This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
24 Aug 1998: Goldstone, Richard
POM Judge, first of all just reviewing from the point in time when the Goldstone Commission was established through the end of the hearings of the Truth Commission on gross violations of human rights, did it ever strike you that the system was so corrupt, so rotten?
RG By the end of my Commission I had already reached a situation where nothing that has come out has really surprised me. I'd sort of overcome the threshold of surprise during the period of my commission. I had a natural resistance to accepting that people in positions so high up would be party to that sort of criminal conduct and I think, if you trace my reports, that probably comes through as a leitmotif unexpressed. I really did have a personal resistance to believing some of the things that were being said and some of the things that were being reported in newspapers.
POM You say a personal resistance, you mean?
RG I had difficulty in believing the truth of those allegations but, as I say, there's a sort of threshold if you overcome it then nothing surprises you any more.
POM Now De Klerk said at one point essentially that apartheid was not conceived in evil, that grand apartheid was a noble experiment that failed. But as you look at the whole history of apartheid, even giving some aspects of grand apartheid the benefit of the doubt, what went so awfully wrong? It's like Archbishop Tutu's question to Winnie Mandela, what got out of control?
RG It's difficult to generalise but my own view, and I've obviously given it a lot of thought and spoken about it a great deal and been quizzed by it in many countries, is that really what happens is an evil system is created and within it these sorts of things happen. I think there's a great deal of truth in the sort of Goldhagen thesis and I think he's been misrepresented. I don't think that he believes any more than I do in some sort of collective responsibility on the part of a people or a nation, I just don't believe that that's fair or reflects a factual situation. But I think that in the same way as the holocaust couldn't have happened if there wasn't general anti-Semitism in German society, I don't believe the evil things that happened in apartheid could have existed if there wasn't intense racial discrimination and feelings of racial superiority on the part of white South Africans. I just don't believe people can behave to other people unless they feel that they're less worthy, that they're demeaned, that in the case of the holocaust to the extent that they shouldn't exist and in the case of apartheid to the extent that they could be relegated to permanent subordination.
POM Do you make a differentiation between well intentioned men and women creating evil structures or evil men and women creating evil structures?
RG I don't believe that the architects of apartheid intended or anticipated that some of the terrible things that were done, the criminal things that were done, would be done. I don't think they thought, and it clearly wasn't necessary. That's what happens when you create a policy based on an evil foundation. Those are things that, I think, happen. I think if people want to learn from genocides and crimes against humanity, I think that's what they need to learn.
POM But the men and women who create the evil foundation aren't necessarily themselves evil?
RG Well I'm not sure that's right.
POM Well that's what I'm asking you, do you differentiate between the two?
RG I think anybody who was an active party to setting up and putting into effect a system based on racial discrimination has committed the first and most serious sin and everything else flowed from that.
POM If one goes back to Dr Verwoerd's doctoral thesis, it was really a thesis in social engineering rather than a thesis in -
RG Absolutely. And long before him, because he just took to an extreme admittedly, but he took to an extreme what had been happening for 300 years. It wasn't something new, it was an evil wrong road that had been embarked upon by white South Africans from the day they arrived at the Cape.
POM I suppose my question is would you call him evil or -
RG Yes I would call him evil because he created an evil empire, but not that I would put at his door the murders and all the other terrible things that happened in the sense of any criminal liability. I think from a moral point of view it's another matter. I think he was morally responsible for what happened as a consequence.
POM Do you find it disturbing that by and large the leadership of the NP have to this day insisted that not only did they not know about the crimes that were being committed in their name and on their behalf but also are prepared to give a half, three quarters, apology that apartheid was wrong but it wasn't intended to do bad things, but there's no moral, except for maybe Leon Wessels aside, and no acceptance of the moral responsibility.
RG I don't find it disturbing because I think it was inevitable (a), and (b) I don't think it's all that important. I'm not a great believer in apologies. I don't think apologies are important. I think it's the acknowledgement of the facts that's important and that's happened. People know a great deal more than they did and certainly they know a great deal more than they would have known but for the Truth Commission and whether there is an apology on the part of the leaders or not I don't think is all that important for the present or future of SA.
POM But you had De Klerk -
RG Assuming De Klerk went and said, "Look here", and the furthest one could expect him to go after all, is to say, "I should have known, I should have done something about it and I apologise for not having done that." Would that really make a difference to the victim? I don't think so.
POM But he hasn't in a sense even gone that far. He's taken retrospective responsibility that removes both the collective and the individual from responsibility or accountability.
RG I'm critical of him or not doing it but it doesn't disturb me.
POM Just moving on to something else. How do you think history will judge De Klerk?
RG I think it will be a mixture. I think it will probably judge him fairly generously and I think he deserves that because he did after all - and the reason he got the Nobel Prize, I think he earned it, was for bringing apartheid to an end in a relatively peaceful manner and I think that's a huge achievement and it took not only the acceptance and realisation that apartheid had failed but it took tremendous leadership qualities to get his followers to go along with embarking on a new policy, turning through literally 180° and embarking on a policy which if successful would end up giving up power.
POM So do you think the ANC are not just harsh but almost vindictively harsh in their judgement of him?
RG No, not at all. You asked me how history would judge him. I think history will mark him as the man who helped bring apartheid to an end. I think it will be mixed because clearly he will be judged as having been an active participant in that system.
POM I have heard from a number of people that I've talked to on this occasion, since the constitution has come more into our conversations, they are saying that one of the problems the country faces in terms of the operation of government and its paralysis in many cases and its failure to implement in other cases, is due to the fact that the country has too perfect a constitution. It was a constitution made for a perfect society and in many respects not relevant to the needs and the on the ground values of a third world society and that you have this dichotomy between a constitution inherently based on what are liberal values and what might be called on the ground 'African' values. I've talked to some of the people who were the 'framers' of the constitution who before I finish the question say, "I agree." Is the constitution in a way too good in the sense that it gets in the way of government being able to act in a very effective way in many areas? Is it out of tune in many ways with the traditional values held by very large segments of the population?
RG But what sorts of things - can you give me any examples of the sorts of things that government could have done but for the constitution?
POM The death penalty has been an issue, affirmative action.
RG The constitution protects affirmative action policy, expressly. But let me say, I asked you for examples because my instinctive reaction is to hotly reject that notion at all, I find it demeaning.
POM It's a question of a rights oriented constitution.
RG I just think that sort of criticism is demeaning and racist and it's assuming that people in Africa or in a third world country shouldn't behave decently, because that's all the constitution obliges people to do, is to act decently in the broad sense, including democracy and recognition of human dignity and the right to life and all the other things that are in a good constitution.
POM Well I put this question to Cyril Ramaphosa the other day and before I had finished the question he said, "I agree." One would hardly call him racist.
RG But for what reason?
POM That the constitution is in many respects out of tune with the traditional values and mores of a third world country and that what is being imposed on them -
RG I'm surprised, I saw Cyril last week, I'm sorry I didn't see you first because I would have taken him to task.
POM When you see him again you're welcome to.
RG I would be surprised if he really believed that.
POM But he said it. What was interesting was before I had finished the question he said, "I agree."
RG It's this whole debate about cultural relativity. I just don't buy it. It's just nonsense saying that the bill of rights represents some sort of western cultural thing. Human rights isn't a western thing at all, they are universal. It's an interesting thing that the Universal Declaration of Human Rights, when it was approved by an admittedly small UN in 1948 with 48 or so members, the majority of them were non-western. This wasn't some sort of western thing that was inflicted on the globe.
POM Well Wynand Malan, whom I talked to yesterday, in fact also agreed. His argument was that unless Africa is understood in terms of Africa that democracy can't work here and that the attempt to impose liberal western values will inherently fail but it's constant to thousands of years of people operating under a different value system and with different ways of looking at things and that you just can't impose and say this is the right way of looking at things.
RG The sort of things we're talking about, the sort of things that the constitution tries to stop, happen in every country. I don't think that the western democracies have got by any means any monopoly over decent conduct or decent or honest government. If you go to any country in Europe or in North America you won't have trouble finding a history of corruption and evil and you will find wonderful things and good things as well. I just don't accept - what people are really saying is that in an emerging third world, and I can't use the word democracy because that's already begging the question, but what these people are saying is that in SA there shouldn't be a constitution that stops people from being dishonest. That's really what it amounts to.
POM I think that's pushing it a bit. They are saying, and don't ask me because they say, not I say, that there are things in the constitution, and maybe I'm at fault for not saying what specific things are we talking about, that put a brake on effective government. For one thing a trend developing that every time a piece of legislation is passed or for that matter even an executive is fired, like Govan Reddy, the first thing he does is run to the courts and wants redress from the courts, so that you're developing almost - it took America 200 years to get there. it's taken you four or five years to get there - of where everything is being dumped into the hands of the courts, where the courts become the final arbiters of public policy.
RG But they don't. I think that's a misrepresentation of what the courts are doing. They're not deciding on policy at all. I can't think of a single case where a court under our constitution has decided on policy.
POM Well in terms of judging on pieces of legislature.
RG It's not policy. If a piece of legislation contravenes the constitution that's a legal issue, it's not a policy matter.
POM So you don't think a trend is developing of where people are beginning to use the courts as the first means of redress, not the final means of redress?
RG I don't think any more than happens in any society where you've got courts. What other steps should people take? If parliament passes an unconstitutional piece of legislation what alternative is there but to go to court?
POM But there's a difference between a piece of legislation being passed and if one is against the piece of legislation they're saying, well, what I'll do, I'll test its constitutionality, because that in itself becomes a way of delaying the implementation of the legislation.
RG People haven't done that. There certainly hasn't been any rash of cases coming to court on spurious or malicious or dishonest grounds. But in genuine disputes the government has won some and the government's lost some. So what? It's a good thing to have that sort of discipline.
POM One gains the impression from talking to members of the ANC and, I suppose the ANC in particular, that they would like to see some provisions in the constitution amended and they point out that the constitution itself provides for a review of the constitution on a periodic basis, that no constitution should be static as such. In view of that do you attach any particular significance to their statement that they want to get more than a two thirds majority in the next election?
RG It's really too wide a question I think to react intelligently to. I think it would depend on what they want amended. You don't need to amend the constitution to do that. Parliament, in my view, could legitimately make it more difficult for the President to be called. It couldn't stop him being called under any circumstances, nor should they be able to. You don't need to amend the constitution to have a high threshold making it difficult to get the President or ministers to court. I think it should be difficult. I don't think it was appropriate. It's not appropriate to get a minister or the president to be subpoenaed and come to court in any country at the behest of people questioning this or that administrative action that they've taken. It wouldn't happen in England, it wouldn't happen in the United States. It doesn't need an amended constitution. That's why I'm saying I think one's got to look and see what they want to amend and I think in many cases, my guess is, that you would find that what they are complaining about is not a constitutional matter at all.
POM Just taking the case of the President going to court and not commenting on the judge's decision, Judge de Villiers' decision, in the case, it struck me after his judgment that this was a very clear indication of separation of powers. He had a case before him, he rendered a verdict and he was pilloried from pillar to post by the ANC for his disrespect for the presidency, for the judgment itself, leaving aside, I did not read the whole judgment, but that part of the judgment was based on pretty solid evidence. Leaving aside his comments about the demeanour of the President, but even if he did make those comments about the President, that's within his prerogative as a judge.
RG I think it's separation of powers and I don't want to get too much into that case because it's going to probably end up in this court. It may or may not but certainly if the judgment stands it's going to have to end up in this court because the judgment isn't effective unless this court confirms it and no action of the President can be set aside without this court confirming it. So if it doesn't come here it will only be because some other court has set aside the judgment of De Villiers.
Let's talk in general terms, I think a lot of the criticism that one has read about is one of the sort of unfortunate things that this country is going to live with for the next number of years and that is trying to reconcile a situation where people who were known to have been supportive of apartheid and racial discrimination are still in positions of power. It applies virtually throughout the civil service. I might have said to you before, and I've said it often, I think the greatest cost of a relatively peaceful transition is that we've been left with an inappropriate bureaucracy in SA, people who were appointed to implement apartheid, and now the same people are being expected to destroy the effects of apartheid. There are bound to be fissures and earth tremors, I hope no earthquakes, in that sort of situation. I think there would have been a very different reaction to the same judgment being written by a black judge appointed by this government. But that's inevitable. I don't say it critically. It has to be.
POM The backlash is inevitable?
RG And the questioning and the complaints and it's obviously going to take many decades before this is a normal society. But I think we will become a normal society rather because of rather than in spite of a decent constitution. It's because of the constitution that a lot of the corruption and all the other things that have come to light. Without the constitution these things would remain hidden and I think that SA would be a lot less healthy and closer to the brink of disaster than it is because these things are coming out, because there are constitutional instruments which are bringing them to light. It didn't happen during the apartheid period. There was as much, if not more, corruption but it came out because of leaks and because of media investigations. It didn't come out simply because the system was geared to bring it out. What's happening now is you've got a Public Protector and the Auditor General has got powers that the Auditor General didn't have. It's because of the constitution that these things are coming out and obviously some people don't like that.
POM You in your commission, I think even to your own surprise if I remember our past interview when you talked about whether or not there was the existence of a third force, and for a number of years as I recall you resisted the belief that there was in fact some kind of organised third force until you actually discovered hard evidence about its existence. The President still frequently refers to the existence of a third force.
RG Still existing?
POM Still existing and still being the hidden hand behind many of the things that happen in the country. Do you think there still is some kind of organised third force out there or is this an amorphous concept?
RG The short answer is that I don't know. I doubt it. I think there may well be pockets of people who are bent on trying to destabilise for this reason or that, but I would be very surprised if there was some nationally organised force at work simply because I don't think it would be in the interests of people to do it and people basically act in self-interest. I don't think anybody believes that they're going to, as it were, reverse the clock and bring back some white minority government in SA. So what's the point?
POM Well this was De Klerk's own rationale when he was accused of being behind the actions of the third force or being somehow complicit in the actions of the third force. He said, why would he be organising a force that was undermining the very things that he had stood up to and tried to change?
RG I think that's right, I think that's correct and I don't think De Klerk was behind any organised third force. In fact I've got no doubt that he wasn't because from my own experience and contact with him he wouldn't have given me the powers and the encouragement to investigate a third force if he was behind it.
POM Why has the ANC, both as a party and as a government, so much trouble accepting that? It's kind of an insistence and his interrogation at the TRC -
RG Because, I believe, that he could have stopped it, he should have stopped it and had enough information to have questioned whether these allegations were true or not. I didn't get any assistance from the NP government, De Klerk or anybody else. I got no active assistance in investigating a third force. The police and the military did everything in their power to prevent me from doing it and there was a natural resistance on the part of the apartheid government to taking active steps themselves. They were very happy for me to do it and in no way did they stop me and when I insisted on getting assistance they went along with it. So it was a funny, it was a strange sort of -
POM Well to that extent, if he could have stopped it or taken steps to stop it, is he to that extent complicit?
RG That's a moral question, it's not a legal question. There was no legal complicity.
POM But as a moral?
RG From a moral point of view I've got no doubt. I don't think he wanted to know and he should have. There was enough evidence. Everybody else, people being killed in detention and all the sorts of things that came out, any rational person would have said, hang on a second, what's happening?
POM We're now talking about the period of his presidency?
POM Rather than before?
RG Well before he was really a junior minister wasn't he? He was in no position to really rock the boat other than by getting his head chopped off.
POM Now he would say one of the things that Mandela - that soured or destroyed the relationship between them, was Mandela's belief that you could not be a head of government and have so much power and resources at your disposal and not find out what was going on if you really wished to find out.
RG I'm agreeing with that. I think he could and should have but he didn't.
POM Now De Klerk would turn around now and say well, I hope President Mandela is learning something, I hope he's learning the constraints that operate on the power of a president, and the example he uses is Richmond, the horrible spate of murders in Richmond after several years. He says, now there he is, he's President, he has all the resources of the state at his disposal and yet he has been unable to go in there and make a single arrest and yet he was blaming me for not arresting people and bringing them to the bar of justice whereas he, with all the power at his disposal as president of the state and in this very small area, we're not talking about the whole country, in this very small area has been unable with all the resources at his disposal to make a single arrest and maybe that should teach him a lesson about the limits of presidential powers in certain situations.
RG Well clearly a president can't assume the job of a Commissioner of Police, let alone the Regional Commissioner or the Station Commander. But the difference is the policies that were being implemented by the police in the apartheid days I don't think can be compared to the policies which are being implemented now. The fact that the police may be ineffectual is a common factor but that goes back to what I talked about in apartheid bureaucracy still being there. It's changing but I just don't see the analogy between De Klerk not doing anything where the overall policy was responsible and Mandela not doing something because the police aren't able to do their job properly, assuming that they aren't, and the facts are not known to me.
POM But that's also assuming that his own organisation is not in fact a part of the problem and if one talks to many people in the Richmond area they will say by whatever name you want to call it there is conflict between the UDM or supporters of Nkabinde and the ANC, whereas the ANC is in kind of permanent denial of such conflict existing. So rather than saying yes indeed there is some conflict here, we don't know who's responsible for the murders but there's undeniable conflict between our two organisations. Bishop George Irvine told me that he went down there to do a reconciliation service and he said, "I had to do two services. I had to do one service in Ndaleni in the ANC stronghold and one in Magoda in the other, because the residents of one wouldn't cross into the other for fear", and that this is undeniably political. Yet that's denied by the ANC who refuse to sit down with the UDM and say let us at least talk.
RG Assuming the correctness of the allegations it seems to me that there's a huge difference in degree and that's important.
POM The correctness of the allegation of?
RG If what you say about Richmond is true, I still don't see an analogy where police were doing the sorts of things that the SA Police were doing in every part of the country.
POM No. What I'm saying is that if there is, and I am saying ifthere is, ANC complicity in the murders that are going on, or they are one of the parties to a tit-for-tat murder campaign of some description, then Mandela as head of government with all the resources at his disposal should be able to get to the bottom of that.
RG From that point of view I agree, it's very difficult. He has to rely on what people tell him.
POM But then didn't De Klerk have to rely on what people told him?
RG I agree absolutely, but I think it's a question of degree. I think if people tell Mandela, to use the analogy and it's a hypothetical one, if people tell Mandela that they've investigated it and the allegations against the ANC are incorrect, I don't see on what basis he could reject that advice being given to him by suitably competent responsible officials.
POM OK. Now I'm President De Klerk -
RG In the case of De Klerk it wasn't one issue. If what's happening in Richmond was happening in forty areas -
POM Well in fact people will say in Greytown, for example, there are more murders committed there.
RG I just don't have the information to be able to comment but I don't think it's the same thing. It's a matter of degree.
POM So if, let's say, reduce it to two cases, the massacre at Boipatong to take the worst excess of maybe his presidency, and murder of where the eleven people were killed at the funeral, or on the vigil of the funeral. Now in the case of the Richmond case, the police investigated, or his people in the ANC investigated, and said there was no ANC involvement in this incident at all and we've established that to our satisfaction, and he relies on that judgement to reach a conclusion that there's no need for the UDM and the ANC to sit down together and talk about the nature of the conflict in Richmond. You have De Klerk, a massacre occurs at Boipatong. He puts Chief Inspector or whatever Commission, sends them in to review the situation and the Inspector comes back and says -
RG But there were so many scenarios in Boipatong. There were so many people who could have been responsible for it.
POM But then the Commissioner comes back and says, "We don't know who's responsible but we know the police weren't", and therefore De Klerk, like Mandela, relies on that judgement.
RG If the confessions now being made to the TRC are correct it was a revenge attack organised by the IFP.
POM But that's different than - what I'm getting at is that that's all post information that emerges post something, whereas you, as president, take a decision on information that's available to you at a point in time and at a point in time what is the inherent difference?
RG I just don't think that the facts justify the analogy. They are two completely different situations and I just don't think it's a fair analogy to make.
POM So to get this absolutely straight, so that if an incident happens in Richmond and eleven people are killed and Mandela sends in the police and he sends in representatives of the ANC and representatives of the ANC -
RG But if anything the police he's sending in include people who have no reason to love the ANC. He's not sending in his own people. Again the analogy breaks down. De Klerk was sending in his own people.
POM Well the new Superintendent or Commissioner in Richmond was at pains to point out that the local police had nothing to do with the investigations of the murders that have taken place in Richmond, that it was a special unit put together from the outside that came in to investigate the murders.
RG And the Commissioner is Mr Fivaz who is hardly an ANC member.
POM He would say he serves at the President's pleasure.
RG No, that's not correct. He can't be dismissed unless there are grounds of misconduct to dismiss him. He's got security of tenure.
POM Of tenure.
RG Some may blame the constitution but he can't be kicked out for no cause.
POM Well he seems to believe he can.
RG In fact De Klerk found that to his cost when he tried to get rid of Basie Smit and the others that I gave evidence against.
POM Johan van der Merwe, I think you called 'depraved' in one of your -
RG Well I'm alleged to have said that. I don't remember it. I used other language. I don't know where that 'depraved' comes from.
POM The word 'depraved' is a kind of - knowing you, it didn't quite fit.
RG It has been alleged I said that. I didn't. I don't know where it comes from but I've never denied it because if I didn't use it maybe I should have.
POM So why do you think, again maybe you've answered it in part, that this government knowing the impact that crime is having on the country both internally and externally, haemorrhaging it internally and ensuring that foreign investment will remain at a trickle as long as there is a perception abroad that the country is crime-ridden, why do you think it is, again, a difficult thing with all the resources at its disposal, to use Mr Mandela's phrase again, in getting a handle on the problem?
RG Because it's a very difficult problem to get a handle on and it's not peculiar to SA. What interests me in recent travels is you've got the same - you've got a worse problem even than we have in Mexico. You've got this sort of problem in virtually every formerly oppressive society that's emerged to some form of democratic rule. You have it in Russia, you've got it in the Czech Republic, you've got it in Hungary and Poland, you've got it in Mexico, you've got it in other Latin American countries that have become democratic. It seems to be one of the - I don't know all the reasons. I think one of the reasons is that in oppressive societies you have the most inappropriate people becoming policemen. Who became policemen under communist regimes or under apartheid? They were not the people that decent people would want to see being the guardians of law and order. They were people who were prone to corruption and they're still there. When countries moved peacefully or relatively peacefully into a democratic situation, the same inappropriate people remained in the police. They're inefficient by definition because in oppressive societies they didn't have to be detectives, they beat confessions out of people, they didn't have to look for the clues in the way that the police would do in any European democracy.
Secondly, they were involved themselves in unlawful activity and that continues and the statistics in SA prove it. I remember reading recently that in any serious crime committed in SA I think the chances were something like two to one that a policeman would be involved as a criminal. Now that shouldn't surprise anybody. That makes it very difficult and it's going to take time before - and it's a vicious circle because with all the criticism against the police what decent young kids would want to become policemen in SA? It's not a pleasant occupation to go into because of the state that the police is in. It's going to take a long time to correct and I think it's a very difficult problem.
POM Is there a possibility, and again I know you're speaking as an individual not as member of the Constitutional Court, is there a possibility that given what Thabo Mbeki called the continuing existence of two nations of growing inequality between the haves and the have-nots, rather than diminishing, of stagnancy in the economy, in fact declining per capita income this year, of rampant corruption, that the continuing existence of crime on this scale can act as a swamp and drag the whole country into it where you have resort to states of emergency? For example, what exists in Richmond we found to our surprise, coming at it from very different directions, saying this is all but in name a state of emergency. You have an operation where you have the police supporting the military, not the military supporting the police. You have things called Priority Committees which are run by the police which co-ordinate and in fact take over the functions of the local government all the way from welfare right down to the collection of rates. Is there not a fairly strong probability that democracy could go under?
RG Absolutely. I agree, there's every danger in that. But I think we're a long way from that situation.
POM What do you look at as the tell-tale signs of that being on its way? I've a quote here from - I'll ask you who, because I do ask people who said this or who do you think said it. The quote is: -
"You can actually smell authoritarian tendencies in the air in South Africa. The ANC will win the next election by default because the opposition is so unfocused. There is a lot of jargon and not much thoughtfulness coming from the government. Mugabe epitomises where we could end up. We implement austerity but when we encounter resistance we give up. There are swings between demography and managerialism. It holds terrible perils for democracy."
Who do you think made a statement like that?
RG Well it's not a black person.
POM You're right, OK.
RG It could be somebody in the DP I would guess, it sounds very much -
POM This is Jeremy Cronin of the SACP. Do you detect signs of authoritarianism?
RG I do to the extent that I think it's normal. When people are in positions of power they like to be authoritarian because they don't like to be questioned, and that's the whole discipline that a constitutional democracy imposes. It may not work. If it doesn't work then I think the world's in a very sorry state because then what you're saying in effect is that decent societies can't exist outside Western Europe and maybe North America. That's the consequence, because if it doesn't work in SA it's certainly not going to work elsewhere in Africa for the next century.
POM Why do you say 'if it doesn't work in SA it won't work in Africa'? Why?
RG And certainly Africa south of the - because the prospects, the infrastructure, the education, the whole culture of SA is far more in gear and far better able to sustain a constitutional democracy than any other African country.
POM Is there a certain paradox here that a part of that education and that infrastructure in an odd way is the product of apartheid?
RG No I don't accept that at all. It's a product of a country that - this country would, without apartheid, have been far wealthier than it is. It would have had far better black leaders trained. We would have had more people educated.
POM One could say that about any sub-Saharan country. You could say that about the Congo.
RG No, because SA has an infrastructure not because of apartheid, maybe because of the contribution that white industrialists and even the colonial power brought, but it's got a natural wealth.
POM So has the Congo and so had they colonialists and so had they kind of -
RG Well then what is the reason? Why is there that difference?
POM I'm asking you why do you think that if it doesn't work here it can't work in the rest of Africa and I suppose part of what I would say is that -
RG Conditions here are better than they're likely to be in any other African country for the foreseeable future.
POM Yes, but are not part of the reasons, could one not argue that the ethos of democracy in this country is in a small way due to the fact that you had this limited partial wrong but implementation of at least some of the instruments of democracy, that you had a parliament, the parliament met, the parliament debated, the parliament passed bills, they went through all the motions?
RG I think that may be part of it but I think the other equally, if not more important, part of it is that your liberation movements, particularly the ANC has been part of an international human rights campaign for four or five decades. Nobody needs to teach President Mandela or members of his cabinet about international human rights. It's not true in any other country on the continent. Mr Mugabe knew nothing, he probably didn't know what human rights meant when he came out of the bush war.
POM Sorry, we had just been talking about human rights, Africa. Yes. I said three of the areas least investigated by the TRC are (i) the necklacings, (ii) what happened in the Quatro camps and (iii) what happened to women, crimes against women particularly crimes against women perpetrated by the ANC against women in the ANC.
RG Something new to me. It's the first time I've heard that.
POM Which one? The third one?
POM It's out there. Commissioners will talk about it, that the women won't come forward because they are in government.
RG What's the question?
POM I suppose do you see the ANC as being a 'holier' liberation movement than other liberation movements in SA, whereas I would draw a distinction about what went on in the ANC abroad and what went on with the internal structures?
RG I just don't know enough, certainly as far as the third one is concerned. As I say, I've never heard this allegation of ANC mistreating women. I've never read about it and I think I read fairly widely although I'm often out of the country. As far as the camps are concerned that was fully investigated before the TRC even came into existence. The ANC had two Commissions of Enquiry which were in public and fairly open so it was investigated. What was the first one?
POM The necklacings and what went on in the townships.
RG But what was there to investigate? The necklacings took place. How many were there and what about it? I'm just enquiring, what should they have investigated about necklacing?
POM Well did it constitute a gross violation of human rights?
RG Of course, they were murders. But why necklacing more than bank heists, murders committed during bank heists? I just don't think it's a relevant criticism of the TRC. I don't understand it. It seems to me to be clutching at lousy straws.
POM Well what's the difference between a necklacing and - ?
RG That's the sort of criticism that's made by people who object to the TRC investigating anything, in my view. I get very impatient with that sort of criticism of the TRC.
RG Because I think it's ridiculous, I really do. I think it borders on the ridiculous.
POM That they should investigate what went on in the townships as part of a pattern of the violation of human rights?
RG The TRC was set up primarily to investigate serious human rights violations committed by the apartheid regime, that was its raison d'être.
POM That's not what the legislation said. It didn't say 'by the apartheid regime'.
RG I accept that, but that's in fact politically why it was set up.
POM But you're a jurist and the law under which it was set up did not give -
RG I just don't believe that it's made serious errors in even-handedly investigating alleged violations committed by the ANC or anybody else. It's done it. Maybe not to everybody's satisfaction but it's done it, substantially it's done it, and I think its report will demonstrate that.
POM What's interesting when you say that is that we talked to one of the commissioners yesterday who said that after the report is published that you're going to hear a small trickle and then a louder trickle of complaints from the black members of the TRC that the report is not what the commission was supposed to be about.
RG You must ask me about this after 28th October. I don't know what's in the report.
POM OK. I know you have to run. So do you see any telltale signs of the erosion of the small flowering of democracy? Does it concern you that the ANC kind of makes it clear to everyone that they want more than two thirds?
RG Not at all. I think democracy is stronger today than it was four years ago, stronger than it was a year ago. The people who are complaining are the people who get caught for the most part. And there's a lot of understandable ignorant criticism and describing things that happened to the constitution which are really, again, nonsense, understandably because people want to blame something or somebody.
POM One thing we heard yesterday, in fact from another Justice, was that many cases that are reported in the papers as being going to be referred to the Constitutional Court -
RG Never did.
POM - never got there.
RG It was like my commission. People didn't know how I survived because everybody was going to the Goldstone Commission. I don't think 5% of those things ever came. But that's a healthy sign, not an unhealthy sign. People wouldn't have said, "I'm going to the Goldstone Commission", if they thought it was a useless institution. People wouldn't say, "I'm going to take you to court", if they thought the courts were corrupt and the allegations that, "I'm going to take you to the Constitutional Court", similarly. I think the more people that say that the happier I am.
POM Just one last question. In his speech on 4th June before parliament Mbeki talked about there being a moral crisis in the country and called for some kind of moral summit which was followed by the Federation of Churches who also called for some summit to examine the moral fabric of society.
RG Again, I didn't know that. I spent June away.
POM Do you think, just dealing with his remark, that he said it, do you think there has been a collapse in moral values in the country?
RG Absolutely not. I think we're a far more moral society than we were four years ago.
POM OK. I'll pass that on to him.
RG You're not going to stop me being an optimist. How many people are you still seeing?
POM I hope this is my last round.
RG No, I mean how many people are still on your interview list?
POM About 130, plus 18 families. I've just got 13,000 hours now of material. All I need now is a grant.
RG Is Boston still your headquarters?
RG I'll be there in December but just for two days.