Forensic pathologists exhume the remains of political prisoners from a grave at Rebecca Street Cemetery on December 14, 2016 in Pretoria. The twelve members of the Azanian Peoples Liberation Army (APLA) were buried after they were hanged at the Pretoria Prison (Kgosi Mampuru II Prison) in 1964. The remains of 50 exiled victims of apartheid prosecution will be returned to South Africa from Zimbabwe and Zambia in the next 10 days. (Photo by Veli Nhlapo/Sowetan/Gallo Images/Getty Images)
The remains of 50 exiled victims of apartheid prosecution will be returned to South Africa from Zimbabwe and Zambia in the next 10 days, the head of the National Prosecuting Authority’s (NPA’s) missing persons task team said on Tuesday.
Madeleine Fullard was speaking to parliament’s portfolio committee on justice from Harare, where she said the team was exhuming the remains of 15 freedom fighters who died in exile.
A homecoming ceremony will be hosted on 27 September, and will mark the launch of the state’s programme, approved by cabinet some two years ago, to repatriate the remains of those who died abroad during the struggle.
The NPA said the remains of 188 people out of 477 who died in South Africa in unknown political circumstances from 1960 to 1994, have been located and handed over to their families.
Fullard referred to the Mamelodi 10 as an example of how long such cases can take to resolve.
“I can mention that we first recovered nine of the remains of the Mamelodi 10 in 2005 but we could not find the 10th one and we continued working on this case and we actually used a drone and aerial mapping to locate the last grave.”
The group of teenage activists were captured in 1986 after an operative of the ANC’s armed wing uMkhonto weSizwe, who worked as an informer for the state, pretended to recruit them for military training in Zambia. They were killed in a minibus rigged with explosives and buried in unmarked graves north of Pretoria.
Fullard said it was the first time drone photography was used in a human rights case in Africa to locate the last member of the group in 2019.
The Mamelodi 10 were Jeremiah Ntuli, Morris Kabini, Jeremiah Magagula, Steven Makena, Rooibaard Geldenhuys, Samuel Masilela, Thomas Phiri, Elliot Sathege, Phillip Sibanyoni and Abram Makolane.
Fullard said most of the remains found by the team were those of activists killed in clashes with the police but it has proven particularly difficult to trace those who disappeared in clandestine, covert abductions.
In these cases, the chances of location to recover remains depends on the availability of information from amnesty applications, as was the case with the Mamelodi 10 and the Pebco Three.
“We would never, for example, have located the burnt remains of the Pebco Three without that amnesty application, which revealed that they had been abducted and taken all the way to Cradock.”
Nobody applied for amnesty for the killing of Ramatha “Boythie” Klaaphe, who was presumed tortured and murdered in 1986.
“We dealt there with largely hearsay information from certain police officers and so on. So there have been a great deal of challenges in the cases where there were no amnesty applications and we have not really been successful,” Fullard said.
She spoke to the committee as part of briefing by the NPA to address sustained criticism about the lack of process in dealing with cases identified by the Truth and Reconciliation Commission for investigation and prosecution
Deputy national director of public prosecutions Rodney de Kock said a total of 126 cases were under investigation but the figure was a moving target because the caseload continued to grow.
Since September 2021, when the NPA established a dedicated unit to deal with TRC cases, 104 new investigations stemming from the work of the commission have been identified and pursued.
“This is an ongoing feature of the work that we do. As we are doing more work in relation to TRC investigations, new matters are being referred to us, either by family members or by the work that we are doing.
“So it is not a static number; this is an ever-growing number and correctly so. Because ultimately we want to deal with all of the injustices that arose from the past.”
Of the number of the cases under investigation 54% were at an advanced stage.
“I have been informed that would translate in the next quarter into at least 45 matters potentially being ready for decision,” he said.
De Kock said prosecutors and investigators were working to timelines to ensure cases could be enrolled, and were required to submit monthly reports to the NPA head office.
“Of course we cannot sometimes anticipate the delays that potential accused or suspects will have on matters, but to the extent possible prosecutors and investigators are working to timelines so that we can get matters finalised.”
De Kock said considerable progress has been made since the unit was established. It achieved its first conviction in November 2023 in KwaZulu-Natal, when Wesley Madonsela was sentenced to 10 years for killing teenage activist Siphilele Nxumalo in 1989.
He said other successes included the reopening of the inquest into the death of Ernst Dipali last year. An earlier finding was that the activist hanged himself in custody at the security police’s John Vorster Square branch.
Similarly, the Pietermaritzburg high court last year overturned the original finding of an inquest into the death of Hoosen Haffejee, which concluded that he hanged himself in police custody in Durban.
The Western Cape high court in October held in a reopened inquest that Imam Haron died of torture injuries in 1970, not as the result of falling down a flight of stairs.
In the Haffejee ruling, Judge Zaba Nkosi criticised the NPA for the delay in reopening this and other inquests and for leaving families in limbo “for years on end”.
“I am advised that there are many more families awaiting the inquests of their loved ones to be opened or reopened to get to the truth of how they died while in Security Branch detention.”
Evidence heard in the Haffejee inquest has led to the reopening of the investigation into the murder of anti-apartheid activist Rick Turner.
The inquest into the death of the Cradock Four was reopened earlier this year, after sustained pressure from the families of the victims who were killed in 1985. The matter was in the inquest court in June but has been postponed until next year because of outstanding legal fees for counsel representing former state security officials and police officers.
In the case of Griffiths Mxenge, the NPA was waiting for a judge to be appointed to preside over a re-opened inquest.
De Kock said the NPA was considering whether it could prosecute the suspects in the murder of Zama Sokhulu after an inquest was finalised.
“The matter has been referred to the NPA for a decision, so in this particular instance then an assessment will be made whether there is sufficient evidence to proceed with prosecution and whether or not the suspects are still alive to be charged.”
National director of public prosecutions Shamila Batohi stressed that the NPA unit relied on the Directorate for Priority Crimes Investigation (DPCI, the Hawks) to conduct investigations.
“We are working really, really hard with the DPCI to try to ensure that there are prosecutions and or inquests, as the case may be. It is a very hands-on approach that the teams adopt in these matters and they are bearing fruit,” she said. “We are almost micromanaging to get these cases going.”
Batohi acknowledged that families of victims were “losing confidence that they will ever receive justice” and that there was “a gap that is glaring” in pursuing TRC cases.
She said apart from a lack of accountability, the matters were also complicated by the amount of time that has passed and agreed with the committee that the NPA needed to communicate better with families.
“If matters are being postponed, if matters cannot proceed, we cannot hold an inquest, if we cannot have a prosecution, why is this the case, so that even if they may not agree, and they may still be hurt — that is putting it mildly — that there won’t be justice, at least they understand what the efforts have been,” Batohi said.