TRC Final Report

Volume 1

Chapter 1

Subsection 2

■ TRANSITIONAL OPTIONS

20 We could not make the journey from a past marked by conflict, injustice, oppression,and exploitation to a new and democratic dispensation characterised by a cultureof respect for human rights without coming face to face with our recent history.No one has disputed that. The differences of opinion have been about how weshould deal with that past; how we should go about coming to terms with it.21 There were those who believed that we should follow the post World War IIexample of putting those guilty of gross violations of human rights on trial asthe allies did at Nuremberg. In South Africa, where we had a military stalemate,that was clearly an impossible option. Neither side in the struggle (the state northe liberation movements) had defeated the other and hence nobody was in aposition to enforce so-called victor’s justice.

22 However, there were even more compelling reasons for avoiding the Nurembergoption. There is no doubt that members of the security establishment would havescuppered the negotiated settlement had they thought they were going to runthe gauntlet of trials for their involvement in past violations. It is certain that wewould not, in such circumstances, have experienced a reasonably peacefultransition from repression to democracy. We need to bear this in mind when wecriticise the amnesty provisions in the Commission’s founding Act. We have theluxury of being able to complain because we are now reaping the benefits of astable and democratic dispensation. Had the miracle of the negotiated settlementnot occurred, we would have been overwhelmed by the bloodbath that virtuallyeveryone predicted as the inevitable ending for South Africa.

23 Another reason why Nuremberg was not a viable option was because our countrysimply could not afford the resources in time, money and personnel that wewould have had to invest in such an operation. Judging from what happened inthe De Kock and so-called Malan trials, the route of trials would have stretchedan already hard-pressed judicial system beyond reasonable limits. It would alsohave been counterproductive to devote years to hearing about events that, by theirnature, arouse very strong feelings. It would have rocked the boat massively andfor too long.

24 The Malan trials and the Goniwe inquest have also shown us that, because such legal proceedings rely on proof beyond reasonable doubt, the criminal justice system is not the best way to arrive at the truth. There is no incentive for perpetrators to tell the truth and often the court must decide between the word of one victim against the evidence of many perpetrators. Such legal proceedings are also harrowing experiences for victims, who are invariably put through extensive cross-examination.

25 In his judgement in the case brought by AZAPO and others against the Truth and Reconciliation Commission, Judge Mahomed, then Deputy President of the Constitutional Court and now our Chief Justice, quoted Judge Marvin Frankel. In his book, Out of the Shadows of the Night: The Struggle for International Human Rights, Judge Frankel wrote:

The call to punish human rights criminals can present complex and agonising problems that have no single or simple solution. While the debate over the Nuremberg trials still goes on, that episode - trials of war criminals of a defeated nation - was simplicity itself as compared to the subtle and dangerous issues that can divide a country when it undertakes to punish its own violators. A nation divided during a repressive regime does not emerge suddenly united when the time of repression has passed. The human rights criminals are fellow citizens, living alongside everyone else, and they may be very powerful and dangerous. If the army and police have been the agencies of terror, the soldiers and the cops aren’t going to turn overnight into paragons of respect for human rights. Their numbers and their expert management of deadly weapons remain significant facts of life.... The soldiers and police may be biding their time, waiting and conspiring to return to power. They may be seeking to keep or win sympathisers in the population at large. If they are treated too harshly or if the net of punishment is cast too widely - there may be a backlash that plays into their hands. But their victims cannot simply forgive and forget. These problems are not abstract generalities. They describe tough realities in more than a dozen countries. If, as we hope, more nations are freed from regimes of terror, similar problems will continue to arise. Since the situations vary, the nature of the problems varies from place to place.

26 There were others who urged that the past should be forgotten - glibly declaring that we should ‘let bygones be bygones’. This option was rightly rejected because such amnesia would have resulted in further victimisation of victims by denying their awful experiences. In Ariel Dorfmann’s play, Death and the Maiden, a woman ties up the man who has injured her. She is ready to kill him when he repeats his lie that he did not rape or torture her. It is only when he admits his violations that she lets him go. His admission restores her dignity and her identity. Her experience is confirmed as real and not illusory and her sense of self is affirmed.

27 The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one. “Those who forget the past are doomed to repeat it” are the words emblazoned at the entrance to the museum in the former concentration camp of Dachau. They are words we would do well to keep ever in mind. However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

28 In our case, dealing with the past means knowing what happened. Who ordered that this person should be killed? Why did this gross violation of human rights take place? We also need to know about the past so that we can renew our resolve and commitment that never again will such violations take place. We need to know about the past in order to establish a culture of respect for human rights. It is only by accounting for the past that we can become accountable for the future.

29 For all these reasons, our nation, through those who negotiated the transition from apartheid to democracy, chose the option of individual and not blanket amnesty. And we believe that this individual amnesty has demonstrated its value. One of the criteria to be satisfied before amnesty could be granted was full disclosure of the truth. Freedom was granted in exchange for truth. We have, through these means, been able to uncover much of what happened in the past. We know now what happened to Steve Biko, to the PEBCO Three, to the Cradock Four. We now know who ordered the Church Street bomb attack and who was responsible for the St James’ Church massacre. We have been able to exhume the remains of about fifty activists who were abducted, killed and buried secretly.

30 I recall so vividly how at one of our hearings a mother cried out plaintively, “Please can’t you bring back even just a bone of my child so that I can bury him.” This is something we have been able to do for some families and thereby enabled them to experience closure.

31 The lies and deception that were at the heart of apartheid - which were indeed its very essence - were frequently laid bare. We know now who bombed Khotso House. We can recall how Mr Adriaan Vlok, a former Minister of Law and Order, lied publicly and brazenly about this; how he unashamedly caused Shirley Gunn to be detained with her infant son as the one responsible for this act. It must be said to his credit that Mr Vlok apologised handsomely to Ms Gunn during his amnesty application.

32 Thus, we have trodden the path urged on our people by the preamble to our founding Act, which called on “the need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimisation.”