TRC Final Report

Volume 6

Section 1

Chapter 5

Subsection 2

Composition of the Amnesty Committee

11. Appointments to the Committee were made exclusively from the ranks of the legal profession: that is, its members were judges, advocates and attorneys. There were those who questioned this. It was their view that the process would have been enriched had social scientists and other non-lawyers – for instance historians or anthropologists – been appointed to the Committee. The argument was that the specialised knowledge of such persons could have benefited the deliberations of the Committee.

12. In the view of the Committee, this argument entailed the danger of assuming findings of fact prior to evidence having been heard. It also felt that the presence of non-lawyers could have increased the fears of those persons who were concerned that they might not receive a fair and impartial hearing.

13. Committee members were all aware of the fact that they had entered the process with different perspectives. They were equally aware of their statutory duty to act impartially and decide applications objectively. Given the fact that its role was largely adjudicative, the Committee remained convinced that the legal training of its members rendered them better equipped to perform this adjudicative function. Hence, in the Committee’s view, its impartiality was generally accepted by all those who participated in the amnesty process .

14. The question does, however, raise the need for expert evidence concerning the background and context of incidents in respect of which amnesty was applied f o r. Only on rare occasions did the Committee avail itself of the opportunity to receive such inputs. This was helpful in matters concerning witchcraft, the self-defence units (SDUs), the policies of the Azanian People’s Liberation Army ( A P L A )^{6 0} and the activities of so-called right-wing groupings. Given the positive inputs of these non-legal experts, it might well have assisted the process had the Committee been empowered to use the services of experts qualified in a particular field of enquiry as assessors at hearings on an ad hoc basis.

Unfolding of the Process

15. What was true for the Commission as a whole was also true for the Committee: no preparatory work had been done before the Committee was established. The original Committee of five members had to start from scratch, designing application forms and determining its own operational procedures. It had to appoint staff with no clear idea either of the scope of its tasks nor of the volume of work that lay ahead. As it turned out, the number of staff members appointed was inadequate to cope with the workload.

16. In spite of this obvious lack of preparedness, the Commission exerted pressure on the Committee to commence with hearings. Despite a concerted effort to summarise applications and capture the information on a database, the first hearings were held before the closing date for the filing of applications for amnesty, and before all applicants who had applied for amnesty for the same incidents had been linked. As a result, not all the evidence that related to a specific incident had been placed before the Committee or could form part of the record of the hearing. This necessitated different panels hearing diff e rent applicants on the same incident, resulting in duplication and extra costs. Moreover, the Commission’s Investigation Unit was at that time taken up with investigations on behalf of other arms of the Commission. As a result, the Committee had done no proactive investigations by the time the initial hearings began.

17. There was, however, one very positive result that arose from these early hearings. The fact that the amnesty process was being publicly observed seems to have reduced public scepticism, and consequently the volume of applications increased .

18. The lack of a dedicated or adequate investigative capacity for the Committee created numerous problems, which are discussed briefly below.

19. First, although hearings were scheduled in the expectation that the relevant applications would have been properly investigated prior to the hearing, on more than one occasion this turned out not to be the case. In some cases, not all victims had been informed of the hearing, and some had not even been traced. The result was that hearings had to be postponed, prolonging the overall process.

20. Occasionally, however, hearings had to proceed at a stage when more extensive investigations could possibly still have been done, or even where the event for which an applicant had applied for amnesty had not been fully corroborated by the Committee. The Committee had to weigh the interests of all parties in deciding at what particular stage to set a matter down for a hearing. The prejudice caused by delays, especially to applicants in custody, was of particular relevance in this regard .

21. Second, in those instances where the Committee realised that further applicants still had to be heard in respect of the same incident, a decision was held over, pending the hearing of all applications relating to that incident. This was done in order to avoid potential prejudice to interested parties. Decisions on specific incidents were thus also postponed. By so doing, the Committee simply created more work for itself, since the hearings panel had to revisit the record of the proceedings and their notes in order to refresh their memories before finalising the delayed decision.

22. Third, the delay in finalising decisions on incidents that concerned clusters of applicants deprived lawyers for those applicants of guidelines on the requirements for amnesty contained in decisions of the Committee. This resulted in the presentation of extensive evidence on minutiae and non-material matters, and sometimes unnecessary cross-examination, out of excessive caution on the part of legal representatives. This added a lot of unnecessary time to the process.

23. There are a number of observations to be made in respect of the above.

24. First, the prescribed application form could have been simplified by providing for a narrative summary of both the incident and the role of the applicant. In far too many applications, correspondence with applicants was required simply to obtain information the application form should have elicited in the first place.

25. Second, legal assistance should have been made available to applicants who required help with the completion and submission of their applications. This would have substantially reduced the number of defective applications, particularly those that failed to disclose a political objective or an offence or delict. People in prison were particularly vulnerable in this respect. The saving of time and effort in processing better quality applications, taken together with the enhanced prospects of justice being done in respect of indigent applicants, would have more than compensated for the extra costs of providing additional legal assistance. This situation contrasted sharply with the situation of amnesty applicants who qualified for legal assistance from the state. These applicants were entitled to legal representation from the stage of preparing their applications.

26. T hird, and in the same vein, legal assistance should have been provided to all applicants on a basis of parity from the outset. The Legal Aid Board provide d legal assistance to applicants at much lower rates than that provided to former or present employees of state departments. Victims or their families also received the lower rates and, by implication, less experienced legal assistance. The Committee assumed the responsibility for providing legal assistance towards the middle of 1999, after which its legal department negotiated better fee structures with legal representatives. This made for a more equitable arrangement. Although the Committee is of the opinion that no real prejudice resulted from this situation in view of the more inquisitorial approach it adopted in these earlier hearings, victims understandably felt aggrieved by that semblance of inequality. This should not detract from the very positive aspects of the process, particularly the fact that legal assistance was afforded to all interested parties.

27. Fourth, the absence of useful precedents inhibited the Committee’s ability to conceptualise, plan and manage the process in an integrated fashion from the outset. It would, for example, have served the process much better had the Committee immediately dedicated its full capacity to capturing all applications on the database with the least possible delay. All linked applications should have been prioritised for analysis and subjected to focused and managed investigations. This should have entailed the tracing of victims or their next-of-kin and other i n t e rested parties with a view to obtaining their versions of events and, where applicable, to obtaining research material relevant to the applications in question.

28. Fifth, pre-hearing conferences involving legal re p resentatives could have been better utilised to limit the scope of hearings by minuting common cause facts and thus focusing the hearing solely on matters actually in dispute.

29. Sixth, the more regular use of ex tempore decisions in the many instances where applications were clear-cut would have contributed towards effecting savings and speeding up the overall process.