The controversial NPA policy was challenged last year by the widows of Ford Calata, Matthew Goniwe, Sparrow Mkhonto and Sicelo Mhlauli – the so-called Cradock Four – and the sister of missing MK operative, Nokuthula Simelane.
They argued that the amended prosecution policy allowed the NPA to re-run the TRC’s amnesty process and grant effective indemnities from prosecution to those who had been refused, or failed to apply, for amnesty from the commission.
They also argued that the policy would entitle the NPA to decide not to prosecute, even in circumstances where there was adequate evidence to justify prosecution.
The court agreed that the policy amounted to a “copy cat” of the TRC amnesty process, ruling that the policy was unlawful and a “recipe for conflict and absurdity”.
The applicants were supported by three civil society organisations, including the Khulumani Support Group, the International Centre for Transitional Justice and The Cetnre for the Study of Vilence and Reconciliation.
Comfort Ero of the International Centre for Transitional Justice said yesterday he judgment upheld an important principle of the rule of law in a democratic state, namely that where there was sufficient evidence to prosecute, the NPA must comply with its obligation under the Constitution.
She said that the judgment affirmed the historic compact that was made with victims and called upon the NPA to meet its constitutional obligation and to prosecute deserving cases from the conflicts of the past.
Marie Jobson of the Khulumani Support Group on Friday urged the NPA to take effective steps to investigate and prosecute deserving cases as recommended by the TRC.
“There is today no longer any impediment to such prosecutions. There is nothing standing in the way of the prosecution authority. There are no more excuses. After so many years of delay victims deserve their day in court,” she said.