Families of anti-apartheid activists sue state for R167m
Publish date: 27 January 2025
Issue Number: 1110
Diary: IBA Legalbrief Africa
Category: South Africa
Fed up with waiting for three decades for justice, the families of more than 20 murdered anti-apartheid activists have lodged legal proceedings to demand answers from government, the National Director of Public Prosecutions (NDPP) and police, claiming that there have been deliberate attempts at the highest levels to block investigations, writes Carmel Rickard for Legalbrief. Announcing major new litigation last week, they are also seeking constitutional damages. They say that since the Truth and Reconciliation Committee (TRC) inquiry ended, nothing has been done about their cases. In fact, there has been deliberate political interference to suppress prosecutions. They hope their public interest litigation will finally expose the political machinations that they say have prevented investigation and prosecution of their cases in the years since the TRC. Earlier last week, more than 20 individuals, together with the Foundation for Human Rights, served court papers on the six targets of their litigation: the President, the government, the Minister of Justice, the NDPP, the Minister of Police and the Commissioner of the SAPS. The families have three main aims. First, they want the obstructions that have prevented investigation and prosecution of these cases to be declared a violation of their constitutional rights. Then, they want the courts to award more than R167m in constitutional damages. This would not be a restitution fund, but would form a trust to allow investigations and private prosecutions, as well as to monitor the work by the police and other authorities charged with investigating and prosecuting the TRC cases. It would also be used to ‘memorialise’ those who died at the hands of apartheid security police.
Third, and possibly most important given the claims of political interference, they want the courts to direct that the President must set up an open judicial commission of inquiry. Its task will be to inquire into the political pressure put on members of the NPA and the police over the past decades, to stop them investigating and prosecuting the TRC cases. Further, the inquiry must find out whether any members of the NPA or the police colluded with these attempts. Based on its findings, they want the inquiry to make recommendations about prosecuting anyone who acted unlawfully by trying to stop the National Prosecuting Authority (NPA) and police from dealing with the TRC cases as they should have done. It’s a highly sensitive case since the alleged suppression of the investigations and prosecutions could well have involved former Presidents and Cabinet members along with very senior officials of bodies constitutionally obliged to be independent of the executive.
More information about the basis of the litigation comes from an affidavit by Lukhanyo Calata. He is the son of Fort Calata, one of the Cradock Four, the name given to those killed in a murder case that caused enormous anger and shock, being seen as one of the most vile on the security police record. The four were murdered by the police in 1985. Lukhanyo said in the affidavit: ‘We are at our wits’ end as to why successive post-apartheid governments turned their backs, not only on us, but on our loved ones and so many others who paid the ultimate price for our freedom and democracy.’ At a media conference to announce the litigation, scheduled for hearing by the Gauteng High Court (Pretoria) – although it appears ultimately destined for the Constitutional Court – speakers the evidence shows that decisions were taken ‘at the highest political levels to undermine and ultimately to block’ both investigations and prosecutions of cases referred by the TRC to the NPA. However, the years since then have been a history of stalling, and even their relatively recent request for an independent and open commission of inquiry into the suppression of the TRC cases, was ignored by President Cyril Ramaphosa and the then Justice Minister, Ronald Lamola.
