The 1961 Indemnity Act was passed by the apartheid government in the wake of the massacre and protected the police and government from having criminal charges or even civil claims brought against them in relation to what happened at Sharpeville.
Despite more than 30 years of democratic rule, that law remains on the statute books.
But now South African non-governmental organisation Lawyers for Human Rights, together with UK-based law firm Leigh Day, has filed a case at the High Court arguing that the law is unconstitutional under the new constitution that came into effect in 1994.
“Apart from the individual damages, what the community’s looking for is basically reparations to enable their healing. They feel as though Sharpeville is a forgotten community,” says Charne Tracey, one of the lawyers on the case.
Part of their court application includes getting a class action certified – if approved this would mean that for the first time dozens of victims and relatives of those killed could collectively sue the state. It could also possibly lead to criminal charges being brought against the alleged perpetrators, if any are still alive.
“Nothing has been done that assists with their healing and improvement of their quality of life, or remedy the long-term effects of what they’ve suffered,” Tracey says, adding that 70 people could be involved in the class action.
Constitutional law expert Prof Frans Viljoen believes having the old law repealed is important because it would help to “clean up” the legislation and “close a chapter on the past”.
“Although South Africa has a very transformative constitution… The principle of continuity of statehood still applies, which is why the case can be brought against the current state,” says Viljoen.
“So if there were laws in our statute book in 1994, the constitution explicitly says they remain in force until parliament repeals them, abolishes them or changes them,” he adds.
But he backs attempts to declare the Indemnity Act unconstitutional “to cleanse us of that past”.
