Released Is Not Acquitted

Say Sharpeville and the world hears one date. On 21 March 1960 people walked to the local police station without their passes and offered themselves for arrest, and the police fired on them. Sixty-nine dead, said the official count, and a hundred and eighty wounded. Working from autopsy and hospital records the apartheid state kept embargoed in police files until 1994, the historians Nancy Clark and William Worger now put the death toll at no fewer than ninety-one, and the wounded at two hundred and eighty-one.

Hold on to that, because it is this article's problem in an earlier form. The state wrote a number down, and the number became the history.

What follows is about the other Sharpeville. The one twenty-four years later, that hardly any calendar marks.

On 3 September 1984 the Vaal Triangle rose. Forty-two years ago today. What followed the 1984 Vaal Uprising produced one of the most consequential criminal cases in South African legal history, and one of its most quietly unresolved. Six people were sentenced to hang for a killing that the highest court in the land expressly declined to find any of them had caused. Their sentences were subsequently commuted. They were released. Their convictions were never touched. One of them, Duma Khumalo, spent the last fifteen years of his life asking a free South Africa to correct what the apartheid state had written down against his name.

He died on 3 February 2006. His criminal record is still in force.

Asinamali

The Black Local Authorities Act of 1982 built a trap and called it self-government. It created township councils with real responsibility and almost no revenue, then required them to fund housing, refuse removal, water and electricity out of the pockets of people the same government had spent seventy years impoverishing. Noor Nieftagodien, who heads the History Workshop at Wits, states the architecture precisely: the councils "had limited power but were burdened with the responsibility to raise funds, to build housing and develop the townships." There was only one place the money could come from.

The Lekoa Town Council administered Sharpeville, Sebokeng, Boipatong and Bophelong. There had been seven rent increases between 1977 and 1984, taking rents from about twelve rand a month to about sixty-two, the highest black township rentals in the country, above even Soweto's. By the beginning of 1984 something in the region of half of sixty thousand households were in arrears. The steel industry was shedding workers. And in the middle of that year, the council announced another increase, to take effect on 1 September: five rand ninety a month on Development Board houses, five rand fifty on privately owned ones.

Note the arithmetic then, because it is the whole story. The increase was five rand ninety a month on Development Board houses and five rand fifty on privately owned ones. Five rand ninety is not a large sum in today's value terms. However, it was then a large sum to people who did not have it. That is what the placards said when the Vaal Civic Association took the townships out on Monday 3 September. Homemade boards carried a single word up and down Seeiso Street in Sharpeville: ASINAMALI. We have no money.

The police answered with teargas, then rubber bullets, then live ammunition. The fight-back by Vaal residents went on into the night, and was most intense in Sharpeville. The figures that survive do not agree, and I will not pretend they do: the official death toll on the day was fourteen; by the following morning it was revised to twenty-nine; a contemporaneous account of that first week put it at twenty-six; the historian Jacob Dlamini counts fifty dead that day across Sharpeville, Sebokeng, Boipatong and Bophelong, four of them councillors. On 15 September, forty-two coffins were buried in a single funeral for the dead of the five Vaal townships, the biggest public assembly the area had seen since 1960.

One of the dead was Maria Alix Mabathoana Sekaledi, shot dead in her own backyard in Sebokeng while she was hanging up washing. I name her because almost nobody does.

Not a vacuum

What preceded it was a string of political events that culminated in 1984.

The period between 1960 and 1984 was not a vacuum; history had not stood still.

The national liberation movement had launched armed action. The Rivonia Trial happened and some of the most eminent leaders of the liberation were sent to life in prison. Many prominent leaders and activists of the liberation movement left the country for exile. The ANC held its first consultative conference outside the country since the banishment and exile in Morogoro, Tanzania, in 1969, which adopted the Strategy and Tactics that set out the all-round struggle later known as the four pillars.

This period was not characterised by external mobilisation and organisation alone; the youth began organising and mobilising from within the country, right in the belly of the beast. The South African Students Organisation (SASO) took shape at Marianhill in December 1968 and was formally constituted at Turfloop in July 1969, to carry out the objectives of the struggle from inside South Africa.

These were the 1960s, and what a way to end this tumultuous decade – the first decade of the most intense violence aimed at the people unleashed by the apartheid regime.

Then came the 1970s. Still again inside the country.

The South African Students Movement (SASM) was formed in 1972. Then the Durban strikes of 1973, followed by the 1976 Uprising. Solomon Mahlangu was executed in 1979. The oppressed intensified their mobilisation, right in the face of the intensification of enemy brutality. The regime showed teeth; the oppressed snarled back and stood their ground.

Both the Congress of South African Students (COSAS) and the Azanian Students Organisation (AZASO) were formed in 1979, sending a clear signal that Solomon Mahlangu had not died, he had simply multiplied. They resolved, at the onset, their intention to intensify the struggle, mobilise the youth, confront the regime, and multiply the forces ranged against apartheid through championing the formation of a national youth organisation, which later became known as the South African Youth Congress (SAYCO), formed in 1987.

The people did not flinch or rest. They showed no fear in the face of the regime's reign of terror. That courage in the face of state terror and brutality prompted Oliver Tambo and the National Executive Committee, in the ANC's statement of 8 January 1984, to issue the clarion call to the people of South Africa to render the country ungovernable and the apartheid system unworkable.

The councillor

Back to the Vaal uprising. Kuzwayo Jacob Dlamini — not to be confused with Jacob Dlamini the historian, who appears later in this piece — was the deputy mayor of the Lekoa Town Council. The Appellate Division's judgment opens by saying so. He had been a schoolteacher. He was alleged by his neighbours to have enriched himself from his office. One of those same neighbours remembered a man who would stop and give him lifts. Both memories are in the record and neither cancels the other.

Shortly after seven on the morning of 3 September a crowd came to his house and demanded he join the march. He fired a pistol into it and injured a woman. A petrol bomb went through his window. He came out of the burning house, was wrestled to the ground by three men and disarmed, and was stoned until he stopped moving. His body was dragged to his car, which was already alight, and set on fire. The post mortem found that the head injuries would have killed him even if he had not been set alight, and that the burns would have killed him even if he had not been struck. It also found that he was still alive when he was set alight. When the police returned at about nine o'clock, he was dead.

I set that down in full deliberately. This piece is not going to be brave about the apartheid state and delicate about our own side. A man was killed in a street in Sharpeville, badly, by a crowd, and there is no formulation of the politics of 1984 that makes that a small thing. The historian Jacob Dlamini's Dying for Freedom is a book about exactly this: how a movement decides which deaths it will mourn and which it will file elsewhere, and the hierarchy of death that political martyrdom creates. He is right that claims of betrayal carry no self-evident truth, and right that the question of what Kuzwayo Dlamini's collaboration actually consisted in, whether corruption, arrogance, council membership, or simply holding office while black under apartheid, was never properly asked.

The country was in turmoil. The people were at war. They had a grievance against the state, and those who collaborated with it. Collaboration was a sensitive issue. So much could go wrong, and did go wrong.

A killing occurred. Somebody did it. Nobody has ever been shown to have done it.

That last sentence is not rhetoric. It is the finding of the Appellate Division.

Eight in the dock, six for the rope

The trial ran in the Transvaal Provincial Division before an acting judge, Human AJ, sitting with assessors. Eight people stood in the dock, not six. Motseki Christiaan Mokubung and Motsidi Gideon Mokone were acquitted of murder and convicted of public violence. The other six were convicted of murder: Duma Joshua Khumalo, Mojalefa Reginald Sefatsa, Reid Malebo Mokoena, Oupa Moses Diniso, Theresa Ramashamola and Francis Don Mokhesi. All eight were also convicted of subversion.

They were not a cell. Sefatsa sold fruit and vegetables off a truck. Diniso inspected steel. Francis Don Mokgesi, spelled Mokhesi in the law reports, played football for Vaal Professionals. Theresa Ramashamola was a waitress in Vereeniging, and the only woman among the six. Duma Khumalo was in his second year of a teacher-training course at Sebokeng Training College.

They were sentenced to death in December 1985. Khumalo arrived on death row on 13 December.

What each of them had been found to have done is worth stating exactly. Sefatsa grappled with the councillor for possession of his pistol, and threw the first stone. Mokoena threw a stone that struck a window, and a stone that struck the councillor's back; his conviction rested on a confession he said followed electric shocks. Diniso was found to be the man who took the pistol, by inference, and the judgment says so itself: "These findings of the trial Court rested on inference. There was no direct evidence that accused No 3 was on the scene." Khumalo was found to have poured petrol on the kitchen door and lit it. Mokhesi made petrol bombs.

Theresa Ramashamola stood outside the house, shouted "Hy skiet op ons, laat ons hom doodmaak", he is shooting at us, let us kill him, and later slapped a woman who objected to the burning. On a shouted sentence and a slap, the Republic of South Africa proposed to hang her.

None of this is murder, on any ordinary understanding of the word. It became murder through the doctrine of common purpose, which imputes the act of the killer to everyone who shared the purpose. And on 1 December 1987, when the Appellate Division dismissed the appeal, Botha JA wrote the sentence that ought to be taught in every law faculty in this country:

I shall therefore assume, for the purposes of my judgment, that it has not been proved in the case of any of the six accused convicted of murder that their conduct had contributed causally to the death of the deceased.

Read that again. The highest court in the land assumed that the state had not proved that any of the six caused the death — and confirmed six death sentences in the same judgment. It was entitled to. That is what the doctrine says. The flynote puts it without embarrassment: a causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved.

When the United Nations Security Council took the matter up in March 1988, it wrote the same fact in one line: none of the six young South Africans convicted of murder was found by the Court to have caused the actual death of the Councillor. The vote was unanimous. It was unanimous again in June.

The witness who said the police gave him the names

The state's case against Khumalo and Mokhesi rested substantially on one man, Joseph Motsumi Manete. There are four documents in his name and they do not tell one story.

In May 1985, to an attorney, he described being arrested by the Security Police and assaulted: pushed against a wall, kicked and punched in the face, then forced at Krugersdorp to write a statement about the councillor. On the two names, he said: these names were given to me by the police and I was forced to write these names in the statement.

In September 1985, shortly before the trial, speaking to the defence's own attorney with no police in the room, he placed Khumalo at the house throwing stones.

In February 1986: I did not tell the court the whole truth.

In June 1988, on oath: he had not seen any of them at the scene, his evidence at trial was untrue, and he gave it because the police had assaulted him.

At trial, the defence tried to cross-examine him on the first statement. Human AJ refused, on legal professional privilege: I have no power to order him to be cross-examined about that statement. The Appellate Division upheld the refusal. One of the investigating officers, Warrant-Officer Schoeman, denied assaulting him and denied supplying names — while conceding, in an affidavit put up in the 1988 proceedings and written in Afrikaans, that he could not rule out the possibility that he had put a list of names to the witness and asked whether he had noticed any of those people at the scene.

A second state witness also recanted. The trial court had already found his evidence untruthful.

Set the pieces beside one another. A doctrine that does not require proof of who killed. A witness who swore the police supplied the names. A privilege ruling that kept the contradiction out of cross-examination. And six people in the condemned cells. Every criminal justice system on earth has a mechanism for exactly this situation. It is called reopening the case.

The pot

Everything that follows is in Duma Khumalo's own words, given under oath to the Truth and Reconciliation Commission, and I am going to let him speak without commentary because he is better at this than I am.

On arriving in December 1985: "When I arrived in that cell, there was a mattress. There were blankets on the floor." On the clothes he was issued: "Maybe those clothes were used by another person who has just been killed." On being the tallest of the condemned: "I was the tallest amongst the five accused. My trousers was only just beneath my legs, which means the shortest one had a problem with the size of the trousers."

On what the warders told him: "they said that in Afrikaans, the God of this world doesn't have mercy. You will be hanged on the 18th, there will be no mercy for you."

On the pace of the work: "21 people are hanged per week." On one day of it: "on that day eleven people were hanged and we were not able to eat." On the shortened notice given to some men "because they wanted to do the work faster." On the boy who arrived too young to hang, whom they kept: "They let him grow for death row, when he reached 22 years of age, they hanged him."

On the shape of the week: they hanged from Monday through Friday, and Saturday and Sunday were the only rest a condemned man got. The rest ended early. "Sunday at night, the process would start that tomorrow it is Monday."

And this, from the prison hearing in July 1997, which I have not been able to put down since I read it:

"On the 18th, they put some colourful objects on the passages, then I said to myself, this place, they are killing people, but they are decorating it, which means they are happy … they are satisfied with the work."

They hung Christmas decorations in the corridor of the gallows.

In March 1988 he was told on a Monday that he would hang on the Friday. His neck was measured for the rope. They took his underwear, his shoes and his mattress so that he could not kill himself first. On the Thursday they brought the condemned men their chicken. Just before four o'clock, they were told they would not be executed after all. The others threw the food away out of superstition. He ate his. "I was bloody starving!"

He made a promise in that cell, and it is the sentence I would put on his headstone: "I told my comrades on death row, that if I survived, I would always talk about death row, I would take their stories with me wherever I go."

Fifteen hours

The stay came on the afternoon of 17 March 1988, about fifteen hours before they were due to hang at dawn. There was a second execution date in July 1988, and a second stay. Then, in late November 1988, State President P.W. Botha commuted the six death sentences to terms of imprisonment: twenty-five years for Khumalo and Mokhesi, twenty for Sefatsa, eighteen each for Ramashamola, Mokoena and Diniso.

It is worth being precise about what a commutation is, because almost every account of this case is loose about it and the looseness matters. A commutation is an act of executive mercy. It changes the punishment. It says nothing whatsoever about the conviction, which stands exactly as it stood the day before.

Khumalo and Diniso were released on 10 July 1991, Ramashamola and Mokoena that December, Mokhesi and Sefatsa in September 1992, let out as political prisoners under the arrangements the ANC negotiated as a precondition for talks. Khumalo was granted indemnity separately, before the 1994 elections. Neither the release nor the indemnity disturbed a conviction. Indemnity barred the state from prosecuting him or detaining him again. It did not touch what had already been written down about him, and it was never built to.

And they very nearly did not get out at all. When President Mandela came out of prison in February 1990 and demanded the release of all political prisoners, the apartheid government answered that the Sharpeville Six did not qualify: that they were not political prisoners but ordinary criminals. Their own attorney, Prakash Diar, by then in exile in Canada, wrote a memorandum to President Mandela setting out why they were political prisoners, because he knew the case better than anyone alive. That argument was won. It is the reason Khumalo walked out on 10 July 1991.

Hold those two things together, because they are the whole of it. To get them out, we had to persuade the state that they were political prisoners. To leave the convictions standing, we then accepted the state's filing that they were ordinary criminals. Both propositions are on the record of this country, and only one of them was ever corrected.

So: no court found that any of them killed the man. No court ever reheard the case. And no pardon, and no setting aside of any of the six convictions, appears anywhere I have looked for one — not in the law reports, not in the Government Gazette, and not in the Truth and Reconciliation Commission's published amnesty decisions, every year-index of which I have been through. Six people walked out of prison between 1991 and 1992 as convicted murderers, and as far as the law of this Republic is concerned, that is what they remain.

Released is not acquitted. We have been careless with that distinction for thirty-five years.

The door that was closed in 1988, and never reopened

Why did nothing happen? Not because anyone weighed Manete's sworn recantation and found it wanting. Because of a ruling about jurisdiction.

When the six came back with the new affidavits, Human AJ held that he was functus officio. His office in the matter was spent, he had given final judgment, and he could not revisit it. On 23 November 1988 the Appellate Division agreed, in a judgment delivered by Chief Justice Rabie. Once an appeal on the merits has been dismissed, section 322 of the Criminal Procedure Act does not confer on the Court a power to set aside its dismissal of an appeal in earlier proceedings. And the judgment recalled an earlier holding of Chief Justice Steyn that our law does not recognize a remedy of restitutio in integrum in criminal cases.

The court did not say the new evidence was worthless. It said it had no door.

The apartheid state built a criminal procedure in which a wrongly decided capital case had, past a certain point, no route back. That is not an incidental defect. A system that can hang a man and then decline, on jurisdictional grounds, to look at sworn evidence that the police manufactured the case against him is not a legal system that made a mistake. It is a legal system working exactly as designed.

And here is the part I find hardest to explain to a young South African. That door has been available for re-examination since 1994. We have a Constitution, a Constitutional Court, a Bill of Rights, a right to a fair trial, and thirty-two years. Nobody, as far as the public record shows, has ever gone back and tested whether the 1988 ruling survives the 1996 Constitution.

The lawyer who would not leave

There is a part of this story that is not about failure, and it should be told, because it is the part that shows what one person can decide to do.

Prakash Diar visited death row roughly once a week, for years, so that the men in those cells would know they had not been forgotten. When the appeal was lost in Bloemfontein, his senior partner took the view that the firm had done enough. Diar disagreed, and he did not disagree quietly: he walked out of the firm. Then he went to Pretoria Central and told the six that he was no longer their lawyer and that he was finished with the practice of law altogether, because there was no fair fight to be had in an apartheid court.

They would not accept it — and on Diar's own account it was Khumalo above all who would not. They asked him how he could abandon them now, when everyone else had already given up on them, and when he was the only lawyer they knew. He gave in, on one condition: that he would take no new work of any kind, only theirs. They dismissed the firm on the spot and instructed him personally.

He was later arrested at court and held in solitary confinement for a month without charge. His life was threatened. Canada took him in in 1989. The following year he wrote the case down in a book, The Sharpeville Six: The South African Trial That Shocked the World, so that it could not be lost — published while all six of them were still in prison.

Four decades on, his assessment of the doctrine that condemned his clients is unchanged, and it is the same assessment this article has arrived at from the other direction: what the Sharpeville case settled, that no causal contribution to the death need be proved and that active association without any prior agreement is enough, has never been corrected in the new South Africa.

Thirty-one days, and an axe

Duma Khumalo came out of Pretoria Central in July 1991 into a country that was negotiating its future and had no procedure for him.

He was sent to psychologists at Wits and attended into December 1992; he was still going to the trauma centre twice a week in 1996. He registered with Unisa and failed. He registered again in 1993 and failed again. He was not working. "I am being supported by my wife," he told the Commission. "I would love to work, I would like to be like other men who are supporting their families."

Consider what he was carrying into an interview. He had been training to teach when they arrested him, and he never finished. So he came home with no qualification, and with a conviction for murder standing against his name, a conviction the state had never withdrawn, because a commutation withdraws nothing. Whatever an employer's reason was on any given day, that was what the file said about him, and the file was the only version of him most people would ever see.

And he began to ask, and then to demand, that the case be reopened.

He sat down in the Sharpeville police station and stayed there for thirty-one days. Fourteen of those days he did not eat.

Nothing happened.

He went to the court to speak to somebody. They threatened him with arrest and put him out. On 5 January 1996 he came back with an axe and broke the machinery. He was arrested. The Catholic mission paid his bail. He was sentenced to twelve months' house arrest.

On 5 August 1996, when he gave his testimony to the Truth and Reconciliation Commission at Sebokeng, he was still serving it. Let that arrangement stand in the open air for a moment. A man came before South Africa's Truth and Reconciliation Commission to describe how he was nearly hanged for something he says he did not do. And he came under house arrest, imposed by a democratic South Africa, for taking an axe to a courthouse that would not listen to him.

What he asked for

He was not asking for money.

He asked three things. That the investigation be reopened: "My wish and my dream is that the investigation should be reopened with regard to my case." That he be allowed to meet the Dlamini family: "I want to meet them in order to clarify the record, clear out my name." And that his criminal record be removed.

That was it. Khulumani Support Group, which he helped found and for which he worked as its arts and culture officer until his death, put it plainly when he died: his one request to the Commission had been for a retrial, so that he could clear his name. The case was never reopened, and his name was never cleared. Brandon Hamber, who knew him, wrote that clearing his name was his only plea to the Commission and to other government bodies, and that his wish was never granted. Six weeks after he died, Khulumani wrote to President Thabo Mbeki asking that Duma Khumalo's criminal record be expunged. I have not been able to find a reply, or any record that one was sent.

He also asked to be let back into the death-row block, because he kept dreaming he was still in it, and thought that standing in the room might help. He was refused that too.

There is one more thing he did at the Commission, and it tells you what kind of man was being refused. He met one of his death-row warders in the corridor, and the man rushed over and embraced him. When he testified, he protected him. He admitted afterwards that he had lied. People asked him if he was mad, how he could let the man off the hook. His answer: "if I'd implicated him it would have sent us all back to the execution chamber."

He was not asking for revenge. He never had been. He was asking for a line in a file to be corrected.

He never got it. He spent the years in between doing what he had promised the men in the cells he would do: he told the story, and he carried their names.

They were young. Benjamin Moloise, an upholsterer from Soweto who became a poet in prison, was about thirty when he was hanged at Pretoria Central on 18 October 1985, for a killing he had confessed to and then retracted at trial. Andrew Sibusiso Zondo was nineteen when he was hanged on the morning of 9 September 1986, for a bomb at the Amanzimtoti Sanlam Centre that killed five civilians, three of them children.

I have set the second of those down rather than leaving it out, and I am aware of what it costs. Khumalo did not choose the men in the cells around him and he did not sort them by what they had done. He promised to carry their stories, and a promise made in that place does not come with a filter. The country those men died in has never worked out what to do with the fact that not all of its dead are easy to mourn. Neither has the movement. Khumalo simply carried them, and left the sorting to us. He performed as himself in The Story I Am About to Tell at the Market Theatre from September 1997, and in Yaël Farber's He Left Quietly from 2002, in Grahamstown, Dublin, Amsterdam, Pretoria and Berlin. In Dublin he went to Mountjoy Prison and gave the prisoners a line a prison doctor had once given him: "You are not born in jail, one day you will be free." When he went back to the prison where he had been held under sentence of death and found the execution chamber had been turned into a gymnasium, he said: "That is denial, it is important to remember."

He passed away on 3 February 2006, while attending a workshop run by the Independent Electoral Commission ahead of that year's local government elections. His memorial was held on 10 February at the Market Theatre, in the building where he had first stood up and told it. His funeral was held at the el Shaddai Church in Sebokeng. He left his wife Betty, who had waited through all of it, and two sons.

Ten years after he died, on 29 August 2016, the Khulumani Support Group, which he helped found, together with the Vaal University of Technology and the Emfuleni Local Municipality, held the inaugural Duma Khumalo Commemorative Lecture and Colloquium. Inaugural means first of a series. I have not been able to find any record of a second.

Then, on 15 May 2026, the North-West University held a Duma Khumalo Memorial Lecture on its Vanderbijlpark campus. His widow was there. So was his son Joji, who had been five years old when The Story I Am About to Tell opened, and who knew every line of it well enough to prompt his own father from the wings. So was Prakash Diar. So was Father Patrick Noonan, the Irish Franciscan who has ministered in those townships since 1970. Two Swedish visitors, the film director Åsa Faringer and the writer Hanna Olsson, screened their documentary about him, The Long Way to Justice. And Advocate Mosotho Petlane, on the panel, proposed that the university confer a posthumous doctorate on a man who never finished his teaching diploma because the state arrested him in his second year.

Then an official from the Department of Basic Education stood up and said the thing that should trouble us most. He looked at the schoolchildren who had been brought in for the morning and said he would bet his last dollar that most of them were hearing this for the first time. He was right, and he was in a position to know: the department is reviewing the history syllabus, and this is not in it.

Compare that with what the state itself has managed. On 28 November 2024, the Gauteng Provincial Legislature held a formal commemoration of the fortieth anniversary of the Vaal Uprising at the Saul Tsotetsi Hall in Sebokeng. The public advisory for it does not mention the Sharpeville Six. It does not mention the convictions.

Forty years on, the province commemorated the uprising and said nothing about the six people the state condemned to die for it. A local municipality had managed it eight years earlier, alongside a survivors' organisation and a university, on a fraction of the budget. The people who have kept his name spoken aloud are, in the main, the ones who knew him: Khulumani, two universities in the Vaal, his own family, and a few foreigners who did not forget.

The register nobody went back to correct

I want to be careful here, and I want to be plain, and I do not think those are in tension.

I am not in a position to tell you that Duma Khumalo did not pour petrol on that door. A court found that he did. He said, from 1984 until the day he died, that he was at his uncle's house. What I can tell you, because the record says it and not because I wish it, is this: the highest court in the country assumed that nothing any of the six did caused the man's death; the state's own witness swore that the police handed him the names; and the only court ever to consider those two facts together refused, on jurisdictional grounds, to reopen the case — in 1988. I have found no case in which a court of democratic South Africa has looked at them at all. That is not an argument about innocence. It is an argument about whether the question was ever properly asked.

It was not asked. And the reason it was not asked, after 1994, is not that anyone decided against it. It is that nobody was assigned to it. I have gone looking for the office, the list, the process, the owner. I have not found one. The Truth and Reconciliation Commission was never given the power to overturn a conviction. It had one route and one only — a grant of amnesty, which required the applicant to make full disclosure of the act itself. That closed it, by design, against anybody insisting there was no act of theirs to disclose: the one category of person for whom a truth commission ought to have had a door. The Commission recorded this about itself. Those who were innocent and had, on the face of it, been wrongly convicted “were unable to benefit from the amnesty process”, its final report says, and the Committee “had no powers to intervene”. Indemnity emptied the prisons without touching the files. And so the transition did something we have never properly reckoned with: it released the people and kept the paperwork.

Somewhere in the criminal records of this Republic there is still an entry against a teacher-training student from Sharpeville who was nearly hanged in 1988. There are others. We do not know how many, because no count of them exists that I have been able to find, and no count exists because counting was nobody's job.

We inherited two things from apartheid's courts. We inherited the people, and we let them out. We inherited the records, and we left them exactly as they were written. We treated the first inheritance as a political question, which it was, and the second as an administrative one, which it was — and then we never did the administration.

A record is not a memory. It is an instruction. It tells the bank, the employer, the border post, the bursary committee and the grandchild what the state has decided about you, and it goes on saying it long after everybody who made the decision is dead. Duma Khumalo understood that better than the officials he was pleading with. It is why he sat in a police station for thirty-one days, fourteen of them without eating, and why, when that failed, he picked up an axe. He was not trying to relitigate 1984. He was trying to get a sentence changed in a filing cabinet.

And this is the moment to say it, because the country has finally started asking the adjacent question. On 29 May 2025 the President established a judicial commission of inquiry, chaired by retired Justice Sisi Khampepe, into attempts to prevent the investigation and prosecution of apartheid-era crimes. It exists because the families of the dead had to go to court to get it. It is sitting now. Its terms of reference begin in 2003, which is to say it is examining what democratic South Africa did with these cases, not what apartheid did. It asks whether anyone leaned on the police or the prosecutors, and what should now be done, including whether constitutional damages are owed.

That is one half of a ledger. It is asking why the perpetrators the Truth Commission named were never prosecuted. It is not asking why the people the apartheid courts convicted were never unconvicted — it was never set up to ask that, and nothing Duma Khumalo's family could bring would fall within its terms. That is the same failure of will running in the opposite direction, and on that side of the ledger there is no commission, no litigation and no owner that I have been able to find. Meanwhile, on the reparations side, the President's Fund established for survivors held just over two billion rand at 31 March 2024, on the most recent statements it has published, and that balance has risen in every year since 2022. It is accumulating faster than it is reaching anybody.

We could still do the other half. Not for Duma Khumalo — that chance is gone, and we let it go while he was standing in front of us asking. But whether a conviction obtained under a doctrine our own Appellate Division conceded required no proof of causation, on evidence a state witness swore under oath was dictated to him by the police, can be reopened under the Constitution we wrote in 1996 appears never to have been put to a court at all. I have found no such application. It should be. It would cost a fraction of what we have already spent commemorating the uprising that produced it.

Forty-two years ago today, people walked up and down Seeiso Street carrying a single word, because they could not find the extra five rand ninety a month. By nightfall some of them were dead. Six others would be told they were going to hang for what happened that day. What the state wrote about those six is still on file, and still says what it said in 1985.

Freedom released the prisoners. It has not yet gone back for the records. Until it does, the last act of the apartheid state is still standing, in a filing cabinet, in our handwriting now.

The future is not an accident.