Former president Thabo Mbeki says the constitutional damages application brought by survivors of apartheid-era crimes and families of the victims poses a serious threat to his and former justice minister Brigitte Mabandla’s dignity and reputation.
In papers filed in the Pretoria high court, Mbeki and Mabandla argue that the claims made by the families were not only false but also deeply harmful to their character.
Mabandla was the minister of justice and constitutional development during Mbeki’s tenure as president.
Mbeki said the allegations made against them were “highly defamatory and damaging”.
“Our character is beyond all price. In such circumstances, Ms Mabandla and I are entitled to intervene to dispute the serious and damaging allegations made and to place direct evidence before this court for it to determine the correctness or otherwise of the serious and damaging allegations against us on which the applicants rely for their relief,” he said.
“Given the nature of the direct allegations made against Mabandla and I, which underpin the relief that the Calata applicants seek, as well as the orders that they seek, Ms Mabandla and I seek leave to intervene as respondents.”
The Calata applicants are made up of over 20 respondents, including the families of the Cradock Four — Matthew Goniwe, Fort Calata, Sparrow Mkhonto and Sicelo Mhlauli — who were murdered by apartheid police in 1985.
Earlier this year, 25 survivors and families of apartheid victims brought a constitutional damages application against President Cyril Ramaphosa and some government officials.
Given the nature of the direct allegations made against Mabandla and I, which underpin the relief that the Calata applicants seek, as well as the orders that they seek, Ms Mabandla and I seek leave to intervene as respondents
— Thabo Mbeki, former president
They argue that the government’s failure to prosecute apartheid-era perpetrators despite the recommendations of the Truth and Reconciliation Commission (TRC) has violated their constitutional rights.
In its final report handed to Mbeki in 2003, the TRC recommended that individuals responsible for apartheid-era crimes be investigated and prosecuted.
However, the families argue that there was a deliberate political decision, especially during Mbeki’s tenure as president, not to prosecute individuals who committed apartheid-era crimes and who were not granted amnesty by the TRC.
According to the family, this decision denied them justice.
However, Mbeki and Mabandla have denied this.
“We intend to place relevant direct evidence before this court to oppose the allegations on which the Calata applicants seek relief and to have legal submission made,” he said.
“Given the allegations of intentional interference with the NPA [National Prosecuting Authority] and the prosecution of TRC cases for alleged personal interests or private organisational interests, the government...may contend that this court must find that if there was unconstitutional, unlawful or criminal conduct by Ms Mabandla and I and the administration of which I was president, it is conduct that is contrary to the public interest because the government and the public have an interest in protecting the rule of law and ensuring good governance.”
Mbeki said if the court were to accept the allegations, even if they were false, it would unjustifiably infringe on their constitutional rights.
“The allegations made against the applicants, if supported albeit false, will unjustifiably breach their right to human dignity.”
The families, however, are opposing Mbeki and Mabandla’s intervention.
In a statement released on Wednesday, the Foundation for Human Rights said: “They [the 25 people] point out that the relief they seek is not directed against Mbeki or Mabandla but against the state, and if they feel they have been defamed, they have recourse through normal legal remedies.
“The families assert that the application can be decided without the need to make findings in respect of individual role players, which will be the task of the commission of inquiry already established by the president, although it is yet to commence its work.”
The matter is expected to be heard in court on Monday.
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