Apartheid Massacre Indemnity Law Faces Court Challenge; Survivors Seek Criminal Accountabi

Sixty-six years after apartheid police opened fire on a crowd of peaceful protesters in Sharpeville, a legal challenge is targeting the indemnity law that has kept perpetrators criminally untouchable ever since.

The case, set to be announced Thursday, is being pursued by Lawyers for Human Rights, a South African non-governmental organisation, in partnership with UK-based law firm Leigh Day. At its core is a bid to have the 1961 Indemnity Act struck down as unconstitutional, and to secure class action certification that would allow dozens of survivors and relatives of the deceased to collectively sue the South African state for the first time.

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The financial stakes are real. The justice department has acknowledged that 560 Truth and Reconciliation Commission-recognised victims of apartheid-era violence received individual grants totalling approximately $31 million, though not all Sharpeville survivors and relatives were identified in that process. A successful class action would open a new and potentially far larger avenue for civil claims, and could also pave the way for criminal charges against alleged perpetrators still living.

The 1961 Indemnity Act was enacted by the apartheid government in the immediate aftermath of the March 21, 1960 massacre, which killed at least 69 people and injured more than 200. Recent research by South African scholars has revised the death toll upward to as many as 91. The law closed off all avenues for criminal charges or civil claims against those involved, and has remained on South Africa’s statute books through more than three decades of democratic rule.

That legal persistence is the crux of the constitutional argument. Prof Frans Viljoen, a constitutional law expert, explained that although South Africa adopted a transformative constitution in 1994, the principle of continuity of statehood means earlier laws remain in force until parliament acts. “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,” Viljoen said. He noted the importance of repealing the old law to “clean up” the legislation and “close a chapter on the past.”

Lawyer Charne Tracey, one of the attorneys on the case, was clear that the community’s ambitions extend beyond individual payouts. “The community’s looking for is basically reparations to enable their healing. They feel as though Sharpeville is a forgotten community,” Tracey said. Approximately 70 people are expected to be involved in the class action.

The Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu, had offered amnesty to perpetrators who fully disclosed their actions. No police officers applied for amnesty related to the Sharpeville shootings. The government told the BBC it had supported apartheid victims over the years and would continue to do so, and did not oppose survivors pursuing legal remedies.

Meanwhile, the human cost behind the legal filing is not abstract. Abraham Mofokeng, now 86, still carries a bullet lodged in his spine and walks with a limp from a gunshot wound to his leg sustained that day. He was among thousands who gathered to protest the pass laws, which forced Black South Africans to carry restrictive documents known as passbooks, or “dompas” in Afrikaans. Violations could result in beatings and imprisonment. “We weren’t seen as people,” Mofokeng told the BBC. “All you were good for was working. You couldn’t question them, you were supposed to just do as you’re told.”

Police opened fire on the crowd with rifles and machetes, with estimates suggesting more than 1,300 bullets were fired into the assembled protesters. Archive photographs document officers walking among corpses in the immediate aftermath.

Lazarus Magotsi, now 90, walks among the graves in the cemetery where most of those killed are buried, including a 12-year-old. “We heard gunshots and ran and hid inside a store, peeping to see what was happening outside,” Magotsi recalled. “People were lying on the ground. When we looked out again, we saw that some were trying to get up, but the police were just shooting at them.”

For Mofokeng, the case is ultimately about what a legal victory would be worth in human terms. “Apartheid is dead and buried. A win would bring complete healing, not just for us, but for future generations as well,” he said. “Considering how people died, many have not completely healed.”

Whether South Africa’s courts agree that a 66-year-old indemnity law has no place in a constitutional democracy, and what liability that judgment would unlock, is now the question the case will force the country to answer.