The state has a duty to prosecute the gross human rights violations committed during the apartheid era.
The South African criminal justice system consists of the police, courts and prosecution and the correctional services department. The main tasks of the police are to enforce the law, protect the public, arrest suspects or perpetrators and prevent crime.
The government has enough pieces of legislation and instruments to prosecute serious human rights violations that took place during the apartheid era, especially those cases that did not pass the test of amnesty during the Truth and Reconciliation Commission (TRC).
The TRC required those who were involved in apartheid crimes to divulge full information relating to human rights violations and killings based on apartheid laws. Those who did not divulge full information were not granted amnesty and the commission recommended that such individuals be investigated and, ultimately, prosecuted.
Since the TRC hearings drew to a close in 1998, very little has happened to bring perpetrators to book. Justice has yet to be done.
Many political activists such as Sophia de Bruin, the late Archbishop Desmond Tutu and the families of those who were killed have called on the government, in particular the police and the National Prosecuting Authority, to take the recommendations of the TRC seriously and implement them.
In the past week, allegations emerged that the administration of former president Thabo Mbeki gave an instruction that apartheid human rights violations must not be investigated.
Mbeki denies this.
This is against reports made by the likes of Vusi Pikoli, the former national director of public prosecutions, and Dumisa Ntsebeza, the former head of investigations for the TRC, who claim that there was indeed such an instruction and, at the centre of it, was the former minister of justice and constitutional development, Bridgette Mabandla.
It must be stated that Ntsebeza has said he made the assumption that because Mabandla served in Mbeki’s cabinet, he should have known about the decision not to investigate and prosecute those who were involved in apartheid criminal acts.
It is strange that Ntsebeza did not call the former president to verify the allegation before coming to such a conclusion.
Families of those killed during apartheid are longing for answers about what happened to their loved ones and want to see justice served.
The reports by Pikoli and Ntsebeza do not allege that Mbeki’s administration concealed the outcomes of an investigation or recommendations by the police that the suspects be prosecuted.
In his report and interviews with Newsroom Afrika, Ntsebeza indicates that his investigations confirmed that the Mbeki administration, through Mabandla, stopped the prosecution of apartheid crimes. In the interview, Ntsebeza proposed a judicial commission of inquiry with powers to investigate the truthfulness of the allegations, especially because Mbeki denies any instruction by his government.
But this suggestion is not a good one. Commissions of inquiry are time consuming, expensive and a waste of taxpayers’ money. Our record as a country is not good when it comes to making good use of commission reports and recommendations. The establishment of a commission would be an exercise in futility.
Moreover, the country has had two administrations after Mbeki and those administrations did little to prosecute those involved in apartheid crimes. It would therefore not make economic sense to establish a commission.
If the National Prosecuting Authority has cases that are ready for court, it should promptly prosecute those involved. With the passage of time (more than 30 years since the end of apartheid and 15 years since the end of the Mbeki administration), memories have faded and some potential witnesses and perpetrators have died, which diminishes the chances of a successful prosecution. Whatever evidence is still available should be used.
There is no doubt that some apartheid crimes will go unpunished.
The families are yearning for justice and the National Prosecuting Authority must do its best to deliver it, although the circumstances are less than ideal.
Dr Mkhuseli Vimba is a legal consultant and a political analyst.
