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Apply the law equally for past political crimes - Foundation for Equality for Law

Johan Botha says no member of ANC NEC has been prosecuted for crimes committed under that organ's command

OPEN LETTER TO THE MINISTER OF JUSTICE AND CORRECTIONAL SERVICES, MR. RONALD LAMOLA, BY THE FOUNDATION FOR EQUALITY FOR LAW

21 February 2020

Your recent statement that, as a result of state capture looting of the Treasury, the National Prosecuting Authority lacks the capacity to prosecute the persons responsible, is disingenuous to say the least. Millions of Rands are currently being wasted by the National Prosecuting Authority due to ineffective planning and politically motivated and selective prosecution of only certain persons for offenses related to conflict of the past.

The 2019 re-opened iinquest into the death of Ahmed Timol is a case in point and now we have the re-opened inquest into the death of Dr. Neil Aggett. In both cases, all the persons directly involved in the incidents have already died. There is no primary evidence available and consequently secondary and even anecdotal hearsay evidence is presented which cannot be admitted in any criminal case. Moreover, it is a one-sided process where the interests of persons who have died are not protected in any manner and therefore a pervasive system of justice.

The provisions of Article 9 of the Constitution which provide for equality before the law are, in essence, being disregarded by the National Prosecuting Authority

The following political leaders and members of the former government and security forces have already been prosecuted for crimes related to the conflict of the past:

General Magnus Malan, former Minister of Défense, General Jannie Geldenhuys, former head of the South African Defense Force and several other generals and members of the security forces in the Kwamakhutha case. They were all acquitted. More than R40 million was wasted on this case.

Dr. Wouter Basson was also charged and acquitted. More than R40 million was also wasted in this case.

Mr. Adriaan Vlok, former Minister of Law and Order. General Johan van der Merwe, former Commissioner of Police and three other former members of the security branch were prosecuted.

Col. Gideon Nieuwoudt and three other members of the security branch were prosecuted for the PEBCO-3 case.

Colonels Willem Coetzee and Anton Pretorius with Capt. Frik Mong are currently being prosecuted for allegedly murdering a member of Umkhonto weSizwe.

Joao Rodriques is currently being prosecuted for the murder of Ahmed Timol.

In stark contrast with these prosecutions, not a single member of the National Executive Committee of the ANC, to whom amnesty has been denied, has ever been prosecuted despite the fact that abundant evidence is available to prove that according to the principle of common purpose in our law, they can be prosecuted in the following cases:

On 20 May 1983, a powerful car bomb exploded in front of the Nedbank Square Building in Church Street, Pretoria, at approximately 4 p.m. (The building was known as the Nedbank Square Maritime House). A total of 19 people was killed, including 12 civilians and 7 members of the Defence Force. A total of 219 people was seriously injured or mutilated, including 217 civilians and 2 members of the Defence Force.

On 23 December 1985, targeting civilian Christmas shoppers, members of Umkhonto weSizwe (MK) placed an explosive device in a refuse bin at the Amanzimtoti shopping centre. 5 civilians were killed and 40 seriously injured and mutilated. Former President Jacob Zuma publicly admitted that these MK members acted under his authority.

On 14 June 1986, a car bomb exploded in front of the Magoos pub in the Parade Hotel in Durban. 3 Civilians were killed and 89 seriously injured and mutilated.

On20 May 1987, a limpet mine and car bomb exploded in front of the Johannesburg Magistrate's Court. 3 Policemen were killed and 15 civilians seriously injured and mutilated.

On 2 July 1988, a car bomb exploded in front of the Ellis Park Rugby Stadium in Johannesburg. Two civilians were killed and 37 were seriously injured and mutilated.

On 25 July 1993, defenceless churchgoers who included women and children, were attacked in the St. James church, Kenilworth, Cape Town with AK47 rifles and hand grenades and 11 killed in cold blood. Many were wounded. Mr. Letlapa Mphahlele, the former president of the PAC, who ordered the attack, was prosecuted and initially appeared in court on multiple charges of murder but the case was postponed and has since disappeared.

More than 90% of the victims of the terrorist acts mentioned above were defenceless civilians, including women and children. These acts were all, from a moral point of view, flagrant violations of the provisions of the Protocol to the Geneva Convention and as such a crime against humanity. Decisions by Amnesty Committees and statements made by members of Umkhonto WeSizwe during amnesty hearings are hereby attached to indicate the extent of the evidence available against members of the National Executive of the ANC who have been denied amnesty.

The Foundation for Equality for Law believes that selective, political populist prosecutions and the reopening of inquests fly in the face of the concluding paragraph of the Interim Constitution which is also the basis of the current Constitution and ignore the spirit of the negotiations which led to the Constitution.

Maintaining equality before the law as provided for in terms of Section 9 of the Constitution, is at the heart of any sound legal system and if disregarded, the whole system will rot.

With due regard

Johan Botha

CHAIRMAN : FOUNDATION FOR EQUALITY BEFORE THE LAW