TRC Final Report

Volume 1

Chapter 6

Subsection 5

Regional pre-findings

25 The information taken from the statements, the corroborative material gathered by the investigators and the background research material provided by the researchers were presented on a regular basis to the Human Rights Violations Committee, which would then make ‘pre-findings’ at a regional level.

26 Making ‘pre-findings’ involved either rejecting statements of alleged violations as untrue or outside the mandate of the Act, or sending them back for further corroboration, or finding them true on a balance of probability. In instances where the ‘pre-finding’ process confirmed the truth of the statement, and that statement included the names of a perpetrator or perpetrators, those named were sent letters (in terms of section 30 of the Act). The letters informed them that they had been adversely implicated in a statement upon which the Commission was contemplating making a finding, and informed them of their right to respond to the allegations.

27 The virtually insurmountable practical difficulties the Commission faced in attempting to corroborate each statement served to crystallise a profound dilemma at the heart of the findings process. On the one hand, the Commission was a legal institution with the responsibility of making defensible findings according to established legal principles. This was particularly important, both to safeguard the credibility of the Commission’s final report and to ensure that those who received reparations were genuinely victims as defined in the Act. On the other hand, the Commission embodied a moral and therapeutic process that aimed at acknowledging suffering and giving victims an opportunity to tell their stories. This aspect of the work would have been greatly diminished had the findings process been approached in too technical a manner, focusing narrowly on rules of evidence and requirements of proof. The methodology of the Commission sought to reconcile these potentially conflicting objectives in various ways.

28 By holding public hearings or granting private interviews, the Commission attempted to diminish the legal, and at times adversarial, nature of its work and to focus on the restorative and therapeutic dimensions of its mandate. Witnesses were not cross-examined by the Commission and, unless there were glaring inconsistencies and falsehoods, their oral testimony was generally accepted. As a result, the interaction of the vast majority of victims with the Commission was a positive and affirming experience. This meant, however, that at times not all relevant information was obtained when the victim testified in public, placing an additional burden on those attempting to corroborate the statement at a later stage. In general, the Commission sought to be both therapeutic in its processes and rigorous in its findings, but sometimes the effort to satisfy one objective made it more difficult to attain the other.

National findings

29 After a ‘pre-finding’ had been made at a regional level, it was ratified at a national level and recorded on the database. The process of making national findings was greatly facilitated by the work of the National Findings Task Group. This group met regularly to discuss policy issues and to ensure that policy on findings was applied in a consistent manner in each region. The task group also appointed two commissioners to review a sample of each region’s findings so as to ensure that the findings process conformed to agreed standards.