One more hurdle for the Calata group of families in R167m apartheid-era crime damages claim
Image: Itumeleng English / Independent Newspapers
The victims' families and survivors of apartheid-era gross human rights violations together with the Foundation for Human Rights (FHR), who notched up a significant victory in a side battle against former president Thabo Mbeki last week, will be back in court on Wednesday, August 6, to deal with another interjectory application that now stands in the way of their constitutional damages hearing. The Pretoria High Court ruled against Mbeki and his former justice minister Brigette Mabandla and the two politicians, who wanted to protect or clear their names in the proceedings, have accepted the outcome and are now waiting for the commission.
In dismissing the Mbeki application the court found that 'it cannot be in issue that there was political interference in the prosecution of the TRC cases. Our Courts have found this to be so, and those findings stand and are binding. For this reason, the argument advanced for the Calata applicants that there would be no need for a specific finding against either Mr Mbeki or Ms Mabandla, is, to my mind, entirely sound. The issue has been decided.'
However, before the core damages case can be heard there remains another delaying issue, an application brought by President Cyril Ramaphosa and the government opposing the R167 million damages claim by the 25 families and survivors of apartheid-era crimes filed in January.
'In addition, the government is requesting either a postponement or a stay of the main application, pending the outcome of a judicial commission of inquiry promulgated on 29 May 2025 (to look into why many of the apartheid-era crimes were not prosecuted in spite of recommendations by the Truth and Reconciliation Commission),' the foundation said in a statement.
These cases include the murder of the Cradock Four — Matthew Goniwe, Fort Calata, Sparrow Mkonto, and Sicelo Mhlauli — members of the United Democratic Front and other community organisations fighting apartheid whose killings shocked the nation in 1985.
Concern over commission's scope
'While the families, survivors, and the FHR welcomed the establishment of the commission of inquiry, they have raised serious concerns about its Terms of Reference. Specifically, they argue that the commission's mandate should be limited to examining the mechanics of political interference, how it occurred and who was implicated. They object to the inclusion of matters relating to the determination of rights violations and the potential award of constitutional damages,' the FHR said in the statement.
Explaining what the main issue in court on Wednesday will be about, FHR executive director Zaid Kimmie told the Pretoria News that the 'sticking point' is that the government wanted to 'lump all of our other questions into this commission', in particular the question of damages. He said if they were to be made to wait until the conclusion of the commission to have their damages claim dealt with, it would possibly mean a delay of a couple of years.
'We all want the commission of inquiry to go ahead, but we would like to focus very narrowly on how that political interference happened and who, if anyone, was liable for the political interference,' said Kimmie.
The foundation and the Calata applicants 'strongly oppose' the government's application as they also opposed the Mbeki-Mabandla application for its potential to delay matters and 'muddy the waters'.
Kimmie said, if the government gets its way in court, 'everything will just be held in abeyance' for another 6-8 months until the commission completes its work, and then they would, unfortunately have to come back to court afterwards.
'I don't think that we are asking for an unreasonable amount of compensation. It's a hundred-and-sixty-seven million (rand). I believe the government will spend close to that amount just on the commission of inquiry,' he said.
'An ideal output for us would be for the state to accept its responsibility, to accept that the violations occurred and that the state was responsible for those violations, and compensate - pay the compensation so that these families can go ahead and seek truth and justice in their particular cases,' he said.
'Unfortunately, it looks like we have to fight every step of the way.'
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'This is just a delay'
'From our perspective, this is just a delay in what we think … inevitably the state will have to account for its past — omissions? And all this is doing is making the families wait and causing them additional grief and trauma, rather than dealing with the matter immediately.'
He said the government representatives initially seemed to understand and sympathise with the families and recognise the miscarriage of justice, but on the other hand they did not seem to want to proceed and either accede to the demands or negotiate in good faith with the families. He said this was 'very disappointing', but remained hopeful that things would be set right in court and that the damages issue would be settled, allowing the commission to focus on its work.
'The central issue for the families is, in many cases there are no longer any perpetrators to prosecute, all of the witnesses have died, and so, the possibility for justice has passed. And what they want now is an accounting for why that happened.'
He said since 2017, a small number of such cases have been brought to prosecution by the National Prosecuting Authority. These include the COSAS 4, Caiphus Nyoka and Nokuthula Simelane cases.
'But so much more would've been possible to have been done in the early 2000s had the state taken those opportunities (that existed then).
'So, even 20 years later, it is still possible to prosecute, albeit a far smaller number of cases, but had the state done its job back then so many of these people would've been prosecuted and the families would have seen justice.'
Asked about the potential of their damages claim opening up the floodgates for the government, Kimmie said the money would go into a trust fund and any family not currently part of the claim would be accommodated in it, meaning the government will have 'certainty that it has discharged its immediate liability' of making good the rights violations that occurred.
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