By Lehlohonolo Lehana.
The Gauteng High Court in Pretoria has dismissed former President Thabo Mbeki and his Justice Minister, Brigitte Mabandla’s, bid to intervene in the apartheid-era crimes lawsuit.
Mbeki succeeded Nelson Mandela to become the second president of democratic South Africa.
The families, and the Foundation for Human Rights, filed a court application against President Cyril Ramaphosa and the government in January, seeking R167-million in constitutional damages.
The families accuses government for “gross failure” to adequately investigate and prosecute apartheid-era political crimes following the Truth and Reconciliation Commission (TRC).
The TRC was established in 1995 as South Africa’s transitional justice vehicle, granting amnesty to qualifying perpetrators of human rights violations, and making recommendations on reparations for victims and prosecution of those not granted amnesty.
Former National Director of Public Prosecutions Vusi Pikoli and National Prosecuting Authority (NPA) officials had stated that interference from Mbeki’s government resulted in the NPA ending TRC investigations into apartheid crimes by those that denied offenders’ amnesty.
Pikoli was fired in 2007 by Mbeki.
Mbeki denied there was a secret pact that would have spared himself and other ANC members from potential prosecution for activities during the anti-apartheid struggle. He added that he never interfered in the cases.
Last month, Ramaphosa announced the establishment of a judicial commission to investigate these matters.
Mbeki and Mabandla legal counsel Advocate Ngwako Maenetje SC, argued that it does not matter whether the damages case by the victims and families is not aimed at them. The outcome will still have an impact on them.
Maenetje told the court, which ultimately has to decide on the damages issue, will have to make factual findings, which could negatively impact the reputations of Mbeki and Mabandla.
He said they need to put their version of events before the court, else the court will only have parts of the facts, which it will accept as the truth as there will be nothing before it to counter it.
Mbeki and Mabandla claimed that their rights may be violated by the court’s finding that they were involved in suppressing the investigation and prosecution of TRC cases.
According to Mbeki and Mabandla, they are seeking to intervene because the relief sought by the families and the consequent claim for constitutional damages is founded on serious allegations of unconstitutional, unlawful, and criminal conduct by them during their respective tenures.
Advocate Matthew Chaskalson SC told the court that the law is clear on this. He pointed out that Mbeki and Mabandla turned to the court in their individual capacities, as they no longer hold their previous offices.
“They are not affected by an order the court will issue in the constitutional damages case. They cannot merely intervene to dispute allegations made against them,” Chaskalson said.
He added that if the court allowed them to intervene, it would cause chaos, as everyone who thinks they may be implicated in litigation would then try to intervene in that case.
Chaskalson explained that the families assert that the application can be decided without the need to make findings in respect of individual role-players, which will be the task of the commission of inquiry established last month by Ramaphosa, although it is yet to commence its work.
Judge Anthony Millar in his ruling said, “For this reason, the argument advanced for the families that there would be no need for a specific finding against either Mbeki or Mabandla, is to my mind entirely sound. The issue has been decided.”
“While it is alleged in general terms in the main application by the families that the government respondents are responsible for the failure to prosecute TRC cases, the proverbial ship to challenge that has sailed.”
Millar said Mbeki and Mabandla had ‘no direct and substantial interest in the granting of any declaratory order against the government respondents and would have no obligation in respect of the granting of that order or any damages awarded in consequence thereof”.
The appropriate forum for them to “tell their side of the story” would be at the commission of inquiry which government has agreed to set up, he said.
“The application for intervention fails.”
The TRC and Department of Justice figures together show that 7,112 people applied for amnesty for more than 14,000 incidents, and about 5,034 were refused amnesty for not meeting the basic requirements. The rest were referred to hearings by the Amnesty Committee. Eventually, 849 applicants were granted amnesty, while about 358 were refused, most for murders.
The TRC’s Final Report of 21 March 2003 stressed that amnesty should not promote impunity and required a “bold prosecution policy” to avoid any suggestion of impunity or South Africa contravening its international law obligations.