TRC Final Report

Volume 6

Section 2

Chapter 2

Subsection 1

Volume SIX Section TWO Chapter T W O

The Case for Reparation and Rehabilitation: Domestic and International Law

1. In its broadest sense, the mandate of the Reparation and Rehabilitation Committee (RRC) was to affirm, acknowledge and consider the impact and consequences of gross violations of human rights⁹ on victims, and to make recommendations accordingly. In doing so, the RRC had access to a rich source of information about reparations, drawn from domestic and international law and opinion.

DOMESTIC LAW AND DEMOCRATIC ACCOUNTABILITY

Domestic Law

2. The obligation to institute reparations is enshrined in South African law itself.

3. The Constitution of the Republic of South Africa Act No. 200 of 1993¹⁰ (the Interim Constitution) recognised the principle that the conflicts of the past had caused immeasurable injury and suffering to the people of South Africa and that, because of the country’s legacy of hatred, fear, guilt and revenge: ‘there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation’.^{1 1} This view was given concrete expression in the Promotion of National Unity and Reconciliation Act No. 34 of 1995 (the Act), which mandated the Commission to develop measure s for the provision of reparation to those found to have been victims of gross violations of human rights.

4. Through the Act and in unambiguous language, the legislature made clear its intention that ‘reparations’ of some kind or form should be awarded to victims.

This reaffirms the belief that the Act created rights in favour of victims. For example:

[T]he Commission shall – …

(f ) make recommendations to the President with regard to –

(i ) 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 [section 4];

Any person who is of the opinion that he or she has suffered harm as a result of a gross violation of human rights may apply to the Committee for reparation in the prescribed form … [section 26(1)].

The recommendations referred to in section 4(f)(i) shall be considered by the P resident with a view to making recommendations to Parliament and making regulations [section 27(1)].

5. Entitlement to reparation therefore arises from the provisions of the Act itself. The only qualification is that the recipient must be a victim of a gross violation of human rights as defined in section 1 of the Act,^{1 2} and as further elaborated in subsequent promulgated regulation s .

Legitimate expectation

6. The general statutory obligations imposed upon the Truth and Reconciliation Commission (the Commission) created a legitimate expectation on the part of victims of gross violations of human rights that the Commission would fulfil this part of its mandate. This legitimate expectation gave rise to legally enforceable rights in terms of section 26 of the Act. According to this section, persons are entitled to apply for reparations by virtue of having been referred as a victim to the RRC either by the Amnesty Committee^{1 3} (the Committee) or the Human Rights Violations Committee¹⁴ (HRVC) .

7. The principle of legitimate expectation has been accepted in our law^{1 5} and has since been enshrined in the South African Constitution. Victims, there fore, have a legitimate expectation that they are entitled to reparations once the RRC has considered their applications for reparation and referred them to the President’s Fund and/or relevant government department in the proper manner.