South Africa: Families of Apartheid Victims Fight Prosecution Policy

South Africa : THEMBI Nkadimeng, whose sister was tortured and murdered by apartheid special forces, said yesterday she had forgiven the murderer but “looked forward to his prosecution”.”I would forgive him. In fact, I forgave him long ago. But he would still have to face the consequences of his actions,” she said, telling Business Day about her family’s feelings regarding the death of her sister, Nokuthula Simelane.

Her body has never been found – 20 years after she disappeared.Widows of Matthew Goniwe, Sicelo Mhlauli, Sparrow Mkhonto and Fort Calata — known as the “Cradock Four” — and Nkadimeng are being represented by the Legal Resources Centre in a case to have an amendment to the government’s prosecution policy declared unconstitutional.

The families feel that the amended policy allows perpetrators a second opportunity to avoid prosecution.The Cradock Four were murdered in 1985 on their way back from a United Democratic Front meeting in Port Elizabeth. The perpetrators applied for amnesty at the Truth and Reconciliation Commission (TRC), but this was declined because they had not made full disclosure. Since then, no prosecutions have followed.

Instead, in 2005, an amendment was made to the National Prosecuting Authority’s (NPA) prosecution policy, saying that where crimes arose out of “conflicts of the past”, a special set of criteria would be used to determine whether to prosecute.The families ‘ counsel, Gilbert Marcus, said the amendment breached their rights to life and dignity because it effectively allowed for perpetrators of apartheid crimes to obtain an indemnity or immunity from prosecution.Marcus said even where there was sufficient evidence to convict, the national director of public prosecutions (NDPP), could decide not to prosecute at all.

Marcus said this was a betrayal of TRC principles , which offered amnesty in exchange for truth. But where truth was not given in full, amnesty would be denied and prosecution would follow.Ishmael Semenya, counsel for the NPA and the justice minister, argued that while the amendment did allow the NDPP to decide whether or not to prosecute, it did not allow for an indemnity.Prosecutorial discretion was an accepted principle in SA’s constitutional dispensation and was an “entirely different legal concept” to an indemnity from prosecution.

He said the main difference between a decision not to prosecute and an indemnity was that with the former, the family members could themselves initiate and run a “private prosecution”.Semenya also said the case was “premature” since no decision to prosecute or not had been made regarding Simelane or the Cradock Four nor had anyone been arrested.But Marcus said that whether the policy used the words indemnity, immunity or a decision not to prosecute, this was “semantics”.He said what was important was the effect.