TRC prosecutions: NPA Progress Report; Committee Report on Removal of Magistrate

Meeting report

Consideration of report on the removal of Ms J Van Schalkwyk from office
The Committee began its meeting with the consideration of a report on the removal from office of Ms Judy van Schalkwyk, Chief Magistrate at Kempton Park.

Mr Siyabamkela Mthonjeni, Committee Secretary, shared a copy of the report on his computer screen. The Chairperson recalled that the report had been circulated the previous day, and that it would be taken as read.

Mr X Nqola (ANC) moved the adoption of the report, and Ms A Ramolobeng (ANC) seconded the motion. There were no objections, and the report was adopted.

The report would be sent to the Programming Committee for debate in the House, and the subsequent decision by the House.

Progress report by NPA on the Truth and Reconciliation Commission prosecutions
The Chairperson welcomed the delegation from the National Prosecuting Authority (NPA). He recalled that in the Committee’s last interaction with Adv Shamila Batohi, National Director of Public Prosecutions (NDPP) and the team, it was agreed that the Committee and the NPA would meet quarterly to receive reports on the progress of the Truth and Reconciliation Commission (TRC) cases.

Adv Batohi introduced her colleagues: Adv Rodney de Kock, Deputy National Director of Public Prosecutions: National Prosecutions Service (NPS) -- under which the TRC component resides -- and Adv Anton du Plessis, Head of Strategy: Operations and Compliance, NPA, and members of their teams.

Introduction
Adv Batohi said ensuring justice for the families and victims of apartheid-era crimes was a priority for the NPA. The lack of accountability for these heinous crimes continued to undermine the rule of law in SA. Despite the delays, the NPA was now committed to delivering on this priority. They needed to learn lessons from the past to secure the NPA’s independence and credibility for the future. Time was not on their side, which was why they were acting with urgency to develop strategies, capacities
and partnerships to ensure progress in these cases.

Highlights from the past six months included:

• Establishment of a dedicated TRC component under the DNDPP: NPS;
• Appointment of additional dedicated capacity to focus on TRC matters. The Directorate for Priority Crime Investigation (DPCI) had done the same;
• A full-time TRC coordinator function in the national office to drive internal and external collaboration;
• They had sharpened their prosecution-guided investigation approach in close partnership with the DPCI;
• Under the coordinated guidance of the national office, they had enhanced the capacity of DPP offices to prosecute these matters at the provincial level, within the jurisdiction of where the offences were committed.

Their efforts were paying off. They had seen a substantial improvement over the last seven months, resulting in the reopening of 38 new investigations into the deaths of detainees. There were currently 97 matters under investigation, with more matters identified for reopening. The Missing Persons Task Team (MPTT) established within the NPS had to date recovered the remains of 179 missing persons, of which 167 had been identified and returned to the affected families.

Adv Batohi said the meeting was an important engagement with the Committee. It was an “absolute travesty of justice” that victims of the atrocities committed during the apartheid era were still waiting for justice, either in the form of prosecutions, or in the form of inquests that were reopened, so that people could understand what happened to their loved ones. For the NPA as lawyers and as people, a victim-responsive approach had been taken in its strategy. It was important that survivors and families of victims received some level of justice for those atrocities.

The lack of accountability for those crimes continued to undermine the rule of law in South Africa. She would not go into the reasons for delays, and why the majority of the victims of those crimes had not received justice. There had been public information regarding the lack of action on the part of politicians. The NPA was hampered from doing its work in many ways. Because of all that, the NPA realised that it needed to act with a sense of urgency in trying to deliver justice to as many victims, survivors and families as it could. There was a need to learn from the lessons of the past, and ensure that the NPA worked independently, and thereby ensured its credibility.

Time was not on the NPA’s side. Families were dying, the potential accused were dying, and witnesses were dying. Families were dying without knowing what had happened to their loved ones. The NPA had accused persons dying in some of its cases, so it was very important to act with a huge sense of urgency. This was not just something that the NPA did – it worked closely with the Directorate for Priority Crime Investigation (DPCI). As much as the NPA was often called on to account for that -- and it needed to do so -- it did not have an investigative capacity to investigate those matters. Therefore, it had to work closely with its colleagues in the South African Police Service (SAPS) and the DPCI in order to ensure that it was able to deal with those matters with a sense of urgency.

Adv Batohi gave an overview of some of the highlights from the past six months.

A dedicated TRC component had been established in the NPA under Adv De Kock. The TRC matters were being dealt with in what was regarded as the Priority Crimes Litigation Unit (PCLU) in the NPA for a number of years. The PCLU had a number of issues that it needed to deal with, in addition to the TRC matters, including international crimes, and crimes relating to terrorism. There was a small component of around seven staff members. The PCLU was no longer existent in the NPA at the moment, because most of its members had either resigned or been sent back to their divisions. There was a new component in the NPS, and the NPA had also created a component dedicated to the TRC within the NPS. The NPA had appointed additional dedicated capacity. By dedicated, she meant that the prosecutors who were dealing with those matters were dealing with nothing else but TRC matters. In addition, the DPCI had worked with the NPA, and it had done the same -- adding a dedicated TRC component. That was critically important, because in the past, the NPA had very few staff members who were dealing with a number of other issues, in addition to TRC matters. If the NPA wanted to act urgently in the TRC matters, it needed a dedicated capacity. It had a full-time coordinator at the national office who was working closely with the small teams it had in the regions. The numbers depended on the workload in a particular division. The NPA had based its numbers on that, as had the DPCI.

Regarding the reopening of cases, Adv Bathohi recalled that there were families of detainees who had the means to get lawyers appointed, and had tried to push those cases forward. What the NPA had done was to reopen those cases, and were looking at all of those matters. Even in cases where families could not afford legal action, the NPA was looking at all of the deaths in detention.

The Committee may have seen the news in the media this week about the case of Imam Abdullah Haron, an anti-apartheid activist who died in security branch detention in 1985, being reopened. The family of the late Imam Haron had been informed this week. The National Director had been approached by Adv Nicolette Bell, Director of Public Prosecutions (DPP) in the Western Cape, who had been working very closely with the family of Imam Haron. Upon her recommendation, Adv Batohi had recommended to the Minister that the NPA reopen the inquest into the death of Imam Haron. The Minister had agreed to reopen the case, and had appointed a judge in the Western Cape to deal with that matter.

The MPTT, which was established within the NPS, had achieved continued success in locating and exhuming the remains of missing persons. It had to date recovered the remains of 179 missing persons, of which 167 had been identified and returned to affected families.

Adv Batohi added that one might say that the NPA was not moving as fast as it should be, but she assured the Committee that the NPA, together with the DPCI, was doing everything possible to ensure that all of those matters got attention. The numbers spoke for themselves. Hopefully, there would be more developments in matters being investigated and finalised the next time the NPA came before the Committee.

Dedicated TRC capacity
Adv De Kock added comments on the matter of Imam Haron. He said the Judge President of the Western Cape High Court had recently responded to the Minister’s letter, and had appointed Judge Daniel Thulare of the Western Cape Division to hear the inquest in relation to Imam Haron. The prosecution team in the Director of Public Prosecutions' office would engage with the court on the process of managing the inquest under the direction of the judge assigned to the matter.

In the NPA, the total number of dedicated TRC prosecutors appointed in divisions was 16 people. In the DPCI, the total number of dedicated TRC investigators appointed in the divisions was 33 people.

(See the attached presentation for the full details).

Adv De Kock added that the NPA allocated personnel based on the number of matters located in each province. This dedicated capacity was additional capacity that the NPA had appointed to manage the work in each part of the country. For example, in the NPA, KwaZulu-Natal (KZN) had four additional personnel in the form of Senior State Advocates. All of the posts were at the level of Senior State Advocate, which was the most senior litigation post in the prosecution currently. There were Deputy Directors, but the Senior Advocates were the ones who took the most challenging cases to South Africa’s courts.

In the Gauteng Division: Pretoria (under the NPA), the NPA had received a motivation for an additional three prosecutors, where it currently had one prosecutor. The NPA had approved the addition of three prosecutors, and it would try to get those additional prosecutors as soon as possible. The NPA had received a request from the DPP of the Eastern Cape for an additional three prosecutors, and those three had been approved. The NPA would make sure that it got the additional prosecutors to that division quickly. At the Head Office, there were two colleagues, specifically a Coordinator and a Deputy Director, assigned to the TRC work. The NPA anticipated that it would appoint an additional three colleagues at the national level under Head Office.

The model that the NPA was following was that the prosecutors (NPA) and investigators (DPCI) worked solely on TRC matters. That was the difference that the NPA had introduced. Previously, matters would be assigned to a prosecutor who potentially had many other matters. As far as this group of people was concerned, both the prosecutors and the investigators were working solely on TRC matters. The NPA was confident that that would speed up the investigations that it would talk about further on in the presentation.

The DPCI colleagues were also supported by the SAPS component. Where investigators needed additional assistance, SAPS was there to assist. Similarly, SAPS would also assist the prosecutors when needed. Although the NPA itemised the DPCI colleagues, they were operating within the broader framework of the prosecution so they could get support and advice from time to time, as well as help on matters from senior colleagues. That broader support was also available within the respective offices of the DPP.

Progress update
The audit of matters between the DPCI and NPA was key in developing a coordinated and hands-on, standardised approach. Matters were identified for fast-tracking, with consideration given to the seriousness of the evidence, age of the matters, age of the accused/persons of interest/witnesses, availability of experts and witnesses and exhibits/records.

Adv De Kock added that a lot of work had been done at the Head Office level to ensure that the Head Office could assist the regions with records, as much of the records were archived, and a lot of engagement happened to ensure that the regions received the relevant documentation from the archives in Pretoria, so that the NPA could assist the investigators and the prosecutors in the divisions.

Divisions were encouraged to develop action plans with set time frames in respect of the strategic prioritisation and finalisation of matters. There was a critical analysis of progress within the divisions on a monthly basis.

The NPA received its reports on the fifth of each month, and it was a compulsory requirement that the divisions submitted the reports to Adv De Kock’s office, where the coordinator and the Head Office assessed reports and commented on progress. Where the NPS felt that progress was not sufficient, it engaged in those issues. It also supported its divisions. It was a collaborative approach, and its strategic direction on how it did the work was set by its national office. The NPS assisted the divisions in getting the work done.

The dire need to prioritise TRC matters had resulted in joint NPA/DPCI regional workshops coordinated by the NPS National Office with effect from 13 June 2022. Adv De Kock said the workshops would look at a number of issues on the specifics around the TRC's work. The work was unique, because the majority of the cases were very old, so the NPA needed to have a different methodology, and a different approach to the work. It would engage with its partners in bringing on additional expertise to assist it with that work. All of the prosecutors and investigators who were appointed would attend the workshop over a period of about two days, and the workshop would explain further approaches and understandings of how it would fast-track the work.

Monitoring and evaluation
Progress in investigations was divided into three categories:

• Category A: Available evidence, docket, inquest report etc.
• Category B: Expert reports.
• Category C: Stages nearing completion of investigations and/or decision making.

Adv De Kock said that category A was the first phase, and involved the collation of evidence, getting inquest records and other important evidentiary information, etc. The category B second phase related to additional reports and expert reports. Sometimes the NPA had to reconstruct the crime scenes. Sometimes it would also need additional experts on pathology reports. Some reports had been done years ago. All of the evidence needed to be reviewed again, specifically evidence of exactly how people had died. Medical information and medical reports would also need to be reviewed. These were all additional expert reports and expert evidence that the NPA would have to then collate in preparation for a hearing, either in court as an inquest, or in court as a prosecution. Category C related to the phase where a matter was nearing decision. Hopefully, by dividing progress in investigations into these three categories, the NPA would be better able to understand the progress in each investigation. It was confident that it was making good progress.

Improvement in cases under investigation
38 new investigations had been reopened since September 202, and 18 were awaiting reopening. Adv De Kock recalled that the last time the NPA came before the Committee in September 2021, it had 59 matters that were under investigation. At that time, it had found 55 potential names of matters. A lot of work had to be done on those 55 potential matters to consider whether they qualified for further investigation. The bar chart in the presentation showed the progress made each month since September 2021.

(See the attached presentation).

November 2021 had been relatively static -- that was when a lot of work was done to understand those matters. From January 2022, there was significant movement. Where cases under investigation had increased, those matters were formally referred for investigation. The teams that had been appointed then received those matters, and those teams were assigned to do the investigations. Ongoing work involved continuing to identify other matters that the NPA either may not be aware of, or matters that still needed to be referred to the NPA. The cases involved a collaborative approach between the prosecution and the DPCI investigators. The cases were regarded as priority crimes, and that was why the NPA had its most senior members working on those matters.

Divisional progress as at 30 April 2022
A pie chart showed that 60% of the matters were in category A (0-33% complete); 14% were in category B (34-65% complete), and 26% were in category C (66-100% complete). The percentage of matters in category A was due to a large number of matters being referred from January 2022. Adv De Kock noted that the bulk of matters in category A should be moving to category B within the next quarter. Hopefully, by the third quarter, a lot of the matters would be in category C. Once matters were in category C, they were “ripe for decision-making.”

He used the example of the Imam Haron matter: That matter had started last year, and the NPA had been able to do various things quickly, including getting additional expert reports on the matter. It then got both the DPP of the Western Cape division and the prosecutors assigned to make a recommendation in respect of the matter. The decision was to make a recommendation to the NDPP to approach the Minister to reopen the inquest.

In general, the NPA’s work was designed to get the evidence as quickly as possible, so that the prosecutors would be able to make a decision in the matter. The decision would be either an inquest, or a decision to prosecute. There may be a decision not to prosecute, and that would be based on the evaluation of the entirety of the evidence that it had collected.

The Eastern Cape had a substantial number of matters. There were currently 13 matters, with ten in category A and three in category B. Adv De Kock had been informed by the DPP that the Cradock Four -- anti-apartheid activists who were killed by security police in 1985 -- matter was in category C. There were one or two aspects that needed to be handled. There had been a request for some additional expert opinion in respect of the matter on the evaluation of some of the evidence. The NPA was working closely with the lawyers that had been appointed. He had been informed by the DPP that as soon as the final outstanding opinion was received, and a few other issues were finalised, then the DPP would be able to make a decision on the Cradock Four matter.

In the Gauteng Local Division, four matters were ready for a decision. In the KZN division, 12 matters were ready for a decision. There would also be a provincial workshop in KZN, which would take place the following week. It would be a two- or three-day workshop, where all the KZN cases would be discussed. The NPA would send national colleagues to KZN to assist. Limpopo (four matters in total) had one matter in category C, as did Mpumalanga (three matters in total).

Adv De Kock noted that Eastern Cape Mthatha and the Eastern Cape Division were under one Director of Public Prosecutions. The Director in Mthatha currently took responsibility for the entire Eastern Cape.

The North West had two matters in category C (four in total); the Northern Cape had one matter in category C (three in total), and Gauteng Division had one matter in category C (20 in total). The Western Cape had two matters in category C (nine in total). One of the two matters in category C in the Western Cape was the Imam Haron matter, which Adv De Kock noted was moving into the High Court.

Noteworthy matters
Matters highlighted in the presentation were:

• S v JA Rodrigues (finalised);
• Dr Neil Aggett -- (See the attached presentation for the full details.)

Cases on the court roll
The cases highlighted in the presentation were:

• The reopened inquest of Mr Ernest Dipale, where judgment was awaited.
• The reopened inquest of Dr HH Haffejee, where judgment was awaited.
• The COSAS Four, which was on the court roll of the South Gauteng High Court for 19 July 2022.
• S v Coetzee and Another, where a trial date had been set for 6 to 17 June 2022.
• S v Johan Marais and Others, where the matter had been postponed to 20 June 2022, Regional Court, Benoni.

Matters where decisions were imminent

• KZN: Four
• Mpumalanga: One
• North West: Two
• Northern Cape: One
• Gauteng: One
• Western Cape: One, pending the decision of the Minister (Imam Haron)
• Eastern Cape: One (Cradock Four)
Total: Eleven

Adv De Kock commented that a decision on the Imam Haron matter had been made. At the time that the NPA prepared the slides, it was still awaiting the Minister’s decision.

The Chairperson interjected to say that with the Western Cape, Adv De Kock had specified that it was the Imam Haron matter. He had also specified that in the Eastern Cape, the decision on the Cradock Four was imminent. He did not know the names in the other cases.

Adv De Kock replied that the NPA could give the Committee the details of those cases. Alternatively, he could ask colleagues to give the names of the matters in the meeting or give the details in writing to the Committee.

The Chairperson observed that the whole world was watching the progress of those cases with interest, and it was important that people knew the names of the cases.

The way forward

• The NPA leadership was committed to accountability for these serious crimes.
• The NPA must act independently and fearlessly. Prosecution must be based purely on evidence, irrespective of race, colour, creed or political affiliation.
• The NPA was committed to working with families and stakeholders. A partnership and collaborative approach was key to making progress in a holistic manner.
• They were acting with a sense of urgency to deliver impact and build sustainability of their capacity and engagement on the TRC and other complex crimes.
• They aimed to build the required permanent capacity, tailored training and capacity building initiatives, and broad partnerships to ensure that they could deliver justice for these crimes now and into the future.

Adv Batohi said that the NPA had the full list of names -- it was just selecting those particular ones mentioned above.

She observed that the NPA was not where it wanted to be, but it had come a long way in trying to address those matters. She wanted to assure the Committee, the people of South Africa, and the families of the victims, that these cases were a top priority for the NPA. It hoped that it would be able to make significantly more progress on those matters as it moved forward. The NPA was committed to working with the families, the legal representatives of some of the families, and other critical stakeholders. This was not just something that the NPA was doing on its own – it had to work collectively, and also with the support of the Committee, to make sure that it was able to bring justice to the families of the victims of atrocities committed during the apartheid era.

The NPA was acting with a sense of urgency, and it knew that time was not on its side. It was moving towards building a more sustainable capacity in the NPA to deal with the TRC and other complex crimes. That was not to say that colleagues that were currently dedicated would be dealing with other crimes. The NPA realised that at that moment, it had a number of contract appointments dealing with the TRC matters. It had been fortunate to get a deviation from the Department of Public Service and Administration (DPSA) to appoint those colleagues on a three-year contract, because of the fact that those cases took longer. The NPA realised that it needed the capacity, and so it would try to convert those contracts to a permanent capacity. It knew that even when those matters were concluded, with the amount of work the NPA had in other areas, specifically other complex crimes, there would always be a need for prosecutors to be dealing with those matters.

Adv De Kock mentioned tailored training to deal with those matters, and to ensure that the NPA was working in meaningful partnerships with a range of stakeholders, in particular the families of the victims.

Discussion
Adv G Breytenbach (DA) said that the update was encouraging. It appeared that serious attention was finally being paid to those matters. It of course begged the question of what had happened in the preceding 25 years, and why in the entire history of the PCLU, progress had not been made before. Who had been responsible for that lack of progress, and what were the consequences of that lack of progress? Who was in charge of that unit, and why had it not made any progress? That demonstrated a serious lack of accountability. The Committee was entitled to know about the lack of what went on.

The National Director had said that the NPA was not going to go into the reasons for the delays – but that was precisely what the Committee was there to do -- specifically, to determine what the reasons for the delays were, and to ensure that the delays did not recur. She asked the NPA to delve into the reasons for the delays.

On the Cradock Four matter, the Committee was aware that Mr Lukhanyo Calata had gone to court to get an order to compel in July 2021. Almost a year later, there had not been a lot of discernible progress in that matter. There had been nothing in court. There appeared to be progress with negotiations, but there was nothing tangible that one could see on a court roll. The deadline that was given in writing by the NPA had been missed. The Committee had then been told that the deadline was just a show of good faith, which was not met. What was the concrete timeline to which the Committee could look forward to some progress on that matter? Were the families of the Cradock Four (and certainly Mr Calata as an interested party) being kept up to date? Was there communication with Mr Calata and the families of the Cradock Four? Did the families know what was going on, and were they consulted? Were the families treated as part of the process? Adv Breytenbach’s information was that the families were not treated as part of the process. Why not? It seemed to be deeply disrespectful not to include the families in information. She was not referring to talking to the lawyers, but was instead referring to talking to the families themselves.

The Minister of Justice and Correctional Services had made a public announcement to say that he would approach the Judge President to appoint a judge to deal with the Imam Haron matter. That was where the family of Imam Haron had heard about it. Why was the family not informed, and not consulted? Why was the family not treated with more respect? If that was not the NPA’s mistake, then it needed to say so, so that the Minister of Justice and Correctional Services could explain it. She expected that after such a long, unforgivable delay, families would be treated with much greater respect.

She found the lack of tangible progress, and the fact that the families were not part of the process, deeply disturbing.

Mr G Hendricks (Al Jamah-Ah) remarked that the Imam Haron matter was close to the hearts of the Muslim community, and to the Pan Africanist Congress (PAC). Al Jamah-Ah had raised the matter six times over the past three years, with the last time being in September 2021. Al Jamah-Ah had received a detailed reply to its parliamentary question. He was pleased to say that the NDPP had delivered on her promises, and Al Jamah-Ah wanted to thank the NDPP very much for the progress that had been made so far.

He was disturbed that decisions were taken to prosecute or not to prosecute, given how those families must feel if at the end of the whole process (waiting 25 years or more), they were then told that the NPA was not prosecuting. There needed to be an exit strategy if that happened. He felt that even if the evidence was weak, every family needed to see that the perpetrators had their day in court. It was up to the courts to decide, but not to continue was “very, very sad.”

Mr Hendricks was very pleased that there was a dedicated team dealing with TRC cases full-time. That was very important, because after a revolution, those who perpetrated crimes needed to be “dealt with severely.” These matters had been postponed, and now that there was a dedicated team, which was the first step. Perhaps there also needed to be a dedicated SAPS team of double the current number of people who were working with the NPA. If there was not a dedicated SAPS team, nothing would happen. When there were high-profile cases, the Minister of Police would launch his 24-hour or 48-hour team to find the perpetrators. That was what needed to be done. He imagined that the Minister of Police would put in place at least six or seven SAPS teams if there were six or seven cases that were in their final stages.

Al-Jamah-Ah had also raised the issue of Chief Albert Luthuli, and it was promised that names would be given at a later meeting. He agreed with the Chairperson that “the whole world was watching.” The Luthuli family was also watching. The family wanted to know which phase of investigation their matter was at, or what was happening with the matter. It could not be that the matters concerning the leaders of the PAC and ANC were not being treated very seriously.

He was glad that another Member had raised the issue of the Cradock Four. He had spoken with a Member of Parliament who came from that area. It was a serious issue, and was a betrayal of the people of both Cradock and South Africa as a whole. Poor communication had also been mentioned. Perhaps the NDPP needed to speak to the Department of Communications and Digital Technologies (DCDT) to assist it with communications, because the communications departments at Members’ constituency offices received a lot of complaints that there was poor communication and collaboration. Families were not kept informed. The Haron family heard about the decision on the matter only through the media. The first person the family phoned was Mr Hendricks, and had asked him what was happening. He told the family that it was “very strange” that the Western Cape team had “let the country down” and not informed the families that there was some progress. Imagine the relief that such news would have brought the families, which was now denied.

He understood that inquests were very important, and he was happy that a judge of the High Court was conducting them. The Committee had heard in the progress report that a lot of bodies of missing persons had been found. He was not sure if inquests had been held on those remains, and whether those matters were on the list to find the perpetrators. The Committee needed to get that answer.

There were people who were still alive who were in jail – people from the PAC, ANC, IFP etc. Such cases were part of the TRC cases. Instead of being put in graves, people were put in jail, and “hidden in jails, maybe half-killed, and were languishing in jails.” He did not know whether the delays were because the NDPP and the government “were scared of AfriForum.” The NDPP needed to tell the Committee whether it was scared of AfriForum or not.

President Ramaphosa had spoken about the social compact -- that communities, the general public and the corporate world needed to work together. Now was the time for the corporate world, “whose hands were not clean,” to provide funding, so that more resources could be put into bringing those matters to a head. South Africa’s top law firms needed to at least make available five of their staff full-time at a very senior level, and give as many resources as possible. That was how Mr Hendricks understood the social compact idea that President Ramaphosa had raised.

He thanked the Chairperson for his leadership in this matter. He had been strong in his message of how these matters needed to be brought to a head. He was sure that the Chairperson had been working behind the scenes, and that was why the Committee had seen that the NDPP had delivered. He also thanked Adv De Kock for his work.

Ms Y Yako (EFF) asked what the reasoning was behind having a certain number of prosecutors per province, as opposed to the amount of cases per province. There were low numbers in some provinces, but the number of cases being dealt with was high. She asked the NPA to explain the logic behind the allocation of staff.

She observed that her colleagues had already asked why there had been delays with cases. These were very serious cases. Had there been any political interference that had hampered the NPA from doing its job in prosecuting the crimes of apartheid? She asked if the NDPP could be as honest as possible, because the Committee was a platform on which it could protect the NPA, as well as protect the people of South Africa who had been victimised by apartheid crimes.

Mr Nqola echoed the sentiments of his colleagues, particularly in affirming that by the looks of the presentation, it seemed that progress had been made. As Adv Breytenbach and Ms Yako had said, the Committee took the work of the NPA very seriously, particularly in a society where crime was rising. To say that there had been a hampering of the functioning of the NPA was a very serious statement, and he asked the NDPP to help the Committee unpack that. In the report, there had been information on cases that were reopened. One could see progress from September 2021 to April 2022. If those cases were reopened, it meant that they had been closed at some point. Was there a link between the closure of those matters and the hampering of the NPA that the NDPP talked about?

Those matters were crimes against humanity that had been committed more than 28 years ago. Nature would dictate that some accused, witnesses, or any person who may be of help to some of those matters, may be deceased. The process did not revolve only around arrests – the families needed solace and closure. When families of the victims knew what had happened to their family member, that would bring comfort and closure to them. Even when those who may have been involved in the killing of South Africa’s people were now deceased, processing those matters was being done for the families of victims and for communities.

Apartheid had indeed been a crime against humanity. The number of cases that had been referred for investigation, or the cases that were underway, were a total of 97. With those 97 cases, what was the strategic turnaround time of the NPA to ensure that those matters would be finalised? For example, would the time period be six months, two years, or five years? What was important was that those matters had been dragging on for too long, which the report had reaffirmed. In a normal society, one was not supposed to be discussing those matters 28 years after democracy.

The Cradock Four matter was in the category of matters where a decision was imminent. Whose decision was imminent -- was it a court decision, an NPA decision, or the Minister’s decision? On the slide that spoke about matters where decisions were imminent, the words “Cradock Four” were written in brackets. What did that represent as they related to the Cradock Four?

He mentioned Adv Breytenbach’s question on communication, where she mentioned the Calata family. He did not want to focus on the Calata family alone, but he wanted to expand on that and ask if there was there constant communication with all of the families to which the cases were directed.

Ms W Newhoudt-Druchen (ANC) observed that her colleagues had highlighted a very important aspect that she wanted to say regarding crimes against humanity. The cases were repeatedly talked about, but she felt that bringing closure to the pain of families was not happening.

What was the training that Adv De Kock had referred to? The Committee had been hoping that the NPA was working on those cases, and now it had to have training. Who provided the training? She felt that training should not be a reason for a delay in resolving those cases.

For the cases that were still being reopened, had the NPA interacted with each of the family members in those cases, or not?

Responses
Adv Batohi responded to Adv Breytenbach’s question on what had happened in the previous 25 years. Ms Yako had also mentioned political interference, and Mr Nqola had referred to the hampering of the functioning of the NPA. There had been a number of Members who had asked about possible political interference and delays. She stated that there had been no political interference at all since she had taken office. However, if one read the affidavit of the previous NDPP, Adv Vusi Pikoli, it would be clear to Members what kind of interference, in his view, the NPA had been subjected to at the time. She urged Members to refer to Adv Pikoli’s affidavit.

Referring to the Rodrigues judgment, she said the judge had directed the NDPP to look into possible political interference in the functioning of the NPA at that time. Adv Batohi had been engaging with the Minister on that issue. She did not think the Minister had taken a final decision. The Minister was looking at a high-level panel or an inquiry that would be able to look into the issue that Members had raised. Hopefully, that would address the issue of understanding exactly what had happened, as well as possible accountability. Those discussions were at an advanced stage, and hopefully, there would be a notification in that regard fairly soon.

All were aware of the painful history of the Cradock Four matter, and how long it had taken. She was aware that there had been orders to compel that had been brought. She sincerely expressed her commitment that when the NPA had a case, it would decide to prosecute. There was “absolutely no reason” for the DPP, if there was evidence against anyone, not to take the decision to prosecute. Bringing applications to compel the NPA meant that it had to engage counsel, and it cost the NPA to go to court.

The NPA had been engaging with the families, because it did not want to be working against them. The NPA and the families were on the same side – both wanted justice for the victims. She wanted to assure the Committee and the people of South Africa that if there was sufficient evidence, the NPA would prosecute. There was no reason why it would delay taking a decision if there was sufficient evidence to prosecute.

She expanded on what she meant by sufficient evidence. The NPA must take a decision to prosecute when in the prosecutor’s expert opinion, and in the DPP’s expert opinion, it had a case and reasonable prospects of a successful prosecution. To do otherwise could result in the NPA being sued for malicious prosecution. She understood the need for families to get closure, but for the NPA to bring a prosecution where it had weak evidence, on the basis that the families needed to know, was “not the way to go.” The NPA could open itself to malicious damage claims and malicious prosecution claims, which could cost the government and the NPA a lot of money. What the NPA did in many of those instances was that it had been asking the Minister – as it did in the Imam Haron matter – to hold a formal inquest. That meant it was not something that was held in a magistrate’s or a judge’s chambers -- it was one that was open to the public. In such a formal inquest, oral evidence was led in a court of law where witnesses could be cross-examined, and at the end of the day, the magistrate or judge made a finding. That in itself was a very important process for families to get a level of closure, where there was insufficient evidence for the DPP to take a decision to prosecute.

The investigation on the Cradock Four was at a very advanced stage. Her understanding was that the NPA hoped that within a month to six weeks, the DPP would make a decision on that matter.

Regarding capacity, the SAPS was trying to assist with the NPA’s work. It could only urge the SAPS to assist with capacity. The DPCI was “seriously constrained,” given the work it had to do. Many of the members that the DPCI had recently appointed had been newly recruited. Recruitment did take a long time. She suggested that the next time the NPA reported, the Committee could invite the DPCI to report with the NPA.

Adv Batohi said the NPA was making “a huge effort” to communicate with the families directly. It was of concern that there were a number of families writing to say that they did not have enough information. The NPA would improve its communication. It was critical that families were updated on progress on those matters.

On the matter of Imam Haron, she noted that on the morning when she knew that the NPA was going to mention the matter in Parliament, she had called Adv De Kock and asked him to confirm that the family had been informed. The NPA had called DPP Nicolette Bell’s office, and got confirmation that it had informed the family. However, the Minister made the decision to issue a statement, and regrettably, there was a public statement issued from the Minister’s office before the family was informed. In future, the NPA would make sure that the minute it got communication from the Minister, it would communicate with the family immediately. That morning, she was concerned that she would say something on that public platform, and the families would hear it on that platform, which for her was not acceptable. The NPA wanted to apologise for the statement on the Imam Haron matter. It should not have happened, and the NPA would certainly make sure that communication, not just in respect of that family, but all communications, were significantly improved.

Adv Batohi wanted to emphasise that the NPA was not afraid of AfriForum. The NPA did its work not because AfriForum or any other group put any pressure on it. It did its work because it knew it was what it needed to do. The NPA would do its job properly. When it had the evidence, it would prosecute. There may be other groups that needed to find relevance, and speak more to the media about certain things, but the NPA did not do that. It just did its work, and it would keep families informed so that they were aware of what was going on.

She assured Ms Newhoudt-Druchen that the training was not a case of prosecutors who did not know what to do, and whilst training was happening, nothing was going on. The NPA had experienced prosecutors who knew how to deal with those matters. Dealing with those particular crimes, specifically atrocities committed in the apartheid era, required a slightly different approach, because these were very old matters, which meant that the NPA needed to go into the archives. The NPA also involved the investigators in the process. The NPA tried to give the staff involved assistance and support so that they could move more quickly with the cases. It was not training that started from scratch, and it would not delay the matters.

Adv De Kock emphasised that the NPA had requested all of the provincial DPPs to view and participate in that day’s meeting. Colleagues were hearing at first-hand some of the concerns that had been raised. The issue of communication with the families of victims was very critical to the way in which the NPA operated in terms of its own norms and standards. He had received some comments from DPPs where some family members had lawyers, and the DPPs had to communicate with families through lawyers, which was part of the protocols. The NPA would encourage colleagues to deal directly with those lawyers. The NPA’s view remained that “we are lawyers for the people.” Victims needed to hear from the NPA firsthand. The NPA gave its commitment that going forward, direct communication was the approach that it would take.

The NPA met with directors on a monthly basis in its various operational meetings, and at its national operations meetings in particular, where a number of urgent priorities of the NPA were discussed. The TRC matters were a standing item on that agenda, where meetings went into detail about progress in relation to all of the cases. Besides the mechanisms that the NPA had put in place, the accountability rested directly on the shoulders of each DPP, and on the shoulders of the operational entities, such as the NPS, within the NPA. From the national point of view, the NPA held its prosecutors and DPPs accountable for progress. Going forward, it would monitor, evaluate progress, and report back directly to all the affected families and victims in relation to the cases.

He said the allocation of resources per province was based on the number of cases in each division. It allocated more resources as it reopened more matters. That was why he had said that the NPA was giving an additional three or four prosecutors in the Eastern Cape. It had also allocated additional resources to one of the Gauteng divisions. Allocations were based on the numbers and volumes that staff had to deal with. In some instances, there was only one person allocated, because there were only two cases, but if, for example, the NPA allocated ten cases to a division that had only two people, it would increase the resources given to that particular division

Regarding training, there were a number of additional issues that the NPA would look at, such as certain strategies that needed to be followed in the investigation of those matters. When the NPA got to court, the normal court rules applied in litigation, and the procedures that needed to be followed in South African courts. These were the issues that fell under training. Training was to understand what strategies the NPA would follow in investigating how it would prosecute, and what issues may impact upon investigations. Many records had been destroyed. The NPA needed to reconstruct records, which was a difficult task. It also shared best practices. The upcoming workshop would enhance the work that was currently happening, and share best practices that the NPA had learned already from some of the matters that it was bringing to the courts.

The Chairperson had asked about the names related to the matters mentioned on the slide titled "Matters where decisions were imminent." Adv De Kock wanted to emphasise that that was the context of the names. All the matters were given priority attention. The NPA was not saying that only the names mentioned on the slide were receiving attention. All matters were receiving priority attention. The names mentioned on the slide -- specifically, the Cradock Four and Imam Haron -- were the ones that hopefully, within a short period of time, the NPA would be able to communicate regarding decisions about those cases. It would communicate immediately with the victims and families of the victims before it communicated broadly in the media. The NPA would try to find a balance, because sometimes things got into the media before it got an opportunity to communicate with the families of the victims.

• In KZN there were four matters: Ms Ntombikayise Kubheka, Mr Oupa Madondo, Mr Sobho Phewa, and Mr Goodwill Sikhakhane.
• In Mpumalanga: Mr "Sweet" Sambo.
• In North West: Mr Brian Ngqulunga and Mrs Irene Motase.
• In the Northern Cape: Mr Booi Mantyi.
• In North Gauteng (Pretoria): Mr Welcome Khanyile.
• In the Western Cape: Imam Haron.
• In the Eastern Cape: The Cradock Four – Mr Fort Calata, Mr Matthew Goniwe, Sicelo Mhlauli and Mr Sparrow Mkhonto.

Those were the names related to the cases where decisions were imminent. In relation to those matters, the communications would happen very shortly.

The Chairperson was unsure if Adv Breytenbach’s question had been answered regarding who in the NPA had been responsible for the delays, and what consequences had followed.

Adv Batohi responded that her understanding had been that the question was about the delays in the past 25 years, to the extent that those matters did not proceed as quickly as the NPA wanted them to. The main challenges were that the cases were very old, records had been destroyed, and trying to locate witnesses. The NPA had dedicated capacity for finding evidence. She wanted to assure the Committee that with dedicated capacity, and with more capacity in the DPCI, cases would move forward. Investigators were critical in moving cases forward. The NPA took note of the Members’ comments about that issue.

The NPA was constantly engaging with its colleagues in the DPCI to try to get more investigators that could work on the cases. Her understanding was that in the Eastern Cape division, there would be three people allocated. In the Head Office, there would be an additional three, and in Pretoria, there would be an additional four people. Resources, particularly amongst investigations, were difficult. It was not a case of the DPCI being able to reassign members, since members had “a lot on their plates,” but they were committed to that process, and the DPCI was trying to give the NPA additional capacity.

Regarding cases being reopened, Mr Nqola had said that at some point, those cases would have been closed. Was there a link between those cases being closed, and what was hampering the NPA in the past? Those matters had not been receiving attention for various reasons. Hopefully, an inquiry would unpack whether there was a link between the lack of attention and the hampering of the NPA. With the proper dedicated capacity, finding those cases and reopening them with a dedicated capacity was what the NPA was doing at the moment.

There was also a question on what period the NPA was targeting to deal with those matters. The NPA was targeting three years. That was why it had contract appointments for three years. It was hoping that it would have been able to have dealt with a significant number of those cases in that period. There may be complexities in particular matters, but three years was its targeted period.

Further discussion
Ms N Maseko-Jele (ANC) asked about the issue of delays. Within the five years that the current team had been in the office, there were delays that had happened, and she hoped to receive an answer. Adv Batohi had given the Committee an answer to that question. She had also mentioned the issue of weak evidence or no evidence. How many of those cases might be affected by weak evidence or not enough evidence when it came to delays?

She had heard Adv De Kock say that he would bring the team to a meeting. As much as the Committee appreciated the progress, and that it might be thanking the Department for its efforts, to the families that had been waiting a long time, one day passing without getting justice would feel like a hundred years. How would the NPA monitor progress? The next time that the NPA came, the Committee wanted to see the tangibles. Her fear was that South Africa was sitting with two serious issues. There was the prosecution of state capture and the prosecution of past crimes. The country was seeing progress on state capture, which had happened recently, but there was “no progress” on old cases. What was being said to the country? What were the priorities when it came to the TRC issues? Those were the questions that Members often had to answer in their communities.

The presentation had mentioned cases in category C, which were those awaiting a decision. How long did the Department take to make a decision on those issues? What was the nature of the decision? How long did it take to make a decision, particularly on the TRC cases?

The Chairperson mentioned an issue raised by the Foundation for Human Rights -- that it was struggling to have prosecutors deciding to charge people with crimes against humanity. The argument was that apartheid had been declared a crime against humanity, but there seemed to be a “reluctance” to bring that additional charge, since it would introduce an element of international law.

The Committee appreciated the report that had been given. From the reports that the Committee had read, and what the NPA had given it, he thought that Members had summarised the "sore points." Generally, it was the issue of interacting with families. Did the NPA have the contact details of all the families? For instance, if the NPA talked about the Congress of South African Students (COSAS), the Cradock Four, or the Nokuthula Simelane case, did it have the exact contact details?

If those families wanted to contact somebody from the NPA, where should they go? As public representatives, and as Members who had talked to families, the experience was that it was not easy to discuss this subject with a person whose loved one was killed or went missing 40 years ago, and who had not had closure up until now.

Responses
Adv Batohi responded to Ms Maseko-Jele’s mention of a delay of five years. She had been in office for three years and a few months. She observed that when she took office in 2019, she and her colleagues were dealing with an NPA which did not have any dedicated capacity. The PCLU had very few members dealing with the TRC matters and a range of other types of priority matters, such as terrorism and international crimes. Likewise, in the DPCI, there was no dedicated capacity for TRC matters.

In February 2020, which was the first year, there was the process of trying to understand one’s priorities, and trying to liaise with stakeholders. The NPA had a meeting with General De Beer in February 2020; at the time, the issues of TRC and terrorism matters were being dealt with in the same part of the DPCI. The General had made it very clear to the NPA that he did not have the capacity to assist with investigations. He was going to embark on a recruitment process to get the capacity to deal with those matters. The DPCI was also under considerable pressure, with very few members trying to deal with a large number of cases, such as state capture, among others. With the investigative capacity, it took a very long time before the NPA got dedicated investigators. As far as she understood it, it was only in 2021 that the dedicated investigative capacity was created. It was within the past 18 months, at most, where the NPA had been able to get the dedicated investigative capacity. There was nothing it could do without investigators, as that was the starting point.

These were very difficult investigations. She mentioned the complexities due to the age of the matters, and the need to reconstruct records in some instances. In the past 18 months, a considerable amount of work had been done. The NPA was not where it wanted to be, and there were “no excuses” – she understood that it was “cold comfort” for the families, as they did not want to hear about all of those factors, especially if they had been waiting for 40 years. However, she wanted to give the families the assurance that the NPA was doing everything it could. Hopefully, there would be more families that would feel that they had received justice because of the NPA’s dedicated focus on those matters. The NPA understood the families’ need to understand what happened, to get closure, and to receive some level of justice for the atrocities and for their suffering.

The NPA could not give a number on how many cases would be affected by having weak evidence or no evidence, because it depended on the evidence. It was only when the NPA got to a point where there were no further investigations that could be done in a matter, and it did not have sufficient evidence, that the DPPs would make that decision.

On matters in category C, Adv Batohi had a document with her that contained a monthly investigations checklist. The checklist helped the NPA, in that it had different things that happened in the different phases of investigations. In phase one, for example, one of the checklist items was to contact families. Other items on the checklist included identifying the potential accused, and confirmation of whether the NPA had received documents at that early stage. The second phase included compiling those documents, obtaining more statements, affidavits, and forensic evidence. The third phase was when the NPA felt that it had advanced from that stage to the final stage, where it could assess all of the evidence, where there was not much outstanding, and where the NPA was in a position to take a decision. It was difficult to put timelines on the phases -- it was a guide for the NPA. It could take anything up to six months in the final phase. It tried to keep the final phases as short as possible, but it depended on various factors. Sometimes there may be small things outstanding in the final stage, but it could be difficult to get those things for various reasons.

On the issue of crimes against humanity, and charging potential accused with crimes against humanity, she said that with her experience at the International Criminal Court, those types of crimes were not foreign to her understanding of it, and of understanding the need and importance of charging those international crimes in respect of some of the TRC cases. At the very early stages, to say that there was resistance on the part of the NPA to deal with them was factually incorrect. Adv Batohi had been very open, and had been engaging with families from the early days to urge working together to try to get a good case that could be taken to court with the charge of international crimes. These were complex legal issues that required a lot of thought and engagement. As the prosecution, the NPA had been ready to engage with those issues.

There had been different legal views on whether the NPA could or could not charge. It required the NPA to consider those matters carefully. The Foundation for Human Rights had been pushing for prosecution of crimes against humanity. Adv Batohi’s final response to that was that she was open to such a charge, and that there would be appropriate cases where the NPA could charge crimes against humanity. It might not be able to make such a charge in a particular case for various reasons, including the fact that the matter was in court for trial. When one brought new charges, one needed to inform the accused persons, which would mean further delays. The NPA was ready to start with the matter in question. For various reasons, it decided that that particular matter was not an appropriate case in which to make those charges. However, the NPA was looking at the issue of charging crimes against humanity, and it understood the importance of bringing those cases forth.

There was a saying that “bad facts make bad law.” Especially, when it was charging for the first time, the NPA needed to make sure that legally it could in fact charge those crimes. It needed to make sure that it charged such crimes in the appropriate cases. Hopefully, there would be those cases where the NPA would be able to charge crimes against humanity.

The NPA really wanted to work together with the families. Families also had legal support that the NPA wanted to work with, so stakeholders need not work separately. All were working towards the same end, namely, working for the victims that legal support and the NPA were representing. The NPA wanted to work together with the families of the deceased.

Contact details were on the investigation checklist, and the DPP’s offices had contact details. As Adv De Kock explained, where there were lawyers representing the families, the families were working through the lawyers. The NPA would not want such lawyers to think that it was bypassing them and speaking directly to the families. This was certainly important to the NPA. One way of measuring whether it was doing that better would be that the next time it came to the Committee, it would hear Members saying that they were getting fewer calls from families to say that they did not know what was going on. She asked that if Members got such communication, they could forward it to the NPA’s offices where it would look into it and make sure that there were follow-ups where there had been any gaps in communication.

Chairperson's concluding comments
The Chairperson said that the Committee was happy that the NPA had started the process, since it promised last year that it would have regular meetings with the Committee on progress reports. The Committee took the suggestion that the NPA made seriously -- the next time the NPA came, the Committee would invite the head of the Hawks. There were particular issues that were of serious concern. For instance, with respect to the Cradock Four, former members of the special branch had been appointed to investigate that particular case. What greater form of insult could there be to those families than that? To show that that was incorrect, the Hawks had subsequently appointed other members. Those were things that came as “a final nail to the hearts of the families.” The Committee thought that it would be very important that the Hawks formed part of the meetings on the TRC cases.

Additionally, in the Committee’s next report, it would be focusing on the issue raised by several Members, specifically that of families being contacted timeously. The Committee did not want to take it for granted that because it saw there was a checklist, NPA members had therefore contacted the families. The Committee would want to have a more detailed report on contact with the families. It was of serious concern that in the last five days, Members had received no fewer than four different family members complaining that they had not been contacted. When the NPA came back to the Committee during the next four months, the Committee would be focusing on the issue of contact with families.

The Committee wanted to see substantive progress. The NPA had made good progress, but the Committee wanted to see substantive progress above what it had reported. If the Committee and the NPA wanted to treat this as the normal course of its work, then at some point there would come a time when it would be too little, too late. It was important to stick to the Preamble of South Africa’s Constitution – “Let us not dishonour those who died for our freedom.” The Committee thought that the NDPP, itself and the families should work together to ensure that those who fought for freedom were honoured.

The Committee would be paying particular attention to getting detailed reports from Adv De Kock and the DPPs, and on the process of contacting the families. Even if the NPA would not prosecute, it was important for the NPA to walk with the families to its decisions. He urged the NPA not to decide by itself what decision was good for families; it might be technically correct, but because it had not walked with the families to arrive at that particular decision, there might not be an appreciation of its decision.

The meeting was adjourned.