Seven personal ponderings on the Nokuthula Simelane case and how these unresolved cases of apartheid-era disappearances and deaths hang spectrally over our democracy, by Tymon Smith

 

Polls

Standing in line to cast my vote on August 3 2016, I realised that after all the debates about the efficacy of democracy and the idea that it’s just the best of a rotten bunch of options and what good has it really done us anyway – the reason I vote is because it seems to me that not to would be to spit on the graves of thousands of people who died so that we all could. Tell the thousands of families who still don’t know what happened to their sisters, brothers, mothers, fathers, uncles and aunts that the sacrifices they’ve made are not worth anything. Tell the family of Nokuthula Simelane that 33 years after she was abducted from the basement of the Carlton Hotel in Johannesburg by members of the Security Branch, never to be seen or heard from again, the whereabouts of her body still unknown, that you can’t be bothered to stand in a line for a few hours to exercise a fundamental right that she believed we should all have.

 

Patience

On July 25 this year in Courtroom GD of the North Gauteng High Court (familiar to many as the venue of Oscar Pistorius’ murder trial) the members of the Simelane family were absent when the four members of the Security Branch accused of her murder – three old white men and one black, all bespectacled, dressed in cardigans and outdated suits looking like the members of a Sunday afternoon bridge club – stood up to tell the court through their attorney, himself a former apartheid era policeman, that they were not ready to proceed with the trial. The reason being that they were finding it difficult to convince the South African Police Service – and by extension the post-apartheid tax-paying citizenry – to cover the costs of their defence for a crime they claim they did not commit whilst employed as protectors of the apartheid regime.

After twenty minutes it was decided that the trial – the first prosecution of apartheid-era perpetrators since the 2007 plea bargain struck with former law and order minister Adrian Vlok, police general Johann Van de Merwe and others – which had been set down to run for two months would now only resume on 20 September, and even then the matter to be heard will deal with an application by the accused to have parts of the docket made available to them. The wheels of justice turn slowly but then again if there’s one thing the Simelane family has made clear they have abundance of, it is patience.

 

Persistence 

The Scottish philosopher Thomas Caryle once wrote: “Permanence, perseverance and persistence in spite of all obstacles, discouragements, and impossibilities: It is this, that in all things distinguishes the strong soul from the weak.”

Going into last week’s local government elections, Thembi Nkadimeng was the executive mayor of Polokwane but in 1983 when her sister Nokuthula Aurelia Simelane disappeared, she was only ten years-old. Her parents made repeated inquiries as to her whereabouts, reports were written in newspapers, a police docket was opened in 1996 and a special hearing was held as part of the amnesty hearings at the Truth and Reconciliation Commission (TRC).

In 2001 the Amnesty Committee of the TRC granted amnesty to some of the perpetrators for their role in Nokuthula’s abduction including according to a statement issued by the Southern African Litigation Centre (SALC) in February this year, “certain police officers who the Committee found had lied about her brutal torture.  This was notwithstanding the full disclosure requirement laid down in the TRC law. None of the perpetrators applied for amnesty for her murder.”

In 2006 Mark Kaplan made Betrayal, a documentary about the Simelane case which ended with a plea for action to be taken. In 2008 the government erected a R2.3-million statute of Nokuthula in the town of Bethal which has twice been vandalised.

At a press conference last year Nkadimeng showed just how serious she and her family were about persisting in their quest to find the remains of her sister. Her father died in 2001 without knowing what had happened to Nokuthula or seeing her body buried and her mother Sizakele is now 75 and in ill health. Nkadimeng assured reporters that she was “prepared to wait another 32 years. In case it doesn’t happen in my lifetime I have a family. My daughter is 19 years-old so I’m sure she will continue where mommy left off. In case I run out of time due to life, which has been borrowed, there will be others who will continue.”

The occasion of that press conference was the announcement that the Nkadimeng family had brought a case against the Minister of Justice, the National Commissioner of Police, the National Prosecuting Aunthority and the four accused demanding that a decision be made as to whether or not to prosecute the four men for her sister’s abduction and murder or refer the matter to an inquest.

Politics

There were atrocities committed on both sides of the political divide – definitely more on the apartheid side, but, nonetheless, instead of holding Nuremberg style political trials an agreement was reached. That agreement formed a cornerstone of the negotiated settlement that lead to us all being able to vote. The deal, which resulted in the creation of our seemingly miraculous testament to our ability to forgive each other and heal the wounds of the past – the TRC — was predicated on a simple premise. Everyone who committed acts of human abuse in the name of a political ideal would get a chance to be absolved, providing that they made a full and honest disclosure of their deeds in public. Failing that perpetrators were subject to prosecution for their crimes, a right available to victims and enshrined in the constitution.

Ignoring the many ways in which the TRC process restricted the number of victims and enforced a policy which dictated that anyone who had not made a statement to it by December 1997 would not be recognised as a victim of apartheid era crimes, there were still, by the end of the process, almost 400 cases which the commission had deemed fit for possible further action.

This action was supposed to be the responsibility of the Priority Crimes Litigation Unit (PCLU) housed within the NPA. However, by the time the final report of the TRC was handed over to President Thabo Mbeki in 2003, attitudes within the second ANC administration to some of its original idealist intentions had changed. Although Mbeki himself had unanswered questions about the fate of his only son, his brother and a cousin, he saw the reconciliatory even-handedness of Mandela’s conviction that the TRC should treat perpetrators from both sides equally as one that, in the words of Mark Gevisser in his biography of Mbeki, Thabo Mbeki: The Dream Deferred, “demeaned the righteousness of those who had fought for freedom.”

It was also the fear of possible prosecution of ANC members for failure to disclose their deeds that sent the post-TRC prosecution process into a distressing back and forth bureaucratic quagmire of attempted procedural meddling that would see families like the Simelanes hamstrung from receiving the justice they had been promised by the very government their loved ones had fought to instal.

In the few PCLU annual reports available online there are continued references to the unit’s lack of investigative capabilities and while several post-TRC prosecutions are listed as being in the process of investigation there’s no information on the specific details of these. The Simelane family together with the widows of the Craddock Four and organisations such as the Khulumani Support Group took their fight against a proposed amendment to the Criminal Procedures Act – which would have created an Amnesty Task Force that would essentially re-run the amnesty process under the auspices of members of the Department of Justice without public disclosure – to court and won.

The process was a cynical attempt to provide perpetrators with a second chance and was seen as a re-victimisation of those who had lost family members. In 2007 shortly before his resignation Mbeki sought to introduce a special pardons process whereby a reference group made up of politicians would hear applications from prisoners serving time for political crimes who could apply to them for a pardon, again behind closed doors and without the participation of victims. This too was successfully challenged by civil society and struck down by the Constitutional Court. Last year it was announced that President Jacob Zuma’s government is planning to revisit the political pardons process. Good news for Schabir Shaik perhaps, but little consolation to victims.

The lack of political will on the part of the post-apartheid government to provide justice to victims of apartheid era crimes is repeatedly raised in several affidavits attached to the application that Nkadimeng made to compel a decision in her sister’s case.

From former TRC commissioners Dr. Alex Boraine and Advocate Dumisa Ntsebeza SC to the former head of the PCLU Advocate Anton Ackerman and his then-boss former National Director of Public Prosecutions, Vusi Pikoli; the issue of political interference raises its ugly head over and over again.

At the Ginwala Commission into his fitness to hold office, Pikoli, whose best friend and fellow MK Cadre Sizwe Kodile was killed in 1981 by Dirk Coetzee and members of Vlakplaas – shot on the banks of the Komati river, his body burned while his killers watched, drinking and braaing next to the pyre – testified that he was continually frustrated from carrying out his duties with regard to TRC prosecutions by his then boss, justice minister Bridgette Mabandla and members of the Mbeki administration including former National Police Commissioner Jackie Selebi who felt that prosecution of perpetrators would lead to a witch hunt against members of the ANC.

In a letter to Pikoli written in February 2007 following his decision to prosecute former apartheid  Vlok and others for their attempt to kill Reverend Frank Chikane, Mabandla wrote that “media articles alleging that the National Prosecuting Authority will go ahead have caught me by surprise.”

Pikoli correctly interpreted the law to mean that even though Chikane may have said that he forgave the men for their sins, the fact that they had failed to make full disclosure to the TRC meant they were liable for prosecution.

Eventually the men were given a plea-bargain deal and today Vlok washes feet and talks about finding Jesus even though many feel that there are several things he didn’t come clean about.

It would take another nine years for the NPA to pursue any other apartheid-era related prosecution. By then Pikoli had been unceremoniously removed from his position, Anton Ackerman was no longer head of the PCLU and the Simelane family was forced to place the NPA in the difficult position of either going ahead with a murder prosecution against Nokuthula’s alleged killers or facing the possibility of an inquest, which might have had to deal with the allegations of political interference into the prosecution process.

In her affidavit Nkadimeng said that she did “not know why the new South African state has turned its back on victims who sacrificed so much but it appears to me that this approach can only have been the product of a policy or decision to abandon these cases,” adding that “this failure has served to defeat the purpose behind South Africa’s historic compromises and rendered largely meaningless the entire truth for amnesty program. It has become a de facto blanket amnesty. It stands as a betrayal of all of us who participated in good faith in the TRC process.” She was echoed by Ntzebeza who in his affidavit lambasted the “shameful political machinations that effectively stopped this investigation and others,” as “contemptuous of the sacrifices made for the liberation of South Africa”.

Prosecution

With his hand forced and possibly to avoid the slippery issue of political interference, recently appointed NDPP Advocate Shaun Abrahams – himself a former acting head of the PCLU – announced in February this year that the NPA would be bringing a case against the four security policemen implicated in the disappearance and murder of Nokuthula Simelane.

The indictment served on Mzebenzi Timothy Radebe, Willhelm Johannes Coetzee, Anton Pretorius and Frederick Barnard Mong accuses Radebe of the crimes of murder and kidnapping and his three co-accused of murder. They are accused of abducting Simelane from the basement of the Carlton Centre on 11 September 1983 and then taking her first to a room in the servants’ quarters at the top of the Custodium flats in Norwood where she was interrogated, continuously assaulted and tortured for a few days before being transported to a farm in Northam (most well known these days as the area where rock fans congregate for the Oppikoppi festival). She was detained at the farm for about four weeks where she was “handcuffed and shackled with leg irons”. The four men “continued to severely assault and torture the deceased whilst they interrogated her. Towards the end of her stay on the farm the deceased’s overall physical condition had generally deteriorated to such an extent that her face was barely recognisable and she could not walk unassisted. The deceased then disappeared whilst being in the hands of [the accused] from 1983 up to date.”

At the TRC it was alleged that Simelane had been “turned” during her interrogation and that she was subsequently taken back to Swaziland where, as an askari, she assisted the Security Branch in a number of operations, even though her final whereabouts remained unknown to her new masters. However the investigation of former Scorpions head Frank Dutton (paid for privately) has raised doubts about the veracity of these claims and while the four accused have maintained their innocence it remains to be seen whether evidence will be lead at their trial which will force them to finally recant their story.

Faced with a 33-year-old case with little physical evidence, the burden of proof might be difficult for the NPA to surmount. Cynical observers have further pointed out that, in the very few other apartheid crime prosecutions the NPA has tried, they have failed, suggesting that this has perhaps even cynically been “by mistake on purpose.”

The 38-person list of witnesses in the indictment has also not given these critics confidence in the authority’s dedication to provide finality to the Simelane family. Where for instance are similar fact witnesses who could provide a picture of the operational patterns by the Soweto Intelligence Unit of the Security Police of which the four men were operatives? Why is the number one available expert on such behaviour, recently paroled former Vlakplaas head Eugene Alexander De Kock, who had dealings with Coetzee, not been called to provide background on procedures around the turning of askaris and the procedures undertaken in those instances where security branch operatives were unsuccessful in their attempts to make activists “kopdraai”? Can it be reasonably believed that the farm in Northam was only used by the unit for this single operation?

It might be unfair not to give the NPA the benefit of the doubt before proceedings begin, but they can hardly complain about such misgivings in the light of their lacklustre performance in similar trials and the many complaints about the evident lack of political will when it comes to these prosecutions.

 

Possibilities

The Simelane case is seen by many as a litmus test for the democratic government’s commitment to one of the building bricks on which its existence was built. It represents not just a chance for closure on behalf of Nokuthula’s family but the thousands of other victims of apartheid atrocities who are still searching for answers, many of whom continue to live in the same poor financial and social circumstances they did when their loved ones disappeared. The NPA is potentially knocking hard on a door that has remained thus far tightly slammed shut. The question is what lies behind that door?

The NPA while agreeing to prosecute was a little disingenuous in regard to its own failings. A statement released in February by the Southern African Litigation Centre after Abrahams’ announcement noted that, “[r]egrettably, the announcement made by the NPA does not acknowledge the three-decade-long struggle for justice by the Simelane family, nor does it disclose that, but for the investigations of the family and their High Court litigation launched last year, this case would have remained suppressed, as have all the other cases recommended for prosecution by the Truth and Reconciliation Commission.”

Nkadimeng has consistently represented her sister’s case as only one of a too large number of similar cases. At a press conference earlier this year she maintained that her family, “just want to embrace and be given that opportunity to grieve and close this story and like any other South African, face the priorities that we are dealing with today. That’s what the call is about to government and the NPA in particular to say that it can’t be correct that the cases were handed over from the TRC as cases that needed to be prosecuted, which is not the route we wanted to take as families, I am sure if we had been given what we asked at the TRC, if we had the remains, then we wouldn’t be sitting here today. My father would have died not a painful, hurting man. My mother wouldn’t have gone through the pain of 32 years, searching for her child and not being able to know ultimately what happened to her.”

As Vusi Pikoli told me in an interview in 2014: “If the government decides, for whatever reason, that the slate must be wiped clean and we start afresh, then let the country be told. But don’t operate in this way because now there’s total lack of transparency about what is actually happening…How do you have reconciliation without the truth?…You can’t have full reconciliation without truth and justice.”

Hopefully the NPA will not disappoint both the Simelanes and the nation yet again. When the votes are counted this week Thembi Nkadimeng will probably retain her position as mayor of Polokwane but she is still some time from finding out what really happened to her sister.

Main Photograph: The family of Nokuthula Simelane, who was abducted in 1983 have been on a relentless quest to discover what happened to her. The TRC process and its aftermath appears to have obfuscated those facts and allowed the perpetrators to go free. In doing so it has left the Simelanes, and thousands of other families with little closure.

 

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