has been broached extensively by civil society groups since democracy, but in June last year, apartheid era security branch policeman Joao Rodrigues lost his bid for a permanent stay of prosecution, and will go on trial on charges of murder and allegedly attempting to cover up the crime in the 1971 murder of schoolteacher activist Ahmed Timol.
The policeman wanted a permanent stay of prosecution after being charged in July 2018 with murder.
Timol died in 1971 after falling from the tenth floor of the then John Vorster Square police station in central Joburg, where he was detained with police claiming that he had jumped. However, the findings of an inquest in 2017 found Timol did not commit suicide but was murdered.
But his efforts in the high court were denied by Justice Jody Kollapen. The Timol decision, along with the reopening in April 2018 of an inquest into the death of anti-apartheid activist Dr Neil Aggett who died mysteriously after 70 days in detention on February 5, 1982, has given human rights campaigners hope that restorative justice may be delivered for apartheid crimes which were not divulged under amnesty before the Truth and Reconciliation Commission.
Yet, for people like Nomthandazo, whose life is mired in poverty and a constant battle for survival, there is an absence of care while the narrative has shifted to those seemingly who wield the most influence to reach the ear of the decision-makers.
On February 5 last year, former TRC commissioners, led by Yasmin Sooka and Dumiza Ntsebeza, wrote to President Cyril Ramaphosa asking for a political inquiry into alleged interference in post-TRC prosecutions, saying that families feel justifiably betrayed by the post-apartheid state which, to date, has turned its back on them.
The letter says the constitutional and statutory design of the amnesty process specifically envisaged that criminal investigations, and where appropriate, prosecutions, would take place where perpetrators were refused amnesty or failed to apply for amnesty.
This lay at the heart of the compact struck with victims.
The compact required the State to take all reasonable steps to pursue justice where perpetrators were not amnestied.
In its final report, released on March 21, 2003, the TRC calls for “a bold prosecution policy” which sadly has not happened.
Deputy Minister of Justice and Correctional Services John Jeffery says while the TRC was far from perfect resulting in people who should not have received amnesty while those who should have, did not, suggesting a diminishing appetite to reopen wounds of the past.
“If you reopen the process more than 20 years later, we have to reset the TRC, collect submissions and re-evaluate as the TRC did.
“What happened in the past certainly informs the future,” he says.
But with the lapse of time a complicating factor added to the current Covid-19 challenge, Jeffery believes that the government will be financially hard-pressed to restart any process to redress the wrongs of apartheid.
“It is accepted that the TRC was not a perfect process, and some have been left out, but the question is at what point do we move on?”
Until restorative justice is seen to be done, would seem to be the answer.