TRC Final Report

Volume 1

Chapter 4

Subsection 15

■ CLOSED LIST OF VICTIMS

133 The decision to establish a finite list of victims was taken fairly late in the process of gathering information about violations. Initially, in keeping with the spirit of inclusivity that governed the work of the Commission, it was felt that all victims of gross violations of human rights that had been shown to have taken place should be considered.

134 As the work of taking statements and investigating allegations progressed, however, it became increasingly clear that there would be no value in simply handing the governmentalist which included a broad category of unidentified persons for consideration as victims deserving of reparations.

135 After a great deal of discussion, it was acknowledged that the Commission had the capacity to corroborate only those statements that it had actually received. There was, moreover, an inherent justice in dealing with the statements of those who had taken the trouble to approach the Commission to make a statement. After all, the Commission had made considerable efforts to reach all parts of the country and to disseminate information on how to make a statement. Those who had chosen not to do so should not, therefore, be included. It was recognised, however, that some had elected not to make statements as a matter of political choice, a position that was respected.

136 Furthermore, it would have been unrealistic to give the government what would, in effect, have been an open-ended list and, on this basis, to expect the state to make a commitment to paying reparations. The Commission resolved, therefore, to confine the number of victims eligible for reparations to three areas:

a victims who personally made statements to the Commission;

b victims named in a statement made by a relative or other interested person (for example a colleague, friend or neighbour); in other words, statements made on behalf of and in the interests of specific persons.

c victims identified through the amnesty process.

■ WHO SHOULD BE HELD ACCOUNTABLE?

137 The Commission was obliged to identify all persons, authorities, institutions and organisations involved in gross violations of human rights. This meant that it had to go beyond the investigation of those that had actually committed gross violations of human rights and include those who had aided and abetted such acts. This is consistent with the definition of gross violations of human rights, which includes attempts, conspiracy, incitement, instigation, command or procurement to commit such acts.

138 The Commission based its conclusions on the evidence brought before it, firstly by people who made statements concerning gross violations of human rights, and secondly, by those who applied for amnesty. It also drew on the Investigation Unit’s inspections of inquest records, court records, prison and police registers and on corroborative evidence produced by witnesses. Research into historical documentation produced additional information, and submissions to the Commission, especially from political parties, shed further light. The effort to apportion responsibility for planning, commanding, inciting and so on is discussed in a later chapter.

139 Individual responsibility could be laid at the door of specific perpetrators of abuses only once several factors had been taken into account. These included the question of self defence, of proportionality and, in several well-known cases, the doctrine of common purpose.

Accountability: legitimate self defence

140 A recent Constitutional Court judgement states that:

Self-defence is recognised by all legal systems. Where a choice has to be made between the lives of two or more people, the life of the innocent is given preference over the life of the aggressor. To deny the innocent person the right to act in self-defence would deny to that individual his or her right to life. ²⁶

141 The right to act in self-defence means essentially that, while the use of force against another person is normally unlawful, it is justified in defence of persons, property or other legal interest against an imminent, unlawful attack, provided that the defence is directed against the attacker and is not excessive. Defence against an anticipated future attack or a completed attack is not justified. Defence cannot be a form of punishment or revenge.²⁷ This means that, in cases of legitimate self defence, the person who had no alternative but to kill or seriously injure a person posing an imminent threat to his or her life should not be held criminally responsible for his/her actions.

142 The legitimacy of self-defence is often difficult to establish. The task was even more difficult for the Commission, which had to deal with large numbers of cases in a limited period and, therefore, had limited information at its disposal on many specific cases.

143 Amongst the most difficult issues the Commission faced in this regard were cases involving SDUs and SPUs and conflicts between ANC- and IFP-aligned people in KwaZulu-Natal, where it was usually not clear who was ‘innocent’ (defending) and who was ‘guilty’ (attacking).