TRC Final Report

Volume 1

Chapter 7

Subsection 12

■ REQUESTS FOR INFORMATION

The State v Dirk Johannes Coetzee and four others¹⁸

102 Dirk Johannes Coetzee issued a subpoena to the head of the Investigation Unit of the Commission, calling on him to produce the transcript of evidence given to the Commission by Joseph Tshepo Mamasela.

103 The Commission responded that it was not required to produce the information as the Act entitles the Commission to refuse disclosure (Section 29(5)); that it would not be in the public interest, and that it would defeat the object of the Act. It responded further that the videotape requested was not compellable in terms of section 179 of the Criminal Procedure Act 51 of 1977.

104 The accused argued that there was no absolute privilege and that large portions of the evidence had already been made public.

The decision of the court

105 The Court held that the accused was entitled to the evidence sought on the basis that:

a there was no absolute privilege;

b Coetzee had a right in common law to a fair trial, including the right to adduce and challenge evidence;

c the Commission had not established that Mamasela’s evidence was so sensitive and important that it outweighed the rights of the accused to a fair and proper trial;

d no grounds had been set out as to why the court should restrict the information sought; and

e the video subpoenaed was issued in terms of the rule 54(5) of Uniform Rules of the Court and not the Criminal Procedure Act and was therefore compellable.

■ COMPLAINTS TO THE PUBLIC PROTECTOR

Inkatha Freedom Party (IFP)

106 On 9 October 1997, the Commission was notified by the Office of the Public Protector (the Public Protector) of a complaint received from Mr Baldwin Sipho Ngubane, national chairperson of the IFP, on behalf of his party. The complaint related to the treatment of the IFP at the hands of the Commission.

107 The complaint stated that, in conducting its affairs and functions, the Commission had acted in a biased manner against the IFP and thereby:

a violated the IFP’s constitutional rights;

b impaired its dignity and prerogatives in terms of the constitutional system;

c acted in contravention of its own statutory objectives to promote national unity and reconciliation in a spirit of understanding which transcends the conflict and divisions of the past.

108 It claimed further that certain actions of the Commission had hindered rather than assisted in the achievement of its statutory objective to promote national unity and reconciliation. The IFP cited a number of specific incidents, decisions of the Amnesty Committee and examples of what it described as the Commission’s partisan approach.

109 The Public Protector requested that the Commission respond to the IFP’s complaints. The request was complied with.

Former SADF members

110 On 29 January 1998, the Public Protector received a complaint from Generals JJ Geldenhuys and Liebenberg based on a mandate received from 350 members of different ranks of the former South African Defence Force (SADF) during a symposium held on 30 August 1997 to the following effect :

The [Truth and Reconciliation Commission] and some of its members have displayed continuous prejudice, bias and lack of impartiality towards the former South African Defence Force and its members. This attitude and these actions by the [Truth and Reconciliation Commission] are also considered to be probably in violation of the constitutionally-guaranteed human rights of the SADF members concerned as described in chapter 2 sections 9 and 23 of Act 108 of 1996. The disregard which resultantly (sic) developed in the minds of members of the former SADF undermines the overall mission of the [Truth and Reconciliation Commission] to promote reconciliation and national unity.

111 The symposium registered a number of specific complaints.