The survivors and families of apartheid-era victims have expressed deep frustration at the abrupt postponement of the commission of inquiry into the political interference in Truth and Reconciliation Commission (TRC) cases.
The commission was formed in response to sustained calls from the families of the Cradock Four and others for clarity on why investigations and prosecutions of TRC-identified crimes have been delayed.
The first sitting of the commission, chaired by justice Sisi Khampepe, began on Monday and was scheduled to start with arguments on whether the Calata group witnesses could be led by their own counsel.
This was to be followed by opening statements and testimony from family witnesses, who would be led either by their counsel or by the evidence leaders, depending on the commission’s ruling.
However, the hearing was abruptly adjourned to November 26 after an objection by the National Prosecuting Authority (NPA) and the minister of justice to the involvement of chief evidence leader, advocate Ishmael Semenya SC, in the commission’s proceedings.
The Foundation for Human Rights (FHR) said the attorneys for the Calata group had, on September 18, written to Khampepe requesting that Semenya be excluded from deliberations on the prosecution policy amendments, as he had represented the NPA and the minister in a 2008 constitutional challenge to those amendments.
The judge confirmed in a letter to the law firm Webber Wentzel that she had acceded to this request.
Copies of both letters were forwarded to counsel for the NPA at that time, the FHR said.
It added that despite being aware of the potential conflict involving Semenya for nearly seven weeks, the NPA did not raise any objections or file an application for his removal or recusal.
“Only in their objection and arguments filed last week, addressing the question of the Calata group leading their witnesses, did they and the minister of justice raise a general objection to his participation,” the FHR said.
The foundation added that even at the start of Monday’s hearing, neither the NPA nor the minister had prepared an application for Semenya’s removal.
At the hearing, counsel for the minister indicated that the minister would abide by the commission’s ruling of September 19. However, counsel for the NPA confirmed that he had not prepared a recusal application.
What angers me more is that the state did not discover Semenya’s involvement this morning. They knew — they could have approached the commission and filed papers earlier instead of us coming here in this shabby manner.
— Thembi Simelane, human settlements minister
The commission then gave directions for the filing of the application, answering and replying papers, and written arguments, and adjourned the hearing until November 26.
The FHR said the long adjournment caught the families by surprise.
“They assumed that once the recusal directions had been given, Semenya would be required to stand down pending the outcome of the recusal application, and that arguments would proceed on whether the Calata group witnesses could be led by their own counsel.”
“The adjournment to deal with the recusal has effectively collapsed the first hearing of the commission, which had been set down for three weeks and at which 15 witnesses were to testify.
“This results in a significant waste of taxpayer money, given the costs of the five government legal teams, the commission itself, and those who must fund their own attendance,” the FHR said.
It added that the commission could ill afford to lose three weeks of hearings given how long the proceedings have already been delayed.
This view was echoed by human settlements minister Thembi Simelane, who attended the inquiry regarding the killing of her sister, Umkhonto we Sizwe operative Nokuthula Simelane, in 1983.
“We are representing the elders. My mom is 85 years old. I left in the morning saying the inquiry is starting and that I am appearing on Wednesday, as requested, to share my experience of the investigation into Nokuthula’s case. And now we are adjourned until further notice,” she said.
Though Simelane said they would wait patiently, she urged that the pace be picked up.
“What angers me more is that the state did not discover Semenya’s involvement this morning. They knew — they could have approached the commission and filed papers earlier instead of us coming here in this shabby manner,” she said.
Simelane added that the state should have been better prepared. “I become livid, actually, when I think about it.”
The FHR noted that more than five months have passed since the establishment of the commission on May 29.
The current sitting was scheduled for November 10 to 28, meaning only two days would remain after the recusal arguments on November 26, the FHR said.
Despite this setback, the families and survivors reaffirmed their commitment to the commission.
They urged all parties to act in good faith to ensure the inquiry resumes without further interruption. They remain hopeful that the process will finally expose the truth and provide a measure of accountability and closure long denied to them.
AfriForum also expressed disappointment at the postponement, saying the families of at least seven victims of ANC acts of terror would have to wait longer for answers.
AfriForum represents the family of Jaap van der Merwe, reportedly killed by ANC insurgents near the Botswana border in 1978, and has also been mandated by Dirk van Eck, whose wife, two children and three friends were killed in an alleged ANC landmine attack in 1985. Van Eck has since died.
AfriForum’s CEO Kallie Kriel said the families of victims of landmine and bomb attacks and other murders of civilians also deserve answers, just like the families of the Cradock Four.
Kriel insisted that the commission must also address why no ANC leader has ever been prosecuted for these crimes.
In its submissions to the commission, AfriForum requested that it expand its investigation to include political interference that prevented the prosecution of senior ANC leaders.
AfriForum wants the commission to ensure that its recommendations also reflect the interests of the families of victims of ANC acts of terror.
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