OPINION
for
NATIONAL PROSECUTING AUTHORITY
concerning
THE TRC COMPONENT AND TRC PROSECUTIONS
NPA-Opinion-TRC-matters-2023-for-public-access (5)
MEDIA REPORTS:
Statement by former President Thabo Mbeki on allegations of NPA interference by the Executive.
‘We are fast-tracking TRC cases’, says Lamola
IOL Written by Siyabonga Mkhwanazi Western Cape Politics and Opinions Editor
Published 42m ago 18 March 2024
Minister of Justice and Correctional Services Ronald Lamola says specialised teams have been established to prosecute apartheid-era crimes from the Truth and Reconciliation Commission (TRC).
Lamola said they have prioritised these cases and they even appointed prosecutors and investigators to pay attention to these cases.
From the work they have been doing since 2019, they identified cases that needed to be fast-tracked through the criminal justice system and this was based on the age of the case, the ages of suspects and witnesses and the availability of records.
Lamola said TRC cases remained a priority for the National Prosecuting Authority (NPA) and that was why there was a unit in the NPA that was dealing with these cases.
The TRC matters were in the public domain three weeks ago when former president Thabo Mbeki denied that he had blocked any investigation into these cases.
This was after former TRC commissioner advocate Dumisa Ntsebeza SC gave a damning report that there has been a delay in prosecuting matters from the TRC.
Ntsebeza called for an independent inquiry.
But Lamola said they are fast-tracking investigations and prosecutions into apartheid-era crimes.
This was after Good Party member of Parliament Brett Herron asked Lamola in a written question in Parliament. In his written reply, Lamola said they have a team that has been tasked to investigate and prosecute apartheid-era crimes.
“As to measures, checks and balances, TRC matters have since September 2021 been prioritised within the NPA, resulting in the creation of a separate TRC component, within the office of the Deputy National Director of Public Prosecutions advocate Rodney de Kock,” said Lamola.
“Dedicated prosecutors and investigators were appointed within the divisions to specifically deal with TRC matters to expedite investigations and decisions. Deviation was obtained from the Department of Public Service and Administration for prosecutors to be appointed on a contract basis for a period of three years.”
After the division was set up, it took all the TRC cases and started to look at those that still needed to be investigated and prosecuted.
New matters were referred to the Hawks who would investigate them.
“Certain matters were identified for fast-tracking. Factors considered were age of the matter, age of witnesses/persons of interest and availability of dockets or inquest records,” said Lamola.
There were regular reports that are submitted on progress made on the investigations.
The NPA and Hawks were closely working together to ensure that they tighten loopholes and speed up prosecutions.
Lamola added that they were in contact with families of the victims, They have also roped in other departments where they discuss these cases.
siyabonga.mkhwanazi@inl.co.za
Politics
‘Scourge’ of political interference post-TRC suppressed cases of murdered anti-apartheid activists – Advocate Varney
NEIL AGGETT MEMORIAL LECTURE
DAILY MAVERICK – MAVERICK CITIZEN By Tamsin Metelerkamp 12 Mar 2024
At the Neil Aggett Memorial Lecture on Tuesday, Advocate Howard Varney described political interference as a ‘scourge that many countries have to face’. He added that powerful elements in SA society had ‘shamefully colluded’ to ensure the suppression of cases referred to the National Prosecuting Authority by the Truth and Reconciliation Commission.
Political interference in the wake of the Truth and Reconciliation Commission (TRC) meant that many cases involving the deaths of anti-apartheid activists didn’t “see the light of day” for many years. This included the murder of Dr Neil Aggett at the hands of police officials in 1982, said Howard Varney, a senior programme adviser with the International Centre for Transitional Justice and an advocate of the High Court of South Africa.
“South Africa is a much poorer place without people such as Neil Aggett, Steve Biko, Nokuthula Simelane, Ahmed Timol, Matthew Goniwe, Fort Calata, Imam Haron, Hoosen Haffajee, Ashley Kriel, Rick Turner, Dulcie September, Matthews Mabelane and many others murdered by the Security Branch,” Varney said.
“Their sacrifice has paved the way for our freedoms. In these turbulent times, we could have used their wisdom and guiding hands.”
Varney has been involved in seeking justice for the families of victims of apartheid-era political violence, including the Aggett family.
Neil Aggett was a medical doctor and trade union organiser. On 5 February 1982, he became the first white person to die in detention during apartheid. He was found hanging in his cell at John Vorster Square police station after 70 days in police custody. An inquest in 1982 ruled his death was a suicide.
The inquest was reopened in 2020. Varney said, “It was a real privilege to represent … the Aggett family in the reopened inquest to look into what actually happened to Neil. The Aggett family has endured a long journey to reach some truth and closure. Neil’s parents, Aubrey and Joy, and his brother Michael went to their graves without that closure.”
In March 2022, Judge Motsamai Makume, who presided over the reopened inquest, found that members of the Security Branch had murdered Aggett and that police officers Stephen Whitehead and Arthur Cronwright — both now deceased — were directly responsible for the murder.
“Lieutenant Stephen Whitehead was … the main tormentor of Neil. He died on 22 April 2019 — ironically, in the same week that the minister of justice announced that the inquest would be reopened. At that time, he was only 62 years old.
“Whitehead and others could have been held to account if the authorities had acted timeously; if they had done their job under law and the Constitution and had not succumbed to political pressure,” Varney said.
“Neil’s memory is treasured by freedom-loving South Africans. He remains an inspiration to young South Africans working to make a difference in society. His contribution to a free and democratic South Africa lives on.”
Justice delayed
Aggett’s case was far from the only one in which the loved ones of a murdered activist went without justice for decades. In its final report, the TRC referred between 300 and 400 cases to the National Prosecuting Authority (NPA) with the request that they should be taken further. These were cases in which the perpetrators had either been denied amnesty or did not apply for amnesty. However, very few of them were ever taken forward.
“We now know why these cases [did not see] the light of day for so many years. It has emerged in recent court cases — and I happened to be involved in all of them — that powerful elements in society shamefully colluded to ensure the suppression of all the cases referred by the Truth [and Reconciliation] Commission to the National Prosecuting Authority,” Varney said.
It was only in recent years, from around 2018 onwards, that this began to change, he continued.
“We have now seen encouraging action on behalf of the NPA, the Directorate for Priority Crime Investigation and the investigation unit of the South African Police Service.”
It is a crime under both the NPA Act and the Prevention of Organised Crime Act to interfere in the work of prosecutors. However, during 2003, an “unofficial moratorium” was imposed on the investigation and prosecution of the cases referred by the TRC to the NPA, Varney said. This moratorium lasted for more than 10 years.
Varney said that when the NPA approached the SAPS and the Directorate of Special Operations in the early 2000s seeking investigators to assist with the TRC cases, they were told by the SAPS that the cases were a “political matter” and that they would need a written instruction from the President to proceed with investigations.
“I want to give you one example of how a case was stopped in its tracks. [It was] an attempt to proceed with an attempted murder prosecution of those behind the poisoning of the Reverend Frank Chikane in the late 1980s. Prosecutor Anton Ackermann … had evidence to show that the Security Branch had attempted to kill Frank Chikane, who was the head of the South African Council of Churches,” Varney said.
According to Varney, in 2004 Ackermann decided to proceed with the case. On the day he was going to affect the arrest of former officers who had been identified as suspects, he received a phone call from a senior official in the Department of Justice.
“[Ackermann] was told, ‘Don’t carry out these arrests.’ And Ackermann, who’s a robust old-time prosecutor that believes in the rule of law, told this official … that he doesn’t take instructions from others, particularly not illegal instructions.
“The official then said, ‘Well, then you’ll hear from your boss.’ And indeed, within a few minutes, the National Director of Public Prosecutions, Bulelani Ngcuka, called Ackermann and told him to down tools and not carry out those arrests.”
The attempted murder case involving Chikane eventually went ahead in 2007, resulting in a plea bargain and suspended sentences handed down to the former minister of police Adriaan Vlok and several others. However, Varney said that four weeks after the conclusion of the case, Ackermann was taken off the TRC cases.
Justice denied
The NPA has previously denied responsibility for failing to investigate and prosecute apartheid-era cases, claiming that political interference from former president Thabo Mbeki’s government was to blame. However, in 2019, the Johannesburg High Court ruled that the NPA had breached the Constitution by allowing such interference to get in the way of prosecutions.
In 2023, the NPA appointed former TRC member Dumisa Ntsebeza to determine whether anyone should face charges for attempting to block apartheid prosecutions, according to News24. In an opinion released by Ntsebeza and his team in February this year, it was recommended that the NPA should establish an independent commission of inquiry into the political interference it experienced between 2003 and 2017.
Shortly after this, in March, Mbeki released a statement claiming that the executive never interfered with the work of the NPA during the years he was in government.
“The executive never prevented the prosecutors from pursuing the cases referred to the NPA by the Truth and Reconciliation Commission,” Mbeki stated.
“I insist on this despite a 2021 Supreme Court of Appeal judgment which found, on the strength of uncontested submissions by former National Director of Public Prosecutions advocate Vusi Pikoli, that the NPA ‘investigations into the TRC cases were stopped as a result of an executive decision’ which amounted to ‘interference in the NPA.”
In his address on Tuesday, Varney emphasised that many aspects of the political interference in the TRC cases remained unknown.
“We’ve called for an independent commission of inquiry. We’ve written on multiple occasions to President [Cyril] Ramaphosa, seeking the appointment of a commission of inquiry … with all the proper powers of subpoena…
“All those attempts so far have fallen on deaf ears. And I can tell you, we do intend to take that matter further.” DM
The state has a duty to prosecute the gross human rights violations committed during the apartheid era.
The South African criminal justice system consists of the police, courts and prosecution and the correctional services department. The main tasks of the police are to enforce the law, protect the public, arrest suspects or perpetrators and prevent crime.
The government has enough pieces of legislation and instruments to prosecute serious human rights violations that took place during the apartheid era, especially those cases that did not pass the test of amnesty during the Truth and Reconciliation Commission (TRC).
The TRC required those who were involved in apartheid crimes to divulge full information relating to human rights violations and killings based on apartheid laws. Those who did not divulge full information were not granted amnesty and the commission recommended that such individuals be investigated and, ultimately, prosecuted.
Since the TRC hearings drew to a close in 1998, very little has happened to bring perpetrators to book. Justice has yet to be done.
Many political activists such as Sophia de Bruin, the late Archbishop Desmond Tutu and the families of those who were killed have called on the government, in particular the police and the National Prosecuting Authority, to take the recommendations of the TRC seriously and implement them.
In the past week, allegations emerged that the administration of former president Thabo Mbeki gave an instruction that apartheid human rights violations must not be investigated.
Mbeki denies this.
This is against reports made by the likes of Vusi Pikoli, the former national director of public prosecutions, and Dumisa Ntsebeza, the former head of investigations for the TRC, who claim that there was indeed such an instruction and, at the centre of it, was the former minister of justice and constitutional development, Bridgette Mabandla.
It must be stated that Ntsebeza has said he made the assumption that because Mabandla served in Mbeki’s cabinet, he should have known about the decision not to investigate and prosecute those who were involved in apartheid criminal acts.
It is strange that Ntsebeza did not call the former president to verify the allegation before coming to such a conclusion.
Families of those killed during apartheid are longing for answers about what happened to their loved ones and want to see justice served.
The reports by Pikoli and Ntsebeza do not allege that Mbeki’s administration concealed the outcomes of an investigation or recommendations by the police that the suspects be prosecuted.
In his report and interviews with Newsroom Afrika, Ntsebeza indicates that his investigations confirmed that the Mbeki administration, through Mabandla, stopped the prosecution of apartheid crimes. In the interview, Ntsebeza proposed a judicial commission of inquiry with powers to investigate the truthfulness of the allegations, especially because Mbeki denies any instruction by his government.
But this suggestion is not a good one. Commissions of inquiry are time consuming, expensive and a waste of taxpayers’ money. Our record as a country is not good when it comes to making good use of commission reports and recommendations. The establishment of a commission would be an exercise in futility.
Moreover, the country has had two administrations after Mbeki and those administrations did little to prosecute those involved in apartheid crimes. It would therefore not make economic sense to establish a commission.
If the National Prosecuting Authority has cases that are ready for court, it should promptly prosecute those involved. With the passage of time (more than 30 years since the end of apartheid and 15 years since the end of the Mbeki administration), memories have faded and some potential witnesses and perpetrators have died, which diminishes the chances of a successful prosecution. Whatever evidence is still available should be used.
There is no doubt that some apartheid crimes will go unpunished.
The families are yearning for justice and the National Prosecuting Authority must do its best to deliver it, although the circumstances are less than ideal.
Dr Mkhuseli Vimba is a legal consultant and a political analyst.
NPA vows TRC cases remain priority despite backlash
THE STAR NEWS Written by Goitsemang Matlhabe 06 March 2024
The National Prosecuting Authority (NPA) leadership has continued to prioritise the investigation and prosecution of cases stemming from the Truth and Reconciliation Commission (TRC) despite criticism.
The NPA’s comments come against the backdrop of recent comments made by former president Thabo Mbeki on March 1, that the government under his leadership had never interfered with the work of the prosecuting authority or stopped it from forging ahead with the prosecution of TRC cases.
If anything, the organisation said the leadership had taken important steps to ensure the investigation and prosecution, in appropriate cases stemming from the commission.
Advocate Mthunzi Mhaga, the NPA spokesperson, said as a result in recent years the authority had reopened and pursued priority cases and even gone as far as enhancing its internal capacity to ensure effective handling of the cases.
As of January, Mhaga explained that 15 prosecutors supported by 32 investigators from the police based in various divisions had been dealing with the 137 cases registered.
To date, he said as many as 21 matters had been finalised with a decision, and a further 10 matters placed on the court roll.
In addition to the appointment of a dedicated team, as part of their efforts to prioritise the handling of prosecution of TRC matters, the spokesperson said they had also appointed advocate Dumisa Ntsebeza SC to review the measures adopted by the prosecuting authority in dealing with the matters and provide recommendations as needed.
“The report which has since been released and published on our website in February, found that the measures adopted and implemented by the NPA to deal with TRC matters, namely the structure, checks and balances, are largely adequate.”
Mhaga further said that the authority had equally taken note of the recommendations made in Ntsebeza’s report, including the advice for the establishment of an independent commission of inquiry.
The report detailed how the independent commission should be set up under section 84(2)(f) of the Constitution, or the Commissions Act 1974, in order to investigate the extent of, and rationale behind, the political interference during 2003 to 2017.
According to media reports, Mbeki has come out to stress that there was no executive interference during his tenure as the country’s president despite a 2021 Supreme Court of Appeal judgment which found that investigations into the TRC cases were stopped as a result of an “executive decision”.
The ruling came about on the basis of the strength of uncontested submissions made by former national director of public prosecutions (NDPP) advocate Vusi Pikoli, alluding to “interference with the NPA”.
“The current leadership of the NPA has on numerous occasions expressed a firm commitment to ensure that there is accountability for the atrocious crimes referred to by the TRC. The recent actions bear testament to this commitment and serve as a reminder that the NPA will deliver on its constitutional mandate without fear, favour or prejudice,” Mhaga said.
The Star
NPA on steps to investigate and prosecute cases stemming from Truth and Reconciliation Commission
NPA under its current leadership has prioritized justice in TRC cases
The National Prosecuting Authority (NPA) has noted the media statement attributed to former President Thabo Mbeki released on 1 March 2024.
As highlighted in previous statements, the NPA under its current leadership has taken important steps to ensure the investigation and prosecution, in appropriate cases, of cases stemming from the Truth and Reconciliation Commission (TRC). In recent years, the NPA has reopened and pursued priority cases and enhanced its internal capacity to ensure effective handling of these cases. As of January 2024, the NPA has 15 prosecutors supported by 32 SAPS investigators based in various divisions to deal specifically with TRC matters. This has been done under difficult and demanding conditions in general, and particularly complicated circumstances relating to the TRC matters.
Notwithstanding, a total of 137 cases have been registered for investigation; 21 matters finalised with a decision and 10 matters on the court roll. A detailed overview of progress in cases and the measures in place was presented to Parliament in November 2022 and in November 2023.
As part of this effort, the NPA appointed Adv D Ntsebeza SC to review the measures that the NPA adopted to deal with and prosecute TRC matters, and to provide recommendations as needed. This was in line with the remarks made by the Full Bench in Rodrigues v National Director of Public Prosecutions of South Africa and Others 76755/2018) in the South Gauteng High Court in 2019 where the court held:
“It is also for these reasons that the conduct of the relevant officials and others outside the NPA at the time should 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. Finally, there must be a public assurance from both the Executive and the NPA that the kind of political interference that occurred in the TRC cases will never occur again. In this regard they should indicate the measures, including checks and balances, which will be put in place to prevent a recurrence of these unacceptable breaches of the Constitution.”
The report, which has since been released and was published on our website in February 2024, found that the measures adopted and implemented by the NPA to deal with TRC matters – namely, the structure and checks and balances that form part of the TRC component – are largely adequate.
The NPA took note of the recommendations made in the Ntsebeza report, including that which refers to “the establishment of an independent commission of inquiry under either section 84(2)(f) of the Constitution, or the Commissions Act, 1974 to investigate the extent of, and rationale behind, the political interference with the NPA between the period 2003 and 2017” (Ad paragraph 9.9 page 7). The establishment of such a commission is a decision that needs to be taken by the Executive – the latter has been appraised of this finding.
The current leadership of the NPA has on numerous occasions expressed a firm commitment to ensure that there is accountability for the atrocious crimes referred by the TRC. The NPA’s recent actions in this regard bear testament to this commitment and serve a reminder that the NPA will deliver on its constitutional mandate without fear, favour or prejudice. In line with the NPA’s victim responsive approach, the NPA will prioritise the interests of victims, regardless of when the alleged crimes were committed.
Enquiries:
Adv Mthunzi Mhaga
NPA Spokesperson
Cell: 083 641 8141
Human rights lawyer and former TRC commissioner Yasmin Sooka doesn’t agree with former president Thabo Mbeki’s statement that there was no interference in the prosecution of TRC cases by the NPA. Sooka says the government needs to explain why there was a delay in prosecuting the cases.
Former President Thabo Mbeki released a statement on Friday in which he claimed that he and the government he led had never interfered with the NPA
Unpacking the Ntsebeza Report on the NPA and TRC unfinished business – Imtiaz Cajee
NPA must apologise for not processing TRC cases — Mbeki
Former president Thabo Mbeki says there was no record of a single instance when the NPA stopped prosecuting a case on account of ‘executive interference’
Former president Thabo Mbeki says during the years he was in government he and his executive never interfered in the work of the National Prosecuting Authority (NPA).
“The executive never prevented the prosecutors from pursuing the cases referred to the NPA by the Truth and Reconciliation Commission (TRC),” Mbeki’s office said.
Last month, the NPA released a report by Dumisa Ntsebeza SC, 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”.
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
Former president Thabo Mbeki
“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.
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.
“Who in the executive instructed the NPA not to do its work? Will the NPA publish this ‘instruction’ which, presumably, will be in its archives? Why did the NPA accept and respect what would have patently been an illegal instruction?”
Mbeki said Pikoli, who allegedly buckled under pressure of “executive interference” concerning the TRC cases, earned a lot of respect by portraying himself as an independent and principled NDPP who defied an “all too powerful” Mbeki who was supposedly hell-bent on stopping him from investigating and arresting the late former national police commissioner Jackie Selebi.
“The question arises, what happened to his cherished independence and commitment to principle when he acquiesced to ‘members of the executive’ on the TRC cases?”
Mbeki said no minister of justice during those years was authorised to instruct any NDPP to act in one way or another.
“No NDPP, including Pikoli, approached me to complain that he/she had been instructed by a minister or any other official to violate the independence of the NPA as prescribed by the constitution.”
Mbeki’s office said the NPA must demonstrate integrity by apologising for not processing the TRC cases.
TimesLIVE
Thabo Mbeki denies interference in prosecution of apartheid-era crimes
Written by Siyabonga Mkhwanazi Western Cape Politics and Opinions Editor 02 March 2024
He said why would the NPA take such an instruction because it was an illegal instruction.
The government did not interfere in these cases.
He called on the NPA to investigate and prosecute these cases that were referred to it by the TRC.
When he was in government, from the time he was deputy president until he became president, there was no instruction from any member of the Executive to get involved in these matters and halt the prosecutions.
“During the years I was in government, we never interfered in the work of the NPA. The executive never prevented the prosecutions from pursuing the cases referred to the NPA by the TRC.
“I insist on this despite a 2021 Supreme Court of Appeal judgment which found on the strength of uncontested submissions by former NDPP Vusi Pikoli, that the NPA ‘investigations into the TRC were stopped as a result of an executive decision’ which amounted to ‘interference with the NPA.
“I repeat, no such interference ever 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 Pikoli. There is no record of a single instance when the NPA stopped investigating and prosecuting any case on account of the so-called ‘executive interference’, at least not during the period 1999-2008,” said Mbeki.
The former president also denied there was back door amnestyfor those implicated in the atrocities committed during apartheid.
He said after the TRC concluded its work government was approached by people claiming to be political prisoners, but had not applied for amnesty to the TRC.
“The government thought that rather than ignore these approaches, it should institute a process akin to what was pursued by the TRC Amnesty Committee to allow these prisoners to make presentations. After studying the submissions and using his Constitutional powers, the president would decide whether to grant amnesty to any of the prisoners.
“Ultimately this did not happen because the courts ruled that the intervention would violate the TRC Act. But there was nothing ‘back door’ about this process. I addressed a joint sitting of the Houses of Parliament on this matter on November 21, 2007,” said Mbeki.
Advocate Dumisa Ntsebeza has made serious findings against the NPA that it failed to prosecute apartheid-era crimes.
The report was released by the NPA last week.
Ntsebeza was commissioned by the NPA in 2022 to conduct a review on these cases.
In 2022 the NPA told Parliament’s justice committee it had referred 129 apartheid-era crimes to the Hawks.
siyabonga.mkhwanazi@inl.co.za
Ntsebeza Report: TRC model now in place
29 Feb 2024: OPINION Imtiaz Ahmed Cajee
MERCURY POLITICS
A SIGNIFICANT finding in the recently released opinion of advocate Dumisa Ntsebeza, SC, is that the public now has the assurance that the National Prosecuting Authority (NPA) has adopted sufficient measures, checks and balances to deal with matters emanating from the Truth and Reconciliation Commission (TRC).
The opinion was sourced by the NPA after it appointed Ntsebeza to consider and evaluate the measures instituted by the NPA’s TRC Component, a separate portfolio created specifically to prioritise TRC matters, in September 2021.
In applications filed on behalf of the NPA, senior prosecutors Dr Torie Pretorius and advocate Chris Macadam alleged political interference prevented them from executing their duties.
Surprisingly, both prosecutors appointed before 1994, remained silent on the subject matter from 2003 until 2019 without raising this concern. In its scathing judgment against the NPA, the Full Bench ruled, among others, that the conduct of the officials be investigated. The silence from the NPA was deafening.
The following observations are made of the report:
Firstly, the finding that the NPA did not execute its mandate for post-TRC prosecution is not a secret. The report repeats allegations from Dr Pretorius, advocate Macadam and former NDPP advocate Pikoli of political interference from the offices of President Thabo Mbeki and Minister of Justice Brigitte Mabandla.
Ideally, it would have been a golden opportunity to have approached their offices for a response. Ntsebeza SC and his team did not require subpoenas to approach all concerned for them to provide affidavits on the matter. Instead, they recommend a Commission of Inquiry (COI).
I am reminded of the sentiments echoed by Chief Justice 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 opportunities for role-players to line their pockets, making huge sums of money. The TRC and post-TRC prosecutions must be seen in context with the political settlement of the country. It cannot exclude holding capital and all apartheid beneficiaries accountable.
Secondly, after years of publicly criticising the NPA and SAPS for failing in their duties in post-TRC prosecutions, we now have reassurance that there are sufficient oversight mechanisms that will prevent a repeat of any form of political interference in post-TRC prosecutions. Adequate checks and balances are in place dealing with TRC matters.
This is welcoming for families who for the first time since 2003 (when TRC reports were handed over to government and the Priority Crimes Litigation Unit (PCLU) established to implement TRC prosecutions) now have confidence that their matters will be investigated. This explains the progress in recently reopened inquests of Dr Neil Aggett, Mr Ernest Dipale, Dr Hoosen Haffejee and Imam Abdullah Haron, spurred by the catalystic Ahmed Timol matter.
Moreover, more matters are set to take centre place in the courts this year, including the Cradock Four, Northcrest Five, Highgate Hotel, etc. We also saw the first TRC prosecution, with evidence and sentence in 2023, with numerous indictments under way.
The recently appointed TRC component must be supported, capacitated and resourced adequately in order to continue working speedily as time is not on our side.
Moreover, the successful approach adopted by the NPA / DPCI TRC components is principled on the model that was adopted by the second (2018) task team that was established and subsequently collapsed. Had the team not collapsed, progress would have been far greater.
Thirdly, the investigations into the disappearance of the Ladybrand Four symbolises the frustration of many families. The rotating of investigating teams and mistrust of some investigating officers, former apartheid policemen appointed on contract after retirement, does not help the situation.
In other words, they belonged to the apartheid system that killed comrades and are now appointed to investigate apartheid killers, their former colleagues.
They cannot be judge, jury and executioner.
As early as 2018, I highlighted this in deliberations during my involvement in the second TRC task team in 2018. My objection resulted in my eviction from the task team and the ultimate collapse of the second of three task teams that I was involved in.
The ministries of Justice, Police and their respective accounting officers are ultimately to be held accountable for the appointment of apartheid-era investigating officers and prosecutors.
While some of them remain committed in assisting families in ascertaining truth and justice, there are others who continue to remain loyal to the apartheid system and work actively to disrupt and prevent the reopening of post-TRC cases.
As for families, we have no alternative but to continue working closely with them, monitor their actions in order to ensure our cases are investigated properly.
The report highlights concerns around the NPA’s Missing Persons Task Team (MPTT) in the Ladybrand Four matter. Established in 2005 as per the recommendations of the TRC, it is responsible for locating the graves of the deceased who were killed during the apartheid era.
The TRC was clear: perpetrators who were not granted amnesty were liable for prosecution.
However, the family was informed that discussions were initiated with Eugene de Kock, offering him amnesty for making full disclosure. Was this criteria applied for the unit recovering 179 missing persons as per the NPA presentation to the justice and portfolio committee in November 2022?
Lastly, it is indeed a travesty of justice that since 1994 apartheid-era records remain classified. How can we reopen apartheid-era inquests and prosecution of alleged apartheid-era perpetrators without access to these records? Since the dawn of democracy, three decades later, and these records have not been de-classified and released to the public.
Re-investigating apartheid-era cases is sensitive and the necessary security precautions must be applied. Many apartheid-era operatives and comrades are in cahoots in democratic South Africa and remain hell-bent to prevent progress in these cases. These cases have the potential to expose relationships between apartheid-era handlers and their sources in the anti-apartheid movement.
In conclusion, post-TRC prosecutions are not only the responsibility of the NPA and SAPS, but must be driven by the Executive.
The TRC was a pivotal component of South Africa’s transition. It laid the foundation for building reconciliation. It is a travesty of justice that its recommendations have not been implemented. They need to be constantly reminded that they hold political office because of the blood of our martyrs and they are indebted to their families finding closure. This must form part of national memorialisation projects in the country.
Personally, my humble attempts contributed towards the reopening of Uncle Ahmed’s 2017 inquest. As per the judgment of Judge Billy Mothle, I relentlessly pursued the DPCI and NPA to hold Joao Rodrigues accountable. He made 19 court appearances between July 2018 and his death on 7 September 2021, which brought the matter to an end.
The judgment also referred to conducting investigations into Security Police officers Neville Els and Seth Sons for perjury and torture. Witnesses provided affidavits of torture inflicted by Sons. Six years after cases were opened against both, the NPA decided not to charge them.
Despite my journey being over in the Timol matter, I will continue rendering assistance to families seeking my guidance on their matters. Importantly, continue representing families working with the newly appointed TRC component representing the Apartheid-Era Victim’s Family (AVFG).
For the first time in 20 years, we have a model that must be supported.
The onus is now on the portfolio committee on justice and correctional services which has a fiduciary role in overseeing the work of the TRC component.
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 Inquest https://www.ahmedtimol.co.za
NPA’s apartheid case shame: State prosecutors have ‘failed’ to investigate crimes exposed by the TRC
By Dianne Hawker 21 Feb 2024
Former NPA head of prosecutions Vusi Pikoli welcomes proposals for a probe into allegations of political interference but remains sceptical about the political will of those in government to investigate their cadres.
The National Prosecuting Authority is in danger of not meeting its five-year deadline to conclude investigations into apartheid-era crimes referred to it by the Truth and Reconciliation Commission.
This is according to a recent report concluded by advocates Dumisa Ntsebeza SC and Sha’ista Kazee who concluded a three-month probe into the workings of the NPA’s TRC component.
The investigation was commissioned by the NPA to determine whether the unit’s structure was effective for investigating and concluding 133 outstanding TRC-related cases linked to apartheid-era crimes.
The NPA has faced numerous problems in getting through these cases, including internal processes, lack of political will, the lapsing of time and cooperation with the police, the report pointed out.
“The need for a legal opinion of this type, some two-and-a-half decades after the conclusion of the work of the Truth and Reconciliation Commission, is a devastating indictment on South Africa…
“It is evident, though, that in our modern history, we have failed to honour those who suffered for justice and freedom in our land.
“Our finding is that the NPA, the state entity responsible for discharging the mandate to bring justice to the victims and survivors of apartheid-era crimes between 1 March 1960 and 5 December 1993, has failed in its mandate,” the report says.
The NPA set up its TRC component in September 2021 within the office of Deputy National Director of Public Prosecutions, Rodney de Kock. The unit is currently dealing with 133 cases referred to the NPA by the TRC, in matters where amnesty was not given or the alleged perpetrators did not come forward to give evidence.
Although it has dedicated staff, including 25 prosecutors and 40 investigators, the report raises concerns about the slow progress of the cases.
The component has categorised its work into three groups:
- A – cases where evidence still needs to be secured.
- B – cases that need expert reports and DNA analysis.
- C – cases where the investigation is nearing completion.
An examination of this categorisation showed that 64% of the cases are still in Category A, 10% are in Category B and only 24% – nearing the end of investigation – are in Category C.
“It is apparent that the majority of cases remain at the beginning stage of the investigation and require the location of and access to available evidence, the docket and the inquest report, for example.
“It is surprising and concerning that the majority of cases remain in Category A, despite the passing of some 22 months of dedicated and focused work by the investigating officers and prosecutions working together.
“If the documents cannot be located over 22 months, in circumstances where there are full-time investigators and prosecutors on the task, it is inconceivable that these matters will move forward at an expedited rate and be prosecuted over the next five years,” the report says.
‘Systematic obstructions’
Ntsebeza and Kazee spoke to several investigating officers and prosecutors working on the cases and heard about some of the causes of the delays.
For instance, they had problems accessing important documents and tracing potential witnesses due to the amount of time that had passed.
They also found that former police Special Branch members refused to cooperate, including those already given amnesty during the TRC process.
There had also been “delays in securing legal representation for accused persons who are former South African Police and Security Branch members”, which Ntsebeza and Kazee believe are “readily capable of resolution”.
“The consequence of the impasse is of serious concern because any delay by the SAPS in authorising the funding of legal representation to alleged perpetrators means that the matter is incapable of proceeding in court.
“This creates a backlog on the court roll and raises the grave possibility of the prosecution being struck from the court roll.
“It is lamentable that even after a decision to prosecute has been taken, cases are capable of being held hostage by another organ of state,” the report said.
Ntsebeza and Kazee note that the SAPS is “capable of effectively stymying the progress of TRC-related cases at the investigation stage”.
“The impasse concerning payment for essential work carried out by the SAPS Forensic Unit in Pretoria, particularly for scene reconstruction and simulation, and the finalisation of the report, also falls to be addressed at the national level.
“It is these systemic obstructions which may well result in the TRC component not meeting its five-year target.”
Ntsebeza and Kazee also note that the lack of progress in investigations and frequent changes in investigators has left the affected families with a “deep distrust of the investigation and prosecution process”, which is “not without foundation”.
Commission of inquiry
Ntsebeza and Kazee also investigated whether there was a need for a deeper look into allegations of political interference within the NPA, allegations which, if found to be true, would amount to criminal misconduct.
It has recommended a full commission of inquiry be set up in terms of section 84 2(f) of the Constitution or the Commissions Act of 1947 “to investigate the extent of, and rationale behind, the political interference with the NPA between the period 2003 to 2017.”
The report notes that while the allegations of interference have been made publicly, this legal opinion did not have full investigative powers that would allow it to subpoena witnesses.
It has recommended that if an inquiry is set up, senior officials be subpoenaed, “including former president (Thabo) Mbeki and the former ministers of justice, police and defence”.
It also recommends the calling of the former heads of the National Intelligence Agency, the Special Investigating Unit and the now defunct crime-fighting unit, the Scorpions.
The NPA is yet to confirm whether it will request the President to set up such an inquiry, as required by the Constitution.
Former NPA head Vusi Pikoli, who previously complained about political interference in efforts to prosecute the TRC-related cases, told Daily Maverick that such an inquiry “all depends on political will on the part of the government”.
“Given the fact that it might implicate members of the former government, including ministers and senior officials, it would be like government taking itself to court,” he said.
Pikoli noted, however, that there was a legal obligation to fully probe allegations of interference in the work of the NPA, and criminal consequences attached to this through the NPA Act.
“The NPA is expected to carry out its function without interference. An inquiry won’t help the victims but it will serve as a deterrent in the conduct of government ministers to act in terms of the law and that there are consequences,” he said.
Lukhanyo Calata, whose father Fort was murdered along with Matthew Goniwe, Sicelo Mhlauli and Sparrow Mkhonto – the “Cradock Four” – welcomes the finding that a commission of inquiry should be set up.
“We haven’t had an inquiry into this issue. The Zondo Commission had nothing to do with allegations of political interference at the NPA when it came to TRC cases. The notion that South Africa has ‘inquiry fatigue’ is false.
“We need to find out who the people are at the executive level who interfered with this case and we need to find out why they did this,” he said.
He added that the NPA’s previous decisions not to examine the TRC-related cases sent a message to families that they were “not deserving of justice”.
While happy that the NPA had decided to reopen the Cradock Four case, Calata was concerned about the impact the delays have had.
“We must welcome the small progress that has been made in the appointment of prosecutors and investigators. It shows that people in government are taking this seriously, But it is almost too little too late. We should have had specialised courts set up to deal with TRC cases.
“When we say the ANC administration failed us, it is because they never put in place the building blocks to deal with these matters,” he said.
Cracking the whip
Ntsebeza and Kazee say that in addition to a commission of inquiry, NPA leaders need to move with urgency.
“There is a plan and a target and a structure. The NPA leadership must insist on results, on outcomes of the investigative process, of prosecutions that are based on solid evidence and cooperation from all other organs of state.
“There is no nice way to state this demand that needs to be made from the NPA. The NDPP must crack the whip.”
The report recommends that the NPA should urgently finalise its internal training manual and policy for TRC prosecutors and that all investigation reports, statements and affidavits be uploaded to a central database in electronic format to help facilitate links between cases.
The NPA had not responded to Daily Maverick’s questions at the time of publication, saying only that it needed more time to respond. DM
Justice Denied: Adv Dumisa Ntsebeza’s report exposes NPA’s failure to prosecute apartheid crimes, calls for independent inquiry
Written by Jonisayi Maromo Multimedia Journalist, IOL News | Published Feb 21, 2024
Senior counsel and former commissioner of the Truth and Reconciliation Commission (TRC), advocate Dumisa Ntsebeza has found that the National Prosecuting Authority, the State entity responsible for discharging the mandate to bring justice to the victims and survivors of apartheid-era crimes committed between 1 March 1960 and 5 December 1993, have failed in its mandate.
“The consequences of this failure have manifested themselves in the vast number of cases that have now become irredeemable – memories have faded, witnesses have died, perpetrators have died, evidence which should have been archived, has, over time, got lost or destroyed – or both.
“Against these odds, one has to ask, how it is even possible to realise the national social compact struck with victims and all South Africans – to achieve accountability and justice,” an extract of the explosive report compiled by Ntsebeza for the NPA reads.
Last year, IOL reported that Ntsebeza SC had been appointed by the NPA to review its performance with respect to the prosecution of long-outstanding Truth and Reconciliation Commission (TRC) matters.
At the time, the NPA said it was taking an important step to further enhance its efforts to deal with and prosecute cases stemming from the TRC.
In his report, Ntsebeza advised the NPA to pursue the establishment of an independent commission of inquiry under either section 84(2)(f) of the Constitution, or the Commissions Act, 1947 to investigate the extent of, and rationale behind, the political interference with the NPA between the period 2003 and 2017.
“Our limited research has revealed that truth and reconciliation processes in other countries have shown that reconciliation requires political will, joint leadership, trust building, accountability and transparency, as well as a substantial investment of resources. The failure to investigate and prosecute TRC related cases points to an unwillingness on the part of the post-apartheid establishment to exploit science and technology and human resources for purposes of investigating and prosecuting TRC related cases,” said Ntsebeza.
However, Ntsebeza asserted that in the renewed focus that the NPA is placing on investigations and prosecutions of TRC related cases/crimes, he hoped that there will be no continuation of the kind of political interference that characterised the progress, or lack thereof, in achieving the prime objectives of investigations and prosecutions of the TRC related matters in the almost three decades since 1998, “to say nothing about the zero progress since 2003”.
“We also urge that, in the renewed focus the NPA is placing in the TRC prosecutions and related matters, all organs of State should work in a collaborative manner, and with a unified focus, because we believe that it is not too late to bring justice to some of the remaining victims,” said Ntsebeza.
The appointment of Ntsebeza SC last year came after the Rodrigues judgment in the South Gauteng High Court in 2019, which called for the investigation of alleged political interference in the TRC cases.
That case dealt with the application made by the now deceased apartheid era police officer Joao Rodrigues, who was seeking a permanent stay of prosecution related to the death of apartheid activist Ahmed Timol in 1971.
In September 2021, the NPA established a TRC Component within the office of the Deputy National Director of Public Prosecutions (DNDPP), advocate Rodney De Kock, to manage all investigations and prosecutions of TRC related matters.
The NPA, under DNDPP De Kock, then procured the legal opinion of Ntsebeza SC for a review of the work carried out under the TRC Component for its effectiveness and extent to which it is fit for purpose.
“We are instructed that the intention is for the TRC Component to complete its work in five years,” Ntsebeza noted in his report.
The senior counsel also highlighted that the legacy that the TRC has left on South African society is deep and fraught with frustration and a feeling of betrayal, by apartheid victims/survivors and their families, by the post-apartheid South African government.
“The approach taken by this country is, at best, infuriatingly incomprehensible. Closure for victims/survivors, regrettably, has not happened,” said Ntsebeza in his report.
By way of background, on 29 October 1998, the Truth and Reconciliation Commission published a comprehensive report setting out its activities and findings “based on factual and objective information and evidence” collected or received by it or placed at its disposal.
The TRC Report was compiled in terms of the Promotion of National Unity and Reconciliation Act 43 of 1995 (TRC Act). That report was handed to the then President Nelson Mandela.
The TRC was charged with the task of investigating and documenting gross violations of human rights spanning the period 1 March 1960 (the month in which the Sharpeville massacre took place) to 5 December 1993 – the date the final agreement was reached in the political negotiations.
In his stern recommendations, Ntsebeza SC called on the Deputy National Director of Public Prosecutions, De Kock and the TRC Component to exercise an integral role in the coordination of the investigatory and prosecutorial work carried out in the NPA regional divisions, specifically in areas of common challenges, obstructions and obfuscations by other organs of State.
“The NPA should expedite the finalisation of the TRC prosecutor policy and training manual. The NPA Missing Persons Task Team (MPTT) should called upon to account for its work, should be called upon to share relevant intelligence and/or information with the investigating officers and prosecutors of the TRC Component,” said Ntsebeza.
He also advised the NPA to adopt a stance on whether it is prepared to pursue charges of a crime against humanity in respect of apartheid-era atrocities that occurred during the period of the TRC’s investigative mandate.
IOL News
NPA failed in mandate to prosecute apartheid crimes – Ntsebeza
CAPE TIMES NEWS – Published Feb 21, 2024
Written by Mayibongwe Maqhina Multimedia Journalist, IOL Politics
Advocate Dumisa Ntsebeza has made damning findings against the National Prosecuting Authority for its handling of the prosecution of apartheid-era crimes.
In his report, he said the NPA, the state entity responsible for discharging the mandate to bring justice to the victims and survivors of apartheid-era crimes committed between March 1, 1960 and December 5,1993, failed to do so.
“The consequences of this failure have manifested themselves in the vast number of cases that have now become irredeemable – memories have faded, witnesses have died, perpetrators have died, evidence which should have been archived, has, over time, got lost or destroyed or both,” he said in his report.
Ntsebeza was commissioned by the NPA in January 2022 to review its Truth and Reconciliation component, established in September 2021, and advise whether there was political interference in the work of the Truth and Reconciliation Commission (TRC) prosecution between 2003 and 2017.
The report, dated June 30, 2023, has been published on the NPA website.
Ntsebeza said in his report that the need for a legal opinion two-and-a-half decades after the TRC concluded its work was a devastating indictment on South Africa.
“It is evident, though, that in our modern history, we have failed to honour those who suffered for justice and freedom in our land.”
He said South Africa had made a constitutional pact to honour the men, women and children who sacrificed their lives for democratic freedoms and yet, in many cases, their bones had not been found and the truth behind their stories had not been unearthed.
Ntsebeza said only half of the work had taken place.
“The courage of all survivors who have carried their childhood wounds into their adult lives, and lived to tell the truth, did not receive reciprocal respect, dignity and compassion from the State, which had a duty to take their truths forward.
“The State could use its forensic skills in taking their truth forward and using the forensic skills, its investigation powers and prosecutorial might to ensure that justice is served in the victims’ (or survivors’, as some prefer to be called) lifetimes.
“It is a task that requires commitment, courage, integrity, patience and resilience on the part of State agents entrusted with the task. There are simply no shortcuts.”
In some of his recommendations, Ntsebeza said the NPA should expedite the finalisation of the TRC prosecutor policy and training manual, and should adopt a stance on whether it was prepared to pursue charges of a crime against humanity in respect of apartheid-era atrocities.
Ntsebeza also recommends that the NPA pursue the establishment of an independent commission of inquiry to investigate the extent of, and rationale behind, the political interference with the NPA between 2003 and 2017.
The Foundation for Human Rights (FHR) said the release of the report was an important development towards transparency within the NPA and called for swift action on key recommendations, including the fast-tracking of TRC cases.
“While the report was released some seven months after its completion, delaying crucial insights and recommendations, the FHR will continue to engage with the NPA on the extent to which the recommendations are accepted and implemented.”
It also said it welcomed the recommendation calling for the establishment of a commission of inquiry.
“Since 2019, the former TRC commissioners, civil society organisations and the families of victims and survivors have been calling on the president to set up an independent and public commission of inquiry into the decision by the democratic government not to pursue TRC cases.
“These requests have fallen on deaf ears.”
NPA spokesperson Mthunzi Mhaga said the prosecuting body had taken note of the recommendations.
On the call to establish a commission of inquiry, he said: “This falls within the purview of the executive to consider and has been brought to the attention of the Minister of Justice and Correctional Services.”
Justice and Correctional Services Minister Ronald Lamola’s spokesperson Chrispin Phiri said: “We are still perusing the report.”
Cape Times
Ntsebeza calls on NPA to ‘crack the whip’ on TRC-related matters
The former TRC Commissioner was in January 2023 appointed to review the TRC Component’s work since its establishment in 2021.
EWN: Bernadette Wicks 20 February 2024
https://www.ewn.co.za/ntsebeza-calls-on-npa-to-crack-the-whip-on-trc-related-matters/
JOHANNESBURG – Former Truth and Reconciliation Commission (TRC) Commissioner advocate Dumisa Ntsebeza has called on the prosecuting authorities’ leadership to “crack the whip” on TRC-related matters.
Last January, Ntsebeza was appointed to review the TRC Component’s work since its establishment in 2021.
In a report released by the National Prosecuting Authority (NPA) in February, Ntsebeza raised concern over the snail’s pace at which they have been moving. At the time Ntsebeza drafted his opinion, the TRC Component had been in operation for 22 months and he said they were advised it still needed five more years to complete its work.
However, he said that at that stage at least, they were still struggling with simply sourcing documents in many cases – and that against this backdrop, it was “inconceivable that these matters will move forward at an expedited rate and be prosecuted over the next five years”.
The inaction, he said, is either “a glaring indication of incompetence” on the part of the dedicated investigating officers and prosecutors or “evidence of the deliberate slow pace of work”.
Either way, he said that “things must move now” and Deputy National Director of Public Prosecutions Rodney De Kock, who heads up the TRC Component, “must crack the whip”.
TRUTH COMMISSION | RELEASE OF NTSEBEZA
ENCA: Monday 19 February 2024 –
JOHANNESBURG – The Foundation for Human Rights has welcomed the release of the Ntsebeza report.
The NPA had advocate Dumisa Ntsebeza review the unfinished business of the Truth and Reconciliation Commission. He had been a commissioner of the TRC back in the 1990s.
PART 1:
PART 2:
Ntsebeza Report suggests inquiry to probe political interference in prosecution of apartheid crimes
Newzroom Afrika – 18 Feb 2024
The Ntsebeza Report looking into the delays in prosecuting apartheid-era cases recommends that an independent commission should be set up to look into the extent of the political interference between 2003 and 2017. Gina Synman elaborates. Tune into Newzroom Afrika DStv channel 405 for more.
Swift action must be taken on Ntsebeza report recommendations: FHR.
The Foundation for Human Rights has welcomed the release of the Ntsebeza Report on the work of the National Prosecuting Authority’s Truth and Reconciliation Commission component.
Dumisa Ntsebeza SC was appointed by the NPA in January last year 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
Where necessary, Ntsebeza was asked to make recommendations for improvement.
Ntsebeza was given three months to complete the report. He finished his report on June 30 last year, and the NPA released the report on February 2.
In his report, Ntsebeza recommended the NPA establish an independent commission of inquiry to determine whether the 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 the cases the TRC referred to the NPA in 2003.
The FHR said the release of the report was an important development towards transparency within the NPA.
“While the report was released some seven months after its completion, delaying crucial insights and recommendations, the FHR will continue to engage with the NPA on the extent to which the recommendations are accepted and implemented.”
The FHR said since 2019, the former TRC commissioners, civil society organisations and the families of victims and survivors have been calling on President Cyril Ramaphosa to set up an independent public commission of inquiry into the decision by the government not to pursue TRC cases.
“Furthermore, we urge swift action on key recommendations outlined in the report, including the fast-tracking of TRC cases.
“It is imperative that the NPA expedites the finalisation of policies and training manuals for TRC prosecutors, enhances co-ordination with relevant agencies, and utilises technology for better investigation and documentation.”
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