Sharpeville massacre survivors seek to overturn apartheid-era indemnity law

Abraham Mofokeng still carries the wounds of the bloody suppression of a protest in South Africa 66 years ago. In what became known as the Sharpeville massacre, police infamously opened fire on thousands of peaceful demonstrators.

A bullet is still lodged in Mofokeng's spine, and he has a gentle limp from a gunshot to the leg.

"We weren't seen as people," the 86-year-old tells the BBC as he explains the reasons he joined the demonstration on 21 March 1960 against the repressive laws of the white-minority government.

"All you were good for was working. You couldn't question them, you were supposed to just do as you're told."

The massacre at Sharpeville, which he survived, exposed to the world the violence of the racist apartheid system - yet thanks to an indemnity law passed a year after the killings, none of the perpetrators were ever prosecuted.

Mofokeng is now part of a legal case set to be announced on Thursday that will seek to overturn this law.

At least 69 protesters were shot dead by police on that day in 1960, becoming a pivotal event in the history of the anti-apartheid movement.

Though Sharpeville may be a place name rich in historical resonance, it scarcely looks like a site that symbolises the struggle: the township is slowly crumbling.

The once tarred roads of this area south of Johannesburg are returning to dirt. Many of the houses are still the small, brown-faced brick homes built under the apartheid-era government. The earth is dry and barren - heaps of rubbish are piling up throughout the neighbourhood.

While the legalised system of racism was buried in 1994 when the country held its first democratic election and elected Nelson Mandela as president, its scars remain.

There have been attempts at redress - not least through the Truth and Reconciliation Commission (TRC) - set up by Mandela's government to investigate crimes committed during the apartheid era.

But the Sharpeville survivors feel they have not seen justice.

Sharpeville's local memorial park, the Human Rights Precinct, tells the story of how the streets of township became the scene of a bloodbath.

Inside the park stand 69 white pillars, one for each life lost.

The victims were killed while demonstrating against the racist pass laws.

At the time, black people were forced to carry a document known as a passbook, known as "dompas" in Afrikaans, which restricted their freedom to move around the country.

A person could be beaten and jailed if found without it - or if found in a "whites-only" area without permission.

Many heeded the call from the leaders of the Pan Africanist Congress in March 1960 to march in protest against the dompas, including then-20-year-old Mofokeng.

"The life we were living under apartheid was a life of oppression. We could not move around freely. We ended up planning to march to the police station against these passbooks that were being used to oppress us," he says.

Thousands turned up to what they thought would be a peaceful protest.

"[The police] had rifles, machetes, even shields. We explained to the police that we didn't want the passes anymore and we were prepared to go to prison. There was a commotion, then all hell broke loose when the police started shooting."

Mofokeng was among the more than 200 people injured and recent estimates by South African researchers have revised upwards the number who died to as many as 91.

Another survivor, Larazus Magotsi - now 90 - walks along the long row of graves in the cemetery where most of those who died are buried. Among them is a headstone marking where a 12-year-old was laid to rest.

Magotsi's eyes are filled with tears as he struggles to compose himself.

"We heard gunshots and ran and hid inside a store, peeping to see what was happening outside," he says.

"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.

"Others were using machetes to strike the heads of people who were still moving."

It is thought that more than 1,300 bullets were shot into the crowd. Archive photos show policemen walking among the corpses, lying where they fell, in the immediate aftermath of the massacre.

The only legal case that followed the killings was a failed attempt to charge the protesters with affray.

Now, survivors and relatives of those who were killed are hoping to overturn the law they say prevents them from getting justice.

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".

The TRC, chaired by Archbishop Desmond Tutu, was generally praised for bringing together victims and perpetrators who were granted amnesty as long as they, among other conditions, fully disclosed what they had done.

But the greatest criticism of the process was that it did not bring about justice for some as people were not jailed for their acts and no police officers applied for amnesty for the Sharpeville shootings.

The government told the BBC it had supported apartheid victims over the years, and would continue to do so, but did not oppose survivors and families pursuing legal remedies.

When it comes to reparations the justice department said 560 TRC-recognised victims of apartheid-era violence had received individual grants amounting to some $31m (£23m) and though not all Sharpeville survivors and relatives had been identified it encouraged them to come forward.

For many in the community of Sharpeville, there is hope that restitution will help heal decades of lingering trauma.

"Apartheid is dead and buried. A win would bring complete healing, not just for us, but for future generations as well," says Mofokeng.

"Considering how people died, many have not completely healed."