By Lehlohonolo Lehana.
The Pretoria High Court heared an application by former president Thabo Mbeki and former Minister of Justice and Constitutional Development Brigitte Mabandla, as they seek to intervene in the constitutional damages litigation brought by 25 survivors and families of victims who were killed during apartheid.
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 accusses 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.
During the court proceedings, 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.
Judge Anthony Millar questioned whether it was not possible for them to simply put the facts they want before the court, in an affidavit issued on behalf of the government.
But Maenetje said this is not possible, as there will be a conflict of interest.
“It is in the interest of justice that the court does not make a finding on part of the facts. All relevant information must be placed before it, “Maenetje argued.
The Foundation for Human Rights and the applicants, meanwhile, argued that there is no case for intervention.
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 Millar reserved judgement.
When TRC finished its work in the early 2000s, it recommended that about 300 cases be pursued. Since then, only a handful of prosecutions have occurred.