The families of the victims who were killed and disappeared during the apartheid era have filed a court application against the government and President Cyril Ramaphosa, seeking constitutional damages for political interference and suppression of the cases from the Truth and Reconciliation Commission (TRC).
The application also challenges the government’s failure to adequately investigate and prosecute apartheid-era killings following the TRC inquiry.
The families want the government to pay R165 million for constitutional damages and Ramaphosa to establish a commission of inquiry into political interference, which halted the investigations and prosecution of the perpetrators.
The application was filed at the Gauteng High Court, Pretoria, on Thursday.
The government is cited as the first respondent in the application while Ramaphosa is the second. The Minister of Justice and Constitutional Development, national director of Public Prosecutions, Minister of Police, and police national commissioner, are also cited as respondents.
The 22 families, led by Lukhanyo Calata and Alegria Nyoka (first and second applicants), are supported by a non-governmental human rights organisation, Foundation for Human Rights (FHR).
The TRC inquiry was established in 1996 following hundreds of political crimes including murder, kidnapping, and torture during the apartheid regime. The TRC’s establishment followed the country’s transition to democracy.
The commission released the first five volumes of its final report in October 1998 and the remaining two volumes in March 2003.
Hundreds of cases had been referred to the National Prosecuting Authority (NPA) for further investigation and prosecution.
However, to date, only a handful of cases have been followed up.
In 2019, the Johannesburg High Court ruled that the prosecution of apartheid-era crimes has been effectively stalled by political interference in the NPA.
Ramaphosa was then asked to institute a commission of inquiry into the political interference that stopped the investigation and prosecution of the cases referred to NPA.
The applicants want the court to declare Ramaphosa’s failure to establish the commission a violation of their rights. They said this was inconsistent with his responsibilities under Section 84(2)(f), read with Sections 1(c), 7(2), 83(b), and 237 of the Constitution.
The applicants want the government to pay R115 261 625 for enabling families and organisations supporting families to advance truth, justice, and closure by assisting them to pursue investigations and research, inquests, private prosecutions and related litigation.
They also want R8 million for enabling families and organisations supporting families to play a monitoring role in respect of the work of the policing and justice authorities charged with investigating and prosecuting the TRC cases. And R44 million for enabling families and organisations supporting families to pursue commemoration, memorialisation, and public education activities around the TRC cases, including the holding of public events, publishing of books, and making of documentaries.
They said the money should be paid for five years and 10 years.
The applicants said they ordered their legal representative, Webber Wentzel, to establish a trust should the court grant their demands.
Supporting their application, Calata, a journalist and the son of the late Fort Calata, said in his affidavit that the murder of his father has had a profound effect on him and his family.
The murder of Calata, who was killed along with Matthew Goniwe, Sicelo Mhlauli, and Sparrow Mkonto on June 27, 1985, became known posthumously as the Cradock Four. The four were abducted, tortured, murdered and their bodies burned by the Security Branch of the erstwhile South African Police.
“The inhuman acts of brutality committed against the family members of my co-applicants, and certain of the applicants themselves, have had similarly devastating effects on them,” said Calata.
“We had to endure the murders and disappearances of our family members during apartheid. The post-apartheid era of political interference and denial of justice stands as a deep betrayal of their ultimate sacrifices,” he said, adding that the interference added insult to their injuries and exacerbated their emotional and psychological trauma, as well as the pain and suffering “we have endured”.
Calata said the families committed themselves to the historic compromises that were required to move from South Africa’s oppressive past to a democratic future.
He said they participated in the TRC process in good faith. This includes having to accept that perpetrators granted amnesty would not face prosecution or civil damages claims.
He added that there was a general expectation founded on the constitutional obligations of the post-apartheid state that it would prosecute perpetrators who were not amnestied and provide victims with reparations.
“For this reason, we did not sue the new South African state for the transgressions of the apartheid state,” he said.
“Had we known at the time the TRC was concluding its operations that the post-apartheid government had no intention of prosecuting those who had not received amnesty, most of us would have pursued civil claims against those perpetrators and the state, in cases where harm was committed by agents of the apartheid state.
“We approached this honourable court for constitutional damages, not to compensate us for what we have endured, but for purposes of vindicating the violation of our rights to human dignity and justice visited upon us by the political interference, and to deter future such violations.
Such damages will enable us to pursue truth and justice in the cases where this is still possible; help us to monitor and hold to account the authorities going forward; and to commemorate the lives of our loved ones,” said Calata, adding that the decisions were taken at the highest political levels to undermine, and ultimately, to block the investigation and prosecution of the cases referred by the TRC to the NPA.
The respondents have been given 15 days to deliver their notice of intention to oppose the application.