Background
South Africa’s history has long been marred by racism and discrimination. In 1652, the Dutch East India Company established a settlement in the Cape. Once there, the settlers brutalized and dispossessed the indigenous San and Khoikhoi populations, forcing them into indentured servitude. Control over the Cape passed to the British in 1806. European domination was later expanded beyond the Cape Colony when Britain outlawed slavery in 1834, leading many Boers (descendants of Dutch settlers) to venture northeast and establish new colonial republics. In 1910, the various British and Boer republics were integrated under the Union of South Africa, which implemented several country-wide racist policies. These included the Mines and Works Act of 1911, which restricted black people to menial work; the Native Land Act of 1913, which allocated only 10 percent of arable land to the majority black population; and legislation requiring black Africans to carry identity documents.[1]
In 1948, elections in the Union were won by a right-wing Afrikaaner nationalist party, the National Party, which instituted a systematic policy of segregation known as apartheid. Perhaps the most infamous of piece of apartheid legislation was the Group Areas Act of 1950, which designated separate parcels of urban land for distinct racial groups. This act underpinned the forced removal of many black, coloured, and Indian communities from urban centers. Racist policies such as this were possible due to the exclusion of the black, coloured, and Indian/Asian populations from the voter roll.
In response to the oppressive policies of the apartheid government, various anti-apartheid forces emerged in South Africa. The most notable groups were the African National Congress (ANC), the South African Communist Party (SACP), and the Pan Africanist Congress (PAC). Initially, these groups led anti-apartheid demonstrations and strikes; however, after the Sharpeville massacre (where police opened fire on demonstrators, killing 69 people) all three began engaging in armed resistance.[2] The apartheid government responded by declaring a state of emergency and imprisoning leading activists. By the late 1980s, however, internal resistance against apartheid, combined with pressure from the international community, led government officials to hold secret meetings with the ANC.[3] On 2 February 1990, the South African government lifted the ban on the ANC. The first democratic elections were held in 1994. Following the election of ANC leader Nelson Mandela as president, the state embarked on a transitional justice process to deal with the country’s repressive past.
Transitional Justice Mechanisms
Before the democratic elections in 1994, the ANC established two truth commissions to investigate allegations of abuse committed by its own members: the Skweyiya Commission in 1992 and the Motsuenyane Commission in 1993.[4] These commissions were tasked with investigating allegations that the ANC had imprisoned members accused of collaborating with the state in detention camps and subjected them to cruel treatment.
Former detainees of the ANC camps initiated the Skweyiya Commission. Then ANC President Nelson Mandela formally established the commission and appointed two ANC members and a non-ANC affiliated individual as commissioners. Operating from March to October 1992, the commission investigated cases of abuse and torture committed against ANC detainees at the training camps. The commission’s investigation was limited to human rights violations committed in camps in Angola, Zambia, and Tanzania from 1979 to 1991. In its final report, the Skweyiya Commission documented 29 cases of forced disappearance and various other human rights violations, including unreasonable detention periods, poor nutrition, humiliation, torture, and forced hard labor. The commission’s report was criticized for being too narrow in its scope and powers and, as such, an independent commission, the Motsuenyane Commission, was established in 1993 to further investigate cases of abuse.[5]
Unlike the Skweyiya Commission, the Motsuenyane Commission consisted of three independent commissioners.[6] Its final report, which covered the period from 1979 to 1991, documented 32 incidents of torture in ANC detention camps, as well as scores of other abuses. The report differed from that of the Skweyiya Commission in that it named some of the perpetrators. The ANC was revered for being the first liberation movement in history to address the human rights abuses committed by its own members.
In July 1995, during Mandela’s presidency, the South African parliament passed the Promotion of National Unity and Reconciliation Act, which established the Truth and Reconciliation Commission (TRC).[7] The TRC’s mandate was to uncover the truth about South Africa’s history of abuses under apartheid by granting conditional amnesties to perpetrators who publicly confessed to their crimes.[8] In doing so, the commission hoped to provide victims’ families with information as to what happened to their loved ones. Additionally, by forcing perpetrators to acknowledge past abuses, the commission aimed to provide victims with a sense of closure and, therefore, strengthen national reconciliation.
Beginning its operations on 16 December 1995, the TRC was tasked with: (1) investigating the human rights violations committed by both the apartheid government and the liberation movements between 21 March 1960 and 10 May 1994; (2) providing amnesty to applicants who qualified under the TRC’s criteria; and (3) recommending reparations for victims. In addition to its amnesty measures, the commission held special hearings that focused on specific sectors, institutions, and individuals. To facilitate its investigations, the TRC had search and seizure powers. Additionally, it was authorized to subpoena witnesses and run a witness protection program. Volumes one through five of the TRC’s final report were presented to President Mandela on 29 October 1998. In order to better deal with the amnesty process, the commission’s mandate was extended and two additional volumes (volumes six and seven) were released on 21 March 2003.
The TRC received over 7,000 requests for amnesty, 2,500 of which were heard at public amnesty hearings that lasted 1,632 days. The majority of those applying for amnesty were members of the security police.[9] Most ANC applications came from former members of self-defense units (SDUs) and covered the post-1990 period.[10] Not a single member of the National Intelligence Service (NIS) applied for amnesty.[11] Former NIS members have consistently claimed that the NIS merely provided information about specific individuals and was not responsible for actions taken by the South African Police (SAP) and South African Defense Force (SADF) against those individuals.[12]
The commission also requested submissions from certain institutions and individuals to disclose their role in abuses under apartheid.[13] A few National Party leaders made submissions to the commission.[14] Among them was former Minister Leon Wessels, who acknowledged the wrongs of the National Party and put to rest the claim that the former Cabinet and State Security Council (SSC) had been unaware of the violations perpetrated by the security forces.[15] In contrast to the National Party, the ANC took collective responsibility for the human rights violations committed by its members.[16] The ANC’s senior leaders were reluctant to come forward, thus limiting the TRC’s capacity to provide a complete and accurate picture of the party’s role in past abuses. Most of the amnesty applicants were from rank-and-file combatants, with few high-ranking officials coming forward.
In addition to the submissions and amnesty applications, the TRC heard testimonies from approximately 21,000 victims.[17] In light of all the evidence before it, the commission concluded that the ANC’s SDUs, the SAP, the SADF, the NIS, the Afrikaner Weerstandsbeweging (AWB), the Afrikaner Volksfront, the Boere Bevrydingsbeweging, the Inkatha Freedom Party’s SDUs, and the United Democratic Front were all responsible for gross violations of human rights.[18] Violations committed by these groups included killings, attempted killings, torture, and severe ill treatment.
Because the TRC offered perpetrators (conditional) amnesty for the crimes they had committed, victims and their families were not able to claim damages from many individual perpetrators. State-sponsored reparations were thus considered by the TRC to be the only means of compensating victims for the losses they had suffered. The TRC, however, also recognized that in many cases entire communities had suffered harms due to apartheid policies. As such, the final TRC report recommended individual-level reparations to victims registered with the TRC, as well as community-level reparations. Several policies were also designed to target the country level, including institutional reforms.
The final report recommended five types of reparation and rehabilitation policies. The first is an interim reparation policy, designed to “help victims who are in urgent need because of the gross human rights violation they suffered.”[19] This policy aimed to provide people with limited short-term financial assistance and facilitate access to various services. The second recommendation is for an individual reparation grant (IRG). Like the interim grant, this targets individuals who had been recognized as victims by the TRC, both individuals who testified and those who were referenced as a victim in an individual’s testimony. It was recommended that the IRG be paid either to the victim or to the family if the victim was deceased. It was recommended that the grant would amount to R17,000 to R23,000 per annum, for a period of six years.
The third recommendation was for symbolic reparations and various legal and administrative actions which aimed to assist individuals, communities, and the country. Country-level recommendations included national holidays and memorials to commemorate both the suffering of victims and victories by activists during the apartheid period. Recommendations for community-level symbolic measures included the renaming of streets and the establishment of various ceremonies to commemorate past events. Recommendations for individual-level symbolic/administrative reparations included the issuing of death certificates to families that testified they lacked them. Another significant individual-level administrative matter was a recommendation to clear the criminal records of individuals whose political activities had been criminalized under apartheid.
The fourth recommendation was for community rehabilitation. This involved physical and mental health care services for communities traumatized by apartheid-era abuses, including the establishment of clinics, the provision of community counselors, and the allocation of various health care workers. Educational assistance was also proposed for communities where individuals had lost educational opportunities due to apartheid-era abuses. Another central measure proposed was for housing projects in communities where property was destroyed and/or where individuals were forcibly displaced by the apartheid regime.
Finally, the TRC proposed various national-level reforms to prevent apartheid-era human rights abuses from happening again. These include institutional, legislative, and administrative measures.
As the section on reparations below discusses in greater detail, the government’s response to these recommendations has been disappointing. The government did provide the IRG, though it was delayed and the amount offered was substantially lower than the recommended amount. Additionally, community-level reparations have often been ignored.
Criminal prosecutions were held in conjunction with the TRC to prosecute those who either failed to apply to the commission or were denied amnesty by it.[20] Following the closing of the TRC’s Amnesty Committee in 2001, the commission made recommendations for prosecutions and turned 300 cases over to the public prosecutor for further investigation. Two of the most notable trials were those of Magnus Malan and Wouter Basson.
Malan, a minister of defense during apartheid, was brought before a Durban court on charges relating to the murder of 13 people in KwaMakutha in 1987.[21] Wouter Basson, a chemical weapons expert, was alleged to have developed chemical agents for the apartheid government to use against its enemies.[22] Both Malan and Basson were acquitted of all charges because the state was unable to prove its case beyond a reasonable doubt. Additionally, most high-profile perpetrators failed to apply for amnesty and successfully avoided criminal charges.[23]
Justice
The TRC was not a tribunal, and as such it did not directly prosecute individuals complicit in the former regime for human rights abuses. This may have reflected the ideological disposition of ANC leaders at the time, though politics likely played a role as well. Ultimately, it was feared that a Nuremburg-style tribunal would lead to political instability and possibly civil war as it was unlikely that apartheid leaders and army generals would have surrendered power if they faced criminal prosecution.[24]
The reconciliatory approach of the TRC received praise from many commentators,[25] though some activists and victims of apartheid-era human rights abuses felt that it had failed to hold perpetrators to account. For instance, in 1997 the Centre for the Study of Violence and Reconciliation collaborated with Khulumani Support Group, the national apartheid victims’ group, to publish a primary research report on the attitudes of victims toward the TRC.[26] The report revealed that victims perceived the TRC to be too lenient toward perpetrators. Additionally, some victims expressed concern about the fact that while they had named perpetrators of human rights abuses in their statements to the TRC, the commission had not followed up. Of particular concern to them was the fact that some police officers who had committed abuses were still in office and that no visible action had been taken against them. Many victims also expressed frustration about the fact that perpetrators were not directly forced by the TRC to attend hearings, allowing perpetrators to avoid meeting their accusers. Finally, some victims also claimed that they were not always consulted in the amnesty process, and that in certain cases perpetrators of crimes involving them were given amnesty without the TRC contacting them first.
The basic premise of the TRC was that if perpetrators did not come forward and admit to their crimes, they would be unable to secure amnesty and could therefore be prosecuted in a court of law. In reality, however, very few prosecutions of apartheid-era crimes have occurred.[27] In recent years, evidence has mounted that this is due to direct political interference by the ruling ANC, which recognizes that the prosecution of apartheid state officials might lead to calls for a more balanced approach to the past. This in turn could lead to the prosecution of ANC combatants and officials implicated in apartheid-era human rights abuses. As of 2021, civil society organizations are still calling for a new commission to investigate apartheid-era human rights abuses that remain unresolved.[28]
TRC-Related Indictments and Inquests
Recently, several attempts have been made by the families of victims to ensure prosecutions of individuals who committed human rights abuses but did not receive amnesty from the TRC (either because they did not apply or because the TRC denied them amnesty). These families have faced an uphill battle. The case which most significantly revealed the ANC’s suppression of prosecutions was that of Nokuthula Simelane, a member of the Umkhonto we Sizwe (the ANC’s armed wing), who was abducted, tortured, and forcibly disappeared by the apartheid security forces in 1983. Her remains have never been found.
Nokuthula Simelane
In 1997, Simelane’s family filed her case with the TRC.[29] Several members of the Security Branch of the SAP appeared before the TRC and admitted to their role in Simelane’s abduction. In 2001, all the perpetrators received amnesty for her abduction, while only two received amnesty for her torture. Two failed to apply for amnesty for her torture, while three others were denied amnesty for this on the basis that they did not disclose all relevant information. None of the perpetrators received amnesty for her murder as none admitted to being involved in her ultimate disappearance/death.
In 1998, the National Prosecuting Authority (NPA) established a TRC unit to pursue prosecutions against individuals who did not receive amnesty from the TRC. Additionally, in 2003, the Priority Crimes Litigation Unit (PCLU) was established within the NPA to investigate “priority cases,” which include “matters emanating from the TRC process.”[30] Simelane’s case was one of the 150 cases chosen by the PCLU for immediate investigation.[31] Nonetheless, the investigation has been repeatedly delayed.
Initially, the PCLU declined to proceed with Simelane’s case on the basis that it was still finalizing a policy for TRC cases. In 2005, following sustained pressure by organizations representing the families of victims, the NPA finalized amendments to its prosecution policy. These amendments were met with great resistance by the families as they essentially blocked the prosecution of apartheid-era perpetrators. The amendments were successfully challenged in court by the families of victims, including Simelane’s sister, Thembisile Nkadimeng, in 2008.
The NPA claimed that the South African Police Service (SAPS) had failed to assign an investigator to the Simelane case. Additionally, in 2010, the investigation docket disappeared (though it reappeared in 2012, after an investigator was assigned). In 2015, Simelane’s sister filed an application before the High Court of Gauteng to compel SAPS to complete its investigation into Simelane’s death, so that the NPA could proceed with prosecutions.[32] Several prominent advocates who had first-hand experience of the case filed affidavits, including Vusi Pikoli, who was the director of the NPA from 2005 to 2007, and Anton Ackermann, a former head of the PCLU.
These affidavits alleged that there had been high-level political interference to prevent the prosecutions of apartheid-era perpetrators, such as Simelane’s murderers. Pikoli’s affidavit claimed that he experienced direct political pressure to halt such prosecutions by several ministers on the basis that prosecutions against apartheid police would result in calls for ANC members to be prosecuted for their human rights violations as well. Ackermann’s affidavit also claimed that political interference had obstructed his attempts to investigate apartheid-era cases. The affidavits stated that Simelane’s case had been deliberately obstructed by SAPS and the NPA, despite evidence that she was tortured and murdered. Additionally, an affidavit by Frank Dutton, a policeman charged with investigating apartheid-era murders, claimed that the delays into Simelane’s murder appeared to be due to an active political decision by higher-ups to prevent justice in the matter.
Following this application to the Gauteng High Court, the NPA announced in 2016 that it would pursue prosecutions against several apartheid-era security police for Simelane’s murder. Nonetheless, the case continues to face delays, and by 2019 a primary suspect in the murder had died. The Simelane family has come to believe that the government lacks the political will to see justice done for the killing of Simelane and others like her.[33]
Cradock 4
The Simelane case has been explosive in terms of the evidence it has revealed about political interference, though it is one among hundreds of apartheid-era cases which have not resulted in prosecutions.[34] The Cradock 4 case is another example of the delays which have characterized the cases recommended for prosecution by the TRC.
In 1985, four anti-apartheid activists – Matthew Goniwe, Fort Calata, Sparrow Mkhonto, and Sicelo Mhlauli – were abducted and murdered by apartheid security forces while on their way to the town of Cradock.[35] A TRC hearing was held on the Cradock 4 and in 1999 several security officials were denied amnesty for the murders, including Eric Taylor, a former security policeman who personally killed Fort Calata. Taylor was denied amnesty partly because he did not reveal who had given him his orders. Despite the TRC’s decision, none of the security officials involved has been held accountable.
The families of the Cradock 4 have continued to seek prosecutions of those responsible for the murders, though little has come of the case. In 2018, National Director of Public Prosecutions Shaun Abrahams met with the son of Fort Calata and informed him that a renewed investigation was underway.[36] Court papers later revealed that the investigators assigned to the case were former members of the apartheid security branch, raising fears of a conflict of interest. Additionally, the court papers showed that the NPA and SAPS may have been captured by political forces, and that their handling of TRC-related cases such as the Cradock 4’s had been “unreasonably slow.”
In 2019, the NPA informed the lawyers of the Cradock 4 families that the investigation docket for the case had disappeared from the NPA offices (similar to the Simelane investigation docket).[37] According to human rights lawyer Jeremy Vearey, who has represented several families of apartheid-era victims, the disappearance of an investigation docket implies political interference.[38] As of 2021, the office of the deputy public prosecutor is leading the investigation into the deaths of the Cradock 4.
Ahmed Timol
While prosecutions of apartheid-era perpetrators have stalled, some advances have been made in reopening inquests into the deaths of activists. One of the most historic cases is that of Ahmed Timol, an anti-apartheid activist and member of the SACP. In 1971, Timol died while in police custody, allegedly after jumping out of the window of his cell. This narrative was supported by an official inquest in 1972, which found that Timol had died by suicide and that no one was responsible for his death. Anti-apartheid activists and Timol’s family rejected the official narrative at the time, arguing that Timol had been killed by the police.[39] None of the security police involved in Timol’s arrest and interrogation appeared before the TRC to request amnesty.
In 2004, Timol’s nephew, Imtiaz Cajee, approached the NPA to demand an investigation into Timol’s death, but was told that the NPA had no new evidence and that the case would be abandoned.[40] Since then the family, working with a team of private investigators and lawyers, established new evidence, resulting in a fresh inquest into the Timol case by the High Court in 2017. The inquest reversed the conclusion of the 1972 inquest, coming to the following conclusion: “Timol’s death was brought about by an act of having being pushed from the 10th floor or roof of the John Vorster Square building to fall to the ground … prima facie amounting to murder. There is prima facie evidence implicating [Captain Johannes Hendrik] Gloy and [Captain Johannes Zacharias] Van Niekerk who were on duty and interrogating Timol at the time he was pushed to fall to his death. [Sergeant Jao] Rodrigues, on his own version, participated in the cover up to conceal the crime of murder as an accessary after the fact, and went on to commit perjury by presenting contradictory evidence before the 1972 and 2017 inquests. He should accordingly be investigated with a view to his prosecution.”[41]
While Gloy and Van Niekerk have died, Rodrigues is still alive. Following the inquest, he was charged with perjury and murder in July 2018. This is a landmark case in that it is the first post-apartheid trial into the death of an anti-apartheid activist in prison.[42] Rodrigues appealed for the charges to be put aside or canceled, but this was rejected by the Supreme Court of Appeals in June 2021. Since then, Rodrigues has appealed the matter in the Constitutional Court.[43] The case is ongoing.
New Inquests
Promisingly, the Timol case has opened the door to several new inquests into the deaths of activists in apartheid prisons, including Neil Agget, a trade unionist who died in police custody in 1982, and Hassoon Haffejee, an activist who died in police custody in 1977 (both were alleged to have died by suicide).
In 2019, lawyers acting on behalf of the families of Agget and Haffejee threatened the minister of justice with legal action if he refused to order the judge presidents of the Gauteng and KwaZulu-Natal High Courts to reopen the inquests into the deaths of the two activists.[44] Following this, the minister of justice publicly announced that he had ordered the judge presidents to appoint judges for the inquests.
In 2020, the inquest into Agget’s death opened at the Johannesburg High Court. Lawyers acting on behalf of the Agget family argued that Agget was killed by police while in detention, and that his hanging was later staged. Closing arguments were made in July 2021.[45] Haffejee’s inquest was also set to begin in 2020, but was postponed due to Covid-19.
Presidential Pardons
As the section above reveals, there is a great deal of evidence to suggest that political interests have ultimately obstructed the prosecution of many perpetrators of human rights abuses who failed to gain amnesty at the TRC. High-level political pressure on the NPA not to prosecute individuals, unreasonably slow police investigations, and the disappearance of investigation dockets have all played a role in ensuring that individuals are not prosecuted. An additional means by which the ANC government has sought to avoid prosecutions, however, is through a policy of presidential pardons.
In 2002, the Thabo Mbeki administration pardoned 33 individuals who had committed acts of violence, supposedly on behalf of the ANC and the PAC.[46] Many of these individuals had allegedly been denied amnesty by the TRC. The victims were not given the chance to make representations concerning these pardons, nor were they even informed that the pardons were happening.
In 2007, Mbeki attempted to extend this policy by introducing the Special Dispensation on Presidential Pardons, which allowed people who had been convicted of politically motivated crimes but who did not receive amnesty to apply for a pardon.[47] Mbeki also established the Pardon Reference Group (PRG) to assist in determining the legitimacy of pardon applications. The PRG consisted only of political party representatives and declined to receive inputs from victims.[48] Like before the TRC, successful applicants had to demonstrate that their crimes were politically motivated and they had to disclose the full truth of the events surrounding the offence.[49] Unlike before the TRC, individuals could apply for pardons relating to crimes which they had committed as late as 16 June 1999. This was a major break from the TRC, which only provided amnesty for crimes that had been committed up until 10 May 1994 (Mandela’s inauguration day) on the basis that political violence could not be justified in a constitutional democracy.[50]
The pardons process was subject to criticism by civil society actors such as CSVR, which attempted to ensure that victims could make inputs before the president pardoned individuals, and attempted to make the PRG’s recommendations public (the PRG had refused to do this).[51] In 2009, CSVR took this matter to the High Court, which ruled in its favor. Following this court order, the government released the names of 149 perpetrators who had been recommended for presidential pardon by the PRG, and invited victims to make representations on whether the individuals in question should be pardoned.[52]
The publication of the list of names immediately revealed why the PRG was hesitant to publish it in the first place.[53] Among others, the names included serial murderers, racist extremists who had been convicted of going on violent rampages targeting black civilians, and a range of criminals convicted of crimes which are not conventionally classified as political, such as robbery.
When President Jacob Zuma took office in 2009, he considered the 149 applicants recommended for special pardon. It was reported that offenders were being considered for pardon even in cases where they had not disclosed the full truth about their offenses.[54] Following ongoing pressure by a range of civil society groups, the special pardons process lost steam, and it appears that no one was pardoned under the special dispensation.
Reparations and Rehabilitation
As noted above, the TRC report made five broad recommendations for policies on reparations and rehabilitation: urgent interim reparations; the individual reparation grant (IRG); symbolic reparation/legal and administrative actions; community rehabilitation programs; and national-level institutional reforms.
The first recommendation for an urgent interim reparations was acted upon during the TRC’s time, and provided 17,000 victims with a once-off payment of approximately R3,000 each.[55] In certain exceptional cases, the sum was closer to R6,000.[56] These individuals were identified by the TRC as victims and in urgent need due to human rights abuses they suffered.
The second recommendation for the IRG has faced greater obstacles. The state was initially resistant to providing the IRG, but following protests from victims and their families, allocated R800 million to the President’s Fund to sponsor these reparations.[57] In 2003, some five years after the first TRC report was released, the government provided victims with a once-off payment of R30,000 each, roughly a quarter of the total sum recommended by the TRC report.
Many civil society actors and ex-TRC commissioners criticized the 2003 reparation policy on the basis that the government did not consult victims about the final amount for reparations. According to one CSVR researcher, “By failing to consult with survivor groups before deciding on the final amount for reparations, government wasted an opportunity to learn about the different survivor needs, which would have helped in designing a more comprehensive reparation policy with potential to optimise its effectiveness.”[58]
Concerns about the exclusion of victims were again raised when in 2011, the government announced a new reparations policy to provide educational and medical assistance to individual victims identified by the TRC. According to a statement released by the South African Coalition on Transitional Justice, the policy was decided upon after “a very superficial consultation process with victims and other stakeholders and [did] not address the key concerns expressed by these stakeholders.”[59] A second issue raised by the coalition was that these reparations were only intended for victims who registered with the TRC, as opposed to all victims of gross human rights abuses. According to the statement, the legislation that established the TRC does not define a victim according to a closed list of individuals who participated in the commission, but rather according to the type of harm the person suffered. The coalition thus demanded that the policy on educational and medical benefits be revised following consultations with victims and that it be extended to all victims of gross human rights abuses.
Despite these criticisms, the government has implemented the educational support programs, exclusively providing them to victims identified by the TRC.[60] A series of additional conditions has to be met for victims to apply; for instance, they cannot have above a certain income level. Under the program, victims and their families are able to apply for educational support on an annual basis for up to six years. This support can be obtained for the payment of educational fees, transport, and accommodation, up to a total of R60,000 per year, and is paid directly to the educational institutions as opposed to the individual.[61] By 2020, R72 million had been spent on the program. The Department of Justice has also released draft regulations concerning medical support for victims, though these are yet to be implemented.
The implementation of community rehabilitation programs has also faced obstacles and in most instances has not received the kind of priority attention that was intended by the TRC. By 2003, then President Mbeki announced that the provision of community reparations would be integrated into South Africa’s broader development agenda.[62] The issue gained traction again in 2018, and the government released draft regulations on the topic for public comment.[63] This included plans to promote reconciliation and development in over 100 communities identified by the TRC as having been worst effected by apartheid. The draft regulations allocated a maximum of R30 million to each community project, though they have been criticized for being inadequately transparent and lacking consultation with enough victims. They have yet to be formally adopted.
Gender and Sexual Orientation
Repression by apartheid-era security forces was marked not only by institutionalized racism but also sexism and homophobia.[64] Many women who were detained experienced sexual forms of torture. Additionally, many gay men serving in the military were subjected to conversion therapy by military health care institutions, including shock therapy and surgical interventions. Patriarchy also pervaded economic institutions. Indeed, the TRC found that women suffered more in economic terms than men during apartheid.[65]
The TRC organized two workshops on gender-based violence.[66] It also held three special women’s hearings – in Cape Town, Durban, and Johannesburg – to hear women’s testimonies, focusing on gender-specific abuses. In volume four of its report, the TRC documented the sexual, physical, and psychological abuses experienced by women at the hands of security forces in and out of detention. It also heard accounts of women as perpetrators, though just 1 percent of amnesty applications received by the commission came from women.[67] Only two female applicants, both ANC members, were granted amnesty.
The commission found that women were subjected to patriarchal norms not only by state institutions but also by the liberation movements.[68] Women were often prevented from engaging in politics by groups such as the ANC and the PAC, and instead encouraged to stay in the home. The TRC final report also included detailed accounts of gender-based sexual abuse perpetrated by male members of the liberation movements.
Truth
The TRC made a number of positive strides toward identifying previously unknown details surrounding human rights abuses. This allowed many individuals to find out what had happened to loved ones who had been killed or forcibly disappeared. Additionally, the commission allowed perpetrators to admit to their crimes, ensuring both acknowledgment for victims and the creation of new public records.
Despite such gains, many apartheid-era atrocities have gone unreported.[69] The fact that in many cases victims or their families came forward while perpetrators did not suggests that crucial first-hand accounts of human rights abuses were not captured by the TRC. Ahmed Timol’s TRC hearing is one example: though his family testified, none of the security officers who arrested and interrogated Timol came forward despite the fact that at least some had tortured and (likely) murdered him.[70] Indeed, by the closing of the TRC, 21,000 victims had given testimony, in comparison to roughly 7,112 perpetrators who had applied for amnesty.[71]
Not only did many perpetrators fail to come forward to the TRC but in certain instances victims also failed to give statements. The final TRC report acknowledges this. It notes for instance that in areas such as the Cape Flats in Cape Town, many activists were generally resistant to giving statements or referring others to the commission, frustrated that the TRC was standing in the way of prosecuting perpetrators.[72] The TRC final report also notes that in some cases individuals were apprehensive about giving statements due to perceptions that there would be a lack of confidentiality or simply because they feared the publicity that TRC cases were attracting. TRC statement takers also noted that in small towns many white people refused to leave pamphlets and posters which provided information about the TRC in their shops or on streets.
An additional factor that hindered access to the full truth during the transitional period is that many military records were not made available to the TRC, despite its subpoena powers. In some cases, documents were destroyed by the apartheid intelligence services both prior to and after the transition to democracy. The TRC final report devotes an entire chapter to these problems, noting that it was “initially extremely difficult to obtain access to files in the possession of the SANDF for purposes of systematic research and investigation, due to a number of perceived legal restrictions governing files in the possession of Military Intelligence and other structures within the SANDF. This had a serious impact on the research and investigative work of the Commission which, in turn, significantly affected the outcome of aspects of the findings of the Commission.”[73]
The destruction of records by the apartheid regime had an even more devastating impact on South Africa’s ability to record instances of human rights abuses. As the TRC report notes, “by May 1994, a massive deletion of state documentary memory within the security establishment had been achieved. … The motivation for this purging of official memory was clearly to prevent certain categories of record falling into the hands of the incoming government. The apartheid state was determined in this way to sanitise its image and protect its intelligence sources. It was also apparently intent on eliminating evidence of gross human rights violations.”[74]
A final obstacle to the attainment of truth in the post-apartheid period concerns the absence of prosecutions against those who did not receive amnesty. As noted, many perpetrators did not come forward to the TRC and many others were denied amnesty on the basis that they did not provide the full truth. An underlying premise of the TRC was that such individuals would face prosecution, and as such at least some details about these cases might be revealed. The fact that trials largely did not occur means that in many cases of human rights abuses, no investigations were conducted and no accurate formal records were established.
International Actors and Instruments
International bodies and actors played a limited role with regard to the TRC. While the South African government covered the majority of its budget, the TRC received substantial funding from the European Union, several European governments, and the United States to support different aspects of its operations, and several of these donors seconded police investigators and human rights lawyers to the TRC. The commission avoided undue pressure from these international donors, although this may be because the conditional amnesty was such a new approach at the time that donors were learning during the process as well and did not see clear areas in which to intervene. The TRC did not seek cooperation from international actors with its investigations, in part due to the amount of material it had to address within the country and in part to avoid claims for reparations from individuals across Southern Africa and further afield, for example in Europe.[75]
In terms of international instruments, the TRC drew on international human rights law but focused on gross violations of human rights, which it defined as the killing, abduction, torture, or severe ill-treatment of any person by someone acting with a political objective and including the planning and attempts to commit these acts.[76] These are violations of civil and political rights that relate to bodily integrity; they do not include economic, social and cultural rights violations. The TRC did acknowledge apartheid as a crime against humanity. It also recognized broad-based complicity through the institutional hearings, and emphasized historical injustices and socioeconomic abuses in its final report and recommendations, but it did not explicitly focus on structural abuses. This was in line with the work of earlier truth commissions, such as in Argentina.[77]
Since closing in the early 2000s, the TRC has been criticized for this human rights approach, with some arguing that it examined extraordinary civil and political rights abuses to the exclusion of the everyday abuses that underpinned political oppression under apartheid. It has been argued that this created a narrative that only a few individuals or bad apples committed violations, absolving the many passive beneficiaries of the racialized, institutionalized inequality of apartheid.[78]
It is important to note that the individuals who designed and worked at the TRC saw the commission as just one institution of the many institutions and policies that would be set up during and after the transition to address the legacies of apartheid.[79] The TRC came out of a negotiated settlement, at a time when there was still a real threat of widespread violence, and part of the settlement was that the apartheid-era civil service, including the security forces, would remain in place for five years after the political transition. The TRC thus represented a compromise within the context of both the settlement and the norms of transitional justice at the time.
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[2] Encyclopedia of Transitional Justice, 447; Patrick Duncan, “Sharpeville and After,” Africa Today 7, no. 3 (1960): 5-8.
[3] Encyclopedia of Transitional Justice, 447.
[4] Encyclopedia of Transitional Justice, 448; African National Congress, Skweyiya Commission Report.
[5] Van der Merwe, H., South Africa Country Study, produced as part the project ‘After the Dictatorship.’
[6] Encyclopedia of Transitional Justice, 448.
[7] South African Government, Truth and Reconciliation Commission of South Africa Report, http://www.info.gov.za/otherdocs/2003/trc/.
[8] Encyclopedia of Transitional Justice, 448-49; United States Institute of Peace, Truth Commission: South Africa.
[9] Truth and Reconciliation Commission of South Africa Report: Volume 5 (Pretoria: DoJ&CD, 1988), 202-03, http://www.justice.gov.za/trc/report/finalreport/Volume5.pdf.
[10] Truth and Reconciliation Commission of South Africa Report: Volume 5, 202-03.
[11] Ibid.
[12] Ibid.
[13] Truth and Reconciliation Commission of South Africa Report: Volume 4 (Pretoria: DoJ&CD, 1988), 05. http://www.justice.gov.za/trc/report/finalreport/Volume%204.pdf.
[14] Truth and Reconciliation Commission of South Africa Report: Volume 5, 197.
[15] Ibid.
[16] Ibid., 199.
[17] Truth and Reconciliation Commission of South Africa Report: Volume 3 (Pretoria: DoJ&CD, 1988), 03, http://www.justice.gov.za/trc/report/finalreport/Volume%203.pdf.
[18] Truth and Reconciliation Commission of South Africa Report: Volume 5, 209-10.
[19] Truth and Reconciliation Commission, A Summary of Reparation and Rehabilitation Policy, Including Proposals Considered by the President, https://www.justice.gov.za/trc/reparations/summary.htm.
[20] Encyclopedia of Transitional Justice, 450.
[21] South African History Online, Magnus Malan’s trial ends, 11 October 1996, http://www.sahistory.org.za/dated-event/magnus-malan039s-trial-ends.
[22] Encyclopedia of Transitional Justice, 450.
[23] Ibid.
[24] Berat and Shain, “Retribution or Truth Telling in South Africa? Legacies of the Transitional Phase,” 165-66.
[25] Van der Merwe, South Africa Country Study, After the Dictatorship, 2021, 61.
[26] Hamber et al., Submission to the Truth and Reconciliation Commission: Survivors’ Perceptions of the Truth and Reconciliation Commission and Suggestions for the Final Report, 1997, https://www.csvr.org.za/submission-to-the-truth-and-reconciliation-commission-survivors-perceptions-of-the-truth-and-reconciliation-commission-and-suggestions-for-the-final-report/.
[27] Van der Merwe, South Africa Country Study, After the Dictatorship, 2021, 64-65.
[28] Heywood, M., Apartheid-era crimes: A commission of inquiry is needed to establish the truth.
[29] Foundation for Human Rights, Nokuthula Simelane: Case Overview, https://unfinishedtrc.co.za/nokuthula-simelane/#trc-simelane.
[30] NPA, Priority Crimes Litigation Unit, https://www.npa.gov.za/sites/default/files/pclu/About%20PCLU%20signedoff.pdf.
[31] Foundation for Human Rights, Nokuthula Simelane: Case Overview, https://unfinishedtrc.co.za/nokuthula-simelane/#trc-simelane.
[32] Makhanya, M., Did the ANC Protect Killers, City Press, 24 May 2015, https://www.news24.com/citypress/News/Did-ANC-protect-killers-20150523.
[33] Foundation for Human Rights, Nokuthula Simelane: Case Overview, https://unfinishedtrc.co.za/nokuthula-simelane/#trc-simelane.
[34] Pather, R., Timol Ruling Just the Beginning, Mail & Guardian, 13 October 2017, https://mg.co.za/article/2017-10-13-00-timol-ruling-just-the-beginning/.
[35] Zalk, N. and Wende, H., South Africa: My Father Died for This, Al Jazeera documentary, 2021, https://www.youtube.com/watch?v=x8GLEz8CG2I&ab_channel=AlJazeeraEnglish.
[36] Foundation for Human Rights, Cradock 4: Case Overview, https://unfinishedtrc.co.za/the-cradock-four/#simelane-justice164a-d208asd.
[37] Mayet, M., Missing Cradock 4 Murder Investigation a Coverup?, The Mercury, 12 October 2020, https://www.pressreader.com/south-africa/the-mercury-south-africa/20201012/282041919600234.
[38] Zalk, N. and Wende, H., South Africa: My Father Died for This.
[39] Thomas, K., Ahmed Timol: The quest for justice for people murdered in apartheid’s jails, 2019, https://theconversation.com/ahmed-timol-the-quest-for-justice-for-people-murdered-in-apartheids-jails-116843.
[40] Pather, R., Timol: New Case Against Security Cop, Mail & Guardian, 19 October 2018, https://mg.co.za/article/2018-10-19-00-timol-new-case-against-security-cop/.
[41] Mothle, J., The Re-opened Inquest into the Death of Ahmed Essop Timol in the Gauteng High Court of South Africa, https://www.ahmedtimol.co.za/wp-content/uploads/2019/01/Judgment-THE-RE-OPENED-INQUEST-INTO-THE-DEATH-OF-AHMED-ESSOP-TIMOL.pdf.
[42] Pather, R., Timol Family Hopes for the Truth from Security Branch Policemen, Mail & Guardian, 17 September 2018, https://mg.co.za/article/2018-09-17-timol-family-hopes-for-truth-from-security-branch-policeman/.
[43] Mabuza, E., Joao Rodrigues Approaches Concourt to Avoid Trial for Ahmed Timol Murder, 2021.
[44] Foundation for Human Rights, Press Release, 10 August 2021, https://unfinishedtrc.co.za/press-release-the-re-opened-inquest-into-the-death-in-detention-of-dr-hoosen-haffejee-to-be-heard-in-the-durban-high-court/.
[45] Ho, U. 2021. Charge Security Branch officers with activist’s death, court urged in closing arguments. Daily Maverick. 5 July. Available at: https://www.dailymaverick.co.za/article/2021-07-05-charge-security-branch-officers-with-activists-death-court-urged-in-closing-arguments/
[46] Gould, C. & Varney, H. 2012. Special Presidential Pardons Undermine Truth and Reconciliation in South Africa. Institute for Security Studies. Available at: https://issafrica.org/amp/iss-today/special-presidential-pardons-undermine-truth-and-reconciliation-in-south-africa
[47] CSVR. 2010. Press Release: The South African Coalition for Transitional Justice Urges Further Efforts to Engage Victims of Pardon Applicants. Available at: https://www.csvr.org.za/press-release-the-south-african-coalition-for-transitional-justice191010/
[48] The Constitution Hill Trust.. Victims Must have a Say in Pardons. Available at: https://ourconstitution.constitutionhill.org.za/victims-must-have-a-say-in-pardons/
[49] Turner, J. 2009. Forgiveness Under a Veil of Secrecy. CSVR. Available at: https://www.csvr.org.za/forgiveness-under-a-veil-of-secrecy-25042009/
[50] Gould, C. & Varney, H. 2012. Special Presidential Pardons Undermine Truth and Reconciliation in South Africa. Institute for Security Studies. Available at: https://issafrica.org/amp/iss-today/special-presidential-pardons-undermine-truth-and-reconciliation-in-south-africa
[51] Marrian, N. 2010. Constitutional Court Upholds Pardon Decision. Mail & Guardian. 10 February. Available at: https://mg.co.za/article/2010-02-23-constitutional-court-upholds-pardons-decision/
[52] CSVR. 2010. Press Release: The South African Coalition for Transitional Justice Urges Further Efforts to Engage Victims of Pardon Applicants. Available at: https://www.csvr.org.za/press-release-the-south-african-coalition-for-transitional-justice191010/
[53] Ibid
[54] The Constitution Hill Trust.. Victims Must have a Say in Pardons. Available at: https://ourconstitution.constitutionhill.org.za/victims-must-have-a-say-in-pardons/
[55] Van der Merwe, 2021. South Africa Country Study, After the Dictatorship. Pp. 37
[56] Makhalemele, O. Still not Talking: The South African Government’s Exclusive Reparations Policy and the Impact of the R 30,000 Financial Reparations on Survivors. In Ferstman, C., Goetz, M., & Stephens, A. (eds). Reparations for victims of Genocide, War Crimes and Crimes Against Humanity. Pp 457.
[57] Van der Merwe, South Africa Country Study, 37.
[58] Makhalemele, O., Still not talking: Government’s exclusive reparations policy and the impact of the 30 000 financial reparations on survivors, CSVR, 2004, http://www.csvr.org.za/docs/reconciliation/stillnottalking.pdf.
[59] SACTJ Submission to Department of Justice and Constitutional Development, https://www.csvr.org.za/sactj-comments-draft-regulations-department-of-justice-reparations/.
[60] Department of Justice, Education assistance for the TRC-identified victims of apartheid, 2021, https://www.justice.gov.za/forms/form_trc.html.
[61] Van der Merwe, South Africa Country Study, 38.
[62] Naidu-Silverman, E., What South Africa can teach the US about reparations, 2019, https://www.washingtonpost.com/outlook/2019/06/25/what-south-africa-can-teach-us-about-reparations.
[63] Van der Merwe, South Africa Country Study, 38.
[64] Ibid., 18.
[65] Truth and Reconciliation Commission of South Africa Report: Volume 4, 290.
[66] Ibid., 284-91.
[67] Ibid., 314-15.
[68] Ibid.
[69] Stanley, E., Evaluating the Truth and Reconciliation Commission, Journal of Modern African Studies 39, no. 3 (2001): 529.
[70] Thomas, K., Ahmed Timol: The quest for justice for people murdered in apartheid’s jails, News24, 15 May 2019, https://www.news24.com/news24/Analysis/ahmed-timol-the-quest-for-justice-for-people-murdered-in-apartheids-jails-20190515.
[71] United States Institute of Peace, Truth Commission: South Africa.
[72] Truth and Reconciliation Commission of South Africa: Volume 1, 392.
[73] Ibid., 203.
[74] Ibid., 229.
[75] McPherson, D., Supporting Post-Conflict Reconciliation: An Assessment of International Assistance to South Africa’s Truth Commission, CSVR, 2001.
[76] Memorandum on the Objects of the Promotion of National Unity and Reconciliation Bill, 1995, https://www.justice.gov.za/trc/legal/bill.htm.
[77] Fullard, M. and Rousseau, N., Uncertain Borders: The TRC and the (Un)Making of Public Myths, KRONOS: Southern African Histories 34, no. 1 (2008): 215-39.
[78] Mamdani, M., Amnesty or Impunity? A Preliminary Critique of the Report of Truth and Reconciliation Commission of South Africa (TRC), Diacritics 32, no. 3–4 (2002): 33-59; Madlingozi, T., On Transitional Justice Entrepreneurs and the Production of Victims, Journal of Human Rights Practice 2, no. 2 (2010): 208-28.
[79] Fullard and Rousseau, Uncertain Borders.
