TRC Final Report

Volume 1

Chapter 4

Subsection 13

119 By applying the above criteria, the following acts were regarded as constituting severe ill treatment:

a rape and punitive solitary confinement;

b sexual assault, abuse or harassment;

c physical beating resulting in serious injuries;

d people shot and injured during demonstrations;

e burnings (including those caused by fire, petrol, chemicals, and hot liquid);

f injury by poison, drugs or other chemicals;

g mutilation (including amputation of body parts, breaking of bones, pulling out of nails, hair, or teeth or scalping);

h detention without charge or trial;

i banning or banishment (a punishment inflicted without due process, consisting (a) of the restriction of a person by house arrest, prohibition from being in a group, prohibition from speaking in public or being quoted, or (b) of the enforced transfer of a person from one area to another without the right to leave it);

j deliberate withholding of food and water to someone in custody with deliberate disregard to the victim’s health or well-being;

k deliberate failure to provide medical attention to ill or injured persons in custody; the destruction of a person’s house through arson or other attacks which made it impossible for the person to live there again.

120 This list is illustrative and not exhaustive. It consists primarily of acts that have been generally recognised as prohibited under international law. While the above acts and omissions would normally qualify as severe ill treatment, individual cases may not, in fact, have met all the criteria of the definition above and thus may not have qualified as severe ill treatment.

■ POLITICAL CONTEXT AND MOTIVATION

121 To implement its mandate, the Commission had, furthermore, to determine the ‘political motive’ of the acts of torture, abduction, killing and severe ill treatment which “emanated from the conflicts of the past” (section 1(1)(x), the Act). Given the complexity of the conflicts that occurred in the past and the fact that the enforcement of apartheid legislation affected every sphere of society, the political nature of specific acts was hard to define.

122 In interpreting this part of the definition of gross human rights violations, the Commission was guided by the definition of an “act associated with a political objective” (section 20(2) and (3)). However, it also went further and employed the less restrictive notion of ‘political motive’ (section 1(1)(x)).

123 The framework applied in implementing the political requirement was that a violation of human rights within the prescribed period was found to constitute a gross violation of human rights if it was advised, planned, directed, commanded, ordered or committed by:

a any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of that organisation or movement, in furtherance of a political struggle waged by that organisation or movement (section 20(2)(a)). This included not only membership of or support for political organisations like the PAC or the ANC, but also membership of youth and community-based organisations. Trade unions were also included in this description (given the suppression of purely political organisations and the resultant political role that unions played), as was general resistance to the previous state through, for example, rent boycotts.

b any employee of the state (or any former state) or any member of the security forces of the state (or any former state) in the course and scope of his or her duties and directed against a publicly known political organisation or liberation movement engaged in a political struggle against the state (or former state) or against any members or supporters of such organisation or movement or any person in furtherance of a political struggle. The act in question must have been committed with the objective of countering or otherwise resisting the said struggle (section 20(2)(b)).

124 Whether these violations “emanated from the conflicts of the past” was decided with reference to the following criteria:

a the context in which the violation took place, and in particular whether it occurred in the course of or as part of a political uprising, disturbance or event, or in reaction thereto (section 20(3)(b)), for example, protests, ‘stay aways’, strikes and demonstrations;

b the objective being pursued, and in particular whether the conduct was primarily directed at a political opponent or state property or personnel or against private property or individuals (section 20(3)(d));

c whether it was the result of deliberate planning on the part of the state (or former state) or any of its organs, or on the part of any political organisation, liberation movement or other group or individual (section 4(a)(iv)).

125 In a number of cases that came before the Commission, it was difficult to apply this framework. These included cases of the following types: