A critical analysis of the challenges faced by the judiciary in facilitating the truth and reconciliation commission’s recommendations on prosecutorial investigations in South Africa

Abstract

This thesis seeks to critically analyse the challenges facing the South African judiciary in facilitating the Truth and Reconciliation Commission’s (TRC) recommendations for prosecutorial investigations. The TRC became the cornerstone of the transitional justice process in South Africa, and it was tasked with, amongst other things, uncovering the truth about the apartheid-era human rights violations and promoting national healing. On 29 October 1998, President Nelson Mandela received the TRC’s final report, which included key recommendations for prosecutorial investigations of individuals who were not granted amnesty. Regrettably, almost two decades later, progress in the implementation of these recommendations remains to be seen. Having said that, in May 2025, there was a significant development in accountability, following the establishment of a judicial commission of inquiry by presidential proclamation to investigate allegations of efforts to obstruct the investigation or prosecution of TRCrelated cases. Taking a desktop methodology, this thesis draws on primary sources, including case law and other legislative instruments. Moreover, the thesis will engage secondary sources, including academic literature, legal commentary, policy documents, and civil society reports, to assess how the judiciary has responded to the TRC’s calls for justice. The study will explore the legal and institutional challenges encountered by the judiciary in prosecutorial investigations. The study will focus on the role of the judiciary in facilitating TRC recommendations. The study aims to contribute to the discourse on transitional justice and criminal accountability in the pursuit of justice and reconciliation.