TRC Final Report

Volume 5

Chapter 1

Subsection 5

The definition of ‘severe ill treatment’

50 As the broadest category provided in the legislation, this was the one that required the most careful consideration. It became extremely difficult to decide exactly what constituted an act of sufficient severity to be included. As statements were received and studied, subtleties arose that influenced the thinking of members of the Committee. Some of the criteria employed are spelt out in the chapter on the mandate of the Commission (in Volume One), illustrating how international criteria deriving from the experiences of other countries were used as guidelines. Some decisions arose out of the workings of the committee itself.

51 For example, many accounts spoke of the effects on people of teargas used by the security forces. It would be impossible to say that teargas used in the legitimate control of an unruly crowd constituted a gross violation of human rights. Yet teargas canisters hurled into a hall or a church, or a small room or vehicle, could do serious damage to the health of a young child or elderly person. In such cases, where the damage could be assessed, it could be found that the person had indeed suffered a gross violation of human rights.

52 The discussion about how to decide whether combatants in the political conflict could be defined as victims of gross human rights violations continued for many months. The final decision is also described in the chapter on The Mandate.

53 Damage to property was another very difficult issue, on which the Committee postponed a decision for many months. Arson was a frequent allegation, and at first it did not seem to constitute a gross violation in terms of the Act. The more it was discussed, the more it was seen as a deliberate tool used by political groupings to devastate an area and force people to move away, the more it became necessary to consider it seriously. Eventually a decision was taken: arson would be considered as ‘severe ill treatment’ if it resulted in the destruction of a person’s dwelling to an extent that the person could no longer live there. The motivation for this decision lay partly in the result - the displacement of the person and partly in the psychological suffering of a person experiencing the total loss of home and possessions. (It did not make it any easier to have to decide that a person who lost cattle or vehicles, which might constitute their entire livelihood, did not qualify as a ‘victim’ of a gross violation).

54 The delay in arriving at this decision meant that, at earlier stages, people wishing to make statements about arson were turned away by statement takers, and in some areas it was impossible to get them back. In some regions, most notably KwaZulu-Natal, a list was kept and people were brought back into the process, but this happened very late and corroboration was extremely difficult.

55 Conflicts which were described as ‘tribal disputes’, or caused by ‘witchcraft’, might have seemed to fall outside the requirement of having a political motive in terms of the conflicts of the past, yet on closer investigation they frequently masked profoundly political issues.

56 Numerous statements referred to people who had ‘disappeared’. In some cases, it was possible through investigations, through information obtained from the African National Congress (ANC) and the Pan Africanist Congress (PAC), or through applications for amnesty, to discover their fate. Some had gone voluntarily into exile and either been killed in combat or died under other circumstances; some had been abducted and killed; but for many others it was not possible to find out any more information.

57 Other difficult decisions arose from statements about detention, solitary confinement, and capital punishment. The decisions taken in this regard are also recorded in the chapter on The Mandate.

The process of making findings and notifying deponents

58 Once all corroboration had been completed, the regionally based members of the Human Rights Violations Committee considered them and made ‘pre-findings’ in every case, deciding either that there was sufficient proof to find that a gross human rights violation had occurred, or that it had not. A 10 per cent sample of these pre-findings went through a national check, to ensure that regions were operating on the same criteria so that the findings would be uniform, and also to double-check for possible mistakes.

59 Again, all decisions were captured on the database, and complete registers were drawn up and referred to the Reparation and Rehabilitation Committee.

60 A Notification Unit was then established, which again brought together the work of the two committees. All deponents were notified by letter of the finding relevant to their statement, and very often it was necessary to notify additional victims who had been mentioned in the statement. When the finding was positive (that is, a decision was made that a gross violation had occurred), such persons were invited to complete and return the application form for reparations.

61 Some people were identified as victims through the process of amnesty – when they were mentioned by an applicant and a decision was taken by the Amnesty Committee. These were dealt with in the same way.

62 Where a ‘negative’ finding was made, deponents were also notified by letter and given information about the grounds on which the decision was made. These fell into five broad categories:

a the event fell outside the mandate period of the Commission

b there appeared to be no political motive

c the violation was not sufficiently severe to qualify as a ‘gross violation’

d the person killed or injured was a combatant on active duty

e there was insufficient evidence to allow a finding to be made.

63 Deponents were informed that, if they had additional information that might persuade the Committee to review the finding, they should submit it within a period of three weeks.

64 This introduced a new area of work in the last months of the Commission, where a Review Committee was established to deal with such appeals.

Findings concerning perpetrators

65 All alleged perpetrators about whom findings were contemplated were sent letters in terms of section 30 (2) of the Act, giving them an opportunity to respond. Findings in these matters are covered in the chapters on the four different regions (in Volume Three).

Individual findings

66 It was decided that every person found to have been a victim of a gross violation had the right to have their name and a brief account of the violation in the report of the Commission¹³ .