TRC Final Report

Volume 6

Section 4

Chapter 1

Subsection 9

PROBLEMS OF CORROBORATION

87. The Commission received more than 22 000 HRV statements. Most statements contained information relating to multiple victims, requiring the Commission to verify more than 40 000 individual cases. Most statements also referred to more than one violation, thus significantly increasing the number of violations to be corroborated. Although it was impossible for the Commission to investigate each individual case, it was obliged to make victim findings, the effect of which was to make victims and their families eligible for reparation. As a result, the Commission adopted a policy of low-level corroboration when determining whether or not a person was a victim of a gross violation of human rights. In essence, this meant that instead of a full investigation, a series of corroborative ‘pointers’ would be established – for example the retrieval of a confirmatory press report, or an entry in an SAP occurrence book or a hospital file.

88. In retrospect, this approach was not useful when dealing with disappearances. In such cases, corroborators generally resorted to fairly routine procedures: a letter requesting information would be sent to the relevant SAP office or, in cases of a person missing in exile, to the ANC Missing Persons’ Desk at Shell House. In many instances, these requests received no response and the matter could not be taken much further.

89. Where a disappearance was potentially associated with political unrest, the corroborator would note this. In a few cases it was possible to identify actual incidents and, more importantly, deaths. More often, a general pattern would be observed. For example, when Katlehong was the scene of conflict between the ANC and IFP, a number of people were killed. It is thus probable that the missing person was a victim of this conflict, although there was insufficient information to confirm this as fact.

90. In most disappearance cases, family members were not able to give the Commission a great deal of detail or information, making corroboration extremely difficult. This added to problems in tracing a missing person or establishing the facts surrounding a disappearance .

91. In some instances, poor statement-taking also impacted on the corroboration process: basic information such as the personal details of the victim and the circumstances of the disappearance were not always recorded correctly. The Commission was sometimes able to take a second statement or to obtain a photograph. Where this proved impossible, it was difficult and often impossible to make any progress. These incidents also require further investigation.

VICTIM FINDINGS

92. Disappearance cases presented the Commission with a real challenge. Even where most factors pointed to the probability of the disappeared being dead, it was not possible for the Commission to make a finding to this effect in the absence of conclusive proof. Were such a finding to be made, the file would have to be closed, ending the hope of any further investigation into the matter.

93. Although the inability of the Commission to make a finding obviously impacts on the family’s immediate ability to access reparation, this should not prevent them from applying to the President’s fund for reparation once the disappearance is resolved.

94. The Commission has always taken the view that unsolved disappearance cases should be further investigated by the National Prosecuting Authority. This unfinished business remains the responsibility of the state. The Commission’s fuller report and the special database dealing with disappearances will be handed to the Ministry of Justice and the National Director of Prosecutions, with clear recommendations for further investigation in order to bring finality to these matters.

RECOMMENDATIONS

95. The Commission tried as best it could to carry out its mandate to ‘compile of list of the disappeared and those abducted and establish their fate and whereabouts’. It did manage to act as catalyst by bringing disappearance cases to the fore. It also resolved a large number of cases, enabling a number of families to gain a measure of closure. However, despite every attempt by the Commission to complete its work, a number of cases remain unresolved.

96. The resolution of these disappearance cases is perhaps the most significant piece of unfinished business for the Commission. The Commission is therefore of the view that these cases should not simply be abandoned, but that further mechanisms should be put in place to finalise them.

97. After the closure of the Commission, the responsibility for this work passes to the state. This is in line with international humanitarian and human rights law, which obliges governments and other parties to a conflict to determine the fate of the disappeared .^{1 6}

98. The United Nations has condemned disappearances as a grave violation of human rights and has stated that their systematic practice is ‘a crime against humanity’. In 1998, the Working Group on Involuntary or Enforced Disappearances issued a General Comment to Article 19 of the 1992 Declaration on the Protection of All Persons from Enforced Disappearance.¹⁷ The Declaration imposes a primary duty to establish the fate and whereabouts of disappeared persons, itself an important remedy for victims. Article 19 complements this duty. It provides as follows:

The victims of acts of enforced disappearances and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of a victim as a result of an act of enforced disappearance, their dependants shall also be entitled to compensation.