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TRC Final Report
Page Number (Original) 83
Paragraph Numbers 126 to 132
126 In the case of gross violations of human rights primarily related to labour conflicts (and not to the more narrowly defined political conflicts of the past), it was possible to differentiate further between:
a those which fell outside the Commission’s mandate because, on closer examination, there was no clear political context. Typical of this type were cases relating to the abuse of farm workers;
b those that fell inside the mandate because a deeper probe revealed that the context was clearly political. For example, where a labour union linked to a specific political organisation was used to attack workers from a union linked to another political organisation (as in the Durnacol coal mine conflicts in Northern KwaZulu-Natal in 1990), or where a labour-related conflict became the basis for clear political protest (as in Saldanha in 1987), or many actions in the course of trade union activity. The banning of political organisations often made trade unions the vehicles through which political struggles were waged.
127 There were cases in which people were victims of racist attack by individuals who were not involved with a publicly known political organisation and where the incident did not form part of a specific political conflict. Although racism was at the heart of the South African political order, and although such cases were clearly a violation of the victim’s rights, such violations did not fall within the Commission’s mandate.
128 Cases which were interpreted as falling inside the Commission’s mandate included instances where racism was used to mobilise people through a political organisation as part of their commitment to a political struggle, or where racism was used by a political organisation to incite others to violence. Examples of these were instances when white ‘settlers’ or farmers were killed by supporters of the PAC or the ANC, or where black people were killed by supporters of white right-wing organisations.
129 These included cases that appeared to be criminal but which had a strong political overlay. Classic examples were many of the violations committed by ‘special constables’25 while engaging in unlawful activities or off-duty harassment of local residents. It could be argued that these were criminal and not political acts and therefore fell outside the mandate. The Commission’s response was to view these acts within their political context - the nature, purpose and function of this kind of police force had been to institute a permanent armed presence. Clearly, the violations and the patterns of violations that resulted from deploying these poorly trained, politicised and armed people in communities should have been foreseen by those who were behind this contra-mobilisation force. Unless acts committed were clearly aberrations - for example, shooting the owner of a shebeen, or raping someone in circumstances which indicated that it was a random crime - the Commission concluded that these acts were politically motivated.
130 These also included acts by so-called ‘bad apples’ within the security forces; in other words, it was claimed that certain acts had fallen outside the duties and orders given to, for example, security police based at Vlakplaas. In some cases, there were disputes between former state agents and former politicians about whether these acts were reasonable interpretations of deliberately vague, unwritten orders to ‘deal firmly with the unrest’, to ‘do what has to be done’ and so on. In such cases, the Commission gave the benefit of the doubt to victims and included them in its mandate where an interpretation of such an order was reasonable, taking into account all the facts and circumstances. Many of these acts were clearly criminal. However, the fact that they took place over a long period and that little or no action was taken against these employees of the state, gave the Commission grounds to regard them as political. By failing to act, the state condoned these ‘private’ acts, thus neglecting its duty to protect its citizens against crime.
131 These also included ‘third force’ related actions, for example, drive-by shootings, train violence, and some manifestations of the taxi violence and similar events. Even where it was not possible clearly to identify the perpetrator as acting for a ‘third force’, victims of such incidents were found to have suffered gross human rights violations if the circumstances of the cases warranted it. All such matters were considered on a case-by-case basis.
Convictions for politically motivated acts
132 One of the most difficult decisions related to whether conviction and sentencing (often to unusually long periods of imprisonment) for ‘public violence’, or for offences defined in terms of other legislation specific either to the apartheid period or state of emergency regulations, could be considered gross violations of human rights. Factors that had to be taken into consideration were whether such provisions would now be in contravention of the South African Constitution, whether the severity of the sentence was out of proportion to the offence and whether there had been abuses in relation to due process. It was clear that the Commission could not recreate a court situation and review a conviction. Nevertheless, the Commission decided that, in certain cases, people who had been convicted in such circumstances could be deemed to have suffered a gross violation of their human rights. Again, these were dealt with on a case-by-case basis. If there was clear and compelling new evidence, the matter might be referred to the authorities for a possible reopening of the trial. As with capital punishment, the Commission’s task was not to make a ‘perpetrator finding’ in relation to the court which had passed the sentence, but to decide whether or not there had been a gross violation of human rights.25 Nicknamed kitskonstabels (instant constables) because they were admitted to the police after a crash course.