TRC Final Report

Volume 1

Chapter 5

Subsection 11

Restorative justice: victims

89 One of the unique features of the Act was that it provided guiding principles on how the Commission should deal with victims. These principles constituted the essence of the Commission’s commitment to restorative justice.²⁶ The Act required that the Commission help restore the human and civil dignity of victims “by granting them an opportunity to relate their own accounts of the violations of which they are the victim”. Through the public unburdening of their grief which would have been impossible within the context of an adversarial search for objective and corroborative evidence - those who were violated received public recognition that they had been wronged.

90 Many people who witnessed the accounts of victims were confronted, for the first time, with the human face of unknown or silenced victims from the conflicts of the past. The public victim hearings vividly portrayed the fact that not only were international or domestic laws broken, not only was there a disrespect of human rights in the abstract, but the very dignity and ‘personhood’ of individual human beings were centrally violated.

91 At the same time, it must be remembered that, without the amnesty process, many victims would never have discovered what had happened to their loved ones. For many victims, therefore, the amnesty process itself played a role in the reparation and rehabilitation process. Their greater understanding of events helped restore dignity and dispel the lies they were told about ‘criminals’, ‘terrorists’ or ‘informers’. This challenges the popular perception that amnesty exists only for the sake of perpetrators.

92 The fact that the state has accepted responsibility for providing reparations to victims of gross human rights violations provides an important counterbalance to the denial of the right of victims to lay civil charges against perpetrators who were granted amnesty. At the same time, however, the limitations of both the Commission’s mandate to recommend and the state’s capacity to provide reparation measures must be recognised. The Commission itself only had the power to place before the State President and Parliament its proposals for the provision of reparations. It could not implement reparations, nor could it take the final decision as to the type of reparation measures to be implemented. This responsibility lies with government.

93 The plight of those who, through the legacy of apartheid, need assistance in the form of social spending (for housing, education, health care and so on) must also be remembered. The provision of reparations to the (relatively) few victims of gross human rights violations who appeared before the Commission cannot be allowed to prejudice apartheid’s many other victims. The need to provide reparations for the former cannot be allowed to constitute so great a drain on the national fiscus that insufficient resources remain for essential social upliftment and reconstruction programmes.

94 Beyond these considerations, it must also be acknowledged that many victims of gross human rights violations would never have had the opportunity to seek redress through civil trials, given evidentiary constraints, proscription of civil claims, lack of information about the identity of perpetrators and the costs involved in pursuing claims. Overall, victims will have received far greater benefit from the Commission’s processes than they would otherwise have done, although those few who had valid civil claims will have received less. In this sense, too, the Commission can be seen as having contributed to the promotion of restorative justice.

95 Recommendations on reparations are also wider in scope or more holistic than those customarily awarded as damages in successful civil claims. Such broad recommendations include the provision of symbolic reparations to victims, such as the continuing public, official acknowledgement through monuments, living memorials, days of remembrance and so on. In addition, as part of the Commission’s general commitment to reparations, some interim reparations were provided in the course of its work. For example, in cases where (through the amnesty process) the bodies of activists killed and secretly buried by the security forces were discovered, the Commission assisted families with official and dignified reburials. These kinds of reparations emphasise the importance of placing individual reparations within a wider social and political context.