President Cyril Ramaphosa urged the Gauteng High Court, Pretoria on Wednesday to stay the R167 million constitutional damages case brought by families of victims and survivors of apartheid-era atrocities until the conclusion of the judicial commission of inquiry, so that all the facts are on the table.

Ramaphosa has earlier signed a proclamation for the establishment of a judicial commission of inquiry to determine whether attempts were made to prevent the investigation and prosecution of apartheid-era crimes.

Advocate Tim Bruinders SC, arguing on behalf of Ramaphosa and the government, said it is vital that all the facts first be established before the constitutional damages case is served before court.

He said the commission will shed more light on why, and to what extent and by whom, efforts or attempts were made to influence or pressure the South African Police Service or the National Prosecuting Authority (NPA) to stop investigating or prosecuting TRC cases.

According to Bruinders, it is at this stage impossible for Ramaphosa and the government to issue an affidavit in the constitutional damages case if the facts are not clear. “In fact, we do not know at this stage what the true facts are,” he said.

Judge Nicolene Janse van Nieuwenhuizen questioned whether it is not the prerogative of the applicants (the survivors and families) to proceed with their constitutional damages case as they deem fit.

Bruinders responded that the facts must first become clear – something which a commission can establish by calling witnesses – before a court could decide on damages.

“These are families who have the sympathy of the government. They don’t have closure. This is a concern for any government, but the facts must still be explored,” he said.

Bruinders added that the government wanted the truth as to why these cases were not investigated and prosecuted. But it first needed the facts.

Judge Janse van Nieuwenhuizen also questioned whether it was not possible for the court hearing the constitutional damages claim to deal with the cases of each of the 25 families and to establish the facts then.

But Bruinders said as witnesses usually do not testify in motion court proceedings, such as this, the commission of inquiry is in a better position to establish the facts, as it has the tools to investigate the issues.

Advocate Matthew Chaskalson SC, for the families, implored the judge not to stay the constitutional damages case. He said the families have been waiting for between 30 and 50 years for justice.

“They are getting older, many have meanwhile died, and those who are still surviving want to see justice done and get closure while they are still here. They are entitled to their day in court after decades of waiting.”

Chaskalson added that the commission of inquiry can go on for months before it makes any recommendations. He pointed out that the commission can only make recommendations, which are not binding on the president.

Chaskalson said the issue will in any event have to serve before court, as the president cannot simply dip into public funds and pay compensation to the victims and families. This is a matter for the court to determine and for it to then issue an order.

He accused the president of not wanting to choose where he stands in this matter.

“He does not want to go ahead in court because it’s politically awkward for him. Therefore he wants the inquiry first,” Chaskalson said.

In asking that the case not be delayed, Chaskalson said the applicants and their legal teams are confident that they have a good case in the constitutional damages matter.

Judgment is reserved.

zelda.venter@inl.co.za

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