TRC Final Report

Volume 1

Chapter 9

Subsection 5

■ ANALYSIS OF SELECTED PROBLEMS ENCOUNTERED

‘Grey’ and contradictory areas in the Act

43 The Act was by no means perfect. While it purported to clarify intricate legal principles and relationships, it correctly left many moral principles undefined and implied. Thus, while many of the tough, hardcore decisions made by commissioners can be corroborated, some remain value-laden and can be defended only as value judgements by people of integrity.

44 The Act was also silent on a variety of practical issues, one of which was the relationship between the chief executive officer and the commissioners.

45 With regard to victims, the Commission was not able to implement decisions and could only recommend policies and procedures to Parliament and the President for implementation. However, the Commission could and did (via its Amnesty Committee) grant amnesties. This glaring contradiction in the founding Act led to sharp national and international focus and debates on a number of issues.

The roles and functions of the commissioners and portfolio heads

46 Owing to the short life of the Commission and the nature of its structure, there was a very thin line between the roles and functions of commissioners and portfolio heads concerning the formulation, development and implementation of operational policies. This explains the structural overlaps and operational duplication that occurred.

Income and expenditure forecasts, budget negotiations and allocations

47 Because the Commission was without precedent, initial budgeting was based on broad estimates of what might be required. The initial amount allocated in the budget of the Department of Justice was not, therefore, based on any precedent and required ongoing adjustments.

48 The Commission, while of the utmost national significance, was only one of many critical national priorities requiring funding from the national fiscus. Like many other projects, therefore, the Commission was restricted by limited national resources. This resulted in drastic cuts to the budget which made it impossible to negotiate with staff, especially regarding salaries and the termination of contracts.

Bidding/tendering

49 Owing to the very short period in which it was required to complete its work, the Commission had no alternative but to move quickly from the outset. For this reason, the Commission decided (without going through the State Expenditure Regulations and the State Tender Board’s required bidding procedures) to contract out certain aspects of its work (in particular, furniture, equipment and other services). This proved to be the only significant point on which the Auditor-General took issue with the Commission.

50 It also needs to be noted that the above decisions were made during the first three months of the Commission, before the chief executive officer and finance and support services director came on board. From that point on, the Commission adopted its own internal financial policies and controls procedures.

51 The Commission formally requested authorisation for the above expenditures and/or an exception from the State Expenditure regulations and/or the State Tender Board requirements. At the time of reporting, it had still not received a reply.

52 It was clear that both the State Expenditure regulations and State Tender Board procedures are extremely cumbersome and liable to act as hindrances for accelerated start-up and smooth functioning of any project of short duration. Thus, reasonable internally developed procurement policies and procedures need to be adopted to facilitate the fast pace, smooth operations and accountability of such short-term projects.

The Commission’s adopted modus operandi

53 The Commission adopted a number of strategies to attain its objectives. As reported elsewhere in this report, these included the gathering of data, converting data into usable information, corroborating information received, research and investigation work and victim and perpetrator findings.

Safety and security

54 Given the nature and national significance of the Commission’s work, the need for the appropriate safety and security of our Commission’s processes, programmes, activities and members was of great importance. Thus, a risks and threats analysis was done on each of the commissioners when the Commission began work.

55 Based on this analysis, the chairperson, the vice-chairperson and one commissioner in the Durban Regional Office were initially afforded in-transit and static safety and security officers.

56 The need for effective safety and security was underscored when a bomb threat stopped the proceedings of the first victim-oriented hearing in East London on April 16 1996.

57 From then on, safety and security plans, arrangements and efforts before, during and after hearings were intensified, constantly reviewed and consolidated. This work was co-ordinated by the Safety and Security Functional Committee through two safety and security co-ordinators, assisted by the established nodal (liaison) point in conjunction and consultation with members of the National Safety and Security Department and the established on-site Joint Operations Commands (JOCs).

58 As other overt threats were directed at particular Commission members, further risks and threats analyses were performed. Consequently, in-transit safety and security officers were also afforded to the head of the Commission’s Investigation Unit. Periodic patrols were also provided around the residential premises of the established at-risk and/or threatened members of the Commission.

59 Managing safety and security risks and threats and sustaining vigilance over time was dependent on the awareness and conscientiousness of those under threat, including the recording and reporting all manifestations of risks and threats they experienced.

60 One of the most difficult of the threats identified was that presented by leaks of critical and sensitive information - threatening the integrity of the work of the Commission. Whilst only commissioners and very few staff members handled very sensitive material, it became virtually impossible to establish the source of the many leaks that plagued the Commission.