TRC Final Report

Volume 6

Section 1

Chapter 4

Subsection 4

COMPLAINTS TO THE PUBLIC PROTECTOR BY THE IFP AND FORMER SADF GENERALS

31. Both the IFP and a group of former SADF generals made formal complaints to the Office of the Public Protector concerning what they claimed to be disparate treatment of themselves by the Commission. The Commission responded fully to the allegations and the Public Protector neither took nor recommended any action against the Commission.

32. The Commission considers both these matters to be finalised.

LEGAL CHALLENGE: IFP REQUEST FOR INFORMATION^{4 9}

33. As a result of its investigations and hearings in terms of section 29 of the Act, the Commission served notice on the IFP and its leader, Chief Mangosuthu Buthelezi, and other members of the IFP, of the contemplated findings it intended to make against them, which were to their detriment. They were invited to respond in writing. On 24 August 1998, the Commission received a comprehensive submission from legal representatives for the IFP, Chief Buthelezi and the other implicated persons. The findings appear in full in Volume Three of the Final Report .^{5 0}

34. In summary, during the period 1982–94, the IFP – known as Inkatha prior to July 1990 – was responsible for gross violations of human rights committed in the former Transvaal, Natal and KwaZulu against persons perceived to be leaders, members or supporters of the United Democratic Front (UDF), the ANC, the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU). Other targets were persons who were identified as posing a threat to the organisation, and Inkatha/IFP members or supporters whose loyalty was questionable.

35. The violations of human rights referred to formed part of a systematic pattern of abuse that entailed deliberate planning on the part of the organisation and its m embers .

36. The organisation was responsible for the following conduct:

a speeches by the IFP President and senior party officials, inciting supporters to commit acts of violence;

b mass attacks by members and supporters on persons regarded as their political enemies;

c the killing of leaders of political organisations and their supporters who were opposed to Inkatha/IFP policies;

d colluding with the South African government ’s security forces to commit the violations referred to;

e colluding with the SADF to create a paramilitary force to carry out such violations;

f creating self-protection units made up of the organisation’s supporters with the specific objective of violently preventing the holding of elections in KwaZulu-Natal in April 1994; and

g conspiring with right-wing organisations to commit acts that resulted in injury or loss of life.

37. By virtue of his position as leader of Inkatha and/or the IFP, and Chief Minister in the KwaZulu government, Chief Buthelezi was held accountable by the Commission for the commission of gross violations of human rights by any of the agencies re f erred to.

38. In court papers served on the Commission in December 1998, the IFP and Chief Buthelezi declared that they re g a rded the findings of the Commission to have been defamatory of the organisation and himself, unwarranted and unjustified, and not supported by the information and evidence collected or received by the Commission. In the court application, the IFP and Chief Buthelezi sought an order compelling the Commission to provide all the information collected and received upon which it had made its findings. This claim was based on the provisions of section 32(1) of the 1996 Constitution, which reads:

Everyone has the right to access to – (a) any information held by the state; (b) any information that is held by another person and that is required for the exercise or protection of any rights.

39. When this matter was argued before Mr Justice Davis in the Cape High Court, the Commission contended, first, that it was not an ‘organ of State’ nor ‘in any s p hereof Government’ and, second, that the information sought had not been p roved to have been required for the exercise and protection of any of the applicants’ rights.

40. On 15 December 1999, Mr Justice Davis dismissed the application with costs. The court upheld the second of the Commission’s objections, namely that the applicants had not established that the information was re q u i red for the exerc i s e and protection of any of their rights. It further held that the applicants should either have sued the Commission for defamation based on bad faith (male fide) if so proven, or brought review proceedings in terms of rule 53(3) of the Uniform Rules of the High Court to set the Commission’s finding aside.

Settlement

41. The applicants subsequently applied for leave to appeal to the Constitutional Court against the judgment of Mr Justice Davis. This was granted, and the matter was set down for hearing on 9 November 2000. Before the appeal to the Constitutional Court was heard, the parties settled the matter on the basis that each party would withdraw their respective appeals and pay their own legal costs. The Commission agreed to provide access to the record of information and evidence to the applicants by 1 March 2001, on condition that appropriate measures were employed to safeguard the confidentiality of persons who had made statements to the Commission.

42. The decision to settle the matter was based on the consideration that the Promotion of Access to Information Act No. 2 of 2000 was due to be gazetted on 15 September 2000 and that this legislation would have entitled the applicants to obtain the information they were seeking. To proceed with an appeal on a point of law about to be settled by the promulgation of an Act would have been futile and a waste of resources. This decision was taken after consultation with the Commission’s senior counsel and in terms of a resolution of the Amnesty Committee acting in terms of section 43 of Act No. 34 of 1995.

43. Despite the above settlement arrangements, the IFP and Chief Buthelezi instituted review proceedings against the findings of the Commission on 20 October 2000.

44. Just the before the Commission was due to publish its Codicil, the IFP interdicted it from publication on the grounds that the terms of the settlement had not been met.

45. Discussion culminated in a settlement which was finalised at a hearing on 29 January 2003. The requirements agreed in the settlement appear as an Appendix to Chapter 3 of Section Four of this Volume.