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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 June 2001
TRUTH AND RECONCILIATION COMMISSION: ANNUAL REPORT
Chairperson: Adv J H de Lange
Documents Handed Out
Truth and Reconciliation Commission (TRC) Report
The TRC came before the Committee to account for its past expenditure and actions. The main order of business was the discussion of the TRC’s budget in light of the fact that the existence of the TRC was coming to an end. Among the matters stressed was the need for the TRC to be wound up in close accordance with the Act that brought the TRC into being. Adv de Lange emphasised that the procedure for winding up the organisation was provided for in the legislation.
The TRC showed how its budget that has steadily been reduced over the last few years has been coupled with a reduction in staff. Finally, Adv de Lange paid tribute to those TRC members at the meeting and also to all individuals who had dedicated their services to the TRC.
The first matter that Adv de Lange raised was the recent decision in the Govender case. This case concerned s49 of the Criminal Procedure Act, which provides for the use of force by a police officer in effecting an arrest. Adv de Lange said that in December 1998, the Committee had decided that the section was unconstitutional. Since that date the Committee has requested the Police to implement this fact, but to no avail.
Finalising Report by the TRC
The TRC was represented by Adv M C Coetzee, the CEO, Mrs Mkize and Adv Potgieter.
Adv Potgieter said that in October 1998, the TRC was suspended and after this date the only reason why the TRC continued to function was because of outstanding cases. Adv Potgieter said that to date, the Commission had dealt with over 7000 applications. He said that he was satisfied with this performance as comparatively the Commission had faired better than a court of law would have. He also told the Committee that all these applications had been dealt with under tremendous pressure.
Adv Potgieter said that out of the 7000 applications there were approximately 2000 "hearable" matters. "Hearable" in this context, Adv Potgieter told the Committee, means suitable for, or deserving of, public hearing as a result of the severity of the crime. For those 2000 applications there were 4000 public hearings. Adv Potgieter told the Committee that all this work had to be done while writing decisions, which were being processed for publication. Adv Potgieter said that in effect this means that the work of the TRC is effectively concluded.
Adv Potgieter told the Committee that the TRC had been revived for the sole purpose of writing a report. The TRC thus had two major tasks on its agenda, namely winding down and the production of a report. The reparation component of the report would be completed by the end of June, and the human rights component would be completed by the end of July. Adv Potgieter told the Committee that a subcommittee had been created and charged with the task of producing this report. Once the report was completed the TRC will convene in September 2001 for the purpose of adopting this report. Adv Potgieter told the Committee that the TRC was still committed to its mandate and took the production of the report and winding down process as seriously as it had approached all of its other tasks.
Adv Coetzee informed the Committee of the administrative and financial position of the TRC.
He said that the TRC started with a budget of R60 million in 1996. This amount has been scaled down to R10 million.
Adv Coetzee told the Committee that the TRC had suffered two major misfortunes. He said that the TRC had at one point accumulated an unauthorised expenditure of about R14 million. This amount plagued the TRC and was reflected in the auditor general’s report for two years. Secondly, the TRC was cited for the non-payment of tax. The SARS averred that the TRC had not paid tax for two years and was in arrears to the value of R1 million. This amount was eventually paid to the SARS. However, after close consideration by the SARS it was determined that the amount due was only R300 000. Other than this, he said, the TRC was a relatively small institution that had not encountered many problems.
Adv Coetzee told the Committee that in light of the fact that the TRC was not closing down on the original date set, it requested an additional amount of R28 992 616. However an amount of R17 million has been recommended by the Treasury Department, leaving a shortfall of R11 992 616. However with more information at the TRC’s disposal and cutting of proposed expenses, it was estimated that the TRC needed an additional amount of only R4 680 812 over and above the R17 million for the 2000/2001 financial year. Adv Coetzee told the Committee that if this amount were not approved the TRC would not be able to carryout it final tasks. In particular the TRC would not be able to finalise the writing of outstanding amnesty hearing decisions and to do an audit of all amnesty applications; complete its Final Report, close its books and be audited
Another consequence would be that all outstanding matters, including reviews and appeals would have to handed over before the end of December 2000 to the Department of Justice for finalisation in accordance with the Act.
Adv Coetzee told the Committee that the winding down process was a complicated one as much property had been accumulated in the course of its existence. Adv Coetzee gave special mention to the intellectual property that the TRC had accumulated. Adv de Lange reminded the Committee that the Act provided explicitly for the winding down of the TRC and re-iterated that the process for dissolution is very detailed. Adv de Lange said that he would not take kindly to any property being disposed of in an inappropriate manner.
Adv de Lange asked about the staff that the TRC had in its employ. Adv Coetzee told the Committee that many people were under the misconception that the TRC was a body that simply conducted hearings and thus did not require much staff. This view was strengthened by the fact that the TRC was an impermanent body. However, the opposite was true and the TRC initially had quite a large employee body. The TRC started with 82 people in its employ and by the end of August 2001 will have between 50 and 30 staff. These people all devoted their lives to the work of the TRC despite the bodies impermanence. These people now no longer have their jobs as a result of the TRC’s dissolution.
Adv de Lange inquired as to what most of the money relieved by the TRC was spent on. Adv Coetzee said that most of the money was spent on victims with perpetrator costs being kept to a minimum. Perpetrator costs refers to expenditure incurred in relation to individuals who were perpetrators of crimes rather than victims of crimes. He said that the minimal perpetrator costs that were incurred were mostly legal costs that the state failed to pay for.
Reparation and Rehabilitation Committee and Human Rights Committee
Mrs Mkize presented the Committee with a progress report on the Reparation and Rehabilitation Committee, the Human Rights Committee and the Amnesty Committee. Mrs Mkize said that the Reparations Committee worked very closely with the Human Rights Committee.
Mrs Mkize told the Committee that in terms of the enabling Act, the Reparations Committee and the Human Rights Committee were both charged with the duty of making recommendations on policy concerning, respectively, reparation and rehabilitation and the development of human rights and dignity. Both these committees were also responsible for making recommendations on policy for the prevention of repetition of human rights abuses.
Mrs Mkize told the Committee that at present 20 411 victims of gross human rights violation had been identified. These people were all identified as victims through a very difficult and taxing system. The first attempt to identify people as victims consisted of a process whereby forms were sent out. This system proved fruitless and a field worker system was then adopted. This method proved better than the previous but not without its own problems. Out of this process 19901 forms were completed. 2487 of these could not be traced once proceedings began. These names would be recorded as per the instructions of the Minister of Justice and if any of these people subsequently surface, they will be accorded the very same treatment and reparations which others enjoyed.
To this date 14000 people have received a once-off payment in terms of the urgent relief legislation. The TRC had spent R45 million making these payments. At present 15717 applications had been sent to the Presidents’ Fund seeking reparation and compensation, leaving about 6000 applications not yet lodged.
Mrs Mkize told the Committee that in 1998 the Reparation Committee had made a recommendation advising the creation of a secretariat that would carry on the function of the reparation Committee once it no longer existed. Mrs Mkize said that at present the Reparations Committee was under enormous pressure as a result of the fact that it could not tell victims with any amount of clarity how the handing over process would happen and the implications of this process. Mrs Mkize said that despite their recommendation and despite the obvious need for such a body, no such mechanism has been put in place. Mrs Mkize also told the Committee that various organisations had expressed a willingness to carryout such a task and others have offered to make contributions. She said that these were opportunities that would be lost if the Government did not make use of them.
Mrs Mkize said that the Reparations Committee had advised on different types of reparation. These included symbolic, financial and services. Symbolic reparation would include the erection of monuments or the naming of roads or streets after those who had suffered. Service based reparation would be given to those who require special attention as a result of their suffering. The example given by Mrs Mkize was of people who were tortured and would thus require mental health support.
Adv de Lange then asked whether all victims who qualified as having suffered gross human rights violation got financial reparation. Mrs Mkize told the Committee that in terms of international mechanisms, everyone subject to gross violation of human rights should be given reparation as close to compensation as possible. In terms of this, the 23 000 victims in South Africa will be receiving R23 000 per annum for six years. This is in accordance with international tradition.
Adv de Lange asked if all people were treated the same and if so why. Mrs Mkize said that these claims were all treated uniformly for a very good reason. She said that people would argue if reparations differed. Also if reparations were awarded on an individual basis then assessment and determination of individual claims would create further cost. Mrs Mkize said that all this had been done in conjunction with UN structures. She said that these structures identify that there might be unfairness but advocate that the process of awarding reparation to all should be done in a clear, democratic and transparent manner. This UN method says that the difficulties of the process should be illustrated and shared with all involved.
Adv Potgieter added that ultimately this matter was one of policy. Eventually it was decided that a pragmatic approach would be best and that an individualistic approach would be overwhelming and impractical.
TRC - Amnesty Committee
Mrs Mkize said that out of the 7124 applications submitted, amnesty was granted in respect of 1116 of these. 92 applications fell under the granted and refused category. These applications involved instances were cases involved more than one crime or atrocity. Amnesty was then granted in respect of some of the crimes but refused in relation to others. There were 252 withdrawn applications, 26 duplications, 98 outstanding decisions and 5531 applications refused amnesty.
As far as legal representation is concerned, Mrs Mkize told the Committee that some perpetrators were given legal representation by either the State or the TRC. Some of the perpetrators were represented by legal aid. The TRC also provided legal representation for victims and some witnesses.
Mr M A Mzizi (IFP) asked about the age distribution of victims. Mrs Mkize said that the exact age distribution of victims would be included in the final report. However she said that some were children who had lost their parents, some were youths who were involved in the struggle, some were adult and spouses of victim. Others were the elderly, some of whom were bringing applications on behalf of their children who had been killed.
Mrs Smuts commented on the forms which were used to identify victims of gross human rights violations. She said that she felt that in general the approach towards harm was far too broad. She said than instead what was needed was crystallised forms of harm. She said another problem was that often there was no identifiable perpetrator. She asked what information was included on these forms in relation to the assessment of harm suffered.
Mrs Mkize said that these forms were formulated through an inter-Ministerial Committee that was established. This Committee arrived at an agreement that forms should be circulated to determine the immediacy of the need to address the victims’ situations. Mrs Mkize said that beyond this, in terms of the empowering legislation, nothing could be done. She added that reparation of this nature would only be meaningful if done within the Government structure.
Adv de Lange added that the assessment of harm had two components. Some people suffered harm and were permanently disabled as a result. Often these people were injured as representatives of an organisation or as supporters of a view or community. These communities and organisations were therefore also sufferers of harm and thus needed to be treated in the same way as any other victims. Mrs Mkize gave the example of whole communities in Kwa-Zulu Natal who were left vulnerable by the atrocities they suffered.
Adv de Lange said the nature and extent of human rights violations had to be looked at. He said some people identified the church as acting in cooperation with the apartheid government and others identified businesses as doing this.
Mrs Mkize agreed with this and said that all stakeholders should be involved in the process. She said that a meeting had been held with businesses and labour organisations. This was done in an attempt to improve goodwill and to show that enterprise was dedicated to the process of reparation.
Mr G Magwanishe (ANC) asked on what basis it was decided who would get legal representation at the expense of the TRC.
Adv Coetzee replied that legal representation was granted subject to the same test applied by the Legal Aid Board. This was the ‘means test’, which would entitle an individual to legal representation if the cost of such representation was beyond their means. However, in addition to this the TRC also applied the ‘interest of justice test’. According to this test an individual would be accorded legal representation if it was in the interest of justice for their case to be heard. In this situation matters such as nation building would also be a valid consideration in deciding whether or not to provide legal representation.
Mrs N Mahlawe (ANC) insisted that there was a need for ‘healing’, beyond reparation, throughout the nation. She said that besides the provisions of legislation, the TRC should consult with the State and advise on how to continue the healing of the deep wounds left by past atrocities.
Dr JT Delport (DP) asked how he could find out whether certain individuals where included on the list of those people receiving reparation. Adv Potgieter said that this information was freely available and a simple telephone call away.
Dr Delport (DP) then wanted to know what the position was in relation to people who had suffered pecuniary loss. The example he gave was of someone who had suffered determinable loss as a direct result of human rights abuses, for example hospital bills that have rendered someone indigent.
Adv Coetzee said that problems had been experienced with the quantifying of claims from the very beginning. Some losses he said were more easily ascertainable than others were. For example he said it was difficult to quantify the loss of a loved one. In light of this a policy decision was made to treat all claims in a similar manner.
Ms M Smuts (DP) commented that in order to continue the rule of law, the Department of Public Prosecution would have to prosecute in relation to applications denied amnesty. Ms Smuts wanted to know whether the TRC actively referred matters to the prosecuting authority for prosecution, and whether the prosecutor would have access to records.
Adv Potgieter said that it was procedurally necessary for the TRC to decide to give this information to the National Prosecuting Authority and once this decision was taken, the information would be passed to the National Prosecuting Authority. They do not however pass on evidence and some records held by the TRC are inadmissible as evidence. He added that people denied amnesty are not actively pointed out to the prosecuting authorities but those who withdraw their applications are.
Mr M A Mzizi (IFP) then told the TRC representatives that he had encountered individuals who had submitted applications and made statements, but had never come before the TRC for any formal hearings. He wanted to know why this was the case.
Mrs Mkize told the Committee that the statements of these people would be accorded the same status as statements made during hearings. She said that particularly in Gauteng, many people’s applications were treated in this way as a result of the sheer bulk of applications.
Mr MA Mzizi (IFP) asked what the position is in relation to people whose property has been destroyed, particularly by fire. Adv de Lange reminded Mr Mzizi that reparation was only given to people who had suffered direct physical harm as a result of gross human rights violations. Mrs Mkize said that Adv de Lange was correct, however she also told the Committee that the TRC had identified that fire was often used as a political weapon. She said that where the TRC identified fire being used as a political weapon, special consideration was given to those applications.
Mr Mzizi (IFP) asked if the TRC ever co-operated with the RDP. Mrs Mkize said that the TRC was not without its own function, distinct and unrelated to that of the RDP. Despite this the TRC did make recommendations to other organisations, so that the functions of these other organisations might be better performed and help those most in need of assistance.
In conclusion, Adv de Lange paid tribute to the TRC. He commended the TRC for a job well done under high pressure circumstances. Adv de Lange said that one had to appreciate what the TRC has done to contribute towards nation building. He said that those people who worked for the TRC had dedicated their lives to the process and forgone their other jobs for an impermanent one from the very beginning. Adv de Lange said that it was very important that the dissolution of the TRC be dealt with very carefully. He also emphasised that it was pertinent that measures be in place to prevent repetition and to make sure that processes embarked upon by the TRC were carried out to the end.
The meeting was adjourned.
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