TRC Final Report

Volume 1

Chapter 2

Subsection 8

■ THE LAW AND VIOLENCE IN SOUTH

68 Violence has been the single most determining factor in South African politicalhistory. The reference, however, is not simply to physical or overt violence - theviolence of the gun - but also to the violence of the law or what is often referredto as institutional or structural violence.

69 White dominance in South Africa in the period covered by the Commission’smandate was founded on colonial conquest, a condition consequent upon morethan 200 years of near-continuous interracial conflict which began with the firstmigration of white settlers in the mid-seventeenth century. Initial penetrationwas relatively simple as the first encounters of these new northward-movingmigrants were with nomadic pastoralists with little or no military tradition.

70 Beyond them, however, were more formidable opponents. Originally southward-moving migrants themselves, these were now independent and, in some cases, powerful nations; state systems with hierarchic authority structures and deep-rooted military traditions. Like the northward-moving migrants, they farmed land, exploited natural resources and raised stock. Conflict was inevitable and, contrary to the myth propagated by some schools of local historiography, it did not take the form a series of one-sided victories and defeats.

71 The reality is that the conquest of the South African interior was achieved only in slow stages and was interspersed with setbacks and even defeats for the white intruders. Inevitably, however, the contest between firearms and assegais could have only one ending. By the twentieth century, the backbone of armed black resistance was broken and the independence of the people surrendered or ceded to ‘protectorate status’.

72 Indigenous resistance did not, however, cease. It transformed itself into political and constitutional forms of struggle. But neither did the violence of the victors end. Subjugation by the gun gave way to legislative subjugation as one law after another sought to consolidate the gains of two centuries of overt violence. Stripped bare, the 1913 Land Act was an act of violence, a brutal separation of people from their essential means of sustenance. So too was much of the repressive legislation that followed down the years. Laws tore millions of workers from their families, forcing them to work in white areas and live in enclosed compounds to which their families had no access. Laws forced people to work for grossly insufficient remuneration and to endure the indignity of pay scales determined not by competence or experience, but by race. Laws forced people from their homes and communities and from their ancestral lands. Laws dictated with whom one might and might not have sex, marry or even drink. Laws allowed people to die rather than violate ‘whites-only’ hospital edicts, and then determined in which plot of ground they could be buried.

73 This preoccupation of the government with the law, with due constitutional process, with obtaining a legislative mandate for whatever acts (however heinous) it or its security forces committed, was frequently commented upon favourably by political analysts of the 1960s and 1970s. It was also often used to mount a defence of the system. The argument made was that it was at least a system of law, albeit bad law, and thus preferable to the military or political dictatorships to the north.

74 What these analysts failed to acknowledge was that the law was a veneer. Twentieth century law in South Africa, to paraphrase Hannah Arendt, made crime legal. Mamdani made a similar point to the Commission when he described apartheid law as “crime which was institutionalised as the law”.¹³

75 Thus, these laws arose not out of reverence for justice and due process, but out of a wish to legitimise the system. Beyond that even, the process of legitimation provided a means to self-justification for those whose task it was to pass, enforce and defend the law.

76 However, in the 1980s, when the state was in crisis, it became clear that the law had run its course; that it could no longer do the job. The law had become ineffective, an apparent obstruction to the restoration of what government leaders, seemingly oblivious to the irony, called ‘law and order’. At this stage, real rule-making power shifted from Parliament and the Cabinet to a non-elected administrative body, the State Security Council (SSC) which operated beyond public scrutiny. Nominally a sub-organ of the Cabinet, in reality the SSC eclipsed it as the key locus of power and authority in matters relating to security.

77 In his presentation to the Commission on the state’s counter-revolutionary warfare principles and strategy¹⁴, Craig Williamson provided an explanation of how this situation came about. He argued that, in the context of insurgency and counterinsurgency theory (particularly as developed by McKuen), a democratic state is often “limited by its laws, values and norms in the methods it can use to defeat an insurgent movement”. Its solution is to resort to “extra-legal counter-revolutionary acts, as long as they are done secretly”. The South African state, he argued, reached this stage in the 1980s:

The counter-insurgency elements of the police and military ... felt that a democratic state using democratic methods could never withstand a concerted Soviet-backed revolutionary effort. Their solution was to suspend democratic freedoms and to militarise South African society ...

78 The result was a:

drift ... more and more towards a militarily dominated state. This expressed itself in para-military action in support of the state, while ensuring that the state’s sponsorship thereof was kept secret ... In this context results become more important than legality. The eleventh commandment was well known, especially to those in the covert/special force elements of the security forces. This was ‘Thou shalt not be found out’

79 It was not Parliament therefore, but the State Security Council that stood at the apex of the secretive National Security Management System. Initially it targeted members of ‘terrorist’ groups operating outside of South Africa, as well as their supporters and hosts. Then, from the mid-1980s, it began focusing on its opponents inside South Africa. Of course, the word murder was never used but euphemisms like ‘eliminasie’, ‘verwyder’, ‘neutraliseer’ and ’uitwis’ are to be found in some of the SSC policy documents adopted in the 1980s.

80 To many, notably those in the leadership in the government and security forces in the 1980s, the conclusion that the state sanctioned murder may and probably will be an unpalatable assertion. It is also probably not what the Commission expected to find when it started its work two years ago. It is, however, a ‘truth’ to which it has been drawn by the evidence.

13 Commission symposium, 1997. 14 Craig Williamson, ‘Aspects of State Counter-revolutionary Warfare Principles and Strategy: Republic of South Africa in the 1980s’, submission to the Commission, 9 October 1997.

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