TRC Final Report

Volume 5

Part minority_position

Subsection 14

Response of the Commission

to the Minority Position of Commissioner Wynand Malan

1 The Commission finds it regrettable that Commissioner Wynand Malan decided to withdraw midway through the process of discussion and drafting of the Commission’s report and eventually to formulate a Minority Position. We regard it as a particular drawback that he declined the opportunity of debating its contents within the Commission, as happened with every other section of the report, or of exploring the possibility of incorporating his position within the appropriate sections of the report itself. Our regret lies in the fact that, by so doing, he deprived both himself and the rest of the Commission of the opportunity of benefiting from the wholesome process of debating and considering the issues raised in the Minority Position and their possible impact on the report. It should be mentioned that, in our experience, the entire report has been enormously enriched by this process of debate and the impact of many perspectives within the Commission. The Commission has, however, been steadfast in its commitment to creating the opportunity for all shades of opinions and views to be fully expressed within the context of the Commission’s process as a vital part of its overall objectives. It is in this spirit that we approach the Minority Position expressed by Commissioner Malan.

2 It is informative to restate the provisions of sections 4(e) and (h) of Act 34 of 1995 (the Act) which guided the Commission in preparing its report :

4. Functions of Commission – The functions of the Commission shall be to achieve its objectives, and to that end the Commission shall – (e) prepare a comprehensive report which sets out its activities and findings, based on factual and objective information and evidence collected or received by it or placed at its disposal; (h)make recommendations to the President with regard to the creation of institutions conducive to a stable and fair society and the institutional, administrative and legislative measures which should be taken or introduced in order to prevent the commission of violations of human rights.

3 The general approach applicable to the work of the Commission, as set out below in the provisions of sections 36(1) and 36(5)(a) of the Act, was consistently followed by those Commissioners who prepared the report:

36. Independence of Commission – (1) The Commission, its commissioners and every member of its staff shall function without political or other bias or interference and shall, unless this Act expressly otherwise provides, be independent and separate from any party, government, administration, or any other functionary or body directly or indirectly representing the interests of any such entity. (5) Every commissioner and member of a committee shall– (a) notwithstanding any personal opinion, preference or party affiliation, serve impartially and independently and perform his or her duties in good faith and without fear, favour, bias or prejudice.

4 We have some difficulty in responding effectively to the Minority Position of Commissioner Malan, in that it purports to deal with the Commission’s report in general terms without raising concrete cases or joining issue with specific portions of the report. It is drafted in subjective terms and apparently from the perspective of an erstwhile member of the parliamentary caucus of the then ruling National Party at the height of apartheid. This emphasis, and the personal historical and political account set out by Commissioner Malan, is most unfortunate and even inappropriate in the context of the Commission’s statutory framework.

5 Although we agree with Commissioner’s Malan’s observation that Commissioners “come from different corners, so to speak, of our society”, we interpreted our statutory mandate as requiring us to rise above this subjective diversity and execute the duties imposed upon us professionally and strictly in accordance with our mandate, despite our subjective views on specific issues. Where there is an irreconcilable conflict between a Commissioner’s statutory duty and the dictates of his/her conscience, the proper course would be to resign from the Commission. All Commissioners accepted this reality when they assumed office.

6 We deem it inappropriate to debate the host of personal opinions and subjective views set out in the Minority Position. These are strictly irrelevant to the report in view of the provisions of section 4(e) of the Act and, in any event, in many instances do not relate to the content of the report. We do, however, feel compelled to rectify a number of factual inaccuracies which tend to misrepresent the Commission process.

7 We accordingly proceed to deal with some of these instances.

8 It needs to be emphasised that the process of writing the report commenced during 1997 after full discussion and agreement was reached within the Commission on the approach to be followed. As much time as circumstances permitted was allowed and allocated to the report writing process which was always regarded within the Commission as being of vital importance. All of the Commissioners were compelled to create sufficient time within extremely busy schedules to engage in the report writing process. We are satisfied that sufficient opportunity was created for all Commissioners, if they so wished, to participate to the fullest extent possible in writing the report.

9 Appropriate structures and persons within the Commission were mandated to prepare drafts of various sections within the report to serve as a basis for discussion. These drafts were by no means binding on the Commission or any commissioner. In practice, the majority of these drafts were substantially re-worked from time to time in the light of the debates within the Commission.

10 We are accordingly satisfied that the report gives a full and comprehensive account of all the work and activities of the Commission up to the point of its publication, in accordance with our statutory obligations. There is no basis whatsoever for regarding the report as “preliminary” or subject to revisiting in any subsequent reports.

11 We find Commissioner Malan’s characterisation of the testimony of witnesses in human rights violation hearings as largely influenced by exaggeration or in terms of their own understanding of what happened, to be impertinent and startlingly inappropriate. This attitude exhibits a total lack of appreciation of or sensitivity to the situation of victims of gross violations of human rights or the duties of the Commission as set out in section 11 of the Act, in particular to treat victims with compassion and respect for their dignity. We dispute the allegation that “most deponents giving oral evidence, when taking the oath, made it clear that they would speak the truth ‘as they see it’ ”. This is an unfounded generalisation. Quite significantly, no details or examples are given to substantiate this sweeping statement.

12 All findings were made on duly corroborated evidence and were made only after all parties who were adversely affected had been given adequate opportunity to respond, and all responses have been duly considered. The suggestion that, in making findings, the Commission relied upon improper material as “evidence” and failed to maintain the distinction between various “concepts of truth” is based on a complete lack of understanding of the findings process. As mentioned earlier, Commissioner Malan chose to withdraw from participating in certain of the Commission’s activities concerning finalisation of the report.

13 We note the views expressed regarding the influence of religion upon the reconciliation debate. In view of the fact that this is not linked to the content of the Commission report, we refrain from responding to this aspect. However, to the extent that this might amount to an attempt to criticise the approach or personal views and beliefs of members of the Commission, or to articulate some imagined attack upon Afrikaner leaders, it is deplored.

14 These are some of the aspects that need to be placed in proper perspective. On the whole, it is our view that Commissioner Malan’s failure to participate fully in the report writing process resulted in some misunderstanding of, and a lack of information about, the process itself and the content of the report. Some of the views he expressed relate to drafts rather than to the final version of the report. Most of this could have been avoided through discussion and contact with the Commission.

15 On the other hand, some of the aspects raised in the Minority Position are helpful and constructive and ought, in our view, to have been included in the body of the report. We can refer by way of example to the various influences listed under the heading “Apartheid from yet another angle” and to the recommendations concerning the analysis of data and research.

16 In conclusion, we wish to state that, although we question the wisdom of the course of action decided upon by Commissioner Malan, we remain appreciative of his contribution towards the Commission process and of the fact that he has shared a challenging mandate with the rest of us, often under trying circumstances.