The Coalition’s second main objection is the failure of the DoJ to extend these educational and medical benefits to all victims of gross human rights violations, as contemplated in the Promotion of National Unity and Reconciliation Act of 1995 (the TRC Act or the Act)—the enabling law behind these regulations. This closed list policy is inconsistent with the plain and just interpretation of the Act. The Act contains no provisions that support a closed list of victims eligible for reparations; it only stipulates the type of harm that a person must have suffered in order to be considered a victim. Furthermore, the closed list policy conflicts with the purpose of the Act, which seeks to rehabilitate and restore the human and civil dignity of victims.

Moreover, our Constitution promotes social, economic and community rights. This closed list policy is contrary to the Constitution preamble, which commits to healing the divisions of the past and establishing a society based on social justice. It is also contrary to the Constitution section 1 values of accountability, responsiveness, and openness. A closed list policy is offensive to victims’ constitutional right to equal protection under the law. The DoJ’s differentiation between victims bears no rational connection to any legitimate government purpose.  It moreover amounts to unfair discrimination since it impairs the fundamental human dignity of thousands of victims who are not on the closed list.

Further, the failure to extend reparations to all victims of apartheid violates South Africa’s obligations under international law, reflected in a number of human rights instruments that South Africa has ratified. The Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights provides that every person who has been a victim of gross human rights violations is entitled to an effective remedy. South Africa lags behind countries such as Brazil, Peru, Guatemala, and Sierra Leone, which have established ongoing victim registration procedures. Other countries such as Argentina and Chile have repeatedly extended or reopened victim registration procedures.

The Coalition is also concerned that the many unnecessarily complicated administrative procedures contained in the Notice 282 regulations will potentially render the proposed assistance inaccessible to many.

Therefore, the Coalition respectfully submits the following comments and  recommendations, including: that the DoJ undertake an open and transparent process of consultation and dialogue with civil society to revise the Notice 282 regulations so as to be more responsive to victims’ needs; that the DoJ allow all those who are victims of gross human rights violations under the criteria specified in the Promotion of National Unity and Reconciliation Act to access these educational and medical benefits; that the DoJ establish ongoing victim registration procedures and take affirmative steps to register all victims of gross human rights violations.