TRC Final Report

Volume 5

Chapter 6

Subsection 3

Legal challenges

44 The Commission also faced a number of legal challenges, which it met successfully – with the exception of the matter brought against it by two former members of the security police (see further Volume One). In April 1996, Brigadier du Preez and Major General Nic van Rensburg sought to restrain the Commission from receiving or allowing any evidence during its hearings which might adversely affect them. The court ruled that the Commission had an obligation to furnish the applicants with sufficient facts and information to enable them to identify the events and incidents involved as well as the people proposing to lead detrimental evidence.

45 The Commission appealed against this decision to a full bench of the Cape High Court in June 1996. That Court held that, in the context of the objectives of the Commission and the limited time frame within which it had to complete its work, the Commission was not obliged to give prior notice to any person who might be implicated in a human rights violations hearing. It did, however, stipulate that when a negative or detrimental finding against an implicated person was being contemplated, the implicated person had to be given prior warning and an opportunity to submit representations to the Commission. It also concluded that the Commission was obliged to supply the implicated person with the relevant evidence on which the contemplated finding was based, to enable him or her to answer the allegations.

46 In a further appeal to the Appellate Division in regard to this latter aspect, the Commission argued that the limitations imposed on it by the Cape Court would severely hamper its work. The Commission drew on arguments of such renowned international jurists as Sir Richard Scott and Sir Louis Blom-Cooper QC to the effect that there are fundamental and significant differences between enquiries and litigation, and the adversarial procedures adopted in the legal system were wholly inappropriate to an enquiry.

47 In his judgement, Chief Justice Corbett relied on common-law principles, requiring persons and bodies to observe the rules of natural justice. He ruled that implicated perpetrators were entitled to timeous notice of the allegations against them, details by way of witness statements or other documents to enable them to identify the person making the allegations, the date and place of the alleged incidents where appropriate, and the right to cross-examine witnesses at hearings.

48 The judgement imposed a huge administrative and logistic burden on the Commission, requiring it to employ further staff and allocate further resources to identifying and tracing implicated persons. In most instances, the alleged perpetrators were no longer in the same employment as previously, and their addresses were not easily available. In addition, the Commission had to contend with alleged perpetrators demanding to be heard at the same hearings as victims and demanding the right to cross-examine witnesses.

49 It was, however, only when the public hearings had been completed that the full impact of the judgement became clear. In order for the Commission to make detrimental findings against persons for inclusion in its final report, implicated persons had to be notified of the contemplated decision and afforded the opportunity to make written representations – a huge administrative task. In essence, the Corbett ruling obliged the Commission to give alleged perpetrators a prior view of its findings. Other commissions of enquiry in this country, such as the Goldstone Commission, were never hampered or restricted in this way.

50 In seeking to fulfil the Appellate Division’s ruling, the Commission was obliged to delete from this report the names of a large number of alleged perpetrators, whose whereabouts were not known and who could not be traced. Consequently, the incidents or events in which they were allegedly involved are either not recorded or not fully described. In many instances, the Commission’s report contains the names of fewer alleged perpetrators than are contained in recently published South African books on political and so-called third force violence.

51 In a final and supreme irony, the two original applicants, Van Rensburg and Du Preez, who effectively hamstrung the Commission in its work, applied for amnesty for the very act they had for so long succeeded in preventing the Commission from hearing about – the murder of political activist Siphiwe Mthimkulu.