TRC Final Report

Volume 5

Chapter 6

Subsection 1

11 The facts pertaining to the PW Botha case and his conviction are well known and require little comment. The irony in the fact that the man who took the state into the realms of criminality should have himself chosen to incur a criminal record at the hands of its democratic successor has not been lost on the Commission.

12 Much was made by Mr Botha’s defence team of his willingness to co-operate with the Commission by way of written responses to questions. Despite this, it took ten months for his state-sponsored legal team to supply these answers, reflecting a disdain for the Commission and its work. Furthermore, although Mr Botha’s answers were comprehensive and, at points, informative as to detail, they failed to engage frankly with the issues that had been raised.

13 Former generals of the SAP, under the banner of an organisation called the Foundation of Equality before the Law, submitted a lengthy submission to the Commission. While the submission provided extensive details about the atrocities allegedly committed by forces opposing the state, it did not even attempt to deal with those committed by the former SAP. It was left to scores of amnesty applicants to provide the details so clearly absent in the generals’ submission.

14 The first submission by the SADF was so insubstantial that the Commission asked for a second, more comprehensive, submission. This too, however, reflected the enormous – perhaps unbridgeable – chasm between the perspectives of those who wielded power in the apartheid era and those who suffered at their hands. Nowhere was this more clearly illustrated than in the opening remarks of General Viljoen’s submission on behalf of the SADF at the Commission’s armed forces hearing:

The former SADF was politically neutral whilst your Commission is highly politicised … The governing party of the former government did not demonstrate interest in the former SADF. You really erred in your assumption, and the expectations you created in public, that the SADF was guilty of gross violation of human rights on a substantial scale.

15 In the light of the Commission’s findings that the security forces, including the SADF, were responsible for the commission of gross violations of human rights on a massive scale, this statement seemed to the Commission to epitomise the overarching sense of denial which seems to have enveloped so many of those who were the leaders and beneficiaries of the former state.

16 In late 1996, a set of questions was submitted to the SADF. Only after considerable prodding did it respond – and then only in piecemeal fashion over a period of months. While some of the data relating to structural and organisational detail was useful, it demonstrated a studied determination to oppose the Commission’s efforts to prise open the lid on the SADF’s past.

17 The appearance of the African National Congress (ANC) national leadership before the Commission was marked by the fact that, in contrast to the National Party, it took collective responsibility for the human rights violations of its membership and dealt frankly with the Commission’s questions. The ANC also made the reports of the various enquiries conducted into its alleged excesses at Quatro and elsewhere freely available to the Commission.

18 This spirit of openness was not, however, always translated into participation by other echelons, and frequently membership, of the ANC. The Commission received few statements from ANC leaders, past or present. Almost none of the ANC’s senior leaders in exile came to the Commission to give first-hand details of what had led them into exile or of their experiences at the hands of cross-border intruders. No one who survived the raids at Matola, Maseru or Gaberone, or individual assassination attempts, made submissions on these experiences. Few Umkhonto weSizwe (MK) cadres or underground activists, aside from those who applied for amnesty, made statements to the Commission.

19 Thus, while the Commission tapped a rich seam of experience from rank and file supporters of the ANC, its knowledge of those who led and those who worked in its structures for lengthy periods of time is largely non-existent. This has severely constrained the Commission’s capacity to provide the “full and complete” picture that the Act demands. Particularly regrettable was the non-appearance of those who are the remaining repositories of important historic details about the 1960s, on which very few submissions were made to the Commission. The Commission accepts that its framework may have been problematic to some. Many refused to regard themselves as victims. The consequence is, however, that the historical record of violations in this country and outside it has suffered grievous omissions, particularly in regard to the 1960s and, more broadly, in relation to torture.

20 One ANC member who did experience a close encounter with the Commission did not do so voluntarily. Ms Winnie Madikizela-Mandela’s contempt not only for the Commission but for the notion of accountability was palpable to the millions who followed the hearing in which she appeared.

21 The Commission’s experience of the ANC’s major internal ally, the United Democratic Front (UDF) , was also unsatisfactory. The Commission erred in that it did not identify early enough the importance of soliciting a formal and separate submission from this grouping, which largely permitted the ANC to speak for it. The Commission’s attempts to rectify this error were extremely frustrating, not least because the UDF was no longer in existence and its former leadership no longer constituted a coherent working body. Scarcely any former UDF regional or local leadership figures gave statements to the Commission. In some areas they were openly cynical. The UDF played a central role for a significant part of the 1980s, the period which saw a considerable intensification of conflict and abuses. Thus again, an important and crucial input has been denied to the Commission.

22 The Inkatha Freedom Party (IFP) made no pretence of co-operating with the Commission. Its submission to the Commission consisted largely of a lengthy exposition of how the president of the IFP had been ‘vilified’ by his political enemies over the years. It also included a list of IFP office-bearers who had allegedly been killed by UDF/ANC members over the past fifteen years. It contained a muted apology, in little more than a sentence, for any hurt that Inkatha members may have caused others in the political conflict. Considering the overwhelming evidence that Inkatha/the IFP was the primary non-state perpetrator, and that it was responsible for approximately 33 per cent of all the violations reported to the Commission, its submission was singularly unforthcoming, evasive and defensive.

23 The IFP’s very public opposition had the effect of dissuading thousands of ordinary IFP supporters from coming forward to the Commission. This had a number of consequences for the Commission and for the IFP. From the Commission’s point of view, the consequence was that it received few first-hand accounts of violations committed against the IFP to draw on in the preparation of its report. It was thus forced to resort to secondary sources in an attempt to produce a balanced report on the virtual civil war that has raged in KwaZulu-Natal for many years.

24 The repercussions of the IFP’s opposition to the Commission are even more serious for its own members. If and when financial reparation is made available by the government to those that the Commission has found to be victims of human rights violations, only those very few IFP members who flouted their party’s opposition and made statements to the Commission will qualify. This may well exacerbate existing tensions between IFP and ANC members in the region and, ironically, contribute to more bloodshed and violence.

25 The Commission was further disturbed by the fact that high-ranking office-bearers of the IFP visited the party’s members in prison to persuade them not to apply for amnesty, for fear that their applications would reveal collusion by senior IFP leaders in gross violations of human rights. The Commission finds it difficult to accept that the IFP appeared willing to allow certain of its members to remain in prison in order to protect the leadership.

26 Although refusing to participate in the process, the IFP nonetheless complained that the Commission appeared not to take seriously its claim that 400 of its office-bearers had been killed in the violence of recent years. In fact, the investigation into this list was one of the most intensive of the many investigations undertaken by the Commission.

27 Before leaving this question, the Commission wishes to put on record its disappointment at the flimsiness and lack of coherence displayed by the leadership of the Pan Africanist Congress (PAC) when it appeared before the Commission. The PAC’s interaction with the Commission was characterised by, on the one hand, repudiation of the Commission and, on the other, its complaint that its members’ amnesty applications were not being dealt with speedily enough.

28 The Commission also received submissions from organisations representing various sectors of civil society, such as media, health, business and the judiciary. While these varied in their openness and frankness, they were generally characterised by defensiveness and a failure to come to terms with the role these sectors had played in supporting the status quo, whether by commission or omission.

29 As regards the Commission’s hearings on the legal system, it must be noted with great regret that judges refused to appear before the Commission on the basis that this would negatively affect their independence and would harm the institution of the judiciary. The Commission fails to understand how their appearance would have undermined such independence. The Commission was a unique occurrence and therefore unlikely to create a precedent. Furthermore, when one considers the historic significance of the Commission and its envisaged role in the transformation of South African society into a caring, humane and just one, the judges’ decision is all the more lamentable. In effect, the Commission was denied the opportunity to engage in debate with judges on how the administration of justice could adapt to fulfil the tasks demanded of it in the new legal system. The intention was not to dictate or bind them in the future, but to underline the urgent need to re-evaluate the nature of the judiciary.

30 Similarly, few magistrates responded to the Commission’s invitation. The Commission found this stance deplorable given the previous lack of formal independence of magistrates and their dismal record as servants of the apartheid state. Both they and the country lost an opportunity to examine their role in the transition from oppression to democracy.