The FHR’s statement with respect to the announced dedicated capacity for the apartheid era crimes

PRESS RELEASE
TO: All Media
ATT: News Editors, Human Rights Reporters
For immediate release
Tuesday, 28 June 2021

The Foundation for Human Rights (FHR) welcomes the announcement by the National
Prosecuting Authority (NPA) and the Directorate for the Priority Crimes Investigations (DPCI)
on the 27th of June 2021, to enhance its capacity to deal with apartheid era cases arising from
the work of the South African Truth and Reconciliation Commission (TRC). The date of the
announcement coincided with the commemoration of the 36th anniversary of the murder of
four anti-apartheid activists including Fort Calata, Matthew Goniwe, Sicelo Mhlauli, and
Sparrow Mkonto (known as ‘Cradock 4’). It also marked 4 years since the historical inquest
into the murder of Ahmed Timol began.


In particular, the NPA’s and DPCI’s undertaking to “… to move ahead to prosecute Rodrigues
and other perpetrators of apartheid era crimes where there is sufficient evidence, and where
prosecutions have not taken place, for various reasons”, in accordance with the judgment of
the Supreme Court Appeal (SCA) in the Rodrigues matter, is welcomed.

We are further encouraged that the NPA and DPCI heeded the call by the Foundation for
Human Rights and the families of victims of apartheid era crimes and that “a TRC investigation
strategy has been adopted by the NPA and DPCI to create dedicated and sustainable capacity
to investigate and prosecute apartheid era atrocity crimes.”


In the course of 2020 and 2021, the FHR has been lobbying the NPA and DPCI to set up a joint
DPCI/NPA dedicated capacity to deal exclusively with the cases arising from the TRC and other
apartheid-era crimes. We are pleased that both have committed to hire more prosecutors
and investigators who will be working exclusively on the cases arising from the apartheid.
However, the FHR reiteratesits deep reservations about the lack of clarity with respect to the
structural design of the proposed dedicated unit. We previously expressed these reservations
during the meeting with the National Director of Public Prosecutions (NDPP), Advocate
Shamila Batohi and DPCI’s Head, General Lebeya on 17 February 2021, and in the subsequent
exchange of letters.


While the statement by the NPA/DPCI refers to the dedicated unit within the NPA and DPCI,
it does not provide details about its structure and the lines of accountability. However, the
devil is in the details. We note with regret that the NPA continues to defend its
‘decentralisation’ policy, which has proven disastrous by causing delays in investigations and
prosecutions of apartheid-era crimes. This is because inter alia the responsibility to make
decisions with respect to investigations and prosecutions has been shifted around to different
offices without clarity as to who has the ultimate authority to make decisions.


It is our view that the new capacity should fall under a Special Director appointed by the
President, with the sole responsibility to oversee and manage the TRC cases. The prosecutors
and investigators should be co-located in the same building, and the methodology employed
by the Specialised Commercial Crime Unit (SCCU) should be adopted. There has been a
growing international practice, which shows that prosecution-led investigations with respect
to complex criminal matters lead to more successful prosecutions.


The FHR would like to reiterate its commitment to collaborate with the NPA and DPCI on the
establishment of the dedicated capacity in particular by providing technical and legal support.
The FHR welcomes the acknowledgment by the NPA and DPCI that “…the unmerited delay of
prosecutions of these cases amounts to the denial of justice to the victims of apartheid era
atrocities.” We remain concerned by the NPA’s and the government’s approach to the
political interference, which effectively led to the suppression of hundreds of cases arising
from the TRC. In light of the SCA Rodrigues judgment, the NPA and DPCI statement indicates
that “…NDPP has been engaging with the Minister of Justice to determine the most effective
course of action.” The statement by the Justice Minister Ronald Lamola’s spokesperson
Chrispin Phiri further indicates that, in accordance with the Appeal Court’s ruling in the
Rodrigues case, the NPA would pursue an investigation into the executive’s apparent political
interference, and is in the process of appointing a retired judge to lead the process.


While the FHR welcomes the NPA’s willingness to conduct an internal inquiry into the political
interference with respect to a possible contravention of the NPA Act, we are deeply
concerned that this strategy will most certainly be pursued behind closed doors without any
form of public scrutiny. While all institutions ought to take the steps recommended by the
Court, it is our respectful view that ultimately an independent enquiry is required to look into
the role of all parties, not simply one or the other. We believe that only an independent
commission of inquiry, with the normal powers (including subpoena) in terms of the
Commissions Act 8 of 1947, can carry out such an investigation. For this reason, we will
continue demanding an independent commission of inquiry to investigate the political
interference into the NPA.


The FHR also fully supports the statement issued by the Apartheid-Era Victims Family Group
(AVFG). The FHR supported by the legal team provided the NPA and DPCI with the following
documents to assist with the process:
• Research memo analysing international practices with regard to specialised units – To
see the document click here.
• Legal opinion, which sets out the legal framework for the possible dedicated capacity
within the NPA and DPCI – To see the document click here.


For media enquiries contact:
Lindiwe Sibiya, Media and Communication Officer, FHR at lsibiya@fhr.org.za and 082 634
7154


For more information about the FHR’s Unfinished Business of the TRC Programme contact:
Ahmed amayet@fhr.org.za and/ or Katarzyna Zdunczyk at kzdunczyk@fhr.org.za

Foundation for Human Rights
The Foundation for Human Rights (FHR) is a grant making institution supporting civil society
organizations in South Africa and the region that implement programmes which promote and
protect human rights. The Foundation’s mission is to address the historical legacy of
apartheid, to promote and advance transformation in South Africa and to build a human
rights culture using the Constitution as a tool. Over the last two decades, through its
Programme on the Unfinished Business of the TRC, the FHR has played a major role in
promoting the rights of victims of apartheid crimes through supporting the recommendations
of the TRC including justice and accountability for past crimes, reparations and access to the
TRC archives.

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