Court reserves judgement in Cradock Four bid

The Pretoria High Court on Monday reserved judgement in an application for amendments to the prosecuting policy on apartheid-era crimes to be suspended.

Judge Francis Legodi did not indicate when he would give judgement in the matter.

The families of Matthew Goniwe, Sicelo Mhlauli, Sparrow Mkhonto, Fort Calata (known as the Cradock Four) and Umkhonto weSizwe (MK) operative Nokuthula Simelane brought the application.

They sought a court order for the amended prosecuting policy to be suspended pending the outcome of an application to have the amendments declared unconstitutional.

The families insisted the amendments afforded the perpetrators of apartheid crimes who either did not receive amnesty at the Truth and Reconciliation Commission, or did not apply for amnesty, another chance for plea bargaining with the state.

The Cradock Four were murdered by apartheid-era security forces in 1985. MK operative Nokuthula Simelane was kidnapped in the same era. Her family still do not know the whereabouts of her remains.

Gilbert Marcus SC, for the applicants, argued that the perpetrators of the Cradock Four murders had chosen to give the survivors of their victims “little more than lies and deceit”.

“More than 20 years after the atrocities that forever changed the lives of the applicants, not only are they denied justice and closure, but should a prosecution ever be contemplated, the policy amendments offer the perpetrators a further avenue to escape justice,” he said.

“We submit the betrayal of the constitutional compact is plain to see.”

The applicants contended that the policy amendments violated the rule of law.

Ishmael Semenya SC, for the National Directorate of Public Prosecutions (NDPP), said any stay of the policy amendments would effectively mean that the NDPP did not perform its lawful duties in terms of the Constitution and would unduly hamper the NDPP’s constitutional power.

He said the end the policy amendments sought to achieve was the prosecution of crime and not, as the applicants contended, to allow the NPA to conduct a “re-run” of the Truth and Reconciliation Commission amnesty process.

“The applicants do not furnish any factual basis why they contend that the NDPP will, in implementing the policy amendments, decline to prosecute perpetrators of acts of murder and enforced disappearances,” Semenya said.

“The NDPP has not declined to investigate any commission of acts of murder and enforced disappearances.”—Sapa


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