TRC Final Report

Volume 5

Part minority_position

Subsection 11

■ RECOMMENDATIONS

Reparation and rehabilitation policy

78 I believe the individual reparation grant structured as cash payment to be unwise. It does not distinguish on the basis of either the harm suffered or the needs of individuals. While the expressed or implied purpose is that victims should be using such cash grants to take care of the needs flowing from the harm suffered, the real risk exists that other interests may weigh more. The argument that they should be free to choose how they use the grant sounds plausible at face value. It does not limit the risk, though, that real needs may become or continue to be a burden on the state. It does not take into account that a sizeable number of victims have not suffered any harm other than a wrongdoing or have since fully recovered, whether from emotional or physical suffering. On the other side, some individuals suffered immense physical or psychological harm, much of which is permanent, and these are in need of ongoing treatment. The individual grants to victims as reparation should not be used to address the much wider phenomenon of poverty. Injection of larger sums of cash into poverty-stricken communities may cause friction and eventually not benefit the individual as intended.

79 I recommend that government considers a formula that allows for a multi-layered approach on the basis of affordability to the state. The first leg can be a lesser cash grant to acknowledge the wrongdoing to every individual. It will affirm the finding of victim status. Second, government can render services for all ongoing needs of victims that resulted from the violations suffered. This will include all medical or appropriate psychological treatment and could also include measures such as special housing subsidies or subsidised loans for housing materials where the violation suffered involved the loss of housing. It could include exemption from school fees for children where the breadwinner was lost to the family. No clear data is available yet, but an analysis of application forms may be able to give an estimate of the cost to the state of such an approach. In short, a needs-based policy would be the best approach and an assessment can be made as to the ability of the state to provide necessary services. Priority access to specific services can be arranged simply through the issuing of some form of identification.

Gross violations of human rights committed outside the borders of South Africa

80 The amnesty applications elicited by the amnesty provisions in the founding Act were the main source of information on gross human rights violations committed, the main source of our knowledge of what actually happened. Most of our investigations followed up on this information. A source of frustration to the investigation unit and the Commission in general was the refusal by some applicants or would-be applicants to disclose information on cross-border operations, because of the threat of extradition to and prosecution in other countries. In this regard, the provisions have failed the objective.

81 I believe that we cannot leave this issue unresolved. To ‘allow the law to take its course’ in this respect will spell disaster in capital letters. Most of these operations were carried out by operatives of the former South African Defence Force. Its senior officers, a large number of them now retired, attested to their loyalty to the country and its constitution. They have now accepted the new power realities brought about by the new Constitution. The South African National Defence Force is presently one of the major guarantors of stability in our country and is, by all accounts, is one of the more successful examples of integration and transformation in our society. It is one of our more disciplined instruments. Even a hint of persecution of retired and serving officers may result in a risk of major destabilisation.

82 It is recommended that the President urgently place the subject on the agenda of the Southern African Development Community for attention and resolution. I deliberately refrain from making any suggestions as to how this matter may be pursued further.