TRC Final Report

Volume 6

Section 4

Chapter 3

Subsection 2

THE COMPLETION OF VICTIM FINDINGS

14. Completing victim findings was the major task and priority for the HRVC. The Act required that the HRVC establish the ‘victim status’ of a deponent before s/he could be considered eligible for reparation. Accessing reparation through the RRC was thus dependent on being found to be victim by the HRVC .

15. Earlier findings had been affected by the fact that the HRVC had taken a long time to finalise its policy on what constituted ‘severe ill-treatment’, one of the violation categories defined in the Act. Initially, the Commission did not treat cases of arson and displacement as gross violations of human rights under this category. However, the nature of the violations emanating from KwaZulu-Natal challenged the narrow definitions originally adopted. Arson and displacement (together with political killings and massacres) were the predominant type of violation during the post-1990s conflict, particularly in KwaZulu-Natal and Gauteng.

16. Because many victim findings were made at a time when the Commission’s interpretation of the ‘severe ill-treatment’ category had not been clearly defined, the HRVC had classified many cases as ‘negative’. It became necessary to revisit these negative findings and review them in line with the Commission’s new policy decision.

17. This task was assigned to the HRVC commissioner who stayed behind to deal with uncompleted work.

18. The Commissioner also had to deal with the fact that very little corroborative information existed in respect of KwaZulu-Natal matters. Most victims who had been caught up in the violence in this province had not felt secure enough to report the violations they had suffered to the relevant authorities. Furthermore , victims – particularly those who were ANC-aligned – reported that the police had refused to take statements from them.

19. Moreover, when the Commission’s investigators requested hospitals and police stations for information, they were told that, as the matters were more than five years old, they no longer had files. This had the potential to cause great hard ship to the victims in this province who had, for the most part, lived through a conflict that had lasted much longer than in other parts of the country. They had little hope of assistance if the Commission did not make an effort to find creative ways of corroborating their stories.

20. In a major effort to finalise the KwaZulu-Natal matters, the Commission accessed the records of various groups that had monitored the violence in the province during the conflict years. These included the reports of the Human Rights Commission³⁴, the reports of John Aitcheson and Mary de Haas, as well as many other groups who had worked with victims of violence.

21. At this late stage, the Commission had very few investigators. Those who remained behind were assigned to dealing with amnesty investigations. The H RVC Commissioner was compelled to pass the onus of gathering corroborative information back to the deponents and families of potential victims. Deponents were requested to obtain affidavits from people in the community who had witnessed the conflict or incident. Thus, if a deponent stated in his/her statement that an incident had occurred during a particular time period, the Commission would cross-reference it with the violence-monitoring reports to ascertain whether there had been reports of violence in that particular area within the stated time period. The Commission would also rely on the corroborating affidavit to confirm the deponent’s version of events.

22. The Commission required that findings be made on ‘a balance of probabilities’. It was not a court of law and deliberately favoured a policy that gave victims the benefit of the doubt. Thus the standard of proof required was lower than that required in criminal matters, where guilt must be proved beyond reasonable doubt.

23. The problem was compounded by the fact that KwaZulu-Natal is a large province, and the scale of the violence had been so great that it was impossible to identify many of the people who had died. Large-scale mass violations also meant that, in a number of instances, witnesses had been displaced from their original communities or had died subsequently. It became impossible for the Commission to track down all these witnesses or the evidence to support many of the KwaZulu-Natal cases.

This is one of the major reasons why so many findings for this region are marked as ‘unable’, a category that describes cases where there is no corro b orative evidence at all.

Another problem characteristic of the region was the fact that the violence had carried on beyond the Commission’s mandate period. Many deponents made statements about cases which fell into this ‘out of mandate’ category. Thus many victims were excluded from accessing reparation.