Advocate Dumisa Ntsebeza has made damning findings against the National Prosecuting Authority for its handling of the prosecution of apartheid-era crimes.
In his report, he said the NPA, the state entity responsible for discharging the mandate to bring justice to the victims and survivors of apartheid-era crimes committed between March 1, 1960 and December 5,1993, failed to do so.
“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now become irredeemable – memories have faded, witnesses have died, perpetrators have died, evidence which should have been archived, has, over time, got lost or destroyed or both,” he said in his report.
Ntsebeza was commissioned by the NPA in January 2022 to review its Truth and Reconciliation component, established in September 2021, and advise whether there was political interference in the work of the Truth and Reconciliation Commission (TRC) prosecution between 2003 and 2017.
The report, dated June 30, 2023, has been published on the NPA website.
Ntsebeza said in his report that the need for a legal opinion two-and-a-half decades after the TRC concluded its work was a devastating indictment on South Africa.
“It is evident, though, that in our modern history, we have failed to honour those who suffered for justice and freedom in our land.”
He said South Africa had made a constitutional pact to honour the men, women and children who sacrificed their lives for democratic freedoms and yet, in many cases, their bones had not been found and the truth behind their stories had not been unearthed.
Ntsebeza said only half of the work had taken place.
“The courage of all survivors who have carried their childhood wounds into their adult lives, and lived to tell the truth, did not receive reciprocal respect, dignity and compassion from the State, which had a duty to take their truths forward.
“The State could use its forensic skills in taking their truth forward and using the forensic skills, its investigation powers and prosecutorial might to ensure that justice is served in the victims’ (or survivors’, as some prefer to be called) lifetimes.
“It is a task that requires commitment, courage, integrity, patience and resilience on the part of State agents entrusted with the task. There are simply no shortcuts.”
In some of his recommendations, Ntsebeza said the NPA should expedite the finalisation of the TRC prosecutor policy and training manual, and should adopt a stance on whether it was prepared to pursue charges of a crime against humanity in respect of apartheid-era atrocities.
Ntsebeza also recommends that the NPA pursue the establishment of an independent commission of inquiry to investigate the extent of, and rationale behind, the political interference with the NPA between 2003 and 2017.
The Foundation for Human Rights (FHR) said the release of the report was an important development towards transparency within the NPA and called for swift action on key recommendations, including the fast-tracking of TRC cases.
“While the report was released some seven months after its completion, delaying crucial insights and recommendations, the FHR will continue to engage with the NPA on the extent to which the recommendations are accepted and implemented.”
It also said it welcomed the recommendation calling for the establishment of a commission of inquiry.
“Since 2019, the former TRC commissioners, civil society organisations and the families of victims and survivors have been calling on the president to set up an independent and public commission of inquiry into the decision by the democratic government not to pursue TRC cases.
“These requests have fallen on deaf ears.”
NPA spokesperson Mthunzi Mhaga said the prosecuting body had taken note of the recommendations.
On the call to establish a commission of inquiry, he said: “This falls within the purview of the executive to consider and has been brought to the attention of the Minister of Justice and Correctional Services.”
Justice and Correctional Services Minister Ronald Lamola’s spokesperson Chrispin Phiri said: “We are still perusing the report.”
Cape Times