Apartheid victims’ families must proceed with claims in the interests of justice

MARYNA BOTHA argues that setting the records straight on deaths at the hands of the apartheid regime and collecting restitution is a step towards creating a powerfully just and equitable society in this country.

ON October 9 this year, the Western Cape High Court handed down a comprehensive judgement analysing the findings reached by the magistrate in the 1971 inquest that investigated the death of Abdullah Haron, popularly known as Imam Haron, in 1969.

He died while being held in custody by the apartheid-era Security Branch of the South African Police Force.

The imam, a South African Muslim cleric and anti-apartheid activist, was posthumously honoured with the Order of Luthuli in Gold in 2014 for his ‘exceptional contribution to raising awareness of political injustices.’

At the initial inquest in March 1970, the Security Branch presented evidence indicating that the imam’s death resulted primarily from myocardial ischemia (a lack of blood flow from the coronary arteries to the heart muscle).

Although the medical reports showed other trauma to his body, such as bruising and broken ribs, the magistrate determined that he could not make a finding that any person was involved in causing those injuries.

He accepted that the injuries resulted from a fall on a flight of stairs at the premises where the imam was held and interrogated.

Haron’s family and legal representatives always maintained that this outcome was false and that he had died because of a heart attack triggered by trauma.

The Western Cape High Court judgement is the result of the family’s continued efforts to re-open the inquest for renewed scrutiny.

At the end of the 44-page judgement in which the testimonies of various medical experts—who gave evidence based on the 1969 medical reports and post-mortem document—were considered, the High Court concluded that the imam died as a result of torture.

It was recorded that, ‘Magistrate Kuhn had no real desire to establish and reach the truth. The police’s version was contradicted by the findings of the forensic pathologist, Dr [Theodor] Schwär, who examined the body of the Imam, and an independent specialist surgeon knowledgeable in pathology, Dr [Percy] Helman, who made it clear that all the bruises found on the body of the Imam could not have been caused by falling down the stairs. Dr Helman found the alleged complaint of the deceased about stomach pain, and not chest pain, very odd. He would have expected the deceased to complain of chest pain if he died from his chest or heart. Having regard to the imam’s height and the width of the staircase, Dr Helman could not see how the Imam could roll down all those stairs unless he banged himself all the way down. The location of the injuries, as well as their circumferential character, made it difficult to believe they were caused by a fall down the stairs. There was no basis for the magistrate to ignore this evidence in favour of the SB version.’

The officers involved in his death would have faced prosecution but had since passed away. Nonetheless, they were named in the judgement for inclusion in the formal record.

Re-opening an inquest is no simple matter. Section 17A of the Inquest Act states that:

‘The Minister may, on the recommendation of the attorney-general concerned, at any time after the determination of an inquest and if he deems it necessary in the interest of justice, request a judge president of a provincial division of the Supreme Court to designate any judge of the Supreme Court of South Africa to re-open that inquest, whereupon the judge thus designated shall re-open such inquest.’

It further states that: ‘A judge holding an inquest that has been re-opened in terms of this section may cause any person who has already given evidence at the inquest to be subpoenaed to give further evidence; shall record any finding that differs from a finding referred to in Section 16(2), as well as the respect in which it differs; and shall cause the record of the proceedings to be submitted to the attorney-general concerned.’

The first step, therefore, was to approach the Attorney-General with a request to reopen the inquest.

Once the Attorney-General has agreed, the Minister’s recommendation must be obtained. Only then does the case proceed to court for a reconsideration of the facts.

In terms of the re-assessment and outcome, the Act states that:

‘The judicial officer holding an inquest shall record a finding upon the inquest as to the identity of the deceased person; the cause or likely cause of death; the date of death; and whether the death was brought about by any act or omission prima facie involving or amounting to an offence on the part of any person.’

If the inquest finds that the death was caused by any act or omission constituting or amounts to an offence on the part of any person, the record must be referred to the Attorney-General for further action.

This is not the first time that family members of people who perished at the hands of those in authority under apartheid have sought a re-evaluation of the outcome of the inquest.

The re-opening of an inquest in 2017 into the death of anti-apartheid activist Ahmed Timol in police detention in 1971 was a turning point in this regard.

Apartheid-era atrocities were otherwise addressed by the Truth and Reconciliation Commission (TRC). The latter was founded in accordance with the Promotion of National Unity and Reconciliation Act to investigate human rights violations perpetrated during the apartheid regime’s reign from 1960 to 1994, including abductions, killings, and torture.

Its mandate covered both state and liberation movement violations, and it authorised the commission to hold special hearings on specific sectors, institutions, and individuals.

The TRC was empowered to grant amnesty to perpetrators who confessed their crimes truthfully and completely to the commission.

It submitted some 300 cases to the prosecuting authority and allowed persons to apply, at the time, for verification as victims of apartheid eligible for reparations by the TRC.

According to reports, this process has been lengthy, and many people are still waiting for the outcome of their application or reparation, assuming their verification was accepted.

According to most critics, the negative result is an indictment of political influence and laziness, and it is also alarming because funds have been set aside for a redress payout for a long time. The President’s Fund, established under the Promotion of National Unity and Reconciliation Act, is in the black by almost R2 billion. Over the past six years, the Fund has received R531 million in investment revenue but only disbursed R98 million in reparations. The Fund is administered by the TRC Unit within the Department of Justice and Constitutional Development. The Accounting Officer of the Fund is also the Director General of the Department.

As per the recommendations of the TRC, the Fund is earmarked to make reparations in six categories: a once-off individual grant to victims of apartheid; educational support for victims and their families; housing provision for victims; financial assistance with exhumations and reburials of deceased apartheid victims; access to healthcare; and rehabilitation of communities severely affected by apartheid.

Many legal commentators have suggested other possibilities for apartheid-era victims to pursue claims based on the internationally acknowledged crime of apartheid.

No person has ever been prosecuted for this crime, not even in South Africa, the country that gave apartheid its name and material basis.

However, in a historic first, TE Mfalapitsa and CS Rorich were both charged with the crime of apartheid in South Africa in 2021.

The charge includes five counts for the kidnapping and murder of three anti-apartheid activists in 1982, as well as the kidnapping and attempted murder of a fourth activist.

The victims were members of the anti-apartheid Congress of South African Students (COSAS) and thus became known as the ‘COSAS Four.’

The trial was scheduled to begin in April 2023 but has subsequently been rescheduled to begin on January 22, 2024.

The state was ordered to pay reasonable legal fees for one of the accused, allowing the trial to begin without excessive delay.

However, given the deaths of many of the perpetrators and key witnesses over the years, the prospects of resolving the factual investigations have dimmed.

Setting these records straight and collecting restitution is another step towards creating a powerfully just and equitable society in this country.

Where government institutions are lagging, claimants should engage legal practitioners and various organisations that collaborate with legal firms to support and assist these claims.

• Maryna Botha is a director of STBB and head of the firm’s compliance unit in Cape Town. She is an admitted attorney, notary public, and conveyancer with many years of experience in property law and conveyancing.