Several human rights organisations – together with victims of apartheid, like the widows of the Cradock Four – are challenging the validity of amendments to the National Prosecution Policy dealing with apartheid-era crimes. They lodged their case with the Pretoria High Court on Thursday because they say the amendments infringe on victims’ constitutional rights to seek redress from perpetrators.
Significantly, their legal challenge comes just days after the National Prosecuting Authority announced its intention to prosecute apartheid-era law and order minister Adriaan Vlok and police commissioner Johann van der Merwe, and three other police officials in connection with the plot to kill Frank Chikane in 1989. At the time, Chikane, now the director-general in the office of the Presidency, was the general secretary of the SA Council of Churches.
The Cradock Four widows; the sister of activist Nokuthula Simelane, who disappeared; and three organisations say the amended policy is in breach of constitutional law and the principles of administrative fairness and justice. They say it also violates the fundamental principle of the rule of law by allowing for immunity from prosecution – through plea bargains behind closed doors – for those guilty of serious human rights abuses and the commission of serious crimes in an “insufficiently transparent” process. According to the applicants, few of the safeguards present in the Truth and Reconciliation Commission process are present in the amended policy.
Centre for the Study of Violence and Reconciliation executive director Ahmed Motala said on Thursday: “The amended prosecution policy is in conflict with the human rights culture that is entrenched in a democratic South Africa and undermines the rule of law. It also conflicts with South Africa’s legal obligations under international and regional human rights treaties, such as the African Charter on Human and Peoples’ Rights.”
According to Tshepo Madlingozi, of the Khulumani Support Group, the amended policy effectively constituted a rerun of the TRC process and allowed perpetrators who shunned the TRC process and those whose amnesty applications were rejected “a second bite at the cherry”. “Victims have waited far too long for justice. What is most disconcerting is while the government has stated that it will not institute another ‘TRC-like’ process that will cater for thousands of victims who were left out of the TRC process, this policy will have the effect of giving perpetrators a second chance,” said Madlingozi.
The applicants say the amended policy constitutes a betrayal of the fundamental principle of the TRC, in that it potentially allowed those who did not apply for amnesty or who were not granted amnesty to be effectively indemnified from prosecution. They said this was even the case where there was sufficient evidence to charge the applicant and obtain a conviction, where the crime in question was serious, and the victim was in favour of a prosecution.
In their legal challenge they argue that, despite what the amended policy itself says, “it is clear that it allows for a rerun of the TRC process, with three key differences”. The differences were that, unlike the TRC, the application process would not happen in the public eye; the victims would seemingly not be entitled to lead evidence of their own or oppose the granting of indemnity; and the decisions would be of an administrative nature, made by the National Directorate of Public Prosecutions.
NPA spokesperson Panyaza Lesufi said on Thursday they were still waiting to receive the papers.