TRC Final Report

Volume 6

Section 5

Chapter 4

Subsection 3

REVIEW PROCEEDINGS BROUGHT BY MINISTER BUTHELEZI AND THE IFP

20. Some two years after the publication of the Interim Report presented to the President on 29 October 1998, Minister Mangosuthu Buthelezi and the IFP sought to review and set aside certain findings made by the Commission. They did so essentially on the basis that the findings in question were defamatory of Dr Buthelezi and the IFP. They also complained of certain procedural irregularities.

21. Originally the applicants sought an order recalling the Report and expunging the findings to which they took offence. Although that relief was abandoned, they sought an order compelling the Commission to publish in its final Report a statement setting out certain ‘errata’ and requiring the Commission to forward the errata to all parties to whom the Report has been distributed where this was practically possible.

22. Dr Buthelezi and the IFP (the Applicants) complained that some thirty-seven findings contained in the Commission’s Report – which implicated them in gross human rights violations, criminality and conspiracy – could not have been based on factual and objective information. The Applicants also contended that the Commission had failed to comply with fair procedures and did not afford them a proper and appropriate opportunity to make representations to it in respect of evidence in its possession and the findings it intended to make. The Applicants complained that the findings unjustifiably infringed their entitlement to a good name and reputation and have impaired their right to dignity and political activity free of unwarranted attack. They complained that the findings in question represented a failure by the Commission, its commissioners and employees to apply their minds to the evidence, as there was no rational connection between the factual evidence and the findings made.

23. The Commission contended that the findings were justifiable and that there had been no procedural unfairness. The Commission also contended that there had been an unreasonable delay in launching the application and that no satisfactory explanation for the delay of two years had been furnished. A delay of this magnitude was especially serious in regard to the nature of the mandate of the Commission and its limited lifespan.

24. It was apparent from the Applicants’ founding papers that their primary concern was the finding by the Commission that they were implicated in the establishment of a covert offensive para-military unit (also referred to as a ‘hit squad’) that was deployed against the political enemies of the Applicants. Indeed this was the only finding which was prominently attacked in their legal papers. The Commission contended that the findings in question were proper and, in the light of the oral and authenticated documentary evidence and information on hand, beyond question.

25. The Commission refused to change these critical findings. It was, however, amenable to negotiation on the adjustment of certain lesser findings in order to facilitate settlement and the issue of its Codicil.

26. The case was settled out of court only a few days before the matter was set down for hearing on 29 January 2003. The Commission agreed to the adjustment of certain lesser findings, such as those relating to the activities of certain gangs and the compilation of statistics derived from victim statements. With regard to these findings the Commission replaced findings against the IFP to read as findings against ‘members and/or supporters of the IFP’. The Commission has also adjusted similar findings in relation to the ANC and other role players.

27. The bulk of the complaints advanced by the IFP and Minister Buthelezi were rejected by the Commission. Its findings concerning Minister Buthelezi’s accountability in his representative capacity as the President of the IFP, the Chief Minister of KwaZulu and the only serving Minister of Police in the KwaZulu Police also remained undisturbed. The Commission was satisfied that there was overwhelming evidence to support these and other key findings concerning the IFP and Minister Buthelezi.

28. As part of the settlement, the Commission agreed to publish an appendix in which the IFP and Minister Buthelezi explained why they disagreed with the core findings of against them.⁶⁸