• TABLE OF CONTENTS
HIDE
 Foreword
 Historical context
 Setting up the commission
 Introduction
 Concepts and principles
 Methodology and process
 Methodology and the information...
 Who came to the commission?
 Legal challenges
 The destruction of records
 Disposal of staff sensitive...
 Top management guidelines with...
 Norms for determining sensitiv...
 Report of the chief executive officer...
 Amnesty committee
 Human rights violations commit...
 Reparation and rehabilitation...
 Management and operational...
 Chief executive officer's...
 Management and operational...
 Regional office reports
 Chronology of apartheid legisl...
 Commissions of enquiry from...
 National overview
 The state outside South Africa...
 The state inside South Africa between...
 Liberation movements from 1960...
 organisational structures and names...
 The homelands' from 1960 to...
 Special investigation into the...
 Special investigation into the...
 Special investigation into Project...
 Special investigation into Secret...
 Special investigation into secret...
 Special investigation into the...
 Political violence in the Era of...
 Introduction to regional profi...
 National chronology
 Regional profile eastern Cape
 Statistics on violations in the...
 Regional profile Natal and...
 Statistics on violations in Natal,...
 Regional profile Orange Free...
 Regional profile Western Cape
 Statistics on violations in the...
 Regional profile Transvaal
 Statistics on violations in the...
 Foreward and context of institutional...
 Institutional hearing: Business...
 Institutional hearing: The faith...
 Institutional hearing: The legal...
 Institutional hearing: The health...
 Institutional hearing: The...
 Institutional hearing: Prisons
 Special hearing: Compulsory military...
 Special hearing: Children...
 Special hearing: Women
 Analysis of gross violations of...
 Coding frame for gross violations...
 HRV hearings
 Victims of gross violations of...
 Interim report of the Amnesty...
 Reparation and rehabilitation...
 Findings and conclusions
 Causes, motives and perspectives...
 Recommendations
 Reconciliation
 Minority position
 Response of the commission
 A guide to the contents














Group Title: Truth and Reconciliation: Final Report
Title: Truth and Reconciliation : Final Report
CITATION THUMBNAILS PAGE IMAGE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00001495/00001
 Material Information
Title: Truth and Reconciliation : Final Report
Physical Description: Book
Language: English
Creator: Republic of South Africa
Publication Date: October 29, 1998
Copyright Date: 1998
 Record Information
Bibliographic ID: UF00001495
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Table of Contents
    Foreword
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
    Historical context
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
    Setting up the commission
        Page 31
        Page 32
        Page 33
    Introduction
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
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    Concepts and principles
        Page 74
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    Methodology and process
        Page 97
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    Methodology and the information management system
        Page 113
        Page 114
        Page 115
        Page 116
    Who came to the commission?
        Page 117
        Page 118
        Page 119
        Page 120
        Page 121
        Page 122
    Legal challenges
        Page 123
        Page 124
        Page 125
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    The destruction of records
        Page 142
        Page 143
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    Disposal of staff sensitive documentation
        Page 166
        Page 167
        Page 168
    Top management guidelines with reference to category A information
        Page 169
    Norms for determining sensitivity
        Page 170
    Report of the chief executive officer and chief accounting officer
        Page 171
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    Amnesty committee
        Page 182
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    Human rights violations committee
        Page 188
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    Reparation and rehabilitation committee
        Page 193
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    Management and operational reports
        Page 200
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    Chief executive officer's report
        Page 205
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    Management and operational reports
        Page 222
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    Regional office reports
        Page 275
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    Chronology of apartheid legislation
        Page 312
        Page 313
        Page 314
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    Commissions of enquiry from 1960-1995
        Page 365
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    National overview
        Page 377
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    The state outside South Africa between 1960 and 1990
        Page 407
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    The state inside South Africa between 1960 and 1990
        Page 496
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    Liberation movements from 1960 to 1990
        Page 619
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    organisational structures and names of people holding office
        Page 670
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    The homelands' from 1960 to 1990
        Page 676
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    Special investigation into the death of President Namora Machel
        Page 749
        Page 750
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    Special investigation into the Helderberg crash
        Page 756
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    Special investigation into Project Coast
        Page 761
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    Special investigation into Secret State Funding
        Page 772
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    Special investigation into secret burial of activists and report on exhumations
        Page 787
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    Special investigation into the Mandela United Football Club
        Page 797
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    Political violence in the Era of Negotiations and Transistion, 1990-1994
        Page 820
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    Introduction to regional profiles
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    National chronology
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    Regional profile eastern Cape
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    Statistics on violations in the Eastern Cape
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    Regional profile Natal and KwaZulu
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    Statistics on violations in Natal, KwaZulu and the Orange Free State
        Page 1125
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    Regional profile Orange Free State
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    Regional profile Western Cape
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    Statistics on violations in the Western Cape
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    Regional profile Transvaal
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    Statistics on violations in the Transvaal
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    Foreward and context of institutional and special hearings
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    Institutional hearing: Business and labour
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    Institutional hearing: The faith community
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    Institutional hearing: The legal community
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    Institutional hearing: The health sector
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    Institutional hearing: The media
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    Institutional hearing: Prisons
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    Special hearing: Compulsory military service (conscription)
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    Special hearing: Children and youth
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    Special hearing: Women
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    Analysis of gross violations of human rights
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    Coding frame for gross violations of human rights
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    HRV hearings
        Page 1674
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    Victims of gross violations of human rights
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    Interim report of the Amnesty Committee
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    Reparation and rehabilitation policy
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Full Text







Volume ONE Chapter ONE


Foreword by Chairperson

THE MOST REVD D M TUTU ARCHBISHOP EMERITUS


1. All South Africans know that our recent history is littered with some horrendous occurrences the Sharpville
and Langa killings, the Soweto uprising, the Church Street bombing, Magoo's Bar, the Amanzimtoti Wimpy
Bar bombing, the St James' Church killings, Boipatong and Sebokeng. We also knew about the deaths in
detention of people such as Steve Biko, Neil Aggett, and others; necklacings, and the so-called 'black on
black' violence on the East Rand and in KwaZulu Natal which arose from the rivalries between IFP and first
the UDF and later the ANC. Our country is soaked in the blood of her children of all races and of all political
persuasions.

2. It is this contemporary history which began in 1960 when the Sharpville disaster took place and ended with
the wonderful inauguration of Nelson Mandela as the first democratically-elected President of the Republic
of South Africa it is this history with which we have had to come to terms. We could not pretend it did not
happen. Everyone agrees that South Africans must deal with that history and its legacy. It is how we do this
that is in question a bone of contention throughout the life of the Commission, right up to the time when
this report was being written. And I imagine we can assume that this particular point will remain
controversial for a long time to come.

p ON PREPARING THE REPORT OF THE TRUTH AND RECONCILIATION COMMISSION

3 One of the unique features of the South African Commission has been its open and transparent nature. Similar
commissions elsewhere in the world have met behind closed doors. Ours has operated in the full glare of publicity.
This means that some of the information contained in this report is already in the public domain. Nonetheless, some
significant and new insights are included in the pages that follow.

4 The work of the South African Commission has also been far more extensive than that of other commissions. The
volume of material that passed through our hands will fill many shelves in the National Archives. This material will be
of great value to scholars, journalists and others researching our history for generations to come. From a research
point of view, this may the Commission's greatest legacy.



5 The report that follows tries to provide a window on this incredible resource, offering a road map to those who wish to
travel into our past. It is not and cannot be the whole story; but it provides a perspective on the truth about a past that
is more extensive and more complex than any one commission could, in two and a half years, have hoped to capture.

6 Others will inevitably critique this perspective as indeed they must. We hope that many South Africans and friends of
South Africa will become engaged in the process of helping our nation to come to terms with its past and, in so doing,
reach out to a new future.













7 This report has been constrained by a number of factors not least by the extent of the Commission's mandate and a
number of legal provisions contained in the Act. It was, at the same time, driven by a dual responsibility. It had to
provide the space within which victims could share the story of their trauma with the nation; and it had to recognize the
importance of the due process of law that ensures the rights of alleged perpetrators. Several court rulings emphasised
the importance of the latter. Obviously, the Commission respected these judgements. They did, however, sometimes
make our efforts to obtain information about the past more difficult. This, in its turn, caused us to err on the side of
caution in making our findings. Despite these difficulties, however, we can still claim, without fear of being
contradicted, that we have contributed more to uncovering the truth about the past than all the court cases in the
history of apartheid.


8 There are a number of important points I would like to make before moving to a discussion of this report.


9 First, because the Amnesty Committee has not completed its statutory responsibilities and will not have done so until it
has considered every application for amnesty before it, this report cannot, strictly speaking, be considered to be final.
Once the Amnesty Committee has completed its work, the Commission will be recalled to consider the implications of
the hearings that have taken place and to add a codicil to the report. Only at that stage can the Commission's report
be regarded as final.


10 The second point is to stress that, in preparing this report, we have followed procedures common to many other
national and international commissions. It would have been totally impossible for seventeen commissioners to write a
single report. We have thus leaned very heavily on our Research Department to produce drafts for consideration by
commissioners. Further, we have used group methods and different commissioners have been given responsibilities in
respect of different chapters. The product is thus a joint effort of staff and commissioners, but each section was
formally adopted by the full Commission in plenary sessions. Thus, the ultimate responsibility for this report lies with
the commissioners.


11 The third point I would like to make concerns lustration the disqualification or removal from public office of people
who have been implicated in violations of human rights. The Commission considered this question carefully and finally
decided not to recommend that this step be pursued. It is suggested, however, that when making appointments and
recommendations, political parties and the state should take into consideration the disclosures made in the course of
the Commission's work.


12 Fourth, a few words need to be said about that great difficulty South Africans experience when describing their fellow
compatriots. The former government defined every person according to a racial category or group. Over the years,
these became the badges of privilege and of deprivation. For the purposes of the report, the significance of this racial
branding is simply that these categories are reflected in statistics produced over the years and, in their own way,
provide a guide to the inequities of the past.


13 From the late 1960s and 1970s, the Black Consciousness Movement campaigned for the use of the word black to
describe all those defined as other than white. However, this was by no means universally accepted and many
members of the so-called black group still prefer to be described as coloured, Indian and so on. Another debate arises











around the term African. Does this or can this refer only to black Africans? The debate is not really capable of being
resolved. Generally in this report, black Africans are referred to as Africans. Coloured people, people of Indian or Asian
origin and white people are referred to as such. No disrespect is intended to any group or political perspective. It is
simply impossible to write a history of South Africa without erring on one side or another of the argument.


14 Finally, every attempt has been made to check, recheck and check again the spelling of the names included in this
report. If there are errors, please forgive us.


15 Ultimately, this report is no more than it claims to be. It is the report of a commission appointed by Parliament to
complete an enormous task in a limited period. Everyone involved in producing this report would have loved to have
had the time to capture the many nuances and unspoken truths encapsulated in the evidence that came before us.
This, however, is a task which others must take up and pursue.


16 A Dutch visitor to the Commission observed that the Truth and Reconciliation Commission must fail. Its task is simply
too demanding. Yet, she argued, "even as it fails, it has already succeeded beyond any rational expectations". She
quoted Emily Dickinson: "the truth must dazzle gradually ... or all the world would be blind". However, the Commission
has not been prepared to allow the present generation of South Africans to grow gently into the harsh realities of the
past and, indeed, many of us have wept as we were confronted with its ugly truths. However painful the experience has
been, we remain convinced that there can be no healing without truth. My appeal to South Africans as they read this
report is not to use it to attack others, but to add to it, correct it and ultimately to share in the process that will lead to
national unity through truth and reconciliation.


17 The past, it has been said, is another country. The way its stories are told and the way they are heard change as the
years go by. The spotlight gyrates, exposing old lies and illuminating new truths. As a fuller picture emerges, a new
piece of the jigsaw puzzle of our past settles into place.


18 Inevitably, evidence and information about our past will continue to emerge, as indeed they must. The report of the
Commission will now take its place in the historical landscape of which future generations will try to make sense -
searching for the clues that lead, endlessly, to a truth that will, in the very nature of things, never be fully revealed.


19 It has been the privilege of this Commission to explore a part of that landscape and to represent the truths that
emerged in the process. And we have tried, in whatever way we could, to weave into this truth about our past some
essential lessons for the future of the people of this country. Because the future, too, is another country. And we can do
no more than lay at its feet the small wisdoms we have been able to garner out of our present experience.

P TRANSITIONAL OPTIONS


20 We could not make the journey from a past marked by conflict, injustice, oppression, and exploitation to a new and
democratic dispensation characterized by a culture of respect for human rights without coming face to face with our
recent history. No one has disputed that. The differences of opinion have been about how we should deal with that
past; how we should go about coming to terms with it.











21 There were those who believed that we should follow the post World War II example of putting those guilty of gross
violations of human rights on trial as the allies did at Nuremberg. In South Africa, where we had a military stalemate,
that was clearly an impossible option. Neither side in the struggle (the state nor the liberation movements) had
defeated the other and hence nobody was in a position to enforce so-called victor's justice.


22 However, there were even more compelling reasons for avoiding the Nuremberg option. There is no doubt that
members of the security establishment would have scuppered the negotiated settlement had they thought they were
going to run the gauntlet of trials for their involvement in past violations. It is certain that we would not, in such
circumstances, have experienced a reasonably peaceful transition from repression to democracy. We need to bear this
in mind when we criticise the amnesty provisions in the Commission's founding Act. We have the luxury of being
able to complain because we are now reaping the benefits of a stable and democratic dispensation. Had the miracle of
the negotiated settlement not occurred, we would have been overwhelmed by the bloodbath that virtually everyone
predicted as the inevitable ending for South Africa.


23 Another reason why Nuremberg was not a viable option was because our country simply could not afford the resources
in time, money and personnel that we would have had to invest in such an operation. Judging from what happened in
the De Kock and so-called Malan trials, the route of trials would have stretched an already hard-pressed judicial
system beyond reasonable limits. It would also have been counterproductive to devote years to hearing about events
that, by their nature, arouse very strong feelings. It would have rocked the boat massively and for too long.


24 The Malan trials and the Goniwe inquest have also shown us that, because such legal proceedings rely on proof
beyond reasonable doubt, the criminal justice system is not the best way to arrive at the truth. There is no incentive for
perpetrators to tell the truth and often the court must decide between the word of one victim against the evidence of
many perpetrators. Such legal proceedings are also harrowing experiences for victims, who are invariably put through
extensive cross-examination.


25 In his judgement in the case brought by AZAPO and others against the Truth and Reconciliation Commission, Judge
Mahomed, then Deputy President of the Constitutional Court and now our Chief Justice, quoted Judge Marvin Frankel.
In his book, Out of the Shadows of the Night: The Struggle for International Human Rights, Judge Frankel wrote:


The call to punish human rights criminals can present complex and agonising problems that have no single or
simple solution. While the debate over the Nuremberg trials still goes on, that episode trials of war criminals of
a defeated nation was simplicity itself as compared to the subtle and dangerous issues that can divide a
country when it undertakes to punish its own violators.


A nation divided during a repressive regime does not emerge suddenly united when the time of repression has
passed. The human rights criminals are fellow citizens, living alongside everyone else, and they may be very
powerful and dangerous. If the army and police have been the agencies of terror, the soldiers and the cops
aren't going to turn overnight into paragons of respect for human rights. Their numbers and their expert
management of deadly weapons remain significant facts of life.... The soldiers and police may be biding their
time, waiting and conspiring to return to power. They may be seeking to keep or win sympathisers in the











population at large. If they are treated too harshly or if the net of punishment is cast too widely there may be
a backlash that plays into their hands. But their victims cannot simply forgive and forget.


These problems are not abstract generalities. They describe tough realities in more than a dozen countries. If,
as we hope, more nations are freed from regimes of terror, similar problems will continue to arise.


Since the situations vary, the nature of the problems varies from place to place.


26 There were others who urged that the past should be forgotten glibly declaring that we should 'let bygones be
bygones'. This option was rightly rejected because such amnesia would have resulted in further victimisation of victims
by denying their awful experiences. In Ariel Dorfmann's play, Death and the Maiden, a woman ties up the man who has
injured her. She is ready to kill him when he repeats his lie that he did not rape or torture her. It is only when he admits
his violations that she lets him go. His admission restores her dignity and her identity. Her experience is confirmed as
real and not illusory and her sense of self is affirmed.


27 The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of
returning to haunt one. "Those who forget the past are doomed to repeat it" are the words emblazoned at the entrance
to the museum in the former concentration camp of Dachau. They are words we would do well to keep ever in mind.
However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They
must be cleansed. And balm must be poured on them so they can heal. This is not to be obsessed with the past. It is
to take care that the past is properly dealt with for the sake of the future.


28 In our case, dealing with the past means knowing what happened. Who ordered that this person should be killed? Why
did this gross violation of human rights take place? We also need to know about the past so that we can renew our
resolve and commitment that never again will such violations take place. We need to know about the past in order to
establish a culture of respect for human rights. It is only by accounting for the past that we can become accountable
for the future.


29 For all these reasons, our nation, through those who negotiated the transition from apartheid to democracy, chose the
option of individual and not blanket amnesty. And we believe that this individual amnesty has demonstrated its value.
One of the criteria to be satisfied before amnesty could be granted was full disclosure of the truth. Freedom was
granted in exchange for truth. We have, through these means, been able to uncover much of what happened in the
past. We know now what happened to Steve Biko, to the PEBCO Three, to the Cradock Four. We now know who
ordered the Church Street bomb attack and who was responsible for the St James' Church massacre. We have been
able to exhume the remains of about fifty activists who were abducted, killed and buried secretly.


30 I recall so vividly how at one of our hearings a mother cried out plaintively, "Please can't you bring back even just a
bone of my child so that I can bury him." This is something we have been able to do for some families and thereby
enabled them to experience closure.


31 The lies and deception that were at the heart of apartheid which were indeed its very essence were frequently laid
bare. We know now who bombed Khotso House. We can recall how Mr Adriaan VIok, a former Minister of Law and











Order, lied publicly and brazenly about this; how he unashamedly caused Shirley Gunn to be detained with her infant
son as the one responsible for this act. It must be said to his credit that Mr VIok apologised handsomely to Ms Gunn
during his amnesty application.


32 Thus, we have trodden the path urged on our people by the preamble to our founding Act, which called on "the need for
understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for
victimisation."



p CRITICISMS AND CHALLENGES


33 It would have been odd in the extreme if something as radical as this Commission had met with universal approval and
acceptance. It would have been even more odd had we been infallible and made no mistakes as we undertook the
delicate task of seeking to help heal the wounds of a sorely divided people.


34 Some of the criticism levelled against the Commission has been legitimate. However, there has been much which was
merely political point scoring, ignoring the facts in favour of taking up cudgels against us. There were those who
decided from the outset, long even before the Commission had begun its work, to discredit us by trying to paint the
Commission as a witch-hunt of, especially, Afrikaners; by claiming that we were biased in favour of the ANC, and as
having failed in the end to advance the course of reconciliation. This latter kind of criticism was a clever ploy to seek
pre-emptively to discredit the Commission and hence its report.


35 Those who have cared about the future of our country have been worried that the amnesty provision might, amongst
other things, encourage impunity because it seemed to sacrifice justice. We believe this view to be incorrect. The
amnesty applicant has to admit responsibility for the act for which amnesty is being sought, thus dealing with the
matter of impunity. Furthermore, apart from the most exceptional circumstances, the application is dealt with in a
public hearing. The applicant must therefore make his admissions in the full glare of publicity. Let us imagine what this
means. Often this is the first time that an applicant's family and community learn that an apparently decent man was,
for instance, a callous torturer or a member of a ruthless death squad that assassinated many opponents of the
previous regime. There is, therefore, a price to be paid. Public disclosure results in public shaming, and sometimes a
marriage may be a sad casualty as well.


36 We have been concerned, too, that many consider only one aspect of justice. Certainly, amnesty cannot be viewed as
justice if we think of justice only as retributive and punitive in nature. We believe, however, that there is another kind of
justice a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring
broken relationships with healing, harmony and reconciliation. Such justice focuses on the experience of victims;
hence the importance of reparation.


37 The Commission has also been harshly criticised for being loaded with so-called 'struggle'-types, people who were pro-
ANC, SACP or PAC. We want to say categorically we did not choose ourselves, nor did we put our own names
forward. We were nominated in a process open to anyone whatever their political affiliation or lack of it. We were
interviewed in public sessions by a panel on which all the political parties were represented. Moreover, when the
President made his choice from a short list, it was in consultation with his Cabinet of National Unity, which included the











ANC, the IFP and the National Party. No one, as far as we know, objected publicly at the time to those who were so
appointed. Indeed, many of us were chosen precisely because of our role in opposing apartheid which is how we
established our credibility and demonstrated our integrity. I am myself, even today, not a card-carrying member of any
political party. I believe, on the other hand, that some of my colleagues may have been chosen precisely because of
their party affiliation, to ensure broad representivity.


38 Many here and overseas have criticised us sharply for having been so conciliatory and accommodating towards Mr
PW Botha. We have been accused of handling him with kid gloves; of bending over backwards whilst he has
responded with arrogant defiance and intransigence. It is not too difficult to imagine the reaction in certain quarters had
Mr Botha been a member of the ANC.


39 We were told that we revealed our true colours when blanket amnesty was granted to thirty-seven ANC leaders. This
accusation is understandable when it comes from those who are not familiar with the law that brought the Commission
into being. At the insistence of the National Party, it was decided that the Amnesty Committee should be completely
autonomous in all matters relating to the granting or refusal of amnesty. The Commission was thus prevented from
interfering in any way in this process. The decision to grant amnesty to the thirty-seven ANC members was taken by
three judges who could not be accused of being ANC lackeys.


40 Nevertheless, at our very first Commission meeting after this Amnesty Committee decision, we agreed unanimously to
apply to the High Court for a judicial review of the Committee's decision, which was the only course open to us. We
then tried to persuade the ANC to agree to a judgement by consent in order to save time and money. Despite this, a
certain political party, fully aware that the matter was in hand, sought to derive political capital by rushing its own
application. If we were biased in favour of the ANC, why did we take the action we did?


41 When the ANC suggested that its members would not apply for amnesty because they were involved in a just war, I
threatened to resign from the Commission. Happily, the ANC changed its mind so I was not forced to do so. It should
be noted that I have not taken such a position about the action of any other party. Can you imagine the outcry if the
Commission had put a National Party member through the kind of nine-day gruelling hearing to which Ms Madikizela-
Mandela was subjected?


42 We have been accused, too, of an ANC bias for refusing to hold public hearings over the gross violations that allegedly
took place in the ANC camps in Angola. The fact is that a few people did come forward to testify at human rights
violations hearings about what they say happened to them in Quatro. Indeed, one of these people testified when
President Mandela was visiting the Commission to attend a hearing in Gauteng. He had to sit through a tirade against
the ANC. Had we been ANC lackeys, is it not likely that I would have stopped this witness to spare the ANC President
this embarrassment?


43 We held, in addition, a special hearing on prisons where evidence about conditions in Quatro was led. The ANC
provided considerable information in the Stuart, Motsuenyane and Skweyiya Commissions, which it had itself
appointed to investigate allegations of these abuses. There are likely to be amnesty hearings involving those involved
in these violations.











44 It is thus mischievous to suggest that we have not wanted to investigate incidents that might prove embarrassing to the
ANC. We would urge our over-enthusiastic critics to read our findings in this report relating to those abuses of which
the ANC might be guilty.
45 These examples should surely be sufficient to establish that we are politically independent and not biased in favour of
any particular political party or group.
46 Another frequent criticism has been that we have allowed people such as Ms Madikizela-Mandela, Mr PW Botha and
Dr Wouter Basson, in a manner of speaking, to 'get away with murder'. In response to this, we have pointed out that
we are not a court of law. Ms Mandela, for example, was cross-examined by a panel of lawyers and gave the answers
she chose to give. We announced that we were not going to pronounce a verdict at the end of that sitting but would be
making our finding (contained in this report) based on the evidence and our impression of the witness.
47 In both her case and that of Dr Basson, one almost has the impression that people would like us to squeeze
satisfactory responses from the witnesses. However, short of putting them on a rack and torturing them, there is in fact
nothing one can ultimately do in a constitutional democracy beyond making an appropriate finding. After all, even in a
court of law there is nothing the prosecution can do to force witnesses to give satisfactory answers except to charge
them with contempt. Even that will not necessarily elicit the facts.
48 Equally, in the case of Mr Botha, all we could do was to lay a criminal charge which we did, however reluctantly. Even
while the court case was in progress, we continued to seek an acceptable solution both in the interests of
reconciliation and because we did not want to see him humiliated. We offered to have an in camera hearing and to
provide him in advance with the list of questions we wanted to ask him. Only a thoroughly biased person could accuse
us of harassing a hapless old man. In the face of his obduracy, we were faced with no choice but to lay charges. The
decision to prosecute was taken independently by the Attorney-General. But we did thereby demonstrate that nobody is
above the law.
49 Others have taken us to task because they were unhappy when the Amnesty Committee gave amnesty to certain
perpetrators such as those responsible for the St James' Church killings or the murder of Amy Biehl. Clearly these
people have forgotten the raison d'6tre for amnesty. Amnesty is not meant for nice people. It is intended for
perpetrators. There are strict criteria to be met and we believe that the Committee has used those criteria to determine
whether or not amnesty should be granted. Amnesty is a heavy price to pay. It is, however, the price the negotiators
believed our country would have to pay to avoid an "alternative too ghastly to contemplate". Sadly, in almost all cases,
there was an outcry only when the victim was white and the perpetrator black. I wonder whether people have
considered how the Trust Feed Farm community must have felt when Brian Mitchell got amnesty since it was his
misinterpreted orders that led to the death of eleven persons in that community?
50 As a matter of fact, the Amnesty Committee has granted only about 150 amnesties out of 7 000 applications, with a
further 2 000 still to be dealt with. This can hardly be described as an avalanche of reckless decisions.
51 I think some people have wrongly thought that we were targeting former security force members because there has
been so much about them and their mis-demeanours in the media. This, in very large measure, is because most of the
violations of which the liberation movements are guilty were already in the public domain. Most of the
perpetrators had been arrested; often they had been convicted and sometimes even executed as for example in the
case of the Magoo's Bar bombers, the Amanzimtoti Wimpy Bar bomber and those responsible for various necklacings.
The South African Police used to preen itself about its successes in these operations. Concerning events such as the
PEBCO Three, the Cradock Four and so on, the police engaged in elaborate and effective cover-ups. Now that their
nefarious deeds are coming to light on their own admissions, the white community especially is appalled to discover
that their 'boys' were not always the paragons of virtue they had presented themselves as. The disillusionment is











shattering. But it is not the Commission that should be blamed for this. The truth has always been there. It had simply
been hidden from the public gaze.
52 Some have criticised us because they believe we talk of some acts as morally justifiable and others not. Let us quickly
state that the section of the Act relating to what constitutes a gross violation of human rights makes no moral
distinction it does not deal with morality. It deals with legality. A gross violation is a gross violation, whoever commits
it and for whatever reason. There is thus legal equivalence between all perpetrators. Their political affiliation is
irrelevant. If an ANC member tortures someone, that is a gross violation of the victim's rights. If a National Party
member or a police officer tortures a prisoner, then that is a gross violation of the prisoner's rights.
53 The supporters of the previous regime have been at great pains to insist that the reason they did many of the
unsavoury things that have since come to light was largely because they were fighting against an evil and predatory
Communism. This shows that they do accept that the use of force is subject to moral judgement and distinctions.
When a woman kills a person who tries to rape her, she has committed homicide; yet, society and the law would argue
that she was not criminally culpable. Society might even commend her. If a hijacker kills the driver of the car he was
hijacking, he has committed a homicide. Society heaps condemnation and opprobrium on him and the law finds him
guilty of culpable homicide.
54 Hence, the same kind of act attracts different moral judgements. A venerable tradition holds that those who use force
to overthrow or even to oppose an unjust system occupy the moral high ground over those who use force to sustain
that same system. That is when the criteria of the so-called 'just war' come into play as discussed in The Mandate
chapter in our report. This does not mean that those who hold the moral high ground have carte blanche as to the
methods they use. Thus, to hold this particular view is not to be guilty of a bias. It is to assert that we move in a moral
universe where right and wrong and justice and oppression matter.
55 It would be the height of stupidity as well as being self-defeating for the Commission to subvert its work by being
anything less than fair and even-handed. This is, after all, required by the law that brought it into being. We want our
work to be generally accepted. Unfair discrimination would be prejudicial to such acceptance. Some of us have been
characterized by an independence that has led us to condemn wrong wherever it happened or whoever was the culprit,
and have done so without fear or favour. We could not change this critical independence when so much hinged on it.
56 We have sought to carry out our work to the best of our ability, without bias. I cannot, however, be asked to be neutral
about apartheid. It is an intrinsically evil system. But I am even-handed in that I will let an apartheid supporter tell me
what he or she sincerely believed moved him or her, and what his or her insights and perspectives were; and I will take
these seriously into account in making my finding. I do believe that there were those who supported apartheid who
genuinely believed that it offered the best solution to the complexities of a multiracial land with citizens at very different
levels of economic, social and educational development. I do not doubt that many who supported apartheid believed
that it was the best policy in the circumstances to preserve their identity, language and culture and those of other
peoples as well. I do believe such people were not driven by malicious motives. Many believed God had given them a
calling to help civilise benighted natives. I do not for a single moment question the sincerity of those who believed that
they were defending their country and what they understood to be its Western Christian values against the atheistic
Communist onslaught. No, I do not call their motives into question. I do, however, condemn the policy they applied.
57 A last word to those who have made it their obsessive business in life to discredit and vilify the Truth and
Reconciliation Commission. It has been wonderful to see the high regard in which the Commission is held in the
international community. Almost without exception, foreign heads of state visiting this country have insisted on paying
a visit to the Commission. The royal couples of Norway, Sweden and Denmark have been among such visitors.
Presidents of the German Republic, Portugal, France and most recently of the Swiss Confederation have met with the











Chair of the Commission, as did the First Lady of the United States and the Secretary General of the United Nations,
Mr Kofi Annan. The international community has supported our work financially, and through staff secondments and
generous donations to the President's Fund.
58 Some of us have been awarded the highest decorations of some of these countries; others have received honorary
doctorates, and some of my colleagues have gone on from the Commission to take up prestigious appointments. One,
for example has been appointed vice-chancellor of the University of Durban-Westville; another as an acting Judge of
Appeal. Others have been given fellowships to eminent universities.
59 Surely, if the institution were so thoroughly discredited, nobody respectable would want to touch us with a bargepole.
The opposite is clearly the case. The world is waiting expectantly for this report because the world has marvelled at
how we South Africans have gone about trying to deal with our past. Many are wondering whether they can learn from
our experience. In December 1998, Switzerland will host a seminar to consider the contribution of truth and
reconciliation commissions in other post-conflict situations in the world. We have been asked to contribute to this by
sharing our unique experiences with other countries.
60 I have been at great pains to demonstrate the Commission's independence and lack of bias because we are concerned
that its work and report should gain the widest possible acceptance. This could well prove to be a futile exercise if
those who think that the best way of responding to a report they suspect is going to be less than favourable to them is
to come out with all guns blazing to attack the Truth and Reconciliation Commission, and hope thereby to discredit it
and its report.
61 This would be a shortsighted approach what one might call the Esau option, seeking a short-term advantage at the
cost of a longer-term but greater benefit. Thus, when the Commission declares apartheid a crime against humanity, its
most ferocious critics will say: "What did we tell you; what did you expect from such a skewed Commission packed
with 'struggle' types, hell bent on a witch-hunt against Afrikaners and so obviously biased in favour of the ANC?"
62 Mercifully the international community, and not just the Communist bloc, has already declared apartheid to be a crime
against humanity. For the international community, indeed, this is no longer a point of debate. The world Christian
community has declared that the theological justification of apartheid is a heresy. Closer to home, the Nederduitse
Gereformeerde Kerk has said that apartheid is a sin. Some of the most senior judges in our country who could not by
any reasonable person be described as demagogues or lackeys of the ANC have called apartheid a gross violation of
human rights. Thus, the Truth and Reconciliation Commission is a latecomer in this area. The world would indeed be
surprised if the Commission had not found apartheid to be a crime against humanity.
63 This means that we cannot hope properly to understand the history of the period under review unless we give apartheid
and racism their rightful place as the defining features of that period. People would be surprised if anyone wanting to
describe or understand the post World War II period were to ignore Soviet Communism or not give it a central, indeed
pivotal, place in the geopolitics of that period. We know that nations defined themselves in terms of their relationship to
Communism. That is what determined the politics, economics and foreign policies of the different protagonists at the
time. It is what determined the nature of the Cold War period. The attitude towards Communism defined who one's
allies and enemies were, what sort of defence budget was necessary and which surrogate states to support. The threat
was seen as so serious that the world's greatest Western democracy saw nothing wrong with supporting some of the
world's worst dictatorships for example, Pinochet's Chile, other Latin American military dictatorships and Marcos'
Philippines simply because these declared themselves to be anti-Communist. The USA was ready to subvert
democratically-elected governments by supporting internal dissidents in their efforts to overthrow legitimate regimes -
such as the Contras in Nicaragua and UNITA in Angola because the elected governments were Communist-
influenced or fellow-travellers. The West did not seem to care too much about the human rights records of their











surrogates. What we are underlining is that, to understand this Cold War period, one has to acknowledge the key role
of Soviet Communism.
64 I want to suggest that apartheid and racism played a similar defining role in the history of the period under review. The
vast majority, if not all, of the gross violations of human rights that were perpetrated in this period happened at the
hands either of those who sought to defend the unjust apartheid and racist dispensation or those who sought to resist
and ultimately overthrow that system.
65 This is not the same as saying that racism was introduced into South Africa by those who brought apartheid into being.
Racism came to South Africa in 1652; it has been part of the warp and woof of South African society since then. It was
not the supporters of apartheid who gave this country the 1913 Land Act which ensured that the indigenous people of
South Africa would effectively become hewers of wood and drawers of water for those with superior gun power from
overseas. 1948 merely saw the beginning of a refinement and intensifying of repression, injustice and exploitation. It
was not the upholders of apartheid who introduced gross violations of human rights in this land. We would argue that
what happened when 20 000 women and children died in the concentration camps during the Anglo-Boer War is a
huge blot on our copy book. Indeed, if the key concepts of confession, forgiveness and reconciliation are central to the
message of this report, it would be wonderful if one day some representative of the British/English community said to
the Afrikaners, "We wronged you grievously. Forgive us." And it would be wonderful too if someone representing the
Afrikaner community responded, "Yes, we forgive you if you will perhaps let us just tell our story, the story of our
forebears and the pain that has sat for so long in the pit of our stomachs unacknowledged by you." As we have
discovered, the telling has been an important part of the process of healing.
66 To lift up racism and apartheid is not to gloat over or to humiliate the Afrikaner or the white community. It is to try to
speak the truth in love. It is to know the real extent of the sickness that has afflicted our beloved motherland so long
and, in making the right diagnosis, prescribe the correct medicine. We would not want to be castigated as the prophet
Jeremiah condemned the priests and prophets of his day (Jeremiah 6:13-14):


For from the least to the greatest of them,
every one is greedy for unjust gain;
and from prophet to priest,
everyone deals falsely.
They have healed the wound of my people lightly,
saying "Peace, peace,"
when there is no peace.


67 It is to give substance to our cry from the heart that politicians should really stop playing ducks and drakes with our
future for the greatest sadness that we have encountered in the Commission has been the reluctance of white leaders
to urge their followers to respond to the remarkable generosity of spirit shown by the victims. This reluctance, indeed
this hostility, to the Commission has been like spitting in the face of the victims.


p RECONCILIATION


68 Some have been upset by the suggestion that the work of the Truth and Reconciliation Commission could have
resulted in making people angrier and race relations more difficult, as indicated by a recent survey. It would be naive in
the extreme to imagine that people would not be appalled by the ghastly revelations that the Commission has brought











about. It would have been bizarre had this not happened. What is amazing is that the vast majority of the people of this
land, those who form the bulk of the victims of the policies of the past, have said they believe reconciliation is possible.
69 The trouble is that there are erroneous notions of what reconciliation is all about. Reconciliation is not about being
cosy; it is not about pretending that things were other than they were. Reconciliation based on falsehood, on not facing
up to reality, is not true reconciliation and will not last.
70 We believe we have provided enough of the truth about our past for there to be a consensus about it. There is
consensus that atrocious things were done on all sides. We know that the State used its considerable resources to
wage a war against some of its citizens. We know that torture and deception and murder and death squads came to be
the order of the day. We know that the liberation movements were not paragons of virtue and were often responsible
for egging people on to behave in ways that were uncontrollable. We know that we may, in the present crime rate, be
reaping the harvest of the campaigns to make the country ungovernable. We know that the immorality of apartheid has
helped to create the climate where moral standards have fallen disastrously.
71 We should accept that truth has emerged even though it has initially alienated people from one another. The truth can
be, and often is, divisive. However, it is only on the basis of truth that true reconciliation can take place. True
reconciliation is not easy; it is not cheap. We have been amazed at some almost breathtaking examples of
reconciliation that have happened through the Commission. Examples abound in the chapter on reconciliation. I want
to make a heartfelt plea to my white fellow South Africans. On the whole we have been exhilarated by the magnanimity
of those who should by rights be consumed by bitterness and a lust for revenge; who instead have time after time
shown an astonishing magnanimity and willingness to forgive. It is not easy to forgive, but we have seen it happen.
And some of those who have done so are white victims. Nevertheless, the bulk of victims have been black and I have
been saddened by what has appeared to be a mean-spiritedness in some of the leadership in the white community.
They should be saying: "How fortunate we are that these people do not want to treat us as we treated them. How
fortunate that things have remained much the same for us except for the loss of some political power."
72 Can we imagine the anger that has been caused by the disclosures that the previous government had a Chemical and
Biological Warfare Programme with projects that allegedly targeted only black people, and allegedly sought to to
poison President Nelson Mandela and reduce the fertility of black women? Should our land not be overwhelmed by
black fury leading to orgies of revenge, turning us into a Bosnia, a Northern Ireland or a Sri Lanka?
73 Dear fellow South Africans, please try to bring yourselves to respond with a like generosity and magnanimity. When
one confesses, one confesses only one's own sins, not those of another. When a husband wants to make up with his
wife, he does not say, "I'm sorry, please forgive me, but darling of course you too have done so and so!" That is not the
way to reach reconciliation. That is why I still hope that there will be a white leader who will say, "We had an evil
system with awful consequences. Please forgive us." Without qualification. If that were to happen, we would all be
amazed at the response.



p APPRECIATION


74 It has been a distinct honour and privilege to have been asked to preside over and participate in the crucial process of
attempting to heal a traumatised and deeply divided people. We want to say thank you to the President, Mr Nelson
Mandela, for having appointed us to this noble task. He has been an outstanding example and inspiration for the work
of reconciling our alienated and polarised people.











75 We owe a great debt of gratitude to the Minister of Justice, the Honourable Mr Dullah Omar, who has been readily
accessible and wonderfully supportive of us all in the Truth and Reconciliation Commission. It has been a great
pleasure to have worked under the auspices of his department. He and his staff have spared no efforts in assisting us.
76 The Department of Safety and Security and the South African Police Services (SAPS) have been efficient in providing
security to our buildings and personnel as well as at our various hearings. They have proved friendly and efficient and
a splendid example of the kind of transformation we would like to see. They have increasingly become friends of the
people.
77 We also want to express our appreciation to various other government departments at national, provincial and local
levels.
78 Our difficult work would have been even more so had it not been for the outstanding contributions of the various faith
communities, non-governmental organizations (NGOs) and other organizations of civil society, so many of whom have
facilitated our work at different levels and in all kinds of ways. We have benefited from the participation of many
volunteers and we want them to know that we are deeply indebted to them for their invaluable contribution.
79 We have been fortunate that the media, both print and electronic, have helped to carry the Commission and its work
into every corner of our own land and other lands. We are particularly grateful for the work of SABC (South African
Broadcasting Corporation) radio, which communicated in all our official languages to ensure that even the illiterate did
not miss out. We want to mention, too, the special television programme that was broadcast on Sunday evenings -
giving a summary of the previous week's events at the Commission and a preview of the coming week's events. No
wonder these television and radio programmes won prestigious awards on which we congratulate them. The media
helped to ensure that the Commission's process was as inclusive and as non-elitist as possible.


80 I am honoured to express our gratitude to all those over 20 000 persons who came forward to tell us their stories -
either at the public hearings of our Human Rights Violations Committee or in the statements recorded by our statement
takers. They were generous in their readiness to make themselves vulnerable; to risk opening wounds that were
perhaps in the process of healing, by sharing the often traumatic experiences of themselves or their loved ones as
victims of gross violations of human rights. We are deeply in their debt and hope that coming to the Commission may
have assisted in the rehabilitation of their human and civil dignity that was so callously trampled underfoot in the past.
We pray that wounds that may have been re-opened in this process have been cleansed so that they will not fester;
that some balm has been poured on them and that they will now heal.


81 We want to thank the various organizations, professional bodies and individuals who made written submissions as well
as those who appeared before the Commission during the special institutional hearings. We are disappointed that
certain bodies rejected our invitation to make submissions and are particularly distressed that judges refused to appear
before the Commission, although a significant few did send written submissions. We have not been persuaded by the
judges' arguments as to why they did not appear.


82 We are grateful, too, for the support we have received from the international community in personnel as well as
financial aid. Our work would have been severely hampered had it not been for the generosity of foreign donor nations.
They provided us with experienced police officers and investigators who strengthened our Investigation Unit quite
considerably. They gave us funds to help to pay for the live radio and television broadcasts that made the Commission
so much a part of the South African landscape. We are equally grateful to them for the generous donations they have
already made to the President's Fund from which reparations will be disbursed.













83 I want to pay a very warm tribute to all my colleagues, my fellow commissioners, our committee members and our
dedicated staff. My fellow commissioners are gifted persons, frequently leaders in their particular fields. They have
worked themselves to a frazzle, committed and conscientious to a fault.


84 None will take it amiss when I single out for special mention the vice-chairperson, Dr Alex Boraine. We were fortunate
to have had him because frankly he performed nothing short of a miracle in getting the ball rolling, employing staff and
procuring premises for the Commission in record time. Without his remarkable energy and competence, we would not
have started as soon as we did. I would not want to wish such a project starting up a massive undertaking such as
this de novo on my worst enemy. We made it very largely because of Dr Boraine. He has taken a lot of flak from
those who have delighted in taking political pot shots at him. He is a man of unshakeable integrity and commitment. I
want to assure those who might have thought of him as a political opponent from his parliamentary days that he is
scrupulously fair.


85 We have been served by a team of outstanding individuals starting from Dr Minyuku, our indefatigable chief executive
officer, to the most junior staff member. They have had to gel quickly, despite knowing that this intense and gruelling
task would last only two years or so. This knowledge could have been thoroughly debilitating, sapping morale and
energy, but I have been amazed that almost all our staff members have been so dedicated and so conscientious. Most
have gone well beyond the call of duty, working many overtime hours as proof of their dedication.


86 The Research Department led by Professor Charles Villa-Vicencio has played a major role in producing this report. Our
thanks are due to them for their sterling work.


87 It has been a gruelling job of work that has taken a physical, mental and psychological toll. We have borne a heavy
burden as we have taken onto ourselves the anguish, the awfulness, and the sheer evil of it all. The interpreters have,
for instance, had the trauma of not just hearing or reading about the atrocities, but have had to speak in the first
person as either a victim or the perpetrator,


They undressed me and opened a drawer and shoved my breast into the drawer which they then slammed
shut on my nipple! [or] I drugged his coffee, then I shot him in the head. Then I burned his body. Whilst we
were doing this, watching his body burn, we were enjoying a braai on the other side.



88 The chief of the section that typed the transcripts of the hearings told me:


As you type, you don't know you are crying until you feel and see the tears falling on your hands.



89 We have been given a great privilege. It has been a costly privilege but one that we would not want to exchange for
anything in the world. Some of us have already experienced something of a post traumatic stress and have become
more and more aware of just how deeply wounded we have all been; how wounded and broken we all are. Apartheid
has affected us at a very deep level, more than we ever suspected. We in the Commission have been a microcosm of











our society, reflecting its alienation, suspicions and lack of trust in one another. Our earlier Commission meetings were
very difficult and filled with tension. God has been good in helping us to grow closer together. Perhaps we are a sign of
hope that, if people from often hostile backgrounds could grow closer together as we have done, then there is hope for
South Africa, that we can become united. We have been called to be wounded healers.



90 I pay a warm tribute to all my fellow wounded healers. You have done a splendid job of work. You have given it your
best shot. It has been an immense privilege to captain such a superb team.



P CONCLUSION



91 Ours is a remarkable country. Let us celebrate our diversity, our differences. God wants us as we are. South Africa
wants and needs the Afrikaner, the English, the coloured, the Indian, the black. We are sisters and brothers in one
family God's family, the human family. Having looked the beast of the past in the eye, having asked and received
forgiveness and having made amends, let us shut the door on the past not in order to forget it but in order not to
allow it to imprison us. Let us move into the glorious future of a new kind of society where people count, not because of
biological irrelevancies or other extraneous attributes, but because they are persons of infinite worth created in the
image of God. Let that society be a new society more compassionate, more caring, more gentle, more given to
sharing because we have left "the past of a deeply divided society characterized by strife, conflict, untold suffering
and injustice" and are moving to a future "founded on the recognition of human rights, democracy and peaceful co-
existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex."


92 Like our Constitution, the Commission has helped in laying-


the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which
generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and
a legacy of hatred, fear, guilt and revenge.


93 My appeal is ultimately directed to us all, black and white together, to close the chapter on our past and to strive
together for this beautiful and blessed land as the rainbow people of God.


94 The Commission has done its share to promote national unity and reconciliation. Their achievement is up to each one
of us.


95 I am honoured to commend this report to you.










Volume ONE Chapter TWO

Historical Context


P GROSS HUMAN RIGHTS VIOLATIONS IN POLITICAL & HISTORICAL PERSPECTIVE

1 Chief Justice DP Mahomed has said:

For decades South African history has been dominated by a deep conflict between a minority which
reserved for itself all control over the political instruments of the state and a majority who sought to
resist that domination. Fundamental human rights became a major casualty of this conflict ... the
legitimacy of the law itself was deeply wounded as the country haemorrhaged in the face of this
tragic conflict...

2 The Promotion of National Unity and Reconciliation Act (the Act) charged the Truth and Reconciliation
Commission (the Commission) with investigating and documenting gross human rights violations committed
within or outside South Africa in the period 1960-94. In doing so, it was to compile as complete a picture as
possible of these events and violations. In its report, therefore, the Commission seeks to reflect fairly and
fully the motives and perspectives of both the alleged perpetrators of gross human rights violations and of
their victims.

3 Before starting on the long journey through these volumes, two major points or themes need to be developed in order
to place their context in fuller political and historical perspective. The first of these relates to the fact that this report
covers only a small fraction of time although possibly the worst and certainly, in regard to the wider region, the
bloodiest in the long and violent history of human rights abuse in this subcontinent. The second point to be made is
that the report tells only a small part of a much larger story of human rights abuse in South and southern Africa.

4 In developing these two themes in this chapter, special attention will be given to the role and contribution of two
phenomena or factors in the shaping of this country's history, namely violence and the law, and the relationship
between them.

P THE LIMITED TIME FRAME OF THE COMMISSION

5 Reference was made in the opening paragraphs to the limited time frame imposed on the Commission. The
purpose was to place in historical context what happened in Southern Africa in the period 1960-94. In a
continental context, this represented the last great chapter in the struggle for African decolonisation. In a
South Africa-specific context, it was the climactic phase of a conflict that dated back to the mid-seventeenth
century, to the time when European settlers first sought to establish a permanent presence on the
subcontinent.

6 Thus, it is evident that it was not the National Party government that introduced racially discriminatory
practices to this part of the world. Nor is it likely that the National Party government was the first to










perpetrate some or most of the types of gross violations of human rights recorded in this report. The
probable exception is that category of abuse that falls under the general rubric of contra-mobilisation -
exemplified by the deployment of surrogate forces such as the Caprivi-trained Inkatha supporters, the
Witdoeke, the A-team and other politicised gangs, as well as those forces, such as UNITA, that were used to
destabilise the region.


7 Hence, the types of atrocities committed during the period falling within the mandate of the Commission
must be placed in the context of violations committed in the course of:


a The importation of slaves to the Cape and the brutal treatment they endured between 1652 (when the
first slaves were imported) and 1834 (when slavery was abolished).
b The many wars of dispossession and colonial conquest dating from the first war against the Khoisan in
1659, through several so-called frontier conflicts as white settlers penetrated northwards, to the
Bambatha uprising of 1906, the last attempt at armed defence by an indigenous grouping.
c The systematic hunting and elimination of indigenous nomadic peoples such as the San and Khoi-khoi
by settler groups, both Boer and British, in the seventeenth and eighteenth centuries.
d The Difaquane or Mfecane where thousands died and tens of thousands were displaced in a Zulu-
inspired process of state formation and dissolution.
e The South African War of 1899-1902 during which British forces herded Boer women and children into
concentration camps in which some 20 000 died a gross human rights violation of shocking
proportions.2
f The genocidal war in the early years of this century directed by the German colonial administration in
South West Africa at the Herero people, which took them to the brink of extinction.


8 It is also important to remember that the 1960 Sharpville massacre (with which the mandate of the
Commission begins) was simply the latest in a long line of similar killings of civilian protesters in South
African history. It was, for example, not a National Party administration but the South African Party
government, made up primarily of English-speaking South Africans, that in July 1913 crushed a series of
miners' strikes on the Reef sending in the army and killing just over one hundred strikers and onlookers.
Thrice in 1921 and 1922, this same governing party let loose its troops and planes: first, against a protesting
religious sect, the Israelites at Bulhoek, killing 183 people; second, against striking white mineworkers on the
Reef in 1922, resulting in the deaths of 214 people; and third, when the Bondelswarts people, a landless
hunting group of Nama origin in South West Africa, in rebellion against a punitive dog tax in 1922, were
machine-gunned from the air. One hundred civilians, mostly women, were killed.


9 Thus, when the South African Defence Force (SADF) killed just over 600 men, women and children,
combatant and non-combatant, at Kassinga in Angola in 1978, and when the South African Police (SAP)
shot several hundred black protesters in the weeks following the June 16 events at Soweto, they were
operating in terms of a well-established tradition of excessive or unjustifiable use of force against
government opponents. This is not, of course, to exonerate them or the force they employed, but simply to
put those events and actions in historical context.











10 Mention has been made of the social-engineering dimension of the policy of apartheid. Again, it needs to be
made clear that the National Party was not the first political party or group to have been accused of social
engineering on a vast scale in this part of the world. The post-South African War administration of Alfred
Milner was, for example, similarly accused concerning its Anglicisation schemes.


11 Indeed, one of most ambitious and far-reaching attempts at social engineering in twentieth century South
African history was introduced by the first post-unification South African Party government in the form of the
1913 Land Act. No other piece of legislation in South African history more dramatically and drastically re-
shaped the social map of this country. Not only did it lay the basis for the territorial separation of whites and
Africans; it destroyed, at a stroke, a thriving African landowning and peasant agricultural sector. It did so by
prohibiting African land ownership outside of the initial 7 per cent of land allocated to the so-called
traditional reserves and ending sharecropping and non-tenancy arrangements on white-owned farms. The
Land Act set in motion a massive forced removal of African people that led, amongst other things, to the
deaths of many hundreds of people who found themselves suddenly landless.


12 An observer of the impact of the Act on the African people, Solomon Plaatje, commented:


For to crown all our calamities, South Africa has by law ceased to be the home of any of her native children
whose skins are dyed with a hue that does not conform with the regulation hue ... Is it to be thought that God is
using the South African Parliament to hound us out of our ancestral homes in order to quicken our pace
4
heavenwards?


13 Plaatje retells a story told to him which illustrates the tragic human impact of the implementation of the Act:


A squatter called Kgobadi got a message from his father-in-law in the Transvaal. His father-in-law asked
Kgobadi to try to find a place for him to rent in the Orange 'Free' State.


But Kgobadi got this message only when he and his family were on their way to the Transvaal. Kgobadi was
going to ask his father-in-law for a home for the family. Kgobadi had also been forced off the land by the Land
Act.


The 'Baas' said that Kgobadi, his wife and his oxen had to work for R38 (18 pounds) a year. Before the Land
Act, Kgobadi had been making R200 (100 pounds) a year selling crops. He told the 'Baas' that he did not want
to work for such low wages. The 'Baas' told Kgobadi to go.
So, both Kgobadi and his father-in-law had nowhere to go. They were wandering around on the roads in the
cold winter with everything they owned. Kgobadi's goats gave birth. One by one they died in the cold and were
left by the roadside for the jackals and vultures to eat.

Mrs Kgobadi's child was sick. She had to put her child in the ox-wagon which bumped along the road. Two
days later, the child died.










Where could they bury the child? They had no rights to bury it on any land. Late that night, the poor young
mother and father had to dig a grave when no-one could see them. They had to bury their child in a stolen
grave.


14 Plaatje ended the story with the bitter words that even criminals who are hanged have the right to a proper
grave. Yet, under the cruel workings of the Land Act, little children "whose only crime is that God did not
make them white", sometimes have no right to be buried in the country of their ancestors.5


15 TM Dambuzu described the Land Act in these words:


There is winter in the Natives' Land Act. In winter the trees are stripped and leafless.


16 But if this was an act of wholesale dispossession and discrimination, so too was the 1909 South Africa Act
which was passed, not by a South African legislature, but by the British Parliament. In terms of the South
Africa Act, Britain's four South African colonies were merged into one nation and granted juridical
independence under a constitutional arrangement that transferred power in perpetuity to a minority of white
voters. No firm provisions were made for the protection or improvement of the civil and political rights of the
indigenous black majority.


17 Admittedly, the British government of the day was responding to pressure from the all-white South African
constitutional convention, but Britain had a juridical responsibility to all, and not simply its white, subjects.


18 No less of a betrayal was the 1936 Representation of Natives Act, by which Cape African voters were
disenfranchised or the 1956 Senate Act, by which the membership of that body was enlarged to enable the
National Party to summon a two-thirds majority to strip Coloured males of the vote. This latter piece of
constitutional chicanery was only the end of a process of black disenfranchisement begun by the British in
1909.


p THE LIMITED FOCUS OF THE MANDATE


19 As noted in the Mandate chapter later in this volume, the Commission's governing Act limited its
investigation to gross violations of human rights defined as the "killing, abduction, torture or severe ill-
treatment" and the "attempt, conspiracy, incitement, instigation, command or procurement to commit" such
acts. In essence, therefore, the Commission was restricted to examining only a fraction of the totality of
human rights violations that emanated from the policy of apartheid namely, those that resulted in physical
or mental harm or death and were incurred in the course of the political conflicts of the mandate period.


20 The Commission's focus was, therefore, a narrow or restricted one, representing what were perhaps some of
the worst acts committed against the people of this country and region in the post-1960 period, but providing
a picture that is by no means complete. For, simultaneous to the 'gross' abuses documented later in this
report, millions of South Africans, and more particularly those who were not white, were subjected to racial










and ethnic oppression and discrimination on a daily basis in pursuit of a system which the Mandate chapter
describes as "systemic, all-pervading and evil".


21 Furthermore, in applying this system and in seeking to perpetuate it, the government of South Africa let
loose upon the wider region a reign of terror and destruction. It was for this reason that Parliament
mandated the Commission to include within its scope gross human rights violations that occurred outside
South Africa.


22 Conceptually, the policy of apartheid was itself a human rights violation. The determination of an individual's
civil and political rights by a factor skin colour over which he or she has no control, constitutes an abuse
of those rights. Of course, such discrimination existed before 1948 and had its roots far back in South
Africa's colonial past. Nevertheless, the apartheid state that was constructed after 1948 had dimensions that
made it different from the discriminatory orders that preceded it.


23 Thus, although many of its laws built on or updated a de facto pattern of segregationist legislation (for
example, an industrial colour bar and limited African property and voting rights), the apartheid system was
of a qualitatively different type. No longer content to tolerate a de facto pattern of segregation in which 'grey'
areas of social mixing remained such as in urban residential patterns and inter-racial personal contacts and
relationships, including marriage from 1948, the new government set out to segregate every aspect of
political, economic, cultural, sporting and social life, using established legal antecedents where they existed
and creating them where they did not. Although making use of the forms of democracy (elections, proper
legislative processes and so on), it constructed a totalitarian order that was far from democratic in
substance.


24 Apartheid sought to maintain the status quo of white supremacy through the implementation of massive
social change. It was thus an ideology, simultaneously of change and of non-change; or alternatively,
perhaps, of reactionary change. To achieve its goals, Parliament:


a transformed the laissez-faire pattern of pre-1948 segregation into a systematic pattern of legalised
racial discrimination, and
b constructed a huge internal security apparatus and armed it with awesome legal powers to crush
opposition generated by the first process.


Legislation


25 With regard to the first process, the key legislative enactments were:


Population Registration Act 1950


26 This Act formed the very bedrock of the apartheid state in that it provided for the classification of every
South African into one of four racial categories. To achieve this end, it came up with definitions of racial
groupings which were truly bizarre:












A White person is one who is in appearance obviously white and not generally accepted as Coloured or who
is generally accepted as White and is not obviously Non-White, provided that a person shall not be classified
as a White person if one of his natural parents has been classified as a Coloured person or a Bantu ... A Bantu
is a person who is, or is generally accepted as, a member of any aboriginal race or tribe of Africa ... a
Coloured is a person who is not a white person or a Bantu.


27 Despite the crude and hopelessly imprecise wording of these definitions, the Act was imposed with vigour
and determination.


28 President Nelson Mandela wrote:


Where was one was allowed to live and work could rest on such absurd distinctions as the curl of one's hair
6
or the size of one's lips.


29 The result, especially for the coloured people, was human devastation. As John Dugard put it in 1972:


No words can capture the misery and human suffering caused by this legislative scheme which sometimes
results in divisions of families owing to the different racial classification of members of the same family7.


1950 Group Areas Act


30 In terms of the Group Areas Act, the entire country was demarcated into zones for exclusive occupation by
designated racial groups. Implemented from 1954, the result was mass population transfers involving the
uprooting of (almost exclusively) black citizens from their homes of generations, and the wholesale
destruction of communities like Sophiatown, District Six, Cato Manor and South End in Port Elizabeth.
Again, in human terms, the consequence was immense suffering and huge losses of property and income.


The 1949 Prohibition of Mixed Marriages Act and 1950 Immorality Amendment Act


31 According to this legislation, all future interracial marriages were prohibited, as were all forms of sexual
contact across colour lines. Like the Population Registration Act, the Immorality Act was energetically
implemented for some two to three decades, resulting in untold suffering in the form of harassment, public
humiliation and the destruction of marriages and family bonds. Suicide by those caught in the web of the
provisions of this Act was not unknown.


1950 Suppression of Communism Act


32 This Act provided not only for the banning of the Communist Party, but also for the legislative means to
crush or curb all forms of dissent communist, radical, liberal, radically religious and just plain annoying. It
did this through the inclusion of a definition of communism that was absurd in its breadth and vagueness.










1953 Separate Amenities Act


33 This Act designated all public amenities and facilities (parks, libraries, zoos, beaches, sports grounds, and
so on) for the exclusive use of specified racial groups. The allocation was made on a wholly unequal basis
with the result that most facilities and amenities were closed to black people.


1953 Bantu Education Act


34 The Bantu Education Act laid the basis for a separate and inferior education system for African pupils.
Based on a racist notion that blacks needed only to be educated, in the words of Dr Verwoerd, "in
accordance with their opportunities in life", the Act transferred the control of African schools from the
provinces to a central Bantu Education Department headed by Dr Verwoerd himself.


35 In addition, state subsidies to mission schools were first reduced and later stopped altogether. This meant
that they were either forced into the state school system or had to close which many (often the better)
schools did. The result, in the short term, was the destruction of black mission education in South Africa -
that sector of African education that had produced some of the country's finest minds and political leaders. It
also stifled the development of a private African school sector by requiring that all non-state schools be
registered with the then Native Affairs Department.


36 In the longer term, the consequence was exactly what had been intended: namely, the under-skilling of
generations of African children and their graduation into an economy for which they were singularly under-
equipped. The critical shortage of skills in the economy forty years later and the massive numbers of
unemployed African people bear witness to the legacy of this legislation.


37 In the next decade the 1960s legislation brought coloured and Indian education under state control with
similar, though not as severely deleterious, effects.










1959 Extension of University Education Act


38 This perversely named law, far from extending opportunities for tertiary education, actually had the opposite
effect by denying black students the right to attend their university of choice. It imposed apartheid on the
tertiary sector, making it illegal for the existing largely (in the case of the Afrikaans campuses exclusively)
white universities to admit black students except with ministerial permission. It resulted in the creation of
separate ethnic colleges for Indians, coloureds and Zulu, Sotho and Xhosa-speaking Africans.


39 This Act, which was first published in draft form in 1957, was significant in another sense. It signalled a shift
in government thinking in relation to the challenge posed by the growing force of African nationalism of the
time. Having laid out the framework for the racial compartmentalisation of, particularly, urban South Africa,
the government's provision for African tertiary education along ethnic lines flagged an intention to engage in
a further bout of racial and social engineering. This theme will be discussed later in this chapter.


40 These eight pieces of legislation laid the foundation of the new apartheid order in South Africa. However,
other important pieces of legislation passed in the first decade of apartheid rule stripped coloured male
voters of their common-roll franchise rights, further limited the rights of African workers to strike and bargain
collectively and, by extending pass laws to African women, further restricted the rights of Africans to move
from the reserves to the cities and to sell their labour to the highest bidder.8


The effects of apartheid legislation


41 Overall, what the National Party did in its first ten to twelve years of power amounted, in Leo Kuper's words9
to "a white counter-revolution" to forestall the perceived (although, as will be noted later, misinterpreted
and exaggerated) growing threat to white supremacy from both local forces and the rising tide of African
nationalist sentiment on the continent. This concern was often presented in the popular media as the 'Mau-
Mau factor', reflecting a real fear of what African independence represented for the white minority.


42 It was also a social engineering project of awesome dimensions through which, from about the mid-1950s
and for the next thirty or so years, the inherited rural and urban social fabric of South Africa was torn
asunder and recreated in the image of a series of racist utopias. In the process, as indicated earlier, millions
of black people and a handful of mainly poor whites were shunted around like pawns on a chessboard.
Forced to relocate to places that often existed only on the drawing boards of the architects of apartheid,
entire communities were simply wiped out. These included urban suburbs and rural villages, traditional
communities and homelands, schools, churches and above all people. Sometimes the demolition was total,
as in Sophiatown; sometimes an isolated temple, mosque or church was left intact, as in District Six, South
End and Cato Manor; sometimes simply the name remained, as in Diagonal Street.


43 Thus, it needs constantly to be borne in mind that, while the state and other operatives were committing the
murders and abductions and other violations documented in this report, a much larger pattern of human










rights violations was unfolding. These may not have been 'gross' as defined by the Act, but they were,
nonetheless, an assault on the rights and dignity of millions of South Africans and they were, in large part,
the product of the core legislation, and subsequent amendments, outlined above.



44 This point is eloquently developed in the Mandate chapter. For the vast majority of South Africans, human
rights abuse was:


for nearly half a century ... the warp and weft of their experience ... defining their privilege and their
disadvantage, their poverty and their wealth, their public and private lives and their very identity ... the system
itself was evil, inhumane and degrading ... amongst its many crimes, perhaps its greatest was the power to
humiliate, to denigrate and to remove the self-confidence, self-esteem and dignity of its millions of victims.



45 Thus, while only some 21 300 persons filed gross human rights violations petitions with the Commission,
apartheid was a grim daily reality for every black South African. For at least 3.5 million black South Africans
it meant collective expulsions, forced migration, bulldozing, gutting or seizure of homes, the mandatory
carrying of passes, forced removals into rural ghettos and increased poverty and desperation. Dumped in
the 'national states' without jobs, communities experienced powerlessness, vulnerability, fear and injustice.


46 Many of the killings and acts of torture documented in this report occurred precisely because of resistance to
the day-to-day experience of life under apartheid. The sixty-nine people killed at Sharpville were not armed
Umkhonto weSizwe (MK) cadres or even human rights' activists. They were just ordinary men and women
protesting against the hated dompas. Countless, nameless people had their rights trampled trying to save
their homes from apartheid's bulldozers. Hundreds died doing no more than demanding a decent education
or instruction in a language other than Afrikaans. One did not need to be a political activist to become a
victim of apartheid; it was sufficient to be black, alive and seeking the basic necessities of life that whites
took for granted and enjoyed by right.



p THE LAW AND ETHNICITY


47 The legislation of the early apartheid years and the implementation of those laws were countered by
considerable political activity and campaigning in the 1950s. This took the form of non-violent resistance
campaigns in the cities, such as the Defiance Campaign of 1952/53, the Congress of the People in 1955,
the 1956 bus boycotts, the anti-pass laws campaigns in 1959 and 1960 and so on. There were also sporadic
and scattered but sustained rural uprisings in Zeerust, Witzieshoek, Sekhukuneland, Marico, Harding and
Pondoland, which involved some levels of violence.


48 In the context of this domestic activity, together with growing international hostility and the fever of
decolonisation then sweeping Africa, the government responded in two ways. The first was to introduce a
battery of security laws; the second took the form of what might be described as its ethnic project.












Domestic opposition


49 Internal resistance forces at the end of the 1950s were weak. Despite the militant rhetoric contained in such
policy documents as the 1949 Programme of Action, the 1955 Freedom Charter and the 1959 founding
document of the Pan Africanist Congress, the nationalist movement lacked the capacity to translate its
intentions into effective action. First, it was internally divided: the 1959 breakaway of the Pan Africanist
Congress (PAC) was the result of a decade of division within the African National Congress (ANC). Second,
neither of these organizations had a mass base and their capacity outside of the cities was small. Third,
neither organisation had an effective strategic counter to the state's willingness to employ violence against
black protesters. Time and again in the 1950s, non-violence as a vehicle of struggle was shown to be an
impotent and ineffective counter to state action.


50 Even after the abandonment of non-violence and the adoption of various forms of armed struggle, the South
African government had little difficulty containing opposition until well into the 1980s. The reasons for this
need not be discussed extensively here, but they bear out the proposition of the American political scientist,
Harry Eckstein, that :


In the real world of phenomena, events occur not only because forces leading towards them are strong, but
also because forces tending to inhibit, or obstruct, are weak or absent. o


Politics in the region


51 One of the factors that inhibited or obstructed the liberation movements in their efforts to mount a serious
armed threat was their inability to develop secure and permanent rear bases in the neighboring states from
which they were obliged to operate. Ironically, the explanation for this is to be found in the very
circumstances the Pretoria government had viewed with such trepidation the recent decolonisation of
these states. Thus while, up until 1960, South Africa had, on the whole, enjoyed co-operative alliances with
the British and Portuguese colonial administrations in the region, these latter would never have tolerated the
cross-border violations undertaken by elements in the South African forces from the mid-1970s. However,
the new national entities, politically weak and economically bonded to South Africa, were largely helpless in
the face of South African aggression. Moreover, and perhaps to South Africa's surprise, it found that it had
the covert support of at least some of the governments and/or their security establishments in parts of the
region.


52 Given this situation, it is worth asking why it was that South Africa found it necessary from 1975 to wage
what became a thirteen-year long full-scale war in Angola. The answer lies in two factors.










The Namibian question
53 One of these factors related to the position of Namibia which, because of its contested status in international
law, had become the Achilles heel of the South African government. Eventually, South Africa would have to
surrender its control over the protectorate. Its ambition was, therefore, to thwart SWAPO (South West
African Peoples Organisation) in its ambitions to win independence for a democratic Namibia. From the late
1970s, Angola became SWAPO's forward base.
54 The other factor was the spectre of the Cold War, which continued to haunt the global scene in the 1970s
and 1980s. In this latter period of Cold War politics, the 'hot spot' or focus shifted from Europe to remote
parts of the globe like Afghanistan, Nicaragua and Ethiopia. With British and American encouragement, the
major powers came to see Angola as one of a number of regional arenas of Cold War confrontation.
55 Thus, largely as a consequence of a particular moment in the politics of the twentieth century, the way in
which southern African was perceived underwent a change of perspective. From an arena of racial conflict,
it became a scene of active Cold War confrontation. This perception was the result of a chance coalition of
interests between the United States and Britain (and their so-called 'special alliance') and a government
regarded almost everywhere else as a pariah. Hence, the coming to power in the United States and Britain
of Ronald Reagan and Margaret Thatcher, whose political mindset on international issues represented a
throwback to the 1950s and its obsession with Communism and the Soviet Union, presented the South
African government with a window of opportunity which it adroitly exploited.
56 In essence, the struggle to maintain white minority privilege was 'repackaged' as an effort to maintain so-
called western civilised values against the godless and evil forces of Communism. Thus it was that
conscripts, when they turned up for basic training in the 1980s, could be expected to believe (as one witness
related to the Commission): "this story that people tell you that there is a Communist behind every bush is
nonsense. There are in fact two."
57 This is not to suggest that there were not some even amongst top state and security officials who
genuinely believed in the threat and who saw themselves as anti-Communist crusaders. It is, however, the
view of the Commission that, at heart, the struggle for South and southern Africa was a racial one, and that
notions of the 'red peril' were manipulated to justify the perpetration of the gross human rights violations this
Commission was charged to investigate.


The 'Vorster' laws
58 Details of security legislation introduced in the 1960s are contained in a separate chapter. Suffice it to say
here that they amounted to a sustained assault on the principles of the rule of law. The suspension of the
principle of habeas corpus, limitations on the right to bail, the imposition by the legislature of minimum gaol
sentences for a range of offences and limitations on the ability of the courts to protect detainees all
contributed to a mounting exclusion of the authority of the courts from the administration of justice, thereby
seriously eroding their independence.
59 Security legislation also introduced into the law a definition of sabotage so broad and all encompassing as to
render virtually all forms of dissent illegal or dangerous. Peaceful protest and non-violent civil disobedience
no longer seemed a viable option and, faced with the choice 'to submit or fight', as Umkhonto weSizwe (MK)
expressed it in its launch statement, the resort to illegality and armed struggle was inevitable. With the
benefit of hindsight, it is now possible to see how, in its efforts to crush all opposition in the early 1960s, the
government sowed the seeds of its eventual destruction.












The 'ethnic project'
60 The second response of the government, as indicated earlier, was an attempt to counter the growing sense
of racial or African nationalist identity, with its aspirations to replace white minority hegemony with majority
rule. This it did by attempting to deflect these sentiments along particularistic (ethnic) lines and
endeavouring to create avenues for political expression within ethnic categories.
61 This was the intention of the Promotion of Bantu Self-Government Act in 1959. This piece of legislation
simultaneously abolished indirect political representation of Africans in Parliament and made provision for
the transformation of the African reserves (or 'homelands' as they came to be called in the 1960s) through
various stages of self-government to eventual fully-fledged independent status.
62 There was nothing particularly new or unique to this approach. In fact, it was a resort to long-established
colonial practice in Africa. As Mamdani11 has noted, other European colonisers had:


confronted the dilemma that the institutions of racial supremacy inevitably generated a racial identity not only
amongst its beneficiaries, but also amongst its victims. Their solution was to link racial exclusion to ethnic
inclusion: the majority that had been excluded on racial grounds would now appear as a series of ethnic
minorities, each included in an ethnically-defined political process. The point was to render racial supremacy
secure by eroding the racial identity of the oppressed, by fracturing it into so many ethnic identities.
63 While acknowledging that the National Party was "primarily concerned with maintaining our right to self-
determination", former President De Klerk12 argued that the bantustan project "was not without idealism":


We thought we could solve the complex problems that confronted us by giving each of the ten distinguishable
black South African nations self- government and independence within the core areas they had
traditionally occupied. In this way we would create a commonwealth of South African states each independent
but all co-operating on a confederal basis with one another within an economic common market
64 Beyond political idealism, Mr De Klerk articulated a development dimension, pointing to the construction of
ten capital cities:


each with its own parliament, quite impressive government buildings ... several well-endowed universities
... By 1975 some 77 new towns had been established and 130 204 new houses had been built. Between 1952
and 1975 the number of hospital beds in the homelands increased from some 5 000 to 34 689.
Decentralised industries were developed and hundreds of millions of rands were pumped into the traditional
areas in a futile attempt to stem the flood of people to the supposedly 'white' cities.
65 Such intentions notwithstanding, as a political project it failed; though it could be argued that it bought the
government some time. However, far from producing the hoped-for political nirvana for the African majority,
the bantustans degenerated into what one commentator once described as a "constellation of casinos".
More seriously, they became riddled with corruption and, as the expenditure referred to by Mr De Klerk
suggests, a never-ending drain on the central government's treasury.
66 More significantly, the political idealism of an envisaged ethno-nationalist commonwealth was undermined
by homeland leaders who displayed varying degrees of despotism. Far from becoming part of the










government's solution, therefore, the bantustans rapidly became part of the problem, acting as a spur and a
means to mobilise for the alternative inclusive and non-racial nationalism of the ANC and its allies.
67 Despite this, the manipulation of ethnicity represented by the bantustans became a critical component of the
government's contra-mobilisation or counter-revolutionary warfare programme in the 1980s. It was a line of
approach which spawned the Caprivi hit squads in KwaZulu and countrywide vigilante forces like the
Witdoeke, as well as the surrogate armies or elements in the region, like UNITA, RENAMO, the Lesotho
Liberation Army and Zimbabwean dissident groups.



p THE LAW AND VIOLENCE IN SOUTH AFRICAN HISTORY
68 Violence has been the single most determining factor in South African political history. The reference,
however, is not simply to physical or overt violence the violence of the gun but also to the violence of the
law or what is often referred to as institutional or structural violence.
69 White dominance in South Africa in the period covered by the Commission's mandate was founded on
colonial conquest, a condition consequent upon more than 200 years of near-continuous interracial conflict
which began with the first migration of white settlers in the mid-seventeenth century. Initial penetration was
relatively simple as the first encounters of these new northward-moving migrants were with nomadic
pastoralists with little or no military tradition.
70 Beyond them, however, were more formidable opponents. Originally southward-moving migrants
themselves, these were now independent and, in some cases, powerful nations; state systems with
hierarchic authority structures and deep-rooted military traditions. Like the northward-moving migrants, they
farmed land, exploited natural resources and raised stock. Conflict was inevitable and, contrary to the myth
propagated by some schools of local historiography, it did not take the form a series of one-sided victories
and defeats.
71 The reality is that the conquest of the South African interior was achieved only in slow stages and was
interspersed with setbacks and even defeats for the white intruders. Inevitably, however, the contest
between firearms and assegais could have only one ending. By the twentieth century, the backbone of
armed black resistance was broken and the independence of the people surrendered or ceded to
'protectorate status'.
72 Indigenous resistance did not, however, cease. It transformed itself into political and constitutional forms of
struggle. But neither did the violence of the victors end. Subjugation by the gun gave way to legislative
subjugation as one law after another sought to consolidate the gains of two centuries of overt violence.
Stripped bare, the 1913 Land Act was an act of violence, a brutal separation of people from their essential
means of sustenance. So too was much of the repressive legislation that followed down the years. Laws tore
millions of workers from their families, forcing them to work in white areas and live in enclosed compounds
to which their families had no access. Laws forced people to work for grossly insufficient remuneration and
to endure the indignity of pay scales determined not by competence or experience, but by race. Laws forced
people from their homes and communities and from their ancestral lands. Laws dictated with whom one
might and might not have sex, marry or even drink. Laws allowed people to die rather than violate 'whites-
only' hospital edicts, and then determined in which plot of ground they could be buried.
73 This preoccupation of the government with the law, with due constitutional process, with obtaining a
legislative mandate for whatever acts (however heinous) it or its security forces committed, was frequently










commented upon favourably by political analysts of the 1960s and 1970s. It was also often used to mount a
defence of the system. The argument made was that it was at least a system of law, albeit bad law, and thus
preferable to the military or political dictatorships to the north.
74 What these analysts failed to acknowledge was that the law was a veneer. Twentieth century law in South
Africa, to paraphrase Hannah Arendt, made crime legal. Mamdani made a similar point to the Commission
when he described apartheid law as "crime which was institutionalized as the law".13
75 Thus, these laws arose not out of reverence for justice and due process, but out of a wish to legitimise the
system. Beyond that even, the process of legitimation provided a means to self-justification for those whose
task it was to pass, enforce and defend the law.
76 However, in the 1980s, when the state was in crisis, it became clear that the law had run its course; that it
could no longer do the job. The law had become ineffective, an apparent obstruction to the restoration of
what government leaders, seemingly oblivious to the irony, called 'law and order'. At this stage, real rule-
making power shifted from Parliament and the Cabinet to a non-elected administrative body, the State
Security Council (SSC) which operated beyond public scrutiny. Nominally a sub-organ of the Cabinet, in
reality the SSC eclipsed it as the key locus of power and authority in matters relating to security.
77 In his presentation to the Commission on the state's counter-revolutionary warfare principles and strategy14
Craig Williamson provided an explanation of how this situation came about. He argued that, in the context
of insurgency and counter-insurgency theory (particularly as developed by McKuen), a democratic state is
often "limited by its laws, values and norms in the methods it can use to defeat an insurgent movement". Its
solution is to resort to "extra-legal counter-revolutionary acts, as long as they are done secretly". The South
African state, he argued, reached this stage in the 1980s:


The counter-insurgency elements of the police and military ... felt that a democratic state using democratic
methods could never withstand a concerted Soviet-backed revolutionary effort. Their solution was to suspend
democratic freedoms and to militarise South African society ...











78 The result was a:
drift ... more and more towards a militarily dominated state. This expressed itself in para-military action in
support of the state, while ensuring that the state's sponsorship thereof was kept secret ... In this context
results become more important than legality. The eleventh commandment was well known, especially to those
in the covert/special force elements of the security forces. This was 'Thou shalt not be found out'
79 It was not Parliament therefore, but the State Security Council that stood at the apex of the secretive
National Security Management System. Initially it targeted members of 'terrorist' groups operating outside of
South Africa, as well as their supporters and hosts. Then, from the mid-1980s, it began focusing on its
opponents inside South Africa. Of course, the word murder was never used but euphemisms like
'eliminasie' 'verwyder' 'neutraliseer' and 'uitwis' are to be found in some of the SSC policy documents
adopted in the 1980s.
80 To many, notably those in the leadership in the government and security forces in the 1980s, the conclusion
that the state sanctioned murder may and probably will be an unpalatable assertion. It is also probably not
what the Commission expected to find when it started its work two years ago. It is, however, a 'truth' to
which it has been drawn by the evidence.











Volume ONE Chapter THREE


Setting up the Commission




p SETTING UP
1 The President appointed the following persons as commissioners of the Truth and Reconciliation
Commission, and their names were published in the Government Gazette (No. 16885) on 15 December
1995. They were Archbishop Desmond Tutu (Chairperson), Dr Alex Boraine (Vice-Chairperson), Ms Mary
Burton, Adv Chris de Jager, the Revd Bongani Finca, Ms Sisi Khampepe, Mr Richard Lyster, Mr Wynand
Malan, the Revd Dr Khoza Mgojo, Ms Hlengiwe Mkhize, Mr Dumisa Ntsebeza, Dr Wendy Orr, Adv Denzil
Potgieter, Dr Mapule F Ramashala, Dr Fazel Randera, Ms Yasmin Sooka and Ms Glenda Wildschut.
2 The Commission held its first meeting at Bishopscourt, the residence of the Archbishop of Cape Town, on
the Day of Reconciliation, 16 December 1995. It was decided that the national office of the Commission
would be in Cape Town, and commissioners were allocated the following committees:
a The Human Rights Violations Committee: Archbishop Desmond Tutu (Chairperson), Mr Wynand Malan
(Vice-Chairperson), Ms Yasmin Sooka (Vice-Chairperson), Dr Alex Boraine, Ms Mary Burton, the Revd
Bongani Finca, Mr Richard Lyster, and Dr Fazel Randera.
b The Amnesty Committee: Adv Chris de Jager, Ms Sisi Khampepe and Adv Denzil Potgieter.1
c The Reparation and Rehabilitation Committee: Ms Hlengiwe Mkhize (Chairperson), Dr Wendy Orr
(Vice-Chairperson), the Revd Dr Khoza Mgojo, Dr Mapule F Ramashala and Ms Glenda Wildschut.
d Mr Dumisa Ntsebeza was appointed as head of the Investigation Unit.2

3 It was also agreed that the Department of Justice would assist in the process of establishing the offices and
infrastructure of the Commission.
4 On 8 January 1996, the Human Rights Violations Committee held its first meeting at the Johannesburg
International Airport. A work plan for the Committee was tabled and discussed. It was agreed that the
Committee would need to function in a decentralised manner.
5 The full Commission held its second meeting on 22 26 January 1996 when a wide range of topics was
discussed and decisions were made. After reviewing and discussing the Promotion of National Unity and
Reconciliation Act (the Act), the Commission agreed that it would maintain regional offices in four centres,
namely Cape Town, Johannesburg, Durban and East London. It agreed further that the headquarters of the
Amnesty Committee would be in Cape Town, while the headquarters of both the Human Rights Violations
Committee and the Reparation and Rehabilitation Committee would be in Johannesburg. There was a series
of discussions on the role of the Investigation Unit, the management of information, the need for a
sophisticated database, a media and communication strategy for the Commission, and the need for the
safety and security of Commission staff and resources. An organisational plan outlining the staffing structure
of the Commission was tabled and discussed, and the Commission agreed to advertise for staff without










delay. Other matters discussed included the recording and transcription of meetings and hearings, and
assistance offered by international donors.
6 The third full meeting of the Commission was held on the 13 and 14 February 1996. This meeting approved
a full staffing plan together with job descriptions and the appointment of a finance manager, a head of
research, a human resources manager and a human resources officer. The finance manager was mandated
to draw up a budget without delay. Finally, the meeting agreed that the following commissioners would be
responsible for the Commission's regional offices: Dr Wendy Orr (Cape Town), Dr Fazel Randera
(Johannesburg), the Revd Bongani Finca (East London) and Mr Richard Lyster (Durban).


p THE ESTABLISHMENT OF THE NATIONAL AND REGIONAL OFFICES


The national office and Cape Town regional office
7 At its second meeting in January 1996, the Commission agreed that the national office would be at 106
Adderley Street, Cape Town and, to save costs, the Cape Town regional office would be located in the same
building.
8 The lease was signed to commence on 1 March 1996, and the offices were renovated and certain structural
changes were made. They were ready for occupation shortly prior to that date. It took almost the entire
month of March to equip and furnish the offices properly and to put proper administrative systems in place.
The office was only fully functional from early April 1996.


The Johannesburg regional office
9 At its second meeting in January 1996, the Commission agreed that the Johannesburg regional office would
be located in the Sanlam Building at the corner of Jeppe and Von Wielligh streets in Johannesburg.
10 Temporary office space was provided in the Sanlam Building from 15 January 1996. Floor plans for the
Johannesburg office were complete by mid-February 1996, and the offices were constructed and ready for
occupation by the third week of March 1996. Furniture and office equipment were installed at this time, and
a few administrative and secretarial positions were filled in order to allow the office to begin to function. The
office was fully staffed and functional by early May 1996.


The East London regional office
11 At its third meeting in February 1996, the Commission agreed that the East London regional office would be
located in the NBS Building, 15 Terminus Street.
12 The first phase of occupation began on 1 March 1996 and entailed the provision of offices for one
commissioner, two committee members and two secretaries. The second phase of occupation began on 5
March 1996, when the regional manager was employed. From that time on, new office space and furniture
were acquired as new staff members were employed. The core staff was in place by 25 March 1996.
13 A satellite office was opened in Port Elizabeth and staffed by personnel previously based in East London
together with some new appointees.


The Durban regional office
14 At its third meeting in February 1996, the Commission agreed that the Durban regional office would be
located in Metlife House, 391 Smith Street, Durban.










15 The offices were ready for occupation by 15 March 1996. Twelve staff members had been employed by 25
March 1996 and basic office equipment and furniture had been purchased. The majority of staff had been
employed by 13 May 1996 at which stage the office was fully operational.
16 A satellite office was opened in Bloemfontein in May 1996, where staff was recruited quickly because of its
relatively small size. The office became functional almost immediately.



P CONCLUSION
17 The Commission moved relatively rapidly to establish itself. It was virtually inoperative during December
1995 and early January 1996, partly because this is traditionally a holiday period, and partly because certain
commissioners had to terminate or arrange leaves of absence from their previous employment. It took an
additional three to four months, with some regional variation, for the Commission to establish its
infrastructure and to advertise and employ sufficient staff to begin functioning close to full capacity. The
Commission was satisfied that the start-up phase was completed in a professional and efficient manner.








Volume ONE Chapter FOUR


The Mandate

INTRODUCTION

I have the privilege and responsibility to introduce today a Bill which provides a
pathway, a stepping stone, towards the historic bridge of which the Constitution
speaks whereby our society can leave behind the past of a deeply divided society
characterized by strife, conflict, untold suffering and injustice, and commence the
journey towards a future founded on the recognition of human rights, democracy and
peaceful co-existence, and development opportunities for all South Africans
irrespective of colour, race, class, belief or sex.

Its substance is the very essence of the constitutional commitment to reconciliation
and the reconstruction of society. Its purpose is to provide that secure foundation
which the Constitution enjoins: '...for the people of South Africa to transcend the
divisions and strife of the past, which generated gross human rights violations.., and
a legacy of hatred, fear, guilt and revenge'.

Dullah Omar, Minister of Justice introducing the Promotion of National Unity and
Reconciliation Act in Parliament, 17 May 1995

1 The spirit and intention of the Postamble to the interim Constitution is captured in the
Preamble of the Promotion of National Unity and Reconciliation Act No 34 of 1995 (the
Act) and provides the framework within which the establishment and mandate of the
Truth and Reconciliation Commission (the Commission) must be understood.

2 The Commission was conceived as part of the bridge-building process designed to help
lead the nation away from a deeply divided past to a future founded on the recognition
of human rights and democracy. Its purpose needs to be understood in the context of a
number of other instruments aimed at the promotion of democracy, such as the Land
Claims Court, the Constitutional Court and the Human Rights, Gender and Youth
Commissions, all institutional 'tools' in the transformation of South African society.

3 One of the main tasks of the Commission was to uncover as much as possible of the
truth about past gross violations of human rights a difficult and often very unpleasant
task. The Commission was founded, however, in the belief that this task was necessary
for the promotion of reconciliation and national unity. In other words, the telling of the
truth about past gross human rights violations, as viewed from different perspectives,
facilitates the process of understanding our divided pasts, whilst the public
acknowledgement of untold suffering and injustice' (Preamble to the Act) helps to
restore the dignity of victims and afford perpetrators the opportunity to come to terms
with their own past.1

4 In the course of fulfilling its mandate, it became clear to the Commission that organs of
civil society such as faith communities, non-governmental organizations (NGOs),
community-based organizations (CBOs) and ordinary citizens all have a role to play in
achieving the goal of national unity. South Africans will need to continue to work towards
unity and reconciliation long after the closure of the Commission. In the words of a








participant at a public meeting of the Commission, we need to ensure that "reconciliation
is a way of life". Another acknowledged that the Commission could do no more than
'kick start' the process.


5 This chapter describes the specific contribution of the Commission to the bridge-building
process in post-apartheid South Africa. It will provide a brief overview of the historical
and legislative origins of the Commission and of the objectives and functions of the
Commission as prescribed by the Act. It will also deal in some detail with the
Commission's interpretation and implementation of its mandate. The difficult and often
contested decisions taken by the Commission in this regard will be highlighted.



HISTORICAL AND LEGISLATIVE ORIGINS


6 The first call for a South African truth commission came from the African National
Congress (ANC) before the first democratic elections in 1994. Professor Kader Asmal
mooted the idea on his installation as Professor of Human Rights Law at the University
of the Western Cape on 25 May 1992, saying:

We must take the past seriously as it holds the key to the future. The issues of
structural violence, of unjust and inequitable economic social arrangements, of
balanced development in the future cannot be properly dealt with unless there is a
conscious understanding of the past.

7 Soon afterwards, Asmal's call became a firm proposal of the National Executive
Committee of the ANC, following an investigation of accusations that the ANC-in-exile
had perpetrated human rights violations in some of its camps. In response to the
allegations, the ANC set up its own internal commissions of enquiry, the Stuart,
Skweyiya and Motsuenyane commissions. The reports of these commissions confirmed
that gross human rights violations had taken place in the camps. The National Executive
Committee accepted the criticisms levelled at the organisation. It expressed the view,
however, that the violations committed by the ANC should be seen against the
background of the human rights violations that had taken place in South Africa over a
much longer period. It proposed the appointment of a truth commission as a way of
achieving this. This was perhaps the first time in history that a liberation movement or
government-in-waiting had called for an independent investigation of this kind, aimed at
enquiring into allegations of violations of human rights not only by the previous regime,
but also by its own members.

8 In the meantime, the negotiations that would bring apartheid and political conflict to an
end and herald the introduction of democracy in South Africa had begun. They took
place within an international framework, which increasingly emphasised the importance
of human rights and the need to deal with past human rights violations.

9 The negotiations process began seriously with the Groote Schuur Minute in early May
1990. In terms of the Minute, a working group was established to make
recommendations, amongst other things, on a definition of political offences in the








South African situation, and to advise on norms and mechanisms to deal with the
release of political prisoners. On 21 May, the working group found that, while there was
legislation allowing for the pardon or release of people who had already been sentenced
or were awaiting appeals, new legislation would be required in respect of people who
had not been charged. This resulted in the 1990 Indemnity Act.

10 The working group also produced findings concerning political offences. It
recommended that, as there was no generally accepted definition of a political offence
or political prisoners in international law, principles of extradition law should be used to
develop guidelines. In terms of these principles, the working group concluded that cases
should be dealt with on an individual basis; that certain offences (such as treason) were
of a purely political nature, and that criminal acts of a serious nature ('even murder')
might be regarded as political offences.

11 The working group also proposed that an adaptation of the Norgaard Principles2 be
used in making the relevant decisions. These took into account aspects such as motive,
context, the nature of the political ojective, the legal and factual nature of the offence
(for example, rape could never be considered a political offence), the object of the
offence and whether the act was committed in the execution of an order and with the
approval of the organisation concerned.

12 The recommendations were accepted with some amendments in terms of the Pretoria
Minute on 6 August 1990. However, in the Government Gazette, recording acceptance
of the Pretoria Minute, published on 7 November, the words 'even murder' were
inexplicably left out an omission that caused significant problems subsequently.

13 It was agreed that the South African Constitution, the Prisons Act and the 1990
Indemnity Act would be used and that 'a group of wise men' would be appointed to deal
with releases and the granting of indemnity. Although the group was supposed to consist
of three government and three ANC-appointed judges, the three ANC nominees refused
to participate because of a ruling that deliberations had to be held in secret and they felt
they could be compromised if the Indemnity Board rejected a recommendation.

14 In early 1992, negotiations collapsed completely for a number of reasons, including the
fact that some fifteen to twenty key ANC members were still in prison. Negotiations were
finally resumed after the signing of the Record of Understanding, which signalled a
commitment to begin talks again and contained an agreement to review the whole
question of political prisoners. Critical to this was a review of the contentious category of
'murder', one of the causes of the dispute that brought negotiations to an end. The
Record of Understanding contained the following sentence:

The two parties are agreed that all prisoners whose imprisonment is related to
political conflict of the past and whose release could make a contribution to
reconciliation should be released.

15 One hundred and forty-nine prisoners were released with immediate effect and without
any formal process at all. However, when the third Indemnity Act of 1992 was passed,








the category of'murder' was still not included, despite the undertaking in the Record of
Understanding to review the contentious issue of political prisoners.

16 A day or so before the elections in 1994, President De Klerk, allegedly without
consultation with the ANC and other political parties, authorised the release and
indemnity of about eighty to one hundred people. However, by this stage, anyone who
had committed a crime which, according to the terms of the Record of Understanding,
involved some political motivation was up for possible release.

17 During the pre-election period, very few members of the security forces had applied for
indemnity, possibly in the expectation of a general amnesty. However, only days before
the election, when it became clear that there would be no general amnesty, a relatively
large number of security force members applied for indemnity under the 1992
legislation. Their applications were unsuccessful because they failed to disclose details
about acts for which they were seeking amnesty as required by the legislation.3

18 After the conclusion of the Record of Understanding, the focus shifted to the question of
how a future democratic government would deal with amnesties for political offences
and especially for the security forces. Two matters were settled relatively early. It was
agreed, in the first place, that actions taken in terms of apartheid law would not merely
for that reason be regarded as illegal and that there would be no Nuremberg-type trials
for the many human rights violations legally committed in the course of implementing
apartheid.

19 Furthermore, it was agreed that there would be some form of amnesty for politically-
motivated offences committed in the past. The government insisted on a form of blanket
amnesty, while most other parties demanded that amnesty should be linked to some
form of truth commission process. A compromise was eventually reached only after the
finalisation of the rest of the interim Constitution and was recorded in what became
known as the 'Postamble'. This provided that there would be amnesty for politically-
motivated offences, and that future legislation would provide the criteria and procedures
to regulate the process.

20 A number of NGOs and others played a role in preparing the ground for a truth
commission. There were one or two major conferences, attended by leading scholars
and human rights practitioners, that stimulated wide debate in civil society and in
Parliament.

21 The new government introduced the Promotion of National Unity and Reconciliation Bill
in Parliament in November 1994. The Bill provided for amnesty as required by the
interim Constitution. It stressed, too, the importance of victims to the proposed process,
emphasising their right to tell their stories of suffering and struggle. This became an
essential focus of the envisaged commission what has been described as a 'victim-
centred approach'. The legislation also required that, in order for amnesty to be granted,
there should be full disclosure of the violations in respect of which it was sought. In this
way, the 'stick' of prosecutions and civil claims was combined with the 'carrot' of
amnesty to encourage perpetrators to testify about gross violations of human rights. This








was a unique feature of the South African commission. National unity and reconciliation
could be achieved only, it was argued, if the truth about past violations became publicly
known.

22 It is important to note the uniquely open and transparent nature of the process that
preceded the adoption of the Bill. Civil society played an influential role in the months of
debate and compromise leading to its adoption. The parliamentary Portfolio Committee
on Justice conducted extensive public hearings. As a direct result of these public
hearings and the pressure exerted by civil society, the parliamentary Portfolio
Committee made a significant change to the Bill, as follows.

23 One of the compromises reached between the ANC and the National Party (NP) when
the Bill was discussed in Cabinet had been that amnesty hearings should be held behind
closed doors. Human rights organizations and other NGOs successfully contested this
and the principle of open hearings, except where it defeated the ends of justice, was
won. The Bill was signed into law by the President on 19 July 19954 and came into
effect on 1 December 1995 after the Commissioners had been appointed. The
appointment process was also open and transparent. Despite the fact that the legislation
gave the President the authority to decide who would serve on the Commission,
President Mandela decided to appoint a broadly representative committee to assist him
in the process of identifying the commissioners. Organizations of civil society
participated in the process by nominating prospective commissioners and monitoring the
hearings which led to the appointments. The committee called for nominations and 299
names were received. After the public hearings, a list of twenty-five names was
submitted to President Mandela. The President consulted with his Cabinet and with the
heads of the political parties and appointed the required seventeen commissioners.



WHY THE SOUTH AFRICAN COMMISSION IS DIFFERENT
FROM OTHER COMMISSIONS

24 In order to appreciate the difficulties the Commission faced in implementing its
mandate, it is helpful briefly to consider some of the unique features of the South
African Commission and how it compares with other similar commissions created in
recent years.

25 The most important difference between the South African Commission and others was
that it was the first to be given the power to grant amnesty to individual perpetrators. No
other state had combined this quasi-judicial power with the investigative tasks of a truth-
seeking body. More typically, where amnesty was introduced to protect perpetrators
from being prosecuted for the crimes of the past, the provision was broad and
unconditional, with no requirement for individual application or confession of particular
crimes. The South African format had the advantage that it elicited detailed accounts
from perpetrators and institutions, unlike commissions elsewhere which have received
very little co-operation from those responsible for past abuses.








26 Another significant difference can be found in the Commission's powers of subpoena,
search and seizure, which are much stronger than those of other truth commissions.
This has led to more thorough internal investigation and direct questioning of witnesses,
including those who were implicated in violations and did not apply for amnesty. None of
the Latin American commissions, for example, was granted the power to compel
witnesses or perpetrators to come forward with evidence, and these commissions have
had great difficulty in obtaining official written records from the government and the
armed forces.


27 The very public process of the South African Commission also distinguishes it from
other commissions. While a few have held public victim hearings (such as Uganda in
the late 1980s), such hearings have been far fewer in number than in South Africa. The
Latin American truth commissions heard testimony only in private, and information only
emerged with the release of the final reports.

28 The South African hearings also included aspects of enquiry not seen elsewhere: for
example, the institutional and special hearings. These allowed for direct contributions by
NGOs and those who were involved in specific areas of activism, policy proposals and
monitoring in the past. Few other commissions have included such interaction with 'non-
victim' public actors.


29 The South African Commission was the first to create a witness protection programme.
This strengthened its investigative powers and allowed witnesses to come forward with
information they feared might put them at risk.

30 Finally, the South African Commission was several times larger in terms of staff and
budget than any commission before it.5


OBJECTIVES AND FUNCTIONS AS PRESCRIBED IN THE ACT


31 The Act identified the following objectives and functions:

3. (1) The objectives of the Commission shall be to promote national unity and
reconciliation in a spirit of understanding which transcends the conflicts and divisions of
the past by-


a establishing as complete a picture as possible of the causes, nature and extent of the
gross violations of human rights which were committed during the period from I March
1960 to the cut-off date, including the antecedents, circumstances, factors and context
of such violations, as well as the perspectives of the victims and the motives and
perspectives of the persons responsible for the commission of the violations, by
conducting investigations and holding hearings;

b facilitating the granting of amnesty to persons who make full disclosure of all the
relevant facts relating to acts associated with a political objective and comply with the
requirements of this Act;









c establishing and making known the fate or whereabouts of victims and by restoring the
human and civil dignity of such victims by granting them an opportunity to relate their
own accounts of the violations of which they are the victims, and by recommending
reparation measures in respect of them;

d compiling a report providing as comprehensive an account as possible of the activities
and findings of the Commission contemplated in paragraphs (a), (b) and (c), and which
contains recommendations of measures to prevent the future violations of human rights.

(2) The provisions of subsection (1) shall not be interpreted as limiting the power of the
Commission to investigate or make recommendations concerning any matter with a
view to promoting or achieving national unity and reconciliation within the context of this
Act.

4. The functions of the Commission shall be to achieve its objectives, and to that end
the Commission shall-


a facilitate, and where necessary initiate or co-ordinate, inquiries into- (i) gross
violations of human rights, including violations which were part of a systematic pattern
of abuse; (ii) the nature, causes and extent of gross violations of human rights, including
the antecedents, circumstances, factors, context, motives and perspectives which led to
such violations; (iii) the identity of all persons, authorities, institutions and organizations
involved in such violations; (iv) the question whether such violations were the result of
deliberate planning on the part of the State or a former state or any of their organs, or of
any political organisation, liberation movement or other group or individual; and (v)
accountability, political or otherwise, for any such violation;

b facilitate, and initiate or co-ordinate, the gathering of information and the receiving of
evidence from any person, including persons claiming to be victims of such violations or
the representatives of such victims, which establish the identity of victims of such
violations, their fate or present whereabouts and the nature and extent of the harm
suffered by such victims;

c facilitate and promote the granting of amnesty in respect of acts associated with
political objectives, by receiving from persons desiring to make a full disclosure of all
the relevant facts relating to such acts, applications for the granting of amnesty in
respect of such acts, and transmitting such applications to the Committee on Amnesty
for its decision, and by publishing decisions granting amnesty in the Gazette;

d determine what articles have been destroyed by any person in order to conceal
violations of human rights or acts associated with a political objective;

e prepare a comprehensive report which sets out its activities and findings, based on
factual and objective information and evidence collected or received by it or placed at
its disposal;








f make recommendations to the President with regard to- (i) the policy which should
be followed or measures which should be taken with regard to the granting of reparation
to victims or the taking of other measures aimed at rehabilitating and restoring the
human and civil dignity of victims; (ii) measures which should be taken to grant urgent
interim reparation to victims;

g make recommendations to the Minister with regard to the development of a limited
witness protection programme for the purposes of this Act;

h make recommendations to the President with regard to the creation of institutions
conducive to a stable and fair society and the institutional, administrative and legislative
measures which should be taken or introduced in order to prevent the commission of
violations of human rights.

32 Briefly stated, the Commission was given four major tasks in order to achieve the
overall objectives of promoting national unity and reconciliation. These were:

a analysing and describing the "causes, nature and extent" of gross violations of human
rights that occurred between 1 March 1960 and 10 May 1994, including the identification
of the individuals and organizations responsible for such violations;

b making recommendations to the President on measures to prevent future violations of
human rights;

c the restoration of the human and civil dignity of victims of gross human rights violations
through testimony and recommendations to the President concerning reparations for
victims;

d granting amnesty to persons who made full disclosure of relevant facts relating to acts
associated with a political objective.


INTERPRETING THE MANDATE


33 The interpretation of the mandate was the outcome of a long process of wrestling with
how the Commission should deal with the above-mentioned objectives and functions.

34 It was recognized at the outset that the Commission could not carry out all the tasks
required of it simultaneously. Thus, it first gave attention to the question of the
restoration of the human and civil dignity of (individual) victims of past gross human
rights violations. It did so by creating opportunities for victims "to relate their own
accounts" of the violations they had suffered by giving testimony at public hearings
across the length and breadth of South Africa between April 1996 and June 1997. These
highly publicised hearings were coupled with an extensive statement-taking drive,
investigations, research and so-called 'section 29' hearings (where witnesses and
alleged perpetrators were subpoenaed) in order to "establish the fate or whereabouts of
victims" and the identity of those responsible for human rights violations.








35 During the second half of the Commission's life (from approximately the middle of
1997), the Commission shifted its focus from the stories of individual victims to an
attempt to understand the individual and institutional motives and perspectives which
gave rise to the gross violations of human rights under examination. It enquired into the
contexts and causes of these violations and attempted to establish the political and
moral accountability of individuals, organizations and institutions. The goal was to
provide the grounds for making recommendations to prevent future human rights
violations. Features of this phase were public submissions by, and questioning of,
political parties, and a range of institutional, sectoral and special hearings that focused
on the health and business sectors, the legal system, the media and faith communities,
prisons, women, children and youth, biological and chemical warfare and compulsory
national service. It was also during this period that the majority of amnesty hearings took
place.

36 In the process of interpreting the mandate, a number of difficult and often highly
contested decisions had to be taken.


TERMINOLOGY

Victims or survivors

37 From the outset, the commissioners expressed some discomfort with the use of the
word 'victim'. Although the term is commonly enough used when talking about those
who suffered under apartheid, it may also be seen to imply a negativity or passivity.
Victims are acted upon rather than acting, suffering rather than surviving. The term
might therefore be seen as insulting to those who consider that they have survived
apartheid or emerged victorious. Unlike the word 'victim', the word 'survivor' has a
positive connotation, implying an ability to overcome adversity and even to be
strengthened by it. This does not, of course, mean that many (if not all) survivors were
not still experiencing the effects of the trauma they had suffered. It also does not mean
that all survived. There were, indeed, many who did not survive and on whose behalf
others approached the Commission.

38 However, when dealing with gross human rights violations committed by perpetrators,
the person against whom that violation is committed can only be described as a victim,
regardless of whether he or she emerged a survivor. In this sense, the state of mind and
survival of the person is irrelevant; it is the intention and action of the perpetrator that
creates the condition of being a victim.

39 For the sake of consistency, the Commission ultimately decided, in keeping with the
language of the Act, to use the word 'victim'. In doing so, however, it acknowledged that
many described as victims might be better described and, indeed, might prefer to be
described as 'survivors'. Many played so crucial a role in the struggle for democracy
that even the term 'survivor' might seem an inadequate description.


Perpetrators








40 The use of the word 'perpetrator' to describe all persons found by the Commission to
have committed gross violations of human rights was also the source of some
discomfort as it made no distinction between the kinds of acts committed, the reasons
why they were committed, their consequences or their context. It also does not
distinguish between 'perpetrators' who committed one act and those whose entire
operation and purpose was the commission of such acts.

41 Again, however, the Commission chose to adhere to the terminology of the Act, while
recognizing sharp differences in the nature and degree of the acts committed.


WHO WERE VICTIMS OF GROSS VIOLATIONS OF HUMAN
RIGHTS?

42 The Act states that:

... 'gross violation of human rights' means the violation of human rights through (a)
the killing, abduction, torture or severe ill treatment of any person; or (b) any attempt,
conspiracy, incitement, instigation, command or procurement to commit an act
referred to in paragraph (a), which emanated from conflicts of the past and which
was committed during the period 1 March 1960 to 10 May 1994 within or outside the
Republic, and the commission of which was advised, planned, directed, commanded
or ordered, by any person acting with a political motive (section 1(1)(ix).

43 This definition is a reminder that the responsibility for building the bridge between a
dehumanising past and a just and democratic future does not belong to the Commission
alone. Furthermore, in making its own limited contribution, the Commission had to walk
a tightrope between too wide and too narrow an interpretation of gross violations of
human rights. The Commission would have neither the lifespan nor the resources to
implement a broadly constituted interpretation. Too narrow an interpretation, on the
other hand, might have added insult to the injuries and injustices experienced by the
many victims who would have been excluded.

44 Segregation policies and practices have their roots far back in South Africa's colonial
past. Building on an inherited social practice, apartheid imposed a legal form of
oppression with devastating effects on the majority of South Africans. The NP
government came to power in 1948 and, over almost half a century, apartheid became
the warp and weft of the experience of all who lived in South Africa, defining their
privilege and their disadvantage, their poverty and wealth, their public and private lives
and their very identity.

45 Under apartheid, millions of people were deprived of the most basic rights. Through a
huge body of laws, black people were shunted out of areas reserved for whites; evicted
from their homes; forced out of the cities into shanties, homelands and what Father
Cosmas Desmond has called, 'dumping grounds', where there was neither water, nor
shelter nor a living to be made.

I have seen the bewilderment of simple rural people when they are told they must
leave their homes where they have lived for generations and go to a strange place. I
have heard their cry of hopelessness and resignation and their pleas for help. I have








seen the sufferings of whole families living in a tent or a tiny tin hut. Of children sick
with typhoid, or their bodies emaciated with malnutrition and even dying of plain
starvation.6

46 Apartheid redrew the map of South Africa. The wealth, the cities, the mines, parks and
the best beaches became part of white South Africa. A meagre thirteen per cent of
largely barren land was parcelled out in a series of homelands in which African people
were forced to live, while the able-bodied were driven to seek a living as migrant
labourers in the cities. And, as legislation formalised the divide between African, Indian,
coloured and white, so the apartheid government sought, too, to divide African people
on the basis of ethnicity.

47 'Separate development' was the magic formula. All over South Africa, public buildings
and amenities were divided and sometimes even duplicated according to race group,
retaining the best for the white group. African, Indian and coloured children were thrown
out of city parks. Beaches and benches, trains and buses, and other public facilities and
spaces were allocated according to the racial divisions of apartheid. Separate meant far
from equal and often resulted in no facilities at all for those who were not white. Private
sector space was also subjected to rules: banks, restaurants, shops, places of worship,
bottle stores, hotels and cinemas were all segregated, often by legislation and often by
self-imposed segregation.

48 Private life too was dominated by apartheid. Who you knew, whom you consorted with,
whom you worked with and how you conducted your relationships all depended on
remaining within your group. Law prohibited marriages and sexual relationships across
the colour line. Even entertainment between races was severely restricted by curfews
and a prohibition on serving drink to African people.

49 One of the most iniquitous acts of apartheid was the separation of educational facilities
and the creation of the infamous system of Bantu education. Mission schools which had
provided some schooling to African people were closed down and generation after
generation of African children were subjected to teaching that was deeply inferior in
quality to that of their white counterparts. Prime Minister Hendrik Verwoerd, the
'architect' of apartheid, said:

The school must equip the Bantu to meet the demands which the economic life will
impose on him ... What is the use of teaching a Bantu child mathematics when it
cannot use it in practice? ... Education must train and teach people in accordance
with their opportunities in life ...

50 Indian and coloured people were subjected to similar restrictions. The notorious Group
Areas legislation moved people out of their homes and trading areas and onto the
fringes of the cities. Separate education, separate amenities and other restrictions
bounded their lives.

51 It is this systemic and all-pervading character of apartheid that provides the background
for the present investigation. During the apartheid years, people did many evil things.
Some of these are the gross violations of human rights with which this Commission had
to deal. But it can never be forgotten that the system itself was evil, inhumane and








degrading for the many millions who became its second and third class citizens.
Amongst its many crimes, perhaps the greatest was its power to humiliate, to denigrate
and to remove the self-confidence, self-esteem and dignity of its millions of victims.
Mtutuzeli Matshoba expressed it thus:

For neither am I a man in the eyes of the law,
Nor am I a man in the eyes of my fellow man.8

52 In a submission to the Commission, Justice Pius Langa, currently the Deputy President
of the Constitutional Court, wrote of his life under apartheid:

My first real encounter with the legal system was as a young workseeker in Durban
.. in 1956. It was during that period that I experienced the frustration, indignity and
humiliation of being subject to certain of the provisions of the Population Registration
Act, no. 30 of 1950, the Natives (Urban Areas) Consolidation Act, no. 25 of 1945 as
well as other discriminatory legislation of that time... The immediate impact on me
was severe disillusionment at the unfairness and injustice of it all. I could never
understand why race should have been the determinant of where I should live and
where I could work. I was never able to understand why, whilst still a teenager, I was
expected to live at a men's hostel and needed a permit to stay with my parents in the
township... In that first flush of youth, I had thought I could do anything, aspire to
anything and that nothing could stop me. I was wrong. My dreams came up against
the harsh apartheid realities. The insensitive, demeaning and often hostile
environment it had created around me proved to have been crafted too well; it was
designed to discourage those who, like me, sought to improve their circumstances
and those of their communities...

The pass laws and influx control regulations were, for me, the focal point of the
comprehensive network of laws and regulations which dominated my early working
life ... I was merely one of tens of thousands who peopled those seemingly
interminable queues at the end of which, in general, bad tempered clerks and officials
might reward one with some endorsement or other in the 'dompas'. The whole
process of the influx control offices was painful and degrading and particular aspects
of it inflicted deep humiliation on the tens of thousands who were on the receiving
end of these regulations. As a 17 year-old, I remember having to avert my eyes from
the nakedness of grown men in a futile attempt to salvage some dignity for them in
those queues where we had to expose ourselves to facilitate the degrading
examination. To anyone who failed to find work during the currency of their permits,
loomed the very real threat of being declared "an idle and undesirable Bantu" by the
Commissioner's court and being subject to be sent to a farm colony. Scores of
people were processed through those courts and sentenced on charges such as
failing to produce a reference book on demand. ...

It was one thing, however, having the overtly discriminatory and repressive laws on
the statute book. Their ugliness was exacerbated to a large degree by the crude,
cruel and unfeeling way in which many of the officials, black and white, put them into
operation. There was a culture of hostility and intimidation against those who came to
be processed or for assistance. The face presented by authority, in general, was of a
war against people who were unenfranchised and human dignity was the main
casualty.

53 A deep awareness of this systematic discrimination and dehumanisation made it very
difficult for the Commission to concentrate only on those whose rights had been violated
through acts of killing, torture, abduction and severe ill treatment.








54 For example, during the earlier information-gathering phase of the Commission's work,
the category that required most attention was that of 'severe ill treatment'. The ordinary
meaning of 'severe ill treatment' suggests that all those whose rights had been violated
during the conflicts of the past were covered by this definition and fell, therefore, within
the mandate of the Commission. This view was expressed in the submissions of a
number of organizations and groups representing, for example, victims of forced
removals and Bantu education.

55 While taking these submissions very seriously, the Commission resolved that its
mandate was to give attention to human rights violations committed as specific acts,
resulting in severe physical and/or mental injury, in the course of past political conflict.
As such, the focus of its work was not on the effects of laws passed by the apartheid
government, nor on general policies of that government or of other organizations,
however morally offensive these may have been. This underlines the importance of
understanding the Commission as but one of several instruments responsible for
transformation and bridge-building in post-apartheid South Africa.

56 The mandate of the Commission was to focus on what might be termed 'bodily integrity
rights', rights that are enshrined in the new South African Constitution and under
international law. These include the right to life9, the right to be free from torture10, the
right to be free from cruel, inhuman, or degrading treatment or punishment" and the
right to freedom and security of the person, including freedom from abduction and
arbitrary and prolonged detention2

57 But bodily integrity rights are not the only fundamental rights. When a person has no
food to eat, or when someone is dying because of an illness that access to basic health
care could have prevented that is, when subsistence rights are violated rights to
political participation and freedom of speech become meaningless.

58 Thus, a strong argument can be made that the violations of human rights caused by
"separate development' for example, by migrant labour, forced removals, bantustans,
Bantu education and so on had, and continue to have, the most negative possible
impact on the lives of the majority of South Africans. The consequences of these
violations cannot be measured only in the human lives lost through deaths, detentions,
dirty tricks and disappearances, but in the human lives withered away through enforced
poverty and other kinds of deprivation.

59 Hence, the Commission fully recognized that large-scale human rights violations were
committed through legislation designed to enforce apartheid, through security legislation
designed to criminalise resistance to the state, and through similar legislation passed by
governments in the homelands. Its task, however, was limited to examining those 'gross
violations of human rights' as defined in the Act. This should not be taken to mean,
however, that those 'gross violations of human rights' (killing, torture, abduction and
severe ill treatment) were the only very serious human rights violations that occurred.








EVEN-HANDEDNESS

60 The Commission was obliged by statute to deal even-handedly with all victims. Its
actions when dealing with individual victims were guided, amongst other things, by the
principle that "victims shall be treated equally without discrimination of any kind"(section
11(b)). In so doing, it acknowledged the tragedy of human suffering wherever it
occurred.

61 This does not mean, however, that moral judgement was suspended or that the
Commission made no distinction between violations committed by those defending
apartheid and those committed to its eradication.

62 In this regard, it is important to remember that other aspects of the Commission's
mandate required that it:
a facilitate inquiries into the nature, causes and extent of gross violations of human
rights, including the antecedents, circumstances, factors, context, motives and
perspectives that led to such violations;
b establish organisational involvement and responsibility and identify all persons,
authorities, institutions and organizations involved in gross violations of human
rig hts;
c determine whether gross violations of human rights were part of deliberate planning
on the part of the state or an organisation;
d discuss whether gross violations of human rights were part of a systematic pattern
of abuse;
e make recommendations on the creation of institutions conducive to a stable and
fair society and on institutional, administrative and legislative measures to prevent
the perpetration of human rights violations.

63 This part of the mandate, together with the overall objective of promoting reconciliation,
clearly required that the Commission be sensitive to a wide range of different
perspectives and beliefs concerning past conflicts. In its attempt to reflect accurately
and to understand these perspectives, the Commission endeavoured to include people
representing different positions in its public hearings. It also made repeated attempts to
include those political groupings, such as the Inkatha Freedom Party (IFP), that chose
not to participate in the activities of the Commission.


JUST ENDS, JUST MEANS AND CRIMES AGAINST HUMANITY

64 In making judgements in respect of the above requirements, the Commission was
guided by criteria derived from just war theory (which was referred to in several
submissions made to the Commission by political parties), international human rights
principles and the democratic values inherent in the South African Constitution. By using
these criteria, the Commission was able to take clear positions on the evils of apartheid,
while also evaluating the actions of those who opposed it.








65 The application of some of the principles and criteria of just war theory have proved
difficult and controversial, especially when dealing with unconventional wars, that is,
wars of national liberation, civil wars and guerrilla wars within states. The distinction
between means and cause is a dimension of just war theory that cannot be ignored.
Often this distinction is made in terms of justice in war (jus in bello) and justice of war
(jus ad bellum).

66 Justice of war evaluates the justifiability of the decision to go to war. The two basic
criteria guiding this evaluation are: first, the justness of the cause (the underlying
principles for which a group is fighting), and second, whether the decision to take up
arms was a matter of last resort.

67 The doctrine of justice in war states that there are limits to how much force may be used
in a particular context and places restrictions on who or what may be targeted. Two
principles dominate this body of law:


a the use of force must be reasonably tailored to a legitimate military end;


b certain individuals are entitled to specific protections, making a fundamental
distinction between combatants and non-combatants. Thus an enemy soldier who is
armed and ready for combat may be harmed and even killed, but a civilian or a
sick, wounded or captured soldier may not be harmed.
68 What implications did this have for the Commission? Can the acts of political violence
by those who struggled against apartheid, on the one hand, and by the agents and
defenders of the apartheid state, on the other, be morally equated?

Justice of war

69 As far as the question of the justice of the South African conflicts was concerned, the
Commission was faced with competing claims of just causes from various parties to the
conflicts of the past. In seeking to address these, the Commission took into
consideration factors such as the Cold War and the international and regional contexts.
These were raised by the NP and the Freedom Front (FF) in many amnesty applications
and in the submission by Mr Craig Williamson. The Commission accepted that many
people had clearly believed that they were fighting against Communism and anarchy
and not, in the first place, for apartheid.13

70 At the same time, these acts of war were also ultimately undertaken in defence of the
ruling white minority and the apartheid state. In international law, this system of
enforced racial separation and discrimination was itself found to be a crime against
humanity (see the appendix to this chapter). Thus, those who fought against the system
of apartheid were clearly fighting for a just cause, and those who sought to uphold and
sustain apartheid cannot be morally equated with those who sought to remove and
oppose it.
71 The application of'the last resort' criterion in just war theory obviously yields a less
straightforward answer. Submissions to the Commission by the NP, FF and the IFP
contested the necessity for the resort to armed resistance by the liberation movements.








This matter will always be the subject of debate. However, any analysis of human rights
violations which occurred during the conflicts of the past, and any attempt to prevent a
recurrence of such violations, must take cognisance of the fact that, at the heart of the
conflict, stood an illegal, oppressive and inhuman system imposed on the majority of
South Africans without their consent. There had, over many decades, been numerous
attempts by those opposed to this system to bring about change by non-violent means,
before resorting to armed resistance.


72 The immorality and illegality of apartheid was acknowledged by most of the political
party submissions and thus does not reflect the bias of any one perspective. Indeed, in
his appearance before the Commission in May 1997, former State President de Klerk
himself described apartheid as a system that caused great suffering to millions of
people. This recognition was reflected in numerous other important submissions to the
Commission, including:
a five of the most senior judges, on behalf of the judiciary past and present, declared
in a submission to the Commission that apartheid was, in itself, a gross violation of
human rights;
b four former NP cabinet ministers, testifying in the Commission's hearing on the
State Security Council, acknowledged that apartheid had no moral basis;
c the Western Cape regional synod of the Dutch Reformed Church, in conformity
with the position adopted by most major religious institutions, declared that
apartheid as a system of enforced racial discrimination was wrong and sinful, not
only in its effects and operations, but also in its fundamental nature.
73 The recognition of apartheid as an oppressive and inhuman system of social
engineering is a crucial point of departure for the promotion and protection of human
rights and the advancement of reconciliation in South Africa. It is thus a great sign of
hope to the Commission and to the future of the South African nation that, during the
1980s, the early 1990s and during the life of the Commission, increasing numbers of
those who formulated and implemented apartheid have recognized not only the political
unsustainability but also the immorality of this system.

Justice in war


74 The Commission's confirmation of the fact that the apartheid system was a crime
against humanity does not mean that all acts carried out in order to destroy apartheid
were necessarily legal, moral and acceptable. The Commission concurred with the
international consensus that those who were fighting for a just cause were under an
obligation to employ just means in the conduct of this fight.


75 As far as justice in war is concerned, the framework within which the Commission made
its findings was in accordance with international law and the views and findings of
international organizations and judicial bodies. The strict prohibitions against torture and
abduction and the grave wrong of killing and injuring defenceless people, civilians and
soldiers 'out of combat' required the Commission to conclude that not all acts in war
could be regarded as morally or legally legitimate, even where the cause was just.








76 It is for this reason that the Commission considered the concept of crimes against
humanity at both a systemic level and at the level of specific acts. Apartheid as a
system was a crime against humanity, but it was also possible for acts carried out by
any of the parties to the conflicts of the past to be classified as human rights violations.

State and non-state actors

77 Thus, the Commission adopted the view that human rights violations could be
committed by any group or person inside or outside the state: by persons within the Pan
Africanist Congress (PAC), the IFP, the South African Police (SAP), the South African
Defence Force (SADF), the ANC or any other organisation.

78 It is important to note, however, that this wider application of human rights principles to
non-state entities is a relatively recent international development. Traditionally, human
rights focused on relations between state and citizens and on protecting the individual
from the power of the state. Private non-state entities were not subject to the same
restrictions and scrutiny. The traditional exceptions to this have been found in the area
of war crimes and crimes against humanity which, even under the traditional definition
of human rights, can be committed by any individual or entity.


79 The Act establishing the Commission adopted this more modern position. In other
words, it did not make a finding of a gross violation of human rights conditional on a
finding of state action. This extended view of human rights prohibitions reflects modern
developments in international human rights law. It also contributes to national unity and
reconciliation by treating individual victims with equal respect, regardless of whether the
harm was caused by an official of the state or of the liberation movements.


80 At the same time, it must be said that those with the most power to abuse must carry the
heaviest responsibility. It is a matter of the gravest concern when the state, which holds
the monopoly on public force and is charged with protecting the rights of citizens, uses
that force to violate those rights. The state has a whole range of powerful institutions at
its disposal the police, the judicial system, the mass media, parliament with which it
may denounce, investigate and punish human rights violations by private citizens or
non-governmental groups. When this power is used to violate the rights of its citizens,
as described in the report of the Chilean commission, their normal vulnerability is
transformed into utter defencelessness.


81 This sensitivity to the unequal power relationships between state and non-state agents
should be seen as an attempt to help lay the foundation for the rehabilitation of state
institutions in order to hold present and future governments accountable for their use
and abuse of power. It is thus central to the effort to prevent future violations of human
rig hts.

DEFINING GROSS VIOLATIONS OF HUMAN RIGHTS


82 The Act did not provide clear guidelines for the interpretation of the definition of "gross
violations of human rights". In order to determine which acts constituted gross violations








of human rights, it was important to interpret the definition and to consider whether there
were any limitations excluding particular acts from this definition. The Act used neutral
concepts or terms to describe the various acts that constituted a gross violation of
human rights. For example, 'killing' and 'abduction' were used rather than murder or
kidnapping. Clearly, the intention was to try to avoid introducing concepts with a
particular content in terms of the applicable domestic criminal law. This was to avoid
equating what was essentially a commission of enquiry with a court of law. If the full
array of legal technicalities and nuances had been introduced into the work and
decision-making functions of the Commission, its task would have been rendered
immensely complex and time-consuming. It would also have contradicted the clear
intention that the Commission should fulfil its mandate as expeditiously as possible. It
could also have opened the way for a repetition of past injustices, with victims of the
political conflict being excluded by legal technicalities from claiming compensation for
their losses. Thus, it was clear that the underlying objective of the legislators was to
make it possible for the Commission to recognize and acknowledge as many people as
possible as victims of the past political conflict. This objective, in its turn, was central to
the Commission's overall task to promote national unity and reconciliation.

83 Two distinct enquiries were envisaged by the Act insofar as it concerned the question of
gross violations of human rights:
a Was a gross violation of human rights committed and what was the identity of the
victim? (section 4(b))
b What was the identity of those involved in such violations and what was their
accountability for such violations? (section 4(a)(iii), (v))

84 The first is a factual question about the conduct involved: in other words, does the
violation suffered by the victim amount to one of the acts enumerated in the definition?
This enquiry does not involve the issue of accountability. The question of whether or not
the conduct of the perpetrator is justified is irrelevant. This was in accordance with the
intention to allow as many potential victims as possible to benefit from the
Commission's process.


85 The second enquiry is stricter and more circumscribed, involving technical questions like
accountability. Findings emerging at this level of enquiry may have grave implications
and impinge upon the fundamental rights of alleged perpetrators. This enquiry involves,
therefore, both factual and legal questions.

86 Hence, the Commission could find that a gross human rights violation had been
committed because there was a victim of that violation. It had, however, to apply a more
stringent test in order to hold a perpetrator accountable for that violation.


87 It was in relation to this more rigorous test that issues such as justification were taken
into account. A perpetrator could not be held accountable if the conduct in question was
legally justified. Thus, for example, a person who killed in self defence could not be held
accountable as a perpetrator of a gross violation of human rights. This raised the
question of whether the notion of unlawfulness was implicit in the definition of gross








violations of human rights in the Act. In other words, must a particular act be unlawful
for it to amount to a violation of human rights in the sense of a crime or a delict? In
order to answer this question, it is important to take into account the fact that the issue
of justification (for example, self defence and necessity) does not affect the nature of
conduct but excuses its consequences. A legitimate killing in self defence still amounts
to the deprivation of life and a violation of the right to life, but the law does not hold the
perpetrator liable for the consequence of this conduct. Thus, although justification does
not affect the nature of the act, it does affect the issue of accountability.

88 As a consequence, the position adopted by the Commission was that any killing,
abduction, torture or severe ill treatment which met the other requirements of the
definition amounted to a gross violation of human rights, regardless of whether or not
the perpetrator could be held accountable for the conduct.

89 It is important to note that the categories of victims and perpetrators are defined in
terms of specific acts, such as killing. The categories are not, however, mutually
exclusive. Thus, for example, a person who may, in one situation, be a victim of severe
ill treatment by the police may, in another, become a perpetrator of a gross violation of
human rights through his or her killing of a political opponent.


90 This position was applied to a large majority of violations which took place as a result of
what might loosely be termed civilian conflict: for example, conflicts between IFP and
ANC or United Democratic Front (UDF) supporters or between youth and the police in
townships.

Armed conflict between combatants

91 The political conflicts of the past were not only of a 'civilian' nature. Several of the
political groupings had an armed wing. The state used its armed forces to put down
resistance and to engage in military actions in the southern African region. The
Commission had particular difficulty in attempting to define and reach consensus on its
mandate in this respect. Some argued that all killed and injured combatants should be
included as victims of gross human rights violations. Others wanted to maintain a
distinction between those defending the apartheid state and those seeking to bring it
down. It was noted that members of the armed forces involved in these combat
situations did not expect to be treated as victims of gross violations of human rights.
This was illustrated in the submissions of political parties such as the NP and the ANC,
which did not identify their members killed in combat as victims. In the end, the
Commission decided to follow the guidelines provided by the body of norms and rules
contained in international humanitarian law.


92 Armed conflicts between clearly identified combatants thus provided the only exception
to the Commission's position that victims of gross violations of human rights should
include all who were killed, tortured (and so on) through politically-motivated actions
within the mandated period.








93 With regard to specific aspects of the armed conflicts referred to above, the
Commission was guided by international humanitarian law, particularly as contained in
the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. Since
the Commission was not a tribunal and therefore not required to pass legal judgements,
only the basic concepts and principles underlying these laws were taken into
consideration.


94 International humanitarian law attempts to provide as much protection as possible to
those faced with the harsh realities of armed conflicts, irrespective of what caused them.
It therefore places limits on the means and methods used in warfare, declaring certain
acts impermissible, while other acts, even some of those involving killing, are not
regarded as violations. To understand this distinction, the two essential concepts of
'combatant' and protected 'person' need to be clarified.

95 Article 43 (paragraphs 1 and 2) of Additional Protocol 1 of 1977 defines combatant as
follows:

The armed forces of a Party to the conflict consist of all organised armed forces, groups,
and units that are under a command responsible to that Party for the conduct of its
subordinates...

Members of the armed forces of a Party to the conflict are combatants; that is to say,
they have the right to participate directly in hostilities.

96 Protected persons include the following categories of persons:

wounded, sick and shipwrecked members of the armed forces and civilians14; prisoners
of war15; civilians, including those interned and those on the territory of the enemy or in
occupied territories.16

97 The basic principle is that combatants have the right to participate directly in hostilities.
This does not mean that combatants have an unlimited right to kill. What it does mean
is that the combatant is allowed to use (lethal) force against enemy combatants in the
process of trying to subdue the enemy as quickly as possible. It remains preferable that
these enemy combatants should be captured or wounded and not physically destroyed.
But deaths do occur in war; that is its inherent evil. While the laws of war may not
prohibit such deaths, they are a source of profound moral regret. Combatants who
comply with the restrictions imposed by the laws of war are not, therefore, personally
liable for the consequences of their acts. Thus, the laws regulating justness in war
provide no prohibition on certain acts of violence committed by any party to an armed
conflict, regardless of the justness of that party's cause.


98 However, when a combatant uses force in an armed conflict against a protected person
that is someone who does not or who can no longer use force and thus cannot defend
him or herself such acts break international humanitarian law and those responsible
must be held accountable. The laws of war provide minimum protections that apply in all
armed conflicts. These protections are found in Common Article 3 of the four 1949
Geneva Conventions, which reads:








Persons taking no active part in the hostilities, including members of the armed forces
who have laid down their arms and those placed hors de combat [outside combat] by
sickness, wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:

(a) violence to the life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;

(d) the passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilised peoples. (See also Protocol I, art 75).

99 Historically, when such violations have occurred in an international, as opposed to
internal, armed conflict they constitute 'grave breaches'17 which may be prosecuted by
any state. This distinction between international and internal armed conflicts is less
relevant today, as the laws of war have evolved to regulate more closely the use of
force in all situations of armed conflict.


100 It is, furthermore, very important to note that the Geneva Conventions, both in their
terms and as they have been interpreted, are inclusive in the protections they offer. In
other words, if there is doubt about whether a particular person is entitled to certain
protections provided by the Conventions, then it is presumed that such an individual
should be protected. (See Protocol I, art 45.1, 50.1).

101 It must also be emphasised that the concepts of combatant and protected person are
not necessarily opposites. When a combatant is wounded or surrenders, he or she
becomes a protected person without losing combatant status. In other words, in order to
decide whether someone was killed or injured as a combatant, two questions must be
asked: first, was the person a member of an organised or regular armed force, and
second, was the person in or out of combat?

102 The practice followed by the Commission was in accordance with these two
considerations. The Commission also adopted the principle of giving the benefit of the
doubt to those whose status as combatants or protected persons was unclear. These
norms were applied as follows to the acts of killing, attempted killing and severe ill
treatment falling within the Commission's mandate:


a SADF soldiers or SAP members acting as soldiers (for example members of the
Koevoet Unit) who were killed or seriously injured in combat (during, for example, the








Namibian and Angolan 'border wars') and Umkhonto weSizwe (MK) or Azanian Peoples
Liberation Army (APLA) soldiers killed or seriously injured in combat were not viewed as
victims of gross violations of human rights as defined by the Act. This is consistent with
the position taken in the submissions made to the Commission by the NP, FF, the South
African National Defence Force (SANDF) and the ANC.


b Those combatants who were killed or seriously injured while they were unarmed or out
of combat, executed after they had been captured, or wounded when they clearly could
have been arrested were held to be victims of gross violations of human rights, and
those responsible were held accountable.


c In cases where the Commission could not determine whether a combatant was out of
combat, and therefore regarded as a protected person, it followed the precedent set by
international humanitarian law. The Commission gave the benefit of the doubt to people
killed or seriously injured in uncertain circumstances and found them to be victims of
gross violations of human rights.


d Conscripted soldiers in the SADF were defined as combatants, even where the system
of conscription obliged them to perform military service against their will, threatening
heavy penalties if they did not do so. Like all combatants, they may have qualified as
victims of a gross violation of human rights in certain circumstances, such as being
subjected to torture or killed when injured.

Victims of the armed conflict

103 Soldiers on either side of the political divide, whether they were permanent force
soldiers, conscripts or volunteers, as well as their families and loved ones, were, of
course, victims in a more general sense. They were victims of the armed political
conflict of the past and their deaths, injuries and losses should be remembered and
mourned.

104 In a number of cases that came before the Commission, however, the decision was
more complex.

105 In respect of the first consideration namely, whether the person was a member of an
organisedd force ... under a command responsible to [a] Party to the conflict"18 the
Commission was faced with the problem of how to categorise members of a variety of
more or less organised armed groupings. These ranged from relatively well to poorly
organised self-defence units (SDUs), self-protection units (SPUs) and vigilante
groupings, under varying degrees of control by the ANC, the IFP, the state or other
political formations. Some units were well trained and ostensibly under military control,
although at times they operated on their own initiative. Others were little more than
bands of politically motivated youth, acting on example and exhortation. Many SDUs,
for example, were 'acknowledged' by MK, and even given some weapons and training,
but were far from its chain of command.








106 The Commission had great difficulty in dealing with these cases. In the end, given the
lack of information on the degree of control and the nature of the combat situation, it
decided to employ the narrow definition of combatants. This meant that, in general,
cases involving members of the above organizations were treated in the same way as
non-combatants (as described above). However, where clear evidence emerged, on a
case-by-case basis, of direct military engagement by members of these groupings, they
were regarded as combatants.

107 A second difficulty arose around the question of whether members of the SAP and of
other armed forces (such as the SADF and homeland defence forces) were in or out of
combat when called upon to perform policing duties in the townships (the word used to
describe residential areas for people classified as black). Further, should those who
killed or injured police in the townships be regarded as in or out of combat? In general,
the Commission did not treat these as combat situations, although it remained open to
treating specific cases as combat situations where there was sufficient evidence to do
so.

108 Thus, the Commission made a conscious decision to err on the side of inclusivity -
finding that most killings and serious injuries were gross violations of human rights
rather than the result of the legitimate use of force. Where the evidence of a combat
situation was clear, however, the traditional laws of war were applied.

MAKING FINDINGS OF GROSS VIOLATIONS OF HUMAN
RIGHTS

109 As the Commission embarked on the road of seeking to restore the dignity of victims
through extensive statement taking and public hearings, it was confronted with the
sometimes difficult task of interpreting the categories of acts contained in the definition
of gross violations of human rights, and of formulating criteria to determine the 'political'
motivation of these acts of killing, torture, abduction and severe ill treatment.

Torture and abduction
110 'Torture' and 'abduction' were relatively easy to define. The following internationally
accepted definition of torture guided the Commission in its work:

The intentional infliction of severe pain and suffering, whether physical or mental, on a
person for the purpose of (1) obtaining from that or another person information or a
confession, or (2) punishing him for an act that he or a third person committed or is
suspected of having committed, or (3) intimidating him or a third person, or (4) for any
reason based on discrimination of any kind. Pain or suffering that arises only from,
inherent in, or incidental to, a lawful sanction does not qualify as torture.19

111 'Abduction' was defined as the forcible and illegal removal or capturing of a person. This
definition did not include arrests and detentions that satisfied universally recognized
international human rights standards, nor the capturing of an enemy soldier in a situation
of armed conflict. It was a category applied in the majority of cases where people








'disappeared' after having last been seen in the custody of the police or of other persons
who were using force.

Killing
112 In defining the category of'killing', some difficulties were presented by the killing of
combatants. The Commission's position in this regard is discussed earlier in this
chapter. Many killings reported to the Commission were of people described as innocent
bystanders caught in the crossfire. These were found to be victims of gross violations of
human rights if the other conditions were fulfilled.


113 The Commission considered the executions of activists or other persons for politically-
motivated crimes both within the established legal system and in other settings (for
example, in 'peoples' courts', or in tribunals or summary hearings conducted by the
liberation movements). After considerable debate, the Commission agreed to consider
all such executions, whether carried out by the state or the liberation movements, as
gross violations of human rights. This decision was taken in the light of the need to
promote a national and international human rights culture. It also took into account the
lack of legitimacy of the legal system and the laws of the time, as well as the absence of
minimal due process protections and proper forums of adjudication.

Severe ill treatment
114 'Severe ill treatment' is not a term that is recognized either in South African or in
international law, although South African law recognizes concepts such as grievous
bodily harm and ill treatment. Both South African constitutional law and international law
do, however, recognize cruel, inhuman, or degrading treatment or punishment, which is
sometimes colloquially referred to as ill treatment.


115 Severe ill treatment can be broadly defined.20 The legislators included this category to
give the Commission some discretion or flexibility in determining the breadth of the
mandate. In defining severe ill treatment, the Commission was mindful of the general
principle of legal interpretation which holds that terms found in sequence are presumed
to be similar in kind. In other words, the acts constituting 'severe ill treatment' were
intended to be interpreted as similar in degree to other acts described (that is, killing,
torture, and abduction). The Commission also examined similar concepts in South
African and international law to provide contextual support for a working definition. The
international prohibition against cruel, inhuman, or degrading treatment or punishment,
for example, clearly encompasses a broader category of violations than that intended by
severe ill treatment.21 The category of ill treatment found in South African law is also
clearly broader in scope than severe ill treatment.22 The Commission's definition of
severe ill treatment was thus designed to include the extreme acts of "cruel, inhuman, or
degrading treatment" under international law, and ill treatment under South African law.


116 In the light of these considerations, the following definition of severe ill treatment was
adopted:








Acts or omissions that deliberately and directly inflict severe mental or physical suffering
on a victim, taking into account the context and nature of the act or omission and the
nature of the victim.


117 Whether an act or omission constituted severe ill treatment was thus determined on a
case-by-case basis23. The Commission determined that, in order to qualify as severe ill
treatment, an act should meet the general criteria that apply to all gross violations of
human rights.24

118 In addition, the following factors were be taken into account in determining whether
particular suffering or hardship was severe: first, duration (the longer the suffering or
hardship lasted, the more easily it qualified as severe); second, physical or mental
effects (the more serious and permanent the physical or mental effects, the more severe
the treatment); third, the age, strength and state of health of the victim. The very young
and the very old, the weak and the infirm required less suffering or hardship to meet the
criteria of severe. These criteria were interdependent the more one criterion was
satisfied, the less relevant were the others. In other words, a severe beating of a sick,
elderly person might have qualified as severe ill treatment even though the beating
lasted less than a minute.

119 By applying the above criteria, the following acts were regarded as constituting severe ill
treatment:
a rape and punitive solitary confinement;
b sexual assault, abuse or harassment;
c physical beating resulting in serious injuries;
d people shot and injured during demonstrations;
e burnings (including those caused by fire, petrol, chemicals, and hot liquid);
f injury by poison, drugs or other chemicals;
g mutilation (including amputation of body parts, breaking of bones, pulling out of nails,
hair, or teeth or scalping);
h detention without charge or trial;
i
b banning or banishment (a punishment inflicted without due process, consisting (a) of the
restriction of a person by house arrest, prohibition from being in a group, prohibition
from speaking in public or being quoted, or (b) of the enforced transfer of a person from
one area to another without the right to leave it);
j deliberate withholding of food and water to someone in custody with deliberate disregard
to the victim's health or well-being;
k deliberate failure to provide medical attention to ill or injured persons in custody;
I the destruction of a person's house through arson or other attacks which made it
impossible for the person to live there again.

120 This list is illustrative and not exhaustive. It consists primarily of acts that have been
generally recognized as prohibited under international law. While the above acts and
omissions would normally qualify as severe ill treatment, individual cases may not, in








fact, have met all the criteria of the definition above and thus may not have qualified as
severe ill treatment.


POLITICAL CONTEXT AND MOTIVATION

121 To implement its mandate, the Commission had, furthermore, to determine the 'political
motive' of the acts of torture, abduction, killing and severe ill treatment which "emanated
from the conflicts of the past" (section 1(1)(x), the Act). Given the complexity of the
conflicts that occurred in the past and the fact that the enforcement of apartheid
legislation affected every sphere of society, the political nature of specific acts was hard
to define.

122 In interpreting this part of the definition of gross human rights violations, the
Commission was guided by the definition of an "act associated with a political objective"
(section 20(2) and (3)). However, it also went further and employed the less restrictive
notion of 'political motive' (section 1(1)(x)).

123 The framework applied in implementing the political requirement was that a violation of
human rights within the prescribed period was found to constitute a gross violation of
human rights if it was advised, planned, directed, commanded, ordered or committed
by:

a any member or supporter of a publicly known political organisation or liberation
movement on behalf of or in support of that organisation or movement, in furtherance of
a political struggle waged by that organisation or movement (section 20(2)(a)). This
included not only membership of or support for political organizations like the PAC or
the ANC, but also membership of youth and community-based organizations. Trade
unions were also included in this description (given the suppression of purely political
organizations and the resultant political role that unions played), as was general
resistance to the previous state through, for example, rent boycotts.

b any employee of the state (or any former state) or any member of the security forces of
the state (or any former state) in the course and scope of his or her duties and directed
against a publicly known political organisation or liberation movement engaged in a
political struggle against the state (or former state) or against any members or
supporters of such organisation or movement or any person in furtherance of a political
struggle. The act in question must have been committed with the objective of countering
or otherwise resisting the said struggle (section 20(2)(b)).

124 Whether these violations "emanated from the conflicts of the past" was decided with
reference to the following criteria:

a the context in which the violation took place, and in particular whether it occurred in the
course of or as part of a political uprising, disturbance or event, or in reaction thereto
(section 20(3)(b)), for example, protests, 'stay aways', strikes and demonstrations;








b the objective being pursued, and in particular whether the conduct was primarily directed
at a political opponent or state property or personnel or against private property or
individuals (section 20(3)(d));


c whether it was the result of deliberate planning on the part of the state (or former state)
or any of its organs, or on the part of any political organisation, liberation movement or
other group or individual (section 4(a)(iv)).

125 In a number of cases that came before the Commission, it was difficult to apply this
framework. These included cases of the following types:

Labour conflicts

126 In the case of gross violations of human rights primarily related to labour conflicts (and
not to the more narrowly defined political conflicts of the past), it was possible to
differentiate further between:
a those which fell outside the Commission's mandate because, on closer examination,
there was no clear political context. Typical of this type were cases relating to the abuse
of farm workers;


b those that fell inside the mandate because a deeper probe revealed that the context
was clearly political. For example, where a labour union linked to a specific political
organisation was used to attack workers from a union linked to another political
organisation (as in the Durnacol coal mine conflicts in Northern KwaZulu-Natal in 1990),
or where a labour-related conflict became the basis for clear political protest (as in
Saldanha in 1987), or many actions in the course of trade union activity. The banning of
political organizations often made trade unions the vehicles through which political
struggles were waged.

Racism

127 There were cases in which people were victims of racist attack by individuals who were
not involved with a publicly known political organisation and where the incident did not
form part of a specific political conflict. Although racism was at the heart of the South
African political order, and although such cases were clearly a violation of the victim's
rights, such violations did not fall within the Commission's mandate.


128 Cases which were interpreted as falling inside the Commission's mandate included
instances where racism was used to mobilise people through a political organisation as
part of their commitment to a political struggle, or where racism was used by a political
organisation to incite others to violence. Examples of these were instances when 'white
settlers' or farmers were killed by supporters of the PAC or the ANC, or where black
people were killed by supporters of white right-wing organizations.

Criminality

129 These included cases that appeared to be criminal but which had a strong political
overlay. Classic examples were many of the violations committed by special








constables'25 while engaging in unlawful activities or off-duty harassment of local
residents. It could be argued that these were criminal and not political acts and therefore
fell outside the mandate. The Commission's response was to view these acts within their
political context the nature, purpose and function of this kind of police force had been
to institute a permanent armed presence. Clearly, the violations and the patterns of
violations that resulted from deploying these poorly trained, politicised and armed
people in communities should have been foreseen by those who were behind this
contra-mobilisation force. Unless acts committed were clearly aberrations for example,
shooting the owner of a shebeen, or raping someone in circumstances which indicated
that it was a random crime the Commission concluded that these acts were politically
motivated.

130 These also included acts by so-called 'bad apples' within the security forces; in other
words, it was claimed that certain acts had fallen outside the duties and orders given to,
for example, security police based at Vlakplaas. In some cases, there were disputes
between former state agents and former politicians about whether these acts were
reasonable interpretations of deliberately vague, unwritten orders to 'deal firmly with the
unrest', to 'do what has to be done' and so on. In such cases, the Commission gave the
benefit of the doubt to victims and included them in its mandate where an interpretation
of such an order was reasonable, taking into account all the facts and circumstances.
Many of these acts were clearly criminal. However, the fact that they took place over a
long period and that little or no action was taken against these employees of the state,
gave the Commission grounds to regard them as political. By failing to act, the state
condoned these 'private' acts, thus neglecting its duty to protect its citizens against
crime.


131 These also included 'third force' related actions, for example, drive-by shootings, train
violence, and some manifestations of the taxi violence and similar events. Even where
it was not possible clearly to identify the perpetrator as acting for a 'third force', victims
of such incidents were found to have suffered gross human rights violations if the
circumstances of the cases warranted it. All such matters were considered on a case-by-
case basis.

Convictions for politically motivated acts

132 One of the most difficult decisions related to whether conviction and sentencing (often to
unusually long periods of imprisonment) for 'public violence', or for offences defined in
terms of other legislation specific either to the apartheid period or state of emergency
regulations, could be considered gross violations of human rights. Factors that had to
be taken into consideration were whether such provisions would now be in contravention
of the South African Constitution, whether the severity of the sentence was out of
proportion to the offence and whether there had been abuses in relation to due process.
It was clear that the Commission could not recreate a court situation and review a
conviction. Nevertheless, the Commission decided that, in certain cases, people who
had been convicted in such circumstances could be deemed to have suffered a gross
violation of their human rights. Again, these were dealt with on a case-by-case basis. If








there was clear and compelling new evidence, the matter might be referred to the
authorities for a possible re-opening of the trial. As with capital punishment, the
Commission's task was not to make a perpetrator findings in relation to the court which
had passed the sentence, but to decide whether or not there had been a gross violation
of human rights.

CLOSED LIST OF VICTIMS


133 The decision to establish a finite list of victims was taken fairly late in the process of
gathering information about violations. Initially, in keeping with the spirit of inclusivity
that governed the work of the Commission, it was felt that all victims of gross violations
of human rights that had been shown to have taken place should be considered.

134 As the work of taking statements and investigating allegations progressed, however, it
became increasingly clear that there would be no value in simply handing the
government a list which included a broad category of unidentified persons for
consideration as victims deserving of reparations.

135 After a great deal of discussion, it was acknowledged that the Commission had the
capacity to corroborate only those statements that it had actually received. There was,
moreover, an inherent justice in dealing with the statements of those who had taken the
trouble to approach the Commission to make a statement. After all, the Commission had
made considerable efforts to reach all parts of the country and to disseminate
information on how to make a statement. Those who had chosen not to do so should
not, therefore, be included. It was recognized, however, that some had elected not to
make statements as a matter of political choice, a position that was respected.

136 Furthermore, it would have been unrealistic to give the government what would, in
effect, have been an open-ended list and, on this basis, to expect the state to make a
commitment to paying reparations. The Commission resolved, therefore, to confine the
number of victims eligible for reparations to three areas:

a victims who personally made statements to the Commission;

b victims named in a statement made by a relative or other interested person (for
example a colleague, friend or neighbour); in other words, statements made on behalf of
and in the interests of specific persons.

c victims identified through the amnesty process.



WHO SHOULD BE HELD ACCOUNTABLE?


137 The Commission was obliged to identify all persons, authorities, institutions and
organizations involved in gross violations of human rights. This meant that it had to go
beyond the investigation of those that had actually committed gross violations of human








rights and include those who had aided and abetted such acts. This is consistent with
the definition of gross violations of human rights, which includes attempts, conspiracy,
incitement, instigation, command or procurement to commit such acts.


138 The Commission based its conclusions on the evidence brought before it, firstly by
people who made statements concerning gross violations of human rights, and
secondly, by those who applied for amnesty. It also drew on the Investigation Unit's
inspections of inquest records, court records, prison and police registers and on
corroborative evidence produced by witnesses. Research into historical documentation
produced additional information, and submissions to the Commission, especially from
political parties, shed further light. The effort to apportion responsibility for planning,
commanding, inciting and so on is discussed in a later chapter.

139 Individual responsibility could be laid at the door of specific perpetrators of abuses only
once several factors had been taken into account. These included the question of self
defence, of proportionality and, in several well-known cases, the doctrine of common
purpose.

Accountability: legitimate self defence

140 A recent Constitutional Court judgement states that:

Self-defence is recognized by all legal systems. Where a choice has to be made
between the lives of two or more people, the life of the innocent is given preference over
the life of the aggressor. To deny the innocent person the right to act in self-defence
would deny to that individual his or her right to life. 26

141 The right to act in self-defence means essentially that, while the use of force against
another person is normally unlawful, it is justified in defence of persons, property or
other legal interest against an imminent, unlawful attack, provided that the defence is
directed against the attacker and is not excessive. Defence against an anticipated future
attack or a completed attack is not justified. Defence cannot be a form of punishment or
revenge.27 This means that, in cases of legitimate self defence, the person who had no
alternative but to kill or seriously injure a person posing an imminent threat to his or her
life should not be held criminally responsible for his/her actions.

142 The legitimacy of self-defence is often difficult to establish. The task was even more
difficult for the Commission, which had to deal with large numbers of cases in a limited
period and, therefore, had limited information at its disposal on many specific cases.

143 Amongst the most difficult issues the Commission faced in this regard were cases
involving SDUs and SPUs and conflicts between ANC- and IFP-aligned people in
KwaZulu-Natal, where it was usually not clear who was 'innocent' (defending) and who
was 'guilty' (attacking).


Accountability and law enforcement: exercise of police powers








144 States normally enjoy a monopoly over the legitimate use of force. Certain bodies and
officials, primarily the police services, are empowered to use force to uphold the rule of
law and to maintain public order. As in the case of armed conflict, however, the authority
to use force to uphold domestic order is not unlimited. Generally, members of the police
services are authorised to use a reasonable amount of force in proportion to the threat
being addressed or the legitimate ends being pursued. Lethal force should be used only
when someone's life is in imminent danger and there is no other reasonable way to
control the situation.

145 These norms are captured in the Code of Conduct for Law Enforcement Officials,
adopted by the United Nations General Assembly on 17 December 1979 (Resolution
34/169). For the purposes of this part of the Commission's mandate, the most important
articles are articles 1, 2, 3, 5 and 6 which state:

Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by
serving the community and by protecting all persons against illegal acts, consistent with
the high degree of responsibility required by their profession.

In the performance of their duty, law enforcement officials shall respect and protect
human dignity and maintain and uphold the human rights of all persons.
Law enforcement officials may use force only when strictly necessary and to the extent
required for the performance of their duty. 28

No law enforcement official may inflict, instigate or tolerate any act of torture or other
cruel, inhuman or degrading treatment or punishment, nor may any law enforcement
official invoke superior orders or exceptional circumstances such as a state of war or a
threat of war, a threat to national security, internal political instability or any other public
emergency as a justification of torture or other cruel, inhuman or degrading treatment or
punishment.

Law enforcement officials shall ensure the full protection of the health of persons in their
custody and, in particular, shall take immediate action to secure medical attention
whenever required.

146 These norms governing the use of legitimate state power are particularly difficult to
apply to the period of South African history prescribed by the Commission's mandate.
The large majority of people inside and outside the country increasingly rejected the
legitimacy of the state, and activists fighting against apartheid were defined as criminals
through the enforcement of harsh, unjust and discriminatory laws.

147 However, individual police officers saw it as their duty to enforce laws that many of them
did not, at the time, believe to be unjust. Indeed, in the South African context, the police
were given very wide powers to use lethal force through, for example, the Criminal
Procedure Act. In the overwhelming majority of inquests involving allegations of
excessive force, the police members involved were cleared of any misconduct. These
included cases arising out of Sharpville, Soweto 1976 and the 'Trojan Horse' incidents in
Athlone and Despatch, where local and international human rights organizations








condemned the laws which made these acquittals possible and their uncritical
application by the judiciary (see submissions on the judicial system).

148 Since the Commission had to decide whether specific acts by the SAP or homeland
police forces constituted human rights violations and not necessarily whether they were
legal or illegal in terms of the relevant domestic laws, it employed the internationally
accepted principle of unnecessary or excessive force (described above). In the light of
these international norms, the Commission found that, although the applicable South
African laws at that time might not have been broken, fundamental human rights were
often clearly violated. In a number of cases, the Commission was also presented with
new and compelling evidence (for example corroborated statements by victims or
witnesses) which strengthened the basis upon which it reached conclusions that differed
from those reached at most inquests and criminal proceedings regarding police
misconduct.

149 In determining whether excessive force was used, the Commission determined that it
should be guided by the following considerations. First, as a body working to assist in
the establishment of a culture of human rights, the Commission followed the inclusive
approach to protection found in international humanitarian law. It thus interpreted human
rights protections broadly to ensure maximum protection against violations. Second,
since the primary duty of the police is to uphold law and order through the apprehension
and arrest of those who break the law, the use of lethal force is justified only in extreme
situations.

Non-state perpetrators of gross human rights violations

150 There were many cases where the Commission found that the use of force by the police
was excessive and thus constituted a gross violation of human rights. There were also
cases where the Commission found that violence against the police constituted a gross
violation of human rights: for example, attempted killings (arson attacks when police
were inside their homes) and killings of off-duty police. The latter cases were, however,
fewer in number than those involving the police as perpetrators an unsurprising result
given the near monopoly of force exercised by those acting on behalf of a militarily
powerful state.

151 Killings and severe ill treatment of people seen as informers or collaborators, attacks on
people and places seen as part of the oppressive government and conflict between
different political groupings, all formed part of the picture of gross human rights
violations committed with a political motive.

Naming

152 The Act required the publication of the names of those who received amnesty in the
Government Gazette. These individuals had already identified themselves as
perpetrators by applying for amnesty. The Commission had therefore, to resolve which
of the other perpetrators identified in the course of its work should be named in
accordance with its mandate to enquire into "the identity of all persons, authorities,
institutions and organizations" involved in gross human rights violations, as well as the








"accountability, political or otherwise, for any such violation" (section 4(a)(iii), (v), the
Act).

153 In fulfilling this part of its mandate, the Commission was again required to walk a
tightrope. This time, it was faced with the tension between the public interest in the
exposure of wrongdoing and the need to ensure fair treatment of individuals in what was
not a court of law; between the rights of victims of gross violations of human rights to
know who was responsible and the fundamentally important question of fairness to those
who are accused of crimes or serious wrongdoing.

154 The risk of personal injury and hurt to those who are identified as perpetrators is
inherent in any attempt to seek the truth through a public enquiry. This can be justified
to some extent by:


a acknowledging the public importance of the Commission's truth-seeking role;


b the limited outcome of these findings (the Commission is not a court with the power to
punish those identified; legal rights and obligations are not finally determined by the
process);


c the adoption of a procedure which is fair within the context of an investigative process.
(See chapters, Legal Challenges and Methodology and Process).

155 Given the investigative nature of the Commission's process and the limited legal impact
of naming, the Commission made findings on the identity of those involved in gross
violations of human rights based on the balance of probability. This required a lower
burden of proof than that required by the conventional criminal justice system. It meant
that, when confronted with different versions of events, the Commission had to decide
which version was the more probable, reasonable or likely, after taking all the available
evidence into account.

156 The kinds of evidence which guided the Commission in identifying those responsible for
gross violations of human rights on the basis of the balance of probability included:

a Identification through court records, confessions, statements implicating people in police
dockets, police inquests, and/or previous applications for indemnity.

b Instances where the Commission's investigations (section 29 hearings or investigative
and research work) produced a high degree of corroboration (for example, other
witnesses present at the time who supported the victim's statement). An example of a
'high' level of corroboration would be a situation where a witness confirmed the identity
of the actual person committing the gross violation of human rights; a 'low' level of
corroboration would be where the witness confirmed the event but not the identity of the
perpetrator.

c Instances where names consistently recurred in the statements of people making
allegations concerning gross violations of human rights (for example, vigilante groups).








Even in such cases, perpetrators would not be named without first being sent a section
30 notice advising them that the Commission intended to name them and allowing them
an opportunity to respond. This procedure applied to all instances where persons were at
risk of being the subject of an adverse finding.

157 In view of the Commission's commitment to human rights, it approached the issue of
naming perpetrators in a number of different ways:

a No naming occurred where the identities of individuals and institutions involved were
unclear.

b In many cases, where the Commission had insufficient information to send out section
30 notices (see chapters on Legal Challenges and Methodology and Process) to persons
allegedly implicated in gross violations of human rights, such alleged perpetrators were
not named.

c Institutions but not individuals were named where only the institution could be identified.
In addition, only the institution was named where the identities of both individuals and
institutions were clear, but where it was not possible to verify or clearly determine
excessive force or illegitimate claims of self defence. In these situations, it was
important to protect the accused individual against potentially unfair accusations.

d Naming of both individuals) and institutions) occurred where sufficient evidence was
available to make a finding on the balance of probability and after completion of the
correct procedure. This was not a finding of (legal) guilt, but of responsibility for the
commission of a gross violation of human rights.

CONCLUSION

158 This chapter has provided an overview of the historical and legislative origins, as well as
the objectives and functions of the Commission. More importantly, it has outlined the
Commission's interpretation of its mandate. This was, in many ways, a difficult and
highly contested arena, and the resultant interpretation was the result of many hours of
debate and careful consideration.

159 In subsequent volumes of this report, the mandate is applied to a range of individual
cases of alleged gross violations of human rights.


APPENDIX: A CRIME AGAINST HUMANITY29

1 It has been stated that the Commission as part of the international human rights
community affirms its judgement that apartheid, as a system of enforced racial
discrimination and separation, was a crime against humanity. The recognition of
apartheid as a crime against humanity remains a fundamental starting point for
reconciliation in South Africa. At the same time, the Commission acknowledges that
there are those who sincerely believed differently and those, too, who were blinded by
their fear of a Communist 'total onslaught'.









2 This sharing of the international community's basic moral and legal position on apartheid
should not be understood as a call for international criminal prosecution of those who
formulated and implemented apartheid policies. Indeed, such a course would militate
against the very principles on which this Commission was established.30

3 It is important to note that the definition of what constitutes a crime against humanity
has evolved considerably since it was first applied after World War II during the
Nuremberg trials. There is still some debate about certain technical aspects of this
definition. However, there is almost total unanimity within the international community
that apartheid as a form of systematic racial discrimination constituted a crime against
humanity. Given the confusion in public debates in South Africa surrounding the
definition of 'crimes against humanity', it is important to state that a finding of a crime
against humanity does not necessarily or automatically involve a finding of genocide.
The latter involves conduct "with intent to destroy, in whole or in part, an ethnic or racial
group" as required by Article 1 of the Genocide Convention of 1948.31

4 As indicated earlier, the definition of crimes against humanity can be applied at two
levels. The first level of application, namely to apartheid as a system, flows from the
Commission's obligation to enquire into the causes, nature and extent of gross violations
of human rights, including the antecedents and context of such violations (section 3(a)).
The Commission has concluded that the nature of the conflicts in general and the
causes of the violations which occurred in the course of these conflicts cannot be
understood without examining the system of apartheid within which they took place.

5 The Commission was also required, at a second level of application, to enquire which of
the specific acts constituting gross violations of human rights "were part of a systematic
pattern of abuse" (section 4(a)).

Organizations, instruments and judicial decisions that declared apartheid a crime
against humanity

The United Nations

6 The General Assembly on numerous occasions labelled apartheid a crime against
humanity32

7 In 1976, the United Nations Security Council unanimously stated that "apartheid is a
crime against the conscience and dignity of mankind."33

8 Subsequent Security Council resolutions expressed agreement with the 1976
resolution.34

9 On 13 December 1984, the Security Council passed Resolution 556, which, in
Paragraph 1, declared that apartheid is a crime against humanity35


International conventions and other instruments








10 Article 1 of the International Convention on the Suppression and Punishment of the
Crime of Apartheid adopted by the General Assembly in 1973 stated that apartheid was
a crime against humanity.

11 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity36 stipulated that "inhuman acts resulting from the policy of
apartheid are condemned as crimes against humanity".

12 The 1991 Draft Code of Crimes against the Peace and Security of Mankind37 specifically
lists apartheid,38 together with other crimes such as genocide39 and exceptionally serious
war crimes,40 as crimes against the peace and security of mankind.

13 Although the 1996 Draft Code of Crimes against the Peace and Security of Mankind41
no longer makes specific reference to apartheid as a separate crime, it does list a set of
acts that specifically constitute crimes against humanity. Article 18(f) states:

A crime against humanity means any of the following acts, when committed in a
systematic manner or on a large scale and instigated or directed by a government or by
any organisation or group: ... (f) institutionalized discrimination on racial, ethnic or
religious grounds involving the violation of fundamental human rights and freedoms and
resulting in seriously disadvantaging a part of the population.

14 The Preamble to the African Charter on Human and Peoples' Rights, to which South
Africa became a party in 1996, affirms that African states have a duty to:

...achieve the total liberation of Africa, the peoples of which are still struggling for their
dignity and genuine independence, and undertake] to eliminate colonialism, neo-
colonialism, apartheid [and] Zionism...

15 The international community is presently engaged in the establishment of a permanent
International Criminal Court which will be given competence to try persons responsible
for crimes against humanity. The proposed definitions of crimes against humanity
encompass acts of the kind included in the Draft Code of Crimes against the Peace and
Security of Mankind (1991); that is the kind of acts committed in execution of the policy
of apartheid. The proposed permanent international criminal court will not have
retrospective jurisdiction, with the result that those who have committed crimes of
apartheid will not fall within its jurisdiction.

The International Law Commission (ILC).

16 In its Draft Articles on state responsibility, the ILC defines an international crime as a
breach of an international obligation so essential for the protection of the fundamental
interests of the international community that it is recognized as a crime by that
community as a whole. Among such crimes, the ILC lists slavery, genocide and
apartheid42

International courts


The International Court of Justice (ICJ)









17 In 1971, the ICJ asserted that:


Under the Charter of the United Nations, the former Mandatory had pledged itself to
observe and respect, in a territory having an international status, human rights and
fundamental freedoms for all without distinction as to race. To establish instead, and to
enforce, distinctions, exclusions, restrictions and limitations exclusively based on the
grounds of race, colour, descent or national or ethnic origin which constitute a denial of
fundamental human rights is a flagrant violation of the purposes and principles of the
Charter. 43

18 In the Barcelona Traction Judgement, the ICJ held that:

an essential distinction should be drawn between obligations of a State towards the
international community as a whole, and those arising vis-a-vis another State in the field
of diplomatic protection. By their very nature the former are the concern of all States. In
view of the importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga omnes. Such obligations derive, for
example, in contemporary international law, from the outlawing of acts of aggression,
and of genocide, and also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general international
law; others are conferred by international instruments of a universal or quasi-universal
character. 44

19 The International Criminal Tribunal for the Former Yugoslavia has recently handed
down its historic first judgement. The Tribunal found a Bosnian Serb guilty of, inter alia,
'crimes against humanity'. The significance of this judgement is evident from the first
paragraph of the ruling:

It is the first determination of individual guilt or innocence in connection with serious
violations of international humanitarian law by a truly international tribunal, the
International Tribunal being the first such tribunal to be established by the United
Nations. The international military tribunals at Nurnberg and Tokyo, its predecessors,
were multinational in nature, representing only part of the world community. The
International Tribunal was established by the Security Council of the United Nations in
1993, pursuant to resolution 808 of 22 February 1993 and resolution 827 of 25 May
1993.45

20 The judgement confirms the view in international law that apartheid is a crime against
humanity:

The customary status of the NOrnberg Charter, and thus the attribution of individual
criminal responsibility for the commission of crimes against humanity, was expressly
noted by the Secretary-General. Additional codifications of international law have also
confirmed the customary law status of the prohibition of crimes against humanity, as
well as two of its most egregious manifestations: genocide and apartheid.46








Specific acts classified as crimes against humanity


21 The Commission chose to employ for its purposes the most recent definition adopted by
the International Law Commission in its 1996 Draft Code of Crimes against the Peace
and Security of Mankind47. It was satisfied that this definition reflects and incorporates
many of the legal developments that have occurred since Nuremberg. Article 18 of the
1996 Code defines crimes against humanity thus:

A crime against humanity means any of the following acts, when committed in a
systematic manner or on a large scale and instigated or directed by a government or by
any organisation or group: (a) murder; (b) extermination; (c) torture; (d) enslavement; (e)
persecution on political, racial, religious or ethnic grounds; (f) institutionalized
discrimination on racial, ethnic or religious grounds involving the violation of fundamental
human rights and freedoms and resulting in seriously disadvantaging a part of the
population; (g) arbitrary deportation or forcible transfer of population; (h) forced
disappearance of persons; (i) rape, enforced prostitution and other forms of sexual
abuse; () other inhumane acts which severely damage physical or mental integrity,
health or human dignity, such as mutilation and severe bodily harm.

22 The following brief commentary on the meaning of certain aspects of the definition
allows it to be applied with greater certainty.

Systematic violations or violations on a large scale

23 The requirement that crimes against humanity must be committed in a systematic
manner or on a large scale excludes acts which, although they are serious violations of
human rights, occur in an isolated or random manner. The requirement is framed
disjunctively, clearly indicating that it is not necessary for both requirements to be
simultaneously satisfied. Simply, acts which occur on a large scale must occur in large
numbers, while acts which occur systematically must follow a similar pattern and occur
at different times and different places.

24 A question recently raised before the International Criminal Tribunal for the Former
Yugoslavia was whether it is possible for a single act to constitute a crime against
humanity. In the Tadic judgement, the Tribunal quotes with approval an earlier decision
which stated that:

Crimes against humanity are to be distinguished from war crimes against individuals. In
particular, they must be widespread or demonstrate a systematic character. However, as
long as there is a link with the widespread or systematic attack against a civilian
population, a single act could qualify as a crime against humanity. As such an individual
committing a crime against a single victim or a limited number of victims, might be
recognized as guilty of a crime against humanity if his acts were part of the specific
context identified above. 48

25 The Commission was in agreement with this ruling.


Crimes committed by a government or by any organisation or group








26 Earlier definitions of crimes against humanity presumed that such crimes could only be
committed by a government or those acting on behalf of a government. Implicit in this
approach was an assumption that only an institution with the power and resources of a
government would have the capacity to commit crimes on the scale necessary to qualify
as crimes against humanity. Over the past fifty years, it has become clear that certain
organizations or groups outside government are capable of committing crimes on a
large scale or in a systematic manner. The Commission therefore endorsed the
definition of crimes against humanity contained in the 1996 ILC Draft Code of Crimes
against the Peace and Security of Mankind which includes acts committed by non-state
actors.

Persecution

27 Clause (e) of the definition of the International Law Commission adopted by the
Commission reads as follows:

persecution on political, racial, religious or ethnic grounds;

28 In the application of this clause, the following definition of 'persecution' has been
adopted:

Action or policy adopted by a government, organisation or group leading to the infliction
upon an individual of harassment, torment, oppression, or discriminatory measures,
designed to or likely to produce physical or mental suffering or economic harm, because
of the victim's beliefs, views, or membership in a given identifiable group (religious,
social, ethnic, linguistic, etc.) or simply because the perpetrator sought to single out a
given category of victims for reasons peculiar to the perpetrator. 49

Inhumane acts

29 Clause (j) of the proposed definition reads as follows:

other inhumane acts which severely damage physical or mental integrity, health or
human dignity, such as mutilation and severe bodily harm.

30 The Commission has chosen to interpret this clause in the same way in which it
interpreted the term 'severe ill treatment'.

Crimes against humanity: supplementary definitions from recent cases

Barbie (1988) 78 International Law Report 136 at 137 (France)

31 The definition of 'crime against humanity' closely follows Article 6c of the Nuremberg
Charter:

persecutions on political, racial or religious grounds E performed in a systematic manner
in the name of a State practising by those means a policy of ideological supremacy, not
only against persons by reason of their membership of a racial or religious community,
but also against the opponents of that policy, whatever the form of their opposition.








Touvier (1992) 100 International Law Reports 337 at 351 352 (France)

32 The definition of 'crime against humanity' has two elements, one substantive, and one of
specific intent. The substantive element is guided by Article 6 of the Nuremberg Charter.
To satisfy the intent element, however, more than simple criminal intent or general
illegality is required. One must have the actual:

intention to take part in the execution of a common plan by committing in a systematic
manner, inhuman acts or persecutions in the name of a State practising a policy of
ideological supremacy.

33 The Touvier case also supports the notion that crimes against humanity are not
synonymous with war crimes.

the elements constituting crimes against humanity within the meaning of Article 6c of
the Charter of the International Military Tribunal of 8 August 1945 ... are not the same
as the requisite elements for war crimes within the meaning of Article 80 of the Code of
Military Justice and the crime of maintaining contact with the enemy laid down by Article
70 of the Criminal Code.50

Regina v Finta (1989) 82 International Law Reports 424 at 431 (Canada)

34 The definition of crimes against humanity, as contained in section 6(1.96) of Canada's
criminal code, means:

murder, extermination, enslavement, deportation, persecution, or any other inhumane
act or omission that is committed against any civilian population or any identifiable group
of persons, whether or not it constitutes a contravention of the law in force at the time
and in the place of commission, and that, at that time and in that place, constitutes a
contravention of customary international law or conventional international law or is
criminal according to the general principles of law recognized by the community of
nations.

35 This supports the notion that the apartheid system in South Africa was a crime against
humanity, in spite of the fact that it was perfectly legal within that country, because it
contravened international law.











Volume ONE Chapter FIVE


Concepts and Principles


] INTRODUCTION


National Unity and Reconciliation


This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife,
conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and
peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class,
belief or sex. The pursuit of national unity, the well-being of all South African citizens and peace require
reconciliation between the people of South Africa and the reconstruction of society.


The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the
divisions and strife of the past which generated gross violations of human rights, the transgression of
humanitarian principles in violent conflicts and the legacy of hatred, fear, guilt and revenge. These can now be
addressed on the basis that there is a need for understanding but not vengeance, a need for reparation but not
for retaliation, a need for ubuntu but not victimisation.


In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts,
omissions and offences associated with political objectives and committed in the course of the conflicts of the
past... 1
1 The previous chapter emphasised the importance of viewing the Commission as part of the broader national
process of 'building a bridge' between a deeply divided past of "untold suffering and injustice" and a future
"founded on the recognition of human rights, democracy, peaceful co-existence, and development
opportunities for all". This chapter seeks to clarify the concepts and principles underlying the Commission's
work. Judge Richard Goldstone highlighted the importance of these concepts and principles thus:
On the one hand, there is the vital legal underpinning of the [Truth and Reconciliation Commission] without
which such a commission could not succeed and would not exist. On the other hand, there are philosophical,
religious and moral aspects without which the commission will be an empty legal vessel which would do a great
deal of harm and achieve nothing 2


2 The Commission was founded in the belief that, in order to build the "historic bridge" of which the interim
Constitution speaks, one must establish as "complete a picture as possible" of the injustices committed in
the past. This must be coupled with a public, official acknowledgement of the "untold suffering" which
resulted from those injustices. It is to these goals that the Commission must contribute.
3 The task assigned to the Commission proved to be riddled with tensions. For many, truth and reconciliation
seemed separated by a gulf rather than a bridge. Moreover, in the process of implementing its obligation to










consider amnesty for perpetrators (as required by the interim Constitution), the concept of justice also came
under constant scrutiny. "We've heard the truth. There is even talk about reconciliation. But where's the
justice?" was a common refrain.
4 Before explaining how the Commission dealt with the overlapping and apparently contradictory goals of
truth, reconciliation and justice, it is necessary to highlight two more general sources of tension.


The public nature of the Commission
5 A distinctive feature of the Commission was its openness to public participation and scrutiny. This enabled it
to reach out on a daily basis to large numbers of people inside and outside South Africa, and to confront
them with vivid images on their television screens or on the front pages of their newspapers. People saw, for
example, a former security police officer demonstrating his torture techniques. They saw weeping men and
women asking for the truth about their missing loved ones. The media also helped generate public debate
on central aspects of South Africa's past and to raise the level of historical awareness. The issues that
emerged as a consequence helped the nation to focus on values central to a healthy democracy:
transparency, public debate, public participation and criticism.


6 The sword wielded by the media is, however, double-edged. The fact that much of the Commission's work
was transmitted by the media meant that public perceptions were formed by what people saw on television,
heard on the radio or read in the newspapers. Thus, while the 'soundbites', headlines and photographs of
what happened in the public domain contributed significantly to the work of the Commission, they also had
the effect of making aspects of its work more vulnerable to criticism. For example, the Commission was
accused of accepting untested allegations, primarily because the activities that led to its findings
(investigation, research, enquiries in closed hearings and the actual decision-making process by
commissioners) were less visible. Similarly, the first steps towards reconciliation, such as private encounters
between victims and perpetrators or pre- and post-hearing community visits by commissioners, usually took
place out of sight of the media. Although, clearly, the envisaged reconciliation could not be accomplished in
the lifespan of the Commission, a number of serious initiatives were taken to promote it.

The Commission's three sub-committees
7 Many people found it difficult to understand how the work of the three separately functioning subcommittees,
with apparently contradictory aims, could contribute to the overall goals of promoting national unity and
reconciliation.
8 A major source of conflict in public debate concerned the question of amnesty. As already mentioned, the
decision to grant amnesty was a feature of the negotiated political settlement and became a central
responsibility of the Commission. Many participants, however, saw a contradiction between the work of the
Human Rights Violations Committee, which devoted its time and resources to acknowledging the painful
experiences of victims of gross violations of human rights, and the work of the Amnesty Committee, which
freed many of the perpetrators of these violations from prosecution (and from prison) on the basis of full
disclosure.
9 This tension was deepened by the fact that the Amnesty Committee was given powers of implementation,
while the Reparation and Rehabilitation Committee could, by and large, only make recommendations.











Perpetrators were granted immediate freedom. Victims were required to wait until Parliament had accepted
or rejected the recommendations of the Commission.


p PROMOTING NATIONAL UNITY AND RECONCILIATION
10 The overarching task assigned to the Commission by Parliament was the promotion of national unity and
reconciliation. Debates within and outside the Commission demonstrated that the interpretation of this
concept was highly contested.3 While there is no simple definition of reconciliation, the following essential
elements emerged.


Reconciliation is both a goal and a process
11 When introducing the Promotion of National Unity and Reconciliation legislation to Parliament, the Minister
of Justice said:


[This is] a Bill which provides a pathway, a stepping stone, towards the historic bridge of which the Constitution
speaks whereby our society can leave behind the past of a deeply divided society characterized by strife,
conflict, untold suffering and injustice, and commence the journey towards a future founded on the recognition
of human rights, democracy and peaceful co-existence, and development opportunities for all South Africans
irrespective of colour, race, class, belief or sex.


Its substance is the very essence of the constitutional commitment to reconciliation and the reconstruction of
society. Its purpose is to provide that secure foundation which the Constitution enjoins: '..for the people of
South Africa to transcend the divisions and strife of the past, which generated gross human rights
violations...and a legacy of hatred, fear, guilt and revenge'.
12 The Minister of Justice made it clear that the 'journey' itself must be a conciliatory one. Thus, reconciliation
is both a goal and a process.


Different levels of reconciliation
13 The work of the Commission highlighted the many different levels at which reconciliation needs to take
place. Some of these levels, and the complex links between them, are illustrated in the chapter on
Reconciliation. They include:


Coming to terms with painful truth
14 In some cases, especially where the remains of loved ones were exhumed and dignified reburials were
made possible, the Commission's disclosure of truth helped people to reach 'closure', to make peace with
what had happened. However, the reconciliation of victims with their own pain is a deeply personal, complex
and unpredictable process. Knowing the complete picture of past gross human rights violations, or even the
facts of each case, may not lead to reconciliation. Truth may, in fact, cause further alienation.
15 The Commission's work, in particular that of the Amnesty Committee, also illustrated the difficulties faced by
perpetrators (with varying degrees of responsibility for past violations) in coming to terms with their guilt and
shame.










Reconciliation between victims and perpetrators
16 The contribution of the Commission to reconciliation between specific victims and perpetrators was
necessarily limited (by its time frame, mandate and resources). In some cases, however, the Commission
assisted in laying the foundation for reconciliation. Although truth does not necessarily lead to healing, it is
often a first step towards reconciliation. Father Michael Lapsley, who lost both arms and an eye in a near
fatal security police parcel bomb attack in Harare in 1990, told the Commission: "I need to know who to
forgive in order to endeavour to do so".


Reconciliation at a community level
17 The effects of human rights violations were multiple, inflicting lasting damage on social relations. At a
national level, the main dimension of the conflict was between the oppressed black population and the
former state. However, within and between communities, conflict played itself out in various, often insidious,
ways. Internal divisions occurred between the young and the old, men and women, neighbours, as well as
between different ethnic and racial groups. All these aspects required attention.
18 In some cases, the Commission was able to assist in the process of reconciliation at the micro-level. In
others, local conflicts may have been additionally complicated by the different levels of recognition and
priority brought into being by the Commission itself.


Promoting national unity and reconciliation
19 The experiences of the Commission illustrated the particular difficulty of understanding the meaning of unity
and reconciliation at a national level. They also highlighted the potentially dangerous confusion between a
religious, indeed Christian, understanding of reconciliation, more typically applied to interpersonal
relationships, and the more limited, political notion of reconciliation applicable to a democratic society.
20 Many people within and outside the Commission warned against expecting too much, too soon from the
reconciliation process at a national level. They were concerned about the imposition of a notion of
reconciliation associated with contrition, confession, forgiveness and restitution on a diverse and divided
society attempting to consolidate a fragile democracy. They argued that the most the Commission could and
should hope for, at least in the short term, was peaceful coexistence. Thus, a healthy democracy does not
require everyone to agree or become friends. However, a culture of human rights and democracy does
require respect for our common human dignity and shared citizenship, as well as the peaceful handling of
unavoidable conflicts.
21 Others cautioned against accepting too limited a notion of reconciliation. They argued that the Commission
should not underestimate the vital importance of apologies by individuals, representatives of institutions
and political leaders coupled with forgiveness by those who had been violated. They saw such gestures as
important in the public life of a nation attempting to "transcend the divisions and strife of the past... leaving a
legacy of hatred, fear, guilt and revenge". In the chapter on Reconciliation, there are many extracts from
testimonies which illustrate these different perspectives.
22 The following aspects of the Commission's contribution to the promotion of national unity and reconciliation
need to be noted:
a The democratic, transparent, inclusive process of the Commission and the extensive public debates
surrounding its work attempted to nurture and promote the central values of open debate and a
democratic culture.










b The Commission made significant progress in establishing "as complete and reliable a picture as
possible of past violations".
c The Commission facilitated the official, public acknowledgement of these violations. In so doing, it
sought to restore the dignity of those who had suffered.
d By holding accountable not only individuals, but also the state and other institutions, and by making
recommendations aimed at preventing future violations, the Commission sought to help restore trust in
these institutions. Such trust is necessary for the functioning of a healthy democratic system.
23 Reconciliation is needed, not only at an individual level, nor only between individuals, but also within and
between communities and the nation as a whole. Another very important dimension of reconciliation was
emphasised by an unidentified thirty-nine year old man from Bongolethu, Oudtshoorn:


What does reconciliation mean for you as a young person? Reconciliation means people forgiving each other
and working together as one nation. It does not matter as to what one has done to another in the past. Well, at
some stages it does matter...


What would be ideal reconciliation for you? That is that the many people who do not have education are
reached. Reconciliation starts with building up these people who are uneducated. Employ those who are
unemployed. Train those who are not trained. Develop those who are not developed.4


Reconciliation and redistribution
24 The broad challenge of reconciliation between those who benefited from the past and those who continue to
be disadvantaged by past discrimination is central to the vision contained in the postamble to the interim
Constitution.
25 Gross socio-economic inequalities are the visible legacy of the systematic, institutionalized denial of access
to resources and development opportunities on grounds of colour, race and sex. But they are also the less
tangible consequences of centuries of dehumanising devaluation of 'non-Europeans', 'non-whites' and 'non-
males'. The Mandate chapter explains the limited focus of the work of the Commission in this broader
context.
26 Many years ago, Albert Luthuli, the first South African recipient of the Nobel Peace Prize, articulated a
vision of South Africa as "a home for all her sons and daughters". This concept is implicit in the interim
Constitution. Thus, not only must we lay the foundation for a society in which physical needs will be met; we
must also create a home for all South Africans. The road to reconciliation, therefore, means both material
reconstruction and the restoration of dignity. It involves the redress of gross inequalities and the nurturing of
respect for our common humanity. It entails sustainable growth and development of the spirit of ubuntu (see
below). It implies wide-ranging structural and institutional transformation and the healing of broken human
relationships. It demands guarantees that the past will not be repeated. It requires restitution and the
restoration of our humanity as individuals, as communities and as a nation.
27 Given the magnitude of this exercise, the Commission's quest for truth should be viewed as a contribution to
a much longer-term goal and vision. Its purpose in attempting to uncover the past had nothing to do with
vengeance; it had to do, rather, with helping victims to become more visible and more valuable citizens
through the public recognition and official acknowledgement of their experiences. In the words of Ms










Thenjiwe Mtintso, former chairperson of the Commission on Gender Equality and currently Deputy
Secretary General of the ANC, at the opening the Commission's hearing on women in Johannesburg, 29
July 1997:


[This hearing] is the beginning of giving the voiceless a chance to speak, giving the excluded a chance to be
centred and giving the powerless an opportunity to empower themselves.
28 In addition, by bringing the darker side of the past to the fore, those responsible for violations of human
rights could also be held accountable for their actions. In the process, they were given the opportunity to
acknowledge their responsibility to contribute to the creation of a new South African society.



p TRUTH
29 But what about truth and whose truth? The complexity of this concept also emerged in the debates that
took place before and during the life of the Commission, resulting in four notions of truth: factual or forensic
truth; personal or narrative truth; social or 'dialogue' truth (see below) and healing and restorative truth.


Factual or forensic truth
30 The familiar legal or scientific notion of bringing to light factual, corroborated evidence, of obtaining
accurate information through reliable (impartial, objective) procedures, featured prominently in the
Commission's findings process (see chapter on Methodology and Process).
31 The Act required that the Commission "prepare a comprehensive report which sets out its activities and
findings, based on factual and objective information and evidence collected or received by it or placed at its
disposal" (emphasis added). In pursuing this factual truth, the Act required the examination of two essential
areas.
32 The first of these related to findings on an individual level. The Commission was required to make findings
on particular incidents and in respect of specific people. In other words, what happened to whom, where,
when and how, and who was involved? In order to fulfil this aspect of its mandate, it adopted an extensive
verification and corroboration policy to make sure that findings were based on accurate and factual
information (see chapter on Methodology and Process).
33 The second area related to findings on the contexts, causes and patterns of violations. In this respect, the
Commission was required to report on the broader patterns underlying gross violations of human rights and
to explore the causes of such violations. To do this, it had to analyse, interpret and draw inferences from the
information it received. In this regard, it became necessary for the Commission to adopt a social scientist's
approach making use of the information contained in its database and from a range of secondary sources.
However, all truth commissions have their limitations. In the words of Michael Ignatieff:


All that a truth commission can achieve is to reduce the number of lies that can be circulated unchallenged in
public discourse. In Argentina, its work has made it impossible to claim, for example, that the military did not
throw half-dead victims in the sea from helicopters. In Chile, it is no longer permissible to assert in public that
the Pinochet regime did not dispatch thousands of entirely innocent people... 5










34 Applying Ignatieffs notion of reducing the number of lies, one can say that the information in the hands of
the Commission made it impossible to claim, for example, that: the practice of torture by state security
forces was not systematic and widespread; that only a few 'rotten eggs' or 'bad apples' committed gross
violations of human rights; that the state was not directly and indirectly involved in 'black-on-black violence';
that the chemical and biological warfare programme was only of a defensive nature; that slogans by
sections of the liberation movement did not contribute to killings of 'settlers' or farmers; and that the
accounts of gross human rights violations in the African National Congress (ANC) camps were the
consequence of state disinformation. Thus, disinformation about the past that had been accepted as truth by
some members of society lost much of its credibility.


Personal and narrative truth
35 At a hearing of the Commission in Port Elizabeth on 21 May 1996, Archbishop Tutu said:


This Commission is said to listen to everyone. It is therefore important that everyone should be given a chance
to say his or her truth as he or she sees it...
36 By telling their stories, both victims and perpetrators gave meaning to the multi-layered experiences of the
South African story. These personal truths were communicated to the broader public by the media. In the
(South) African context, where value continues to be attached to oral tradition, the process of story telling
was particularly important. Indeed, this aspect is a distinctive and unique feature of the legislation governing
the Commission, setting it apart from the mandates of truth commissions elsewhere. The Act explicitly
recognized the healing potential of telling stories.6 The stories told to the Commission were not presented
as arguments or claims in a court of law. Rather, they provided unique insights into the pain of South
Africa's past, often touching the hearts of all that heard them.
37 By providing the environment in which victims could tell their own stories in their own languages, the
Commission not only helped to uncover existing facts about past abuses, but also assisted in the creation of
a 'narrative truth'. In so doing, it also sought to contribute to the process of reconciliation by ensuring that
the truth about the past included the validation of the individual subjective experiences of people who had
previously been silenced or voiceless. The Commission sought, too, to capture the widest possible record of
people's perceptions, stories, myths and experiences. It chose, in the words ofAntjie Krog, a South African
writer and poet, "the road of... restoring memory and humanity".7 It is what Oxford University historian,
Timothy Garton Ash, sees as "the most promising" way a way that offers "history lessons" as an alternative
to political trials, uncovering what happened and identifying lessons for the future.8 As such, the
Commission sought to recover parts of the national memory that had hitherto been officially ignored.
38 It is impossible to capture the detail and complexity of all of this in a report. The transcripts of the hearings,
individual statements, a mountain of press clippings and video material are all part of an invaluable record
which the Commission handed over to the National Archives for public access. This record will form a part
of the national memory for generations yet to come. In this report, the Commission has tried, through a
range of detailed 'window cases' and selections from the testimonies of many victims, to capture some part
of the richness of the individual accounts heard before it.












Social truth
39 While narrative truth was central to the work of the Commission, especially to the hearings of the Human
Rights Violations Committee, it was in its search for social truth that the closest connection between the
Commission's process and its goal was to be found.
40 Judge Albie Sachs, a prominent participant in the debates preceding the establishment of the Commission
and now a Constitutional Court judge, made a useful distinction between what he called 'microscope truth'
and 'dialogue truth'. "The first", he said, "is factual, verifiable and can be documented and proved. 'Dialogue
truth', on the other hand, is social truth, the truth of experience that is established through interaction,
discussion and debate" 9 (emphasis added).
41 In recognizing the importance of social or 'dialogue' truth, the Commission acknowledged the importance of
participation and transparency. Its goal was to try to transcend the divisions of the past by listening carefully
to the complex motives and perspectives of all those involved. It made a conscious effort to provide an
environment in which all possible views could be considered and weighed, one against the other. People
from all walks of life were invited to participate in the process, including faith communities, the South
African National Defence Force (SANDF), non-governmental organizations (NGOs) and political parties.
The public was engaged through open hearings and the media. The Commission itself was also subjected to
constant public scrutiny and critique.
42 It is particularly important to emphasise that establishing the truth could not be divorced from the affirmation
of the dignity of human beings. Thus, not only the actual outcome or findings of an investigation counted.
The process whereby the truth was reached was itself important because it was through this process that the
essential norms of social relations between people were reflected. It was, furthermore, through dialogue and
respect that a means of promoting transparency, democracy and participation in society was suggested as a
basis for affirming human dignity and integrity.


Healing and restorative truth
43 The preceding discussion rejects the popular assumption that there are only two options to be considered
when talking about truth namely factual, objective information or subjective opinions. There is also
'healing' truth, the kind of truth that places facts and what they mean within the context of human
relationships both amongst citizens and between the state and its citizens. This kind of truth was central to
the Commission.
44 The Act required that the Commission look back to the past and forward to the future. In this sense, it was
required to help establish a truth that would contribute to the reparation of the damage inflicted in the past
and to the prevention of the recurrence of serious abuses in the future. It was not enough simply to
determine what had happened. Truth as factual, objective information cannot be divorced from the way in
which this information is acquired; nor can such information be separated from the purposes it is required to
serve.
45 It is in this context that the role of 'acknowledgement' must be emphasised. Acknowledgement refers to
placing information that is (or becomes) known on public, national record. It is not merely the actual
knowledge about past human rights violations that counts; often the basic facts about what happened are
already known, at least by those who were affected. What is critical is that these facts be fully and publicly











acknowledged. Acknowledgement is an affirmation that a person's pain is real and worthy of attention. It is
thus central to the restoration of the dignity of victims.


p THE RELATIONSHIP BETWEEN TRUTH AND RECONCILIATION
46 It was frequently suggested that the Commission's quest for more truth and less falsehood would result in
deepened divisions rather than in the promotion of national unity and reconciliation. This concern must be
taken seriously, although some of the mistaken assumptions underlying (much of) this criticism must be
noted.
47 There can be little doubt that gross violations of human rights and other similar abuses during the past few
decades left indelible scars on the collective South African consciousness. These scars often concealed
festering wounds that needed to be opened up to allow for the cleansing and eventual healing of the body
politic. This does not mean, however, that it was sufficient simply to open old wounds and then sit back and
wait for the light of exposure to do the cleansing. Nor could the Commission be expected to accomplish all
the healing that was required.These basic underlying principles were expressed in the submission of Dr
Leslie London, at the health sector hearing in Cape Town, 18 June 1997:


The [Health and Human Rights] Project operates with the premise that the health professions and society
cannot afford to ignore the past, and that the costs of this selective amnesia, which we see so much of with
regard to past human rights abuses, are enormous. It is very difficult to see how any trust within the health
sector and also between the health professionals and the broader community can be achieved until the truth is
disclosed.


We believe that only by fully acknowledging and understanding what took place in the professions under
apartheid is it possible to achieve reconciliation in the health sector. Any apologies that are made without this
understanding will fail to achieve meaningful progress in moving the health sector to a human rights culture.


And while the [Truth and Reconciliation Commission] has played an important role in stimulating this process,
the real challenge that faces the health sector is for health professions to accept human rights as a
fundamental responsibility. Real truth and reconciliation can only come from below, from within our institutions,
and should be seen as part of a larger project to rehabilitate the health sector and build a culture of human
rights within it.


48 Many people also saw reconciliation as an activity that could take place without tears: they felt threatened
by the anger of victims. It is, however, unrealistic to expect forgiveness too quickly, without providing
victims with the necessary space to air their grievances and give voice to previously denied feelings. "It
would not have been even remotely decent for a non-Jewish person to have suggested to Jews that they
ought to become reconciled to the Germans immediately after World War II", observed a Dutch visitor to the
Commission. Relationships can only be healed over time and once feelings of hurt and anger have been
acknowledged. The resistance and hostility of some victims, directed at times at the Commission itself,
required understanding and respect.
49 At the same time, many of those who had suffered gross violations of their human rights showed a
remarkable magnanimity and generosity of spirit, not only through their willingness to display their pain to










the world, but also in their willingness to forgive. Such forgiveness should never be taken for granted, nor
should it be confused with forgetting. The importance of respectful remembrance was clearly expressed by
Mr Haroon Timol, testifying about the death in detention of Mr Ahmed Timol, at the Johannesburg hearing,
30 April 1996:


As a family what we would like to have, and I am sure many, many South Africans would like to have, is that
their loved ones should never, ever be forgotten...in Ahmed's case a school in his name would be appropriate.
But at the end of the day I believe that South Africans in future generations should never, ever forget those
that were killed in the name of apartheid.


50 Many victims justifiably insisted that they were not prepared to forgive if this meant that they must 'close the
book on the past', 'let bygones be bygones' or 'forget about the past and focus on the future'. Forgiveness is
not about forgetting. It is about seeking to forego bitterness, renouncing resentment, moving past old hurt,
and becoming a survivor rather than a passive victim.
51 The Commission sought to uncover the truth about past abuses. This was part of "the struggle of memory
against forgetting" referred to by Milan Kundera.10 But it was, at the same time, part of the struggle to
overcome the temptation to remember in a partisan, selective way; to recognize that narrow memories of
past conflicts can too easily provide the basis for mobilisation towards further conflicts, as has been the case
in the former Yugoslavia and elsewhere. An inclusive remembering of painful truths about the past is crucial
to the creation of national unity and transcending the divisions of the past.
52 This means that one must guard against such simplistic platitudes as 'to forgive is to forget'. It is also crucial
not to fall into the error of equating forgiveness with reconciliation. The road to reconciliation requires more
than forgiveness and respectful remembrance. It is, in this respect, worth remembering the difficult history
of reconciliation between Afrikaners and white English-speaking South Africans after the devastating Anglo-
Boer/South African War (1899-1902). Despite coexistence and participation with English-speaking South
Africans in the political system that followed the war, it took many decades to rebuild relationships and
redistribute resources a process that was additionally complicated by a range of urban/rural, class, and
linguistic and other barriers. Reconciliation requires not only individual justice, but also social justice.



p AMNESTY, TRUTH AND JUSTICE
53 The postamble of the interim Constitution states:


In order to advance such reconciliation and reconstruction [of society], amnesty shall be granted in respect of
acts, omissions and offences with political objectives and committed in the course of the conflicts of the past.1
54 The implementation of this amnesty agreement proved to be very difficult indeed:


[The granting of amnesty] is a difficult, sensitive, perhaps even agonising, balancing act between the need for
justice to victims of past abuse and the need for reconciliation and rapid transition to a new future; between
encouragement to wrongdoers to help in the discovery of the truth and the need for reparations for the










victims of that truth; between a correction in the old and the creation of the new. It is an exercise of
immense difficulty interacting in a vast network of political, emotional, ethical and logistical considerations.12
a First, if justice is seen merely as retribution, it becomes difficult to make the appropriate connections
between amnesty and justice. While both the interim Constitution and the Commission expressed
strong opposition to acts of revenge, it is necessary, nevertheless, to acknowledge that the desire for
revenge is an understandable human response. Suppressed anger undermines reconciliation.
Nonetheless, the tendency to equate justice with retribution must be challenged and the concept of
restorative justice considered as an alternative. This means that amnesty in return for public and full
disclosure (as understood within the broader context of the Commission) suggests a restorative
understanding of justice, focusing on the healing of victims and perpetrators and on communal
restoration.
B Second, amnesty as an official act of pardon can all too easily be misinterpreted as ignoring
responsibility and accountability. As such, amnesty can be seen to be encouraging a culture of
impunity. Some victims felt that amnesty results in insufficient social repudiation and that, by refusing
to punish those responsible and allowing perpetrators to walk free, it constitutes a failure to respect
their suffering.
56 It is important, therefore, clearly to understand the various justifications for the concept of amnesty
implemented by the Commission, with its unique focus on individual accountability. Similarly, the
relationship between the Commission and the formal justice system merits attention:


The context of transition: accountable amnesty versus impunity
57 The negotiated agreement in South Africa averted the costly return to the politics of confrontation and mass
mobilisation. It made the historic bridge provided for by the interim Constitution possible. It did not, however,
allow for a choice between amnesty and justice in the sense of large-scale prosecutions and punishment.
Indeed, Nuremberg-style tribunals were simply not a viable political option, given the balance of military and
political forces that prevailed at the time.
58 The postamble of the interim Constitution thus placed an obligation on South Africa's first democratic
government to make provision for the granting of amnesty, while giving it some discretion as to the
circumstances in which amnesty could be granted. The choice was, essentially, between blanket amnesty
and qualified amnesty.
59 Through extensive negotiations, which included broad-based public debate, the notion of a blanket amnesty
for undisclosed deeds was rejected as an inadequate basis for laying the past to rest. A middle path was
required, something that lay between a Nuremberg option and total amnesia. The choice, ultimately, was for
amnesty with a considerable degree of accountability built into it.
60 Section 20 of the Act stipulated that amnesty could be granted on the following conditions:
a Applicants were required to apply for amnesty for each offence committed.
b Applications had to be made within the time frame laid down in the legislation.
c Perpetrators were required to make full disclosure of their crimes in order to qualify for amnesty.
d Amnesty hearings involving gross violations of human rights were to take place in public, save in
exceptional circumstances.
e Amnesty had to be granted on the basis of a set of objective criteria.










f Amnesty could not be automatic; it would not be granted for certain heinous crimes.
g The name of the persons to whom amnesty had been granted, together with information relating to the
crimes for which they were granted amnesty, would be published in the Government Gazette and in the
report of the Commission.
h The amnesty provisions in the Act required applicants to declare the nature of their offences -
effectively acknowledging their culpability. In cases where amnesty applications were not made or were
unsuccessful, the way was left open for conventional criminal trials, where the prosecuting authority
decided that there were sufficient grounds for prosecution.
61 Most people do not, of course, wish crimes merely to be condemned. For many people, justice means that
perpetrators must be punished in proportion to the gravity of their crimes. If one accepts, however, that
punishment is not a necessary prerequisite for the acknowledgement of accountability, it is possible to see
that qualified amnesty does contain certain of the essential elements required by justice. Thus, individual
perpetrators were identified and, where possible, the circumstances that gave rise to the gross violations of
human rights they had committed were explained.


62 Furthermore, while successful amnesty applicants could not be punished, the impact of public
acknowledgement should not be underestimated. Perpetrators were not able to take refuge in anonymity or
hide behind national amnesia. In the words of Anglican Bishop David Beetge at a post-hearing follow-up
workshop, in Reiger Park, 19 April 1997:


The truth always goes hand in hand with justice. We do not tell our stories only to release the dammed up tears
that have waited years to be shed. It is in order that truth should be uncovered and justice seen to be done.
Even though it is not the work of the [Truth and Reconciliation Commission] to pass judgement or sentence on
the oppressors, it has led many perpetrators of crimes to seek amnesty. That is good for them. The [Amnesty
Committee] may speak sternly and, in some cases, refuse amnesty. That rightly demonstrates that truth can be
tough. The refusal to grant amnesty is a sign that the [Truth and Reconciliation Commission] is not a body
setting out simply to show leniency, but, more especially, that it requires justice before there can be
reconciliation. Reconciliation is not taking the least line of resistance; reconciliation is profoundly costly.
63 The extension of the cut-off date for amnesty applications from 5 December 1993 (when the negotiation
process was completed) to 10 May 1994 (when President Mandela was officially inaugurated) was a
reminder of the transitional context in which this unique, accountable amnesty process needed to be
understood. The extension of the date was due largely to pressure by, on the one hand, the white right-wing
(the Afrikaner Weerstandsbeweging (AWB) and Afrikaner Volksfront) which opposed the elections by violent
means and, on the other, black groups such as the Pan Africanist Congress (PAC) and Azanian Peoples
Liberation Army (APLA), which had continued the 'armed struggle' during the negotiation process. It became
clear to the Commission in the course of its work that such an extension would enhance the prospects of
national unity and reconciliation, because it would allow these groupings to participate in the amnesty
process.


The quest for truth










64 The amnesty process was also a key to the achievement of another objective, namely eliciting as much
truth as possible about past atrocities. The primary sources of information were the perpetrators themselves
who, without the option of applying for amnesty, would probably not have told their side of the story.
65 For many victims, the granting of amnesty was a high price to pay for the public exposure of perpetrators. It
was made even more difficult by the fact that those who applied for amnesty did not always make full
disclosure; perpetrators recounted versions of events that were sometimes different. The inability to reach a
clear version of truth in respect of particular incidents led to confusion and anger on the part of victims'
families and members of the public.
66 Yet, as many commentators noted, trials would probably have contributed far less than did the amnesty
process towards revealing the truth about what had happened to many victims and their loved ones.
67 In helping reveal details of gross human rights violations and the systems, motives and perspectives that
made such violations possible, the amnesty process assisted the Commission in compiling as "complete a
picture as possible of the nature, causes and extent" of past gross violations of human rights. The
information acquired also helped the Commission in formulating recommendations aimed at the prevention
of future human rights violations. In this sense, the work of the Commission complemented the work of the
broader judicial system in the following ways.


Preventing future violations
68 Disclosures made during the amnesty process, together with information emerging at hearings, in victim
statements and during investigations, contributed significantly to the Commission's understanding of the
broad pattern of events during the thirty-four year mandate period. They also assisted the Commission in its
analysis of key perpetrator groupings and institutional responsibility, and in the making of findings on the
root causes of gross violations of human rights committed during the conflicts of the past. These insights
provided the basis on which recommendations could be made aimed both at helping prevent future human
rights violations and complementing the necessarily narrower focus of formal trials.
69 A further limitation of the formal justice system emerged in relation to the need to make recommendations
to help prevent future human rights abuse. A functioning and effective justice system is, of course, crucially
important in this regard reinforcing the rule of law, vindicating victims and so on. However, even a justice
system functioning at its optimum level cannot provide all the answers. Prosecution and punishment are
responses to abuses that have already taken place. While they may act as a deterrent, other initiatives are
required to prevent abuses taking place. The Commission's recommendations on issues such as human
rights training for the security forces and human rights education in schools and universities were crucial in
this regard. For example, the implementation of the Commission's recommendations on the reform of the
security forces may help to restore trust between the South African Police Services (SAPS) and the majority
of South Africans. Such trust is essential if the security forces are to act as guarantors of human rights for all
South Africans.
70 Thus, although the Commission did not offer retributive justice, placing the amnesty process within a
broader framework is likely to contribute to formal justice in the long term. Instead of trading justice for truth,
amnesty might, in the end, prove to have been a more profitable option than the stark choice between truth
and trials. In societies in transition at least, truth must be viewed as an important element in restoring the
rule of the law.











Constraints on the South African judicial system
71 Arguments against amnesty are based on the assumption that it is both preferable and possible to prosecute
perpetrators. The response to the former that it would be preferable to prosecute has already been
discussed. In a fragile, transitional context, there are strong arguments for the adoption of a truth
commission rather than Nuremberg-type trials. But, even if the South African transition had occurred without
any amnesty agreement, even if criminal prosecution had been politically feasible, the successful
prosecution of more than a fraction of those responsible for gross violations of human rights would have
been impossible in practice. The issue is not, therefore, a straight trade-off between amnesty and criminal or
civil trials. What is at stake, rather, is a choice between more or less full disclosure; the option of hearing as
many cases as possible against the possibility of a small number of trials revealing, at best, information only
directly relevant to specific charges.13
72 The South African criminal justice system is already under severe pressure. Police have very limited
capacity to investigate and arrest. Attorneys-general have limited capacity to prosecute. The courts and
judges have limited capacity to convict and correctional services are limited in their capacity to
accommodate prisoners. The prospects for successful prosecutions seem even gloomier when one
considers the complexity of attempting to prosecute political crimes. Political crimes are committed by
highly skilled operatives, trained in the art of concealing their crimes and destroying evidence. They are thus
notoriously difficult to prosecute and to prove guilty beyond reasonable doubt. In the words of Chief Justice
DP Mahomed:


Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective
demonstration and proof..Secrecy and authoritarianism have concealed the truth in little crevices of obscurity
in our history. Records are not easily accessible; witnesses are often unknown, dead, unavailable or unwilling.
All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions,
deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and
corroborative evidence which could survive the rigours of the law.14
73 Trials of this nature are extremely time-consuming and expensive and require large teams of skilled and
highly competent investigators. It took over eighteen months to secure a single conviction in the 'de Kock'
trial.15 A specialised investigative unit, consisting of over thirty detectives and six civilian analysts, spent
more than nine months investigating and preparing the indictment in the 'Malan' trial.16 The trial itself lasted
a further nine months. Furthermore, since the accused in many of these trials were former state employees,
the state was obliged to pay for the costs of their legal defence. In the Malan trial, these costs exceeded
R12 million; and in the de Kock trial, the taxpayer had to pay more than R5 million. These figures do not
include the costs of the teams of investigators and prosecutors, nor do they reflect the costs of supporting
large numbers of witnesses, some of them placed in expensive witness protection programmes. Despite this
massive expenditure of time and money, the former General Malan was found not guilty, although
numerous allegations continue to be made against him. The costly and time-consuming Goniwe inquest also
failed to answer the numerous questions concerning the death of the 'Cradock Four'. Judicial enquiries into


13
14
15
16










politically-sensitive matters rarely satisfy the need for truth and closure. As such, they should not necessarily
be seen as superior alternatives to the Commission.











Amnesty and social justice
74 One of the consequences of granting amnesty is that the civil liability of both the perpetrator and the
employer (often the state) is extinguished. While the wish to encourage individual perpetrators to tell the
truth does not, in itself, justify indemnifying the state against civil liability, state indemnification may assist in
meeting the fundamental objectives of reconciliation between the people of South Africa and the
reconstruction of society. Two arguments support this.
75 First, by indemnifying the state in this way, prolonged litigation is avoided. Such litigation is likely to lead to
a preoccupation with anguish and rancour about the iniquities of the past and may thus divert the energies
of the nation from the long-term objectives of national reconciliation and the reconstruction of society.17
Second, the achievement of reconciliation and the reconstruction of society demands that the limited
resources of the state be deployed in a way that brings relief and hope to as many South Africans as
possible. Faced with competing demands between the formidable claims of victims of gross human rights
violations and their families, and the desperate need to correct massive wrongs in the crucial areas of
housing, education and health care, the framers of the interim Constitution favoured the reconstruction of
society.
76 The immunity awarded to the state does not remove the burden of responsibility for state reparations. It
does, however, give the new, democratic government discretion when making difficult choices about the
distribution of scarce resources between the victims of gross human rights violations (who fall within the
mandate of the Commission) and those many victims who fall outside of the Commission's mandate. The
Minister of Justice has said:


We have a nation of victims, and if we are unable to provide complete justice on an individual basis and we
need to try and achieve maximum justice within the framework of reconciliation it is possible for us...to ensure
that there is historical and collective justice for the people of our country. If we achieve that, if we achieve
social justice and move in that direction, then those who today feel aggrieved that individual justice has not
been done will at least be able to say that our society has achieved what the victims fought for during their
lifetimes. And that therefore at that level, one will be able to say that justice has been done (emphases added).
18


77 The basis for this transition towards social justice lies in the replacement of unjust, minority rule with a
democratic state. The amnesty agreement and the way it was implemented were key factors in making the
transition possible. It therefore makes at least an indirect contribution to social justice. By extension, it also
contributes to the less visible, non-material dimensions of social justice. It will indeed, as Judge Mahomed
has said:


take many years of strong commitment, sensitivity and labour to 'reconstruct our society'...developing for the
benefit of the entire nation the latent human potential and resources of every person who has directly or
indirectly been burdened with the heritage of the shame and the pain of our racist past.19



17
18
19










78 Through the Committee on Reparation and Rehabilitation, however, the Commission was mandated to
focus on the immediate, visible need for subsistence of many victims (suffering, for example, from the loss
of a breadwinner). Although no amount of reparations could ever make up for the losses suffered by
individuals, families, and communities because of gross human rights violations, the nation has an
obligation at least to try to transform abject poverty into modest security.
79 Other fundamental human needs needed to be addressed under the banner of reparation and rehabilitation.
Victims and/or their families, dependants and friends needed to understand why gross violations of human
rights took place. They needed to be free from the legacy of fear that prevented their full participation in the
life of the community, stifled their creativity and undermined their dignity. Victims needed to know that, in
the future, they would be protected from similar gross violations of human rights.



p UBUNTU: PROMOTING RESTORATIVE JUSTICE
80 A principal task of the Commission was "restoring the human and civil dignity of victims". The work of the
Commission as a whole, together with the specific contributions of its three committees, underlined the need
to restore the dignity of all South Africans. In the process, the sons and daughters of South Africa would
begin to feel truly 'at home'.
81 Thus, the tensions and links between amnesty, truth and justice, and the relationship between the
Commission and the criminal justice system in South Africa were meant to help prepare the way for the
Commission's contribution to the restoration of civil and human dignity. This was particularly important in
view of the many ways in which the previous legal order, and the socio-political system within which it
operated, "traumatised the human spirit" and "trampled on the basic humanity of citizens".20 In the words of
Constitutional Court Judge O'Regan:


... Apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby
the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal
worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new
political order and is fundamental to the new Constitution .21
82 This was the background to the constitutional commitment to "a need for understanding but not for
vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation". It was a
commitment that called for a respect for human life and dignity and for a revival of ubuntu; a commitment
that included the strengthening of the restorative dimensions of justice. Restorative justice can be broadly
defined as a process which:


a seeks to redefine crime: it shifts the primary focus of crime from the breaking of laws or offences
against a faceless state to a perception of crime as violations against human beings, as injury or wrong
done to another person;
b is based on reparation: it aims at the healing and the restoration of all concerned of victims in the first
place, but also of offenders, their families and the larger community;











c encourages victims, offenders and the community to be directly involved in resolving conflict, with the
state and legal professionals acting as facilitators;
d supports a criminal justice system that aims at offender accountability, full participation of both the
victims and offenders and making good or putting right what is wrong.22
83 Restorative justice challenges South Africans to build on the humanitarian and caring ethos23 of the South
African Constitution and to emphasise the need for reparation rather than retaliation despite growing anger
and insecurity in the midst of high levels of crime in South Africa.
84 We are also required to look again at the restorative dimensions of various traditions in South Africa, such
as the Judaeo-Christian tradition and African traditional values. Neither is monolithic in its approach; both
contain strong sources of communal healing and restoration. As such, they are sources of inspiration to
most South Africans.
85 As far as traditional African values are concerned, the fundamental importance of ubuntu must be
highlighted. Ubuntu, generally translated as 'humaneness', expresses itself metaphorically in umuntu
ngumuntu ngabantu 'people are people through other people'. In the words of Constitutional Court Justice
Makgoro: "Its spirit emphasises respect for human dignity, marking a shift from confrontation to
conciliation."24 Constitutional Court Justice Langa has said:

During violent conflicts and times when violent crime is rife, distraught members of society decry the loss of
ubuntu. Thus, heinous crimes are the antithesis of ubuntu. Treatment that is cruel, inhuman or degrading is
bereft of ubuntu.24
86 He goes on to observe that:


We have all been affected, in some way or other, by the 'strife, conflicts, untold suffering and injustice' of the
recent past... But all this was violence on human beings by human beings. Life became cheap, almost
worthless.
87 It is against this background, vividly illustrated by the Commission process, that "a spontaneous call has
arisen among sections of the population for a return to ubuntu".
88 This call was supported by Ms Susan van der Merwe, whose husband disappeared in 1978 after allegedly
being abducted and killed by an Umkhonto weSizwe (MK) unit. At the Human Rights Violation hearing in
Klerksdorp, on 23 September 1996, she said:


The Tswanas have an idiom which I learned from my husband which goes 'a person is a person by other
people, a person is only a person with other people'. We do have this duty to each other. The survival of our
people in this country depends on our co-operation with each other. My plea to you is, help people throw their
weapons away...No person's life is a waste. Every person's life is too precious.


Restorative justice: victims
89 One of the unique features of the Act was that it provided guiding principles on how the Commission should
deal with victims. These principles constituted the essence of the Commission's commitment to restorative


23
24
24










justice.26 The Act required that the Commission help restore the human and civil dignity of victims "by
granting them an opportunity to relate their own accounts of the violations of which they are the victim".
Through the public unburdening of their grief which would have been impossible within the context of an
adversarial search for objective and corroborative evidence those who were violated received public
recognition that they had been wronged.
90 Many people who witnessed the accounts of victims were confronted, for the first time, with the human face
of unknown or silenced victims from the conflicts of the past. The public victim hearings vividly portrayed
the fact that not only were international or domestic laws broken, not only was there a disrespect of human
rights in the abstract, but the very dignity and 'personhood' of individual human beings were centrally
violated.
91 At the same time, it must be remembered that, without the amnesty process, many victims would never
have discovered what had happened to their loved ones. For many victims, therefore, the amnesty process
itself played a role in the reparation and rehabilitation process. Their greater understanding of events helped
restore dignity and dispel the lies they were told about 'criminals', 'terrorists' or 'informers'. This challenges
the popular perception that amnesty exists only for the sake of perpetrators.
92 The fact that the state has accepted responsibility for providing reparations to victims of gross human rights
violations provides an important counterbalance to the denial of the right of victims to lay civil charges
against perpetrators who were granted amnesty. At the same time, however, the limitations of both the
Commission's mandate to recommend and the state's capacity to provide reparation measures must be
recognized. The Commission itself only had the power to place before the State President and Parliament
its proposals for the provision of reparations. It could not implement reparations, nor could it take the final
decision as to the type of reparation measures to be implemented. This responsibility lies with government.
93 The plight of those who, through the legacy of apartheid, need assistance in the form of social spending (for
housing, education, health care and so on) must also be remembered. The provision of reparations to the
(relatively) few victims of gross human rights violations who appeared before the Commission cannot be
allowed to prejudice apartheid's many other victims. The need to provide reparations for the former cannot
be allowed to constitute so great a drain on the national fiscus that insufficient resources remain for
essential social upliftment and reconstruction programmes.
94 Beyond these considerations, it must also be acknowledged that many victims of gross human rights
violations would never have had the opportunity to seek redress through civil trials, given evidentiary
constraints, proscription of civil claims, lack of information about the identity of perpetrators and the costs
involved in pursuing claims. Overall, victims will have received far greater benefit from the Commission's
processes than they would otherwise have done, although those few who had valid civil claims will have
received less. In this sense, too, the Commission can be seen as having contributed to the promotion of
restorative justice.
95 Recommendations on reparations are also wider in scope or more holistic than those customarily awarded
as damages in successful civil claims. Such broad recommendations include the provision of symbolic
reparations to victims, such as the continuing public, official acknowledgement through monuments, living
memorials, days of remembrance and so on. In addition, as part of the Commission's general commitment
to reparations, some interim reparations were provided in the course of its work. For example, in cases
where (through the amnesty process) the bodies of activists killed and secretly buried by the security forces










were discovered, the Commission assisted families with official and dignified reburials. These kinds of
reparations emphasise the importance of placing individual reparations within a wider social and political
context.


Restorative justice: perpetrators
96 The Commission not only condemned acts of killing, torture, abduction and severe ill treatment as violations
of human rights. The concrete experiences of victims and the human impact of these violations were put
before the nation. At the same time, the Commission sought to identify those responsible for such violations
seeking political accountability as well as moral responsibility.
97 The Act required the Commission to "promote national unity and reconciliation in a spirit of understanding
which transcends the conflicts and divisions of the past" by establishing, amongst other things, "the motives
and perspectives of the persons responsible". This obviously forms part of the search for as "complete a
picture as possible". This need for understanding must, however, be placed within the context of an attempt
to promote restorative justice. Without seeing offender accountability as part of the quest for understanding,
the uncovering of motives and perspectives can easily be misunderstood as excusing their violations.
98 The potential of an individualised, accountable amnesty process as a contribution to the rehabilitation of
perpetrators and their reintegration into the new society should not be underestimated. Judge Mahomed has
stressed that amnesty also exposed perpetrators to "opportunities to obtain relief from the burden of guilt or
an anxiety they might have been living with for years". Without this opportunity, many might remain
"physically free but inhibited in their capacity to become active, full, and creative members of the new
order". Without this kind of amnesty:


both the victims and the culprits who walk on the 'historic bridge' described by the epilogue will hobble more
than walk to the future with heavy and dragged steps delaying and impeding a rapid and enthusiastic transition
to the new society at the end of the bridge.27
99 By concentrating only on individual, or on a limited number of prominent human rights violators, as was the
case in the Nuremberg and Tokyo war tribunals, many perpetrators and co-conspirators remained in
obscurity. The structures of society and its most formative institutions remained unchallenged. Recognising
the need for social and institutional reparations is an important part of restorative justice.


100 Restorative justice demands that the accountability of perpetrators be extended to making a contribution to
the restoration of the well-being of their victims. Although neither the interim Constitution nor the Act provide
for this, this important consideration was highlighted by the Commission. The fact that people are given their
freedom without taking responsibility for some form of restitution remains a major problem with the amnesty
process. Only if the emerging truth unleashes a social dynamic that includes redressing the suffering of
victims will it meet the ideal of restorative justice.



p RESPONSIBILITY AND RECONCILIATION
101 The emergence of a responsible society, committed to the affirmation of human rights (and, therefore, to
addressing the consequences of past violations), presupposes the acceptance of individual responsibility by










all those who supported the system of apartheid (or simply allowed it to continue to function) and those who
did not oppose violations during the political conflicts of the past.
102 It is, therefore, not only the task of the members of the Security Forces to examine themselves and their
deeds. It is for every member of the society they served to do so. South Africa's weapons, ammunition,
uniforms, vehicles, radios and other equipment were all developed and provided by industry. South Africa's
finances and banking were controlled by institutions that went so far as to provide covert credit cards for
covert operations. South African chaplains prayed for 'victory' and South African schools and universities
educated for war. The media carried propaganda and the enfranchised white community voted the former
government back into power, time after time, with ever-increasing majorities.28
103 This moral responsibility goes deeper than legal and political accountability. Such individual and shared
moral responsibility cannot be adequately addressed by legislation or this Commission. What is required is
that individuals and the community as a whole must recognize that the abdication of responsibility, the
unquestioning obeying of commands (simply doing one's job), submitting to the fear of punishment, moral
indifference, the closing of one's eyes to events or permitting oneself to be intoxicated, seduced or bought
with personal advantages are all essential parts of the many-layered spiral of responsibility which makes
large-scale, systematic human rights violations possible in modern states. Only this realisation can create
the possibility for the emergence of something new in South African society. In short, what is required is a
moral and spiritual renaissance capable of transforming moral indifference, denial, paralysing guilt and
unacknowledged shame into personal and social responsibility.
104 At the practical level, the vexed issue of apartheid as a crime against humanity impinges perhaps more
directly on moral than on legal culpability. A simple focus on the criminal culpability of isolated individuals
responsible for apartheid can ignore the broader responsibilities presently under discussion. It is not enough
merely to identify a few high-profile 'criminals' as those responsible for the atrocities of the past and thus
give insufficient attention to a deeper analysis of the underlying nature, cause and extent of apartheid. The
essential nature of a crime against humanity, suggests Professor Denys Schreiner, does not lie in the detail
or nature of the actual deeds involved in a particular system that is judged to be a crime.29 Rather, it relates
to the political structures which result in sections of the society being seen as less than fully human. It
condemns the identified group to suffering and violence as a matter of birth, over which the individual
concerned has no influence, control or escape. It excludes a section of the population from the rights
afforded to others. It denies that same group participation in the selection of government and in
government itself. It facilitates the promotion of extra-legal actions by the dominant group further to
suppress those judged to be the 'enemy' whether Jews, slaves or blacks. Finally, it promotes moral decline
within the dominant group and the loss of a sense of what is just and fair. Briefly stated, it involves
systematic racial discrimination which, by definition, constitutes the basis of apartheid.
105 A pertinent question is the extent to which individual South Africans can be regarded as responsible for the
premises and presuppositions which gave rise to apartheid. The kindest answer consists of a reminder that
history suggests that most citizens are inclined to lemming-like behaviour- thoughtless submission rather
than thoughtful accountability. This is a tendency that needs to be addressed in ensuring that the future is
different from the past and serves as a reminder that the most penetrating enquiry into the past involves










more than a witch-hunt. It involves, rather, laying a foundation against which the present and all future
governments will be judged.
106 The need for political accountability by the leaders and voters of the nation, and the varying degrees of
moral responsibility that should be adopted by all South Africans, have (both by design and default) not
been given sufficient emphasis by the Commission. These issues must be addressed if South Africans are
to seize the future with dedication and commitment.
107 One of the reasons for this failure of emphasis is the fact that the greater part of the Commission's focus
has been on what could be regarded as the exceptional on gross violations of human rights rather than the
more mundane but nonetheless traumatising dimensions of apartheid life that affected every single black
South African. The killers of Vlakplaas have horrified the nation. The stories of a chain of shallow graves
across the country, containing the remains of abducted activists who were brutalised, tortured and ultimately
killed, have left many South Africans deeply shocked. The media has understandably focused on these
events labelling Eugene de Kock, the Vlakplaas commander, 'Prime Evil'. The vast majority of victims who
either made statements to the Commission or who appeared at public hearings of the Human Rights
Violations Committee to tell their stories of suffering simply did not receive the same level of public
attention. Indeed, victims of those violations of human rights that were not included in the Commission's
mandate received no individual public attention at all.
108 This focus on the outrageous has drawn the nation's attention away from the more commonplace violations.
The result is that ordinary South Africans do not see themselves as represented by those the Commission
defines as perpetrators, failing to recognize the 'little perpetrator' in each one of us. To understand the
source of evil is not to condone it. It is only by recognizing the potential for evil in each one of us that we
can take full responsibility for ensuring that such evil will never be repeated.
109 A second reason for the insufficient focus on moral responsibility beyond the narrow, direct responsibility of
specific perpetrators of gross human rights violations was the widespread failure fully to grasp the
significance of individual victims' testimony before the Commission. Each story of suffering provided a
penetrating window into the past, thereby contributing to a more complete picture of gross violations of
human rights in South Africa. The nation must use these stories to sharpen its moral conscience and to
ensure that, never again, will it gradually atrophy to the point where personal responsibility is abdicated. The
challenge is to develop public awareness, to keep the memories alive, not only of gross violations of human
rights, but of everyday life under apartheid. Only in this way can South Africans ensure that they do not
again become complicit in the banality that leads, step by step, to the kinds of outrageous deeds that have
left many 'good' South Africans feeling that they can never be expected, even indirectly, to accept
responsibility for them. In the words of President Nelson Mandela:


All of us, as a nation that has newly found itself, share in the shame at the capacity of human beings of any
race or language group to be inhumane to other human beings. We should all share in the commitment to a
South Africa in which that will never happen again.3
110 Thus, a key pillar of the bridge between a deeply divided past of "untold suffering and injustice" and a future
"founded upon the recognition of human rights, democracy, peaceful co-existence, and development
opportunities for all" is a wide acceptance of direct and indirect, individual and shared responsibility for past
human rights violations.










111 In this process of bridge building, those who have benefited and are still benefiting from a range of unearned
privileges under apartheid have a crucial role to play. Although this was not part of the Commission's
mandate, it was recognized as a vital dimension of national reconciliation. This means that a great deal of
attention must be given to an altered sense of responsibility; namely the duty or obligation of those who
have benefited so much (through racially privileged education, unfair access to land, business opportunities
and so on) to contribute to the present and future reconstruction of our society.31











Volume ONE Chapter SIX


Methodology and Process



3 INTRODUCTION
1 Section 4 of the Promotion of National Unity and Reconciliation Act (the Act) sets out the functions that the
Truth and Reconciliation Commission (the Commission) is required to perform. It reads as follows:

Functions of Commission

The functions of the Commission shall be to achieve its objectives, and to that end the Commission shall-
a facilitate, and where necessary initiate or co-ordinate, inquiries into-

(i) gross violations of human rights, including violations which were part of a systematic pattern of
abuse;

(ii) the nature, causes and extent of gross violations of human rights, including the antecedents,
circumstances, factors, context, motives and perspectives which led to such violations;

(iii) the identity of all persons, authorities, institutions and organizations involved in such violations;

(iv) the question whether such violations were the result of deliberate planning on the part of the State
or a former state or any of their organs, or of any political organisation, liberation movement or other
group or individual; and

(v) accountability, political or otherwise, for any such violation;
b facilitate, and initiate or co-ordinate, the gathering of information and the receiving of evidence from any
person, including persons claiming to be victims of such violations or the representatives of such victims,
which establish the identity of victims of such violations, their fate or present whereabouts and the nature
and extent of the harm suffered by such victims;
c facilitate and promote the granting of amnesty in respect of acts associated with political objectives, by
receiving from persons desiring to make a full disclosure of all the relevant facts relating to such acts,
applications for the granting of amnesty in respect of such acts, and transmitting such applications to the
Committee on Amnesty for its decision, and by publishing decisions granting amnesty, in the Gazette;
d determine what articles have been destroyed by any person in order to conceal violations of human rights or
acts associated with a political objective;
e prepare a comprehensive report which sets out its activities and findings, based on factual and objective
information and evidence collected or received by it or placed at its disposal;
f make recommendations to the President with regard to (i) the policy which should be followed or measures
which should be taken with regard to the granting of reparation to victims or the taking of other measures










aimed at rehabilitating and restoring the human and civil dignity of victims; (ii) measures which should be
taken to grant urgent interim reparation to victims;
g make recommendations to the Minister with regard to the development of a limited witness protection
programme for the purposes of this Act;
h make recommendations to the President with regard to the creation of institutions conducive to a stable and
fair society and the institutional, administrative and legislative measures which should be taken or
introduced in order to prevent the commission of violations of human rights.
2 Even a cursory examination of this section of the Act reveals that the task facing the Commission was
both daunting and formidable. Not only was it required to perform the extensive activities listed in section
4, but it had to do so in an extremely difficult context.
3 The Commission was required to consider cases that had occurred over a thirty-four year period,
stretching from 1 March 1960 to 10 May 1994. In so doing, it found itself responsible for the examination
of over 50 000 cases of gross violations of human rights. As described in the Mandate chapter, these
violations were narrowly defined in the Act. This means that numerous other violations of human rights -
all heinous and, in their own way, 'gross', were not considered. It is in this context that this chapter will
examine the ways in which the Commission chose to complete its work.


3 THE START UP
4 One of the greatest challenges the Commission faced was that the two-year period within which it was
required to complete its work began on the day that the commissioners were formally appointed. The Act
made no provision for a start-up period during which offices could be located and established, staff sought
and appointed, and a modus operandi carefully developed. There was little time for reflection. The result
was that the methodology of the Commission evolved and changed quite considerably throughout its term of
operation.
5 In addition, although the Act listed a set of functions that the Commission was required to fulfil, it provided
very little guidance on how these functions were to be performed. While this gave the Commission the
freedom and flexibility to develop appropriate systems and staffing structures, it also posed a tremendous
challenge. It was difficult to design, in a short period, systems that adequately addressed the extensive, at
times competing, priorities of the Commission. This meant that many of the Commission's systems had to
be adapted as priorities changed and new needs and challenges emerged.



p DECENTRALISATION
6 One of the first decisions the Commission was required to take was whether it should operate from one
central location or on a decentralised basis. Because of the sheer size of South Africa (1,2 million square
kilometres) and the uneven and far-flung distribution of its population, the Commission decided to set up a
head office (in Cape Town), four regional offices (in Cape Town, Johannesburg, Durban and East London)
and a subregional office (in Bloemfontein). These regional operations were designed to help reduce logistic
difficulties associated with holding hearings, taking statements and conducting investigations over an
extremely large area. They also allowed the Commission to respond more effectively to the significant
differences and characteristics of various regions. It needs to be recognized, however, that the regional










offices themselves had jurisdiction over what were, in their own right, very large geographical areas with
significant intra-regional differences.
7 One of the major challenges, therefore, was to find ways to ensure that people everywhere could access the
Commission with relative ease. Despite the fact that the Commission made a conscious effort to
communicate and interact proactively with communities throughout South Africa, the sheer size of the
country made this an extremely difficult endeavour.


p COMMITTEE MEMBERS
8 The Act allowed for the appointment of additional committee members, other than commissioners, to serve
on the Human Rights Violations and Reparation and Rehabilitation Committees. The Commission decided
to appoint such members, not only to assist in discharging the functions and responsibilities of these
committees, but also to ensure that their membership was representative in terms of race, gender and
geographical origin. The Commission felt that it was important that the membership of the committees
reflected the life experiences of all South Africans black and white, men and women, urban and rural.



D THE PROTOCOLS
9 At the outset, the Commission decided that the primary means by which it would establish the identity of
victims was by inviting them to make statements. In order to ensure that as much relevant information as
possible was gathered from these statements, a protocol was developed which attempted to structure and
systematise the evidence given by each victim. The protocol was also designed to promote uniformity and
consistency in the way statements were taken from victims. The Commission appointed specially trained
statement takers to ensure that information provided by victims was captured as accurately as possible.
10 Every effort was made to ensure that statement takers could speak the major languages of the region in
which they worked to allow victims to tell their stories in their mother tongues. Statement takers were also
trained to identify signs of emotional distress presented by those from whom they took statements. This
allowed them to offer preliminary assistance to victims who found the process of making statements difficult
or traumatic, and to refer those in need of professional assistance to appropriate mental heath care facilities
where these existed and were accessible.
11 As the early statements were received and analysed, it became clear that the initial protocol, developed
before the Commission began its work, was inadequate. This may be attributed to two factors. First, the
structuring of information gathered from long and complex narrative statements imposed some technical
difficulties: narrative statements might contain information on gross violations of human rights which
occurred on one or more occasions, at one or more places, to one or more victims and carried out by one or
more perpetrators. As different kinds of evidence of varying degrees of detail and complexity were gathered,
it became clear that there was a need to adjust and fine-tune the structure of the protocol in order to ensure
that all necessary information was captured in a uniform manner.
12 Second, as the Human Rights Violations Committee and the Reparation and Rehabilitation Committee
confronted various policy issues, it became clear that new and additional information would be required. For
example, the Human Rights Violations Committee's policy on the corroboration of victim statements set out










a range of 'corroborative pointers'1 designed to assist in the process of finding whether or not a deponent
was, in fact, a victim of a gross violation of human rights. The first draft of the protocol was not structured in
a way that prompted victims to provide as many as these pointers as possible. As these new requirements
were identified, the protocol evolved, with the result that the final version of the protocol, on which the
majority of victim statements were captured, was the fifth version.
13 This demonstrates the point made at the beginning of the chapter: it is difficult to embark on work and
simultaneously develop systems to manage it. Yet, despite the number of different protocols used to take
statements, and some slight variations in the kind of information captured, the Commission was satisfied
that neither the overall integrity of the information gathered nor the quality of the findings was affected.



p THE INFORMATION MANAGEMENT SYSTEM
14 The Commission decided to establish an information management system to ensure that all information
gathered from victims was captured, processed and corroborated according to a uniform methodology. This
was viewed as essential in ensuring that the findings of the Human Rights Violations Committee were as
rigorous and defensible as possible. The information management system prescribed that each statement
received should be processed according to certain specified and consecutive steps resulting in what was
described as the Commission's 'information flow'. Seven major steps were involved: statement taking,
registration, data processing, data capture, corroboration, regional 'pre-findings' and national findings. Each
is discussed in detail below.


Statement taking
15 The Commission employed trained statement takers and volunteers (called 'designated statement takers')
from non-governmental organizations (NGOs), community-based organizations (CBOs), religious and civic
organizations to take statements from deponents. The statement taking process served two different
functions. First, it helped to ensure that information on gross violations of human rights was gathered from
victims of these violations. Second, it served a therapeutic purpose in that it provided victims with an
opportunity to speak about their suffering or that of their families to people who listened sympathetically and
acknowledged their pain. The methodological difficulties of attempting to serve both functions in the
statement taking process will be discussed in greater detail.
16 The Commission took statements in three different ways.
a It took statements at its offices. In other words, trained statement takers, employed by the Commission,
were available to take statements from victims who travelled to the Commission's offices in their
region.
b It took statements in communities. In these instances, statement takers attended hearings held by the
Commission in various communities throughout South Africa. Because these hearings generated
interest and awareness, they usually had the result of prompting people to come forward and make
statements. In other instances, the Commission generated awareness about its work, either by holding
public meetings in various communities, or by implementing a communications strategy in specific
areas. Thereafter statement takers made themselves available to take statements in these areas.




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