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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
B. The Terms of Reference
In letters to each of the members of the Commission, the President of the ANC indicated his attitude to the task of the Commission. The letter stated, among other things, the following:
"Complaints have been made to the ANC by a number of persons who were previously held as prisoners by it in camps outside of South Africa concerning the conditions in which they were held, the manner in which they were treated and the manner in which their property was dealt with after their detention.
These complaints are serious and call for a full and thorough investigation by the ANC to establish whether or not they are correct, and if they are, what action it should take in consequence thereof."
The terms of reference of the Commission were designed to achieve these objectives. They record that the commission was established "following the receipt of complaints by individuals who were previously held as detainees by the ANC" and require the Commission to investigate complaints relating to "the conditions of their detention", "the allegations of their maltreatment", and "the complaints about the loss or destruction of their property". The Commission was required to make recommendations consequent upon its findings.
The ANC undertook "to ensure its cooperation to facilitate a full and thorough investigation into all aspects of the matter specified in the terms of reference". To this end, the ANC undertook to appoint "an independent lawyer to conduct investigations, interview witnesses, visit detention camps and lead the evidence before the Commission and to do all things reasonably incidental to the afore going". Advocate E. Revelas of the Johannesburg Bar, who is not a member of the ANC, was appointed for this purpose. The Commission was promised "full and unhindered access" to all records, documents, files, archives and other materials relevant to the investigation as well as the records of past enquiries and investigations relevant to the Commission's work.
It was provided that the proceedings of the Commission were to take place "at an appropriate venue" but that such proceedings should not be open to the general public or the press. However, the Commission was given the power to determine whether or not the presence of any person was necessary or desirable during the hearing of evidence. Any former prisoner was entitled to lodge a complaint with the secretary of the Commission. An Independent firm of attorneys was appointed to facilitate the processing of complaints. Finally, the ANC undertook to publish the report of the Commission "subject only to the deletion of the names of persons mentioned in the report where this is considered appropriate by the Commission for reasons of privacy, reputation, safety, confidentiality or the like".
In order to explain the workings of the Commission and the limitations placed upon the ambit of its enquiry, certain features of these terms of reference require elaboration.
i . Being an internal Commission and not one clothed with statutory powers had important consequences for the Commission's method of enquiry. The Commission had no power to subpoena witnesses, nor could it comply witnesses to answer questions. The Commission could not offer apprehensive witnesses any form of protection.
ii . The efficacy of the Commission was largely dependent on the willingness of witnesses to come forward. For reasons which are more fully discussed below, this proved to be the greatest shortcoming of the Commission.
iii . Ordinarily an enquiry which had attracted such widespread public interest, should be conducted in public. There were important considerations which rendered this impractical and undesirable. It must be emphasised that the enquiry was internal and that its principal purpose was to enable the ANC to investigate shortcomings within its own organization and to receive recommendations to prevent abuses from occurring in the future. Enquiries of most professional associations, such as those pertaining to attorneys, advocates and doctors, are not open to the press and the public. To hold open hearings would have resulted in many of the witnesses refusing to give evidence. Although the task of the Commission was purely investigatory, allegations of a serious nature were levelled against specific named individuals who did not have the opportunity to defend themselves against such allegations. It would have been unfair to such persons if these allegations became public knowledge without the persons concerned being afforded an opportunity of dealing therewith. Many of the witnesses who eventually testified before die Commission would not have done so had the hearings been open to the public. They feared that they might suffer adverse consequences should their identities have been revealed. We felt obliged to respect their wishes.
iv . Because of the closed nature of the enquiry, several features of the terms of reference were designed to mitigate the effects of secrecy. In particular, the appointment of an independent advocate to lead the evidence, as well as the undertaking to publish the report, were considered to be important safeguards against possible abuse. In addition, however, it was deemed appropriate to invite representatives from the International Commission of Jurists, the International Committee of the Red Cross and Amnesty International to attend hearings of the Commission. Only a representative from Amnesty International attended various sittings of the Commission.
v . While the terms of reference were sufficiently wide to allow the hearing of evidence in relation to all former detainees, the catalyst for the appointment of the Commission was the return of the group of 32 referred to above. The Commission therefore saw its primary task as concentrating upon the allegations emanating from the group of 32.
vi . The terms of reference were deliberately phrased to require former detainees to testify as to "their"conditions of detention, maltreatment and loss or destruction of property. Although the Commission heard evidence from detainees in relation lo complaints and the hardships allegedly suffered by others, the terms of reference strictly speaking precluded this.
vii . The Commission's powers extended only to the making of recommendations. Accordingly, there is no power of enforcement and it is for the ANC itself to decide whether or not to act on the recommendations made hereafter.