NPA’S prosecutorial tap dancing ‘a travesty of justice’

THE leadership of the National Prosecuting Authority (NPA), advocates Shamila Batohi and Rodney de Kock, in their recent appearance before the Justice Portfolio Committee reported on progress in the investigation and prosecution of gross human rights violations arising from the Truth and Reconciliation Commission (TRC).

The National Director of Public Prosecutions (NDPP) indicated that a TRC Component had been established within the NPA, with a “TRC co-ordinating structure” at the NPA head office and a team of 16 prosecutors and 22 investigators have been fully devoted to the TRC matters. They also reported that five cases are before the courts and a further 97 cases are being investigated.

These are of course welcome developments. The establishment of the NPA’S TRC Component, the enhanced capacity to investigate and prosecute TRC cases and the “sharpened” prosecution-guided investigations are developments for which civil society has advocated over an extended period.

The almost 25-year delay in investigating and prosecuting several hundred serious criminal cases handed over by the TRC to the NPA in the late 1990s is a shameful story of terrible neglect. As a result of political manipulation, a moratorium was put on the investigation and prosecution of TRC cases between 2003-2017. The political interference by the state in the operations of the NPA and the SAPS was exposed in a 2015 application by the family of Nokuthula Simelane and was confirmed by the High Court and the Supreme Court of Appeal in Rodrigues v NDPP and others.

In the post-2017 period TRC investigations and prosecutions were further hampered by serious deficiencies in the capacity and capability within the NPA and SAPS, exacerbated by the requirement to allocate significant resources to tackling corruption and violence. Since the TRC submitted the last volumes of its final report in 2003, its recommendations of the TRC have received scant attention prompting victims’ families, the Foundation for Human Rights, the Apartheid-era Victims’ Families Group and the South African Coalition for Transitional Justice (SACTJ) to take up the cudgels to fight for criminal accountability, institutional reforms, access to archives and reparations.

In 2008 the successful court challenge of then-president Thabo Mbeki’s Special Dispensation on Political Pardons gave impetus to the formation of the SACTJ, which has further organised and become a fully-fledged association in 2021 with a membership of 14 civil society organisations.

The mobilisation of civil society has been critical in raising awareness, building public support and exposing a state failure to take the TRC’S recommendations forward. Following the revelations of political interference, families of victims, former Commissioners of the TRC and civil society, including the SACTJ have repeatedly called on the president to appoint an independent and public commission of inquiry to investigate and identify those responsible, within and outside the NPA and SAPS, for suppressing the TRC cases. These calls have unfortunately fallen on deaf ears.

Civil society has also played a fundamental role in ensuring that progress is made in some cases. In addition to the reopened inquests into the torture and murder of Ahmed Timol, Neil Aggett and Imam Abdullah Haron, four out of five cases referred to in the NDPP report as being before courts, have been brought forward thanks to extraordinary perseverance by the families; the support of pro-bono counsel and attorneys; the financial, technical and co-ordinating support by the Foundation for Human Rights, and the relentless advocacy efforts by civil society, including the SACTJ.

Notwithstanding the signs of renewed political will and commitment, any activities related to accountability for atrocity crimes are necessarily politically charged and hence remain challenging.

One must also remember the difficulties that are inherent in the investigations of the “old atrocity crimes” such as the unavailability of biological and forensic evidence, the passing of alleged perpetrators and witnesses, and the complexities related to building patterns of violence and links between the crimes. While these challenges are serious, they are not impossible to overcome. The delays caused either by the NPA or the defence remain the main source of frustration as they unnecessarily obstruct the proceedings.

In 2019, João Rodrigues, implicated in the murder of anti-apartheid activist Ahmed Timol, brought an application to permanently stay his prosecution, which resulted in a two-year delay of his trial. While the Supreme Court of Appeal dismissed the application in 2021, Rodrigues died in the same year without having faced justice.

In the murder case of student activists known as the Cosas 4, the SAPS refused to pay the legal costs of the defendant, a former security branch officer, claiming that he was not acting on behalf of the state. This was notwithstanding the ruling of the High Court in the Simelane case, where the court ordered the SAPS to pay the legal costs of former security branch officers. It has been shameful of the SAPS to indulge in delaying the criminal prosecution when all the accused are at an advanced age.

The Simelane murder trial was recently postponed to December 1 when the counsel for the defence brought an application claiming that his client, Willem Coetzee, is unfit to stand trial due to dementia and his inability to fully understand the trial proceedings, which is yet to be demonstrated and proven in court. The prosecution did not challenge or oppose the application by the defence. The legal team acting for the Simelane family has doubts that the trial will indeed proceed in December and have warned of further delays.

There is a rapidly closing window for finding some justice for apartheid victims. Coming to terms with our apartheid past needs to be a priority and deserves urgent attention. We cannot afford any further delays.

The SA Coalition for Transitional Justice has been operational since late 2008. It was initially convened as an association of civil society organisations collaborating to respond to the Special Dispensation on Political Pardons that would have allowed the then-president to pardon perpetrators who had been convicted and sentenced on account of having committed politically motivated offences.