South African’s National Liberation Movement
Truth and Reconciliation Commission (TRC)
ANC submission to the TRC in reply to the TRC's "Findings on the ANC"
28 October 1998
The African National Congress, which the Truth and Reconciliation Commission acknowledge waged “a legitimate struggle against the apartheid state and its policy of Apartheid”. Wishes to respond in the manner detailed below to the document entitled “Findings on the Role of the African National Congress” conveyed to us by Commissioner Dumisa Ntsebeza in terms of Section 30 (2) of the Promotion of National Unity and Reconciliation Act (“the Act).
1.0 The TRC has grossly misdirected itself in its “Findings on the Role of the African National Congress”, through the pursuit of objectives which are contrary to the spirit and the intention of the Act under which it is established.
1.1. These “findings” show an extraordinary refusal on the part of the Commission to locate itself in the context of the circumstances which related to the struggle against apartheid, both within and outside the country.
1.2.Consequently, the TRC has made “findings” against the ANC informed by purposes other than those for which the Commission was established. Simultaneously, it has made “findings” which are blatantly contrary to fundamental principles of international law.
2.0 Whatever the efforts to besmirch our struggle by denouncing it as a gross violation of human rights, the ANC, Umkhonto we Sizwe and the millions of people who were part of this struggle, will always be proud of what they did to ensure that in the process of the destruction of a vile system, they did not themselves resort to vile methods of struggle on the basis that justified the end.
2.1 The masses of our people will always be proud of the fact that they could very easily launched an indiscriminate offensive against the white population, they did not do so. This position was not accidental, bur resulted from a deliberate and conscious decision.
2.1.1 This was despite the fact that the apartheid system had placed this white population within a “whites only” enclave, which would have facilitated attacks in which there would be virtually no loss of black lives.
2.2 The masses of our people will always be proud of the fact that, despite all pressure, including splits within our liberation movement, they fought against all attempts to reduce ours into a racial struggle.
2.2.1 For decades and to this day, the ANC and its allies stood, and remain, as the only political force in the country blocking the destruction of South Africa through the conflagration of a racial war.
2.2.2 For reasons, the alliance of democratic forces led by the ANC fought hard to draw the white population into the struggle for liberation and basing itself on the very few whites who actually joined this struggle, always affirmed that our was a struggle of all South Africans, without regard to race, to give birth to a non-racial society.
2.3 From the beginning of the armed struggle, in 1961 the ANC took the conscious decision that all our armed actions should avoid loss of life altogether, but where this was unavoidable, there should be a minimum of civilian casualties.
2.3.1 This injunction to plan and execute military operations in a special way was observed throughout the years of our military struggle, resulting in derisory remarks being made by our critics about ours being the most ineffectual armed struggle among the other wars of liberation.
2.3.2 It was out of this consideration to minimise the loss of civilian lives that the ANC discontinued the use of land mines, after it made an assessment that this form of warfare was, according to is own principled humanitarian norms, leading to an unacceptable loss of civilian lives.
2.3.3 It was also for this reason that the ANC ruled that various functionaries of the apartheid system, such as the same judges who were sentencing our captured guerrillas to death, should never the less be treated as military targets.
2.4 Similarly, the intervention of the ANC to discourage the use of the “necklace “, introduced into the resistance movement by the apartheid regime, was informed precisely by the concept, fundamental to our struggle, that we should not resort to methods that would serve to diminish the humane nature of both struggle and its objectives.
2.4.1 The decision not to execute some of the mutineers who had killed unarmed soldiers, as some spies, whom the ANC itself returned to South Africa after 1990, derived also from the determination to try, at all time, to minimise the loss of life.
2.4.2 The measures adopted, both inside and outside our country, not to disclose to the public the identity of many whom we knew to be enemy agents or about whom had sufficient intelligence information to convince us that they were, to save these from the wrath of the people, also emanated from our commitment to handle the conflict with the apartheid system in a manner that minimised suffering to individuals.
2.4.3 The formal step taken to accede to Protocol 1 of the Geneva Conventions was confirmation of the positions of our movement to strive, at all times, to carry out its actions guided by the extant international norms governing the humanitarian conduct of warfare.
3.0 The masses of our people and the organisation that led them to freedom, will always be proud of the fact that by the way they conducted themselves in struggle, they laid the basis for national unity and reconciliation in our country as well as the very establishment of a Truth and Reconciliation Commission.
3.1 Accordingly, we will fight using all legitimate means, to defeat any effort which seeks to denounce the noble struggle the people waged, on the basis that it constituted a gross violation of human rights.
HUMAN RIGHTS VIOLATIONS
4.0. From the “Findings” conveyed to us, it is impossible to tell what the TRC understands by the term “gross violation of the human rights” as opposed to what it regards as legitimate forms of struggle against apartheid. With rare exceptions, all the listed alleged gross violations of human rights for which the ANC and its organs are said to be politically and morally accountable, are in fact inseparable from the consequences of legitimate struggle.
4.1 Unless a distinction is drawn between a legitimate struggle against apartheid and its consequences on the one hand, and gross human rights violations as understood in international law on the other, it is impossible to avoid arbitrary and capricious determinations based on the particular political prejudices of such Commissioners as have had the opportunity to make a determination on whether gross violations have occurred or not.
4.2 The matter is further compounded by the fact that it is impossible to make a determination that a gross violation of human rights has occurred without contextualising the specific acts concerned.
4.2.1 Abstract definitions are unhelpful and can be misleading. On their own, they can never be sufficient when determinations have to be made about real human societies and social processes, which cannot be frozen to fit “ideal” definitions, which, in any case, are themselves no more than tools to facilitate analysis and comprehension
4.2.2 The Commission has a basic obligation to carry out the exercise suggested in these paragraphs, namely, to set as objective a standard as possible according to which acts or omissions can be judged as to whether they constitute human rights violations or not.
4.2.3 Further, the Commission has an additional obligation to engage in a transparent communication of this exercise and its outcome to the people of South Africa.
4.2.4 Failure to discharge these responsibilities would constitute a grave default threatening the very acceptability of any findings the Commission might make about gross human rights violations.
184.108.40.206 Moreover, by making “findings” which in effect delegitimise the struggle against apartheid, the TRC, wittingly or unwittingly, accords legitimacy to real gross violations of human rights committed under apartheid.
4.2.5 In this regard, an appeal to “the heart” or to instinct, as a substitute for serious business of having to think seriously, will not do.
5.0 The promotion of National Unity and the Reconciliation Act, No. 34 of 1995, itself provides no support for the approach which the TRC seems to have adopted in this regard. The definition it gives under Clause 1(ix) is that “gross violation of human rights means the violation of human rights….”
5.0.1 There should be no difficulty for any reasonable person, such as those who constitute the TRC, to conclude that this “definition” is no better than statements such as – “severe verbal abuse of a person means verbal abuse of a person” or “a very black person is a black person”.
5.0.2 The extract of Clause 1(ix) of the Act quoted under 5.0 above is, in fact, not a definition but a tautology. It provides no basis on which the TRC can make a determination that a gross violation of human rights has occurred.
5.1 The matter is not clarified by what the Act then goes on to say, that such violations of human rights would occur trough “the killing, abduction, torture or severe ill-treatment of any person…”(Clause 1(ix), however emotionally evocative these words may be.
5.1.1 Let us accept that “torture or severe ill-treatment of any person” fall within the category recognised in law as “cruel, inhuman and degrading”. It could then reasonably be argued that since torture or severe ill-treatment are cruel, inhuman and degrading, they constitute a violation of human rights.
5.1.2 Such a determination, because it is based on some standard of measure relatively independent of subjective feelings of the judge, would provide a basis according to which the TRC could arrive at conclusions as to whether gross violations of human rights had occurred where treatment were meted out which, to any reasonable person, might seem to be cruel, inhuman and degrading.
5.1.3 The obligation on the TRC to define what is meant by gross violation of human rights is emphasised by the judgement of the Constitutional Court on the death penalty in the case of “The State v Makwanyane and Another”, delivered by its President, Justice Arthur Chaskalson who, inter alia, said:
220.127.116.11 “There is no definition (in the Interim Constitution) of what is to be regarded as ‘cruel, inhuman and degrading’, and we therefore have to give meaning to these words” (Our emphasis)
18.104.22.168.0 As there is no definition in the Act of what constitutes a “gross violation of human rights”, the TRC has an obligation to give meaning to these words. The “Findings” communicated to us give no indication of how the TRC applied its mind to decide what meaning to give to these words.
22.214.171.124 At another point in the judgement, Judge Chaskalson makes the point that: “Capital punishment is not prohibited by public international law….” (Our emphasis)
126.96.36.199.0 Accordingly, the mere fact of “killing”, as it appears under Clause 1(ix)(a) of the Act does not constitute a gross violation of human rights, unless the TRC determines and thus establishes new public international law, that such “public international law” to which Justice Chaskalson referred is itself null and void, owing to the fact that “killing” is, by definition, a gross violation of human rights.
188.8.131.52 Elsewhere in the same judgement, Justice Chaskalson remarks that: “The examples of war and rebellion are also not true analogies (relative to the issue of the death penalty)…. The state can act to put down rebellion and to protect itself against external aggression….” (Our emphasis)
184.108.40.206.0 Accordingly and having determined that “the African National Congress was a liberation movement conducting a legitimate struggle against the apartheid State and its policy of Apartheid”, the TRC has an obligation to determine in what circumstances the carrying out of the death penalty by the liberation movement, in a situation of ‘war and rebellion’, could be judged as a gross violation of human rights, consistent with the notion of cruel, inhuman and degrading treatment of a person. The “Findings” give no indication of whether and how this might have been done.
6.0 From the foregoing, it is clear that the mere fact of “killing”, which, as indicated above, appears under Clause 1(ix)(a) of the Act, and which the TRC seems to rely upon as sufficient definition of what constitutes a ‘gross violation of human rights’, is not itself intrinsically a gross violation of human rights.
6.1 Accordingly, the simple fact that persons died as a result of our activities to end the apartheid crime against humanity constitutes no basis whatsoever that, thereby we are guilty of gross violation of human rights.
THE RIGHT TO KILL
7.0 Modern society recognises various circumstances in which it is permissible for individuals, institutions and the state to end the life of an individual or individuals. (Obviously, not everybody agrees about each and every one of these instances.)
7.1 Some of these circumstances are:
7.1.1 During the conduct of war;
7.1.2 To suppress a mutiny or a rebellion;
7.1.3 To suppress espionage;
7.1.4 To discharge the right to self-defence;
7.1.5 To punish heinous crimes, such as murder; and
7.1.6 To stop the commission of a crime.
7.2 This reality points to the fact that the mere mention of “killing” in the Act does not in itself constitute a determination that where a “killing” occurred, by definition a gross human rights violation had therefore also occurred.
7.2.1 It is self-evident that such a position would be illogical and absurd.
7.2.2 Accordingly, we must presume that the law-makers did not intend to make a determination, through the passage of the Act, that all “killing” constituted a gross violation of human rights.
220.127.116.11 If this were not so, the same law-makers would have been obliged, among other things, completely to take away the right of the state to engage in war and to render illegal the common law right to kill in self-defence.
7.3 To repeat, the TRC has not adopted and/or articulated any guiding principles with regard to which “killings”, in the context of our people’s legitimate struggle and under the Act and international law, would constitute gross violations of human rights.
7.3.1 Without any guiding principles, it is inevitable that he Commission will arrive at arbitrary and capricious decisions.
WAR AND DEATH
8.0 By definition war inevitably involves death, the killing of persons.
9.0 Precisely for this reason, as society has evolved, it has worked out rules relating to the humanitarian conduct of warfare. Among these rules, the Geneva Conventions of 1949 and the 1977 Protocols to the Conventions constitute a centrally important part of international law governing the humanitarian conduct of warfare.
9.1 These Conventions and Protocols are important directive documents which would assist the TRC to determine which acts carried out during the course of the conflict generated by the apartheid crime against humanity might constitute gross violations of human rights.
9.1.1 This is important not only from the point of view that this would help to anchor the decisions of the Commission on some recognisable standard of measure based on a rational and tested paradigm.
18.104.22.168 It is also necessary to proceed in this manner because those who were involved in the conflict under the purview of the Commission, would themselves, as ordinary human beings living in this world, would have been influenced in their thinking and conduct precisely by the general and universal framework set by these Conventions and Protocols.
10.0 In the context of its work, it is important and necessary that the TRC should recognise and understand the fact that these Conventions and Protocols recognise various realities. Among these are the realities that:
10.1 Necessarily and inevitably, civilians are killed during the conduct of warfare;
10.2 Spies do not enjoy the rights of prisoners of war;
10.3 The maintenance of discipline within military formations is an inherent characteristic of such formations.
10.4 Resort to the penalty of capital punishment is permissible in the context of a war situation; and,
10.5 Irregular wars of liberation against foreign, colonial and racial oppression, as opposed to regular wars conducted by States, are recognised as legitimate forms of warfare.
THE GENEVA CONVENTIONS
11.0 On the issue of civilian casualties, Article 51 (7) of Protocol 1 says:
11.0.1 “The presence of movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.”
11.1 On the issue of spies, Article 46 (1) of Protocol 1 says:
11.1.1 “Any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaged in espionage shall not have the right to the status of prisoner of war and may be treated as a spy.” (NB: A prisoner of war may not be executed.)
11.2 On the issue of the death penalty, Article 6 (4) says:
11.2.1 “The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children.”
22.214.171.124 No conclusion is possible from this except that it is possible to pronounce and carry out the death penalty, with the exception of the circumstances detailed under Article 6 (4) when such death penalty would be deemed to be a violation of international law.
11.3 These excerpts make the matter plain that in terms of contemporary humanitarian law governing the conduct of warfare, the death of civilians during military operations, the executions of spies and, generally the imposition of the death sentence, are not, in themselves, a violation of humanitarian international law.
12.0 Except in exceptional circumstances, the liberation movements recognised in the Protocols additional to the Geneva Conventions, engage in irregular (guerrilla) warfare as opposed to regular warfare conducted by and among States.
13.0 Nevertheless, guerrilla wars have their own regularities governed by such objective realities as:
13.1 Guerrilla warfare constitutes a military struggle based among the people waged by a weak force (the guerrilla army) against a strong force (the state security forces).
13.2 The guerrilla controls no territory which serves as his/her “state”.
13.3 The guerrilla has to maintain a high state of mobility to avoid encirclement and annihilation;
13.4 Every guerrilla and every unit must be able to operate on its own, informed by the policies of the movement and the interests of the people;
13.5 The guerrilla wages war only against the enemy and never against the people; and,
13.6 Invariably, and as a norm, the guerrilla has to be prepared to make decisions and embark upon activities dictated by the peculiarity of circumstances in which the guerrilla finds himself/herself, without the benefit of consultation and instructions from senior organs relating to the specific operation in which the guerrilla might be engaged.
14.0 Inherently, this means that any attempt to place on par guerrilla formations and state security forces, as well as irregular and regular warfare, will be fake and contrived and will necessarily lead to wrong conclusions.
14.1 This includes conclusions based on requirements that a movement which does not control a state and a state machinery must be judged in the same terms as would apply to an oppressive state, such as the apartheid state, which has used its illegitimate power to ensure that its popular opposition is denied access to any means which might enable it to operate as an ‘alternative state’ and thus compete with and counter the oppressor state.
14.2 In these circumstances, any determination which seeks to condemn the popular opposition and its guerrilla movement for not doing things which only a state can do would, in reality, constitute a denunciation of and an attempt to terminate the efforts of this opposition to achieve objectives which, more often than not, are aimed at instituting a system of government based on liberty and respect for human rights.
14.2.1 The TRC’s “Findings on the Role of the African National Congress” are of this nature. If oppressed masses of our people had followed the reasoning of the TRC in the prosecution of their “legitimate struggle against apartheid”, the legitimate struggle itself would have had to be abandoned. Arguably, South Africa would still not be a democratic country.
14.2.2 It is difficult to imagine a Truth and Reconciliation Commission, set up as a consequence of the victory of this legitimate struggle, recognised as a legitimate struggle in the Protocols to the Geneva Conventions, can find it within its conscience, and with the facts available to it, to denounce the same struggle conducted, as much as practically possible in a guerrilla war, in accordance with the Geneva Conventions and Protocols, as well as other international instrument of human rights and law.
15.0 In the light of everything we have said, the “finding” reflected in Section A (1, 2, 3 and 4) and Section B (1 and 2) of the “Findings”. that we committed acts of gross violation of human rights because civilians died as a result of our operations and because we executed spies as well as mutineers who had committed murder, is misdirected, arbitrary, capricious and has nothing to do with the purpose spelt our in the Act.
15.1. In reality, the observation contained under these Sections seek to set a new jurisprudence governing the conduct of warfare which is comical, irrational and absurd, setting exceptional rules, after the fact, of how we should have conducted a military struggle that would have been both unique and humanly impossible.
16.0. In our own submission tot he Human Rights Committee of the TRC, we have acknowledged that some of the actions by our members reflected under Section B (3 and 4) of the “Findings” were excesses for which we sincerely apologised, both verbally, in front of the TRC and in writing.
16.0.1. In our Statement to the TRC of August 1966, we said:
“In so far as cases of abuse are concerned, the ANC concurs with the finding of the Motsuenyane Commission that, though there were a number of such excesses, it was never established that there was any systematic policy of abuse… To the extent that the Motsuenyane Commission found that some detainees were maltreated and recommended that the ANC should apologise for these violations of their human rights, the ANC doe so without qualification, within the context of the standards it has set itself…” (p. 75).
16.0.2. It is also appropriate that we remind the TRC of what the Motsuenyane Commission itself said, namely:
“It would be wrong to ignore the historic significance of the investigation of the ANC, through this Commission, has undertaken, a first in the annals if human rights enforcement. By its commitment to the enquiry, the ANC seeks to breathe life into the lofty principles proclaimed in the Freedom Charter – to render fundamental human rights the Golden Rule, to be applied in good times and bad, peace and war.”
16.0.3. This observation by the Motsuenyane Commission demonstrates a greater respect for the truth which the TRC was charged to establish, than the statements of the TRC on the matters in the “Findings” listed under B (3) and (4).
17.0 The “finding” reflected under Section C (1, 2 and 3) has the deliberate intention, contrary to the truth readily available to the TRC, of shifting the blame for the political violence which occurred in the period since 1990, away from the apartheid regime to the democratic movement and condemning the oppressed for the efforts they took to defend themselves against a very intense campaign of repression and terror.
17.1 The greater tragedy of the “finding” is that it reflects the failure of the TRC to expose and therefore help to uproot the structures of state terrorism which caused the violence, the deaths and destruction since 1990 and which remain as a factor for the destabilisation and subversion of the democratic order.
17.2 Strangely, this “finding” coincides with the anti-ANC lies, propaganda and invective churned our by the apartheid regime and its machinery of repression during the said period.
17.2.1. In our submission to the TRC of May 1997, we said:
“The post-1990 violence was the work of the state, was organised at the highest level, and was aimed at strengthening the hand of the government at the negotiations table by forcing a progressively weakened ANC into a reactive position in which it would be held hostage to the violence, and forced to make constitutional concession… The ANC was not engaging in ‘ongoing conflict’, nor were the majority of the people on the ground embroiled in ‘ongoing conflict’; they were being attacked by covert units operating in accordance with the wishes of the apartheid regime…” (p. 29)
126.96.36.199. In the light of this truth, of which the TRC is perfectly aware, we find it difficult to understand how the TRC could have arrived at many of the conclusions contained in Section C (1), (2) and (3).
18.0 The “finding” of the TRC with regard to “the various Commissions of Esquire (sic!) allegedly established by the ANC reflects a real confusion with the Commission which we again cannot understand. The ANC never set up, and knows nothing about the “Schema and Sashes Commissions”. These are pure inventions of the TRC.
18.1 Further, the whole world, with the possible exception of the TRC, knows that the Douglas Commission was set up by forces hostile to the democratisation of South Africa, and not by the ANC.
18.1.0 The August 1996 submission of the ANC to the TRC (p75) as well as verbal submissions made to the TRC when this particular Report was tabled, are sufficient to have informed the TRC, it had cared to study these submissions, that the ANC had absolutely nothing to do with the establishment of the Douglas Commission.
19.0 With regard to Section C (4) of the “Findings”, we must make the point very firmly, that the fact that any individual might consider himself/herself as a member of an organisation, does not necessarily mean that this organisation is culpable with regard to the activities of such an individual. The argument advanced by the TRC asserting such culpability in Section C (4) is strange, wilful and arbitrary.
19.1 Further, the TRC is perfectly aware of the fact that the activities of the Mandela United Football Club (MUFC) occurred in the period preceding the unbanning of the ANC. But consistent with other instances where the TRC has shown scant respect for the truth it was supposed to establish, it reports these activities as having occurred “after the unbanning of the ANC”.
19.1.1 Again consistent with other efforts of the TRC to pervert the truth, the Commission also invents an ANC “enquiry into the affairs of Ms Madikizela-Mandela and the football Club” which never took place.
188.8.131.52 It pays no attention whatsoever to attempts that were made both from within the country and from outside to deal with matters surrounding Ms Madikizela-Mandela.
184.108.40.206. No attempt is made in the “finding” to recognise the fact that we were obviously constrained by the fact that the ANC was banned, its leadership was both in exile and in gaol and that the very MUFC was, as the TRC knows very well, heavily infiltrated and influenced by agents of the apartheid regime.
220.127.116.11. Devoid of any sense of shame, the TRC, now and hypocritically, and without indicating what this might mean practically, suggests that we could have taken “appropriate and timeous action” against the apartheid agents to stop them committing acts of gross violation of human rights.
18.104.22.168. Suddenly, to serve the particular and puzzling purposes of the TRC, we are now responsible for the criminal activities of members of the apartheid counter-insurgency forces!
20.0 With regard to the a number of matters mentioned in the “Findings”, to enable us to respond fully to all elements of the adverse finding, we request that the TRC furnish us with all relevant document and information on the basis of which it made the following determinations:
20.1 that the ANC appointed the Schema, Sashes and Douglas Commissions, (Section B of the “Findings”);
20.2 that the ANC “acted callously and with disregard for the families of persons executed”, (Section B (1) of the “Findings”);
20.3 “many people died after punitive starvation or assault”, (Section B (4) of the “Findings”);
20.4 “the ANC was responsible for campaigns of violence in the homelands…” (Section C (1) of the “Findings”);
20.5 that SDUs perpetrated gross violations of human rights as a result of “a contest for political terrain” and because the ANC did not provide “proper command structures, control and discipline”, (Section C (3) of the “Findings”);
20.6 “the ANC conducted its own inquiries into the affairs of the MUFC and Ms. Mdikizela-Mandela…”, (Section C (4) of the “Findings”);
20.7 “the ANC failed to disclose to the Commission that it had conducted an enquiry into the affairs of Ms Madikizela-Mandela…” (Section C (4) of the “Findings”);
20.8 “failed and/or omitted to take action against her and/or any members of the Football Club”, (Section C (4) of the “Findings”; and,
20.9 that the ANC could have taken “appropriate and timeous action”, with an indication of what, to the knowledge of the TRC, such action might have been, which would have stopped the “further commission of gross human rights violations…”, (Section C (4) of the “Findings”).
21.0 The above are some of the matters the ANC sought to discuss and clarify with the TRC, without in any way whatsoever seeking to dictate to or to influence the TRC in a normally unacceptable, illegitimate or illegal manner or to compromise its independence by any means at all.
21.0.1 On the contrary, the refusal of the TRC to meet us constitutes a fundamental violation of its mandate and a betrayal of the trust we and the majority of our people of our country placed on it, that it would at all times be available to interact with all who sought to communicate with it, without which communication, national unity and reconciliation is impossible.
21.0.2. That sense of betrayal is enhanced by our knowledge of the fact that steps were taken from within the TRC to influence the mass communication media to assume a posture negative to the ANC, based on the conveyance of the deliberate falsification that the ANC sought to influence the TRC in ways that were obviously unacceptable and that the very credibility of the TRC and the work it had done, rested on its refusal to talk to the ANC.
22.0 The refusal of the Commission to meet us in connection with “findings” is a violation of the Act which, under Section 30 (2) (c), prescribes that the TRC is under an obligation with regard to persons against whom an adverse finding is contemplated, to:
22.0.1. “afford him or her an opportunity submit representation to the Commission within the specified time with regard to the matter under consideration or to give evidence at a hearing of the Commission.”
23.0 These “Findings” set themselves against the very Constitution of the Republic of South Africa which the TRC was established to help entrench.
23.1 In the Makwanyane judgement referred to above, Justice Chaskalson makes the observation that:
23.1.1. “Our courts have held that it is permissible in interpreting a statute to have regard to the purpose and background of the legislation in question.”
23.1.2 He also observes that it is equally permissible to examine “parliamentary material” “as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity…. It is not unusual for the courts to have regard to circumstances existing at the time the Constitution was adopted….”
24.0 If the members of the TRC had the humility to acquaint themselves with these simple rules, they would have seen that in its very Preamble, our Constitution commits all our people, including the Commissioners, to:
24.1 “Honour those who suffered for justice and freedom in our land….”
25.0 They would also have seen the words contained in the interim Constitution, which we quote below and, therefore, better understood the tasks of the TRC:
25.1 “The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and the strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge”
25.2 Had they understood all this, they would not have taken positions, as reflected in the “Findings” which seek to criminalise the struggle for the liberation of the people of South Africa for the suppression of the apartheid crime against humanity and the liberation of millions of our people who were victims of gross violation of human rights represented by colonialism and apartheid.
26.0 Among other things, their “Findings” would have reflected the truth that the struggle we waged helped our country to avoid the death of millions of civilians and radically reduced the hostility of the majority of our people towards those who belonged to the “oppressor nation”, as well as their black partners who were bribed or intimidated to participate in the commission of the apartheid crime against humanity.
27.0 The Truth and Reconciliation Commission has a solemn responsibility to contribute to the accomplishment of the objective of unity and national reconciliation for which it was established and to turn its back on the pursuit of any other objectives which might compromise this objective.
28.0 As a consequence of this, and in addition to what we have said above, the TRC must take cognisance of truths that:
28.1 Many of the unacceptable action apparently carried out by the liberation and democratic movement were, in fact, perpetrated by the apartheid regime and its agents;
28.2 The so called black on black violence did not originate, spontaneously, from within the organised formations of the black masses, but was engineered and fostered by the apartheid regime precisely to ensure that these masses do not unite to overthrow the oppressor;
28.3 The apartheid counter-insurgency machinery inserted itself into the IFP and, as it carried out its murderous campaign, cloaked itself in IFP colours, whereas the genuine leaders and members of the IFP had nothing to do with planning or carrying out any acts of violence originally conceived of by themselves.
29.0 The TRC also needs to recognise the reality that centuries of a particular South African history created circumstances in which the white population in general, and the Afrikaners in particular, got enslaved by forces which impelled them in a certain direction.
29.1 Any attempt, in this context, to convey a message that especially the Afrikaners are each, individually, intrinsically bad, because apartheid was bad and served the interests of each individual Afrikaner, would be a travesty which would not only be untruthful and a-historical, but gratuitously inimical to the objectives of national unity and reconciliation.
29.2 Equally, the TRC needs to recognise the extend to which the apartheid system and many things that preceded it, created the conditions in which it would be possible and inevitable that some among the “oppressor nation” would lose all regard for human life, especially black lives.
29.3 In the meantime, these, while continuing to hold the view that what they were doing, the crimes in which they were involved, were a necessary step towards achieving the two objectives of ensuring the security of the white population and enabling the blacks to gain their full rights within their prescribed areas, would remain convinced that what they were doing was both logical and morally right.
29.4 Similarly, the fact must also be recognised that many within the SA Defence Force carried out tasks which, from their point of view, were legitimate military activities, on the basis of which they would behave as soldiers who are proud of their armed activities and would not allow their names to be besmirched by suggesting that the war they had waged, against the South African liberation movement, itself constitutes a gross violation of human rights.
30.0 For ourselves, we are conscious of the fact that the struggle for national unity and reconciliation continues. In the end, and over the coming years, we have a responsibility to build on the positive things the TRC and all other players in our society have achieved.
30.1 As a political movement, representative of the aspirations of the overwhelming majority of our people, we have to continue along the path which will seek to guarantee that South Africa does indeed achieve its national unity and reconciliation, regardless of the exasperation of the moment.
30.2 Our work will have to continue long after the specific elements of this agenda which the TRC was established to address, have been absorbed into the wider and deeper processes which must result in a non-racial, non-sexist, peaceful, prosperous and truly democratic South Africa.