TRC Final Report

Volume 1

Chapter 1

Subsection 4

45 These examples should surely be sufficient to establish that we are politically independent and not biased in favour of any particular political party or group.

46 Another frequent criticism has been that we have allowed people such as Ms Madikizela-Mandela, Mr PW Botha and Dr Wouter Basson, in a manner of speaking, to ‘get away with murder’. In response to this, we have pointed out that we are not a court of law. Ms Mandela, for example, was cross-examined by a panel of lawyers and gave the answers she chose to give. We announced that we were not going to pronounce a verdict at the end of that sitting but would be making our finding (contained in this report) based on the evidence and our impression of the witness.

47 In both her case and that of Dr Basson, one almost has the impression that people would like us to squeeze satisfactory responses from the witnesses. However, short of putting them on a rack and torturing them, there is in fact nothing one can ultimately doina constitutional democracy beyond making an appropriate finding. After all, even in a court of law there is nothing the prosecution can do to force witnesses to give satisfactory answers except to charge them with contempt. Even that will not necessarily elicit the facts.

48 Equally, in the case of Mr Botha, all we could do was to lay a criminal charge which we did, however reluctantly. Even while the court case was in progress, we continued to seek an acceptable solution - both in the interests of reconciliation and because we did not want to see him humiliated. We offered to have an in camera hearing and to provide him in advance with the list of questions we wanted to ask him. Only a thoroughly biased person could accuse us of harassing a hapless old man. In the face of his obduracy, we were faced with no choice but to lay charges. The decision to prosecute was taken independently by the Attorney-General. But we did thereby demonstrate that nobody is above the law.

49 Others have taken us to task because they were unhappy when the Amnesty Committee gave amnesty to certain perpetrators - such as those responsible for the St James’ Church killings or the murder of Amy Biehl. Clearly these people have forgotten the raison d’être for amnesty. Amnesty is not meant for nice people. It is intended for perpetrators. There are strict criteria to be met and we believe that the Committee has used those criteria to determine whether or not amnesty should be granted. Amnesty is a heavy price to pay. It is, however, the price the negotiators believed our country would have to pay to avoid an “alternative too ghastly to contemplate”. Sadly, in almost all cases, there was an outcry only when the victim was white and the perpetrator black. I wonder whether people have considered how the Trust Feed Farm community must have felt when Brian Mitchell got amnesty since it was his misinterpreted orders that led to the death of eleven persons in that community?

50 As a matter of fact, the Amnesty Committee has granted only about 150 amnesties out of 7 000 applications, with a further 2 000 still to be dealt with. This can hardly be described as an avalanche of reckless decisions.

51 I think some people have wrongly thought that we were targeting former security force members because there has been so much about them and their misdemeanours in the media. This, in very large measure, is because most of the violations of which the liberation movements are guilty were already in the public domain. Most of the perpetrators had been arrested; often they had been convicted and sometimes even executed - as for example in the case of the Magoo’s Bar bombers, the Amanzimtoti Wimpy Bar bomber and those responsible for various necklacings. The South African Police used to preen itself about its successes in these operations. Concerning events such as the PEBCO Three, the Cradock Four and so on, the police engaged in elaborate and effective cover-ups. Now that their nefarious deeds are coming to light on their own admissions, the white community especially is appalled to discover that their ‘boys’ were not always the paragons of virtue they had presented themselves as. The disillusionment is shattering. But it is not the Commission that should be blamed for this. The truth has always been there. It had simply been hidden from the public gaze.

52 Some have criticised us because they believe we talk of some acts as morally justifiable and others not. Let us quickly state that the section of the Act relating to what constitutes a gross violation of human rights makes no moral distinction - it does not deal with morality. It deals with legality. A gross violation is a gross violation, whoever commits it and for whatever reason. There is thus legal equivalence between all perpetrators. Their political affiliation is irrelevant. If an ANC member tortures someone, that is a gross violation of the victim’s rights. If a National Party member or a police officer tortures a prisoner, then that is a gross violation of the prisoner’s rights.

53 The supporters of the previous regime have been at great pains to insist that the reason they did many of the unsavoury things that have since come to light was largely because they were fighting against an evil and predatory Communism. This shows that they do accept that the use of force is subject to moral judgement and distinctions. When a woman kills a person who tries to rape her, she has committed homicide; yet, society and the law would argue that she was not criminally culpable. Society might even commend her. If a hijacker kills the driver of the car he was hijacking, he has committed a homicide. Society heaps condemnation and opprobrium on him and the law finds him guilty of culpable homicide.

54 Hence, the same kind of act attracts different moral judgements. A venerable tradition holds that those who use force to overthrow or even to oppose an unjust system occupy the moral high ground over those who use force to sustain that same system. That is when the criteria of the so-called ‘just war’ come into play -as discussed in The Mandate chapter in our report. This does not mean that those who hold the moral high ground have carte blanche as to the methods they use. Thus, to hold this particular view is not to be guilty of a bias. It is to assert that we move in a moral universe where right and wrong and justice and oppression matter.

55 It would be the height of stupidity as well as being self-defeating for the Commission to subvert its work by being anything less than fair and even-handed. This is, after all, required by the law that brought it into being. We want our work to be generally accepted. Unfair discrimination would be prejudicial to such acceptance. Some of us have been characterised by an independence that has led us to condemn wrong wherever it happened or whoever was the culprit, and have done so without fear or favour. We could not change this critical independence when so much hinged on it.

56 We have sought to carry out our work to the best of our ability, without bias. I cannot, however, be asked to be neutral about apartheid. It is an intrinsically evil system. But I am even-handed in that I will let an apartheid supporter tell me what he or she sincerely believed moved him or her, and what his or her insights and perspectives were; and I will take these seriously into account in making my finding. I do believe that there were those who supported apartheid who genuinely believed that it offered the best solution to the complexities of a multiracial land with citizens at very different levels of economic, social and educational development. I do not doubt that many who supported apartheid believed that it was the best policy in the circumstances to preserve their identity, language and culture and those of other peoples as well. I do believe such people were not driven by malicious motives. Many believed God had given them a calling to help civilise benighted natives. I do not for a single moment question the sincerity of those who believed that they were defending their country and what they understood to be its Western Christian values against the atheistic Communist onslaught. No, I do not call their motives into question. I do, however, condemn the policy they applied.