Apartheid & Post-TRC Litigation FAQ

1. Is this case related to the 300 TRC cases referred to in the media?

Not as such, the 300 cases referred to by the media, are all criminal cases arising from the findings of the Truth & Reconciliation Commission (TRC). While certainly overdue, they have only now come under the spotlight following the Timol inquest and the failure of the NPA to prosecute. The Lewis cases referred to below are all civil cases brought to defend the TRC and its Report from further acts and omissions by the transgressors and perpetrators. Instead of covering the case, the media have chosen to obfuscate and deny involvement.

2. Why is Lewis suing the Legal Aid Board?

The Equality Court granted Lewis leave to sue the Legal Aid Board following lack of due process with regard to the correct manner in which Legal Aid is to be applied for in matters before the court. This action brought in terms of Promotion of Access to Administrative Justice Act (PAJA) follows a subsequent determination by LASA of ‘no reasonable prospects’ in a matter affecting the life of the TRC and its Final Report. LASA’s John van Onselen has stated that “to enable Legal Aid to prepare a substantive report it would be necessary to consider all the various pieces of legislation applicable, the findings of the report of the Truth & Reconciliation Commission together with any other relevant documents.” van Onselen then goes on to state ‘it would take a long time to read the report’ and therefore, it may be ignored. LASA legal executive Themile Mtata has then stated in his explanation of a further determination of no prospects, that ‘the matter has prescribed since the commission wound up its work some time ago.’

3. What is at stake in Lewis v Legal Aid SA (LASA)?

Two important constitutional issues revolve around this case. The first is the racist exclusion to the preamble to our Constitution, which results from AJ Martin agreeing with LASA that the TRC report may be ignored and/or the matter has prescribed and/or apartheid is no longer a crime against humanity. If we are no longer compelled to remember the injustices of the past, our constitutional rights and responsibilities make little sense, especially when stripped of the context in which this country was formed as a democratic South Africa.

The second important issue is AJ Martin’s strange determination that LASA falls within the ‘executive sphere of government’ and thus the High Court is effectively restrained by the separation of powers inherent to the Constitution, from interfering in the internal processes and the determinations made at LASA. This flies in the face of the Legal Aid Act which created LASA as a ‘national public entity’ in terms of the Public Finance Management Act which holds, that LASA is ‘reportable to parliament’ and falls under Schedule 3 ‘Other Public Entities” alongside the Accounting Standards Board and Boxing South Africa.

Aside from the blatant racism here, these determinations are neither lawful nor competent, since AJ Martin most certainly oversteps High Court authority by creating an exclusion to the Preamble, and then effectively rescheduling LASA within the same category as any ‘Constitutional entity’, rewriting instead of interpretting the very laws passed by our legislature.

4. What is at stake in the Equality Court matter?

This is a long-standing dispute involving Naspers/Media24 opposition to and failure to participate in the TRC where the company is named in Chapter 4 as one of the ‘perpetrators of gross violations of human rights under apartheid’. Under review is the dirty tricks campaign orchestrated by the company which has inter alia, sought to fabricate and alter the public record, while crushing the legacy of opposition to apartheid by struggle journalists, and  covering up the circumstances in which a group of Naspers journos approached the TRC in their private capacity and turned themselves from ‘apartheid collaborators’ into ‘conscientious journalists’.

The company and its subsidiaries are thus being sued in conjunction with the Minister of Justice due to the failure of the Minister’s TRC Unit to render any assistance in the matter, and thus the failure of the Minister to defend both the law and the TRC report before the courts. The TRC unit for example, has determined that since Naspers was a business it would not be willing to provide any support to the plaintiff in the matter. Failing to defend the TRC lowers the status of the TRC report, currently reduced to ‘simply a report’ and the commission, ‘merely a commission’ by Naspers/Media24 and LASA council.

5. What was Lewis 2010 labour dispute all about and is it relevant to the above proceedings?

While distantly related to the current proceedings, the only relevance here are the on record statements made by Naspers/Media24 council contra the TRC report. AJ Cheadle’s unlawful determination at para 98 that: ‘His evidence is unreliable because he is engaged in a campaign against the Respondent for its support of apartheid and its refusal to apologise for doing so before the Truth and Reconciliation Commission’ and thus the outcome of the Labour Court proceeding and other related issues, are not directly under review. For obvious reasons, if the status of the TRC and its report is upheld, the outcome will impact upon Lewis ability to bring a review application in the future on the basis of the unlawful denial of its findings.

6. Is there a roadmap for the Appeal petition?

In order to lodge an appeal of the decision in Lewis v LASA before the SCA and/or Concourt, Lewis will need to file documents and also provide the parties with transcripts of the proceedings, all of which costs money. The appeal petition is contingent upon Lewis having access to the courts either in Bloemfontein and Johannesburg. If you wish to donate to the appeal campaign, you may do so via Lewis PayPal account.

7. Who is the complainant?

The complainant is a former banned journalist, musician and anti-apartheid activist. Lewis has worked for various publications and organisations banned by the apartheid regime, including inter alia New Nation, Grassroots, South Press, COSAW and SACHED. In particular his membership of End Conscription Campaign, South West African People’s Organsation (SWAPO) solidarity group, People’s Culture Festival, Cultural Workers Congress, Earthlife Movement (founding member), Koeberg Alert, People’s Health Movement (steering committee) are relevant to these proceedings.


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