The Department of Justice and Constitutional Development (DoJCD) reported on its implementation of the findings of the Truth and Reconciliation Commission (TRC) and TRC draft Regulations. It identified major challenges in the Regulations as: limitation of rehabilitation projects to 18 communities, undisclosed criteria for identification of benefitting communities, insufficient consultation of communities, and infrastructural projects, which should not be financed from the President’s Fund. Other challenges are concern over limited resources and request for the DoJCD to rethink community rehabilitation pending its promulgation of the TRC Regulations.
Members expressed displeasure over the long delay taken drafting the TRC Regulations and implementing the TRC Report. They expressed concern that there are still political prisoners languishing in South African prisons and queried the lack of report for expenditures in the President’s Fund. A member condemned government’s ambivalence in implementing the TRC Report, especially its selection of communities identified for rehabilitation. Members asked the DoJCD to provide a written report on the following issues: names and locations of political prisoners, progress made in tracing persons who disappeared during the apartheid struggle, creation of a Business Reparations Fund, list of communities identified for rehabilitation, balance of money in the President’s Fund, and status of Regulations relating to housing and education.
The Department promised to submit a report in writing on the matters raised by Members.
TRC Regulations and community rehabilitation: DoJCD briefing
Ms Kalay Pillay, Deputy Director General: Legislative Development, DoJCD, briefed the Committee on its progress on the Truth and Reconciliation Commission (TRC) Regulations and community rehabilitation.
In implementing the recommendations on community rehabilitation the Department set out to:
• Identify communities that qualify for rehabilitation from the TRC Report;
• Engage the Independent Development Trust (IDT) to collaborate on implementation;
• Develop regulations for the implementation of the community rehabilitation recommendations.
The IDT was engaged in 2012 to research all the events described to the TRC so as to confirm the full list of 128 “communities” to be rehabilitated. 128 incidences that affected communities were identified in the TRC Reports, which the Department translated into 128 communities requiring rehabilitation. 18 communities were initially identified for a phased in approach to implementing community rehabilitation.
Draft Regulations were published in the Gazette on 29 November 2013. All the non-governmental organisations, representing victims, were invited to comment on the draft Regulations.
In terms of draft regulation 2, the project will be rolled out to all 128 identified communities, initially prioritizing two communities per province. An amount of R30 million was allocated from the Fund for each of the 18 identified communities for community rehabilitation projects.
The key concerns about the draft Regulations, raised during the consultation process, were:
• The limitation of the rehabilitation projects to the 18 identified communities whereas many more communities suffered.
• The identification of the communities on the basis of undisclosed criteria without proper consultation.
• The preference for projects of an infrastructural nature and which fall within the constitutional mandate of certain departments and which should not be financed by the Fund.
• It was suggested that the Department should rethink its plans to go ahead with community engagements pending the promulgation of the Regulations as any activity pursued in terms of the proposed Regulations has no force of law.
Following this consultation process, the Department had to consider how all of the 128 affected TRC mentioned communities can benefit from community rehabilitation projects. One of the options was to obtain financial assistance from other departments. During 2015 the Department engaged other departments to develop an integrated strategy towards community rehabilitation programmes and to ensure prioritisation of the 128 communities in the mandates of departments in terms of the National Development Plan (NDP). The Department also approached the National Treasury. However, the issue of a lack of funding to fund projects for all the affected communities remained unresolved.
The lack of resources (R500 million from the President’s Fund earmarked for community rehabilitation) is a key determinant for the implementation of the project. Cabinet was approached to obtain its approval for the Department to consider options on how to extend community rehabilitation to all 128 communities and in doing so to solicit contributions from relevant stakeholders to secure adequate resources.
Cabinet has endorsed the Department’s recommendation to solicit contributions from relevant stakeholders (public and private) to secure adequate resources to bring about holistic interventions in all 128 communities, which may differ in value but to a maximum value of R30 million.
On 11 May 2016 the JCPS cabinet committee discussed implementation of the TRC recommendations and options for the Community Rehabilitation Programme. It approved that the Minister collaborates with the Inter-Ministerial (IMC) on Public Employment Programmes (PEP) to facilitate maximum impact for the Community Rehabilitation Projects.
The Departments contractual obligation with the IDT has since ended. The Department met with the IDT in July 2017 with a view to receiving a close-out report for the work they have completed. The report is awaited. Draft regulations are under consideration with to view to bring them in line with Cabinet’s decision in bringing about holistic rehabilitation to all 128 communities.
Ms Pillay identified the DoJCD’s key challenges and concerns as:
• Limitation of rehabilitation projects to 18 communities whereas many more communities suffered under apartheid.
• Undisclosed criteria for identification of communities and lack of proper consultation
• Preference for projects of an infrastructural nature which fall under the constitutional mandate of certain departments and should not be financed from the President’s Fund, which was established via section 42 of the Promotion of National Unity and Reconciliation Act 34 of 1995.
• Call for the DoJCD to rethink its plans on community engagements pending the promulgation of the draft Regulations to avoid illegality.
• Concern over limited resources – there is a fear that the R500 million in the President’s Fund, which is earmarked for rehabilitation, may be finished in the first phase of implementation.
In line with these challenges, DoJCD had approached Cabinet for approval on options for extending community rehabilitation to all 128 communities in need of assistance, and to solicit contributions from relevant stakeholders. Cabinet approved the DoJCD’s recommendation to seek contributions from stakeholders to a maximum of R30 million.
The DoJCD contractual obligation with the Independent Development Trust (IDT) has ended and the DoJCD is awaiting the IDT ‘close-out’ report. The Minister of Justice has directed the establishment of a new project team to ‘fast track’ community rehabilitation projects.
Ms C Pilane-Majake (ANC), Acting Chairperson, remarked that the Regulations for the TRC and implementation of the TRC Report have taken an unduly long time.
Ms G Breytenbach (DA) agreed, adding that many beneficiaries of the TRC Report may not even be alive. She expressed displeasure that 18 of 128 communities identified for rehabilitation have not yet benefitted. She queried the status of the TRC draft Regulations, use of the President’s Fund, and the DoJCD’s unrealised targets in 2014 and 2015 due to unavailability of stakeholders. She asked for the identity of these stakeholders. She asked for clarity on unrealised targets due to ‘lack of understanding by community members.’
Ms M Mothapo (ANC) echoed the concern about undue delay in adopting Regulations for the TRC. She requested the list of 128 communities identified for rehabilitation. She noted that 318 persons were awarded assistance, whereas millions were victimised by apartheid. She queried the number of untraceable claimants, claiming that the ward councillors and traditional leaders of these claimants should be able to help in tracing them. She requested an update on:
- Progress in tracing 477 identified persons who disappeared during the apartheid struggle.
- Creation of a Business Reparations Fund.
- Regulations dealing with housing, basic and higher education assistance.
- The balance of monies in the President’s Fund
Ms Pillay responded that the DoJCD presentation covers only community rehabilitation, which is the first stage of the TRC recommendation on reparations. The DoJCD could provide a detailed report on progress made on individual reparations, housing, and higher education assistance. The DoJCD recently amended Higher Education regulations to enable disabled persons to receive computers and other learning aids. Figures can be obtained from the CFO of the President’s Fund, which the DoJCD will include in a written report to the Committee.
Ms Pillay acknowledged that the rehabilitation of communities has taken an unduly long time. In response to this delay, the DoJCD has set up a new team. She also agreed that some victims may no longer be available to receive compensation. However, their children are benefitting from the basic and higher education assistance, which comes from the President’s Fund. On the needs assessment in the annual reports, the DoJCD is currently engaging with the IDT to obtain a full report on work done and identified communities. The DoJCD will compile a list of the 128 communities and supply it with its written report.
Mr Thapelo Mokushane, DoJCD Deputy Director: TRC Unit, stated that the 477 cases of disappeared persons are being handled by the Missing Persons Task Team. Since each case is unique, there is no formula for handling them. Many missing persons were buried in secret graves. Identifying graves and the remains of the missing persons takes an average of six months per case. Over 100 exhumations and reburials have been conducted. Of these, 27 judicially executed political activists have been exhumed, and 14 remains have been handed over to their families. For example, 8 UDF political activists were exhumed on 31 May 2017. The process of exhumation and identification is emotionally draining for exhuming parties and victims’ families. For untraceable persons, detailed door-to-door searches were conducted. Initially, about 800 persons were untraceable in 2013, before they were whittled down to 477. Several factors such as foreign citizenship, death, and change of address affect the ability to track down missing persons.
The Chairperson asked if DoJCD personnel working on missing persons receive counselling, to which Mr Mokushane responded that DoJCD staff do self-counselling. Ms Pillay added that there are institutional mechanisms to assist staff working on exhumations to cope with trauma.
Mr Thwadi Komane, DoJCD Director: Special Projects, echoed the Minister’s view that implementation of the TRC Reports must be fast-tracked.
Mr N Matiase (EFF) asked DoJCD if it has a preview of the report it is waiting to receive from the IDT. He noted that government has adopted a very restricted approach to claims under the TRC. He asked for a reconciliation of the 18 and 128 communities to be compensated. He asked why expenditures from the President’s Fund are not reported to the Committee. Why is there ambivalence in government’s approach to implementing the TRC Report? South Africa has adopted reconciliation, when it could have used the reparations approach of Germany. Currently, this approach is penalising taxpayers who are not responsible for the crimes in the TRC Report. Why cannot Britain or corporations be held responsible for redressing apartheid crimes?
The Chairperson acknowledged Mr Matiase’s concerns. She observed that resolutions were adopted at the United Nations Conference on Racism, one of which is a demand for an apology from Britain for the sufferings of South African people under apartheid.
Ms Pillay replied that the DoJCD is awaiting the IDT report. There are however interim reports from the IDT. The 18 communities being rehabilitated are part of 128 communities identified as in need of rehabilitation. The R500 million in the President’s Fund also includes monies from corporate bodies. Presently, the DoJCD is working on a regulation for housing.
Ms Mothapo sought clarity on the stakeholders involved in the needs analysis.
Ms Pillay promised to submit a written report on the President’s Fund, as well as the status of implementation of the TRC Report.
Mr Matiase noted that 23 years after apartheid, there are still political prisoners languishing in South African prisons. He requested the Department provide the names and locations of these prisoners.
The Chairperson remarked that tracing missing persons and conducting exhumations are part of South Africa’s healing process. She mandated the DoJCD to define a ‘political prisoner’ and provide the Committee with a list of political prisoners and their incarceration locations.
Mr Komane noted that the Department of Correctional Services is more suited than the DoJCD to provide the list of political prisoners.
Mr Mokushane responded that the TRC Unit was not tasked with the issue of political prisoners.
Ms Pillay explained that the DoJCD mandate only extended to special pardons for political prisoners. She explained that some political prisoners who qualified for parole had applied for a special pardon. She promised to submit a report in writing to the Committee.
The Chairperson thanked the delegation and adjourned the meeting.