TRC Final Report

Volume 5

Chapter 3

Subsection 3

■ PROCESS

23 Once most of the initial administrative and logistical problems had been overcome, the Committee was in a position to introduce a process for dealing with applications. One of the fundamental aspects which had to be attended to in this regard was the categorisation of applications into those it was compelled to deal with at public hearings and those which could be dealt with by the Committee in chambers. The categorisation of an application determined the various preparatory steps that had to be taken in order to render the application ripe for a hearing or decision (see further Volume One).

24 The other important step was to obtain all relevant information and material required to supplement omissions or outstanding aspects of the application. This required the obtaining of official records like court transcripts, judgements, charge sheets and the like. It was also necessary to obtain further particulars from the applicant where this was needed.7

25 Once all of the information and material had been obtained, it was taken into account in deciding whether the application would amount to a chamber matter or to a matter for public hearing. This was regulated by the provisions of the Act, which compelled the Committee to hear all applications concerning a gross violation of human rights (as defined), at public hearings and gave the Committee the discretion as to how it would deal with all other matters. In practice, most of the applications not involving gross human rights violations were dealt with in chambers.

Chamber matters would then be allocated to a panel and a decision taken by a majority of the panel. In view of the fewer formalities involved in processing chamber matters, the majority of the early decisions of the Committee were taken in chambers. Consequently, all of the chamber matters had been finalised before the writing of this report.

26 A number of additional steps were necessary to prepare hearable matters for a public hearing. A lot of this entailed logistic work. First, a hearing date had to be allocated to the matter in consultation with all of the interested parties or their legal representatives. Included in this process was the issue of obtaining an appropriate venue for the hearing. In view of the importance of accessibility, every endeavour is made to obtain a venue that will be most convenient for most of the interested parties, particularly victims. In addition to this, it is also important that the most essential facilities should be available at the venue. Regard is also given to the issue of safety and security.

27 It is also necessary to give statutory notice of the hearing to all of the interested parties including victims. The Act explicitly entitles any party to the proceedings to have legal representation. A legal assistance scheme was created in terms of the Act to render assistance in appropriate cases to parties who are unable to afford legal representation. This is important issue in ensuring the fairness of the proceedings before the Committee and is linked to the question of accessibility.

28 Insofar as the hearing itself is concerned, the Act empowers the Committee either to promulgate rules of procedure which are generally applicable to hearings or alternatively to determine the procedure to be followed at a particular hearing. To avoid overly formalising the process and to retain the degree of flexibility necessary to ensure the fullest possible participation within the limited time available, the Committee decided against prescribing a set of generally applicable rules of procedure. This decision was partly based upon an acceptance by the Committee of the Commission’s approach: that its process should not be equated to that of a court of law and should not be overly regulated. However, the proceedings of the Committee are largely judicial in nature and include in particular the right of cross-examination within reasonable bounds. All parties are allowed to adduce relevant evidence and to address argument to the hearings panel concerning all issues that have to be decided. The proceedings are recorded and the Committee gives reasoned decisions on each application. The Commission publishes these decisions. Within these parameters, the Committee endeavoured to conduct its proceedings in such a manner as to ensure that all parties are treated fairly.

29 A further important provision that assists in rationalising the work of the Committee is the provision of the Act, which allows the Committee to hear jointly all matters relating to the same incident. This is being used extensively by the Committee in order to expedite finalisation of its work.