TRC Final Report

Volume 1

Chapter 5

Subsection 9

Constraints on the South African judicial system

71 Arguments against amnesty are based on the assumption that it is both preferable and possible to prosecute perpetrators. The response to the former – that it would be preferable to prosecute – has already been discussed. In a fragile, transitional context, there are strong arguments for the adoption of a truth commission rather than Nuremberg-type trials. But, even if the South African transition had occurred without any amnesty agreement, even if criminal prosecution had been politically feasible, the successful prosecution of more than a fraction of those responsible for gross violations of human rights would have been impossible in practice. The issue is not, therefore, a straight trade-off between amnesty and criminal or civil trials. What is at stake, rather, is a choice between more or less full disclosure; the option of hearing as many cases as possible against the possibility of a small number of trials revealing, at best, information only directly relevant to specific charges.¹³

72 The South African criminal justice system is already under severe pressure. Police have very limited capacity to investigate and arrest. Attorneys-general have limited capacity to prosecute. The courts and judges have limited capacity to convict and correctional services are limited in their capacity to accommodate prisoners. The prospects for successful prosecutions seem even gloomier when one considers the complexity of attempting to prosecute political crimes. Political crimes are committed by highly skilled operatives, trained in the art of concealing their crimes and destroying evidence. They are thus notoriously difficult to prosecute and to prove guilty beyond reasonable doubt. In the words of Chief Justice DP Mahomed:

Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof...Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible; witnesses are often unknown, dead, unavailable or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law.¹⁴

73 Trials of this nature are extremely time-consuming and expensive and require large teams of skilled and highly competent investigators. It took over eighteen months to secure a single conviction in the ‘de Kock’ trial.¹⁵ A specialised investigative unit, consisting of over thirty detectives and six civilian analysts, spent more than nine months investigating and preparing the indictment in the ‘Malan’ trial.¹⁶ The trial itself lasted a further nine months. Furthermore, since the accused in many of these trials were former state employees, the state was obliged to pay for the costs of their legal defence. In the Malan trial, these costs exceeded R12 million; and in the de Kock trial, the taxpayer had to pay more than R5 million. These figures do not include the costs of the teams of investigators and prosecutors, nor do they reflect the costs of supporting large numbers of witnesses, some of them placed in expensive witness protection programmes. Despite this massive expenditure of time and money, the former General Malan was found not guilty, although numerous allegations continue to be made against him. The costly and time-consuming Goniwe inquest also failed to answer the numerous questions concerning the death of the ‘Cradock Four’. Judicial enquiries into politically-sensitive matters rarely satisfy the need for truth and closure. As such, they should not necessarily be seen as superior alternatives to the Commission.

Amnesty and social justice

74 One of the consequences of granting amnesty is that the civil liability of both the perpetrator and the employer (often the state) is extinguished. While the wish to encourage individual perpetrators to tell the truth does not, in itself, justify indemnifying the state against civil liability, state indemnification may assist in meeting the fundamental objectives of reconciliation between the people of South Africa and the reconstruction of society. Two arguments support this.

75 First, by indemnifying the state in this way, prolonged litigation is avoided. Such litigation is likely to lead to a preoccupation with anguish and rancour about the iniquities of the past and may thus divert the energies of the nation from the long-term objectives of national reconciliation and the reconstruction of society.¹⁷ Second, the achievement of reconciliation and the reconstruction of society demands that the limited resources of the state be deployed in a way that brings relief and hope to as many South Africans as possible. Faced with competing demands between the formidable claims of victims of gross human rights violations and their families, and the desperate need to correct massive wrongs in the crucial areas of housing, education and health care, the framers of the interim Constitution favoured the reconstruction of society.

76 The immunity awarded to the state does not remove the burden of responsibility for state reparations. It does, however, give the new, democratic government discretion when making difficult choices about the distribution of scarce resources between the victims of gross human rights violations (who fall within the mandate of the Commission) and those many victims who fall outside of the Commission’s mandate. The Minister of Justice has said:

We have a nation of victims, and if we are unable to provide complete justice on an individual basis - and we need to try and achieve maximum justice within the framework of reconciliation - it is possible for us...to ensure that there is historical and collective justice for the people of our country. If we achieve that, if we achieve social justice and move in that direction, then those who today feel aggrieved that individual justice has not been done will at least be able to say that our society has achieved what the victims fought for during their lifetimes. And that therefore at that level, one will be able to say that justice has been done (emphases added). ¹⁸

77 The basis for this transition towards social justice lies in the replacement of unjust, minority rule with a democratic state. The amnesty agreement and the way it was implemented were key factors in making the transition possible. It therefore makes at least an indirect contribution to social justice. By extension, it also contributes to the less visible, non-material dimensions of social justice. It will indeed, as Judge Mahomed has said:take many years of strong commitment, sensitivity and labour to ‘reconstruct our society’...developing for the benefit of the entire nation the latent human potential and resources of every person who has directly or indirectly been burdened with the heritage of the shame and the pain of our racist past.19

78 Through the Committee on Reparation and Rehabilitation, however, the Commission was mandated to focus on the immediate, visible need for subsistence of many victims (suffering, for example, from the loss of a breadwinner). Although no amount of reparations could ever make up for the losses suffered by individuals, families, and communities because of gross human rights violations, the nation has an obligation at least to try to transform abject poverty into modest security.

79 Other fundamental human needs needed to be addressed under the banner of reparation and rehabilitation. Victims and/or their families, dependants and friends needed to understand why gross violations of human rights took place. They needed to be free from the legacy of fear that prevented their full participation in the life of the community, stifled their creativity and undermined their dignity. Victims needed to know that, in the future, they would be protected from similar gross violations of human rights.