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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
IX. The Need To Accord With Established Legal Principles
A further vital question is how adequately the TRC complied with its statutory duties when it came to assessing the evidence before it. This requires an evaluation of whether the TRC upheld its obligation to make its findings on a 'defensible basis' and 'in accordance with established legal principles'.
At various points in its report, the TRC stressed that it was not a court of law. This meant, it said, that it was not bound by the same rules of evidence as the courts. It added that 'if the full array of legal technicalities and nuances had been introduced into its work and decision-making function', this would have had various negative consequences. It would have made its task far more complex and time-consuming, rendering it even more difficult to complete its work as expeditiously as possible. It would have also opened the way for a repetition of past injustices, 'with victims of political conflict being excluded by legal technicalities' from claiming compensation for their losses. It would also have limited the number of cases with which the commission could deal, curtailing its capacity to report in full on the conflicts of the past.
The TRC also acknowledged that, while it was not a court of law, it was still a commission of inquiry. Its status as a commission, it said, obliged it to make 'defensible findings according to established legal principles'.
There is a contradiction in these statements. On the one hand, the TRC acknowledges that it is a statutory commission of inquiry, obliged to make its findings according to 'established legal principles'. On the other hand, it dismisses relevant legal rules as 'technicalities' that might inhibit the claiming of compensation and would, in any event, take too long to fulfil.
The commission's sympathy for victims of past abuses as well as its need for expeditious operation were important elements in the way its approached its complex task. These factors could not, however, override the TRC's overarching obligation to apply established legal principle in coming to conclusions regarding accountability for past violations. Established legal principle would seem to have required, moreover-if not the satisfaction of all the complex rules of evidence-then at least the fulfilment of five key criteria. It demanded, in particular, that the commission:
Ø. take adequate account of all relevant evidence;
Ø. verify the testimony presented to it;
Ø. uphold basic principles of justice;
Ø. function in an open and transparent manner; and
Ø. give reasons for its findings.
These are widely acknowledged common denominators of fairness in all legal proceedings, civil as well as criminal. How adequately the commission satisfied these five requirements needs thus to be assessed.
1. Taking adequate account of all relevant evidence
In order to accord with established legal principle, it was vital that the TRC take adequate account of all relevant information. Major shortcomings in this regard have previously been canvassed. (See The Need for Comprehensive Findings and Events and issues not investigated, above.) At minimum, the commission could scarcely claim to have canvassed all the evidence at a time when some 92% of relevant amnesty applications remained yet to be heard.
2. Verification of testimony
It is evident, as earlier described, that victim statements were generally not tested through cross-examination, that they commonly included hearsay, and that the 'low-level' corroboration they were accorded did not extend to the identity of perpetrators.
(See Victim statements, above.) This approach may have been in keeping with the commission's obligation to offer victims a supportive atmosphere in which to provide their stories. The TRC could not, however, allow its cathartic role to obscure its obligation to ensure that its findings of accountability were adequately verified.
Since victim testimony was generally not verified in this way, established legal principle required that it be excluded from consideration in making such findings. Often, however, the evidence of victims seems to have provided the primary basis for conclusions regarding culpability. On occasion, moreover, such testimony appears to have been accepted as the truth even where it contradicted judicial findings to the contrary.
(See Findings Based on a 'Balance of Probabilites', below.)
Since amnesty statements were open to cross-examination in amnesty hearings, this testimony merited, in principle, a greater weight than victim statements in making findings of accountability. Yet various important problems arose in this regard as well, for only 102 amnesty statements relevant to gross violations had been heard and upheld as accurate by the time the TRC compiled its report. (See Insufficient opportunity for cross-examination, above.) It is questionable, too-based on the Trust Feed example-whether even these 102 statements had been adequately verified in fact. (See Unexplained oddities in a key amnesty statement, above.)
3. Upholding basic principles of justice
Established legal principle required, too, that the commission comply with two basic rules: audi alteram partem (hear the other side) and nemo judex in sua causa (no one may be a judge in his own cause). The extent to which the TRC did so merits examination too.
Audi alteram partem
The commission's compliance with the audi alteram partem principle was challenged at an early stage in its proceedings. The first hearing it conducted (a victim hearing in East London in April 1996, convened by the Committee on Human Rights Violations) was intended to canvass the alleged torture and poisoning in the early 1980s of a political activist, Mr Siphiwe Mthimkulu, as well as his later alleged abduction and killing by two senior police officers, Brigadier Jan du Preez and Colonel Nick van Rensburg. Allegations to this effect-first made in April 1990 by a former police officer, Captain Dirk Coetzee, who claimed to have inside knowledge of various extra-judicial killings by the former security forces-were to be reiterated by Mr Mthimkulu's mother at the TRC hearing.
On 13th April 1996, the commission gave notice (through the commissioner of the South African Police Service) that Brig du Preez and Col van Rensburg were to be implicated in gross violations of human rights at its forthcoming hearing, to be held between 15th and 18th April 1996.The notice informed Brig du Preez and Col van Rensburg that 'an unnamed witness would testify that they were involved in, or had knowledge about, the poisoning and disappearance of a person, also unnamed'. According to the TRC, the notice was 'cautiously and vaguely worded' because the commission was concerned that the witness in question would be in danger if her identity became known.
The two police officers objected to the notice given on the basis that it was 'vague in the extreme', that they were unable to investigate the allegations in issue, and that they certainly could not do so before 15th April 1996. They sought an interdict preventing the TRC from hearing the relevant evidence until they had been given 'proper, reasonable, and timeous notice' of the allegations against them. Mr Justice E L King upheld the application, ruling that the commission was obliged to furnish the two officers with 'sufficient facts and information as they would reasonably need to identify the events, incidents, and persons' in issue.
The matter then went to a full bench of the Cape Provincial Division, which overturned the earlier judgement. The full bench found that it was only 'if and when the commission contemplated making a decision that might be detrimental to an implicated person' that that individual should be granted an opportunity to make representations or submit evidence.
On further appeal to the Appellate Division (renamed the Supreme Court of Appeal when the 1996 constitution took effect on 4th February 1997), the Chief Justice, Mr Justice M M Corbett, overruled the Cape full bench decision. Having heard argument on behalf of the commission that the TRC was not a court of law but 'an investigative procedure' in which the normal 'adversarial procedures' did not apply, Judge Corbett ruled that 'the solution to the issues could be found in the common law'. This required 'persons and bodies (statutory and other) to observe the rules of natural justice by acting in a fair manner'.
The principle of audi alteram partem came into play, continued Judge Corbett, 'irrespective of whether the body was quasi-judicial or administrative'. It did so, moreover, whenever 'a statute empowered a public official or body to give a decision that could prejudicially affect an individual'. It followed, in the case of the TRC, that 'procedural fairness demanded not only that a person implicated [in gross violations] be given reasonable and timeous notice of the hearing, but also that he be informed at the same time of the substance of the allegations against him, with sufficient detail to know what the case was all about'. The person implicated should also have the opportunity to 'hear the evidence, to see the demeanour of the witness(es), and … to rebut the evidence'. Judge Corbett added that the commission might 'well be under a duty to hear the rebutting evidence [at the same time], or permit immediate cross-examination'.
Following this ruling, the commission 'adopted the procedure of sending section 30 notices to alleged perpetrators 21 clear calendar days in advance of the hearings'. It also accompanied the notices, it said, with 'all the documentation necessary to provide the alleged perpetrator with sufficient detail of the substance of the allegations against him'. It used this procedure, it continued, not only in relation to victim hearings, but also as regards section 29 investigative hearings and amnesty hearings.
The commission provides no examples of the extent of the information included in such notices. Its assurance that 'sufficient detail' was given must largely be taken at face value-though the allegations of Dr Neil Barnard (a former director general of the National Intelligence Service, or NIS) cast doubt on this assertion in his case at least (as outlined below). The TRC did, however, express considerable concern as to the impact of Judge Corbett's ruling. It feared that it would come to be seen as 'too perpetrator-friendly'. It worried that its hearings would become 'too legalistic and formal, hampering the already painful and emotional process of giving public testimony and risking secondary trauma'. It feared, too, that it might also have to 'contend with perpetrators demanding to be heard at the same hearings as victims and requesting that they be allowed to cross-examine witnesses'. This, it said, would have 'a traumatising effect on many victims who had finally found the courage to testify'.
Whether cross-examination of victims was in fact allowed seems unlikely. Elsewhere in its report, the commission states categorically that victims were not subjected to cross-examination unless there were 'glaring falsehoods or inconsistencies' in their testimony.
(See Little, if any, cross-examination allowed, above.) In any event, as already noted, only some 10% of the victims who provided statements were given the opportunity to give oral testimony at public hearings. As regards 90% of victim statements, the opportunity for alleged perpetrators to observe the demeanour of deponents and to test the evidence put forward was simply not available.
The commission seems to have been particularly concerned about the trauma victims might experience at having to come face-to-face with those whom they had accused of gross violations. This is a legitimate concern. But there are other significant concerns at stake, among them the rights of accused persons. Allegations of complicity in murder, torture, and similar violations are of the utmost seriousness. Basic principles of fairness require that such accusations should not be made-especially by a court or statutory commission-without according the alleged perpetrator a right of rebuttal and reply. The damage resulting from accusations which may be unsubstantiated or untrue can otherwise be lasting, for a damning perception that has become rooted in the public mind is not easily dislodged.
The commission also expressed concern as to the implications of Judge Corbett's ruling on the process of making findings of accountability. The ruling implied that every alleged perpetrator had to be notified of the finding being contemplated, and given an opportunity to make written representations to the commission. Often it was difficult to trace such individuals. Hence, some of the findings the TRC had intended to make against particular perpetrators had to be left out of its report. Particularly disturbing, in the commission's view, was that it found itself 'obliged to give alleged perpetrators a prior view of its report-a highly unusual circumstance for a report of a commission of inquiry'.
Established legal principle makes it clear, however, that the commission-far from regarding compliance with audi alteram partem as an unduly onerous obligation-should have sought to ensure that it adhered to it to the utmost possible extent. Although the commission states that it 'complied with the ruling of the Appellate Division to the best of its ability', it appears to have begrudged its obligations in this regard. Yet the Chief Justice had demanded nothing more (or less) than that the TRC should act fairly and justly.
The audi alteram partem principle requires, moreover, that both sides of the story should not only be ascertained but that they should also be taken into proper account. It is unclear what the commission did to ensure compliance with this second aspect of the principle. Mr de Klerk-who objected to the TRC about being named as a perpetrator of gross violations of human rights-was clearly dissatisfied with its response. Shortly before the TRC's report was due to be published, he applied to court for an order compelling the commission to give more adequate consideration to his own perspectives on the past. His application was postponed for hearing in early 1999, while the finding against him was removed, in the interim, from the commission's report.
The ANC was likewise dissatisfied with the way the TRC responded to its objections against being named as a perpetrator of certain gross violations. It demanded the right to make oral as well as written representations, and applied to court for an order compelling the commission to accord it this. (The application was dismissed, however, primarily because the ANC had failed to lodge its written representations within the stipulated period.)
Dr Barnard-who has been named in the TRC report as a perpetrator of three gross violations-has since brought action against the TRC for defamation. His affidavit, which remains to be tested and verified by the High Court in Cape Town, alleges that the commission failed to comply with either aspect of the audi alteram partem principle. According to Dr Barnard, the commission omitted to notify him, on any of the various occasions when he appeared before it to give evidence, that it was contemplating making findings against him. Moreover, though the TRC subsequently sent him a notice under section 30 stating its intention to make two of its three findings against him, it provided no notice of the third (see below). It also gave no details of the evidence allegedly supporting the first two findings. It thus infringed the ruling of Judge Corbett in the Du Preez case and made it extremely difficult for Dr Barnard to respond by denying him 'sufficient details to know what the case was all about'.
Though certain documentation was thereafter supplied to Dr Barnard at his request, he was left with little time after its receipt to formulate and submit his reply. There were indications, too, that any representations he might make would have little impact on the TRC's report. This was primarily because the TRC's director of research, Professor Charles Villa-Vicencio, had already told the press that a final text of the report was going to be presented by his department to the commissioners on the very day that Dr Barnard (and some 200 others) were supposed to put in their responses.
Though the commission assured Dr Barnard that his representations would nonetheless be properly considered, it also transpired that only a limited number of commissioners would be involved in this process-and not the commission as a whole. Dr Barnard was told that his reply would be weighed by 'at least two of the commissioners' and that their views would thereafter be ratified (automatically, it seems) by the rest of the commission. The TRC refused to disclose which two commissioners would be responsible for considering Dr Barnard's reply. It allegedly also refused to deal with his concerns that one of the commissioners, Mr Richard Lyster, had already reflected a bias against Dr Barnard and should not be involved in considering his response. The commission also apparently ignored the fact that its founding legislation required the commission as a whole to decide on representations of this kind.
Dr Barnard asked, moreover, to be informed if his representations were to be rejected. This was not done. His first notice of their rejection was when the report was published-with the three findings against him included within it. Dr Barnard remained convinced, moreover, that the TRC report had already been drawn up and printed when he (and some 200 others) received their section 30 notices-and that the commission had no real intention of responding to any of the representations it received. Audi alteram partem was entirely ignored, Dr Barnard further alleged, as regards the commission's third finding against him. According to Dr Barnard, he was 'at no stage provided with the documentary evidence utilised by the commission in reaching this finding and was also not informed of the intended finding'.
Nemo judex in sua causa
Whether the principle of nemo judex in sua causa was adequately upheld by the TRC is also questionable. The principle has two main facets. It requires, in the first instance, that those called on to adjudicate between contestants have no link with either side. It demands, secondly, that the adjudicators maintain their objectivity, doing and saying nothing that would indicate a greater sympathy for one side than the other.
On both counts, the TRC seems to have fallen short. The commission was widely accused, from the time of its establishment, of being one-sided in its composition in the sense that its members were more sympathetic to the broad ANC alliance than to the NP or the IFP. As earlier discussed, furthermore, the commission seems to have been less than fully even-handed in various respects. The conduct of its own commissioners sometimes seemed to evince a predetermination of important issues. Its research and investigations, more over, omitted significant events and perspectives. (See The Need for Objective Operation, above.)
The commission also undermined its obligation to be even-handed at all times by making moral judgements as to which side had been most to blame. It frequently expressed the view that 'those who sought to uphold and sustain apartheid could not be morally equated with those who sought to remove and oppose it'. In a court of law-either criminal or civil-a judge who expressed such a preference for the viewpoint of one side would be compelled to recuse himself. Moreover, the commission's founding legislation did not mandate the TRC to make this kind of assessment. Instead, it made it clear that the commission's function was to document gross violations committed on all sides-and to do so in a strictly impartial manner.
4. Open and transparent functioning
Established legal principle required, too, that the TRC should function in an open and transparent way. This meant, in particular, that all its hearings should have been held in public-with the identity of witnesses kept confidential where required. Public hearings serve a vital function, for they allow a public awareness of the evidence giving rise to culpability-and a public assessment of its sufficiency as well. Secret testimony in secret hearings undermines the rule of law, for it erodes a vital safeguard of procedural and substantive fairness and can lead to miscarriages of justice.
How well did the TRC uphold this key requirement? 'Victim', 'event', 'theme' and 'institutional' hearings were conducted in public view, (See The overall focus of these hearings, above) and so too were amnesty applications. Investigative hearings, however, were a different matter. A number of such hearings were held behind closed doors. Witnesses were subpoenaed to give evidence before them but the content of their testimony remained, in general, undisclosed.
Cross-examination may have been permitted in these instances-but the public scrutiny of evidence that is essential to the rule of law was not allowed. Key testimony was thus kept confidential. Possible weaknesses in it were not revealed to public view. Its probity and its sufficiency remained obscure. No basis was provided for a public evaluation of whether the evidence was verified-or whether it sufficiently supported the conclusions reached by the commission.
The (untested) affidavit of Dr Barnard in his defamation suit against the TRC may also be indicative of other failures by the commission to function in an open and transparent way. According to Dr Barnard, the TRC:
Ø. failed to take account of the Annual National Intelligence Assessments from 1980 to 1994, which would have cast significant light on the role and operations of the SSC and shown that its concerns extended far beyond the 'total strategy' to the best means of resolving, by negotiation, the 'broader problems confronting the country';
Ø. confined its focus to the minutes of a limited number of SSC meetings, whereas the minutes of hundreds of meetings were available to it and should have been taken into proper account;
Ø. sought to entrap Dr Barnard by putting to him fabricated allegations that had not in fact been made (regarding a cross-border raid apparently authorised by him);
Ø. refused to provide an assurance that untested amnesty statements would not be used to make findings against Dr Barnard-and did so on the basis that 'the commission had by resolution adopted a modus operandi for making findings, which was not something that [Dr Barnard] was entitled to any knowledge of';
Ø. frequently relied in making findings against Dr Barnard on 'incomplete' and often 'undated' documents, many of which 'had no official status at all and represented, at best, the views of their (sometimes unidentified) authors without there being any indication that the contents were ever translated into policy';
Ø. failed to furnish Dr Barnard with all the documents on which it relied in making its findings against him; and
Ø. based its findings against Dr Barnard on conjecture, on what it itself described as 'reasonable speculation', and on a series of unproven assumptions. It did so, moreover, without disclosing what specific misdeeds he was alleged to have committed.
These allegations remain to be verified in the court proceedings that have been initiated by Dr Barnard. They are also confined to his particular experiences of the commission's operation. The failures he alleges may thus have been exceptions to a general rule of open and transparent functioning. They may also, however, point to shortcomings that were common in the way the commission went about its work.
5. Giving reasons for findings
Established legal principle requires, in addition, that adequate reasons be given for findings made. A court, whether civil or criminal, is obliged to canvass in full the evidence adduced, explain its strengths and its weaknesses, link the facts thus established to the relevant legal rules, and arrive at a conclusion which is properly substantiated in terms of both the evidence available and the governing law. A statutory commission like the TRC, which must make its findings on a balance of probabilities, must show (at minimum) the basis on which it weighed the probabilities and came to its findings of fact. The TRC, however, omitted to do so.
The commission, in citing the evidence on which it relies, in general does no more than briefly summarise the allegations put forward by unnamed individuals. It does not explain whether these witnesses were victims or applicants for amnesty. Many, however, appear to have been victims. This means that their evidence would not have been tested under cross-examination, nor corroborated to any significant extent. The commission then tends to repeat this 'evidence' as its rationale for a finding of accountability-and to provide no further indication of the reasoning supporting its conclusion. (Examples of this approach are provided in Findings Based on a 'Balance of Probabilities', below.)
In most instances the commission does not analyse the strengths or the weaknesses of the testimony before it. It does not canvass contrary views of what occurred, or explain why these should be rejected as untrue. Where documentary evidence is relied upon, it does not cite the words in issue, explore their different potential meanings, or elucidate why one meaning should be accepted as true in preference to another. Nor does it adequately contextualise events, by explaining the 'antecedents' and other factors that may have given rise to them. In addition, it does not properly scrutinise two key elements in liability-the intentions governing the conduct of alleged perpetrators, and whether their actions might have been justified in law (for example, under the doctrine of self-defence).
In general, the reasoning on which the TRC relied is omitted from its report. This is a serious omission, for established legal principle requires that findings be adequately reasoned. The absence of proper reasoning also makes it difficult to assess how well the TRC has fulfilled its further obligation-carefully to weigh competing evidence, and then to base its rulings on a balance of probabilities.