Prosecuting the past: The ghost is back

I MEET Madeleine Fullard, the head of the missing persons task team of the National Prosecuting Authority (NPA), at Die Kneipe, a German restaurant and bar for the “great unwashed" in Kensington, in the deep south of Johannesburg. Fullard is a hardcore and sincere comrade. The tension is etched on her face: “Piet, the prosecution of apartheid criminals who did not come clean at the Truth and Reconciliation Commission is on the cards again."

Her words are chilling; the ghost of prosecutions and justice relating to the past has risen once more. In the past, I was on occasion the middleman between the task team and some of the people now facing potential prosecution.

In the years that I was involved with Fullard's operation, it was abundantly clear that she could never make promises in exchange for information leading to vanished comrades' graves. But most families weren't really interested in prosecutions; they were merely looking for the stories of their children or the remains of their loved ones.

The first meeting between me and the members of Umkhonto we Sizwe who worked with Fullard was a life lesson in shared humanity. I later tried to convince several ANC members who were aware of the astonishing work of Fullard and her team that they should be nominated for a national order. The realisation of what the missing persons task team meant to so many families could not persuade former deputy director of prosecutions Willie Hofmeyr or then cabinet minister Derek Hanekom to help me. Both said they would come back to me, but never did.

But now I'm suddenly caught in the middle again; there were people who entrusted their lives to me, who wanted to help locate children who were tortured and buried in nameless graves. Some of the information was worth nothing, sometimes it was even more lies. Some of those involved were old and their memories were fading. Only occasionally was there value in such conversations. My disappointment is in my own unenviable position, but my thoughts on the values of justice make my return home to Melville later that evening a haze of which I remember only the complex emotions.

These old gunslingers of apartheid were invariably close to the end of their lives; many had already passed the gates of hell. For months, I don't speak to Fullard. I realise she's in an impossible situation. Prosecutions would make it nearly impossible for her to find the graves of her former comrades in the liberation struggle. The agents of apartheid would certainly not be willing to help if prosecutions were on the cards. But justice should never be a negotiable commodity.

Public discussions about the prosecution of the apartheid state's agents who did not apply for amnesty or were rejected flares up sporadically as a political issue; in the NPA it becomes a talking point from time to time. It is highly likely that the political pretence offers false hope to families and further traumatises them; neither will it necessarily result in justice being done.

I try to persuade a “comrade" to talk about the theoretical permutations for and against such prosecutions. Why did this never happen? How did it happen that the ANC and the government showed so little enthusiasm for such prosecutions? In retrospect, the likelihood of prosecutions appears to have disappeared shortly before the arrests in the poisoning case of Frank Chikane by the NPA's then-prosecutor, lawyer Anton Ackermann. Whether there was an official instruction by a politician or an official at Luthuli House is a matter of hearsay, but the truth remains that there was very little drive within the ANC to take the TRC's legacy to its fullest consequences.

Reference is sometimes made in the media to a list of 300 cases of people who did not apply for amnesty and should have been prosecuted, but no one knows who came up with this number or where the list is. Former TRC commissioner Yasmin Sooka and a number of non-government organisations have over the last decade quite rightly put a lot of pressure on the ANC and the NPA to prosecute apartheid operatives who did not apply for or qualify for amnesty from the TRC. Some people in the National Assembly have also called into question the NPA's commitment to prosecution.

Even Sooka hasn't been able to put an exhaustive list of names on the table. TRC researchers could probably scrape together a tentative list of 100 but this was never done officially. And there is no evidence that any more than about 30 families ever asked the NPA to pursue prosecution. The NPA will have to symbolically cherry-pick cases for the sake of political appearances, but the likelihood of justice has probably faded away by now.

A ruling by the Supreme Court of Appeal in Bloemfontein in 2021 confirmed that Vusi Pikoli, the former national director of public prosecutions, had made allegations against former president Thabo Mbeki: “Investigations into the TRC were stopped as a result of an executive decision." Mbeki's unconvincing response to Pikoli's claims reads: “During the years I was in government, we never interfered in the work of the NPA." If you ask me, that means: “The chief spoke by saying nothing at all."

For context: Mbeki suspended the effective Pikoli in an attempt to prevent the prosecution of national police commissioner Jackie Selebi, and Kgalema Motlanthe eventually fired Pikoli in 2007. Thus, there is enough circumstantial evidence to make Pikoli's innuendo about political interference in the NPA's work credible. But as things stand, there is no black and white on the issue.

A former member of the United Democratic Front explains it this way: Mbeki would probably have preferred that outstanding cases from the past be handled in ways that did not involve prosecution. That the ANC itself had to take responsibility for “human rights violations" before the TRC created an equivalence between apartheid and the liberation struggle that did not sit well with Mbeki.

Umkhonto and the ANC's soldiers were slow to adopt the victim narrative. How could a situation have arisen in which they had to apply for amnesty in the same way as apartheid's murderous gangs? They were soldiers in a liberation war, and eventually very few cadres would show up at the TRC to testify how they were detained and tortured. International human rights organisations, pushing the principle of prosecution and justice, created the two categories of “perpetrators" and “victims" but it was a nomenclature that misunderstood and misrepresented the liberation struggle.

In South African History Online, Jann Turner relates her search for the murderer of her father, Rick Turner. A search that until that point had only led to grief and astonishment. She met Dirk Coetzee, the former boss of Vlakplaas, in London. After this experience, she writes: “I [still] didn’t know who killed my dad, but after that meeting I cried. I cried because I was shocked to have met a chaotic, half-crazed human being — not a cold, calculating monster. I cried with horror at the realisation that we were connected, Dirk and I. We were all too intimately bound up by the violence that he had perpetrated and that my father had fallen victim to. South Africa had screwed us both up."

I was involved in meetings between apartheid's most effective enablers and families looking for children and other loved ones. I arranged the mediation between Eugene de Kock and Marcia Khoza. De Kock admitted to the TRC that he shot and killed Marcia's mother, Portia Shabangu, a member of the South African National Students Congress, in an ambush. Her astonishing words, “I totally forgive you", at their first meeting ripped my heart out of my chest. His words, “I am terribly sorry we have to meet under these circumstances", led to an hour-long conversation between them in my silent presence that I will remember forever. On the way out she said, “We sat so close to each other, we breathed the same air."

It's amazing how the relatives of victims sometimes seemed disappointed when they heard that their children were not killed by some of apartheid's most prominent and well-known perpetrators of violence, the state's angels of death. That their loved ones were sometimes just “collateral damage" was almost unbearable knowledge. How could a son, a soldier, someone so important in his mother's world, die so cruelly yet end up as a footnote in the TRC's final report?

But fiction and reality were often so intertwined that even those with their fingers on the triggers could no longer distinguish between the lie and the truth. Victims met perpetrators and walked away with unfathomable emotions. Turner's description of Vic McPherson is exactly how I remember the apartheid state's old Stratcom boss: “McPherson is a thin man with a whining voice and a shifty, crab-like gait. I’ve met him twice and each time the smell of alcohol on him hit me from several metres away.”

One day McPherson calls me; we meet in a bar somewhere in Pretoria. His clothes are dishevelled and his health eroded by an ailment of which he does not speak. He has a thick ring file in his slender hands. “Your autobiography?" I ask. “Well, finally the reality and the truth," he replies. In the days that followed, I read his account and inquired about it from acquaintances and contacts who were up to date with McPherson's history. McPherson's facts and the realities don't always make sense. I still know journalists today who worked for McPherson's Stratcom in the Afrikaans media. He mentioned some of those names in his ring file.

On a later occasion, I was at McPherson's house with government officials and some other obscure characters. The purpose of the meeting was, among other things, to answer questions about the assassination of Swedish prime minister Olof Palme. By this time, McPherson was already an inglorious “village idiot", a petite carcass in a wheelchair, but still insisted on projecting the aura of a cunning, all-knowing operator from the underworld. “If I say who killed Palme, my life is worth nothing, because the murderer lives here in Pretoria." There were other operators with a more credible view of reality in our midst, and among them there was consensus: “Vic is hallucinating."

At McPherson's funeral I sat next to Craig Williamson. In the context of the often surreal statements made at such an event, I must admit that Williamson is one of the most intelligent people I have met. He is said to have had smooth dealings with Palme in the 1970s and 1980s and recruited South Africa's famous spy Olivia Forsyth. Williamson's presence is impressive and as professional as I have ever encountered. Most participants in the liberation struggle with whom I have spoken consider him a terrifying and extremely complex character. In the mutual whispers between me and Williamson in the church where McPherson was “laid to rest", it was clear that he also believed that McPherson's stories and reality may only have shown coincidental similarities.

Most of apartheid's gunslingers are now quite old, often on the wrong side of 70 and some even in their 80s.  Fullard and her task team's search for the graves and remains of missing liberation fighters is made almost impossible by mortality and the passage of time. So many important people on both sides of the conflict have aged so much. And if those veterans do stand up to explain, there is only circumstantial evidence to help us distinguish between lies and truth.

♦ VWB ♦

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