An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
It is tempting to crack jokes about the decision of the National Prosecuting Authority (NPA) to prosecute Adriaan Vlok for the attempted murder of Frank Chikane, who at present is Director General in the Presidency. (“Poor Vusi Pikoli will have to wear waterproof shoes for the foreseeable future.”)
But it is not really a laughing matter. Vlok was rightly a much despised figure when he was the Minister of Law and Order from 1986 to 1991. He seemed to try to imitate President PW Botha by swaggering and threatening the “terrorists”. Either because of direct orders by Vlok or Botha, or because of hints and winks, the police hit squad activity increased during his tenure.
Many people were killed by the state during this period.
Vlok actually applied for and received amnesty for ordering the blowing up of Cosatu House and the headquarters of the South African Council of Churches. It was therefore a bit of a surprised when he washed the feet of Frank Chikane as part of his request for forgiveness for ordering the poisoning of Chikane, because he did not apply for amnesty in this regard.
The deal struck between FW De Klerk’s National Party and the ANC was to create a Truth and Reconciliation Commission which would give amnesty to any person who committed criminal acts, provided that those acts were associated with a political objective and the applicant had made a full disclosure of all relevant facts.
Implicit in this compromise was the understanding that those perpetrators who failed to apply for amnesty or failed to make a full disclosure could be criminally prosecuted. Some high profile prosecutions – Eugene de Kock (convicted) and Wouter Basson (acquitted) – followed, but most people who did not apply for amnesty were not prosecuted.
One reason for this was that it is difficult to prosecute those – like Vlok, Magnus Malan or De Klerk – who may have given direct or indirect orders to underlings to torture or murder opponents of the apartheid state. Such illegal orders were never given directly but were given obliquely if at all. Often Ministers merely had to hint that steps had to be taken to deal with a person or a situation for underlings to revert to torture or murder.
Of course, Ministers knew their hints would result in criminal acts, but liked the fact that they could not be directly held responsible for those deeds. That is why the claims by Mr. FW de Klerk and his supporters that he never ordered people to be killed or tortured or never knew these things happened should be taken with a pinch of salt. Even us ordinary people who only read the Weekly Mail knew people were being tortured and killed. Perhaps De Klerk and others are not legally responsible, but morally, they have a lot to answer for.
It is in that context that the prosecution of Adriaan Vlok should be welcomed. He clearly did not make a full disclosure about his activities as Minister of Law and Order and even recently has shown a remarkable lack of knowledge about what happened in his department while he was Minister of Law and Order. In his telling, he was an ignorant bumbling fool who did not know half of what was going on in his Department.
Of course, it would be problematic if he was the only one prosecuted for apartheid era crimes. The NPA is constitutionally required to make decisions about who should be prosecuted without fear favour or prejudice. This means where sufficient evidence exists, the NPA should also prosecute others who committed crimes in the name of political ideologies during the nineteen eighties and early nineties.
Cynics might well argue that the prosecution of Vlok constitutes a clever attempt by the NPA to bolster its image with its critics, who feels the NPA is used to carry out a vendetta against Jacob Zuma and other ANC politicians. By charging apartheid era politicians, the NPA can appear to show that it really acts against everyone.
To silence such cynics, it its important that the NPA also prosecute other perpetrators who did not make full disclosures to the TRC. Only time will tell whether this will indeed happen.
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