Historic charges brought before SA’s courts

LAST week, an international crime was charged in a South African court for the first time, a long overdue development given the litany of crimes that were committed during apartheid that meet that definition. Moreover, the specific crime against humanity of apartheid was charged for the first time in any court, anywhere in the world (notwithstanding the fact that most states have signed up to the 1973 Apartheid Convention which commits them to prosecuting it).

The crimes against humanity charges relate to the 1982 kidnapping and murder of Eustice Madikela, Ntishingo Mataboge and Fanyana Nhlapo and the serious injury of Zandisile Musi who, together, came to be known as the Cosas 4.

While this is a significant development (and a long overdue one), it is important to place it in the context of the broader efforts to obtain a measure of justice for apartheid victims.

First and foremost, the Cosas 4 matter is one of a number of cases that victims of apartheid-era atrocities and their families have brought to the attention of the National Prosecuting Authority (NPA), going back as far as 2006. In fact, these cases were part of the 350 cases handed over by the Truth and Reconciliation Commission (TRC) to the NPA when it concluded its work in 2003. Two decades on, not one case has been successfully prosecuted.

Since 2016, victims and their families have been asking the NPA to charge these as international crimes, in recognition of fact that these were not isolated acts committed by “bad apples” but rather were inhuman acts committed “as part of a systematic attack or elimination of political opponents of the apartheid regime”, (as the Cosas 4 indictment puts it).

Doing so is important for a number of further reasons:

First, it preserves the historical record and undermines recent attempts to deny the fact that apartheid was a crime against humanity.

Second, it avails the NPA of the numerous legal tools developed since Nuremberg (in terms of the definition of crimes, the means of establishing individual responsibility and addressing procedural hurdles unique to systematic international crimes).

Third, it enables the NPA to build cases that reflect this systematic nature and ensure accountability not only for “foot soldiers” but all the way up the chain of command.

As such, while the NPA is to be congratulated on taking this historic step, it must be noted that justice has already been denied to some victims and families as the result of delays and the deaths of some of the implicated parties.

For example, the recent death of FW de Klerk meant that the families of the Cradock Four will not be able to see him held accountable for his role in the killing of Matthew Goniwe, Fort Calata, Sicelo Mhlauli and Sparrow Mkonto.

These efforts at ensuring criminal accountability for apartheid atrocities must be placed within the context of the efforts to secure long-overdue restorative justice through individual and community reparations.

Last week also saw victims and civil society once again call on the government to “provide immediate reparation for apartheid crimes, with no further delay”, a month after members of the Khulumani Support Group occupied Constitutional Hill.

Their demands include both the payment of the individual reparations recommended by the TRC, in the amount recommended by the TRC, and the reopening of the list of individuals entitled to such reparations (which the government, of its own accord, decided would be a closed list).

In addition, they have called on the government to account for the spending of the money in the President’s Fund – sitting at around R1.7billion – which was earmarked for “community” reparations, including through the funding of symbols and monuments, and the provision of housing and other benefits.

When placed in the context of these longstanding efforts to address the “unfinished business” of apartheid, the proffering of crimes against humanity charges in the Cosas 4 case is a necessary step, but by no means a sufficient one.

Much work remains to be done to walk back over two decades of delays and further injustices. Nevertheless, it is by no means an insignificant step: by bringing these charges, the NPA has put beyond doubt the fact that not only was apartheid a crime against humanity, but it can be charged as such before South African courts.

In doing so, the NPA has not only put its best foot forward insofar as securing a measure of long-overdue justice for these crimes, it has crossed a threshold from which it cannot and dare not retreat.