This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
04 Nov 1999: Burton, Mary
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POM. As usual, Mary, thank you for taking the time to see me.
MB. You're very welcome.
POM. When I read back over our transcripts I always find that they raise as many questions as they answer, which I suppose is the way things should be. Let me begin almost at the end, I don't know whether you've read it, Anthea Jeffries report on the truth about the Truth Commission where she makes some non-emotional - it seems to me to be a well researched document, I don't know what she may have left out or not left out so I'm not in a position to judge the quality of the research but given her credentials she would be regarded as somebody who would carry out respectable, academically acceptable, responsible research and not just take a whack at this piece of evidence or that piece of evidence and do a hack job. She says two things, one that the TRC, she is paying recognition to what the TRC has done, she says: "The methodology is flawed in terms of how the TRC went about the commission itself and that it was often based on untested and hearsay allegations. It relied on secret testimony, the self-serving accusations of criminals seeking to escape imprisonment. It contradicted and on occasion misrepresented earlier judicial rulings, sometimes it even got the basic facts wrong as it left out major massacres and used incomplete and unverified 'evidence' to hold people accountable for killings without providing proper reasons. The TRC acknowledge that 'lies, half truth and denial' were no basis to build the new SA, yet the report that it has issued has done as much to distort as to disclose the truth."
. She takes issue with two things, John Kane-Berman in his introduction says, "The commission went so far as to re-define the meaning of truth and indeed to denigrate the very notion of 'factual and objective truth'. An inventive 'narrative', 'dialogue', 'healing truths', tacitly admitting that the truth it told was something other than factual. Distortion also arises from what the TRC left out of its account. It failed adequately to probe the revolutionary activities the counter-revolution was supposedly designed to overcome."
. It says, and this of course is open to all kinds of interpretation, "The conflict, contrary to earlier predictions about SA was not a race war. It was one of a major, for some, embarrassing problem confronting anyone examining the fatalities that occurred from 1984 to 1994 is the fact that nearly all the victims were blacks who were killed by other blacks. The real questions why these deaths occurred, can they be explained by rivalry between competing political organisations? There was of course rivalry between the ANC and IFP, there was also rivalry involving other organisations such as the PAC and AZAPO though on a smaller scale. But why was some of the rivalry so violent, particularly as between the IFP and ANC. Two broad theories have been proffered, the first is that the conflict was engendered and continually stoked by a government-based third force which sought thereby to de-stabilise the ANC. The second recognises the brutalities of apartheid and the methods used to maintain it but posits that many or perhaps even most of the deaths arose in the context of 'the people's war'. The TRC in effect embraced third security theory though it found that 'little evidence existed of a centrally directed coherent and formally constituted third force'. It also held that elements in the security forces and the IFP had fomented and engaged in violence with the active collusion of senior security force personnel and the effective condonation of the government. It also requires an explanation as to why the government would embark on a process of fundamental political and constitutional reform and at the same time allow its agents to plunge the country into violence. What then of the theory about the people's war? The people's war explicitly targeted not only policemen and soldiers but also local councillors, 'collaborators', 'informers' and all puppets and agents of the regime. The aim of the people's war was to render SA ungovernable and ultimately overthrow all authority but because it relied on the masses to mount insurrection rather than on trained guerrillas to fight the police and army, the violence it generated spiralled out of control. Because it targeted so many in the black community it also provoked a violent backlash from at least some."
MB. Sorry, can I just check? That's Anthea Jeffries speaking isn't it?
POM. No, this is John Kane-Berman in his introduction summarising her results. "Because it targeted so many in the black community it also provoked a violent backlash from some at least. Once the retaliation began moreover it developed its own momentum and among other consequences evolved into a civil war between the ANC and IFP that spread in time from Natal and KwaZulu to the Reef. There was a strong prima facie case for probing the people's war theory as there was for examining third force theory."
. . She concludes, or the study concludes, that while you investigated the first, the TRC did not investigate the second and as a result at least 12,000 deaths are totally unaccounted for. It said the TRC used, the methods used were also flawed and in her I'm sure you've read this.
MB. I have read it, not very recently.
POM. She goes through what she goes through and the things she goes through. In particular she deals with the one incident, and many people would always be very interested in, is that the Boipatong massacre, which she goes through in some detail quoting previous reports from Dr Waddington, the Goldstone Commission, that the residents of the hostel were in fact arrested and sentenced for the murders, that as many as 120 witnesses from the Boipatong areas gave evidence and denied that there had been police collusion, that the evidence of those who said that they had seen whites with blackened faces was discredited under cross-examination in court and that the TRC was aware of the court's decision for it cited Judge Smit as having, "Unequivocably stated that in the light of the testimony he had heard there was no evidence to support the allegation that the police in any way participated in or were involved in the Boipatong massacre." After listing those, it says that: "The TRC's findings were 45 people were killed and 22 severely injured in Boipatong by attackers who were primarily supporters of the IFP. The commission finds that KwaMadala Residence together with the police planned and carried out an attack on the community of Boipatong and surrounding informal squatter settlements. The commission finds that the police colluded with the attackers and dropped them off. The commission finds that white men with blackened faces participated in the attack. The commission finds further that despite the presence of armed vehicles in the township the police failed to intervene and stop the attackers despite calls by the residents of Boipatong. The commission finds that the police were responsible for destroying crucial evidence." I could go on.
. It says, "The TRC fails to explain how it reconciled its views that police investigations were biased in favour of the IFP with the fact that 17 residents of a hostel that primarily housed supporters of the IFP were successfully prosecuted for murder, nor does the TRC explain its rejection of the conclusions reached by both Dr Waddington, Justice Goldstone and Judge Smit that the police had not been involved in the killings. It also failed to explain that the reasons for discounting Judge Smit's findings, that the erasure of the ISU tapes and destruction of the eight shells, had been the result of incompetence rather than anything sinister. It makes no mention of the ANC's apparent instructions to residents not to co-operate with the police as the likelihood of this would have increased the difficulty of mounting a proper investigation. It gives no reason why the untested allegations put before should have prevailed over the conclusions of the trial before court. Those conclusions furthermore had been based on the fact that three accomplices and some 120 residents of Boipatong had all testified that the police had not played any part in the attack. Moreover, the witnesses who had alleged the opposite had been shown under cross-examination to be unreliable and dishonest. According to Mr Jean Kelberg(?) a Swedish policeman serving with the TRC, the commission conducted no real investigation of the massacre. It found no new witnesses and elicited no novel or compelling testimony to cast fresh light on the killings. The TRC seems to have its evidence virtually verbatim from a report by the Human Rights Commission which was compiled within a few weeks of the massacre at most and before the allegations against the police had been put to any test. It also ignored attacks on IFP supporters that it seems had immediately preceded the massacre. These attacks as described by two journalists, Mr Rian Malan and Mr Dennis Beckett, had begun four days prior to the massacre." I've said enough.
. The general thrust of what the TRC's response to her report would be, or has been, or has there been any?
MB. I haven't seen any public response. There certainly have been a number of letters in the press, I wouldn't have seen all of them. I think that our Research Department has discussed with Archbishop Tutu whether to respond and as far as I know there has been no official response from the TRC to Dr Jeffries' book.
POM. Do you think there ought to be one to clarify the particular cases she raises?
MB. I'm not sure that it would be useful but one of the difficulties is that there is no longer a TRC that can come together as a commission and discuss the issues raised and formulate a reply.
POM. Why do you think it wouldn't be useful?
MB. Because I think that Dr Jeffrey's report comes from a very different approach to telling the story of what happened. The TRC didn't ever claim to be an academic research document.
POM. But there's a difference between a story and the truth.
MB. Yes, there is a difference between a story and a truth and I don't really want to comment on the Boipatong without going back and looking at our records because I don't know the details at this distance. I think it's quite possible, especially if the investigator says that we didn't look at the later evidence that had come forward. I think that's a problem but the trouble is that the commission never had the capacity to really cast a huge sweep over everything that there was. There may be mistakes in the report, there may be things that have been overlooked.
POM. I suppose one of the larger points she is making is that the TRC was given the task of ascertaining the truth of what happened between 1960 and 1994 and that instead of investigating and establishing what might be regarded as the hard facts or the truth, however you want to define that, it relied mainly on the stories of people, on narrative, on untested allegations of what people said but was in the end uncorroborated and there may have been a certain critical mass of this kind of evidence after which the TRC concluded that critical mass constitutes evidence of truth but it would also have been selective evidence from individuals who came forward.
MB. Possibly. I think one of the problems was that not everybody did come forward, not everybody made their information available and that may have skewed some of the information. For me one of the important things is that those personal narratives have served to counter-balance some of the prevailing truths such as those that came from investigations that were carried out previously which were often done very soon after which also provided one version of the truth and I think the only thing that the commission was able to do in some of those cases was provide some different stories.
POM. Dr Waddington, a highly respected investigator, and his team conducted a very thorough investigation of the case and were highly critical of the way in which the police handled the case, both its documentation and from every aspect of the case.
MB. There was that story of the missing tapes and so on.
POM. And they found in the end, it was their conclusion that that had been done by sheer incompetence rather than by anything else. Other than that, even leaving that aside, he said they could find no evidence and these were not insiders belonging to or affiliated with one party or another. You had this Swedish policeman who worked for the TRC saying, "We didn't really conduct an investigation, we just reviewed what was there." You have Dr Jeffries saying if you compare the TRC report with the report of the Human Rights Commission conducted a few weeks after the incident and they are both parallel, almost it's like plagiarism, one is taken from the other. What I'm getting at comes back to this question of truth which we have discussed in the past: what kind of truth were you looking for? And the point, I would say to me an important point given the two theories about what the violence may have been induced by, either the third force theory of elements in the security forces with the approval, benign or whatever, of their superiors acting in collusion with the IFP to foment the violence on the one hand, so that's a security related, government engendered explanation of why the violence occurred versus the people's war theory where you had a situation of supporters of the ANC getting police collaborators, informers and necklacings, puppets of the government, whomever, retaliations by families perhaps, by supporters of the IFP, and I've heard this since I've come here into the country in 1989 particularly among Zulus, that vengeance is built into their culture and that a murder done to one of their own is avenged and that the cycle of revenge killings goes on and sometimes one can trace a killing now back to an origin of almost 100 years ago if one went through it in detail. I recall now with some haziness Rian Malan and The Traitor's Heart recalling a trial which he attended where the original cause for the murder lay some 80 or 90 years back. Her proposition would be that side of the coin was never looked at.
MB. I would not agree that it was never looked at and I would not agree that the two theories are incompatible. I think it is perfectly possible to acknowledge that there are definitely some actions by the agents of the state to fuel anger, to contribute to the violence in that way, planting weapons and a variety of different stories.
POM. But the anger would have already have existed. What they were doing is they were stoking it.
MB. Yes. That's why I find this argument so difficult because I find some of Dr Jeffries work extremely useful, she's a meticulous researcher, but it's from one point of view always.
POM. When you say one point of view you mean?
MB. It is arguing that the majority, perhaps, or if one is putting these two possible arguments in opposition to one another, her argument would be that the major cause of the violence was pre-existing divisions exacerbated by the actions of the liberation movements.
POM. Or that of the 15,000 people who were killed between 1990 and 1994 you could say it's attributable to rogue elements in the security forces operating with the benign approval of their superiors to foment the violence, and if they did, they did a hell or a job fomenting, stoking 15,000 people to kill each other. The security forces certainly didn't kill any place, execute anything close to, they would all be up on trial if there was evidence to that extent, so while there may have been a catalyst to make something happen, the ingredients for that happening already existed and that it was perhaps essentially more of a civil war between the ANC Zulu and the IFP Zulu in KZN where the security forces kind of threw in the odd bit of ammunition to make sure things kept going.
MB. I don't think that full story has yet been told and I don't think anybody knows all the details of it. Even when you see the thousands of statements which came in at the end of the commission's life from KZN which are untestable, they are very short, we can't follow up some of the people who made the statements because they made them to other people, not to TRC staff and so on. There's an enormous mass of work that could still be done if anybody had the capacity to go and follow up all those stories, but does the country have the capacity and the resources to go digging in that history? It is very important. Whether it would do any good or whether it would foment continued animosity I don't really know.
POM. And the IFP didn't co-operate with you in any substantial way?
MB. Well some of the last stories that came in were people from the IFP because they suddenly realised that they might not qualify for some kind of reparations and so on and all of our appeals to the IFP to encourage them and their supporters to participate, when I think they suddenly realised that they might possibly be denying their supporters the opportunity to be eligible for reparations I'm just saying that there is a great deal of research that needs to be done if we are ever going to know how to account for those thousands of deaths and I think that a lot of the views that are taken up are people's old partisanship because we all interpret the knowledge that is there on the basis of views of the people who are producing the arguments and so on. So I think that Dr Jeffries makes very valid points; the commission did not investigate with meticulous attention every single case that came before us and it is possible that Boipatong is one where we didn't make use of later information. I would need to check that to be absolutely confident of that.
POM. I suppose the point in rebuttal would be that despite that, the commission made some very specific conclusions regarding the origins and the perpetrators of certain incidents of violence which she would say ... So I suppose her point would be that perhaps the commission is correct but that it should have couched the language of its conclusions in a different way that didn't suggest that this is the truth about this incident, period, that this is a version found under these conditions which should be further investigated or further looked into because there are discrepancies between it and other investigations that have been carried out which we have been unable to reconcile. I suppose it's the point of the failure to reconcile different accounts, to give reason of why the commission would choose A over B is more important than maybe the conclusion itself.
MB. So what do want me to say, yes that's right, that's what Dr Jeffries says, or that's what you say?
POM. No I'm not saying that Dr Jeffries is right at all. I'm saying that if I were in the position of being a commissioner and I said I found on the one hand here there are four reports that have been carried out, at least three out of the four by impartial international independent commissions had found under rigorous investigation, rigorous forensic investigation, that the police were not involved in this particular incident. On the other hand here we have allegations by a number of people that the police were involved. We accept version B, we don't accept version A. What we do not do, and I would say that's fine if you accept version B, now please explain to me why you choose to discount these three reports and to pick the fourth? I'm not saying you didn't make the right choice, I'm asking you why did you make one choice over the other? Do you know what I'm getting at?
MB. Yes I know what you're getting at but I think it is expecting the commission to have done something different from what it did and I think that's why you have the comments that Kane-Berman quotes from the Archbishop's introduction about the kinds of truth that are in the report, because there is a great unevenness in the commission's report. On the one hand it is this broad sweep of trying to tell different versions of the truth and on the other hand there are findings that look and sound like legal findings that are based on properly constructed arguments where a choice has been made between version A and version B. The reality is that in many of the findings we didn't do that. The commission as a commission was not presented with version A and version B, it was presented with a proposed finding that had been made by people who had worked on the investigation and made a finding and as Dr Jeffries has pointed out some of them have not taken into consideration all the facts, probably because all the facts were not placed before it.
POM. Would the commissioners not have said that's fine, I've looked at your findings in this regard but I don't see any mention in your findings as to why you discounted the findings of other investigations, why you found them inadequate, why you find them not credible, why you found them this, why you found them that. You just presented me with a set of conclusions based on "your own investigation"?
MB. Well the commissioners who were particularly knowledgeable of one area or another would pose questions to the investigating team, for example in the Western Cape, presented with a finding, an area that I'm familiar with and its history, I would be in a position to say, now have you taken into consideration this, I'm not satisfied with the wording of the finding here. But not every commissioner was going to be knowledgeable about every particular incident and have the capacity to ask those questions and to call up all the evidence, particularly as it was not a question of a trial where you have opposing versions being contested before the commission. For example, one of the aspects that is raised in the report is the question of the deaths of members of the Police Force over a long period of time and the Institute of Race Relations used, and maybe still does, keep accurate records. It is one of the things that it's very famous for, it's statistical information. It used to keep records of the number of Police who were killed in active service or in conditions which suggested they might have been targets of assassination and so on. Now I remember pleading with our investigators to look up some of these statistics but it was early on decided in the life of the commission that we would work from the basis of people coming forward to make statements to us. If I had been in the Institute of Race Relations I would have come to the TRC and said these are our records, we know that X number of Police personnel were killed between this and this date, we think this is something you should investigate. OK, the Institute's Year Books and surveys and so on were there. The TRC didn't go out of its way specifically to investigate areas, maybe we should have, such as that and we decided at an early stage that we would use research documentation to corroborate statements that were made to us. We didn't have the capacity to go out and survey all the information that was available at any particular time.
POM. But then when you said that the commission at an early stage made a decision to rely on people coming forward, in our last interview you said that at some points the commission had a certain difficulty, that people would come to members of the commission or come to delegations of the commission and say, "But what's in it for me?" And this is where the question of reparations arose, that if they were found to be victims, that their human rights had been grossly violated, that they would be eligible for reparations and now you have this huge row going which you predicted two years ago over (a) the amount of money available, and (b) the slowness with which reparations are being paid, and you have now marches in the streets of Johannesburg by victims who said they thought the TRC was going to pay them this amount of money and obviously their expectations that they were going to receive substantial amounts of money, whereas I think the limit is R2000 or something except in exceptional cases. So you now have victims marching feeling that they were taken advantage of by the TRC, that they were enticed into telling their stories on the basis that it would be worth their while and they are finding not only was it not worth their while but they endured the suffering, going through that, and they've received nothing so far in compensation.
MB. OK, so now we're going to talk about reparations?
POM. The two are connected in the sense that if you're relying on the statement of people coming forward
MB. No I don't think the two are connected in that way because
POM. Well it was also an inducement.
MB. No, no, it was never an inducement. At the very beginning when we started on the commission, we told everybody that it was not a question of reparations. I remember both documentation and standing on platforms myself and talking about maybe community reparations and maybe symbolic memorials and so on. Then at a much later stage the people who came forward to make statements, and it's in the statements they made, there was a question in the questionnaire: what can the TRC do for you? It was a question that I was a bit worried about because I wondered what expectations it might raise, and all of them say things like, "There should be monuments", or, "I would like a gravestone for my child", and that sort of thing. In fact so many of them say that that I have a feeling that maybe our statement takers raised that question as a possibility, which contradicts the fact that no statement taker was suggesting that maybe they might get some money out of it.
. What happened was that at quite a late stage in the commission's history, the Reparations Committee put forward its recommendations and then, yes, there began to be the high expectations of what money might be available but that was quite late in the process. It may have accounted for some of the last minute rush of statements coming in but it was certainly not an early inducement. But what has happened is that ever since the report was presented a year ago there has been absolutely no indication from the government on what it intends to do about reparations. If the government had at that stage debated a recommendation and said we can't afford those reparations that the TRC has recommended, at least people would have known that. It's this long year of silence from the government that has created the raised expectations and demands from the victims.
POM. Now your exact quote, which you are free to qualify, you're not under cross-examination, it's not a court of law, this is another version of trying to get at the truth, is: "When we first started in the commission we all thought that there would not be any individual reparation and I remember when we went out to talk to people about the commission and to tell them about it and to encourage them to come forward and make statements, some of the things people asked was: what's in it for us? And we talked about symbolic reparation, we talked about the community development projects that were being specifically earmarked as part of reparations. We deliberately avoided making any suggestion that there would be any individual compensation. Then our Reparations & Rehabilitation Committee started to swing into action and to investigate what had happened in other parts of the world and they made a very strong case to the commission that everywhere victims had a right to some kind of compensation, to a financial compensation, some acknowledgement of suffering was the very least that was required."
MB. I think that's what I just said actually, so precisely the same as what I said a year ago.
POM. But you wouldn't see that as any kind of when people say what's in it for me, is that the statement of, "I will co-operate if I see it's in some way advantageous to me but if it's not advantageous in some way then I won't participate?"
MB. Well I think if people ask what's in it for me and the answer they got was no particular money but in community reparations then it's their choice whether they continue to participate or not.
POM. Yes. Now they're marching in the streets, demanding money and some people saying, "If I had known in the beginning that the amount of reparations I was eligible for (a) would be two thousand lousy rand, and (b) that there would be this huge delay in it being paid out, I wouldn't have come forward in the first place. It wasn't worth the suffering that I went through. An injustice has been done to me. I now am a victim of the very process that was supposed to remedy the injustices done against me."
MB. I still want to try and separate this. I honestly don't think that people came forward to make statements to the commission because they wanted money, and I think the statement, when somebody eventually goes through all our statement forms and so on, will corroborate that. People did not come forward because they wanted money, certainly not in the first year of the commission. Maybe after that some of that may have crept in. People came forward because they really wanted to talk and because they were poor and because they were angry and because they had not benefited from the process of the political transformation and all of those things. But the very process of telling your story and then having it maybe appear on TV and suddenly remembering how bad it all was created further anger and there was a sense, especially after the TRC presented its recommendations, which included then a considerable amount of money as individual reparations. Then, yes, people began to think, "OK, now I've gone through all of this but at least I'm going to get something out of it." And at the end of that, especially when the report was presented and it included all those recommendations, I think victims then really thought now something is going to happen and I think they are very angry and I reckon it's fine for them to march in the streets of Johannesburg. I do think that there are small groups of people who are much angrier than others. I think a lot, the majority of the victims are unhappy but are not mobilised. But I think the anger and the dissatisfaction is very widespread and I base that simply on phone-in radio programmes when I talk on the radio and that kind of thing. People are dissatisfied with the whole response and most people don't understand the distinction between the TRC and the government and what our role is as a commission and what the government's responsibility is. So naturally their anger is directed at the TRC that put them through all this process.
. I have just seen the statement put out by the NGO Working Group in Johannesburg, the Centre for the Study of Violence and Reconciliation, and a number of NGOs have come together and they want to try and get the government to respond and indicate what it's going to do. Coincidentally, perhaps it's not completely coincidental because it's a year's anniversary since the presentation of the report, a similar NGO group in Cape Town has been meeting and discussing the same thing: what can be done to get the government to say what it's going to do? I personally think if the government would just say something it would be a great help. If they would say, "We can't afford those reparations, we'll do what we're already doing, the urgent interim relief payments which are well advanced, people are getting that, we'll do one further payment to that." That's what I would really like to see. If they can't accept the whole recommendations I think it would be a very important gesture at least to make one further payment which they should decide what can be afforded. At least there'd be an answer.
POM. You had talked last year, and maybe you have covered it in your reply, but I had talked with you about a week before there was a debate in parliament where you said this whole issue was going to be discussed, where they were going to be discussing the TRC and it's recommendations. Was it at that point that they made the recommendations regarding, or legislate, or put into the process the legislation that resulted in the present reparations?
MB. That is being paid?
POM. Yes.
MB. No.
POM. My understanding is something like R300 million was put aside.
MB. Yes.
POM. And only R30 million has been paid out.
MB. Yes, well I'm not sure about the figures. The parliamentary debate of the report and the reparations are two separate things. The legislation provided for something called 'urgent interim relief' and our understanding when the commission began was that that money would be available for work during the life of the commission and there was a budget set and there was provision for it in either the 1996 or 1997 budget.
POM. Available as direct monetary compensation?
MB. Yes. Not compensation, what was called 'urgent interim relief'.
POM. What does that mean? It's like one of the government phrases.
MB. That is what was said in the legislation.
POM. That's like a National Party phrase. What does it mean?
MB. There was no indication in the legislation of what it meant. We interpreted it to mean things like people whose physical condition or psychological condition was so bad that they needed immediate help and we envisaged that we would be able to refer people for assistance then and there and that that money would be available. It never was. We never managed to set up a proper process of handling that money, a relationship between the TRC and the government department that would dish out the money and so on. So it never happened until quite late in the commission's process. Eventually we managed to agree, I'm not sure if I've got the wording right, but the government agreed that really every victim by now, three years later in the process, needed urgent assistance and so instead of being 'urgent interim relief' it became 'urgent relief' and everybody who was now found by the commission to have been a victim is receiving that sum which varies between R2000 and R5000.
POM. Let me ask you, and you may regard this as an unfair question, but conceptually what's the difference between your reply to the manner in which the commission interpreted, given no guidelines by the government where urgent relief was, and phrases bandied about in minutes of the security forces or the SSC and passed down to security force members to 'remove from society', 'eliminate', all the phrases that were euphemistically used? You say that your own interpretation of what 'urgent relief' meant, given no guidelines you assumed that it meant A when in fact the government said, no, that's not what it meant, we meant B or C.
MB. Firstly, I don't really see the analogy.
POM. It's just of the use of language, you were given language that was imprecise.
MB. I understand that, but nowhere in the Security Council minutes do you find the committee discussing amongst themselves what on earth do you mean by removing somebody and then a long debate about it. In our commission's minutes you will find long debates about what is urgent interim relief and how it can be used and the frustration of trying to access it, the frustration of finding that somebody needed a wheel chair and one couldn't get it for them through the government process of urgent interim relief and we had to go off and find a donor to produce the wheelchair. So it isn't a question of using the words to cover up, there is evidence in the minutes of grappling with what this wording in the legislation means. Absolutely.
POM. There's a difference but there's also, I'm not saying a comparison, there is also the case of where language is used in ways that are sufficiently vague that it can be open to different interpretations.
MB. I don't think so. I think that the legislation may have been sufficiently vague, that was one of the problems with the legislation that when the creators of the legislation envisaged the existence of this commission they couldn't possibly cover all the angles that might arise in its experience and so quite often I think they deliberately used broad language to try and let the commission have a certain amount of leeway as, I think we talked about it before, the definition of what a gross violation of human rights is. So when they talked about urgent interim relief I think the legislators probably also envisaged the commission encountering people whose need was too great to wait for final recommendations but the trouble is that although the provision was there in the legislation it was difficult to make the system work and so the result is that everybody, at least we had that, we had that money made available to us, and now it is possible to process it and people in this office are still working flat out doing that because the government will only pay out that money on receipt of a completely documented, recorded form which gives the name of the person who is to receive the reparations and a bank account number and all sorts of other criteria in order to ensure that the reparations get to the right person, and it took an enormously long time to get through all of that bureaucratic tangle but I understand that our end of the process, filling in the forms and getting them to the reparation fund (it's actually not called the reparation fund, it's called the President's fund for reparations) is well advanced. It took us a long time to get it all going in negotiations with the government's Finance Department but it is now happening. So one of the questions, one of the frustrations that the victims have, and it's an absolutely justified objection, is that they don't know who is getting it or on what basis or how fast or where they are in the queue because the process is not a chronological one. If you came to the commission in January of 1996 it doesn't mean you are first in the queue for getting reparations, it's a question of the amount of proof when the findings were made, it's a question of all sorts of things. If somebody died, for example -
POM. Now does the government draw up these guidelines, not the commission?
MB. No, the TRC draws up the guidelines. And one of our great anxieties, obviously when there's money at stake there are people competing for it. So if somebody has died, say a man in his thirties was a victim, is found to have been a victim, now you may have his mother, his wife, his common-law partner, both of whom have children, and the children who are all claimants. How do you decide who gets the reparations? How do you even find out if there is a previous wife other than the present partner who has perhaps made this claim. And so all of that needs to be checked and that's why it takes so long.
POM. Many of these people mustn't even have bank accounts.
MB. That's another problem. So then many of them have to be helped to get bank accounts. As far as I know, and I'd have to check that with our staff, as far as I know that is the only way that the government will make the payments, which is not unusual. Pension payments and disability grants and so on have to be made into people's bank accounts.
POM. But it's creating a huge layer of bureaucracy between the victims and
MB. Yes, now that's where I wear my other NGO hat, it's terribly unfair because many of the banks charge high rates for people to open bank accounts if it's simply to receive money and get it out again. They will charge people who have no money a figure which may seem small to people who have lots of money and keep running bank accounts but it was one of the Black Sash's great fights with the banks about pension and disability pay-outs that you get a pension of a couple of hundred rand and you pay R20 or R50 to open a bank account. Anyway, that's another story.
POM. Do you not think with Judge Heath's findings on the lifeboat, whatever it was called, to ABSA that the government has a little bit of leverage here with banks, as to say, listen we let you off the hook, you owe the taxpayer billions of dollars and we've decided that for the good of the country we will let it go but you have to give us something in return?
MB. I'm not sure exactly what the status quo is with bank accounts at the moment. I know that a few years ago from the Black Sash's point of view we were fighting that battle with the banks and I think there have been considerable improvements in the situation.
POM. It's outrageous.
MB. It certainly was outrageous, I'm not sure how bad it is now.
POM. Let me go backwards a bit to cases that make headlines and then seemingly disappear into a vacuum. De Klerk got an interdict that the TRC could not publish it's findings with regard to him and there were court dates set and whatever. Whatever happened to that case?
MB. I'm not certain where it stands at the moment. I really don't know. The last I heard of it was several months ago when there was a suggestion from the lawyers that the parties should meet and see whether they could resolve the matter out of court and I think that was the suggestion and I don't know whether it's happened or not.
POM. After Archbishop Tutu's remarks about if he were asked now whether or not he would have recommended De Klerk for the Nobel Prize in 1993, the lawyers might have a little more difficult time.
MB. Maybe. I think it is one of the great tragedies of the commission that
POM. That it was not able to ?
MB. I'm not sure whether I've talked about this before, but when he came to speak to the commission he made the most generous apology I have heard a leader in the NP make for apartheid and the hurt it caused. Up until then most of the senior spokespersons of the party had said things like, well apartheid would have been OK if it had really been done fairly but it didn't work properly. But he acknowledged that it had caused great hurt and great suffering to the country and I happened to be passing down the corridor where they had the TV monitor and I heard him say it and I thought how wonderful, at last this is going to make such a difference. And it wasn't until later in the day that I heard the subsequent exchanges between De Klerk and Archbishop Tutu where Tutu challenged him on the gross violations that had taken place under the authority of the NP and it all boils down to this question of who knew what the security forces doing and on whose instructions and Mr de Klerk said they were all rotten apples in the security forces, they were not acting on instructions, etc. From them on really the relationship between him and Archbishop Tutu was very difficult, it was on the footing it had been before and I think that it made a really significant difference to the situation.
POM. The commission must have examined that in some detail, the activities and structures of both the National Security Management Systems and the State Security Council. Now just from my readings, and they would be readings regarding the SSC, the predominance of members on it were Chiefs and Generals of the Intelligence Agencies and the defence forces, and that the statutory members were confined to the Minister of Law & Order and Defence, that in fact the Ministers were a minority, the 'securocrats' the bureaucracy of the military apparatus and the secretariat that did the work for the Security Council, I think 56% of the staff alone came from the National Intelligence Service and something like 16% came from the defence force and 16% from the police and 11% from Foreign Affairs. So it was military men who were making decisions, at least after 1996 by most accounts that I have read and that these decisions of the SSC were never ratified by Cabinet, sometimes never even run by Cabinet; that in some cases Cabinet and the SSC were not informed of decisions and the cases that come to mind, quoted in a book by a man named Dan O'Mara called The Last Forty Years, were that the bombings that occurred during the Eminent Persons Group visit to SA, the declaration of emergency in 1986 and the banning of the UDF and 17 other organisations are all unilateral decisions taken by President Botha. He didn't inform anybody, just ordered them. They picked up the papers the following day and said, "Christ, there's a state of emergency." And the National Management Security System was the key agency that percolated down through every structure of society down to the local police station level, that gathered the information and fed it back to the State Security Council's secretariat who fed it to the State Security Council which relied on that information to make decisions. So it was military run, at that point it was not a civilian run state, it was a military run state.
MB. I would agree that that was very much the case although it wasn't formally so and we had members of the Cabinet and some of them said when they testified to us, I think it was Leon Wessels, who said, "We didn't ask the right questions."
POM. I find it interesting that you bring up Leon's name for two reasons: himself and Roelf Meyer emerged as the two, I won't say 'golden boys', but as those who went the furthest to express their most sincere apologies for the gross violations of human rights committed by the NP. Roelf Meyer was Secretary to the National Security Council so he would have been sitting there taking down the words, 'eliminate', 'wipe out', 'take out', so in this case there would be no reason to believe that he was in doubt as to what those words meant. He didn't have to ask questions as to what those words meant. He knew what they meant.
MB. He was right in there.
POM. He was right in it, but he never got pilloried for that whereas at that point FW de Klerk wasn't in that loop inside the NSC, he was a co-opted minister who had no say in discussions. In fact Roelf would have been further in the loop than De Klerk.
MB. I think that's probably true. I think that what one was asking of De Klerk was not to say, "I knew", but to say, "I was the leader at the time when the changes came into being and I take responsibility for what happened."
POM. Take Leon, this is something that I didn't know until recently, that he had been the Director of the National Security Management System under Adrian Vlok.
MB. I didn't know that either. At least I don't think I did.
POM. Well it turns out that he was.
MB. I may have known.
POM. So he too would have been right in there. He wasn't a minister who was on the periphery and said, "We sat in Cabinet and we might have suspected what was going on but we never bothered to enquire because we mightn't have liked the answers we received." He would have been privy to and part of the very proceedings that were using words like 'eliminate', 'wipe out', 'take out', 'remove permanently from society' or whatever, so again even his response saying, "We didn't ask the right questions", is being ingenuous on his part insofar as he was around people all the time who were using these words. He didn't have to ask a question.
MB. Well I think that's true, I think that's precisely the point. But the fact that he was prepared to come and say to the commission that that was so was at least an acknowledgement of the degree of
POM. Should he not have said, as our friend Roelf has said, "Yes I was present at SSC meetings", and Leon said, "I was present at the most senior level, I was Director of the NMSS and indeed the words 'eliminate', 'take out', 'wipe out', were used and, yes, we knew precisely what those words meant, we didn't have to ask a question, we knew exactly what they meant." It is a huge difference between the two statements. One is culpable by omission, the other is you were part of the commissioning. Right?
MB. Yes.
POM. It's no good me saying all these things and then find out you haven't answered the question, just nodded your head.
MB. Yes, the point is that they didn't come and say those things, so what is the Truth commission to do?
POM. Ask them directly. Did anybody ever put the question, "You, as taking the minutes of the SSC, did you take down words such as 'pick it up', 'eliminate', 'wipe out', 'take out'? Did you write those words down?"
MB. I would have to go back to the transcript to see whether anybody asked him that question. I don't remember.
POM. But would they have been remiss if they had not asked him that question?
MB. Probably.
POM. I feel I'm doing all the talking here. This is not going the way I envisaged. The named individuals, the 200 or so people who had been given the opportunity to respond to the commission's findings and who chose not to, are their cases just referred to the respective Attorney Generals? Has anything happened?
MB. I can't speak with any authority about that because it's happened since the end of the commission but I understand that a number of names have been given to the Attorney General and the necessary files will be made available to his staff for him to decide whether there will be prosecutions. A lot of the people who had those letters, in my own personal experience, the letters that I've sent to a local policeman here and an army officer there and an ex-member of uMkhonto weSizwe somewhere else, many people just said, "Well I was obeying orders, I'm not going to do any more about it. If that's what your finding against me is, that's too bad." Or a number of them went to lawyers for advice and I'm not sure what happened. But I would expect that in many of those cases there would not be grounds for prosecution, that the laws of the time were such that people were acting in agreement with those laws. For instance, where policemen had shot into a crowd of people and somebody had been shot and he had been indemnified already by the legislation of the time, I doubt whether a prosecution would take place in those circumstances.
POM. I talked to Joe Matthews, among others, about this last year and I said why didn't the people respond or apply for amnesty? He said it's simple, most of these cases would never stand up in a court of law where the rules of the game would be entirely different and every allegation would have to be tested and collaborated and every witness subject to investigation and cross-investigation and in most cases the cases just wouldn't stand up, so that's why they chose to say we'll take our chances. If you want to prosecute us you're going to lose. That's what he said.
MB. I think that may be so.
POM. My question in the larger sense, taking both ends of the spectrum so to speak, the two most highly visible cases, one would be Chief Mangosuthu Buthelezi with regard to whom the commission's findings are quite damning, that's using the word in a mild way, and with regard to Winnie, again with respect to whom the commission's findings are quite damning. Do you see any circumstances under which either of those individuals would be prosecuted for gross violations of human rights?
MB. I really don't know. I think Mr Ngcuka's team, the Attorney General's team is looking into the finding that was made in the case of Mrs Madikezela Mandela. I have heard nothing further about Chief Buthelezi.
POM. Just reading the agreement reached between the government and Judge Heath yesterday, the essence of it was that if he did want to proceed and prosecute ABSA, and he felt that he had the ammunition and the case to do so, that this would have a destabilising effect on the banking system as a whole in SA and it would be detrimental to the good of the country and therefore in the interests of the good of the country, the collective good, it would be better to let things go. Would the same criteria not hold with regard to Chief Buthelezi, that an attempt to prosecute him would open all the old wounds in KZN, probably see an eruption in violence there, again violence that might spiral out of proportion with God knows what consequences, making SA a pariah country for investment purposes or whatever, but certainly making the government more unstable rather than stable?
MB. I think there is an element of that risk in Chief Buthelezi's case and I will be quite surprised if we see a vigorous attempt to prosecute him. I also have no idea whether people would come forward to testify, whether a case would be able to be prosecuted against him and I think that is one of the elements that the Attorney General would have to weigh up. If you can't find witnesses who will stand up in court then there's no point in bringing a prosecution.
POM. Or if witnesses start dying mysteriously. So in a sense you are saying that, not that I have read every word of the commission but I have certainly gone through the conclusions and findings in some detail, and Chief Buthelezi is the one person who stands out in my mind as being, as I said, damned with regard to accusations whether collaboration with the regime, whether knowledge in ordering of hit squads or whatever. So what you are saying is with regard to probably the most damning charge against an individual by the TRC there is the least likelihood of there being a prosecution?
MB. I think that is so and I think that it really comes back to the whole reason for having a commission like this because if the new government had been, even if one's looking at the prospects of the new government from a 1993 perspective, if a new government had had the capacity to pursue major trials against people it saw as having been responsible for atrocities in the past then there probably would have been no commission and they would have proceeded.
POM. But there would have been no agreement and settlement in the first place.
MB. No agreement, no settlement, no elections and no need for a commission, and I think that is the history of truth commissions in all parts of the world, some of them much weaker than this one in their capacity to investigate precisely because the balance of power was so fragile and that continues to be the case. In this country, generally speaking, the new government was stable and strong and was able to allow a commission like this one to delve as much as it did. I don't think anybody is claiming that it covered all the areas that it could have covered. So one of the debates we had in the commission, and it is covered in the report, was whether there should be prosecutions at all. There were some people in the commission who felt that after the work we had done there should be no prosecutions, there should be an end to the process and the veil that is spoken of should be drawn and the slate should be wiped clean and all of those images. There were other people who felt that some people had deliberately not used the opportunity of the commission to come forward and therefore they were fair game, if you like. I think the eventual decision of the commission was that a balance was required, that maybe in certain cases there did need to be prosecutions simply in order to try and meet some of the victims' claims for justice if nothing else and to encourage respect for law and justice. But I think the commission's final conclusion that if there were to be prosecutions they should be done quickly and not dragged out over years and years is a very important one, certainly one that I would subscribe to.
POM. That has not happened?
MB. No.
POM. Just finally, Mary, an amnesty, there has been less talk about it now; should there be an amnesty even in the government's own interest since some of their members are included among the people who were named as possible targets of prosecution? Is it time to close the books and say this chapter of our history is behind us, certain aspects of it must be pursued in other ways, and if there were an amnesty would that mean that those who had applied for amnesty and were denied amnesty would under the amnesty qualify for amnesty?
MB. I can't speak for the commission as a whole, other commission spokespersons have responded to the idea of amnesty when it was mooted either only in KZN or nation-wide. I think all of us feel that some kind of blanket amnesty now would make complete nonsense of having had the commission at all, it would undo the process, it would be very unfair too the people who have come forward and humiliated themselves and implicated themselves in actions which clearly will have an impact on them for the rest of their lives.
POM. That you'd be rewarding those who avoided the commission and punishing those who opened up to it.
MB. Exactly. On the other hand I do see that if there is to be ongoing violence there might be a need for some kind of mechanism to deal with people who did not come before the commission and I would say that if the government feels that there is a continuing need for amnesty in order to cover people, that there might still be able to be some new arrangement that is struck. So I wouldn't be opposed to something like that if it had some of the conditions which brought some advantages to the TRC and therefore would not disadvantage the people who have been here. I would expect that amnesty should again be given only in exchange for full disclosure and a court could make that decision, you wouldn't have to have an ongoing Truth Commission to do something like that and that the victims should have some rights as they have had in the commission process, the right to attend hearings and the right to apply for some kind of reparations. Maybe if it's essential to have a new kind of amnesty in order to resolve ongoing conflicts that might be an answer but it shouldn't be something that just wipes out whatever happened through the commission.
POM. OK. Thank you ever so much. You're invaluable and an honest source of information. You don't equivocate or try to evade the questions. You'd be surprised how many people do.
. I was going to ask you, one of the people I'm talking to at length is Dr Barnard who has less than good things to say about the commission, but that aside he referred me to, if I wanted to get where the National Intelligence Agency stood, that I should look at their National Intelligence Agency's yearly assessments, a document they would give to Cabinet at the end of every year outlining the year behind and what they saw in the year ahead. Did the TRC have access to those?
MB. I don't know.
POM. How would I go about I'm trying to get hold of them but I don't know how to get hold of them. What would be the best way of getting hold of documents? If I wanted, say, a transcript of his testimony before the commission?
MB. That you would get from our Research Department, from our office here. You would start off talking to probably Yasmin Sooka, as a commissioner she's been continuing a great deal of the legal work.
POM. She's head of the Research Department?
MB. No, but she's the only commissioner left who is not an Amnesty Committee member and she is a lawyer and she has been quite close to the investigation process. I would guess that she would be able to give you an answer. You may have otherwise had some contact with Charles Villa-Vicenzio, the head of our Research Department. Now he is a professor in the Department of Religious Studies at the University of Cape Town.