TRC Final Report

Volume 5

Chapter 1

Subsection 3

The bomb scare

25 The first human rights violations hearing took place in a context that was very antagonistic to the work of the Commission with threats coming, presumably, from the right-wing sector. There was a determined effort to silence the voices of the victims and to stop the Commission from exposing the atrocities that had taken place in the past. It came as no surprise at all when a telephone call from the local police reported that they had been telephoned to warn of a bomb in the East London City Hall which could explode at any time. The consideration of the safety of the public and the victims’ families in particular weighed heavily on the Commission, and the deliberations were adjourned as police came in with sniffer-dogs to inspect the hall. There was no bomb. This experience reinforced the Commission’s concern that stringent security measures needed to be maintained.

Notice to alleged perpetrators

26 Any alleged perpetrator named in a statement had to be given due notice that he/she was thus implicated and given an opportunity to respond. This led to one of the legal challenges to the Commission.

Legal challenge to the public hearing

27 The first legal challenge to the Commission confronted it on the first day of the first public hearing in East London. The lawyers representing Mr Gideon Nieuwoudt et al demanded that the Commission must not hear the testimony of Mr and Ms Mthimkulu about the death of their son, Siphiwe Mthimkulu, a prominent student leader who was detained and tortured several times, allegedly poisoned with thallium and who disappeared in 1982. The lawyers claimed that Mr Nieuwoudt had the right to be represented in a hearing and to defend his good name from being falsely implicated. They threatened to interdict the Commission from hearing Mrs Mthimkulu’s testimony. The Commission finally conceded and requested Mr and Mrs Mthimkulu not to testify - to their great distress. This was the beginning of a number of court challenges faced by the Commission throughout its life. Mr Gideon Nieuwoudt et al subsequently applied for amnesty for the abduction and killing of Siphiwe Mthimkulu whose body they claimed they had burnt to ashes that they afterwards threw into the Fish River.

The impact of the Human Rights Violations hearings

28 For the eighteen-month period during which they were a major part of the work of the Human Rights Violations Committee, the hearings became the public face of the Commission. They captured the imagination of the public and attracted both praise and criticism. The focus on the suffering of individuals and the reminders of the reconciling aspects of mourning and of forgiveness were in some cases a deterrent to people who were unwilling to come forward to make statements. Thus, political activists did not regard themselves as ‘victims’ who needed to weep or to forgive or be forgiven, but rather as participants in the struggle for liberation, who had known they would suffer for their cause.

29 Furthermore, deponents who had made statements but who had not been invited to testify in public felt in some way that they had been overlooked. It required a great deal of effort to assure them that their statements would be equally carefully investigated, and that they would receive equal attention from the Human Rights Violations Committee in terms of making findings in their case.

30 One of the significant features of the hearings was the simultaneous translation into any of the local languages being used. As the months progressed, the interpreters rapidly developed their skills and sensitive understanding. When the Commission ends, they will continue to be a valuable resource to the country. Nevertheless, the nature of the work meant that they absorbed a great deal of the pain and anger of the witnesses.

31 The public hearings took their toll on all members of the Commission - the staff involved and also the commissioners who served on the panels. Debriefing sessions were provided for those who wished to participate. The impact also spread more widely, to the journalists covering the process and to the wider society.

32 The public hearings were successful in two major aspects. They met one of the statutory objectives of the Commission, that of “restoring the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims”; and, together with the public hearings of applications for amnesty, they revealed the extent of gross violations of human rights and made it impossible for South Africans ever again to deny that such violations had indeed taken place.

Other public hearings

33 In addition to hearing testimony from victims of violations, the Committee held other public hearings, which allowed it to explore the motives and perspectives of the different role players. A mechanism for this was provided in the Act (from sections 29 to 32), empowering the Commission to require persons to appear before it at open or closed hearings for the purpose of establishing and gathering the facts.

34 The Commission interpreted this provision in the broadest sense and was able to establish forums for a variety of topics. Public hearings were held to enquire into the roles of the state, the liberation movements, the political parties and various different sectors of society. Investigative hearings were also conducted into events of particular significance - the Bisho massacre, the ‘Trojan Horse’ incident (in Athlone, Cape Town, on 15 October 1985), and others. Many more such hearings were proposed, but not all could be held, for lack of time. The purpose of these hearings was to enable the Commission to gain a deeper understanding of the complete context within which violations had been able to take place.

35 These hearings were structured differently from the individual victim hearings, where no cross-examinations took place. In the investigative hearings, people were subpoenaed to appear; they could be questioned by lawyers and victims, as well as by the commissioners and staff.

36 Where it was necessary, for investigative purposes, or to protect people who might be implicated, hearings were held in camera, but whenever possible they were held in open session. The Committee sought to be as transparent as possible. As an illustration of this, when the closed hearing into the Mandela United Football Club was challenged by the lawyers representing Ms Winnie Madikizela-Mandela and by the Freedom of Expression Institute, they were allowed to argue their case in public. The closed hearing still took place, but a subsequent open hearing was held.

37 Furthermore, the Commission held open hearings on specific topics which enabled it, and the public, to explore other key sectors of society and to understand the ways in which such gross violations were able to occur.⁸