By Novell Zwangendaba
Two surviving relatives of apartheid victims have filed an application to intervene in the Constitutional Court case of The Citizen v. McBride as amici curiae. The Supreme Court of Appeal (SCA) in its ruling against the Citizen newspaper, had earlier held that the granting of amnesty by the Truth and Reconciliation Commission (TRC) removes the conviction “for all purposes” so that anyone who describes such acts as ‘murder’ and any statements referring to an amnesty applicant as a ‘murderer’ would now be considered false and a ground for defamation.
The amicus applicants are Joyce Sibanyoni Mbizana and Mbasa Mxenge. Ms. Mbizana is the sister of Justice Mbizana who was abducted in 1987 by members of the Northern Transvaal Security Branch, tortured and murdered. In 2005, the NPA recovered a black bag of bone fragments. These were the remains of the bodies of the ‘Mamelodi Four’ who had all been underground operatives in and around Mamelodi township, Pretoria / Tshwane. After being killed one by one in front of each other alongside the Pienaars River on the property of a police dog unit, the four bodies were tied together, rigged with explosives and repeatedly detonated. Eight men confessed to participating in Justice’s death and were granted amnesty by the TRC for the “Abduction, Assault and Murder of Justice Mandla Mbizana” in 2003.
Mr. Mbasa Mxenge is the eldest son of the late Griffiths and Victoria Mxenge, who were both human rights lawyers in Durban and who were murdered in separate incidents in the 1980s. In 1981 a hit squad was assembled from the South African Police Force for the specific purpose of killing Griffiths Mxenge. When Griffiths Mxenge’s body was found, it had more than 45 stab wounds. Three members of the South African Police force were subsequently convicted for Mxenge’s murder. Following a full confession and testimony to the TRC, all three men were granted amnesty for the murder of Griffiths Mxenge in 2001.
Joyce Sibanyoni Mbizana and Mbasa Mxenge believe that the SCA interpretation of the implications of being a recipient of amnesty is contrary to the spirit and intent of the TRC Act and will limit their ability to speak freely about the murders of their loved ones. Both wish to protect their rights to refer to the killers of their loved ones as murderers. If the decision of the SCA stands they may face an untenable prospect of being sued for defamation, should they speak or publish the full truth by referring to heir loved ones’ killers as murderers. They will tell the Court that no law may render the truth as false for purposes of public debate and discourse. As amici curiae, they argue that the freedom to speak the truth about the events of the past, should not be suppressed. They hope by their action to preserve the legacy of the negotiated transition, which gave birth to South Africa’s new constitutional order as well as the TRC and its amnesty process that sought to bring the truth to light.
In her application to join the proceedings as an amicus Ms. Mbizana states, “Until the decision of the Supreme Court of Appeal in this matter, I enjoyed a right to speak freely about the crimes perpetrated against my brother and in particular I enjoyed and asserted a right to refer to the killers of my brother as murderers. If the decision of the SCA stands I may face the sanction of a defamation suit should I speak or publish the full truth by referring to my brother’s killers as murderers.”
As amici, Ms. Mbizana and Mr. Mxenge will be allowed to raise issues with the Court through written and oral submissions. The Constitutional Court is scheduled to hear the matter of The Citizen (1978) (Pty) Ltd and Others v McBride (CCT23/10) on 30 September 2010. Ms. Mbizana and Mr. Mxenge’s efforts to bring these issues of victims’ rights to the attention of the Constitutional Court affirms that the TRC Act must be interpreted in a way which protects South African society’s right to know and express the truth. Any attempt to limit this right by removing terms such as ‘murder’ from discussions of the past will result in a falsification of history, undercut the purpose and intent of the Truth and Reconciliation Commission, and infringe on the “truth as justice” which was offered to victims of the apartheid struggle in exchange for removing criminal and civil liability from perpetrators. Ms. Mbizana and Mr. Mxenge’ are supported by an alliance of South African civil society organizations comprised of Khulumani Support Group; International Center for Transitional Justice; Centre for the Study of Violence and Reconciliation; South African History Archives; Human Rights Media Centre; and the Institute for Justice and Reconciliation.