TRC Final Report

Volume 5

Chapter 5

Volume FIVE Chapter FIVE

Reparation andRehabilitation Policy

■ INTRODUCTION

1 During the period under review, the majority of South Africans were denied their fundamental rights, including the right to vote and the right to access to appropriate education, adequate housing, accessible health care and proper sanitation. Those who opposed apartheid were subjected to various forms of repression. Many organisations and individuals in opposition to the former state were banned and banished, protest marches were dispersed, freedom of speech was curtailed, and thousands were detained and imprisoned. This gave rise to tremendous frustration and anger amongst the disenfranchised. Soon, each act of repression by the state gave rise to a reciprocal act of resistance. The South African conflict spiralled out of control, resulting in horrific acts of violence and human rights abuses on all sides of the conflict. No section of society escaped these acts and abuses.

■ WHY REPARATION?

2 Victims of human rights abuses have suffered a multiplicity of losses and therefore have the right to reparation. Without adequate reparation and rehabilitation measures, there can be no healing or reconciliation.

3 In addition, in the context of the South African Truth and Reconciliation Commission, reparation is essential to counterbalance amnesty. The granting of amnesty denies victims the right to institute civil claims against perpetrators. The government should thus accept responsibility for reparation.

The legal basis for reparation

4 The Promotion of National Unity and Reconciliation Act (the Act) mandates the Reparation and Rehabilitation Committee of the Commission to provide, amongst other things, measures to be taken in order to grant reparation to victims of gross human rights violations (see below).

5 The legal authority for reparation is further entrenched in domestic law by the judgement in the case of the AZAPO and Others v The President of the Republic of South Africa and Others (1996(8) BCLR 1015 (CC), in which the applicants sought an order declaring section 20(7) of the Act unconstitutional. Section 20(7) states that a person who has been granted amnesty shall not be criminally or civilly liable in respect of that act. The court held that section 20(7) is not unconstitutional. In arriving at such decision Didcott J held at paragraph 62:

Reparation is usually payable by states, and there is no reason to doubt that the postscript envisages our own state shouldering the national responsibility for those. It therefore does not contemplate that the state will go Scot-free. On the contrary, I believe an actual commitment on the point is implicit in its terms, a commitment in principle to the assumption by the state of the burden.

6 He stated further at paragraph 65:

The Statute does not, it is true, grant any legally enforceable rights in lieu of those lost by claimants whom the amnesties hit. It nevertheless offers some quid pro quo for the loss and establishes the machinery for determining such alternative redress. I cannot see what else it might have achieved immediately once, in the light of the painful choices described by Mohammed DP and in the exercise of the legislative judgement brought to bear on them, the basic decision had been taken to substitute the indeterminate prospect of reparations for the concrete reality of legal claims wherever those were enjoyed. For nothing more definite, detailed and efficacious could feasibly have been promised at that stage, and with no prior investigations, recommendations and decisions of the very sort for which provision is now made.

Review of the Act

7 The Preamble to the Act, stipulates that one of the objectives of the Commission is to provide for:

the taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and civil dignity, of victims of violations of human rights.

8 Pursuant thereto, section 4(f) states that one of the functions of the Commission shall be to make recommendations to the President with regard to:

the policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims; measures which should be taken to grant Urgent Interim Reparation to victims.

9 Furthermore, section 25(b)(i) stipulates that the Reparation and Rehabilitation Committee may:

make recommendations which may include urgent interim measures as contemplated in section 4(f)(ii), as to appropriate measures of reparation to victims.

10 In terms of section 42, the State President, in consultation with the Ministers of Justice and Finance, will establish a President’s Fund. All money payable to victims in terms of regulations promulgated by the President shall be disbursed from this fund.