Simelane Case Illustrates Failure of South Africa to Pursue Accountability for Apartheid Crimes

The AfricaPaper | New York

New York, USA – In 1983, 23-year-old South African university grad and anti-apartheid activist Nokuthula Simelane was forcibly abducted, tortured and disappeared by members of the Security Branch of the South African police. Her body has never been found. Thirty-two years later, her family continues to fight for justice and to bring closure to her case. Last week, Simelane’s sister Thembi Nkadimeng filed an application calling on the National Director of Public Prosecutions and the Minister of Justice to refer the case to a formal inquest before the Pretoria High Court.

Waiting for Justice

The Simelane case has enormous significance for hundreds of South African families who still wait for justice in the murders of their loved ones–particularly those whose cases were recommended for prosecution by the Truth and Reconciliation Commission.

In this podcast, ICTJ Director of Communications Refik Hodzic speaks with Senior Program Advisor Howard Varney, who also works with the Southern Africa Litigation Centre and is one of the lawyers assisting the Simelane family with their case.

In the conversation with Hodzic, Varney explains that the Simelane case compels South African authorities to face up to their responsibilities following the amnesty provisions that formed a part of the country’s ground-breaking transitional justice process. While many of those who came forward during the Truth and Reconciliation Commission (TRC) to speak their truth were given amnesty, those who did not apply or were denied amnesty were meant to be held accountable for their crimes.

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Unfortunately, South African authorities have not pursued their obligations to prosecute those who were not granted amnesty. “In this case, those obligations are both legal and moral. The obligations must in fact be met, because a failure to do so not only disrespects the legacy of South Africa’s transition, but it also deeply undermines the human dignity of the families of these victims,”says Varney.

Cases Not Pursued

The Simelane case, however, is not an isolated case. Upon its closing, the TRC recommended investigations and possible prosecutions in up to 400 cases, and turned over the files on more than 500 missing persons. According to Varney, the majority of these cases have not been pursued–and not for lack of evidence. Many have speculated that the possibility of political interference is to blame.

“It is by no means an accident that the TRC cases have not seen the light of day,” says Varney. In the recent past, the government took the position that the cases should not be pursued, and placed obstacles in the paths of the National Director and the prosecutors. No cases have been taken since September of 2007.

Judicial Inquest

Meanwhile, the Simelane family is pushing for a judicial inquest before the High Court so that their lawyers will be able to subpoena and cross-examine the perpetrators as a means to discovering the truth. Depending on the outcome, the Director of Public Prosecutions may then decide whether or not to prosecute those the court finds responsible. The family also seeks a declaration of their rights under the South African constitution, which upholds the right to human dignity, equality and the rule of law.

The AfricaPaper: This piece is published with help from the International Center for Transitional Justice (ICTJ) in New York.

PHOTO: Statue of anti-apartheid activist Nokuthula Simelane, who was tortured and disappeared in 1983 by Security Police, in her home town of Bethal, South Africa. (South Africa House of Memory)