Twenty-five survivors and the families of victims of apartheid-era crimes, along with the Foundation for Human Rights (FHR), have expressed support for the establishment of the new judicial commission of inquiry, however, they are unhappy that the commission will not be able to enforce any recommendations.

Last month, President Cyril Ramaphosa 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, relating to the investigation and prosecution of Truth and Reconciliation Commission (TRC) cases.

The families took government to court over the matter, seeking R167-million in constitutional damages for the government’s “gross failure” to adequately investigate and prosecute apartheid-era political crimes following the TRC.

The new commission of inquiry will be chaired by retired Constitutional Court Judge Sisi Khampepe, assisted by retired Northern Cape Judge President Frans Diale Kgomo and Advocate Andrea Gabriel.

The FHR pointed out that the commission of inquiry was purely a fact-finding body and had no power to determine rights and remedies.

“…it can only make a recommendation to the President, who is both a respondent in the litigation and a key party to the commission itself. This creates a clear conflict of interest, as he becomes both a player and a referee in the proceedings,” it said.

It further highlighted that the President was not bound to act on any recommendation and that even if he accepted a recommendation to pay constitutional damages, the commission’s recommendation were not an enforceable court, arbitration or mediation order.

“Any payment would require the appropriation of public funds through the placing of a Bill before Parliament. The legislative process could take years,” it argued.

However, the foundation welcomed the establishment of the inquiry, acknowledging that it was a long overdue step toward uncovering the truth and ensuring accountability.

The FHR committed its assistance in whatever way possible to execute the important mandate.

The Presidency has applied to the court for a stay of the litigation to the case brought against it by the families, pending the outcome of the commission of inquiry, but the FHR said it would oppose it and it intended to proceed with the case.

The stay application will be heard on August 6, separately, while the court will hear an intervention application by former President Thabo Mbeki and former Justice Minister Brigitte Mabandla on July 28.

The families and the FHR have already filed their opposition to this application and will contest it in court.