The Helen Suzman Foundation (HSF) has filed an application to be allowed to present its argument and offer information on the ongoing litigation at the Gauteng High Court in Pretoria regarding the government’s failure to prosecute apartheid-era crimes .
This was after the foundation applied to be admitted as an ‘amicus curiae’ in the case brought by the families of the victims who were killed and disappeared during the apartheid years.
The HSF will be represented by Norton Rose Fulbright attorneys, who announced the intention last week.
The foundation wants the court’s authorisation to make written and oral submissions on the matter, adding that it has been deeply involved in the unfinished business of the Truth and Reconciliation Commission (TRC).
The foundation said it seeks to intervene in the application to highlight the importance of completing the work of the TRC and demonstrate that it is necessary to give effect ‘inter alia’ to the public’s right to the truth and the realisation of constitutional ideals around reconciliation and the recognition of the injustices of the past.
The HSF said it believes this would be achieved through the investigation and prosecution of those accused of apartheid-era crimes, as well as the establishment of a commission of inquiry into the failure of the government to investigate and prosecute these crimes.
The TRC inquiry was established in 1996 following hundreds of political crimes including murder, kidnapping, and torture during the apartheid regime.
This was after the country transitioned to democracy.
The commission released the first five volumes of its final report in October 1998 and the remaining two volumes in March 2003, and hundreds of cases were 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 the NPA.
In the main application filed in January 2025, the families want the government to pay more than R165 million for constitutional damages and President Cyril Ramaphosa to establish a commission of inquiry into political interference, which halted the investigations and prosecution of the perpetrators.
However, both Ramaphosa and Police Minister Senzo Mchunu withdrew their notice to oppose the application in February.
Justice and Constitutional Development ministerial spokesperson Terrence Manase said the notice was withdrawn to provide the parties an opportunity to find a settlement.
In its affidavit, HSF executive director Naseema Fakir said the foundation was of the view that it can present a relevant but different perspective that will assist the court in the determination of the matter.
Fakir said the true facts about apartheid crimes that are central to the main application remain hidden. He said this was because either the perpetrators did not disclose fully and truthfully the TRC, or because they did not seek amnesty at all.
She said whilst the SA Police Service (SAPS) and the NPA could have secured access to the truth, the families have made it plain in their founding affidavit that the truth was intentionally suppressed with the consequence that the true facts remain hidden.
“HSF will submit that the suppression of information and extreme delays in the prosecution of apartheid crimes goes against the right to truth, the right to an effective remedy and the right to reparations.
It has resulted in a culture of impunity which is inconsistent with the foundational values of the Constitution in section 1(a) and to (d),” said Fakir.
She said the foundation also intends to submit that the Constitution’s commitment to truth-seeking is both confirmed and given deeper meaning by South Africa’s international law commitments to the right to truth.
HSF will submit that the State has a duty to prosecute violations of human rights. Failure to prosecute individuals against whom an investigation has provided credible evidence of a violation, itself amounts to a violation of the right to truth and right to know. It also robs victims or their families of access to an appropriate remedy and redress for such violations,” said Fakir.
Fakir added that the foundation further intends to advance that the investigation and prosecution of apartheid-era crimes is a continuation of the role and objectives of the TRC and not a process that stands separate from it.