Apartheid survivors sue

• Families of victims of atrocities are seeking justice

The country’s largest constitutional damages suit to date has been filed against the government by the Foundation for Human Rights and 25 families of victims and survivors of apartheid-era atrocities for actively sabotaging their attempt to seek justice and closure more than two decades after the Truth and Reconciliation Commission. The landmark lawsuit is for more than R167m.

The country’s largest constitutional damages suit to date has been filed against the government by the Foundation for Human Rights (FHR) and 25 families of victims and survivors of apartheid-era atrocities for actively sabotaging their attempt to seek justice and closure more than two decades after the Truth and Reconciliation Commission (TRC).

The landmark lawsuit by the multiracial group of applicants for more than R167m targets the government, President Cyril Ramaphosa, justice minister Nkhensani Kubayi, national director of public prosecutions Shamila Batohi, police minister Senzo Mchunu and national police commissioner Fanie Masemola.

At the heart of this unprecedented claim by the FHR and the applicants, headed by Lukhanyo Calata, son of Fort Calata of the “Cradock Four” who were abducted, beaten and murdered by security branch police in 1985, is what they term “the betrayal”: the ultra-secret negotiations conducted by a cherrypicked group of cabinet ministers first under Thabo Mbeki and then Jacob Zuma, with old apartheid generals to prevent any prosecutions flowing from the TRC.

According to papers filed in the high court in Pretoria on Monday, the betrayal took place from 1998, when Nelson Mandela was still president and the TRC well under way (yet the secret talks aimed at sabotaging its outcomes had began) until 2017, when then justice minister Ronald Lamola finally caved in to pressure from families of those murdered and disappeared, to reopen the cold cases.

In the interim, the families and survivors had fought a fruitless uphill battle against a National Prosecuting Authority (NPA) illegally suborned by the government to ensure it did not prosecute the 358 perpetrators across the political divide who were refused amnesty by the TRC.

This is despite the fact that the secret talks from 1998-2003 seditiously undermined the statutory process of the TRC, which was designed to result in prosecutions, and the government’s “political interference” with the NPA. Notably, the forced resignations of its national directors of public prosecutions Bulelani Ngcuka and then Vusi Pikoli for attempting to prosecute TRC cases, was an illegal imposition on the NPA’s statutory independence. Mbeki and Zuma have repeatedly ignored requests for comment on the matter.

THE LAWSUIT SEEKS AN ORDER THAT THE GOVERNMENT’S ACTIONS WERE INCONSISTENT WITH SA’S CONSTITUTIONAL RULE OF LAW

The lawsuit seeks a court order declaring this unlawful obstruction of justice to be “a violation of the rights of applicants, and more generally the rights of survivors and families of victims of apartheid-era crimes … to their constitutional rights of human dignity and equality and the right to life and bodily integrity of the victims”.

It also seeks an order that the government’s actions were inconsistent with SA’s constitutional rule of law and its international legal obligations, and violated its legal duties “to investigate and prosecute serious crime and not to interfere with the legal duties of prosecutors and law enforcement officers”.

It asks the court to compel Ramaphosa to promulgate a commission of inquiry to investigate the “suppression of the investigation and the prosecution of the TRC cases”, and to declare his failure or refusal to do so so far to be inconsistent with his constitutional duties and “a violation of the families of victims and survivors of apartheid-era crimes’ rights to equality, dignity and right to life and bodily integrity of the victims in terms of the constitution”.

It seeks to establish an independent trust that will disburse the R167m damages it seeks as follows:

● Just over R115m “to advance the TRC cases over the next five years”, anticipating that 20 inquests will take place in this period and that half of them will proceed to prosecution, but that another 15 cases “will require comprehensive investigations but will not necessarily progress to inquests or prosecutions”, and another three cases “may necessitate private prosecutions”.

The application states: “We note that the vast majority of cases can no longer be pursued by way of a prosecution,” as perpetrators have died over the past two decades, “and in these cases, we aim to establish inquests or pursue other truth seeking endeavours,” determining facts such as chains-of-command of those responsible.

● R8m over five years for a researcher and an advocacy specialist “enabling families and organisations to monitor the performance of the policing and justice authorities charged with investigating and prosecuting the TRC cases. They will also be required to monitor the role of those carrying out political and parliamentary oversight”.

● R44m for “memorialisation, commemoration, and public education … aimed at enabling families and organisations to honour those who made the ultimate sacrifice for SA”, includ-ing 15 memorialisation activities and 10 public education programmes a year over a decade, plus 10 feature films or documentaries and 20 books.

The ultimate aim of this sum includes to “facilitate greater understanding of our past, promote the diminished voices of victims, transcend fault lines in society and promote the goal of ‘never again’”.

It should be made clear, the application states, “that should any constitutional damages be awarded, it will be open to all victims, families and organisations to apply to the proposed trust for funds for projects and cases that fall within the ambit described above, regardless of whether they were applicants in this case or not”.

The case is neither a classaction suit where a class of individuals ask for payouts for damages (the largest being the 2019 order of a R5bn payout by the gold mines in the asbestosis and TB lawsuit), nor a reparations suit, as reparations are already supposedly dealt with by the R2bn ring-fenced in the presidency for the 21,748 victims of apartheid of all races and of all sides in the brutal conflict identified in TRC hearings.

As such, this damages suit includes applicants such as Fatima Haron-Masoet, the daughter of Imam Abdullah Haron, who was tortured and killed while in security branch detention in Cape Town in 1969; Sarah Bibi Lall, the sister of Hoosen Haffajee, who was tortured and killed at the Brighton Police Station in Durban in 1977; Kim Turner, one of the daughters of Rick Turner, who was shot dead by the security forces at his Durban home in 1978; Bonakele Jacobs, brother of Dicky Jacobs, who died in detention in Uppington in 1986; and Karl Weber, a survivor of the still unsolved Highgate Hotel massacre in 1993.

“All the applicants in these proceedings have family members who laid down their lives for our freedom and democracy or are themselves survivors of gross human rights violations,” they state collectively.

“They were murdered, forcibly disappeared or seriously injured. We have been denied justice and closure for the heinous crimes that were committed against us and our loved ones during apartheid due to the suppression of the investigations and prosecutions through political interference.”

At a media conference on Thursday at the Women’s Prison at Constitution Hill announcing the lawsuit, former FHR executive director Yasmin Sooka spoke of the “heartbreak and moral outrage” of bereaved and survivors denied closure: “We know the apartheid regime was a criminal state, its crimes recognised globally as a crime against humanity that has left deep scars ”— but that the ANC’s denial of justice and closure was “a denial of humanity”.

THE ANC HAD, IN EFFECT, TOLD HIS AND THE OTHER FAMILIES THAT THEIR LOST LOVED ONES’ LIVES DID NOT MATTER

Calata said the ANC had, in effect, told his and the other families that their lost loved ones’ “lives did not matter”, warning that “until there is justice, they will have no peace”.

He said: “There’s a massive sense of anger and frustration, as this year marks 40 years since my father was killed.

“Almost 31 years after the ANC took power, we’re still dealing with something that should have been dealt with within the first five, 10 years of our democracy. I operate on the basis of my father and all of these people who laid down their lives for us to be where we are today; they gave the best of themselves, so we owe them the best of ourselves.”