TRC Final Report

Volume 1

Chapter 7

Subsection 3

■ APPLICATION OF THE PROVISION OF SECTION 30

21 From the inception of its work, the Commission sought to interpret the provisions of section 30. Section 30 reads as follows:

Procedure to be followed at investigations and hearings of Commission, committees and subcommittees

(1) The Commission and any committee or subcommittee shall in any investigation or hearing follow the prescribed procedure or, if no procedure has been prescribed, the procedure determined by the Commission, or, in the absence of such a determination, in the case of a committee or subcommittee, as the case may be.

(2) If during any investigation by or any hearing before the Commission -

(a) any person is implicated in a manner which may be to his detriment;

(b) the Commission contemplates making a decision which may be to the detriment of a person who has been so implicated;

c) it appears that any person may have suffered harm as a result of a gross violation of human rights, the Commission shall, if such person is available, afford him or her an opportunity to submit representations to the Commission within a specified time with regard to the matter under consideration or to give evidence at a hearing of the Commission.

22 The Commission took statements from witnesses (potential victims) about gross human rights violations. In the event that a statement contained allegations implicating persons to their detriment, the Act envisaged that the Commission should give the implicated person an opportunity to address it on the issue, either in writing or orally.

23 In particular, where a witness was to testify at a pubic hearing and an alleged perpetrator was to be implicated, the Commission was required to inform the alleged perpetrator, in writing, of the substance of the allegations against him or her. In these circumstances too, the Commission was required to give the alleged perpetrator an opportunity to make representations to it either in writing or orally.

24 In endeavouring to ensure compliance with its legal obligations in terms of the Act, the Commission ran into problems with its East London office. The result was a series of actions and counter actions concerning a number of crucial questions:

a Could alleged perpetrators be named publicly without having been given proper and/or sufficient notice?

b Could alleged perpetrators appear and make oral representations at the hearing at which a witness was testifying?

c Was an alleged perpetrator entitled to all the documentation pertaining to him or herself, including the witness’s statement?

d Was an alleged perpetrator entitled to cross-examine the witness?

25 One of the first cases in this respect was that of Brigadier Du Preez and Major General Van Rensburg who sought to prevent the mother of Mr Siphiwe Mthimkulu from testifying about them.