CHAPTER 56: Truth and recognition

CHAPTER 56

Truth and recognition

THE HEARINGS ON HUMAN RIGHTS VIOLATIONS WERE ONLY THE first stage of the TRC process, and were followed by special hearings on specific topics, community-based workshops on reparations and reconciliation, and amnesty hearings, leading to over 7 000 decisions that would take until 2001 to be processed. The Commission was also tasked with devising a policy on reparations, which it was up to government to implement.

Aubrey did not live to hear the Commission’s findings. Early in December 1996, seven months after Liz gave her testimony, he was diagnosed with lung cancer and decided not to have treatment. Jill flew back from England, in time to see her father before he died a few days before Christmas, having been cared for at home by his family and a visiting nurse from the hospice. He was 84. The previous year, when I had asked him whether, despite their differences, he felt there were qualities Neil had inherited from him, he had replied that he was sure there were. ‘I think he was a very stubborn boy …’ Aubrey’s own stubbornness made his painful journey after Neil’s death all the more striking.

The Truth and Reconciliation Commission Report, handed to President Mandela on 28 October 1998, unequivocally reversed Magistrate Kotzé’s ‘no one to blame’ verdict:

THE COMMISSION FINDS THAT THE INTENSIVE INTERROGATION OF DR AGGETT BY MAJOR A CRONWRIGHT AND LIEUTENANT WHITEHEAD, AND THE TREATMENT HE RECEIVED WHILE IN DETENTION FOR MORE THAN SEVENTY DAYS WERE DIRECTLY RESPONSIBLE FOR THE MENTAL AND PHYSICAL CONDITION OF DR AGGETT WHICH LED HIM TO TAKE HIS OWN LIFE. THE COMMISSION FINDS THE FORMER STATE, THE MINISTER OF POLICE, THE COMMISSIONER OF POLICE AND THE HEAD OF THE SECURITY BRANCH RESPONSIBLE FOR THE DETENTION, TORTURE AND DEATH OF DR NEIL AGGETT, CONSTITUTING GROSS VIOLATIONS OF HUMAN RIGHTS. THE COMMISSION FINDS FURTHER THAT A STATEMENT BY DR AGGETT TO A MAGISTRATE ABOUT HIS ASSAULT AND TORTURE WAS ONLY INVESTIGATED THREE WEEKS LATER. THE COMMISSION FINDS THAT THE FAILURE OF THE MAGISTRATE TO TAKE THE COMPLAINT SERIOUSLY IS AN OMISSION THAT LED TO HIS DEATH. THE COMMISSION FINDS THAT THE FAILURE OF MAGISTRATES TO TAKE THE COMPLAINTS OF DETAINEES SERIOUSLY AND THEIR RELIANCE ON THE EVIDENCE OF THE POLICE CONTRIBUTED TO A CULTURE OF IMPUNITY THAT LED TO FURTHER GROSS VIOLATIONS OF HUMAN RIGHTS. THE COMMISSION FINDS THE MINISTER OF JUSTICE RESPONSIBLE FOR THESE GROSS VIOLATIONS OF HUMAN RIGHTS.1

The Commission’s indictment of the chain of command above Cronwright – from the Head of the Security Police (General Johan Coetzee), the Commissioner of Police (General Mike Geldenhuys), up to the Minister of Police (Louis le Grange) and indeed the former state – struck chords of truth, although there were hardly going to be judicial consequences for these office bearers. Similarly, criticism of the magistrates who failed to act seriously on complaints of detainees, and of the former Minister of Justice (Kobie Coetsee), who was ultimately ‘responsible for these gross violations of human rights’, was about laying down a moral marker. On the other hand, naming Whitehead and Cronwright as perpetrators who had been ‘directly responsible’ for inducing Neil to take his own life raised immediate questions of what would happen next. Neither had applied for amnesty. For the Aggetts, as for other families where the truth had at least been acknowledged by the Commission, the question was whether those named as perpetrators would now be charged, as Dr Orr had indicated was in the legislation.

Any hopes, however, that the new state would carry out criminal prosecutions began to fade with time. George Bizos, who drafted the provisions of Section 20 of the Promotion of National Unity and Reconciliation Act with Mohamed Navsa, told me, in 2011, of his disappointment that the state had not taken action, even in cases with first-hand evidence of the murder of political activists:

There’s a confused policy in the prosecuting authority as to how they should deal with it. The Goniwe [case] is much clearer – murder. They took them and killed them, burnt their bodies. They admitted it in the application for amnesty.2 The judge, Zietsman, who held the second inquest found that they were culpable. But they didn’t charge them. They say, you know, it was difficult to get witnesses, people – and they haven’t got the means, they’ve got other problems. So there hasn’t been one case where people committed serious crimes, which could be proved – but they were not prosecuted. So from that point of view, I think the provisions, the amnesty provisions, were frustrated really.

The ‘resources’ argument – that it would be far too expensive to prosecute every perpetrator who had not received amnesty, so it was better to prosecute none – has been challenged. In a discussion paper exploring a feasible prosecutions strategy, Howard Varney, a Johannesburg attorney and member of the International Center for Transitional Justice, has proposed guidelines that would focus on the more flagrant offences and middle- to higher-ranking officers.3 While acknowledging that the field was ‘a veritable minefield’, he indicated that a way forward was possible. However, a prosecutorial strategy would have to be even-handed, in the spirit of the TRC. This means that members of the ruling party who had been refused amnesty could also find themselves facing charges. Might this account for the lack of political will to pursue the perpetrators without amnesty?

While the Commission’s term was limited, its momentous vision and purpose made it integral to the future. The apartheid regime’s desire to ‘let bygones be bygones’ had been rightly rejected. Introducing the Commission’s Final Report, Archbishop Tutu wrote of how wounds from the past that remained unhealed would fester. Denial of the horrendous experiences of victims victimised them even further. However, there was also a pragmatic aspect: ‘… the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one.’4 Dealing with the past was not a matter of being obsessed with looking backwards, but of serving the present and the future.

It has fallen to civil society to scrutinise the Commission’s progress and its aftermath. Some who played a role in opposition to the old regime find themselves monitoring the new ruling party that they helped bring to power. One example has been the Khulumani Support Group. Arising out of small discussion groups in Soweto, initiated by Mam’Sylvia Dhlomo-Jele, a former member of the DPSC, Khulumani’s original aim was to encourage victims to engage with the TRC.5 By providing a forum for its members to articulate their pain and concerns, Khulumani (‘speaking out’ in isiZulu) rapidly became a critical advocacy organisation for victims. With many of its members unemployed and poverty-stricken, Khulumani has continued to pursue the call for reparations and practical measures to redress apartheid’s legacy of injustice.

In giving testimony to the Commission, Liz Floyd’s broader focus on the legacy of damage reflected a strongly pragmatic and more socially-based approach than if she had concentrated solely on the individual perpetrators responsible for Neil’s death. She also held the view that the TRC would have been better named the ‘Truth and Recognition Commission’. One could not ensure reconciliation, but at least there was now a record, hence recognition, of the terrible abuses of the past.

* * *

However, not even that TRC legacy of recognition and acknowledgement of past abuses can be taken for granted. This would emerge in an unexpected legal challenge to a victim’s ‘right to truth’, a salutary reminder of how easily fundamental principles and freedoms can be washed away in South Africa’s still-fragile democracy.

The case goes back to 1986 and the bombing of Magoo’s Bar and the ‘Why Not’ Restaurant in Durban, in which three people were killed and nearly 70 injured. MK cell leader Robert McBride was convicted for the bombing, sentenced to death, later reprieved, and released in 1992 on the grounds that he had been politically motivated. While the TRC found the bombing to be a gross violation of human rights, McBride was nevertheless granted amnesty. He went on to become an MP and to serve in the new ANC government before being appointed, in 2003, to the role of Police Chief of the large East Rand municipality of Ekurhuleni, including Tembisa, where Neil used to work. When The Citizen newspaper published a series of highly critical articles, questioning the candidacy of a ‘murderer’, McBride sued for defamation. He argued that his TRC amnesty had expunged his conviction ‘for all purposes’. No one should be allowed to say that he had committed ‘murder’. Both the High Court and the Supreme Court of Appeal ruled in his favour, supporting this literal interpretation, and imposing a heavy fine on the newspaper.

As none of those held responsible for Neil’s death had applied for, nor received, amnesty, the Supreme Court ruling did not directly apply to my writing about Neil. But it didn’t require much imagination to see the implications. What if Cronwright and Whitehead had applied for, and received, amnesty from the TRC? Would the McBride ruling mean that no one could write about what had happened to Neil inside John Vorster Square? Could Jill be sued for talking about her brother’s ‘murder’?

At the eleventh hour, the implications of McBride’s successful defamation action were spelt out for others. In making a final appeal to the Constitutional Court, the highest court in constitutional matters, The Citizen was joined by two relatives of apartheid victims in an ‘amicus brief’. Joyce Mbizana’s brother, Justice, had been tortured and bludgeoned to death by security forces, and Mbasa Mxenge’s parents, the lawyers Griffiths and Victoria Mxenge, had each been brutally assassinated. Supported by the South African Coalition for Transitional Justice, including the Khulumani Support Group, the relatives submitted that the ruling in favour of McBride denied them the right to speak freely about the crimes committed against their family members. Amnesty could not alter the historical facts, they said. To be prevented from speaking the truth, for fear of being sued for defamation, stripped them of their dignity.

Seven years after McBride began his initial defamation action, in April 2011, the Constitutional Court finally reaffirmed the priority of truth, ruling against the lower courts’ interpretation of the TRC statute. Justice Edwin Cameron, on behalf of the majority of the Constitutional Court, described the family members as asserting ‘a subjective and expressive entitlement’ that sprang from their ‘dignity as siblings and children’:

They seek to vindicate their right to describe with truth and accuracy the perpetrators of the gross wrongs inflicted on their loved ones. They claim the entitlement, despite amnesty, to continue to call the unlawful intentional killing of their loved ones ‘murder’, and those who perpetrated the killings ‘murderers’. The literal reading urged by Mr McBride would render these descriptions false, and impose legally enforced inhibition on those expressing them.6

That cannot be correct, stated Justice Cameron. The aim of the TRC statute was national reconciliation, premised on full disclosure of the truth. It was not conceivable that its provisions ‘could muzzle truth and render true statements about our history false …’:

The interpretation urged on us by Mr McBride would be antithetical to the adequate compilation of that collective memory. It is in conflict with the statute’s context and historical setting, and is at odds with one of the moral impulses of the reconciliation process itself.7

The literal meaning urged by McBride also denied the ‘expressive rights’ of others who, like the family members before the court, wished to speak the truth about the perpetrators who had killed their relatives. The Bill of Rights, included in the Constitution, protected their right to freedom of expression and valued ‘the dignity of their bereavement and the integrity of their memory’. It followed that a sound interpretation of Section 20 of the Promotion of National Unity and Reconciliation Act ‘must afford weight to these rights’. While finding that The Citizen’s repeated use of the epithets ‘murderer’ and ‘criminal’ were both ‘vengeful, and distasteful’, Justice Cameron stated that this opinion on the tone of the articles was not the issue:

And the Reconciliation Act does not afford those who were granted amnesty moral absolution, or freedom from opprobrious condemnation. Nor does it muzzle those who choose to discuss their deeds in abrasive, challenging and confrontational terms.8

Here we have it. The TRC had offered amnesty from prosecution, not absolution. Those who had killed, on whichever side, had still killed. While the Constitutional Court upheld The Citizen’s main appeal and dismissed McBride’s cross-appeal, it nevertheless found that The Citizen had defamed him by claiming falsely that he was not contrite.9 The significance of the judgment went well beyond Robert McBride. I felt a personal sense of relief at its multi-layered wisdom. The Constitutional Court, which owed its existence to the ANC in the founding of the new democracy, had sensitively examined the whole picture, going back to the underlying principles of the Truth and Reconciliation Commission. All those people who lost relatives, or indeed anyone, on whichever side, who wishes to speak about actions for which amnesty has been granted, are entitled to do so freely. The gathering of this collective memory, however painful or politically uncomfortable, remains essential in the interests of truth, without which there is no chance of healing.

1 Truth and Reconciliation Commission of South Africa Report, Vol 3 Ch 6, pp579–80. Available from http://www.info.gov.za/otherdocs/2003/trc/.

2 Amnesty was refused to six of the seven applicants, citing the murder in June 1985 of the ‘Cradock Four’ – Matthew Goniwe, Sparrow Mkhonto, Fort Calata and Sicelo Mhlauli.

3 Howard Varney, Discussion Paper, ‘Exploring a prosecutions’ strategy in the aftermath of the South African Truth and Reconciliation Commission’, 2010. Available from http://www.khulumani.net

4 TRC Report, Vol 1, Chairperson’s Foreword, pp7–27.

5 Mam’Sylvia Dhlomo-Jele was the mother of student activist Sicelo Dhlomo, shot dead in 1988 a few days after he had appeared in the CBS television documentary ‘Children of Apartheid’. Mam’Sylvia believed her 18-year-old son had been murdered by the police and dedicated herself to continue his struggle. She was devasted when four of his comrades applied for amnesty for his killing on the grounds that they believed he had become an informer. The evidence was insubstantial but they had acted in the heat of the moment. They received amnesty.

6 Constitutional Court, 2011, Case CCT 23/10, para 59. Available from http://www.saflii.org/za/cases/ZACC/2011/.

7 Ibid, para 61.

8 Ibid, para 102.

9 The Constitutional Court awarded Robert McBride R50 000 for this, reducing his previous damages from R150 000.