An application by former president Thabo Mbeki and former justice minister Brigitte Mabandla to intervene in the R167m constitutional damages litigation, brought by victims and families of victims of apartheid-era atrocities, has been dismissed.
The two had told the Pretoria high court their intervention is vital to protect their reputations.
Mbeki and Mabandla argued their rights may be violated if the court finds in favour of the families' claim that they were involved in suppressing the investigation and prosecution of Truth and Reconciliation Commission (TRC) cases.
They sought to intervene in the lawsuit because the relief sought by the families, referred to in court as the Calata applicants, and the consequent claim for constitutional damages is founded on serious allegations of unconstitutional and unlawful conduct by them during their respective tenures.
The families and the Foundation for Human Rights opposed the application for intervention in their case, pointing out Mbeki and Mabandla are no longer in office, and allowing them to intervene could cause chaos and open the door to anyone who thinks they may be implicated in litigation to try to intervene.
They contended their main application was only against state functionaries in their official capacities and not against Mbeki or Mabandla personally.
The applicants are made up of more than 20 respondents, including the families of the Cradock Four — Matthew Goniwe, Fort Calata, Sparrow Mkhonto and Sicelo Mhlauli — who were murdered by apartheid police in 1985.
Earlier this year they brought a constitutional damages application against President Cyril Ramaphosa and government officials, arguing government’s failure to prosecute apartheid-era perpetrators despite the TRC recommendations has violated their constitutional rights.
They believe there was a deliberate political decision, specially during Mbeki’s tenure as president, not to prosecute individuals who committed apartheid-era crimes and who were not granted amnesty by the TRC and the decision denied them justice.
The families demanded two forms of relief: the establishment of a commission of inquiry into political interference in TRC investigations and constitutional “damages as redress for the egregious violations” of their constitutional rights.
Mbeki and Mabandla argued their intervention into the matter was vital to protect their reputations, as their rights may be violated by the court's finding that they were involved in suppressing the investigation and prosecution of TRC cases.
Judge Anthony Millar disagreed.
In his judgment on Friday, he referred to rulings handed down in the case of Joao Rodrigues, a security branch police officer who was facing charges related to the 1971 death of anti-apartheid activist Ahmed Timol.
From 2003 to 2017, the Gauteng high court and the appeal court found, political interference hampered the ability of the National Prosecuting Authority to properly deal with TRC cases, as the resources necessary to conduct proper investigations were not forthcoming.
Consequently, Millar said, “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,” he said.
“While it is alleged in general terms in the main application by the Calata applicants that the government respondents are responsible for the failure to prosecute TRC cases, the proverbial ship to challenge that has sailed.”
Millar said Mbeki and Mabandla had “no direct and substantial interest in the granting of any declaratory order against the government respondents and would have no obligation in respect of the granting of that order or any damages awarded in consequence thereof”.
The appropriate forum for them to “tell their side of the story” would be at the commission of inquiry which government has agreed to set up, he said.
“The application for intervention fails.”
TimesLIVE
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.