Public Submissions: consideration; Sub-Committee Report: finalization

Reparation Committee

23 June 2003
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Meeting report

AD HOC COMMITTEE ON REPARATIONS

AD HOC COMMITTEE ON REPARATIONS SUB-COMMITTEE
23 June 2003
CONSIDERATION OF PUBLIC SUBMISSIONS & FINALISATION OF SUB-COMMITTEE REPORT

Chairpersons: Mr A Mlangeni (ANC) [National Assembly]; Ms N Kondlo (ANC) [NCOP]

Documents handed out
Human Rights Watch Submission
Economists Allied for Arms Reduction - Submission 1
Economists Allied for Arms Reduction - Submission 2 (Appendix 1)
Centre for the Study of Violence and Reconciliation Submission (Appendix 2)
NGO Working Group on Reparations Submission (Appendix 3)
Draft Report by Sub-committee on Reparations (Appendix 4)
Democratic Alliance Amendments to Draft Report (Appendix 5)

SUMMARY
The meeting was held by a sub-committee of this Ad Hoc Committee to consider the public submissions received as a result of the request for submissions made on Legal Resource Centre was granted an extension to the end of the business day to present its submission, because it argued that the period for comment was not long enough. The submissions from Economists Allied for Arms Reduction, the Human Rights Watch and the NGO Working Group on Reparations were not considered because Members decided they fell outside the Committee's mandate. The Democratic Alliance agreed with the point made by the Centre for the Study of Violence and Reconciliation submission that the once-off R30 000 allocation to 22 000 TRC victims is insufficient, and that the specific circumstances of each case have to be taken into account. The ANC argued that the social grants system can and is being used to provide for TRC victims as well.

Before deciding on the formulation of the Sub-committee's final report, Members engaged in a long discussion on both the Draft Report and the Democratic Alliance's amendments to that draft.

MINUTES
The Chair stated that this Committee was not able to consider the Draft recommendations in the meeting held on Tuesday 17 June 2003, because it is awaiting the outstanding public submissions on the reparations. The Committee has requested an extension of its work programme to 25/26 June 2003.

Correspondence from Legal Resource Centre
The Chair informed Members that he had received a letter from the Legal Resource Centre (LRC) on Thursday 19 June in which it requests that the deadline for public submissions be extended. The Chair stated that he had informed them that the deadline would be extended to today, but this Committee has not yet received the LRC submission.

The Co-chair stated that her concern is that this extension has only been granted to those who have already interacted with this Committee. She stated that she is not sure whether all other interested parties who have not corresponded with this Committee would have notice of this extension

Ms M Smuts (DA) [National Assembly] proposed that the LRC be granted until the close of business today to hand in its submission. She stated that the invitation for public comment was not broadly advertised. Perhaps the Chair should conduct a radio interview on this matter, as this should increase awareness. The LRC contended that a legitimate expectation had been created that the victims would be addressed, because the TRC had made its proposals, it had corresponded with the victims as to the status of their cases and thus a solid process was put in place to address their claims. Thus this legitimate expectation argument could be used.

There are people that have been waiting for four years for government to finalise its proposals on the final reparations to be offered. It is the DA's view that government should have made the maximum apportionment to victims.

Adv M Masutha (ANC) [National Assembly] stated that he disagrees with the view expressed earlier by the Co-chair. It is incumbent upon those members of the public who do not like the time period stipulated to come forward and express their concerns before the period lapses. Failure to do so would really be to their own detriment. Yet for the sake of formality and so as to err on the side of caution, this Committee might need to send a letter to the LRC to confirm the telephonic discussion on the arrangements reached.

Adv Masutha stated that he disagrees with the view expressed in the LRC opinion that the decisions taken in this Committee are subject to the laws of administrative justice. Parliament is not part of the country's administrative machinery, and thus the rules governing administrative justice do not apply to it. Adv Masutha stated that he is thus not concerned that the legal consequences alleged by the LRC would ever arise.

The Chair noted that the Committee agreed to Adv Masutha's proposal that a confirmatory letter be sent. This letter has to be sent immediately.

Submission by Economists Allied for Arms Reduction
Ms Smuts suggested that the matters covered in the two proposals submitted by Economists Allied for Arms Reduction (ECAAR) (documents attached) fall outside the mandate of the TRC, and is therefore not up for discussion in this Committee.

The Chair noted that Members agreed with Ms Smuts, and both submissions would be discarded.

Centre for the Study of Violence and Reconciliation
Ms Smuts stated that the second paragraph in the Centre for the Study of Violence and Reconciliation (CSVR) submission (Appendix 2) is the basis of the DA's position, and is also the very basis of the TRC Act. The DA's argument is that the R30 000 once-off payment is not sufficient. The specific circumstances of each case have to be looked at, such as those who are disabled and who thus have special needs. The R30 000 is not sufficient to cater for their needs. The second paragraph supports this individualistic approach.

She stated that if an amount greater than the R30 000 cannot be considered for the full 22 000 identified, it should at least be considered for the 2 975 cases in which both the victims and the perpetrators have been identified. Thus it is essentially only these 2 975 that have the right to sue for the damages that they have been deprived from pursuing. She stated that it should be recommended to the President that these 2 975 cases be looked at further. The remaining 19 025 cases can then be allocated the once-off across-the-board compensation of R30 000.

Ms Smuts noted that the fourth point under the heading "Individual reparation funds" in the submission suggested that a total of R21 700 per annum over a period of six years. This has to be considered further. All the points mentioned under the heading "Building an informed and responsive reparations program" can also be looked at, and it is proposed that the Presidential programmes have to be assessed to gauge the actual impact. These programmes have to be monitored. Ms Smuts stated that she does not agree with the CSVR research contained in the first point under the "Individual reparation grants" heading, and the persons in the President's Fund have to be called to account to this Committee. The points on legal assistance and access to services under the "Administration of grants and services" heading can be considered as well as.

Adv Masutha stated that years ago when he was still the legal advisor to the DDG in the Department of Welfare and Population Development he had made the point to the Sub-committee on reparations that social assistance is governed by law. Thus the criteria used to determine whether an individual has qualified for those benefits is laid down in the law itself. There are many people who have been disabled by gross human rights violations, and they have applied for disability grants in terms of this law from the now Department of Social Development. For anyone to allege that the social development system has not responded is not accurate, and more facts are needed to paint a clearer picture of the current state of affairs.

Furthermore, if it is being alleged that the social grants system has failed the TRC victims, then it also has also failed may others as well. Adv Masutha stated that he does not know what else has to be done. A clause has to be inserted as to the specific kind of assistance that is needed from the President's Fund. It has a direct mandate to pay a total of R30 000, and if certain individuals have not been earmarked for these funds then they can always approach the courts.

The Co-Chair noted that the Draft Report of the Sub-committee (Appendix 4) to a large extent covers the points raised by the CSVR. There is thus no need to go over them again. She stated that she agreed with the point made under the heading "The continued marginilisation of social groups" that more places, streets and landmarks bearing the names of women involved in the struggle have to be established. This has to be included in the Draft Report under the reparation dealing with symbolism.

Rev M Chabaku (ANC) [Free State] stated that she agrees with the Co-Chair, but suggested that women would perhaps be included in the 22 000 identified by the TRC. She stated that this Committee should be focusing on the contents of the TRC Report.

Adv Masutha stated that if the argument is that the victims have not been included in the 22 000 identified, then perhaps the recommendations need to be revisited. It is Parliament's responsibility to provide representation to such people. The fact of the matter is that this point has not been made by any of the submissions. Thus the question now really is whether the quantum of R30 000 is reasonable. Adv Masutha stated that he has not come across any scientific basis proposing that the amount government has put forward is insufficient. Thus no argument has alleged that the quantum of R30 000 is unreasonable.

The fact of the matter is that government has to take more factors into account when deciding on the R30 000 than the TRC would have to when recommending that amount to government. Furthermore the R30 000 is a matter of Presidential policy, and is not a matter of law. Parliament cannot therefore alter this policy. On what basis would it be able to do so?

The Chair noted that the CSVR agrees with the President's statement that the R30 000 or any other amount can never take the place of the lost ones. Government is sensitive to this in its approach, and ensures that this grant is not seen as "blood money". The President is saying that the country is truly sorry about the lives lost, but the R30 000 is a token of thanks. Of course it does not come close, but it is all the government can afford at this stage. The Chair stated that he is not sure whether Parliament has the authority to change the quantum.

Mr C Herandien (NNP) {National Assembly] stated that the problem here is that only the R30 000 is being focused on. No-one has studied exactly what the other three reparations will cost government. This will be come at no lean cost, because it will have to be provided for generations to come. It is in these areas that the big payments will be made. Furthermore, over the next six years Ministers would have to report back in the budget speeches on how they implemented these three areas. This will allow Parliament to have an idea of the full cost involved.

Ms L Mabe (ANC) [National Assembly] noted that the last point under the "Individual reparation grants" heading calls for the process to be opened to victims other than those that have been identified by the TRC. This view cannot be supported.

The Chair agreed, because this falls outside the mandate of this Committee.

NGO Working Group on Reparations Submission
Mr Herandien stated that this submission (Appendix 3) is interested more in the actual mechanics involved in the process. The questions raised are relevant, but it is not the intention that this Committee spell out this detail.

Ms Smuts stated that this submission also argues that the R30 000 across-the-board allocation is not enough, and is a great disappointment.

Medical benefits and other forms of social assistance
Ms Smuts stated that the difficulty here is that government departments do not help with the roll-out of these services. Earlier Adv Masutha said these people can access the grants via the law, and that it is not especially provided to victims. He is thus conflating those that have been identified as victims by the TRC and those South Africans receiving social grants. He is thus saying that government is not offering the TRC victims anything at all. Would it not be possible to at least require the various Portfolio Committees to include it as part of their oversight function that they ask the government departments every year to report back on the extent to which these services have been provided to the TRC victims?

The Chair stated that this is a good idea and has to be done.

Mr Herandien stated that, over and above this, a mechanism has to be put in place to ensure that the proper beneficiary receives these expeditiously.

Adv Masutha stated that he wants to clarify his earlier statements. He said that he is not saying that there is no room for government departments or Ministers to come up with programmes or services that are not available generally to target specific needs, like the TRC victims. All he is saying is that the allegation that nothing is being done by government departments for victims is untrue. Of course government departments will have problems in rolling this out, but a direct effect will be felt if these programmes bring relief in the various spheres. Those victims affected by police brutality, for example, would be entitled to the same benefits as those qualifying for the disability grant. The latter did receive benefits even though they have not been identified as victims by the TRC. A similar programme is the land restitution process. Adv Masutha stated that he is essentially saying that persons do not have to be branded TRC victims to receive benefits. In fact, people would be put at a disadvantage if another body were created to deal with these matters. It would also create a further administrative hurdle to the proper rolling-out of the benefits.

Rev Chabaku stated that all Members seem to have reached consensus on the issues, and this matter now has to be finalised.

The Chair stated that the DA's disagreement with the R30 000 allocation has to be noted in the Committee Report.

Human Rights Watch Submission
Ms Smuts stated that this submission (document attached) does raise relevant concerns but, like the ECAAR submissions earlier, it falls outside the Presidents recommendations. This submission should also not be considered.

The Co-Chair noted that Members agree.

Draft Report by Sub-committee on Reparations
Members engaged in a lengthy discussion on the formulation of the Sub-committee's report to be presented to the Ad Hoc Committee. The Committee worked from the Draft Report (Appendix 4), as well as the amendments proposed by the Democratic Alliance (Appendix 5).

The meeting was adjourned.

Appendix 1 : ECAAR (Submission 2)

E C A A R -- SA
ECONOMISTS ALLIED FOR ARMS REDUCTION

Patrons
Rhoda Kadalie
Human Rights Activist
Njongonkulu Ndungane

Archbishop of Cape Town e-mail: ecaar@icon.co.za
website: ecaar.org.za
Chair

Terry Crawford-Browne June 18, 2003

Trustees ECAAR--USA Ad Hoc Committee on Reparations
*Oscar Arias Parliament, Cape Town
*
Kenneth J. Arrow Attention: Ms Ntombe Mbuqe, Committee Secretary
William J. Baumol
Barbara Bergmann
John Kenneth Galbraith
Robert Heilbroner Dear Members of Parliament
Walter Isard
*Lawrence R. Klein
Robert S. McNamara Invitation for Public Submissions on Reparations
*
Franco Modigliani
*
Douglass C. North
Robert Reich I refer to the notice inviting public submissions
Robert J. Schwartz regarding reparations, and hereby request your *Amartya Sen consideration of Section 224 of the Constitution regarding the
South African Reserve Bank, which reads:
*Robert M. Solow
*Joseph Stiglitz (1) The primary object of the South African Reserve Bank is to protect the value of the currency in the interest of
*
James Tobin balanced and sustainable economic growth in the Republic.

* Denotes Nobel Laureate
(2) The South African Reserve Bank, in pursuit of its
primary object, must perform its functions independently and without fear, favour or prejudice, but there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters.
Affiliate Chairs

Yoginder Alagh, India
J. Paul Dunne, United Kingdom The Reserve Bank was established in 1921 but, unlike
Jaques Fontanel, France other central banks all over the world, it is privately
James K. Galbraith, United States owned instead of being owned by the State. Some 630
Akira Hattori, Japan shareholders drawn from the mining and finance
Kanta Marwah, Canada sectors thus have undue influence over this key institution
Stanislav Menshikov, Russia in our economy.
Alex Mintz, Israel
Aedil Suarex, Chile
Piet Terhal, Belgium/Netherlands
David Throsby, Australia

This private ownership inevitably violates the constitutional requirement that the Reserve Bank must perform its functions without favour. During the Truth and Reconciliation Commission's business hearings in November 1997, the Bank's representative conceded that rational financial policies had, as a matter of general principle, been subordinated to political imperatives of supporting the apartheid system.

Yet, it is increasingly evident that the Reserve Bank continues to subordinate the welfare of the overwhelming majority of South Africans to the special interest groups that benefit from policies favouring both a depreciating currency and high interest rates. South Africa has a peculiar and exceptional proclivity to reverse internationally accepted economic norms.

For instance, in most countries the poor live in the inner cities and the rich live in the suburbs. But in South Africa the poor live far from work and, consequently, spend a disproportionately high percentage of their income and time on commuting.

Similarly, economically successful countries presuppose that capital is relatively cheap and labour is relatively expensive so that development is sustained by constant technological innovation. The reverse is true in South Africa. We have "cheap" labour and prohibitively expensive capital.

Reflecting its colonialist mindset, the mining sector has since the 1930s lobbied consistently for a weak and depreciating currency. Thus, we sell our exports "on price" instead of upgrading our technology. The consequences are a stagnant economy and that, well over a century after establishment of the mining sector, about 65 percent of our population remains impoverished.

Some 95% of gold and diamond production is exported, raw. More than 130 years after the discovery of diamonds, South Africa still has virtually no jewellery industry. Yet one million Indians are employed in the diamond cutting industry in India. Why aren't those jobs in South Africa? Similarly, the value-added and job creation opportunities for gold are in Italy rather than South Africa.

The present central bank rate in the United States is 1.25% whilst in Europe it is 2.5%. But in South Africa -- further illustrating the colonialist mindset -- the rate until a few days ago has been 13.5%. Our economy and volatile currency have become akin to a casino, with hot-money flows chasing high interest rates. High interest rates imply high risk, and destroy small businesses that are the core of any prosperous economy. Consequences include rising unemployment, and the shantytowns around our cities that mock South Africa's transition from apartheid.

The Banking Council conceded during the Truth and Reconciliation Commission's business hearings that South African banks had failed dismally during the apartheid era to meet the contractual purpose for their existence, namely the garnering of the common wealth for the benefit of society. Banks are chartered as quasi-public institutions. They were never intended to be licences to their shareholders "to print money."
The Banking Council pledged six years ago to remedy the appalling history of South African banks, but their lack of social commitment is even more blatant now. Housing is an emotive issue in all countries, but most especially in South Africa where seven million people live in shacks.

Yet the Banking Council now argues that 75% of South Africans cannot afford to own their homes. This has been based upon an outrageous assumption that 17% is an acceptable mortgage rate. It is usurious and extortionate, and intended to entrench the status quo between rich and poor. Moreover, rental stock is equally unattractive to prospective landlords at such interest rates.

Cut the mortgage rate to 8%, and house-ownership becomes a possibility for households earning R4 000 per month for whom a R60 000 house amounts to only one and a quarter year's income. This compares extremely favourably with international norms of four to six years' income.

The banks plead that the Reserve Bank sets interest rates. But who owns the Reserve Bank which continues - per the apartheid era - to subordinate rational financial practices to the benefit of the financial elite who are the beneficiaries of twin evils of high interest rates and currency destruction?

The Reserve Bank's discredited policies are ostensibly intended to reduce our inflation rates, yet it is repeatedly demonstrated that South Africa's cost-push inflation is primarily driven by imported prices. The exchange rate is by far the most important price indicator in any economy. Everything else, including inflation targeting and interest rates, falls into place once the currency is properly managed.

This is recognised in the constitutional provision in Section 224 (1) that "the primary object of the South African Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic." Why is this provision not being adhered to and that, instead, depreciation of the currency is pursued as a means of export promotion?

Most illogical and inexplicable of all, is the Reserve Bank's authority to South Africa's flagship corporations to transfer their domicile overseas. The extraordinary reason given was that this would improve South Africa's access to international capital markets. In practice, this blunder signalled to the world that South Africans have lost faith in their country, and dramatically increased capital outflows by way of dividend payments.

The World Bank estimates that at least 40% of Africa's capital has been transferred to Europe and North America, where it boosts not Africa's standard of living but that of already affluent countries. The looting of Africa's wealth is not limited to kleptomaniacs such as Abacha, Dos Santos, Mobutu or Mugabe, but also includes their accomplices in Frankfurt, London, New York, Paris, Zurich and Johanneburg.

The connection between capital flight and the collapse of the rand can be drawn by the depreciation of the rand from US$1.40 per R1 in 1970 to R13.86 per US$1 in December 2001, before the current recovery on dollar weakness to R7.80 per US$1. Given a long history of currency depreciation, a projection of the rand/dollar exchange rate suggests about R30 per dollar by 2010 unless remedial action is taken, and the Reserve Bank's policies are reversed.

The rich can usually protect themselves, even profit, from currency destruction. The poor cannot. Food prices are invariably the first to rise, and poor people typically spend 40% of their income on food. They also fall victim to "loan sharks." For how long will the poor remain patient before social unrest imperils the democracy that is represented by our constitution? The United Nations Development Programme notes that Africa must focus on reversing capital flight if it is to have any hope of achieving the UN target of halfing poverty by 2015.

South Africa's overseas capital is likely to exceed the World Bank estimate of 40% for the African continent. The writer estimates that these assets amount to about R1 trillion equivalent, and that they are held primarily by a limited number of mining-finance and related financial institutions - in short, the Reserve Bank's shareholders.

Repatriation of these assets for development of South Africa would completely transform this country's socio-economic circumstances. Repatriation would also provide ample foreign exchange reserves to underpin the rand and forestall future speculative attacks against the currency. Most pertinently, it would enable a dramatic reduction in interest rates, thus enabling economic growth toward the eradication of poverty.

Such measures are not unprecedented. The principle is now agreed that funds looted by Marcos, Abacha or Saddam Hussein should be returned to their countries. Britain, during World War Two, required its companies to sell their foreign investments so that the proceeds could be directed to the war effort. Post-apartheid South Africa faces an equally desperate crisis, namely the crisis of poverty. Such reparations, properly managed, would transform South Africa's economic circumstances, and the lives of the overwhelming majority of the population who remain victims of the apartheid era.

Ironically, the still applicable Exchange Control Act, 1961 offers the instrument to enforce repatriation of those assets. The ostensible reason for exchange controls was that South African capital should be used for South African development. In practice, exchange controls became a corrupt vehicle for politically-favoured organisations to transfer their capital out of South Africa.

Although late, the transfer of domicile can still be reversed - if necessary by litigation in Europe and the United States. The exchange control department at the Reserve Bank should be able to confirm immediately the extent of South African foreign assets held by the following dominant corporate groups:

Anglo-American Corporation/De Beers Remgro/Richmont
Gencor/Billiton SA Breweries
Liberty Life SANLAM
Old Mutual

Yours sincerely

Terry Crawford-Browne

Appendix 2 : Centre for the Study of Violence and Reconciliation Submission

Centre for the Study of Violence and Reconciliation
Submission to Parliamentary Joint Ad-Hoc Committee on Reparations
19 June 2003

CSVR is an independent NGO that was established in 1989 and has been actively investing in the South African transformation ever since. We worked closely - and sometimes critically - with the TRC and with the Department of Justice in the period leading to the establishment of the TRC. CSVR has been active in building and supporting victim's organisations throughout this period and has committed itself to servicing victims of both criminal and political violence. We have done considerable policy work and research on reparations, victim compensation and victim support, in an attempt to service government, the TRC and victims organisations.The Truth and Reconciliation Commission's historic legacy was built on a compromise, which demanded that victims of the past once again sacrifice for the nation's future. Amnesty abrogated the rights of victims to pursue criminal and civil claims, denying their right to justice. In part, this denial was admissible because of the parameters of the individual amnesty agreement and the promised provision of a comprehensive reparations program (as confirmed by the AZAPO judgment). This program has been long overdue, leaving survivors with the impression that the TRC has to date, been a primarily perpetrator-friendly process.

As Parliament engages with its duty to make recommendations to the President on reparations, it is important that the voices and needs of the survivors be heard, and that the policies adopted address these needs. Indeed, the legislation establishing the TRC specifically mandated Parliament to oversee the implementation of recommendations and to ensure that the State lives up to the spirit and intention of the TRC Act. Unfortunately, the process adopted by the Ad Hoc Committee on Reparations has not reflected this obligation - the request for submissions has been poorly publicised, and those informed of the request were given in essence four working days to forward submissions. This after Government has consistently refused for the past four years to submit a policy on reparations for national debate. By failing to truly involve victims, Parliament has embarked on a process that is neither participatory nor inclusive, and risks being viewed as lacking in legitimacy.

In addition to the need for victims to be heard whilst designing policy, there is a further need for victims to be involved in informing programs of which they are the intended beneficiaries. The President in his speech to Parliament at the handing over of the Final Report noted that programs have been initiated in various departments to improve the quality of life of survivors of violence, as well as to target these individuals for access to services. It is important that the programs alluded to be assessed for their actual impact on individuals and violence impacted communities, and that all future initiatives integrate both participatory mechanisms as well as monitoring.

The TRC Final Report noted that without reparations, there is little hope for either reconciliation or healing. Recent debate on the issue of reparations has largely focused on the proposed individual payment of R30,000 to approximately 20,000 survivors named by the TRC. However, a comprehensive program of reparations must go beyond this individual payment. In order to have a maximum effect, the program adopted must integrate the various types of reparations recommended by the Commission - symbolic, individual and community. As such, CSVR has highlighted from its extensive research during the life of the TRC the following key recommendations.

Building an Informed and Responsive Reparations Program
-
Over the past four years, numerous calls have been made from victim's organisations and civil society broadly, for a proposed reparations policy to be put forward for national consideration and debate. To date, these calls for consultation have been ignored. Whilst we welcome the initiative of this Committee to invite submissions, the limited time and information provided has ensured that the consultation taking place is little more than 'going through the motions'. If Parliament is truly committed to hearing the voices of its intended beneficiaries, the deadlines for this Committee will be extended; funding will be made available to victim's support groups and concerned NGOs to engage in dialogue with Government on a suitable reparations policy; and ideally, a process of national consultation on this policy will be initiated.
- Such a process of truly transparent consultation and grass-roots participation should not be used as an excuse for delaying the granting of reparations. Instead, resources must be invested by the Government in order to carry out this exercise promptly and efficiently.
- Research should be conducted on comparative reparations schemes in other countries to create an informed and holistic program.
- Research should also be conducted to assess the specific needs of individual survivors. It is likely that the 'one grant for all' scheme is inadequate to address the needs of victims who require intensive medical treatment, have been left disabled, or face crippling economic consequences in other ways.

Individual Reparation Grants
- President Mbeki noted in his speech to Parliament that a reparations policy must strike a balance between individual payments and broader development services. He further argued that no amount of money can take the place of lost loved ones, and that Government must be sensitive in its approach to ensure that the grant is not seen as 'blood money'. We agree wholeheartedly with these valid arguments, however feel that this balance has not been affected by the proposed reparations scheme. A balanced approach would entail finding a middle road, which would include an adequate cash payout as well as improved access to needed services. The TRC put forward an inadequate and poorly thought through individual grants scheme. Government has merely reduced the figure and compounded the inadequacies. We recommend that research be conducted on victims' needs and how these needs can best be met through a mix of both individual as well as community-based programs.
- Proposed community development schemes intended to benefit victims should be spelled out in detail. Thus far government has conflated its broader development initiatives for the population at large as being some how part of a reparations program.
- The individual payment should not be minimised with the justification that broader social development initiatives will achieve similar effect. In the same way as pensions for former liberation fighters were for a specific constituency with specific needs, so too are individual reparations payments. Research suggests that if reparations are to meet their goal of having a psychologically restorative impact, they need to be individualised. Improving access to services at a community level is important; however this must be complimented with, and cannot take the place, of individual payments.
- With regards to the individual payment, the proposed amount is wholly inadequate. At a minimum, the original TRC recommendation of R21,700 per annum over 6 years should be adopted. This would bring South Africa in line with similar reparations schemes in other transitioning countries, and would more adequately satisfy both our constitutional obligations, as well as our obligations under international law. Relative to Government's other budgetary commitments, this commitment is embarrassingly small, amounting to only 0.02% of the 2003 Budget.
- The identification of individuals for these payments must be reassessed, and the list should be opened to those who did not have an opportunity to make a statement to the TRC. Many survivors were excluded from the process because of a lack of information, fears for their safety, concerns about retraumatisation and other legitimate obstacles. Organisations representing survivors have taken the initiative to document some of these cases and lobby for their inclusion amongst the list of victims. These databases could be used as a starting point for revising the Commission's current list.

Disappearance Cases
- It has been reported that the 500+ cases of 'disappearances' left unresolved by the Commission will not form part of the 20,000 victims eligible for individual payments. This is an insult to these families already living with the loss of their loved ones, the legal strains caused by the ambiguities of a disappearance, and now the possibility of being sidelined from assistance by the state. Not only should these families be included for individual reparations, resources must be made available to continue with truth-seeking and investigations in these cases and legal assistance must be provided in order to assist families in acquiring death certificates - as perhaps the most important part of their reparations process.

Wealth Tax
- The recommendation for a once-off wealth tax should be reviewed. Such a tax would not only free up much needed resources to address the legacy of inequality from the apartheid past, but would offer a symbolic gesture of acknowledgement from the beneficiary community. As such, it would go far in contributing to national reconciliation. It is also our view that left to their own devices, the businesses and individuals that have benefited have proved themselves extremely resistant to voluntary contributions, often rationalising corporate social investment as the sort of developmental investment that ameliorates their obligations to acknowledge their historical roles and responsibilities.

Administration of Grants and Services
-
The distribution of these payments must be properly administrated and plans for distribution must take into account issues of access and control for women recipients. This would ensure that cultural or legal inequalities do not prohibit women from benefiting from their rights.
- Preferential educational bursaries should be made available to victims and their families.
- Ongoing psychological counselling should be provided to assist survivors in coming to terms with the past.
- Ongoing medical assistance to victims who are still suffering from the effects of their victimisation.
- Ongoing legal assistance to victims who need help in accessing welfare grants, assistance with estates, and civil claims against perpetrators who did not apply for amnesty.
- Access to services must be appropriately coordinated. Experiences with the UIR payments wherein proper referral and administrative infrastructures were not in place, left victims frustrated and angry.
- There should be a central point where victims and survivors can find out about their reparations payments and get information about accessing other services.
- Information on the reparations program must be widely disseminated to ensure it reaches targeted beneficiaries. To this end, the involvement of local government would be an effective means of ensuring wide-spread knowledge of the services provided.

Monitoring of Program
- There was no mention in the President's speech of a Victims Secretariat to oversee and monitor the implementation of the TRC recommendations. It is noted that the Department of Justice will play such a role, however it is not the function of that Department to coordinate social service programs. As reparations form an integral element of the reconciliation initiative, their implementation should be a priority national competency, and as such should operate out of the Presidency.
- Monitoring should also take the form of an annual reporting during the budget vote by Ministers whose departments have been tasked with specific recommendations in the Report. Ministers would report on what they did to further the needs of victims during that year. As recommended, this would occur for a minimum period of six years after its implementation.

Southern African Reparations
- We welcome the President's comments in his speech that recognised and acknowledged the untold suffering endured by our neighbouring states in the course of the struggle. All too often these contributions, and the resulting consequences, have been ignored, fuelling a perception amongst South Africans that we as a country owe nothing to the region. This denial of the past contributes to the rise of xenophobia and must be addressed. We welcome the President's commitment to speed up the implementation of 'programmes of integration, reconstruction and development' for the region as a whole, and recommend that projects of memorialisation be pursued in partnership with neighbouring states, and that a symbolic apology be given by our President to the countries in the region, acknowledging the range of ways in which the Apartheid government has caused harm.

The TRC as a Form of Symbolic Reparation
- A popular version of the TRC's work should be commissioned and widely distributed. This would ensure that the history the Commission recorded becomes part of the national conscience, signifying a lasting and meaningful acknowledgement of victims and their sacrifices.

The Continued Marginalisation of Social Groups
-
The TRC made a wide range of recommendations pertaining to youth, ex-combatants and other groups that paid a high price for South Africa's freedom and continue to be marginalised today. Unfortunately, recommendations on the compounded burdens suffered by women in the past were largely absent. As such, it is important that Government step into this void and ensure that the contributions of women are recognised in all symbolic reparations projects adopted. To this end, we recommend that research be funded to examine the impact of the struggle on women - for example, how many have been left single mothers because of it, and how has this impacted on their quality of life? Symbolic reparations should equally focus on the role of women in the struggle, beyond the role that was shown through the TRC hearings, i.e., that of mothers and wives or that of women telling the stories of the human rights violations of others. There must equally be an acknowledgement of the direct involvement of women in the struggle; and the renaming of towns, streets, and landmarks to commemorate personalities of the struggle should include women. This would serve as both a public acknowledgement as well as a form of public education of the role of women in making South African history. To date, the renaming of public spaces has largely commemorated men, rendering women's contributions invisible.

Conclusion
- Lastly, in the President's speech it was noted "that the law provides that the national legislature may also make recommendations to the Executive on other matters arising out of the TRC process, as it may deem fit." We are interested to know what the process would be for addressing these other matters. The goal of reparations is to provide some form of redress for the past and contribute to the restoration of dignity of victims. This cannot occur in a vacuum. As such, any decisions concerning truth-seeking, future prosecutions or indemnities, the archives of the TRC, and numerous other unresolved matters, will have a direct impact on victims and the process for deciding on these matters must be both inclusive and transparent. We sincerely hope that the process to date is not indicative of the way in which Government hopes to deal with the unfinished business of the TRC. The success and sustainability of any national reconciliation achieved to date rests on these issues being openly and inclusively resolved.

For more information please contact
Nahla Valji
Graeme Simpson
Carnita Ernest

Appendix 3 : NGO Working Group on Reparations Submission

SUBMISSION FOR PARLIAMENTARY AD HOC COMMITTEE ON REPARATIONS

We are a committee constituted by NGO's in Cape Town under the chairmanship of Father Michael Lapsley. We were formed to campaign for the payment of reparations to approximately 22 000 victims identified in the Truth and Reconciliation Commission (TRC) process.

The TRC founding Act provided that victims would lose their right to take criminal or civil action against perpetrators who applied for and received amnesty.

Victims would relate their stories and be awarded reparations. Amnesty for perpetrators, in exchange for full disclosure, could justifiably be granted in light of the provision for reparations. This was also the judgment of the Constitutional Court in the AZAPO and others case.

In November 1998 the TRC made its proposals for Final Reparations including individual grants to be paid over six years. Relatives of victims and survivors have waited for four and a half years to hear the government's response. That the government accepts its responsibility in this regard is heartening. However, not surprisingly, the government's announced intention to pay less than a third of what had been recommended has been met with choruses of dissatisfaction and disappointment. The victims have waited four and a half years, while perpetrators have received almost immediate amnesty or pardon.

It is our view that without comprehensive reparations, along the lines recommended in the TRC Report, the Commission will continue to be regarded as a "perpetrator friendly exercise" This will be a moral tragedy for victims, the government and all South Africans, as growing disillusionment impacts negatively on the nation and the credibility of government for years to come.

If the government had agreed in 1998 to pay individual reparations (i.e. a total of R120 000 to each victim over six years) promptly, as recommended by the TRC, it would be in a much stronger moral position now to deal with the contentious problem of further amnesty and presidential pardons, as well as to appeal to major corporations and victim groups to eschew litigation and embrace negotiation.

We ask the Committee to recommend strongly to government that perpetrators who have received amnesty be required to contribute towards a reparation fund. Not only would such contribution go some way to ameliorating the sense of injustice felt by victims, it would also help restore the dignity of perpetrators in their attempt to rejoin the moral community.

The government's proposal to award a once-off payment of R30 000 to each of the victims has been a great disappointment to them. The latter have known since the TRC's report became public in 1998 that their recommendation was, in addition to other forms of reparation, the payment of individual grants of R21 700 p.a. (based on average household income) for six years to about 22 000 victims. This is minuscule in the face of the funds spent on granting amnesty and the cost of civil claims victims have forfeited in the name of furthering reconciliation. "How tragic it would be if the 22 000 people whose stories confronted us all with the painful truth of our past were to become embittered through our collective lack of generosity" (Lapsley, 2003).

We agree that all black South Africans suffered grievously under apartheid and that people did not fight for monetary gain. This is why broad-based communal and symbolic reparations are appropriate. We submit, however, that important as these reparations are, they are insufficient.

We urge parliament to amend the proposals and extend the payments to relatives of victims and survivors over six years, in line with the TRC's recommendations. In the light of the recent announcement of the collection of R10 billion more taxes than expected, can we afford not to take this route?

President Mbeki has said with regard to specific cases of individual victims identified by the TRC, that government will put in place and will intensify programmes pertaining to medical benefits, educational assistance and provision of housing, and so on. It is essential to be very specific about such provision, to avoid victims having to deal with the vagaries of bureaucracy.

The Ad Hoc Committee needs to address a whole range of practical ways to implement the present recommendation. Here are some of the questions which spring to mind :-

(a) Is government proposing to set up a permanent structure to deal with the people and problems related to the victims and their families, both in the short and in the long term?

(b) How will identified victims (22 000) be paid? What provision will be made to ensure that destitute, often elderly, sometimes rural people in remote parts of the country, who are unlikely to have access to banks or a bank account, will safely receive the proposed lump sum of R30 000 ?

(c) How will those with medical/psychiatric problems be identified? How will ongoing assistance be authorised?

(d) What assistance will be given to make practical reality of promised educational assistance for "young" people who lost bread-winners in the struggle against apartheid?

(e) What of those whose homes were destroyed? Are they likely to be compensated?

In short, what arrangements will be made to consult the individual victim/survivor so that his/her needs will be appropriately filled? Because many survivors will have life long special needs, we urge government to set up a special permanent structure for this purpose within the presidency, as recommended by the TRC.

We support President Mbeki's desire to work with all sectors of society in nation building. However it is difficult not to come to the conclusion that the business community was more successful in lobbying the government than the sector of organisations representing survivors of human rights violations. The singling out of big business is not a question of punishment but rather of insisting on accountability by those who made exorbitant profit aided and abetted by the apartheid regime. There is no evidence so far that corporations who benefited from the past will contribute substantially to the process of reparation without sustained pressure.

In this regard, we are concerned about the distance between the general public and the lives of the survivors/victims. Government's contribution seems to be limited to making decisions about financial and community building reparations. There are many unattended issues, for example in encouraging
reconciliation. There is the unresolved issue of victims who did not come before the Truth and Reconciliation Commission, but who probably have valid claims for reparations. The institution of a Basic Income Grant (BIG), presented as part of communal reparations, would have real impact both on poverty
and on nation building.

There is a great need for ongoing attention, both by government and civil society, to the needs of apartheid's victims, and for such work to be both centralised and decentralised to towns around the country, so that not only could applicants be advised and referred for official help, but also to record
the facts of oppression behind the many stories that wait to be added to the national archive. In this regard the involvement of universities and religious bodies would be invaluable. We recommend that government create and publish a map showing the places where victims/survivors of gross human
rights abuse live and their names. Such a map would not only memorialise those whose suffering resulted in the new South Africa, it would also enable people wishing to help them to make contact.

We raise the question of whether some of the work could be done in those "small spaces in communities" suggested by Methodist Bishop M. Dandala in his address to the SACC Conference on Racism (see summary in "New South African Outlook", Spring 2000). The spaces Bishop Dandala has in mind would be for welcoming people of any religious creeds, essentially for spiritual healing, and also for recording the stories of involvement in, and details of the deaths of people in the struggle against apartheid.

The prime objective of the TRC was to address the legacy of the past by promoting national unity and reconciliation. It was only able to initiate what must be a long process. We see our NGO role as trying to contribute positively to that goal.

We trust our submission will assist the Ad Hoc Committee in dealing with their important task with insight and a sense of urgency.

If possible, we would like to send our representative to address the Committee on the basis of our submission, at an appropriate stage.

for: NGO WORKING GROUP ON REPARATIONS
pp Michael Lapsley, Chairman
Betty Davenport, Convenor
19 June 2003
Contact details: per Dot Cleminshaw

Appendix 4 : Draft Committee Report

DRAFT REPORT ON RECOMMENDATIONS BY SUB-COMMITTEE ON REPARATIONS

INTRODUCTION
The Sub-committee met on 11 and 12 June 2003 to consider the identified four recommendations. Having deliberated on the matters the committee supported the recommendations. The recommendations are: (i) Symbols and Monuments; (ii) Rehabilitation of Communities; (iii) Medical Benefits and other forms of Social assistance and (iv) Final Reparations.

1. CONTEXT
The Committee rejects the assertion that the TRC Act was aimed exclusively at the granting of reparation to individuals only and not in granting redress to communities and the broader society for harm suffered as a result of gross human rights violations of the past.

The Committee, having considered the four recommendations made to Parliament by the President, is of the view that these recommendations be grouped into two main areas, namely:

- Recommendations that seek to redress injustices of the past in a more holistic manner by focusing on gross human rights violations inflicted upon whole communities and the broader society, on the one hand; and
- Recommendations that seek to redress gross human rights violations suffered by individuals by granting them some degree of relief.

2. RECOMMENDATIONS

2.1 Symbols and Monuments
The Committee supports the President's recommendation calling for systematic programmes to project the symbolism of struggle and the ideal of freedom through academic and informal records of history, remaking of cultural and art forms, erecting symbols and monuments that exalt the freedom struggle, including new geographic and place names.

The Committee notes the sterling work that has already commenced at various levels of government in this regard. This includes work-in-progress towards the establishment of Freedom Park, the Garden of Peace and the renaming of streets and towns in various parts of the country.

The Committee, having deliberated on the matter, agrees that the focus here is on the struggle that led to the current democratic dispensation ushered by the new constitutional order I n 1994

2.2 Rehabilitation of Communities
The Committee supports the President's commitment to the continued payment of special emphasis on the rehabilitation of communities that were subjected to intense acts of violence and destruction. The Committee notes that work that has already begun in this area and endorsees the focus on a partnership approach between communities and government in pursuit of this objective.

The Committee, having deliberated extensively on the matter, agrees with the view that not only individuals, but also whole communities suffered and are still in distress. It therefore recognizes the need for such communities to be rehabilitated through various programmes, such as alluded to by the President.

2.3 Medical Benefits and other forms of Social assistance
With regard to the specific cases of individual victims identified by the TRC Act, the Committee notes that work by various ministries is already in progress

2.4 Final Reparations
The Committee, having considered the President's recommendations regarding final reparations, endorses the commitment of Government to provide a once-off grant of R30,000 to those individuals or survivors designated by the TRC, over and above the other material commitments already mentioned.

The Committee rejects the proposition of substituting this financial assistance with claims for compensation by victims. It is concerned about the cumbersome, costly and protracted nature of legal proceedings that would have to be initiated by individual victims to establish their claims in courts of law including the arduous task of linking perpetrators to the ham they suffered. This would result in untold delays and even unsuccessful endeavours by victims to obtain such compensation.

Appendix 5 : Democratic Alliance Amendments to Committee Report

PROVISIONAL DRAFT REPORT ON RECOMMENDATIONS BY SUB
COMMITTEE ON REPARATIONS PRECEDING PUBLIC SUBMISSIONS

INTRODUCTION
The Sub-committee met on 11, 12 AND 17 June 2003 to consider the identified four recommendations MADE BY THE PRESIDENT IN TERMS OF S.27(1) OF THE PROMOTION OF UNITY AND RECONCILIATION ACT. Having deliberated on the matters the MAJORITY OF MEMBERS OF THE Committee supported the recommendations. The recommendations DEAL WITH (i) Symbols and Monuments; (ii) Rehabilitation of Communities; (iii) Medical Benefits and other forms of Social assistance and (iv) Final Reparations.

1. CONTEXT
The MAJORITY OF THE Committee rejects the assertion that the TRC Act was aimed exclusively at the granting of reparation to individuals only and not in granting redress to communities and the broader society for harm suffered as a result of gross human rights violations of the past.

The Committee, having considered the four recommendations made to
Parliament by the President, is of the view that these recommendations
MAY be grouped into two main areas, namely:

- Recommendations that seek to ADDRESS IN A HOLISTIC MANNER redress injustices of the past in a more holistic manner by focusing on gross human rights violations inflicted upon whole communities and the broader society, on the one hand; and
- Recommendations that seek to redress gross human rights violations suffered by individuals by granting them some degree of relief.

A MINORITY VIEW IS THAT VICTIMS AS DEFINED IN THE ACT AND THE REPARATIONS DUE TO THEM AS DEFINED ARE GOVERNED BY SECTIONS 3, 4, 5, 25 AND 26 OF THE ACT, AND THAT SYMBOLIC OR COMMUNITY RECOGNITION CANNOT SERVE AS A SUBSTITUTE FOR INADEQUATE INDIVIDUAL REPARATIONS. ALONGSIDE ADEQUATE REPARATIONS THEY WOULD BE A WELCOME ADDITION.

2. RECOMMENDATIONS

2.1 Symbols and Monuments
The Committee supports the President's recommendation calling for systematic programmes to project the symbolism of struggle and the ideal of freedom through academic and informal records of history, remaking of cultural and art forms, erecting symbols and monuments that exalt the freedom struggle, including new geographic and place names.

The Committee notes the sterling work that has already commenced at various levels of government in this regard. This includes work-in-progress towards the establishment of Freedom Park, the Garden of Peace and the renaming of streets and towns in various parts of the country.

The Committee, having deliberated on the matter, agrees that the focus here is on the MANY-SIDED struggle that led to the current democratic dispensation ushered in by the new constitutional order in 1994, AND THAT/ALTERNATIVELY A MINORITY VIEW IS THAT ALL SYMBOLS SHOULD CONFORM TO THE GOAL OF UNITY AND RECONCILIATION THAT SERVED AS THE CONSTITUTIONAL AND LEGAL JUSTIFICATION FOR THE CREATION AND THE WORK OF THE TRC.

2.2 Rehabilitation of Communities
The Committee supports the President's commitment to the continued payment of special emphasis on the rehabilitation of communities that were subjected to intense acts of violence and destruction AS PART OF THE CONFLICTS OF THE PAST. The Committee notes that work that has already begun in this area and endorses the focus on a partnership approach between communities and government in pursuit of this objective.

The Committee, having deliberated extensively on the matter, agrees with the view that not only individuals, but also whole communities suffered and are still in distress. It therefore recognizes the need for such communities to be rehabilitated through various programmes, such as alluded to by the President, AS A SUPPLEMENTARY MEASURE.

2.3 Medical Benefits and other forms of Social assistance
With regard to the specific cases of individual victims identified by the TRO Act, the Committee notes that work by various ministries is already in progress THE SYSTEM SET UP UNDER THE EXPANDED URGENT INTERIM REPARATIONS PROGRAMME WAS UNSATISFACTORY. VICTIMS RETURNED TO THE OFFICES OF THE PRESIDENT'S FUND EMPTY-HANDED AND NO STATISTICS WERE GIVEN TO THE TRC BY GOVERNMENT DEPARTMENTS. THE COMMITTEE PROPOSES THAT OVERSIGHT MECHANISMS PROGRAMMES. SHOULD SCRUTINISE THESE.

2.4 Final Reparations
The Committee, having considered the President's recommendations regarding final reparations, endorses BY MAJORITY the commitment of Government to provide a once-off grant of R30 000 to those individuals or survivors designated by the TRC, over and above the other material commitments already mentioned.

The Committee rejects the proposition of substituting this financial assistance with claims for compensation by victims. It is concerned about the cumbersome, costly and protracted nature of legal proceedings that would have to he initiated by individual victims to establish their claims in courts of law including the arduous task of linking perpetrators to the harm they suffered. This 'would result in untold delays and unsuccessful endeavours by victims to obtain such compensation.

A MINORITY REJECTS THE RECOMMENDATION AS BEING INADEQUATE. AT MINIMUM, THE 3 000 DECLARED VICTIMS WHOSE RIGHTS TO SUE SUCCESSFUL AMNESTY APPLICANTS FOR DAMAGES HAVE BEEN EXTINGUISHED ARE ENTITLED TO ASSESSMENT OF THE LOSSES SUFFERED AND TO COMMENSURATE COMPENSATION.

THE COMMITTEE RECOMMENDS THAT PARLIAMENT APPROVES A REQUIREMENT THAT AN APPEAL MECHANISM SHOULD BE CREATED FOR VICTIMS ERRONEOUSL OR UNFAIRLY EXCLUDED FROM THE TRC LIST OF DESIGNATED VICTIMS (VOLUME 7 OF THE FINAL REPORT) IN SPITE OF HAVING BEEN IDENTIFIED AS VICTIMS DURING THE LIFE OF THE TRC.

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