TRC Final Report

Volume 1

Chapter 7

Subsection 6

Implications for the work of the Commission

50 Following the court ruling, the Commission adopted the procedure of sending section 30(2) notices to alleged perpetrators twenty-one clear calendar days in advance of the hearings. Notices were accompanied by all documentation necessary to provide the alleged perpetrator with sufficient detail of the substance of the allegations against him or her. The procedures applied to notices for human rights violations hearings, section 29 investigative hearings and amnesty hearings.

51 The Commission expressed concern about the impact of the court ruling on public opinion, feeling that the Commission was coming to be seen as too ‘perpetratorfriendly’. There were also concerns that the environment of the hearings would become too legalistic and formal, hampering the already painful and emotional process of giving public testimony and risking secondary trauma. Indeed, at the hearing where the Mthimkulu family was due to testify on the death of Siphiwe Mthimkulu, the audience became visibly upset when it was informed that the Commission could not permit members of the family to testify as the applicants had interdicted them from giving evidence.

52 The judgement raised further questions about the rights of victims: namely their right to legal representation and cross-examination of perpetrators.

53 The judgement imposed an administrative and logistic burden on the Commission, requiring it to employ further staff and allocate further resources to identify and trace implicated persons. In many instances, the alleged perpetrators were no longer in the same employment as previously and their addresses were not easily available.

54 In addition, the Commission had to contend with perpetrators demanding to be heard at the same hearings as victims and requesting that they be allowed to cross-examine witnesses. This had a traumatising effect on many victims who had finally found the courage to testify.

Impact on the report

55 However, once the public hearings had been completed, the full impact of the judgement became clear. Where the Commission contemplated making a finding against a person to their detriment in the report, the person would need to be notified of the decision contemplated as well as afforded the opportunity to make written representations to the Commission.

56 This meant that the Commission had to trace the alleged perpetrator and furnish him or her with the contemplated decision together with the supporting documentation. In essence, the Commission found itself in a position in which it was obliged to give alleged perpetrators a prior view of its report - a highly unusual circumstance for a report on a commission of enquiry.

57 The Commission also received correspondence from lawyers seeking to prevent publication of their clients’ names in the report.

58 Despite these concerns, the Commission complied with the ruling of the Appellate Division to the best of its ability.