Sharpeville survivors ask High Court to strike down 1961 Indemnity Act

Survivors of the Sharpeville massacre and relatives of those killed have filed a case in the High Court seeking to have the 1961 Indemnity Act declared unconstitutional, a move that would open the way for the first collective legal claim against the state over the shootings of 21 March 1960.

As BBC News Africa reported on 3 September, the case was announced on Thursday by Lawyers for Human Rights, working with the UK-based firm Leigh Day. The application asks the court to strike down the law passed by the apartheid government a year after the killings, which shielded police and officials from both criminal charges and civil claims arising from Sharpeville.

What the law did, and why it still matters

The Indemnity Act has remained on the statute book through more than three decades of democratic rule. Constitutional law expert Professor Frans Viljoen, of the University of Pretoria, explained the principle that keeps it there. The constitution provides that laws in force in 1994 remain in force until Parliament repeals, abolishes or amends them. The continuity of statehood means the case can be brought against the current government, not the apartheid one.

Viljoen supports the attempt to have the Act declared unconstitutional, saying it would help close a chapter on the past and clean up the statute book.

At least 69 people were shot dead when police opened fire on a crowd demonstrating against the pass laws. More than 200 were injured. Recent estimates by South African researchers have revised the death toll upwards to as many as 91. It is thought that more than 1 300 bullets were fired into the crowd.

No one has ever been prosecuted. The only legal action that followed was a failed attempt to charge the protesters with affray.

The survivors

Abraham Mofokeng was 20 years old when he joined the march. He is now 86. A bullet remains lodged in his spine and he walks with a limp from a gunshot wound to his leg. He told the BBC that protesters explained to police they no longer wanted the passes and were prepared to go to prison, and that the shooting began after a commotion.

Lazarus Magotsi, now 90, hid inside a store as the shooting started. He described seeing people on the ground, some trying to get up, and police continuing to fire. He also described men using machetes on those still moving.

The victims were demonstrating against the dompas, the passbook that restricted where black South Africans could live, work and move, and which could lead to beating or jail for those found without it or found in a whites-only area without permission.

The Human Rights Precinct in Sharpeville, the township south of Johannesburg where the shootings happened, holds 69 white pillars, one for each recorded life lost. Most of those killed are buried in a long row in the local cemetery, where one headstone marks the grave of a 12-year-old.

What the case asks for

Charne Tracey, one of the lawyers on the case, said the community is seeking reparations to enable healing, as well as individual damages, and that around 70 people could be involved. The application includes a request to certify a class action. If that is granted, it would be the first time dozens of victims and relatives could sue the state collectively. It could also open the possibility of criminal charges against alleged perpetrators who are still alive.

A separate question is what the state has already paid out. The justice department told the BBC that 560 people recognised by the Truth and Reconciliation Commission as victims of apartheid-era violence have received individual grants amounting to about $31m, roughly R560m at current rates. It said not all Sharpeville survivors and relatives had been identified, and encouraged those who have not come forward to do so.

The department said it had supported apartheid victims over the years and would continue to do so, and that it does not oppose survivors and families pursuing legal remedies.

The TRC gap

The Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu, granted amnesty to perpetrators who fully disclosed what they had done. Its most criticised feature was that it did not deliver jail time, and no police officer applied for amnesty for the Sharpeville shootings. That is the gap the High Court application now seeks to address, 66 years after the event and 32 years after the first democratic election.

Mofokeng told the BBC that a win would bring healing, not only for the survivors but for future generations.

What happens next

The High Court must first decide whether to certify the class action. If it does, the constitutional challenge to the Indemnity Act will proceed, and the state will answer the claim. No date has been set for the hearing. For the roughly 70 people named in the application, and for a community that has waited since 1960, the next step is a court date and a ruling on whether the law that stopped them can still stand.