Funding apartheid-era killers’ legal costs a travesty of justice

Dr Reneva Fourie

Every so often, the brutality of our past returns to haunt us. A harrowing example of the barbarism of the apartheid security forces that has recently resurfaced is the assassination of the Cradock Four.

In 1985, anti-apartheid activists Mathew Goniwe, Sparrow Mkonto, Fort Calata and Sicelo Mhlauli – collectively called the Cradock Four – were abducted and murdered. Their mutilated, charred bodies were found days later, scattered in various locations along the Eastern Cape coastline. It is distressing that the unmasking of the details of their murders is being postponed due to the quibbling over legal costs.

Exposing the truth and upholding justice appear complementary yet have been rendered complicated within the legal system of South Africa. Unravelling the exact sequence of events leading to the murders of the four freedom fighters is essential for reaching closure and preserving historical accuracy. However, it will require a financial burden on the taxpayer.

The initial inquest conducted by the apartheid state in 1987 concluded that the Cradock Four met their demise “at the hands of unknown individuals”, resulting in no prosecutions.

A subsequent inquest in 1993 confirmed the culpability of the police in the deaths of the Cradock Four; however, the specific circumstances of their demise and the identities of the perpetrators remained ambiguous, and again, no legal action was taken.

In 1999, six former police officers associated with the apprehension and killing of the Cradock Four appeared before the Amnesty Committee of the Truth and Reconciliation Commission (TRC), yet none of them obtained amnesty as they failed to make full disclosure.

The third inquest, originally scheduled to commence at the Eastern Cape Division of the High Court in Gqeberha from September 2 to 20 this year, has been postponed to June 2025. The adjournment is attributed, in part, to the legal representatives of former police and army witnesses, citing inadequate preparation time and the inability to secure state funding for the legal fees of their clients, namely Eugene de Kock, Izak Engelbrecht, Christoffel van der Westhuizen, and Craig Williamson, aged between 75 and 88. The National Prosecuting Authority (NPA) has expressed a willingness to provide financial coverage for the legal expenses.

Many are asking, however, if it is adequately justifiable that taxpayers finance the legal defence of apartheid-era killers, more particularly those who did not even bother to apply for amnesty. The financial burden emanates from the protection provided by the “Sunset Clauses” agreed to as part of our negotiation settlement.

In this regard, Pallo Jordan (1992) stated: “The central components of the state are its coercive arms – the army, police, laws and prisons; and its persuasive arm – the civil administration, civil service and the state ideological apparatus. It is precisely these organs that we are now being told should not be tampered with, so as to enable the liberation movement and the regime to ride blissfully into the sunset together.”

The provision of legal financial support for individuals associated with the perpetration of egregious apartheid atrocities is tantamount to denying the apartheid victims the justice they deserve. It places an unfair burden on taxpayers to uncover the truth. In so doing, it neglects to uphold the fundamental principles of justice as the perpetrators are escaping liability.

The unfairness is causing many to relive the trauma of our past. The pain is compounded by the travesty emanating from an inadequate process led by the TRC. The TRC held public hearings post the democratic transition as part of a restorative justice effort to give apartheid victims a platform to share their experiences and allow perpetrators to confess and apologise. The cost of revealing the truth was amnesty, which also meant sacrificing justice, and sadly, justice is being sacrificed again.

Regrettably, the poor management of the Cradock Four inquest is not an isolated incident. There are numerous cases where justice for victims is delayed due to the legal wrangling over fees. The Cosas 4 case involving Eustice “Bimbo” Madikela, Ntshingo Matabane, Fanyana Nhlapo and Zandisile Musi is another stark example of perpetrators evading accountability by claiming they cannot afford the legal costs.

In other instances, such as those related to corruption, the government has adopted a stringent approach towards the settlement of fees. The question arises about why there should be a divergent set of regulations for individuals implicated in apartheid crimes. This is a gross injustice that should stir our collective indignation.

Furthermore, the TRC found 300 instances where the security services either killed individuals in custody or illegal detention centres like Vlakplaas or assassinated them in the field through their infamous death squads. It advised the NPA to investigate the 300 cases and prosecute those responsible.

Unfortunately, the recommendations have not been fully acted upon, and many perpetrators were never even identified, let alone brought to justice. The Ntsebeza report for NPA on TRC prosecutions (2024) confirms that the NPA “has failed in its mandate“.

The unfinished business of the TRC and the arrangements at Codesa place more emphasis on the rights of apartheid criminals than the rights of victims and their families. Frustrations have reached levels whereby family members have resorted to camping outside the Constitutional Court. Certainly, it is time to consider revisiting some of the Codesa arrangements and reviewing the legislation to guarantee justice for victims. It is imperative that the National Dialogue discuss the matters.

The delay in justice for the victims of apartheid strengthens the barriers to achieving reconciliation. Nation-building and social cohesion require us to unearth and process the skeletons of our past. This includes holding the perpetrators of the heinous crimes accountable and ensuring they take responsibility, including financial responsibility, for their actions.

Only by doing so can our nation fully recover from the deep wounds of our past and reach its full potential. It is unacceptable that 30 years on, justice for the victims is fast fading into the sunset while the perpetrators are getting off scot-free.

* Dr Reneva Fourie is a policy analyst specialising in governance, development and security.

** The views expressed in this article do not necessarily reflect the views of IOL or Independent Media