By Lehlohonolo Lehana.
The high court in Pretoria heared an application by president Cyril Ramaphosa to halt the lawsuit filed by the 25 families and survivors of apartheid-era crimes.
Ramaphosa is arguing that because he has ordered a commission on inquiry into the matter, there is no need for legal proceedings.
The 25 families and survivors of apartheid-era crimes are seeking constitutional damages for the government’s gross failure to adequately investigate and prosecute apartheid-era political crimes following the Truth and Reconciliation Commission (TRC) process.
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 Thabo 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.
During the proceedings, Advocate Tim Bruinders SC, arguing on behalf of Ramaphosa and the government, said it is vital that all the facts first be established before the constitutional damages case is served before court.
He said the commission will shed more light on why, and to what extent and by whom, efforts or attempts were made to influence or pressure the South African Police Service or the National Prosecuting Authority (NPA) to stop investigating or prosecuting TRC cases.
According to Bruinders, it is at this stage impossible for Ramaphosa and the government to issue an affidavit in the constitutional damages case if the facts are not clear. “In fact, we do not know at this stage what the true facts are,” he said.
Judge Nicolene Janse van Nieuwenhuizen questioned whether it is not the prerogative of the applicants (the survivors and families) to proceed with their constitutional damages case as they deem fit.
Bruinders responded that the facts must first become clear – something which a commission can establish by calling witnesses – before a court could decide on damages.
“These are families who have the sympathy of the government. They don’t have closure. This is a concern for any government, but the facts must still be explored,” he said.
Advocate Matthew Chaskalson SC, for the families, implored the judge not to stay the constitutional damages case.He said the families have been waiting for between 30 and 50 years for justice.
“They are getting older, many have meanwhile died, and those who are still surviving want to see justice done and get closure while they are still here. They are entitled to their day in court after decades of waiting.”
Chaskalson added that the commission of inquiry can go on for months before it makes any recommendations. He pointed out that the commission can only make recommendations, which are not binding on the president.
Chaskalson said the issue will in any event have to serve before court, as the president cannot simply dip into public funds and pay compensation to the victims and families. This is a matter for the court to determine and for it to then issue an order.
Judgment has been reserved.