A discussion on TRC Matters and the long road to accountability

The conversation explores the historical significance of these matters, the legal process of reopening inquests decades later, and the ongoing pursuit of justice. In support of the Foundation for Human Rights' programme, the Unfinished Business of the Truth and Reconciliation Commission (TRC), CDH represents families and victims still seeking accountability nearly 30 years after the TRC. Tune in to hear how justice, even when delayed, can still be pursued with purpose.

Click here to listen to the podcast.

Additionally, you may click here to access the Foundation for Human Rights' website for the constitutional case referenced in the podcast. Link - Constitutional Damages Case – The Truth and Reconciliation Commission  

Transcript

Alysa Bunting: Welcome to the CDH Conversations podcast. I'm Alysa Bunting, a Candidate Attorney in the Pro Pono & Human Rights department at the CDH Johannesburg office.

After apartheid ended, South Africa established the Truth and Reconciliation Commission to investigate politically motivated crimes, facilitate truth telling and promote national healing.

While it played a pivotal role in shaping our collective memory and exposing some of the horrors of apartheid, it was widely criticised for failing to hold key perpetrators accountable, individualising systemic violence, and overlooking the broader structures of racial injustice. Nearly 30 years later, many families still seek answers and justice in cases where amnesty was denied or the truth was never fully revealed.

Today's episode focuses on exactly that. We'll be discussing the TRC matters currently being handled by Team Fletcher in our Dispute Resolution department, including the reopened inquest into the Cradock Four and the Highgate Hotel Massacre. For this discussion, I'm joined by Paige Winfield, a Senior Associate in our Dispute Resolution department.

Thank you so much for taking the time to chat with me. To kickstart our conversation, can you give us a rundown of who you are and a bit more about your role in these inquests?

Paige Winfield: Thanks so much for having me. As you mentioned, my name is Paige Winfield and I am a Senior Associate in the Dispute Resolution department here at CDH.

So my role in the inquests has been a changing one. I first became involved in 2021 when I was a Candidate Attorney and I have had the privilege and at times the frustration of watching these matters progress to a point where we are finally proceeding to an inquest. To give you a bit more background, CDH was approached in 2019 by the Foundation for Human Rights to assist with their project, which was entitled the Unfinished Business of the TRC.

The FHR has provided support to the survivors and families of victims of apartheid era crimes, and CDH has been allocated, mainly the crimes that took place in the Eastern Cape region, such as the Cradock Four, the PEBCO Three, and the Highgate Massacre, and we are assisting those families and victims to get the matters to inquest or alternatively to prosecution.

Alysa Bunting: Thanks, Paige. From my understanding, the TRC hearings were held between 1996 and 1998. So could you maybe tell us why these cases are being reopened now? I mean, so many years later.

Paige Winfield: That is an interesting question. There are many allegations and theories around political interference from some of the highest levels of our governments that try to hinder the prosecution of cases stemming from the TRC.

That political interference is actually the subject of its own litigation at the moment, and the families and victims of those TRC referred cases are seeking constitutional damages as a result of the delays because of this alleged political interference. Webber Wentzel is running that litigation at the moment, but for anyone that is interested, the papers are available on the Foundation for Human Rights website and they're quite comprehensive and like I said, very interesting for anybody who wants to have a look at the background to that.

Alysa Bunting: For the listeners who might not be familiar, could you maybe take us through the Cradock Four and the Highgate Hotel Massacre and give us a bit of background about what those cases are about? So

Paige Winfield: So the murders of the Cradock four involved the abduction and murder of four anti Apartheid activists from Cradock, Matthew Goniwe, Fort Calata, Sparrow Mkhonto, and Sicelo Mhlauli  and that took place by Security Forces on the 27th of June, 1985. The Cradock Four were abducted, they were assaulted, murdered, and their bodies were burned by the security branch of the erstwhile South African Police, [00:04:00] the Highgate Massacre involved the mass shooting and murders of Stanley Hacking, Douglas William Gates, Royce Michael Wheeler, Deon Wayne Harris, and Deric John Whitfield on the 1st of May, 1993 in a bar in East London. That mass shooting also left several others very seriously injured, and the shooting involved two masked gunmen who opened fire into a crowded bar with AK47s. They also set off tear gas canisters and through in a grenade.

Alysa Bunting: That is absolutely horrific, but also very incredibly important work. But more from a legal perspective, what makes these inquests so significant in the broader context of post apartheid justice.

Paige Winfield: Just to give you some background on what an inquest is, it is typically held under South African law when a person dies under circumstances that are sudden, unexplained, or appear to be due to unnatural causes, the process is governed by the inquests Act 58 of 1959. Usually a magistrate would hold an inquest to determine the, you know, sort of a variety of things, the identity of the deceased, the cause of death, and whether any person can be held criminally liable. In our cases though, given the historical significance, these inquests are being held in a high court.

So I would say, why they are so significant is because these deaths were labelled as unexplained. But for example, in Cradock Four, we know that there were six high up security branch members who confessed to having been on the ground during these murders. And in my view, a prosecution should have been pursued by the NPA. In Highgate, it's different no one ever came forward to confess, you know, responsibility for these crimes. And so the need for an inquest is obvious there. In my view, these inquests represent one of the few remaining avenues for accountability in cases where the TRC process didn't result in amnesty, but it also didn't lead to prosecution.

So an inquest is also an opportunity for closure for the families and the victims of these crimes. It can help reframe the narrative from individual wrongdoing to systemic responsibility, particularly in light of the delay in launching these inquests. These inquests allow victims and their families to testify to have their voices heard, and to challenge the version of events presented during the Apartheid era investigations.

Also to challenge the sometimes purposefully vague amnesty applications that were submitted. So it's quite a complex legal process, but I think that's what makes it quite important in post Apartheid South Africa.

Alysa Bunting: That's a very powerful reflection, especially in the context of systemic responsibility and kind of trying to link our apartheid past with what's happening in South Africa today.

So especially given how the TRC has been celebrated globally for helping South Africa to transition peacefully to democracy, but as we know, many of the deepest structural injustices of apartheid were left unaddressed. So in that light, these inquests feel incredibly meaningful, not just as a legal mechanism, but also as a rare second chance, as you mentioned, for the families to recover the truth and recentre the voices of those who were sidelined.

So can you tell us about the progress of these matters and where they stand now, and also what can we expect going forward?

Paige Winfield: So it's been difficult getting these matters to a point whereby they can proceed to inquest. But on Cradock Four, it had previously been postponed a few times, but the inquest was actually underway for the first time this month, albeit it was on a reduced scale and the implicated previous security branch members couldn't really resolve their legal funding issues, so they didn't testify, but the families of the victims gave their testimony and an inspection in loco took place of the sites of the murders, as well as the memorial that's been erected for the Cradock Four in Cradock.

So albeit the inquest started on a limited scale, it was a monumental moment that the families got to taste fire.

The Highgate inquest also proceeded this year. It started early in January. Um, that inquest has been part heard with the next settings taking place in August and September this year. So we've started the process of both of these inquests, but they aren't finished just yet.

Alysa Bunting: So clearly South Africa's journey to reconciliation has been ongoing, difficult and complex, but even though the TRC was premised on the idea that telling the truth would lead to national healing, the reality was that for many families, the truth did come without justice. Do you think that these inquests have the power to finally close that gap, or is there still a danger of somehow repeating the same cycle where truth is acknowledged, but no real consequences followed?

Paige Winfield: From my own experience, what I have learned is that although justice is a universal concept, it takes on an individual meaning for every victim, for every family member, and for every person affected by a crime in our country, be it a politically motivated crime or not. However, the secrecy of the Apartheid state caused deep wounds to our society, and I think that knowing the truth is the first step to any form of healing or working towards national justice.

The real tragedy though, is that. Although these inquests may make findings that certain individuals should be held accountable, it's probably already too late as most of the perpetrators, and in some instances, even the families of the victims have already died without ever seeing justice or real consequences.

Alysa Bunting: I'm sure many witnesses of these atrocities have also died since then. But in general, how have the families responded to the inquest? Do you feel that these proceedings are offering them some sense of justice or closure?

Paige Winfield: Absolutely. So you raise a very important point that, yeah, a lot of the evidence of crimes that took place 30, 40 years ago, witnesses, forensic reports, video imaging of the scenes at the time, a lot of that has been lost and that is a contributing factor to how justice will be served in years inquests.

But my sense on the inquest. For the families and the victims is that it has been a deeply healing process. The victims and the families of victims of these apartheid era crimes are given a chance to tell these stories and to receive some vindication and acknowledgement by a court of law. It's incredibly difficult to relive the most painful moments of your life in a witness box, but I think that there's hope and healing in being able to have someone listen to your pain and to have a court maker finding that somebody was responsible.

Alysa Bunting: Before we wrap up, what would you say are the broader lessons that we can learn from these inquests, especially in light of the TRC's unfinished work?

Paige Winfield: I think that we need to be careful as a society about what we assume is. The right thing to do for healing and justice.

One of my favorite books is called Half the Sky: Turning Oppression into Opportunity for Women Worldwide, by Sheryl WuDunn and Nicholas Kristof. And for me that book serves as a powerful reminder that justice and healing are not always interconnected. Sometimes being denied justice means that you need to take healing into your own hands. And I think we've seen this with the delay of justice being served to the victims of these apartheid era crimes.

A powerful example that I have seen is the victims of the Highgate Massacre. They were left disabled and wounded for years, and they were told to blame APLA, which was the armed wing of the PAC. But after they were given a chance to engage with the former APLA Commander Letlapa Mphahlele, and they heard his story, Karl Webber and Neville Beling who were victims of the Highgate Massacre were actually compelled to join the PAC. It's a wonderful story of reconciliation and I would urge anyone who's intrigued by this to do some reading into the story of Letlapa Mphahlele and particularly his relationship with Ferre. Ferre was the mother of a 23-year-old woman who was murdered in a Cape Town Tavern in an attack that was authorised by Mr. Mphahlele and they've actually developed a beautiful friendship over the years, and they go around the world telling their stories of forgiveness and justice in South Africa.

Alysa Bunting: That's a really powerful note to end on, although this remains an important ongoing conversation, and I think these inquests are just an important way to help South Africa develop into a more inclusive and unified nation with race no longer being a dividing factor and these cases remind us that justice delayed is not always justice denied, especially when there are people that are willing to fight for it. So thank you to everybody who tuned into our episode of the Justice and Public Interest Podcast. Until next time, take care and keep asking the hard questions.