TRC Final Report

Volume 5

Chapter 3

Subsection 5

■ CHALLENGES

35 The main challenges that confronted the Committee were as follows:

36 One of the main challenges faced by the Committee was dealing with the various causes of delays in the process. Numerous difficulties are occasioned in this regard by the applications of prisoners and persons who are not legally represented. This resulted in the Committee taking various steps to ensure that the cases of such persons were properly and fully placed before the Committee. Some of the particular problems experienced were incomplete or improperly completed applications, difficulties in communicating with applicants and difficulties in investigating such cases. This meant that these cases took considerably longer to become ripe for a hearing or decision. In order to address this difficulty, the Committee has prevailed upon the Commission to ensure as far as possible that legal representation is provided to persons in these categories. This has been put into effect.

37 Considerable time is taken up by the actual hearing of applications, since it is open to affected or interested parties to participate in the proceedings to the extent of their interests therein. By the nature of things, opposed applications took much more time than other matters to complete. In many cases, interested parties and victims appeared but, rather than actively oppose the application, either kept a watching brief or abided by the proceedings. Following directions given by the Committee, it was also made possible for interested parties to submit written representations to the hearings panel or to place their views on record at the hearing through the services of the leader of evidence. The Committee has endeavoured to limit the time spent in sittings by controlling unnecessary and time- consuming cross-examination or argument, the submission of irrelevant documentation or the leading of irrelevant evidence. In appropriate cases, pre-hearing conferences are held in order to limit or properly define the issues to be decided at the hearing. This involves all the parties to the matter and is conducted by the Committee.

38 Other delays during hearings resulted from unforeseen circumstances like a lack of time to complete matters within the period for which they had been set down or the granting of postponements to parties so they could properly prepare new material or evidence or to enable them to attend the proceedings. The availability of a preferred legal representative often caused delays in finalising matters. In spite of all these circumstances, the Committee has largely succeeded in curbing any abuse of the process and streamlining the hearings with the assistance and co-operation of most parties.

39 A further cause for some concern is the inequality in legal representation afforded to various parties. This has a negative affect on victims particularly. This concerns the vexing question of severe constraints on public resources or even the lack of such resources. This affects the issue of legal representation because the Commission’s legal assistance scheme operates on a very limited budget, which prescribes tariffs for legal services very much in line with the government’s legal aid scheme. These tariffs are notoriously low compared to the fees lawyers are able to demand on the open market. The more highly skilled lawyers are thus not easily attracted to work involving such limited tariffs. Most of the victims who participate in hearings are compelled to rely on the Commission’s legal assistance scheme, since they are unable to fund legal representation from their own resources. This also applies to indigent applicants for amnesty. On the other hand, present or former state employees or members of liberation movements qualify for legal assistance by the state in terms of a special dispensation. The appearance of such persons before the Commission or its Committees is funded by the State and the State Attorney arranges their legal representation. Lawyers who appear on these instructions are allowed substantially higher tariffs than those provided for by the Commission’s legal assistance scheme. These lawyers also have better resources at their disposal to prepare for hearings and represent their clients. In many instances, senior counsel handles these cases. The inherent inequality and unfairness of this situation is self-evident. Although the Committee is grateful to the many legal representatives who have, despite these hardships, rendered a splendid service to the indigent, particularly victims, it remains disturbing to realise that there may be instances where justice was not done in respect of indigent amnesty applicants or victims at amnesty hearings.

■ CONCLUSION

40 In view of the judicial nature of the Committee’s work and the fact that its decisions are subject to judicial scrutiny, it would be inappropriate for the Committee to comment on or indulge in an analysis of its decisions on the novel and interesting legal and other questions surrounding the amnesty process or the concept of amnesty in general. A list of all amnesty applications granted to date is contained in the appendix to this chapter. The Committee’s decisions are made public. In order to avoid fragmentation, a full list of all decisions taken will accompany the report of the Committee that will be submitted upon completion of its work.