Lize-Mari Doubell
Webber Wentzel, Cape Town
lize-mari.doubell@webberwentzel.com

Jos Venter
Webber Wentzel, Cape Town
jos.venter@webberwentzel.com

Nkosinathi Thema
Webber Wentzel, Johannesburg
nkosinathi.thema@webberwentzel.com

Post-apartheid South Africa and the establishment of the Truth and Reconciliation Commission

In 2024, South Africa celebrated 30 years of constitutional democracy and freedom from the oppression of the violent and racist apartheid state. The multi-party and multilateral negotiations between 1990 and 1993, and the country’s first democratic elections in 1994, were humanitarian triumphs that promised peace, social justice, equality, human dignity and the protection of fundamental freedoms for all under a new constitutional and developmental state.

The end of apartheid was achieved owing to the sacrifices of countless anti-apartheid activists and countless ordinary civilians. Tales of suffering, loss of life and gross human rights violations needed to be unearthed and shared to promote healing, national unity and reconciliation in the democratic South Africa. Shortly after the end of apartheid, the Truth and Reconciliation Commission (TRC) was established under the Promotion of National Unity and Reconciliation Act (the 'TRC Act’) to seek out the truth of apartheid-era human rights violations – many of which had been hidden and buried for years.

The work of the TRC entailed investigations into human rights violations. The TRC Act also provided scope for the consideration of amnesty applications from perpetrators, under the condition that they disclosed fully all relevant facts and the truth of their politically motivated crimes. Perpetrators who were refused amnesty, or who did not apply for amnesty, were meant to be subjected to the criminal justice system.

The TRC received 7,112 amnesty applications, of which 5,034 were rejected for not meeting the requirements prescribed under the TRC Act. Only 849 amnesty applications were granted by the TRC’s Amnesty Committee. In 2003, the Amnesty Committee referred approximately 300 cases to South Africa’s National Prosecuting Authority (NPA) for investigation and prosecution (‘post-TRC cases’). However, 30 years post-apartheid, most of these cases have not been prosecuted by the NPA. The result of the lethargy visited upon the post-TRC cases has been a great sense of injustice and indignation experienced by families of victims and survivors of apartheid-era gross human rights violations.

Constitutional damages litigation

Over the years, pro bono legal teams, such as the one at Webber Wentzel, have worked tirelessly to assist survivors and families of victims of apartheid-era gross human rights violations to pursue justice and closure. These pro bono teams have assisted in the investigation of some apartheid-era gross human rights violations and have helped re-open some of the inquests into suspicious deaths of political activists. Webber Wentzel, and organisations such as the Foundation for Human Rights, have worked with survivors and families of victims and have documented their frustration at the lack of progress in their cases.

On 17 January 2025, Webber Wentzel’s pro bono department, representing 25 survivors and families of victims of apartheid-era gross human rights violations, instituted legal proceedings against the South African government, the president, the NPA, the police and the Justice Ministry over the failure to adequately investigate and prosecute apartheid crimes.

The applicants are claiming that high level government functionaries and officials, including former state presidents and ministers, deliberately interfered in the work of the NPA, and thereby hindered its work to investigate and prosecute apartheid-era gross human rights violations. The decades of delay have seen many perpetrators die – taking with them the truth of their crimes. The NPA’s failure to uphold the recommendations of the TRC to boldly prosecute apartheid-era gross human rights violations is a failure towards the victims and survivors who sacrificed their lives for South Africa’s democratic dispensation.

What are the survivors and families seeking?

The court application is a historic step in which the applicants claim constitutional damages and the appointment of an independent judicial commission of inquiry to investigate the political interference complained of constitutional damages are awarded in cases where it is found that there have been grievous, ongoing infringements of constitutional rights by the state. It is a monetary compensation award which is aimed at vindicating constitutional rights and deterring future violations by the state.

The applicants act not only for themselves, but also in the public interest on behalf of all survivors and victims’ families of apartheid-era gross human rights violations who have not received justice.

In addition to vindicating constitutional rights, it is intended that the constitutional damages will be used to, among other things, enable commemoration, memorialisation and public education on TRC cases through events, publications and documentaries, among others. The constitutional damages are to be held independently in trust.

Conclusion

The application for constitutional damages and the appointment of a judicial commission of inquiry is a landmark and unprecedented step which highlights the complex narrative of South Africa in the post-apartheid era. The very fact that such a case is possible also speaks to South Africa’s strict observance of the rule of law.

The Webber Wentzel pro bono team is humbled by its small contribution in facilitating the restoration of justice in South Africa – especially to survivors and families of victims who have been denied justice and closure for many decades.^[1]