Letter to President Ramaphosa: Call for an apology….

June 23, 2020

RE: CALL FOR AN APOLOGY TO VICTIMS & REQUEST FOR APPOINTMENT OF A COMMISSION OF INQUIRY TO INVESTIGATE THE SUPPRESSION OF THE TRC CASES

A year has passed since we, as the families of the victims of apartheid wrote to your office, and to the Department of Justice and Constitutional Development, regarding the ‘Unfinished Business’ of the Truth and Reconciliation Commission (TRC). We were hopeful that you would offer a reply since the issues we highlighted were and remain a major concern for us as a nation. Media coverage recorded our humble plea: “20 years on, apartheid victims’ families ask Cyril Ramaphosa for closure”).[1]

Our correspondence followed a letter that was sent to government by former TRC commissioners dated 05 February 2019 urging you to appoint a commission of inquiry “into the political interference that has stopped the investigation and prosecution of virtually all the cases referred by the TRC to the National Prosecuting Authority (NPA)”. Media coverage of their plea to you: “‘No justice for apartheid victims’ – Apologise and appoint inquiry, TRC members tell Ramaphosa”).[2]

It is our urgent wish that you give your full and immediate attention to our request. We have had no response to our correspondence from your esteemed office or from that of the Minister of Justice and Constitutional Development (DOJ&CD). As we’re sure you can imagine, it’s led to us as victims’ families questioning why our democratically elected government continues to neglect addressing our matters leading to our perception that the government of the African National Congress (ANC) has adopted an attitude of no concern to what was a matter of life and death for our loved ones. A matter indeed that should never have been ignored or abandoned from the start.

During the past two weeks, we have witnessed the cold-blooded killing of Mr. George Floyd in Minneapolis, It has since been followed by the murder of Mr. Rayshard Brookes this past weekend. The President will also know that a number of similar deaths have occurred in South Africa that are a cause for concern. The most recent of which include Collins Khosa as well as 11 other South Africans who died questionably at the hands of SANDF and the SAPS.

Mr. President, as you know such murders have been condemned locally and globally by governments and civil society groups. The reason for this response underlines the fact that police brutality against African communities has and continues to be unrelenting.

Mr President, on the 05^th June 2020 we watched as you officially launched the anti-racism campaign dubbed “Black Friday” led by the ANC. In your speech you eloquently and extensively quoted one of our fallen and respected leaders, namely Bantu Stephen Biko; a leader who was brutally killed while in an Eastern Cape prison cell during 1977. On the occasion of the launch you correctly pointed out that here was “a black man (who was) murdered by (the) white law enforcement officers”; you continued, “And it is important that we remember this as the whole world unites against the death of George Floyd. His death and the death of so many others have not diminished our quest for a true humanity. They have not weakened our resolve, instead they have brought forth from within our collective being a relentless desire for justice, for peace, for understanding and for equality.”

If we may follow your reference more completely Mr President, on 14 September 1977 the apartheid Minister of Justice, Mr. Jimmy Kruger addressed a Nationalist Party congress in which he arrogantly denied any police involvement in the brutal killing of Bantu Stephen Biko. He flippantly stated that Biko ‘died’ as a result of a hunger strike. Two months later, on 14 November 1977, the 13 day inquest into Biko’s ‘unnatural death’ began in Pretoria’s Old Synagogue; Sydney Kentridge, who was the Biko family’s appointed lawyer, led the prosecution. The post-mortem revealed that there were major injuries to the brain. Yet, despite empirical evidence indicating that Biko was brutally murdered, Magistrate Prins, like many of his peers during that era, chose to look the other way and conveniently sided with the apartheid regime’s position and gave a three-minute ruling that ‘no-one was to blame’. This ruling like that of Imam Haron, Ahmed Timol and others, attracted international condemnation of the apartheid regime.[3] The question that all of us who were involved in the anti-apartheid struggle asked then and continue to ask now: ‘How often have we heard that ‘no-one was to blame’ for the deaths of so many of our activists?’ For clarity, the annals of history and the extant judgements continue to misrepresent the truth by incorrectly reflecting that ‘nobody’ could be held accountable for the murder of Biko and many other activists.

Future generations will pose the same questions that we currently raise:

‘What did democratic South Africa do to find justice for the family of Steve Biko and the families of so many others?’
‘Why have the inquest findings not been revisited and investigated? and
‘What reasons have been given for not having reversed those untruthful judgements?’

These are indeed weighty questions Mr. President and none of them can be wished away. We suggest that unless your office and related structures act to address the matter, they will remain unanswered. In fact, as you noted in the 2018 Steve Biko Memorial Lecture, Bantu Stephen Biko was once your leader as of many others who currently sit in parliament; he was, as you stated, someone who influenced the development of your political consciousness during the period when you and others were detained without trial; a committed and dedicated cadre who sacrificed his life for justice.

Mr. President, permit us to ask that if you were in the shoes of one of us: ‘Would you not have been anxious in wanting to know the actual truth?’ ‘Would you not do the same as ourselves in pushing for an inquest?’ ‘Would you not be as frustrated as we are with the way your predecessors and our current government have dragged their feet up until now? And as disappointingly let down by the democratic principles that we observe and abide by?’

The Priority Crimes Litigation Unit (PCLU) was created by Presidential proclamation[4] on 23 March 2003; a proclamation, we are sure that you are aware of. Since then, it’s been located in the office of the National Director of Public Prosecutions (NDPP). Its mandate Mr President, pertains to matters emanating from TRC findings. These include addressing the ‘missing persons’ and prosecuting those who were refused amnesty for having committed heinous crimes against our humanity in communities throughout country.

It is regrettable that when, on different occasions, attempts were made by victims’ families to bring to book those unpardoned Security Branch officers, none of them was brought to court. We were informed that government officials intervened to prevent this from taking place.

On different occasions some among us have made attempts to see that those Security Branch officers, who were denied amnesty, be brought to book; yet for reasons unknown to us, none of them have ever been brought to court. Instead we’ve been reliably informed that government and ANC officials have intervened to stop such justice from taking place. Related to this, we want to bring to your attention, Mr. President, a decisive judgment recently handed down for your record, we attach it herewith.

On 3 June 2019 a full Bench of the South Gauteng High Court [Case Number 76755/2018] dealt with a matter between JOAO RODRIGUES (Applicant) and THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS and others in relation to the murder of Ahmed Timol in 1971. The following extract is pertinent:

“The court was faced with the issue of political interference in the National Prosecution Authority in finalising the prosecution of the applicant. The period in question was considered to be the period between 2003 and 2007. The court 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 for her consideration so that she may take any necessary action. The court concluded that although there was political interference, investigating it further in this court was not necessary.”

At paragraph 64 it held that “…society as a whole had an ongoing interest in the work of the TRC and the follow up that the government committed itself to. Parliament, which ultimately represents the legislative authority of the state had a right to know when the letter and spirit of legislation that it had passed was being deliberately undermined. None of this occurred and the NPA must accordingly accept the moral and legal consequences of this most serious omission and dereliction of duty on its part.”

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.”

Considering these developments, Mr. President, as families and friends of victims, we request an assurance from both your administration and the NPA that the kind of political interference that had occurred and continues to occur in all matters of TRC cases will never happen again. We would also like to hear about the necessary measures, including checks and balances, which will be put in place in order to prevent a recurrence of these unacceptable breaches of our rights and our Constitution.

Perhaps it is also opportune to advise that an open letter (dated 18 February 2020) was sent to the office of the National Director of Public Prosecutions (NDPP) Shamila Batohi by the nephew of Ahmed Timol, Imtiaz Ahmed Cajee. In the letter, he drew her attention to the above ruling of the South Gauteng Full Bench. Sadly, Mr. President, so far there has been no response from her desk or any other official from the NDPP to date. We are forced to assume that political interference is continuing until we can be proven wrong.

In fact, as we penned this letter to you Mr. President, we eagerly await Lukhanyo Calata (son of Fort Calata) testifying before the Zondo Commission. He had made a submission (dated 17 April 2019). For your information, Mr President, Lukhanyo Calata also represents other families of victims of apartheid-era crimes; he made a special request that an investigation be undertaken with regard to the political interference which has resulted in the suppression of virtually all of the 300 TRC cases referred to the NPA.

Mr. President, we note (rather worryingly) that to date our democratic government has neither heeded the call made by families, nor the call made by the former TRC commissioners for justice. Apartheid-era perpetrators continue to enjoy their lives while others die without any of them being ever held accountable for their dastardly crimes against our humanity. Many of our family members, some key witnesses, are elderly; and they too are passing on without ever learning the truth or finding closure about the deaths of their loved ones. One such tragic death is that of Mrs. Galiema Haron who waited literally for fifty years and never saw justice for her husband, Imam Haron, despite her desperate pleas to successive ANC governments.

We boldly and frankly state, Mr. President, that the deafening silence of the ANC and the government that leads to our pleas is an insult to us and all the memory of all fallen comrades. Men and women who were callously murdered by the apartheid regime. The country and the democracy that you lead today was not handed to us by Mr. F W de Klerk and his ilk. It was gained through the blood of our martyrs. Men and women who your government has today apparently decided to banish to the dustbin of our history.

Mr. President, we can no longer continue to remember our martyrs only during the elections cycle or when the anniversaries of their brutal killings roll around or when Presidents confer upon them posthumous awards, or renaming streets. We believe that our loved ones can only be respectably honoured when the truth around their deaths is completely revealed. We ache to know how and why they were murdered and most importantly who ordered their deaths and then murdered them. As far as we their families are concerned, it is the reversal of apartheid-era inquest findings so that those that were complicit in their deaths should be held accountable and whose names should be publicly shamed.

Mr. President, we, the undersigned Apartheid Era Victims’ Families Group (AVFG) once again openly and humbly appeal to you, to make a decisive intervention while you hold this prestigious position of responsibility. We ask that you firmly, if not forcefully, intervene so that justice may bring about familial solace to the affected families and societal satisfaction. We ask that you note our adopted Charter (see attached) in which we outline who we are; the contribution we can provide in assisting the government and the demands we make to bring justice and closure to these matters. Such closure is not only for the traumatized families but also for our deeply troubled nation in order that we all and our future generations, may enjoy the fruits of our democracy.

Mr. President, we do not want future generations to look back at us and our democracy with disdain for not having addressed the TRC’s unfinished business. If you heed our sincere call, then we shall be standing alongside you to see these processes through and reach an agreeable conclusion. We leave our request and our plea in your generous hands; and we hope for a timeous reply that will chart our democratic government’s undivided attention forward for every TRC case.