Former president Thabo Mbeki and former Justice minister Brigitte Mabandla, in their application to intervene in the R167 million in constitutional damages litigation by families of victims of apartheid-era atrocities, argued that it is in the interests of justice that they be allowed to do so.

The pair turned to the Gauteng High Court, Pretoria, on Monday, during which their counsel, Advocate Ngwako Maenetje SC, argued that it does not matter whether the damages case by the victims and families is not aimed at them. The outcome will still have an impact on them.

Maenetje told Judge Anthony Millar that the court, which ultimately has to decide on the damages issue, will have to make factual findings, which could negatively impact the reputations of Mbeki and Mabandla.

He said they need to put their version of events before the court, else the court will only have parts of the facts, which it will accept as the truth as there will be nothing before it to counter it.

The court was told that their intervention is vital to protect their reputations. Mbeki and Mabandla claimed that their rights may be violated by the court’s finding that they were involved in suppressing the investigation and prosecution of Truth and Reconciliation Commission (TRC) cases.

According to Mbeki and Mabandla, they are seeking to intervene because the relief sought by the families and the consequent claim for constitutional damages is founded on serious allegations of unconstitutional, unlawful, and criminal conduct by them during their respective tenures.

Mbeki and Mabandla told the court they do not seek to intervene merely to set the record straight or out of concern that the court’s findings may affect their reputations.

“Rather, we seek leave to intervene because the relief sought by the Calata applicants is expressly predicated on allegations of unlawful conduct purportedly committed by us (and other state officials) during our tenure; allegations which we intend to dispute,” they explained.

Maenetje said they should be allowed to defend themselves, to which Judge Millar questioned whether it was not possible for them to simply put the facts they want before the court, in an affidavit issued on behalf of the government.

But Maenetje said this is not possible, as there will be a conflict of interest.

“It is in the interest of justice that the court does not make a finding on part of the facts. All relevant information must be placed before it,” Maenetje argued.

The Foundation for Human Rights and the applicants, meanwhile, argued that there is no case for intervention.

Advocate Matthew Chaskalson SC told the court that the law is clear on this. He pointed out that Mbeki and Mabandla turned to the court in their individual capacities, as they no longer hold their previous offices.

“They are not affected by an order the court will issue in the constitutional damages case. They cannot merely intervene to dispute allegations made against them,” Chaskalson said.

He added that if the court allowed them to intervene, it would cause chaos, as everyone who thinks they may be implicated in litigation would then try to intervene in that case.

Chaskalson said if Mbeki wanted to set the record straight, there are other remedies open to him, such as the law of defamation. “But you cannot just jump into a dispute that is not your dispute,” he argued.

Judgment reserved.

zelda.venter@inl.co.za

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