South African Human Rights Commission: Annual Report

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Justice and Correctional Services

22 May 2000
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Meeting Summary

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Meeting report

22 May 2000

Acting chairperson: Ms P Jana (ANC)

Documents handed out:
TRC Management Report

The original timeframe for the TRC had been eighteen months but it has been extended a number of times. The minimum time envisaged for completing their work is twelve months as of March 2000. This includes the preparation of the intellectual property received by the TRC and the handing over of the final codicil of the TRC Report to the President.

The TRC recommends that the government implements a clear reparation policy. This is the task of the inter-Ministerial Committee established in 1998. Commissioner Sooka was deeply concerned that the end of the current process would leave a vacuum. She stressed the imperative for government to put in place a policy so that victims would not be left uncertain about final reparations.

The discussion amongst various political parties in the committee became heated when discussing government action with regard to reparations.

Adv Martin Coetzee presented an operational report on the work done by the TRC up to February 2000, in his capacity as manager of the Commission. He summarised the progress made by their three Committees: the Amnesty Committee, the Reparation and Rehabilitation Committee and the Human Rights Violations Committee. The report also detailed the work done by their legal, finance and media departments.

Amnesty Committee
The function of this committee is to consider applications for amnesty made in accordance with Act 34 of 1995. The committee is left with a staff of 40 after the departure of the international investigators early this year. About 30 amnesty applicants still need to appear before the Committee in 2000. July 2000 has been set as the date for the completion of hearings. The Committee has already dealt with 91% of all applications received.

The productivity of this Committee has increased in spite of its limited resources. The finalisation of all amnesty applications has been delayed by factors largely outside the control of the Committee. These factors include the lack of suitable venues for hearings and the difficulty in finding a suitable time when all legal representatives are available. Although initially seen as a quasi-judicial process, the hearings have become fully-fledged trials and often representatives seek postponements to obtain further particulars.

Adv Coetzee said that the nature of the Commission's work is such that it is mentally taxing and staff required counseling. This has an effect on work performance. He acknowledged that the Committee was operating under budgetary constraints but added that, contrary to the perception that perpetrators are the chief beneficiaries of funding, 70% of all monies used on amnesty hearings are spent on victims in the form of transport, accommodation, legal services and translators. He expressed the view that political parties should have been more involved in the process and taken on some responsibility for amnesty applicants from their own parties.

Reparation and Rehabilitation Committee
Commissioner Mkhize said that this committee has the task of making reparations to victims of gross human rights violations. Since June 1998 the Committee has been working on the implementation of interim reparations and matters relating to long-term policy development for reparations. Urgent interim reparations may be paid out to victims from the President's Fund established for this purpose.

The Committee's staff complement has been reduced by half since June 1998. They were severely under-resourced in dealing with interim reparations and a number of staff positions were created and paid for by USAID.

A financial grant of R2 000-R2 500 can be paid out as an urgent interim measure in terms of the regulations promulgated in April 1998. Special assistance may take the form of reburial of the exhumed body of victims or housing and education for the children of victims.

There has been some criticism of the amounts paid out. Also allegations have been made that perpetrators are benefiting the most financially. Before the regulations were promulgated there was an inter-Ministerial Committee in place headed by then Minister of Justice Dullah Omar. The inter-Ministerial Committee took the view that although money could not be sufficient compensation for human rights violations there would be a special policy which would allow people to benefit from special services (such as disability grants, pensions) if they qualified. The TRC had sold this to the public but were now facing increasing dissatisfaction and this was making the process more difficult.

There is concern that there might be problems regarding the implementation of the TRC's policies. Ms Mkhize felt that society should speak out where they feel that victims are being compromised. She emphasised that the TRC remains the spokesperson for victims. To reconcile the diverse views there may be a need for a summit to ensure that the 'victim body' remains at the centre stage of the process. The administrative process is almost completed but the disappearance of the TRC body may leave victims uncertain as to their future.

Human Rights Violations Committee
The task of this committee is to consider applications and decide whether or not persons are victims of gross human rights violations. This Committee has finished their work except for letting applicants know of negative decisions.

Adv Coetzee said that they had not made a submission in time for the current budget because of the uncertainty over when the process would be finished. The biggest expenditure of the Commission is the amnesty hearings, translation, recording costs and personnel.

Ms Jana, acting Chair, said it bothered her that money for interim relief had been under-spent. Ms Smuts(DP) said that the interim relief reparation sums did not make sense to her. She noted in their report that R30.5 million has been spent on interim reparations but 9600 persons have qualified for interim relief. The figures did not reconcile. Did persons receiving interim relief , automatically qualify for financial compensation?

Commissioner Yasmin Sooka explained that once applicants have been identified as victims of gross human rights violations they apply to the Reparations Committee. Their application is then evaluated to determine whether they qualify for interim relief. Often such money will give them urgent access to certain services. Those who are employed do not generally qualify for such relief. When assessing the application, the Committee considers the number of dependents, children at school or tertiary institutions and so forth. The amount paid may be increased up to R5000 depending on how much of a burden is on the victim or immediate family. Promulgated regulations prevent the TRC from supporting the person indefinitely.

Ms Jana asked if these victims knew that they would not be receiving final reparations until the TRC is finished its work. Ms Mkhize responded that the real problem is that the TRC's policy is structured so that the timing of final reparations only follows the interim reparation process. This causes complications because it creates doubt in victim's minds if they do not have specific dates to go by. Adv Coetzee added that it was unfortunate that the amnesty process was coupled with the reparation process because in fact they are not linked. The amnesty process will not impact on the number or the identity of 'victims'.

Ms Jana asked whether there was not a presumption that a final recommendation on reparations will only be made once the Commission has completed all its work. Commissioner Sooka said that when handing in the final codicil to the TRC Report to the President they would establish the number of victims but they are not clear when that will be because of the uncertainty about when the amnesty process will be completed.

Mr Solomon (ANC) asked if members were not confusing final and interim reparations. The Justice Department has said they are ready to pay but are waiting for the final figures regarding victims. The relevant Ministries have not formulated guidelines on financial provision for special services. The problem is therefore formulating policies on making money available for services.

Ms Smuts (DP) said that the fact is that the TRC had submitted their recommended reparation policy. From the side of government there are now regular signals that they will try to slide out of their obligations. She referred to comments by Justice spokesperson, Paul Sesetse, in answer to an article she had written for City Press newspaper. His comments suggested that reparations must be the responsibility of all citizens and he referred to possible involvement of the private sector in making reparations. Are the TRC aware of any Court challenges to the process or whether there would be a Court challenge if reparations are not made?

Commissioner Sooka replied that some legal institutions have requested information in preparation for actions since the inter-Ministerial Committee has been set up. She said that R300 million was available in the President's Fund. The TRC cannot go beyond that amount. Once interim reparations have been made the rest of the money will be used for final reparations.

Mr Delport (NNP) asked if his understanding was correct that there is no reason why final reparations cannot proceed?

Adv Coetzee said that this is not correct. At the moment there is no way of determining who will receive final reparations. The Commission is asking that a policy be drafted on final reparations. A summit must be called which will include NGOs and interested parties to draft this definitive policy.

Ms Jana (ANC) agreed with Adv Coetzee and said that the inter-Ministerial Committee should begin this process. The basis of reparation is that victims receive some recognition.

Mr Mabeta (ANC) said that the perception is that government made definite promises to pay compensation. Are the TRC aware of these promises? Why is this not being speeded up. Is the government or the TRC at fault?

Ms Mkhize responded that the public is becoming very concerned over the question of reparations. As a Commission however, they are not empowered to implement but only to recommend. The TRC has looked at other international institutions for guidelines. In the beginning of the process, the TRC was challenged by a number of families. The presiding judge, who ruled in favour of the TRC, said that the State would not abandon its duty to make reparation to victims. Reparation was also a moral issue. As the previous Minister of Justice had said, there are different forms of justice. Given the uncertainties regarding reparations, could the TRC be dissolved knowing that justice has not been done?

Ms Jana said she thought the problem was much deeper - there were many victims who had not taken part in the TRC process and who had never told their stories to the TRC.

Mr Delport (DP) asked if there were any obstacles to formulating a final policy on reparation. Apart from the reference to the need for a summit, Adv Coetzee had given no indication as to any reasons why a policy could not be formulated. What is supposed to be done with the R270 million set aside for reparations? Adv Coetzee had said that it is not their mandate to recommend policy or to say what will happen to the R270 million. But it is the task of the inter-Ministerial Committee to address final reparations. To this extent they need to formulate a policy which would guide them when making final reparation payouts after the TRC has completed its process. The process is made more difficult by the fact that there are different categories of reparations such as community reparations and so forth.

The Chair, Ms Jana, addressed Mr Delport's question, saying that he had been part of the apartheid government that had perpetrated these atrocities. This was why there was a need for a Truth and Reconciliation Commission.

Ms Jana (ANC) asked whether there was an anticipated final date for the amnesty process. Adv Coetzee said that all amnesty applications should be completed by August. There are about 300 amnesty applications left to be heard. It is difficult to give an exact date but more or less three months will be needed to complete the amnesty report.

Ms Smuts (DP) made the point that through 1995 and 1996 all the above issues had been dealt with and the Act itself gives clear definitions and the Commission only has limited discretion. If the Executive does not produce the policy on final reparations, the Portfolio Committee on Justice must take it upon themselves to do so. She added that this meant all parties and not just the Democratic Party.

The Chair, Ms Jana (ANC) said that the Commission need not respond to Ms Smut's comments as she was clearly using the meeting as a platform to perform for the television cameras.

Mr Mabena (ANC) asked whether all reparations and briefings are done within a proper framework. Government tends to over-commit to objectives and there is not enough time to prepare, complete implementation and so forth and this leads to dissatisfaction.

Commissioner Sooka said that the interim reparation process is currently being dealt with and is almost complete. The Commission is concerned about the vacuum they might leave at the end of the process. It was critical that a policy be put in place to assure people that final reparation will be made.

Mr Delport said that as a point of order he thought Ms Jana had abused her position as Chair by attacking him earlier and he was not impressed by her comments. He had been a tax-payer for more that 40 years and his tax has helped build schools and hospitals. Ms Jana retaliated that she did not expect him to be impressed. She did not recognise him as an MP because he was part of the old order and the apartheid government.

Mr Delport walked out of the meeting. Ms Smuts (DP) followed him.

The Chair, Ms Jana, apologised to the TRC delegation that they had been witness to this political wrangling and adjourned the meeting on this note.


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