1

DRAFT FOR COMMENTS ONLY

NOT TO BE QUOTED OR CITED WITHOUT AUTHOR’S PERMISSION

Victims as the Heart of the Matter: The South African Amnesty as Promised in

Practice

Ronald C. Slye1

The South African amnesty process, and the truth and reconciliation commission of

which it is a part, has been hailed as one of the most innovative and successful

commissions to address a history of gross violations of human rights in a transitional

society. This paper begins to look at the accomplishments of the amnesty process from

the perspective of victims – those who suffered violations of their fundamental rights at

the hands of those individuals who applied for amnesty. In particular it looks at the

treatment, role, and perspectives of victims as reflected in the 921 amnesty decisions

published to date, and in selective transcripts of amnesty hearings.2

An analysis of the treatment of victims is crucial to any attempt to evaluate the

justice of the South African amnesty. Central to any notion of justice is treatment of

victims. Emerging international law concerning amnesties for international crimes point

to three fundamental principles with respect to victims that amnesties violate: the right to

truth; the right to an effective remedy; and the right to an official determination of

violation and responsibility. The right to truth is often articulated as an obligation on the

part of the state to investigate credible allegations of gross violations of human rights.

Up until the South African TRC, no amnesty incorporated by its terms a mechanism for

increasing rather than hiding truth.3 The right to an effective remedy may be met by one

or more of the following: reparations; punishment or other form of accountability of the

perpetrator; and, some argue, through the revelation and acknowledgment of truth. The

right to an official determination is interpreted to require more than just truth, but also

acknowledgment and participation.

1 Associate Professor, Seattle University School of Law. From 1997 until 2001, I was a consultant to the

South African Truth and Reconciliation Commission. The ideas and opinions expressed in this article do

not necessarily reflect those of the Commission. Much of the research for this paper was made possible by

a generous grant from the United States Institute of Peace, with additional funding provided by the Seattle

University School of Law. © Ronald C. Slye, all rights reserved. 2 Any comprehensive study of the treatment of victims by the South African Truth and Reconciliation

Commission should look at the large variety of programs and hearings developed by the Human Rights

Violations committee and the Rehabilitation and Reparations committee. This paper is narrowly focused

on the amnesty process and not the entire truth and reconciliation process. 3 Some amnesties were coupled with their own truth commissions, in effect providing a truth-enhancing

institution to complement the amnesic effect of the amnesty. For example, Chile’s 1978 amnesty was

coupled, over a decade later, with that country’s Truth and Reconciliation Commission; and Argentina’s

amnesties in the 1980s were coupled with a truth commission. Some amnesties have been interpreted by

domestic courts as requiring some form of investigation prior to their application. See Popkin & Bhuta,

“Latin American Amnesties in Comparative Perspective,” 13 Ethics & Int’l Affairs 99 (concerning court

interpretation of amnesties in Guatemala and Honduras).

2

The South African Truth and Reconciliation Commission (“TRC”) arose out of a

commitment among the parties negotiating the end of apartheid to provide amnesty for

“acts, omissions and offences associated with political objectives and committed in the

course of the conflicts of the past.”4 This commitment was enshrined in a post-amble to

the interim constitution of 1993. The post-amble said very little about the amnesty that

was to be provided, explicitly leaving to the first democratically elected Parliament the

question of how this commitment would be implemented.5

The first non-racial Parliament was elected in 1994, simultaneously with the election

of Nelson Mandela as the first democratically-elected President of South Africa. The

Parliament, under the guidance of the newly-elected ANC government, fulfilled its

obligation under the interim constitution by embedding the amnesty process within a

broader Truth and Reconciliation Commission. The addition of a truth and reconciliation

commission was done in order to provide a forum in which the voices of victims could be

heard, and thus to balance the focus of the amnesty on perpetrators with an equal focus

on victims. As articulated by Dullah Omar, the Minister of Justice at the time, before the

National Assembly,6

The granting of amnesty to perpetrators of human rights violations and to agents

and operatives of the apartheid regime who systematically committed serious

crimes, has the effect of completely ignoring the suffering of countless victims. ...

I, together with my party, hold the view that granting amnesty to perpetrators of

gross violations of human rights, without addressing our international obligations

and without dealing with wounds of the past as well as our duty to the victims,

will undermine the process of reconciliation. It is necessary, therefore, to deal

with South Africa’s past, and also the question of amnesty, on a morally

acceptable basis.... This is what the Promotion of National Unity and

Reconciliation Bill seeks to achieve.... So, whilst the constitutional requirement of

amnesty, which, as I have said, only takes care of perpetrators, is met, the issue of

restoring the dignity of victims is also being addressed.7

4 1993 Interim Constitution of SA, Post-amble.

5 Id. The entire language concerning amnesty in the interim constitution was as follows:

In order to advance such reconciliation and reconstruction,

amnesty shall be granted in respect of acts, omissions and offences

associated with political objectives and committed in the course of

the conflicts of the past. To this end, Parliament under this

Constitution shall adopt a law determining a firm cut-off date,

which shall be a date after 8 October 1990 and before 6 December

1993, and providing for the mechanisms, criteria and procedures,

including tribunals, if any, through which such amnesty shall be

dealt with at any time after the law has been passed. 6 Hansards, 17 May 1995, cols. 1341–1342.

7 See also Final Report of the SA TRC, Vol. 1, Ch. 4, para. 21 (noting the ‘victim-centred approach” of the

Commission).

3

The emphasis on victims and truth resulted in the creation of an amnesty process

unlike any other ever attempted. Unlike most amnesties, the South African amnesty is

not a blanket amnesty designed to hide the truth about past violations and shield

perpetrators from any form of accountability. Through its application and hearing

requirements, the South African amnesty is designed to increase the accumulation of

truth. In addition, through its hearing process, it is designed to provide a forum in which

victims can 1) hear first hand the “confessions” of those who violated their rights, 2)

question and confront amnesty applicants concerning their wrongful acts and their

eligibility for amnesty, and 3) tell their own story and perspective concerning the acts for

which the applicant is applying for amnesty, and concerning more generally the recent

history of South Africa.

To be eligible for amnesty under the South African process, an individual has to

apply, and thus publicly identify himself.8 To qualify for amnesty, an applicant has to

convince a panel of the amnesty committee that the act for which he is applying was

associated with a political objective,9 and that he has made “full disclosure” of all

relevant facts.10

Applications for acts that constitute a gross violation of human rights11

are subject to a public hearing requirement. An evidence leader represents the

Commission and the public before the amnesty committee,12

and thus plays a role similar

to that of a prosecutor in the Anglo-American system.

By providing victim’s the power to question and challenge their perpetrators who

seek amnesty, by providing victims a forum in which to hear those same applicants

questioned by others, and by providing a forum in which victims can tell their own story

as a counter to that told by perpetrators, the South African amnesty process is designed to

empower victims. By subjecting amnesty applicant’s to public questioning – by

members of the amnesty committee, by the evidence leaders employed by the TRC, and

by the victims and their own attorneys – and requiring that applicants satisfy criteria in

order to be granted amnesty, the South African amnesty provides a level of accountability

8 While there were some women who applied for amnesty, the overwhelming number of applicants were

men. 9 The definition of an act associated with a political objective is complex. Generally it requires that the

applicant be affiliated with or otherwise a supporter of a publicly known political organization or state, and

that the act for which amnesty is sought be authorized, explicitly or implicitly, by that political

organization. See TRC Act § 20(2)–(3). 10

The legislation does not give any guidance concerning what constitutes full disclosure of all relevant

facts. See TRC Act, § 20(1)(c) (setting forth requirement of full disclosure). 11

Gross violations of human rights is a term of art in the legislation establishing the TRC, and refers to the

violation of human rights through killing, abduction, torture, or severe ill treatment. The Promotion of

National Unity and Reconciliation Act (No. 34 of 1995) (hereinafter the “TRC Act”), § 1(ix). 12

Although the amnesty committee is part of the TRC, the latter exercises little power of the former. The

Commission, for example, has no power to alter the decisions of the amnesty committee. In fact the

Commission sued the amnesty committee over the granting of a blanket amnesty to members of the ANC.

Those amnesties were withdrawn.

4

that is unlike any other amnesty. Most amnesties provide no role for victims, and rarely

provide any level of accountability.13

The significance of the South African amnesty, and its radical departure from

other amnesties, is reflected in two incidents that occurred during the amnesty process.

The first was the call by Desmond Tutu and others for more people to apply for amnesty

as the application deadline approached. Individuals were reluctant to apply for amnesty

because of the exposure and accountability inherent in the process; and the Commission

and many victims wanted individuals to apply for amnesty for the same reasons. The

second incident concerned the withdrawal of an amnesty application for murder. The

widow of the victim complained that the Commission had violated her rights by not

informing her of the withdrawal.14

It is common for victims to claim that the granting of

amnesty is a violation of their rights; the fact that a South African victim viewed a

perpetrator’s decision not to seek amnesty as implicating her rights suggests the

significant difference between this amnesty and any that preceded it. Of course other

victims did not view the amnesty process in such a positive light, and vehemently

opposed the entire amnesty process. The Mxenge, Biko, and Ribeiro families15

joined

with AZOPO to challenge the amnesty process as unconstitutional and a violation of

international law before the South African Constitutional Court. Not surprisingly, given

that the promise of amnesty was included in the 1993 Constitution, the Constitutional

Court upheld the amnesty process as constitutional.16

How well has this promise of the South African amnesty legislation to empower

victims been fulfilled in practice? To begin to answer that question, I looked at all of the

amnesty decisions issued to date and selected transcripts of the public amnesty hearings

to make some preliminary conclusions about the role of victims in the process, and the

extent to which the process addressed the stated needs of the victims. This documentary

inquiry is supplemented by my first hand experience in attending some of the amnesty

hearings over the past four years, and interviewing some of the participants in the

process.

Based on this preliminary review, I have identified six areas in which we can

evaluate the role of victims in the amnesty process: attendance and participation;

receiving knowledge or truth; contributing knowledge or truth; reconciliation,

forgiveness, and apology; confronting perpetrators; and influencing the decision of

13

The only exceptions to this concern the few amnesties that have been interpreted to require some form of

judicial process in order to determine their applicability to a particular claimant. See for example, the

amnesties in Chile and Argentina. 14

The applicants, Anton Niewoudt and Clive Brink, withdrew their application for the murder of Colonel

Onward Mongwane Guzana since they only witnessed, but did not participate in, the murder. Mail and

Guardian, 23 July 1999. 15

The father of the Mxenge and Biko families, and the parents of the Ribeiro family, were brutally killed

by the apartheid state. The killers of Griffiths Mxenge were granted amnesty. See Amnesty Decision

1997/0041. The killers of Dr. and Mrs. Ribeiro were also granted amnesty. See Amnesty Decisions

1999/0030, 1999/0031, 1999/0188, 1999/0189, 1999/0190, 1999/0193, 1999/0194, and 1999/0196. The

killers of Steve Biko were denied amnesty for failure to make full disclosure. See Amnesty Decision

1999/0020. 16

See Azapo v. President of South Africa, CCT 17/96, 1996 (4) SALR 671 (CC).

5

whether amnesty is granted. Before discussing each of these areas, brief mention should

be made of the use of the term “victim” by the Commission, and thus how I use it in this

paper.

Definition of Victim

“Victim” is a term of art under the legislation establishing the TRC. Individuals who

suffered physical or emotional harm as a result of either a gross violation of human rights

or an act for which amnesty has been granted, are considered a victim under the act and

thus eligible for reparations.17

For the purposes of this paper, therefore, victims will refer

to those individuals who were harmed as a result of an act for which an individual is

applying for amnesty.18

Victims under this definition may also include perpetrators – that is, an individual

who may have suffered harm from a gross violation of human rights may also be

responsible for an act that constitutes a gross violation of human rights. This is not

surprising given the general level of conflict and violence in South Africa, where

violations often occurred in the context of a low-level armed conflict. This was

especially, although not exclusively, true for the conflict between the IFP and ANC in

present-day KwaZulu Natal. It was not uncommon, therefore, for amnesty applicants to

have also been the victim of a gross violation of human rights by either an opposing

organization or the state.

Some amnesty applicants were in fact applying as victims rather than as perpetrators.

There were a number of applications by individuals in prison who claimed that they had

been wrongfully convicted by the apartheid judiciary. One applicant deliberately lied in

his application and claimed that he was involved in the killing of eight people for which

he was convicted. He explained to the committee that he was told that if he truthfully

proclaimed his innocence in his application he would not have the opportunity to

proclaim his innocence publicly, as he now was.19

The amnesty committee was united in

denying amnesty to such individuals, reasoning that amnesty was applicable only if the

applicant admitted to some wrongful act.20

In other words, amnesty was not a

mechanism by which wrongful convictions could be remedied.

17

TRC Act, §1(xix) (definition of “victim”). For the provision providing reparations to “victims,” see §

26(3). 18

During the TRC process, there was a debate over whether to refer to individuals as victims as opposed to

survivors. The latter term was preferred by many for its positive connotations with respect to the person

being described. The term “victim,” on the other hand, is more passive, and, in the words of the TRC,

suggests a person who is “acted upon rather than acting, suffering rather than surviving.” Truth and

Reconciliation Commission of South Africa Final Report (Grove, 1999) Vol. 1, Ch. 4, para. 37 (hereinafter

“TRC Final Report”). The Commission ultimately decided, for the purposes of its report, to use the term

“victim” as defined in its legislation, while recognizing that some might prefer to be called survivors. TRC

Final Report, Vol. 1, Ch. 4, paras. 37 – 9. 19

Amnesty Decision 1998/0010. (Amnesty denied.) 20

See, e.g., 1999/0204 (amnesty denied to IFP applicant who claims not to have been present at scene of

crime for which he was convicted) (discussion of amnesty application of Phathumuzi Joseph Magwaza);

1999/0229 (amnesty denied to an ANC applicant who claims to be innocent of robbery for which he was

6

One might take a broader view of “victim,” and explore the emotional and physical

harm suffered by those who perpetrated gross violations of human rights. In committing

gross violations of human rights that harmed others, some also harmed themselves. One

can see this in the numerous incidents of post-traumatic stress disorder symptoms

exhibited by some of those applying for amnesty.21

While it is often assumed by those

looking at the process from afar that the majority of amnesty applicants consisted of

white members of the apartheid government, the vast majority of those applying for

amnesty were in fact black members of the various anti-apartheid movements.22

The

restorative and healing effect of the amnesty process, and the broader TRC process, on

such perpetrators is an important subject of inquiry which is not addressed here.

Attendance and Participation

One of the most basic rights the TRC provided to victims was the right to attend

and participate in a public hearing with respect to a relevant amnesty application.

Attendance at these public hearings provided three important benefits to victims. First,

the public hearings provided an important fora in which the truth of the conflicts of the

past was revealed. The value of this varied, depending on the truthfulness of the

applicants and the ability of the committee and evidence leader to police the accuracy of

applicant testimony. Second, attending the public hearings provided an opportunity for

the acknowledgment of the victim’s violation. This acknowledgment came in two forms:

a) the specific acknowledgment of the perpetrator; and b) the more general

acknowledgment of the state, through the Commission, of the violation suffered by the

victim. While some acknowledgment by perpetrators was achieved just by the fact that

the applicant had applied for amnesty, the ability to see and hear a perpetrator

acknowledge his acts, and to see the perpetrator subject to questioning by the committee,

the evidence leader, and if available legal representatives of the victims, contributed to

some sense of justice and accountability through public exposure and shaming.

convicted); 1999/0271 (amnesty denied to IFP member who claimed not to be involved in attack on ANC

bus for which he was convicted); and 1997/0002 (amnesty denied to local leader of ANC who claimed he

had nothing to do with murder for which he was convicted). But see Amnesty Decision 1998/0003 (dissent

of Miller, suggesting without deciding that he might grant amnesty to an individual who claims he was

wrongfully convicted). 21

Sean Callaghan, for example, was a white South African conscripted by the South African Defense

Forces. In testimony both before the special hearing on the Health Sector and in connection with his

amnesty application, he discussed and exhibited the trauma he has continued to suffer as a result of his

serving with the South African armed services in Angola. See Amnesty Decision 2001/034; Health Sector

Hearings, Cape Town, 17 June 1997 (transcript found at

http://www.truth.org.za/special/health/health01.htm) . 22

One analysis of the amnesty applications undertaken in October 1998 concluded that out of 1562

applications involving gross violations of human rights (and thus subject to a public hearing), only 270

involved government security forces, while over 1100 involved members of the various anti-apartheid

movements. TRC Website CD-Rom (November 1998).

7

Under the TRC legislation, victims are to be notified of the place and time of the

hearing of an application of an individual who violated their rights.23

Victims are entitled

to be present at such a public hearing, and to testify and present any other evidence in

connection with the application.24

In practice, the notification and attendance of victims was mixed. There were

numerous cases in which victims could not be identified or located.25

In some cases this

was because of the passage of time, the faulty memory of those involved, and the lack of

documentation regarding offences committed many years ago.26

In others, the failure to

identify victims had less to do with the passage of time, and more to do with the limited

resources available to the TRC to follow leads and investigate the identity and location of

victims revealed in amnesty applications.27

Even those who were notified did not always attend the hearing concerning their

violation. Some chose not to attend, while others were unable. In many cases victims

were given very little advance notice of a hearing – in some cases they were notified the

day before and thus were often unable to attend even if they wanted to. The cursory

nature of the notice provided by the Commission with respect to its hearings was an issue

of great concern to many involved in the process. Under its enabling legislation, the

Commission was required to notify any individual who might be implicated in a hearing

before the Commission, and to provide that individual an opportunity to respond to the

allegations against him.28

As the result of a court case brought by a number of

individuals who were to be implicated in a hearing before the human rights violations

committee,29

the Commission adopted the practice of providing notice to alleged

perpetrators at least twenty-one calendar days in advance of any hearing in which the

Commission had reason to believe they might be implicated. No such case was brought

on behalf of victims, and my review of the records of the amnesty committee indicates

that victims were often given far less notice than alleged perpetrators concerning hearings

in which they had an interest.30

23

TRC Act, § 19(4)(a). 24

Id. at § 19(4)(b). 25

See, e.g., AD 1997/0022, AHT 1997.03.17-19 (East London) Day 02, 75 (no response from family of

murder victim to whom was sent a registered letter); 2001/0074 (failure to locate victims through

newspaper advertisements). 26

See AHT 1997.03.11-12 (Cape Town) Day2ct, 86-7 (evidence leader’s inability to locate relatives of

victims of bombing in Botswana based on sparse news reports). 27

See id. (evidence leader’s failure to contact Botswanan government in attempt to locate victims of

bombing in that country). 28

TRC Act, §30(2). 29

The case is Truth and Reconciliation Commission v. Du Preez and Another, 1996 (3) SA 997. See also

TRC Final Report, Vol. 1, Ch. 7, paras. 26 – 58 (discussing the history of the case and its impact on the

work of the Commission). 30

For example, one advocate representing victims noted that he had “discovered almost by accident that

these proceedings were going to be heard today” and that he and his office only had a week to contact the

victims, many of whom live “in the outlying rural areas of the province.” AHT 1996.08.12-16 (Durban),

Piet Botha Day1, 57. In the end, amnesty was granted to two of the three applicants involved in that

hearing for the attack on a bus of black people by white right-wingers. AD 1997/0053.

8

Those who were given enough notice of the hearing were often unable to attend

because of lack of time or money. For many victims, getting to a hearing required hours

of travel and in many cases the loss of a day of work and thus much needed wages. The

TRC did not have the resources to provide transportation and other assistance to allow

victims to attend the hearings. For the vast majority of victims such costs made

attendance extremely difficult, even impossible in some cases. To compound this

problem, applications that had been scheduled for one day might be rescheduled to

another, sometimes at the last minute. This was mostly caused by the fact that the

amnesty hearings had as their primary focus the perpetrator-applicants. Hearings were

scheduled first based on the availability of the applicants and their legal representatives.

Since some applicants – especially those from the State – applied for amnesty for

numerous acts, there were often many groups of victims associated with one amnesty

application. While a decision to rearrange the order in which particular incidents

committed by an applicant were heard was unlikely to inconvenience the applicant (who

was present anyway), it could and did result in considerable inconvenience for victims

who could not afford to attend all of the hearings of a particular applicant, and who thus

might not be present if the initial date in which their matter was to be heard was changed.

This was the case, for example, of the family of Geoffrey Sibea, who was killed by the

security police. In response to the committee’s decision to hear testimony regarding the

killing of Mr. Sibea on a day other than that originally scheduled, the legal representative

for the family indicated that the family wanted to attend the hearing in which the killing

of their son would be discussed, but were not present because they had been told the

matter would be heard on another day. While somewhat frustrated by this additional

complication, the committee agreed to postpone the hearing of the matter until the family

could be present.31

In part because the Sibea family had legal representation, their right to attend the

hearing was protected. This cannot be said for many victims who were never identified

or located, nor for the many who had little or no legal representation. The Commission

had a limited budget for providing legal representation to victims, and provided a much

lower level of reimbursement to lawyers representing victims than the state provided to

its own officials and employees who applied for amnesty.32

In fact the amnesty

committee in its interim report notes that as a result of the lack of legal representation,

justice may not have been done with respect to indigent amnesty applicants and victims.33

Some victims chose not to attend an amnesty hearing in which they had an

interest for reasons other than lack of time or resources. Some were generally opposed to

31

For a discussion of the Sibea case and the difficulty facing victims who want to attend amnesty hearings,

see AHT, 1997.10.21-11.01 (Johannesburg) e458-61 (testimony of Brian Currin, lawyer for the Sibea

family). 32

TRC Final Report, Vol. 5, Ch. 3, para. 39. See 1998/0009 for one example of victims attending hearing

without legal representation. 33

TRC Final Report, Vol. 5, Ch. 3, para. 39. See, e.g., AHT 1997.02.10 (Pietermaritzburg) 54 (lawyer for

victim who was only retained the day before the hearing had received no relevant documentation and had

not had a chance to consult with his client). At times the evidence leader was asked at the last minute to

step in and represent the victims. See, e.g., AHT 1996.10.21-11.01 (Johannesburg) f552-3 (evidence leader

asked by committee at the last minute to represent victims when their lawyer failed to appear).

9

the amnesty process and did not want to add to its legitimacy through their

participation.34

Others decided not to attend because they did not feel emotionally strong

enough to revisit the violation inflicted on them or their loved one. The mother of Ace

Mohema, who was killed by the security police, declined to attend the amnesty hearing of

those who killed her son. The brother of Ace Mohema did attend, and spoke at the

hearing of the decision of his mother not to be present:35

My mother is not here today, my father is (indistinct). When we left this morning

from home she said, she cannot stand the pain of listening to the proceedings about

how gruesome a death her son died. So she said go and listen and reflect on what

the proceedings are and express her deepest I don't know what, but very, very

painful for her and now she is waiting at home, she does not know what is

happening, she expects us to get back to her and tell her something. I am not quite

sure when I get back home what is it that I will tell her to ensure that - to find solace

in whatever I am going to tell her.....

Those who chose and were able to attend participated in one of three ways: 1)

attending and listening; 2) presenting evidence either personally or through their

advocate; or 3) cross-examining the applicant either personally or through their

advocate. The first option provided a vehicle for the victim to increase his or her

knowledge with respect to the perpetrator and the act he committed. In such cases the

victims might benefit from an increase in truth, from the personal acknowledgment of the

applicant of his responsibility, and from the official acknowledgment of the wrong the

victim suffered. The second option provided an opportunity for the victim to contribute

to the truth revealed by the amnesty process, and to provide evidence that might result in

the applicant not receiving amnesty. This option is discussed more fully below under the

heading, “Contributing to Knowledge/Truth.” The third option provided the victim the

opportunity to confront his or her perpetrator, which in almost every case was the first

time the victim was able to approach and question the perpetrator within a safe

environment. This option is discussed more fully below under the heading, “Confronting

Perpetrators.” In both the second and third options the amnesty process also provided

victims with a platform from which their stories could be told. While the human rights

violations committee hearings were designed to provide such a platform for victims, the

amnesty hearings provided the opportunity for victims to tell their stories in front of their

perpetrators, and in some cases allowed them to correct or counter the impression created

by the testimony of the perpetrator-applicant. Thus Charles Mokgatle spoke at the

amnesty hearing of the killers of his father. His testimony did not deal with the specifics

of the application, but consisted of a general plea to the community regarding

reconciliation, and of corrections to some of the lies previously circulated about him and

his father.36

34

For example, a local mayor who had been assaulted by the ANC refused to provide an affidavit to TRC

investigators regarding her injuries, and stated that she wanted nothing to do with the amnesty process. See

Amnesty Hearing Transcript, 1997.03.17-19 (East London), Day 01, at 67. Amnesty was in fact denied to

those applicants. Amnesty Decision 1997/0028. 35

AHT 1997.01.20-24 (Johannesburg), 295-7. 36

AHT 1996.05.20 (Phokeng) 3Phokeng, 29-30.

10

Receiving Knowledge/Truth

One of the unique aspects of the South African amnesty is its contribution to

truth. By requiring that an individual apply for amnesty, and in many cases publicly

testify regarding the acts for which amnesty is sought, South Africa reversed the usual

relationship between amnesties and truth. Amnesty hearings provided a vehicle through

which victims learned additional information about the violations committed against

them. Such information ranged from the identity of those who committed the act, to the

reason he or she was targeted, to the details of what happened to a loved one. Victims

reacted to this truth in a variety of ways, some satisfied after hearing the applicant’s

testimony, and others dissatisfied.

In some cases the amnesty process provided the first indication that an individual

had been the target of a violation. For example, Father Mkwatshwa learned for the first

time through the amnesty process that he had been the target of a failed assassination

attempt by the state. He learned form members of the police who applied for amnesty

that they had been waiting for him at the Durban airport, and would have killed him if

they had been able to get a clear shot at him.37

While it is not clear how much relief a particular victim received by attending an

amnesty hearing and listening to the testimony of applicants, there are clear instances

where victims changed their view regarding applicants as a result of a hearing. In fact in

some cases victims who initially opposed the granting of amnesty at the start of the

hearing withdrew their opposition at the end of the hearing. Thus the family members of

a senior member of the ANC, Jabulani Sidney Msibi, who was killed by the security

police, initially opposed amnesty for the nine individuals who applied for amnesty for the

killings. After hearing the testimony of the applicants, the family members withdrew

their opposition to amnesty for all but the three most senior officers, on the grounds that

the latter had not met the requirements of full disclosure.38

In addition to a few clear

illustrations of the positive impact of the hearings on victims, we have statements of

some victims in interviews with the media indicating that learning the truth about the fate

of their loved ones provided some form of closure. We also have numerous cases in

which victims testified or otherwise made known that they did not oppose amnesty for

those who wronged them.39

37

AHT 1996.10.21-11.01 (Johannesburg) d326-7. 38

AD 2000/152. Individuals trapped in a fire caused by the firebombing of a building by the security

police also initially opposed amnesty on the basis of lack of political objective and failure to make full

disclosure. After the hearing, the victims withdrew their opposition, convinced from the testimony of the

political nature of the attack, and convinced that the information they were seeking was more appropriately

sought from the applicant’s superiors who had not applied for amnesty. Amnesty Decision 2000/215. 39

Based on a review of the published amnesty decisions to date, there were fifty-five cases in which

victims did not oppose amnesty and that fact was indicated in the committee’s decision. (As noted below

under the heading, “Influence on Granting of Amnesty,” there may be other victims who did not oppose

amnesty whose preferences were not reflected in the published opinions.) For an example of victims not

opposing amnesty, see AD 1999/0240 (family members support amnesty for murder of alleged police

11

Gerry Thibedi, after hearing the testimony of police applicants who firebombed

his house with the intention of killing him and anyone else in the house (including his

wife and young daughter), discussed during his own testimony the mixed emotions he felt

during the hearing:40

I must say that firstly this is the most emotional day of my life, having to sit

inside this room together with people who, nine years ago, threw a bomb into

my own house. I must say that after listening to what they have to say,

indicating that they have actually identified me as a trouble-maker, I find it

very difficult to accept that their final decision was to wipe me out, with my

entire family. For the mere fact that it took me exactly nine years, nine solid

years to know who did that, is a source of relief, at least I know who did it.

Other victims were less satisfied with the quality of information produced by the

hearings. The most common reaction of victims was that the applicants were not

disclosing fully all of the relevant facts.41

In many cases the victim’s conclusion that an

applicant had failed to make full disclosure was not shared by the amnesty committee. In

some cases this was because the amnesty committee found the testimony of the applicant

more compelling and trustworthy than that of a victim. In others, the difference in

opinion was based much more on what each participant considered relevant – victims

often searching for a level of detail and certainty beyond what the committee thought

necessary for its purposes. This conflict is explained by the different expectations the

amnesty committee and victims had concerning the full disclosure requirement. For the

amnesty committee, the full disclosure requirement was a means by which they could

penalize applicants who intentionally withheld relevant facts regarding the act for which

they were seeking amnesty, including facts concerning the specific involvement and

responsibility of the applicant. Victims, on the other hand, often were looking for a level

of detail – concerning, in some cases, the last minutes of the lives of their loved ones –

that the applicants were genuinely unable to provide. Some victims were searching for

information that, if revealed, would make their loss more easy to understand and accept.

In most cases this truth eluded the victims.

The conflict between the level of truth required by the amnesty committee and

that sought by some victims is nicely illustrated in the reaction of Lorenzo Smith to the

testimony of those responsible for the killing of his wife. Mrs. Smith was killed by

members of the Azanian Peoples Liberation Army (APLA), the military wing of the Pan

informer); AD 1999/0321 (mother of murdered victim does not oppose amnesty and states that she

forgives applicants); AD 2000/0060 (victim of torture did not oppose amnesty for police officer and

confirmed applicant’s full disclosure). 40

AHT 1996.10.21-11.01 (Johannesburg) c283. Amnesty was granted to the three applicants. See AD

1999/0030; AD 1999/0032. and AD 1999/0272. 41

Thus there were many cases in which victims opposed amnesty based on the claim that the applicants had

failed to comply with the full disclosure requirements. See, e.g., AD 1997/0042 (victims oppose amnesty

based on applicant’s failure to comply with full disclosure requirements); AHT 1997.02.10

(Pietermaritzburg) 113-14 (statement by victim’s lawyer indicating victim’s opposition to amnesty based

on lack of full disclosure) (Amnesty was denied, AD 1997/0048).

12

African Congress (PAC), who with hand grenades and machine guns attacked individuals

gathered for worship at St. James Church near Cape Town. Eleven people were killed

and fifty-eight injured during the attack. Mr. Smith had mixed feelings about the

applicants’ testimony, uncertain that full disclosure had been made since the specific way

that his wife had died had not been revealed. A member of the amnesty committee

responded to Smith’s doubts by commenting that it was unrealistic to expect that the

applicants would be able to say whether his wife died by a bullet or shrapnel; the

committee member went on to note that the applicants were admitting and taking

responsibility for the death of his wife.42

Dawid Ackerman, who also lost his wife at the

St. James massacre, also wanted to know more specifically who killed his wife and how.

He described what she was wearing and where she was sitting in the hope that one of the

applicants might remember her, but they did not.43

Ackerman recognized the tension

between his needs and the committee’s, and underscored the elusiveness of the truth that

he and some other victims sought. In response to a question inquiring whether he

believed the applicants had met the full disclosure requirement, Ackerman replied that he

did not think so, but that his assessment was not the relevant one since he was too close

to the situation. In a telling exchange he goes on to say, “I think there might yet be

something more, but is that because I want them to tell me more, or is that because there

is more? It is too subjective Mr. Arendse. That is why we have a Committee...to get to

the bottom of the truth.”44

There were also cases where the amnesty process left victims even more

embittered and traumatized than before. The testimony presented at many of the hearings

was often difficult to listen to, even for those not directly involved. How much more

difficult and traumatic it must have been for those who were involved is difficult to

measure. Applicant testimony was often a mixture of a recounting of horrendous acts

committed against another human being, interspersed with appeals to the victims to

understand and forgive them. Mrs. Khondile was in the hearing room when one of the

individuals responsible for her son’s brutal killing testified:45

The four junior non-commissioned officers, Paul van Dyk, Jan, Sergeant Jan from

Colonel Nick van Rensburg's branch, and the two Ermelo men, each grabbed a

hand and a foot, put it onto the pyre of tyre and wood, poured petrol on it, and set

it alight. Now, of course during - the burning of a body to ashes takes about

seven hours. It is - and whilst that happened we were drinking and even having a

braai next to the fire. Now, that I don't say to show our braveness, I just tell it to

the Commission to show the callousness of it and to what extremes we have gone

in those days. And a body takes about seven hours to burn to ashes completely,

and the chunks of meat, especially the buttocks and the upper part of the legs, had

to be turned frequently during the night to make sure that everything burned to

ashes. And the next morning, after raking through the rubble to make sure that

there was no big pieces of meat or bone left at all, we departed and we all went

42

AHT 1997.07.09 (Cape Town) St. James 140-41. 43

Id. at 184-7. 44

Id. at 187-8. 45

AHT 1996.11.05-08 (Durban) 289-91.

13

our own way. I can just mention maybe perhaps that I did, with the help and

assistance of a Japanese team, was able to honour Mrs Khondile's tradition in

picking up her son's soul, and went to the place about three months ago to point

out the place to the Japanese team, where the next day they took Mrs Khondile

Sizwe's mother to where she could do the necessary traditional stuff that would

have helped, but at the time I didn't have the courage to look her in the face. But

after seeing her on TV, and what a beautiful person she is, and so I hope to in

future meet up with her one day and look her in the eye, and the pathetic sorry all

I can say, but generally one just wants to meet someone of the calibre of Mrs

Khondile.

A tragic example of the trauma created by the amnesty process involved the case

of Sicelo Dlomo, a young student activist who had been killed in 1988. It was initially

assume by his mother that Sicelo had been killed by the security police. In fact, Sicelo

was killed by his friends in the ANC who suspected (wrongly it turns out) that he was an

informer. This information was only revealed when the individuals responsible for his

death applied for amnesty.46

Mrs. Dlomo was distraught to learn that her son’s friends

were responsible for his murder. Her health steadily deteriorated after she learned the

truth, and she died only a few weeks after the amnesty hearing.47

Contributing to Knowledge/Truth

By allowing victims to testify and question applicants, South Africa placed

victims in a more active role in the search for truth than any other similar commission.

As with other commissions, victims contributed to the truth by participating in hearings

organized by the human rights violations committee that had as their primary focus

victim testimony. The amnesty hearings supplemented these hearings, providing another

forum in which victims could tell their stories.

There were some significant differences between victim testimony before the

amnesty committee and victim testimony before the human rights violations committee.

First, in the amnesty hearings the victims testified in reaction to the testimony of their

perpetrators. With a few exceptions, perpetrators were not present and did not testify at

the hearings organized by the human rights violations committee. Victims testifying at

the amnesty hearings were thus provided an opportunity to respond to and counter the

stories told by perpetrators. Providing a forum in which perpetrators can testify risks

perpetuating the control that perpetrators exercise over the interpretation of the past, and

thus the present.48

This was a concern that clearly motivated many of those involved in

46

The applicants were eventually granted amnesty for the killing of Sicelo Dlomo. AD 2000/0019. 47

See Thokozane Mtshali ,“Truth About Dlomo Made His Mother’s Grief,” Mail and Guardian, 19 March

1999. 48

See, e.g., AHT 1997.02.24-03.13 (Pretoria) Day 03a, 20-27 (questioning of victim by advocate for

security police applicant to try to justify acts of police).

14

creating the TRC, who wanted to create a commission with a focus on victims to balance

the focus on perpetrators inherent in the amnesty process.49

Second, in the amnesty committee hearings the victims were subject to cross-

examination by the perpetrator-applicant’s advocate, by the evidence leader, and by the

amnesty committee members. While individuals testifying in hearings before the human

rights violations committee were questioned, they were rarely challenged concerning

their motivations or memory of events. This was not the case in the amnesty hearings,

where a victim’s decision to testify might result in an aggressive cross-examination. In

most cases this aggressive cross-examination was conducted by the legal representative

of the applicant, the person who was seeking amnesty for violating the victim’s rights.

Scheepers Morudu, for example, who had been tortured by the police, was subject to

extensive questioning by the applicant’s advocate concerning Morudu’s political

activities. The apparent intent was to paint Morudu as more radical than he had admitted,

and thus presumably as more deserving of the treatment he had received at the hands of

the police.50

Third, in the case of some amnesty hearings a final determination was made

concerning the truthfulness of testimony that contradicted that of the applicants. Denial

of amnesty because of an applicant’s failure to fulfill the full disclosure requirement did

not necessarily contribute to our knowledge of the past. This was especially the case

where only the applicant testified and the committee found the testimony contradictory or

otherwise unreliable.51

Denial of amnesty based on an applicant’s failure to meet the full

disclosure requirement often did result in an increase in truth when the denial was based

on contradictory testimony provided by a victim. Thus the committee denied amnesty to

a police officer whose testimony was not consistent with that of his torture victim,

accepting the latter’s description of the torture as prolonged and gratuitous and not

limited and necessary as the applicant claimed.52

Amnesty denials based on a victim’s testimony provided two benefits to victims.

First, it vindicated and acknowledged their version of the truth of the past. Second, it

provided a concrete manifestation of the shift in power in South Africa by denying a

benefit to those who wielded power over the victim because of an act of the victim – i.e.

because of the victim’s testimony.

The amnesty process did not provide such validation to all victims. There were

cases where the amnesty committee did not believe a victim’s testimony, either because

of contradictory evidence provided by other witnesses, or because of an assessment by

49

See the statement of the Minister of Justice, Dullah Omar, supra note 5. 50

See AHT 1997.02.24-03.13 (Pretoria) Day 03a, 20-27. Amnesty was eventually granted to the police

who admitted to torturing Morudu. AD 2001/0061. 51

See AD 1999/0004 (amnesty denied because of contradictory evidence of applicant); 1999/0013

(amnesty denied because applicant’s testimony is “fraught with numerous inconsistencies and

contradictions.”) 52

AD 1997/0068. See also 1999/0204 (victim’s version of IFP members killing ANC members accepted

over applicants); AD 1999/0222 (victim testified to being shot in the shoulder, hit on the head with a

hammer, and raped, none of which was reflected in the applicant’s application or testimony).

15

the committee that the victim was not a trustworthy witness. Thus testimony by family

members that a victim was not politically active, and thus that his killing was not an act

associated with a political objective, was not accepted by the committee.53

Reconciliation, Forgiveness, and Apology

While reconciliation, forgiveness, and apology are not mentioned in the

legislation establishing the amnesty process, the amnesty hearings provided a forum in

which acts of reconciliation, forgiveness, and apology occurred. In fact all of the

participants in the amnesty process, including the evidence leaders and committee

members, raised the issue of reconciliation at some point in the process. Incidences of

forgiveness, apology, or reconciliation between a victim and perpetrator occurred during

some hearings, and immediately before or after other hearings.

Yet truth – the retelling and revisiting of acts of trauma – is not necessarily

conducive to reconciliation, at least in the short run. Especially when subject to

aggressive cross-examination, a victim or perpetrator may be less open to making a

reconciliatory connection with the other. One victim who valued reconciliation highly

noted this phenomenon during the cross-examination of an applicant who was

responsible for the killing of his wife. He looked at the applicant and saw anger in his

demeanor and in his answers, and asked that his attorney cease the questioning: “The

truth yes, but I looked at the way in which he answered you and his anger. How on earth are

we going to be reconciled?”54

Victim’s attitudes towards forgiveness and reconciliation varied, with some very

publicly forgiving those who committed violations against them or their loved ones, and

others tenaciously refusing to grant to their perpetrators the last thing over which they

had control. Some of those who forgave were motivated and supported by their own

religious beliefs. Dawid Ackerman forgave “unconditionally” and as a Christian those

who were responsible for the death of his wife in the St. James massacre.55

The brother

of Japie Maponya, who was killed by the security police, testified that he and the rest of

his family were Christians and thus would forgive his brother’s killers.56

The connection between victim and perpetrator that reconciliation seeks, and the

overlap of the categories of victim and perpetrator referred to at the beginning of this

paper, are nicely illustrated with the involvement of Dawid Ackerman in the amnesty

hearing for the killers of his wife. During the hearing one of the applicants testified that

the police had tortured him, and how as a result of that treatment he had tried to kill

53

AD 1999/0186 (concerning an attack by supporters of the ANC against IFP members) (Amnesty

granted.) 54

AHT 1997.07.09 (Cape Town), St. James, 178 (testimony of Dawid Ackerman). 55

AHT 1997.07.09 (Cape Town), St. James, 182. While he forgave the applicants, Dawie Ackerman was

unclear whether he supported the granting of amnesty or not, preferring instead to defer to the judgment of

the committee, which he said he and his family would accept. Id. at 183-4. Amnesty was granted. AD

1998/0018. 56

AHT 1997.01.20-24 (Johannesburg) 210-11.

16

himself in jail. The torture by police and the loss of a loved one provided a basis for one

victim to better understand the perpetrator who himself was also a victim. During his

testimony, Dawid Ackerman spoke about the torture of his own suffering as a result of

the loss of his wife, and his identification with the pain suffered by the applicant.57

While there were certainly incidents of genuine reconciliation, forgiveness, and

apology that occurred within the context of the amnesty process, the desire for

reconciliation on behalf of the participants in the process sometimes resulted in victims

being pressured to forgive and reconcile with their perpetrators. This came

predominantly from two sources. The first, not surprisingly, was the advocate for the

amnesty applicant. The second, and somewhat more surprising, was the evidence leader.

Although reconciliation, apology, and forgiveness were not required by the

amnesty legislation, most applicants and their advocates probably correctly calculated

that acts of apology on their part, and responsive acts of forgiveness and reconciliation on

the part of the victims, could sway an amnesty committee member in their favor. This

was by no means a universal calculation on behalf of perpetrators, some of whom

continued to justify their actions before the amnesty committee. Thus a policeman who

applied for amnesty for killing nine youths who were enticed by an informer to leave the

country, was asked whether he wanted to say anything to the surviving family members.

In apologizing to the family members, he could not resist a further defense of his

involvement in the killing of their sons:58

I am sorry for the loss, pain and suffering which I inflicted on parents,

family and friends of the victims. I am really sorry about that and I would

just like to say to you that there was a possibility that these people could

have come back as trained MK soldiers, whether they were for the PAC,

ANC, or whatever. And it had to be foreseen that these people could

possibly have committed a second Church Street bomb, because their

targets were not merely military people like us, but also other innocent

people. I would just like to mention that to you, but I would like to ask

you to forgive us. We are sorry for the persons who suffered and who

lost loved ones.

This is not to say that there were not genuine expressions of remorse and apology

by perpetrators. The Amnesty Committee eloquently recounts an apology offered by a

member of MK, the military wing of the ANC, who killed a policeman and an innocent

bystander:59

We may tangentially commend the applicant for having been able, during

his viva voce evidence, to express his great remorse and regret for the

harm which he had caused to the families of the deceased and the victim.

He stated that the apartheid policy turned him into the killer he was and

that but for the apartheid policy he would not have killed. He averred that

57

AHT 1997.07.09 (Cape Town), St. James, 178. 58

AHT 1997.02.24-03.13 (Pretoria), Day 08, 840-41) (testimony of applicant Wouter Mentz). 59

AD 1999/0246, at p. 3.

17

the untenable political conditions which had existed in the country had

driven him to do what he did. In a moving rendition he apologised to the

families of the deceased for the harm he had caused, the suffering to which

he had subjected them and hoped that the new political dispensation would

usher the peace and respect for human life which any normal society

should and ought to enjoy.

While it is not surprising that amnesty applicants and their advocates might want

to emphasize reconciliation in their effort to gain amnesty, it is harder to explain the at

times aggressive stance taken by the evidence leader in pressing victims on the issue of

reconciliation. With the state providing amnesty, and taking over any obligation of the

perpetrators to provide reparations, one of the few things left to victims was their power

to forgive. It is in these interchanges with evidence leaders, where some victims were

subject to more pressure with respect to reconciliation than they were at the hands of the

applicant or their advocate, where the tenacity of the victims in retaining their dignity and

control over their power to forgive.

The following three exchanges illustrate both the pressure that the evidence

leaders sometimes exerted on victims to forgive, and the resistance of the victims to that

pressure. In all three cases reference is made to the general expectation that individuals

will forgive and reconcile, and in each case the victim resists the pressure of the evidence

leader to forgive the applicant.

In the first example, Mrs. Kate Mazwi spoke at the amnesty hearing of three

individuals who applied for the killing of her son. While the evidence is unclear, it

appears that the killing was the result of a dispute within a local ANC chapter; thus the

amnesty applicants and Mrs. Mazwi’s son were all members of the ANC.60

Evidence Leader: Thank you. We sympathise with you due to your son's death.

Do you have the knowledge about reconciliation?

Mrs Mazwi: Where?

Evidence Leader: Do you understand, do you know anything about people

reconciling?

Mrs Mazwi: Yes, I know that when people are fighting, as they've killed my son,

that I should reconcile with them. No, no sir.

Evidence Leader: These three people who have killed your son, they have come

here to this committee to confess and ask for forgiveness.

Mrs Mazwi: If, when they were dragging him out of the house, when he said, "Let

us sit down and talk peace", it was maybe better, maybe it can take a

60

AHT 1996.09.09-13 (Potchefstroom), Truth04, 351. Although the transcript ascribes the questioning to

one of the committee members, this is most likely a mistake given the substance of the questioning. Two

of the three applicants were denied amnesty for the killing, on the basis that they claimed not to have

participated in the killing and therefore had not admitted to any act for which amnesty could be granted.

There was also some discrepancy between their testimony and the testimony of Mrs. Mazwi concerning

their involvement in her son’s death. AD 1997/0002, 1997/0005. The third applicant was granted amnesty.

1997/003.

18

different turn then, but I have, they denied peace and reconciliation at

that time, they denied him when he was asking that reconciliation, how

can I give them that reconciliation? I am not able to give them that

reconciliation. They denied to accept it from him. Even the small

children, they were saying, "Please, please, leave him alone", they

were requesting, they didn't have time, so I'm not able.

Evidence Leader: Thank you, Mr Chairman, members of the committee, that is all.

The second example involves the application of security police for the killing of

Joe Tsele, Legina Mabela’s brother, for his union and other political activities. At the

amnesty hearing Advocate Mpshe, the evidence leader, presses Ms. Mabela on the issue

of reconciliation. She resists, suggesting that her ability to reconcile is dependent on her

learning all of the relevant facts surrounding her brother’s death, which was not provided

at the hearing.61

Adv Mpshe: The applicants within their applications have asked forgiveness about

this act. As you know that this is the time for reconciliation and forgiveness in our

country, what is your feeling about the forgiveness and reconciliation?

Ms Mabela: We cannot be able to forgive them if we can know the truth from Mr

Mamasela62

to know what they have done and what was his part in the incident, then

therefore we will be able to think how we can forgive them. If you know the truth,

you are able to forgive. We don't know as whether what they have told us is the

truth or not.

Adv Mpshe: Your own feelings about reconciliation, what kind of feelings do you

have about reconciliation and forgiveness?

Ms Mabela: I want to know the truth.

Adv Mpshe: Is there anything you want to say?

Ms Mabela: I want to know the truth only.

Adv Mpshe: Do you end up there?

Ms Mabela: Yes.

The third example involves the application of security police for the torture and

killing of Harold Sefola and two other ANC activists. Lizzie Sefola testified that she did

not agree with the amnesty process because of the pain caused to her by the way her

husband was killed. Her response to the evidence leader’s questions illustrates the

tension between the position of many victims and their perception of the government’s

emphasis on reconciliation.63

Mr. Mpshe: In your reading of newspapers sometimes and watching the TV you've

heard much about reconciliation?

61

AHT 1997.02.24-03.13 (Pretoria) Day 01, at 72. Amnesty was granted to those who applied for the

killing of Joe Tsele. AD 1999/0030 and AD 1999/0031. 62

Joe Mamasela was involved in the killing of Legina Mabela’s brother, but did not apply for amnesty as

he was a state witness and cooperating with the attorney general’s office. 63

AHT 1996.10.21-11.01 (Johannesburg), e447. Amnesty was granted to the killers of Harold Sefola. AD

1999/0030, AD 1999/0032, and AD 2000/0107.

19

Mrs. Sefola: Yes I heard.

Mr. Mpshe: You know how our present Government feels about people

reconciling?

Mrs. Sefola: No I don't, according to me people should forgive each other, not the

Government. The people who are affected who had the pain should

be the ones who are talking about forgiveness, not the Government.

Mr. Mpshe: How do you feel about this move by the Government talking to people,

persuading them towards reconciliation?

Mrs. Sefola: I feel very bad because this thing, it's still there, we are still feeling the

pain and this people never came to us to ask for forgiveness. The

Government is doing this on their behalf, they don't even know what

forgiveness is. This people don't even deserve it because if the person

was to be forgiven, he must understand what you feel.

The TRC, as distinct from the amnesty committee, was generally careful not to

pressure victims with respect to reconciliation, and took the position that reconciliation

was not something that would come easily. For many victims, however, the major, and

in some cases only, interaction with the Commission occurred in the amnesty hearing,

and the voice of the Commission was the voice of the evidence leader and the amnesty

committee members. Looking at the above three examples, it is not surprising that some

victims came away from the process feeling that the government, through the

Commission, was more intent upon furthering reconciliation than any form of justice to

the victims. This impression is further supported by the failure of the government even at

the time of this writing to make any but the most minimal provision for reparations to

victims.

Amnesty committee members also raised the issue of reconciliation, but I have

come across no evidence of amnesty committee members exerting the type of pressure on

victims as I found with the evidence leaders. In fact the amnesty committee members

generally raised the issue of reconciliation in the context of asking the victim whether

those responsible for their violation had expressed any sorrow, remorse, or apology to

them.64

This generally more sympathetic position with respect to victims and the issue of

reconciliation was illustrated dramatically in a case where an amnesty committee member

came to the rescue of a distraught victim who was being questioned by the evidence

leader.65

64

For a typical example in which an amnesty committee member raised the issue of reconciliation, see the

brief interchange among Judge Wilson, Judge Ngoepe, and Ellen Dhlamini. Amnesty Hearing Transcripts,

1996.09/09-13 (Potchefstroom), Truth03, at 240-1. Amnesty committee member Ngoepe did ask Ms.

Dhlamini whether she would consider forgiving the applicants, although in a far less confrontational

manner than the examples discussed in the text above: “Mrs Dhlamini the pain that you are feeling we

promise you it is the same feeling that we have. The two men that have been referred to are today in prison.

Now the question is, if there is any other way to come and meet you to show how remorseful they are and ask

for forgiveness for what they did to you will you ever forgive them?” In response, Mrs. Dhlamini states that

she would forgive them under those circumstances. Id. 65

Amnesty Hearing Transcripts, 1997.02.24-03.13 (Pretoria), Day 02, at 89. Ms. Ngqulunga

20

Adv. Mpshe: Now the applicant is before this Committee, seeking amnesty, what is

your response to that?

Mrs. Ngqulunga: It is hard, it is difficult.

Adv. Mpshe: He is basically, amongst others, asking for forgiveness, how do you

react to that?

Adv. Mpshe: (No audible reply)

Committee Member Adv. de Jager: Mr Mpshe if she doesn't want to answer that

it....

Adv. Mpshe: Thank you Mr Chairman, that will be all the evidence.

The security police killed Mrs. Ngqulunga’s husband, who had been working with them

as an askari against the anti-apartheid movement. Shortly after the above exchange she

stated that she could not forgive those who killed her husband, although it was not clear

from her testimony whether she opposed the granting of amnesty or not.66

Some victims were ready to, and did, forgive those who committed violations

against them and their loved ones.67

Many victims, however, refused to forgive – even

when, as illustrated above, they were pressured to. There were three dominant reasons

that victims gave for their unwillingness to forgive:68

1) the failure of the applicant to

approach them or apologize outside of the context of the amnesty hearing and process; 2)

the lack of any form of reparations; and 3) the act for which amnesty is sought is one

which no one should forgive.

Some victims refused to forgive applicants because of the latter’s failure to

approach them prior to the amnesty hearing. One means victims could use to ascertain

the genuineness of a statement of remorse or apology was whether it was motivated

primarily by the desire for amnesty. While apologies tendered in the context of an

amnesty hearing might in fact be genuine, some victims reacted quite strongly against

these seemingly opportunistic and last minute expressions of remorse. Mr. Morudu

reacted this way in response to an applicant who approached him only after the applicant

was asked at the previous day’s hearing about any contact he had with Mr. Morudu. In

addition, in response to a question concerning reconciliation the same applicant

mechanically read from his application concerning reconciliation in general, rather than

speaking directly to Mr. Morudu who was present at the hearing. Mr. Morudu’s reaction

is reflected in the following exchange with his own lawyer:69

Mr. Currin: How do you feel about amnesty?

66

Amnesty Hearing Transcripts, 1997.02.24-03.13 (Pretoria), Day 02, at 90. Amnesty was in fact granted

for the killing of her husband. 67

See, e.g., AD 1999/0181 (apology of applicant who planted limpet mine that killed a number of people

accepted by family members). 68

There were other reasons, but these three are those that were most prominently and consistently argued in

the transcripts I have reviewed so far. 69

AHT 1997.02.24-03.13 (Pretoria) Day 03a, 14. See also AHT 1996.10.21-11.01 (Johannesburg), e442

(wife of a victim killed by police states that she might have been able to forgive the applicants had the

come forward to her earlier, but now after hearing their testimony she cannot forgive them) (testimony of

Mabel Makobe).

21

Mr. Morudu: In this matter which is - which they are asking for amnesty on this

matter of which I am involved, I would ask this Committee not to give them

amnesty because they didn't even come to me before they saw me on Monday and

they didn't even make attempts of coming to me myself as a person and ask for

forgiveness.

Mr. Currin: This morning, were you not approached by one of the applicants?

Mr. Morudu: This morning I was approached by van Vuuren and I think his

approach came after Mr Currin asked me whether he came to me yesterday or the

day before yesterday and asked for forgiveness, so I don't take that that I should first

hear it from somebody then he should come and ask for it.

Mr. Currin: If we could maybe facilitate some discussion, some real sort of heart to

heart discussion between you and the perpetrators to help you deal with the matters,

do you think it may help you?

Mr. Morudu: No, at this stage no, I don't think it will help me.

Some victims refused to forgive in the absence of any form of reparations. Some

sought some form of reparations directly from the perpetrators – specific deeds that

would indicate the perpetrator’s commitment to reconciliation beyond words of apology.

Thus Gerry Thibedi, when asked his reaction to the remorse expressed by the police

applicants who firebombed his house, responded:70

....in my own mind I don't think the process of amnesty, as we are sitting today, will

work until we get a full commitment from the perpetrators. You see, to say I'm

sorry I won't do it again is not enough. We are sitting with a problem where the

victims are the ones who seem to be expected to say I am sorry all the time. I'm

saying here that it's high time that the perpetrators also, not only in words but in

deeds, they must be able to go all out and convince their communities that yes, we

acted in this way and we acted wrongly. It's not enough to say to me I am sorry

Tibedi, but to me I think the process will be assisted a great deal if they can go out

and say to their own communities whom they were trying to protect, as they are

claiming, they must go and say to them we did it in the name of apartheid, we are

sorry we apologise and we want you to follow us in this example. Then the process,

the process will then be easy, the process of reconciliation will then be easy, but

that's my view. So I'm sorry I don't have a yes or no answer to your question.

Others wanted a more personal form of apology. Thus the brother of an

individual killed by the police testified that his mother could not attend the hearing

because of the pain it would cause her, and asked that the person responsible for the death

of her other son go to her and apologize:71

I've lived in exile, I've lived under very harsh conditions, but this is one of

the worst moments for me to be sitting here to try to say how the family feels

about what has happened and ... (witness distressed) ... can I round off by

asking two questions and hopefully I will be able to let my mother who is at

70

AHT 1996.10.21-11.01 (Johannesburg) c290-91. 71

AHT 1997.01.20-24 (Johannesburg) 295-7.

22

home probably sleep in peace. Just two questions. Can somebody go to her

and say I have committed the murder, I am sorry. The second one is, can

somebody take us or take her to say this is where your son is, this is where

his last remains are, if there are any remains that are still available for one to

see. I am not in a position to proceed. I've got a whole list of questions that

I wanted to ask to satisfy myself, but I don't think I should proceed. And I

would like to thank you all. Thank you.

Father Mkhwatshwa, a priest who had been targeted for elimination by the police,

recounted in his testimony the applicant’s offer to shake his hand in the hall prior to the

hearing. While the question of his willingness to forgive was not raised at the hearing,

Father Mkhwatshwa suggested that the applicants consider attending his church and

apologizing for the acts of terror they committed, and maybe offer to pay for the school

fees of the children of members of the congregation.72

Other victims were more interested in monetary reparations, a right to which

many persuasively argue victims are entitled under international law. Thus Thabani

Richard Zulu, who was the victim of a bus shooting, testified that he could not forgive

unless he received some form of compensation.73

The failure of the South African

government to move forward on the issue of reparations is probably the single largest

complaint of the victims today.

Some victims made it clear that the nature of the act for which the applicants were

applying for amnesty made it impossible for them to forgive. Chris Ribeiro, who with his

family challenged the legality of the entire amnesty process up to the Constitutional

Court, testified why he not only could not accept the apology of the security police who

killed his parents, but also could not and would not accept any form of reparations from

them:74

....I cannot accept [the apology] because there is no sincerity and the pain cannot be

wiped away by just saying sorry. None of them have even tried to say, look, you are

your brothers were at school, we can do this to send you back to school, but even

that we will not accept because we cannot go to school with blood money. We just

cannot accept your apologies.

Mamokete Vivien Dithebe testified that she could not forgive the applicants who killed

her husband even if the applicants were to apologize. Her loss of a husband and her

child’s loss of a father had made their lives a struggle – she is not working and has very

little money.75

While her testimony suggests that if she were given some financial

assistance she might be in a better position to forgive, she does not make this connection

and refuses to forgive.

72

AHT 1996.10.21-11.01 (Johannesburg) d326-30. 73

AHT 1996.08.12-16 (Durban) Zulu, 14. 74

AHT 1997.02.24-03.13 (Pretoria) Day 06, 5-6. 75

AHT 1996.07.22-26 (Kroonstad) Entire Hearing, 492.

23

Confronting Perpetrators

One of the most important rights provided to victims by the South African

amnesty was the right to confront and question their perpetrators. By providing a safe

place for victims to hear the testimony of those applying for amnesty, the Commission

contributed to the knowledge and truth of individual victims. By providing a space for

victims to question applicants, the Commission contributed to the power and dignity of

victims. For some victims, the amnesty hearings provided the first opportunity for them

to confront directly someone who had wielded virtually unaccountable power over them

and their family. Confrontations, however, did not just occur between the victims of

apartheid and representatives of the apartheid police and government, but also between

white civilians and members of the anti-apartheid movement, and between members of

competing anti-apartheid organizations (most notably the ANC and IFP). In the case of

victims of the apartheid government, the ability to question and confront amnesty

applicants provided the most dramatic increase in power to victims. For the first time

victims were able to speak to members of the apartheid government from a position of

relative safety. In the other two cases, the amnesty hearing also provided a safe place for

victims to confront those who had violated their rights and the rights of their loved ones,

an opportunity that would not have occurred but for the amnesty process.

Confrontations between victims and perpetrators provided some of the most

dramatic moments in the Commission’s life. Three examples illustrate the power and

drama of these confrontations: a mother’s response to a man who brutally killed her son

and who expressed at his amnesty hearing an interest in meeting her; a man’s request

that the killers of his wife look him in the eye and apologize; and the close questioning

of a torturer by a man he had tortured, resulting in a dramatic demonstration by the

torturer of his most brutal, and successful, method.

First, the mother of Sizwe Khondile attended the hearing of the security police

who killed her son. As recounted above, one of the applicants, Dirk Coetzee, described

in graphic detail the killing of Sizwe and the slow burning of his body. Interspersed in

that description, Mr. Coetzee expressed an interest in meeting Mrs. Khondile.76

Mrs.

Khondile declined to testify in person, but instructed her legal representative, Mr. Moosa,

to convey her response during his cross examination:77

Mr. Moosa: You have said that you would like one day to meet Mrs Khondile

and look her in the eye.

Mr. Coetzee: I would like to do that in future, yes, Sir.

Mr. Moosa: Mrs Khondile asks me to convey to you that that is an honour that

she feels you do not deserve, and that if you were really remorseful you would

have not applied for amnesty, but in fact stood trial for what you did with her

son.

76

See supra text at note 40 for the language of his request. 77

AHT 1996.11.05-08 (Durban) 273.

24

Second, Dawid Ackerman, whose wife was killed by the APLA attack on the St.

James Church, asked that each of the three applicants turn and face him so that he could

address them personally. After they turned to face him, Mr, Ackerman addressed them

through a translator: “I would like to hear from each one of you as you look me in the

face, that you are sorry for what you have done, that you regret it and that you want to be

personally reconciled.”78

In response to each of the applicants apologizing, and

expressing an interest in meeting with the members of the church in a spirit of

reconciliation, Mr. Ackerman stated that he “unconditionally” forgave them for the hurt

they caused, but that he could not forgive them for the sin they committed.79

Third, Jeffrey Benzien was a policeman in the Western Cape. He was known for

a notorious method of torture known as the “wet bag,” which consisted of placing a wet

cloth bag over the victim’s head for prolonged periods of time. Benzien stated during his

amnesty hearing that this method was foolproof, and resulted in the victim talking within

thirty minutes.80

One of the victims he tortured, Tony Yengeni, questioned Benzien in

great and graphic detail about his torture, culminating in Yengeni asking Benzien to

demonstrate the use of the wet bag method on a volunteer from the audience so he could

see for the first time the technique that was practiced on him.81

During the demonstration

Yengeni asked Benzien for specific details about victims subject to this treatment – how

their bodies moved, when they screamed, etc. The scene of a torture victim questioning

his torturer in such great detail – in effect forcing him to recreate his role as a torturer –

was a powerful one that was covered thoroughly by the local media.82

Influence on Granting of Amnesty

It is difficult to tell from either the reasoning of the amnesty decisions or the

hearing transcripts how much influence victims had over the decision to grant amnesty in

a particular case. There are clear cases where the amnesty committee denied amnesty

based on the applicant’s failure to make full disclosure. In some of those cases the

version of the truth accepted by the committee was that presented by a victim. In those

cases it is clear that the victim did influence the granting, or in this case denial, of

amnesty. Of the 921 opinions reported to date, only eight were denied in part because the

testimony of victims indicated that the applicant failed to make full disclosure of all

relevant facts.83

78

AHT 1997.07.09 (Cape Town) St. James 185. 79

Id. at 186. 80

AHT 1997.07.14-16 (Cape Town) Benzien1, 60-61. 81

Id. at 67 – 70. 82

Benzien was granted amnesty. AD 1999/0027. 83

This conclusion is based only on a review of the amnesty decisions. I only counted those opinions where

the amnesty committee noted in its decision that the discrepancy between a victim and the applicant

resulted in a denial for lack of full disclosure. The eight opinions are: AD 1996/0016, AD 1997/0068, AD

1999/0025, AD 1999/0204, AD 1999/0208, AD 1999/0222, AD 1999/0227, and AD 2000/0227. There

were other incidents where a victim’s testimony influenced the denial of an amnesty – for example, cases

where a victim’s testimony suggested the absence of a political objective and amnesty was denied on that

basis. Those examples are not reflected here, and might significantly increase the number of relevant cases.

25

Based on the information provided in the 921 amnesty decisions, fifty-five

decisions involved victims who did not oppose amnesty for the applicants, and sixty

involved victims who did oppose amnesty. Of the fifty-five in which amnesty was not

opposed, fifty-one resulted in a grant of amnesty, and six resulted in a denial.84

Of the

sixty in which amnesty was opposed, eighteen were denied amnesty and forty-six were

granted amnesty. There is a higher correlation between opposing amnesty and denial

than there is in supporting amnesty and amnesty being granted. It is hard, however, to

make any firm conclusions about these numbers. First, relying primarily on the test of

the amnesty decisions does not capture all of the positions taken by victims with respect

to a specific amnesty application. A more accurate picture would require a thorough

review of the tens of thousands of pages of amnesty hearing transcripts. Second, there is

no indication in the decisions – and probably none in the hearing transcripts – with

respect to the influence of a victim’s position on the committee’s decision regarding

amnesty. The fact that all of the participants, including members of the amnesty

committee, were interested in the position of specific victims with respect to specific

amnesty applications suggests that there was certainly some influence.

Conclusion, and Some Brief Remarks on Justice

The South African amnesty process is by far the most victim-friendly amnesty

ever adopted by a country addressing a violent past. This is true whether one looks at the

provisions of the amnesty legislation (the amnesty as promised) or at the actual

experience of victims (the amnesty in practice). As the above discussion indicates, there

are both significant gaps and correlations between the amnesty as promised and the

amnesty in practice. First, while victims had the right to attend and participate in the

public amnesty hearings, this right was often denied by the inability to locate and identify

victims, by the lack of resources available to the victims to travel and lose a day or more

of work, by the organization of the hearings around the schedule of the perpetrators, and

by the lack of legal representatives available to victims. The TRC in its Final Report

suggested that this last factor – the lack of legal representation for victims – may have

resulted in the denial of justice to some victims.

Second, the amnesty hearings provided an important vehicle for victims to learn

the truth about the circumstances surrounding their violation. In some cases victims

developed a greater understanding of their perpetrators as a result of the hearing. In

many others, however victims were dissatisfied by the testimony of applicants – in some

cases understandably so, while in others based on unrealistic expectations of what the

perpetrators could provide to them.

Third, the amnesty hearings provided a valuable forum for victims to contribute to

the truth about the conflicts of the past. Through their testimony victims were able to

uncover more information than would otherwise have been revealed if the Commission

84

The number of grants and denials add up to a greater number than the total decisions since some opinions

involved more than one individual or act, and thus some resulted in both grants and denials.

26

relied only on the testimony of perpetrators. While some victims had their stories denied

by the committee (when the applicant’s version was accepted over the victim’s), many

were able to participate and contribute in a way that was useful to both the victims and

the Commission.

Fourth, while reconciliation, apology, and forgiveness were not a formal part of

the amnesty process, they were raised by every participant in the process. There were

some remarkable examples of victims and perpetrators reconciling with each other.

There were many more examples where victims and perpetrators came no closer as a

result of the hearing, and some where the hearing appeared to increase the distance

between the two. Most disturbing, however, was the pressure that both applicants and

evidence leaders placed on victims to forgive and reconcile with perpetrators. Most

victims resisted, and retained the one thing the state could not take from them, the control

over their power to forgive. As reflected in their testimony, many victims required more

than the amnesty process could provide to forgive and reconcile.

Fifth, some of the biggest and most dramatic successes of the amnesty process

were the result of the victim’s right to question and cross-examine applicants. The shift

of power from perpetrator to victim accomplished by this right to question was of

immense value to those who took advantage of it – from retaining their dignity in

refusing to reconcile, to publicly and aggressively questioning, shaming, and

embarrassing some applicants.

Sixth, and finally, it is not clear how much power victims exerted with respect to

the granting or denial of amnesty. There are some cases where it is clear victims had an

impact – most notably in the denial of some applications for failure to meet the full

disclosure requirement. Victims did not, either in promise or practice, have any right to

determine whether an individual should receive amnesty or not. Maybe the next amnesty

that comes after and builds upon the South African one will provide more power in the

process to victims, and thus fulfill to an even greater extent the general promises we

sometimes make to victims but rarely deliver in practice.

27

NOTE ON SOURCES

AD: Amnesty Decisions are referred to as they appear on the official website of the

South African Truth and Reconciliation Commission (http://www.truth.org.za/). They

are thus cited in the following format: AD year/decision number.

AHT: Amnesty Hearing Transcripts also correspond to the files as they are found on the

TRC website. They are in the form of “AHT year.month.day (location of hearing),

subfile name, page number.” The year, month, and day are presented in numerical form,

so 1997.05.12 refers to a hearing on May 12, 1997. Most of the hearings are referred to

not as individual days, but as groups of days. Thus a more typical citation is 1997.05.12-

16, which refers to the set of hearings that took place from May 12 to May 16, 1997; or

1997.05.26–06.02, which refers to the set of hearings that took place from May 26 to

June 2, 1997. The location is provided in parentheses, as there were often multiple

hearings held across the country on the same date. Finally, the subfile is identified as it is

on the website. The subfile might be an indication of the day (“Day 01”), or the name of

one of the applicants or witnesses (“Plessis”), or the name of the incident (“St. James”).

The page numbers are those as appear on the official transcript on the website.