TRC Final Report

Volume 6

Section 1

Chapter 4

Subsection 2

Events leading up to the ANC’s legal challenge

12. On 24 August 1998, the Commission served notice on the ANC (in terms of section 30(2) of the Act) that it intended to make certain findings against the ANC that would be to the latter’s detriment. The notice invited the ANC to respond either by leading evidence before the Commission at a hearing or furnishing submissions within fifteen days of the date of the notice. This meant that the ANC was obliged (in terms of the provisions of the Act) to respond to the notice by no later than 8 September 1998 if it elected to make further submissions or bring further evidence.

13. The ANC failed to respond within the time limit stipulated. Instead, it entered into a series of correspondences with the Commission, seeking an extension of the deadline and requesting an audience with the Commission to discuss the findings the Commission intended to make against it.

14. In this context, it needs to be clearly understood that the Commission was required to set certain absolute deadlines for the receipt of information in order to finalise the editing, printing and publishing of the Final Report by the already determined handover date of 29 October 1998. Yet, despite various extensions acceded to by the Commission, no written submissions were forthcoming fro m the ANC. The Commission also explained in detail to the ANC why it could not grant the requested audience and, on 2 October 1998, informed the General Secretary that 5 October 1998 would be the last date on which the Commission would be able to consider any submissions.

15. On 19 October 1998, the ANC made its submission to the Commission. On 26 October 1998, the Commission informed the ANC that the submission had arrived too late to be considered but that, nevertheless, some but not all the Commissioners had been given access to the submission and that much of the factual content referred to in the objections had been rectified during the editing process. The ANC was also assured that its position as a liberation movement had been contextualised in the chapter on ‘The Mandate’ and that the findings of the Commission were based on a careful analysis of the evidence placed before it.

16. The ANC expressed its dissatisfaction with the Commission’s response and demanded an assurance from all the Commissioners that they had properly considered all the issues and matters raised in the written submissions of 19 October 1998. The Commission responded on the same day, reiterating its earlier position and indicating that there was nothing more that could be done. The ANC responded with its legal challenge.

The court finding

17. In a judgment by Mr Justice J Hlope, the court dismissed the ANC’s application with costs. In summary, the court found that the onus was on the ANC to establish the existence of a clear right (or a right clearly established in its favour) for the granting of an interdict to prevent the publication of the Commission’s findings against the ANC. The court found that the Commission was entitled (in terms of section 30(1) of the Act) to adopt a procedure for the purposes of implementing the provisions of section 30(2) (the notice provisions). The procedure was to invite submissions in writing before it made findings to a person’s detriment or to receive evidence at a hearing of the Commission, as the case might be.

18. The court found that there had been no objection by the ANC to the fifteen-day notice period. This was substantially in accordance with the ruling in the case of Niewoudt v Truth and Reconciliation Commission 1997 (2) SA 70 SECLD at 75 H-I. The ANC had not argued that this time period was unreasonably short, nor had it elected to testify at a further hearing of the Commission.

19. The ANC was, as a result, lawfully obliged to respond to the section 30(2) notice by no later than 8 September 1998 and, in the circumstances, had no right to insist on a further extension of time. Any extension of time granted by the Commission would be the result of largesse rather than legal obligation.

20. The Commission had clearly impressed on the ANC that it should make its submissions by 5 October 1998, given the Commission’s responsibility to finalise the report for handover to the President. Because the ANC submission tendered on 19 October 1998 was extensive and contained serious allegations regarding the Commission’s competence, integrity and bona fides, it was unreasonable to have expected it to convene as a body between 19 and 29 October 1998 to discuss and deliberate on submissions delivered so late in the day.

21. The court found that the ANC had failed to prove that the Commission had either condoned the late filing of the submission (in terms of section 30(2) of the Act) or that the ANC had a legitimate expectation of having the submission c o n side red by the Commission, given the fact that the Commission had set 5 October 1998 as a final date for submission in extension of the original date of 8 September 1998, when the submission had been lawfully due.