Report finds the state has failed to bring justice to 133 TRC cases
The National Prosecuting Authority has failed in its mandate to prosecute apartheid-era crimes referred by the Truth and Reconciliation Commission, probably because of political interference. By Dianne Hawker
Former National Prosecuting Authority (NPA) head of prosecutions Vusi Pikoli welcomes proposals for a probe into allegations of political interference but remains sceptical about the will of those in government to investigate.
The NPA 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 (TRC).
This is according to a report 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 NPA commissioned the investigation to determine whether the unit’s structure was effective for investigating and concluding 133 outstanding Trc-related cases.
The NPA has faced many problems in getting through these cases, including internal processes, lack of political will, the long lapse of time and cooperation with the police, the report pointed out.
“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 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. Progress on the remaining 2% of the cases was not reported on.
“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,” says the report, which was completed in June last year but was only made public this month.
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 that, 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, although 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 calling forward the former heads of the National Intelligence Agency, the Special Investigating Unit and the 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.
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 probe allegations of interference in the work of the NPA fully, 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 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”.
Although happy that the NPA had decided to reopen the Cradock Four case, Calata was concerned about the impact the delays have had.