TRC Final Report

Volume 1

Chapter 4

Subsection 7

52 In a submission to the Commission, Justice Pius Langa, currently the Deputy President of the Constitutional Court, wrote of his life under apartheid:

My first real encounter with the legal system was as a young workseeker in Durban … in 1956. It was during that period that I experienced the frustration, indignity and humiliation of being subject to certain of the provisions of the Population Registration Act, no. 30 of 1950, the Natives (Urban Areas) Consolidation Act, no. 25 of 1945 as well as other discriminatory legislation of that time… The immediate impact on me was severe disillusionment at the unfairness and injustice of it all. I could never understand why race should have been the determinant of where I should live and where I could work. I was never able to understand why, whilst still a teenager, I was expected to live at a men’s hostel and needed a permit to stay with my parents in the township… In that first flush of youth, I had thought I could do anything, aspire to anything and that nothing could stop me. I was wrong. My dreams came up against the harsh apartheid realities. The insensitive, demeaning and often hostile environment it had created around me proved to have been crafted too well; it was designed to discourage those who, like me, sought to improve their circumstances and those of their communities…

The pass laws and influx control regulations were, for me, the focal point of the comprehensive network of laws and regulations which dominated my early working life … I was merely one of tens of thousands who peopled those seemingly interminable queues at the end of which, in general, bad tempered clerks and officials might reward one with some endorsement or other in the ‘dompas’. The whole process of the influx control offices was painful and degrading and particular aspects of it inflicted deep humiliation on the tens of thousands who were on the receiving end of these regulations. As a 17 year-old, I remember having to avert my eyes from the nakedness of grown men in a futile attempt to salvage some dignity for them in those queues where we had to expose ourselves to facilitate the degrading examination. To anyone who failed to find work during the currency of their permits, loomed the very real threat of being declared “an idle and undesirable Bantu” by the Commissioner’s court and being subject to be sent to a farm colony. Scores of people were processed through those courts and sentenced on charges such as failing to produce a reference book on demand. …

It was one thing, however, having the overtly discriminatory and repressive laws on the statute book. Their ugliness was exacerbated to a large degree by the crude, cruel and unfeeling way in which many of the officials, black and white, put them into operation. There was a culture of hostility and intimidation against those who came to be processed or for assistance. The face presented by authority, in general, was of a war against people who were unenfranchised and human dignity was the main casualty.

53 A deep awareness of this systematic discrimination and dehumanisation made it very difficult for the Commission to concentrate only on those whose rights had been violated through acts of killing, torture, abduction and severe ill treatment.

54 For example, during the earlier information-gathering phase of the Commission’s work, the category that required most attention was that of ‘severe ill treatment’. The ordinary meaning of ‘severe ill treatment’ suggests that all those whose rights had been violated during the conflicts of the past were covered by this definition and fell, therefore, within the mandate of the Commission. This view was expressed in the submissions of a number of organisations and groups representing, for example, victims of forced removals and Bantu education.

55 While taking these submissions very seriously, the Commission resolved that its mandate was to give attention to human rights violations committed as specific acts, resulting in severe physical and/or mental injury, in the course of past political conflict. As such, the focus of its work was not on the effects of laws passed by the apartheid government, nor on general policies of that government or of other organisations, however morally offensive these may have been. This underlines the importance of understanding the Commission as but one of several instruments responsible for transformation and bridge-building in post-apartheid South Africa.

56 The mandate of the Commission was to focus on what might be termed ‘bodily integrity rights’, rights that are enshrined in the new South African Constitution and under international law. These include the right to life⁹, the right to be free from torture¹⁰, the right to be free from cruel, inhuman, or degrading treatment or punishment¹¹ and the right to freedom and security of the person, including freedom from abduction and arbitrary and prolonged detention¹² .

57 But bodily integrity rights are not the only fundamental rights. When a person has no food to eat, or when someone is dying because of an illness that access to basic health care could have prevented - that is, when subsistence rights are violated - rights to political participation and freedom of speech become meaningless.

58 Thus, a strong argument can be made that the violations of human rights caused by ‘separate development’ – for example, by migrant labour, forced removals, bantustans, Bantu education and so on - had, and continue to have, the most negative possible impact on the lives of the majority of South Africans. The consequences of these violations cannot be measured only in the human lives lost through deaths, detentions, dirty tricks and disappearances, but in the human lives withered away through enforced poverty and other kinds of deprivation.

59 Hence, the Commission fully recognised that large-scale human rights violations were committed through legislation designed to enforce apartheid, through security legislation designed to criminalise resistance to the state, and through similar legislation passed by governments in the homelands. Its task, however, was limited to examining those ‘gross violations of human rights’ as defined in the Act. This should not be taken to mean, however, that those ‘gross violations of human rights’ (killing, torture, abduction and severe ill treatment) were the only very serious human rights violations that occurred.

■ EVEN-HANDEDNESS

60 The Commission was obliged by statute to deal even-handedly with all victims. Its actions when dealing with individual victims were guided, amongst other things, by the principle that “victims shall be treated equally without discrimination of any kind”(section 11(b)). In so doing, it acknowledged the tragedy of human suffering wherever it occurred.

61 This does not mean, however, that moral judgement was suspended or that the Commission made no distinction between violations committed by those defending apartheid and those committed to its eradication.

62 In this regard, it is important to remember that other aspects of the Commission’s mandate required that it:

a facilitate inquiries into the nature, causes and extent of gross violations of human rights, including the antecedents, circumstances, factors, context, motives and perspectives that led to such violations;

b establish organisational involvement and responsibility and identify all persons, authorities, institutions and organisations involved in gross violations of human rights;

c determine whether gross violations of human rights were part of deliberate planning on the part of the state or an organisation;

d discuss whether gross violations of human rights were part of a systematic pattern of abuse;

e make recommendations on the creation of institutions conducive to a stable and fair society and on institutional, administrative and legislative measures to prevent the perpetration of human rights violations.

63 This part of the mandate, together with the overall objective of promoting reconciliation, clearly required that the Commission be sensitive to a wide range of different perspectives and beliefs concerning past conflicts. In its attempt to reflect accurately and to understand these perspectives, the Commission endeavoured to include people representing different positions in its public hearings. It also made repeated attempts to include those political groupings, such as the Inkatha Freedom Party (IFP), that chose not to participate in the activities of the Commission.