Justice Denied: Adv Dumisa Ntsebeza's report exposes NPA's failure to prosecute apartheid crimes, calls for independent inquiry

Justice Denied: Adv Dumisa Ntsebeza’s report exposes NPA’s failure to prosecute apartheid crimes, calls for independent inquiry

Senior counsel and former commissioner of the Truth and Reconciliation Commission (TRC), advocate Dumisa Ntsebeza has found that the National Prosecuting Authority, the State entity responsible for discharging the mandate to bring justice to the victims and survivors of apartheid-era crimes committed between 1 March 1960 and 5 December 1993, have failed in its mandate.

“The consequences of this failure have manifested themselves in the vast number of cases that have now become irredeemable – memories have faded, witnesses have died, perpetrators have died, evidence which should have been archived, has, over time, got lost or destroyed – or both.

“Against these odds, one has to ask, how it is even possible to realise the national social compact struck with victims and all South Africans – to achieve accountability and justice,” an extract of the explosive report complied by Ntsebeza for the NPA reads.

Last year, IOL reported that Ntsebeza SC had been appointed by the NPA to review its performance with respect to the prosecution of long-outstanding Truth and Reconciliation Commission (TRC) matters.

Advocate Dumisa Ntsebeza SC. File Picture

At the time, the NPA said it was taking an important step to further enhance its efforts to deal with and prosecute cases stemming from the TRC.

In his report, Ntsebeza advised the NPA to pursue the establishment of an independent commission of inquiry under either section 84(2)(f) of the Constitution, or the Commissions Act, 1947 to investigate the extent of, and rationale behind, the political interference with the NPA between the period 2003 and 2017.

“Our limited research has revealed that truth and reconciliation processes in other countries have shown that reconciliation requires political will, joint leadership, trust building, accountability and transparency, as well as a substantial investment of resources. The failure to investigate and prosecute TRC related cases points to an unwillingness on the part of the post-apartheid establishment to exploit science and technology and human resources for purposes of investigating and prosecuting TRC related cases,” said Ntsebeza.

However, Ntsebeza asserted that in the renewed focus that the NPA is placing on investigations and prosecutions of TRC related cases/crimes, he hoped that there will be no continuation of the kind of political interference that characterised the progress, or lack thereof, in achieving the prime objectives of investigations and prosecutions of the TRC related matters in the almost three decades since 1998, “to say nothing about the zero progress since 2003”.

“We also urge that, in the renewed focus the NPA is placing in the TRC prosecutions and related matters, all organs of State should work in a collaborative manner, and with a unified focus, because we believe that it is not too late to bring justice to some of the remaining victims,” said Ntsebeza.

The appointment of Ntsebeza SC last year came after the Rodrigues judgment in the South Gauteng High Court in 2019, which called for the investigation of alleged political interference in the TRC cases.

That case dealt with the application made by the now deceased apartheid era police officer Joao Rodrigues, who was seeking a permanent stay of prosecution related to the death of apartheid activist Ahmed Timol in 1971.

In September 2021, the NPA established a TRC Component within the office of the Deputy National Director of Public Prosecutions (DNDPP), advocate Rodney De Kock, to manage all investigations and prosecutions of TRC related matters.

The NPA, under DNDPP De Kock, then procured the legal opinion of Ntsebeza SC for a review of the work carried out under the TRC Component for its effectiveness and extent to which it is fit for purpose.

“We are instructed that the intention is for the TRC Component to complete its work in five years,” Ntsebeza noted in his report.

The senior counsel also highlighted that the legacy that the TRC has left on South African society is deep and fraught with frustration and a feeling of betrayal, by apartheid victims/survivors and their families, by the post-apartheid South African government.

“The approach taken by this country is, at best, infuriatingly incomprehensible. Closure for victims/survivors, regrettably, has not happened,” said Ntsebeza in his report.

By way of background, on 29 October 1998, the Truth and Reconciliation Commission published a comprehensive report setting out its activities and findings “based on factual and objective information and evidence” collected or received by it or placed at its disposal.

The TRC Report was compiled in terms of the Promotion of National Unity and Reconciliation Act 43 of 1995 (TRC Act). That report was handed to the then President Nelson Mandela.

The TRC was charged with the task of investigating and documenting gross violations of human rights spanning the period 1 March 1960 (the month in which the Sharpeville massacre took place) to 5 December 1993 – the date the final agreement was reached in the political negotiations.

In his stern recommendations, Ntsebeza SC called on the Deputy National Director of Public Prosecutions, De Kock and the TRC Component to exercise an integral role in the coordination of the investigatory and prosecutorial work carried out in the NPA regional divisions, specifically in areas of common challenges, obstructions and obfuscations by other organs of State.

NPA head office in Pretoria. File Picture: Thobile Mathonsi/Independent Media

“The NPA should expedite the finalisation of the TRC prosecutor policy and training manual. The NPA Missing Persons Task Team (MPTT) should called upon to account for its work, should be called upon to share relevant intelligence and/or information with the investigating officers and prosecutors of the TRC Component,” said Ntsebeza.

He also advised the NPA to adopt a stance on whether it is prepared to pursue charges of a crime against humanity in respect of apartheid-era atrocities that occurred during the period of the TRC’s investigative mandate.

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