The FW de Klerk Foundation says it is against the National Prosecuting Authority's (NPA's) decision to investigate and prosecute apartheid-era atrocities.
But the Apartheid-era Victim Families Group (AVFG) believes this move will help them find justice and they have called for the probe to be fast-tracked.
The move by the NPA and the Hawks came after the Supreme Court of Appeal last month dismissed former apartheid-era police officer Joao Rodrigues's appeal against the decision of the South Gauteng high court not to grant him a permanent stay of prosecution for an incident that happened 49 years ago.
Rodrigues is charged with the murder of anti-apartheid activist Ahmed Timol, who died in detention in 1971.
The 2018 charge came after a second inquest ruled out suicide.
In a joint statement, the NPA and the Hawks said the judgment “is an important step towards honouring those who gave their lives for our constitutional democracy”.
“It aligns with both the Hawks and NPA’s commitment to end impunity as it enables the NPA 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.
“South Africans in general, and families of victims in particular, need to understand why these crimes were not prosecuted in the past. The NPA acknowledges that the unmerited delay of prosecutions of these cases amounts to the denial of justice to the victims of apartheid-era atrocities. The NPA, as lawyers for the people and defenders of those who suffered from injustice, has established dedicated capacity to ensure that those who are responsible for atrocities can be held accountable in a fair and transparent process.”
But the FW de Klerk Foundation said it was opposed to the decision because such action would be irreconcilable with the 1993 constitution.
“Notwithstanding the other provisions of the new constitution and despite the repeal of the previous constitution, all the provisions relating to amnesty contained in the previous constitution under the heading 'national unity and reconciliation' are deemed to be part of the new constitution for the purposes of the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of 1995), as amended, including for the purposes of its validity.
“Because of an informal agreement between the ANC leadership and former operatives of the pre-1994 government, the NPA suspended its prosecutions of apartheid-era crimes,” said foundation chairperson Dave Steward.
AVFG spokesperson Lukhanyo Calata said they were “interested in ensuring that the NPA follows up on its constitutional mandate to investigate and prosecute the people who committed the crimes against our humanity”.
“There was no agreement between a democratic SA and the apartheid criminals who were granted amnesty. The TRC [Truth and Reconciliation Commission] was the only formal structure in this country that could either grant or deny someone amnesty.
“And the TRC denied a lot of people amnesty and such people should be prosecuted. It is incumbent on the NPA to prosecute cases of people who were denied amnesty by the TRC,” said Calata.
Steward said if the NPA embarks on its course with the prosecutions, it should also prosecute crimes perpetrated by antigovernment organisations under apartheid.
Calata refuted this and said crimes committed against the apartheid government cannot be placed on the same level as antigovernment crimes as the latter were acts of resistance by black people.
“To ensure that justice is delivered, and to bolster the NPA’s capacity to prosecute these TRC cases, the NDPP transferred the cases to the relevant directors of prosecutions in the regions where the crimes were committed, with support from a national office capacity.
“This approach increased the number of experienced prosecutors available to handle these complex cases. As a result, the number of cases has increased from four to 53 over the past 12 months,” said the NPA and the Hawks in their joint statement.
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