TRC Final Report

Volume 6

Section 4

Chapter 1

Subsection 10

RECOMMENDATIONS FOR TAKING THESE MATTERS FURTHER

99. The Commission recommends that the state implement the Commission’s recommendations regarding disappearances. The recommendations are as follows:

Recommendation 1: Establishing a special task team

100. A task team should be established within the office of the National Director of Public Prosecutions and be given a specific mandate and time frame. The mandate should include conducting further investigation into individual cases, confirming the disappearance and, where appropriate, making a finding conferring victim status on the disappeared. This will enable the families of the disappeared to access reparation. In addition to finalising findings, the task team should compile a p p ropriate recommendations to bring closure to these issues at the end of its mandate period.

101. The task team should work closely with organs of civil society currently involved in related areas of research and investigation. If based in the Office of the National Direct o r, the task team would have the authority to access the files of various state authorities – including the police, the military and the Departments of Correctional Services and Home Affairs.

1 0 2 . Such a task team would require extensive powers – including the power of subpoena and search and seizure. In addition, the task team would re quire the full co-operation of relevant state institutions in order to gain access to state archives, including those of the military and the police. It would also need to be able to access the archives of the ANC and retrieve information from the PAC.

Scope

103. While a large number of families made statements to the Commission about their loved ones, the list of persons identified as having disappeared as a result of the conflicts of the past is clearly incomplete. There are undoubtedly scores of families in similar circumstances who have not made statements to the Commission for a range of reasons. In the last three years, victims’ groups have collected a large number of statements from families whose loved ones have not returned and whom they regard as having disappeared. A decision will need to be made about whether consideration should be given to such cases. This decision needs to made in parallel with decisions about victims of other violations who did not come to the Commission.

104. A further consideration concerns the number of persons who disappeared or were displaced during the ongoing violence in KwaZulu-Natal after the end of the Commission’s mandate period. The Commission urges the state to consider these cases in order to bring closure for the families.

Invest i g a t i o n

105. The Commission experienced problems with corroboration and its investigations w e re considerably hampered by the paucity of information contained in the statements made by families to the Human Rights Violation Committee. The Commission considers, therefore, that the starting point for any task team would be to visit families and gather more information about disappearances. Where possible, photographs of the missing person should be affixed to the statement.

106. The following guidelines are offered for further investigation into disappearances in each of the categories identified earlier:

a Category A (Enforced disappearances): An investigation of category A cases should be guided by the principle that it is the obligation of perpetrating parties to account for the disappearance. It is not sufficient for such parties to claim that the missing person was released or recruited, even where release re cords are produced. In several amnesty-related cases, a number of applicants sought amnesty for the abduction and killing of unidentified victims. However, a large number of operatives involved in these abductions did not apply. The task team must make every effort to locate those operatives who have not applied and who have been identified for further investigation, followed by prosecution where necessary. The task team should also make every effort to identify those victims who were not identified by amnesty applicants. The fact that amnesty has been granted does not mean perpetrators should not be required to co-operate with the task team by pinpointing localities where persons were killed and possible grave sites where the disappeared may have been secretly buried.

b Category B (Missing in exile): Category B cases should be guided by the principle that the relevant liberation movement needs to account for its missing members. As already noted, the ANC has already made some effort in this direction. There are, however, numerous inaccuracies and inconsistencies in the various lists produced by the ANC. These lists¹⁸ must be collated and verified. Other sources of information include information submitted to the Special Pensions Board.

c Category C (Missing during periods of unrest) : As a first step, the task team should expand on the Commission’s list of incidents during periods of unrest, particularly during the various states of emergency. The list should detail key localities and time periods. Compiling such a list requires the utilisation of a range of sources – documentation produced by monitoring organisations, surviving police documentation, newspaper reports, mortuary records and so forth. People taking extended statements from families need to pay particular attention to establishing as accurate a time and locality frame as possible, as well as detailed pre-mortem information related to particular incidents.

d Category E (Cases of indeterminate cause): Here investigation and research need to be directed towards moving persons in this category into one of above three categories or into Category D (non-political/out of mandate) More detailed statements from family and associates should facilitate this process.

Findings

107. Once the task team has completed its work and compiled its report, it will need to make findings so that the families of victims can access reparation.

108. Findings need to be made for all cases solved by the task team. Findings should be made with respect to solved cases in line with the approach taken by the Commission. Once criteria are established, the task team will need to make findings for all unsolved cases.

Further action

109. Where the task team is satisfied that a person has disappeared or has died, and a finding to that effect has been made, it will need to facilitate the presumption of death. Death certificates will need to be issued and the families must be referred to the President’s Fund for reparations.