i)          A closed victims’ list is inconsistent with the TRC Act

The restriction of reparations to a closed list, or only those found by the TRC to be victims, is inconsistent with the terms of the Act.  The Act merely stipulates in section 1 (1) that a victim must have suffered certain harm.^[3] Consistent with international norms of the time, such as the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) the Act tied the concept of “victimhood” to harm, defining “victims” broadly to include not only the direct targets of the human rights violations, but also potentially the victims’ families and the extended communities of harm that surround them.   Nowhere in the Act is there any reference or indeed any contemplation that reparations, which includes any form of compensation, ex gratia payment, restitution, rehabilitation or recognition[4] will be restricted to only those found to be victims by the Commission. While the Committee on Reparation and Rehabilitation was authorised to recommend recommendations in respect of individuals who applied for reparations in terms of section 26 of the Act,[5] it was also required to make recommendations in respect of victims more generally in terms of section 4 (f) (i) of the Act.[6] Recommendations made in terms of section 4 (f) (i) have to be dealt with by Parliament in terms of section 27.[7] Neither of these sections stipulates nor suggests that such reparations are to be confined just to persons determined by the Commission to be victim.

While the Commission recommended payments in money by way of urgent interim reparation and individual reparation grants only to persons found by the Commission to be victims,[8] it recognized that reparations by way of health, education and other health services needed to go beyond those recommended for individual monetary grants.[9] Although the TRC adopted a ‘closed list’ policy in order not to unduly burden government (which it claimed effectively limited the payment of individual grants to those who made statements to the Commission before December 15, 1997), it recognized that there were many thousands of victims who, for a variety of reasons, were unable to access the Commission.[10] Indeed, the Commission itself noted that since the “Commission stopped taking statements in December 1997, hundreds of people have come forward to make statements.  Unfortunately the Commission had to make the painful decision to restrict the list of victims to those who came forward before the cut-off date.” [11] In its introduction to its list of victims the Commission stressed that the “list is not intended to be exhaustive of all those who may be defined as victims of Apartheid”. [12] The Commission was also notified by victim groups that they had collected more than 8,000 statements between December 1997 and January 2002 from victims who were unable to access the Commission.[13]

The cut-off date for the submission of statements of December 15, 1997 was determined as a practical measure, given the Commission’s available resources and timeframes to complete its work.  That this date has now become linked to the determination of who may receive reparations and who may not is entirely coincidental.  There is nothing in the Act that requires such an arbitrary dateline for the purposes of qualifying for reparations.  The TRC Report discloses no special or important detail about this particular date beyond stating that it was a “painful decision” not to be able to take more statements.  The Commission then, in our respectful view, erred when it attempted an explanation to justify its closed list policy.  It claimed that it adopted a ‘closed list’ policy since it was “anxious not to impose a huge burden on the government.”[14] This reasoning was manifestly faulty.  If the Commission had more time and resources it would have pursued more statement-taking, and the list would have in all probability been several thousand stronger, requiring it to recommend reasonable reparations in respect of all on the list.  It would not have held back simply to preserve the national fiscus.

The Commission recognized that many victims were “not able to access the Commission” because “some people learnt too late about the process or the Commission was not able to make contact with them. Others were unable to gain access to a statement-taker.”[15] It noted further reasons “why many people did not come forward to tell their stories. Some were afraid; some chose not to participate because they did not support the process, particularly the concept of granting amnesty.”[16] The TRC ultimately warned that the “consequence of ignoring this group of people has potentially dangerous implications for South Africa, as communities may become divided if some receive reparation that is not accessible to others who have had similar experiences.”  The Commission then recommended that the ‘closed list’ policy should be reviewed by government, in order to ensure justice and equity.” It noted that, “in many other countries which have gone through similar processes, victims have been able to access reparation many years after the truth commission”.[17] Sadly this call has not been heeded by government, which still persists in maintaining that only those on the TRC’s so-called closed list qualify for reparations.  It does so without offering any explanation or justification.

The use of the date of December 15, 1997, which happened to be the end of the TRC’s statement-taking period, to determine who qualifies for reparations and who does not, is arbitrary.  Its only bearing was in relation to the Commission’s own practical deliberations.  If it had been the intention of the legislature to limit reparations only to those who managed to make statements during the course of the statement-taking period of the TRC, it would have been a simple matter to provide for such a limitation.  The framers of the law, however, must have anticipated that such a task could not be fully completed by one body with a very limited lifespan and imposed no such restriction.

ii)         The regulations are inconsistent with the purpose of the enabling law.

These regulations were promulgated under the empowering provisions of the Promotion of National Unity and Reconciliation Act, yet they betray the purpose of the Act, which amongst other objectives was to provide “measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and civil dignity of, victims of violations of human rights.”[18] Confining reparations to those who appear on the TRC’s closed list created during a short and arbitrarily designated time period denies rehabilitative and restorative opportunities to many thousands of victims. It also makes it impossible to achieve a complete picture of the gross violations of human rights committed in South Africa’s past, another key objective of the Act.  Such a lapse reflects the failure of the DoJ to consider the real purpose and import underpinning the Act.

As currently drafted, victimhood has been effectively reduced by the proposed regulations to a matter of administrative paperwork. The only question under consideration is whether an individual is listed in a specific volume of the Report issued by South Africa’s Truth and Reconciliation Commission or in a“finding” of that body? No matter the reason or cause, victims who did not participate in a TRC hearing or who did not share in previous grants of urgent interim reparations are barred from applying for educational or medical benefits, not because they did not suffer, but merely because they have not previously been “found” or “identified” by the TRC. “Harm,” “loss,” “suffering,” “impairment” and other consequences of the human rights abuses committed during the apartheid era are rendered essentially irrelevant.

We submit that all persons who suffered harm as a result of a gross violation of human rights are entitled to reparation under the provisions of the Act.  The only requirement is the meeting of the criteria laid down in the definition of a “victim” as set out in section 1 of the Act.

iii)         The regulations are inconsistent with a just interpretation of the enabling law that does not encroach on existing rights.

“Statute law is not unjust, inequitable or unreasonable. This presumption goes to the root of what most citizens believe a legal order should at any rate seek to achieve while it avoids, as far as is humanly possible, individual hardship.”[19] It is “a well-established rule in the construction of statutes that where an Act is capable of two interpretations, that one should be preferred which does not take away existing rights, unless it is plain that such was the intention of the Legislature.”[20] A closed victims’ list policy imposes a great and unjust hardship on the thousands of victims of gross human rights violation who meet the criteria under the enabling Act. This policy encroaches on a number of their rights. As will be explained in more detail below, it violates victims’ rights to equal protection under the law.  It also violates their rights to human dignity, life, security of person, expression, and just administrative action.[21] The government should, therefore, favour the more just interpretation of the enabling Act, which does not impose or contemplate a closed victims’ list policy.

iv)        A closed victims’ list policy violates the spirit of the Constitution as expressed in the preamble.

The preamble to the Constitution recognizes “the injustices of our past” and honours “those who suffered for justice and freedom in our land.” It commits to healing “the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.”[22] Restricting reparations to those on a closed list serves the opposite ends.  It does nothing to recognize the injustices sustained by many who did not make it onto the closed list.  Such a policy stands as a stark rejection to many not on the list who made  great sacrifices for the liberation of South Africa.  It fails to acknowledge the truth of their stories.  It is a denial of social justice.  The policy aggravates divisions and denies the human rights of thousands of victims—a far cry from the honour that the Constitution promises.

The Commission received statements from 21,290 people, of whom 19,050 were found to be victims of a gross violation of human rights.[23] In addition, 2,975 victims emerged from the amnesty process.[24] The TRC itself noted that given “the enormous number of statements, it has not been possible in the time available . . . to investigate every case.”[25] This suggests that not even all those who made statements before December 15, 1997 had their cases properly considered for purposes of victim findings.

In contrast, and as of 2009, Khulumani had collected records of some 44,931 people who complained of gross human rights apartheid-era violations.[26] As stated in the TRC Report, the consequence of ignoring those who did not make it onto the closed list has potentially harmful and devisive implications for South Africa.”[27]

v)         A closed victims’ list policy violates the section 1 constitutional values.

Under the Constitution, the Republic of South Africa is founded on the following values: human dignity, the achievement of equality and the advancement of human rights and freedoms; non-racialism and non-sexism; supremacy of the Constitution and the rule of law; and a democratic government to ensure accountability, responsiveness, and openness.[28] The process adopted for the compilation of the Notice 282 regulations does not adhere to these values.

As mentioned above, the DoJ chose not to engage in any meaningful manner with victims or groups representing their interests.  The government appears only to have considered issues relevant for its own purposes, namely questions of efficiency and costs.   There is no evidence that the state’s obligation to provide reparations to all victims of gross human rights violation was ever seriously considered.  This failure to grapple with its statutory obligations is inconsistent with its obligations under section 1 of the Constitution, namely to adhere to the rule of law and to ensure accountability and responsiveness in governance.

Instead of relying on a very limited victim registration period the government ought to have reached out to as many victims as possible. It is apparent that the DoJ failed to consider ways in which victims not on the closed list could be identified and offered educational and medical assistance.  Limited and arbitrarily-imposed time periods for victim registration has been rejected by many countries going through transitions, as is detailed below.  Those behind these regulations failed to take into account relevant considerations by avoiding input from civil society organizations who repeatedly tried to present more reasonable reparation proposals. There is no evidence that legitimate concerns and submissions—such as  Khulumani’s reparation policy proposals and presentations from Oct. 29, 2003 through Dec. 13, 2010—were ever considered.

In defiance of the section 1 requirements of transparency, responsiveness and openness, the DoJ has remained silent as to how these regulations were compiled and approved.  Despite several inquiries from civil society organizations, the names of the members of the joint committee responsible for drafting these regulations remain a mystery.  Equally puzzling, is the process of approval adopted by the Portfolio Committee on Justice and Constitutional Development and Cabinet.  We are advised that Ms. Dene Smuts (MP) informed one of the member organisations of the SACTJ that the Portfolio Committee had asked for civil society contributions and a presentation before the regulations were adopted, yet this opportunity was never presented to civil society.  In contrast, the TRC Unit’s Mr.  Mokushane Thapelo insisted that ‘there was no need for public consultation prior to the draft regulations’ and confirmed that all consultations had been internal to government.[29] To date, victims do not know whom the joint committee or the Portfolio Committee consulted with in drafting these regulations.  Some 13 years after the TRC made its recommendations victims, as usual, are kept in the dark on deliberations that are relevant and important to them.[30]

As detailed in the President’s Fund Report for the 2009-2010 financial year, the South African government had given once-off individual grants of R 30,000 to 15,956 out of 16,837 TRC-approved victims.[31] The DoJ has not provided a comprehensive list of victims who have received this financial compensation previously, so under the proposed reparations program some formally recognized victims will receive further reparations, while those victims of gross human rights violations not on the TRC list continue to be left with no assistance. The TRC Unit’s Mr. Thapelo Mokushane in his June 2, 2011 response to the SACTJ’s May 27, 2011 request for information revealed that certain victims have received preferential treatment and have already been able to access medical and educational assistance from the Department of Education and Department of Health by way of ad hoc referrals from the TRC Unit. Khulumani has records of other victims who have been denied this avenue of relief without explanation,[32] while thousands more are completely ignorant of the possibility. The DoJ must make explicit criteria that the TRC unit employs to make ad hoc referrals, the process and criteria that is then used to evaluate such referrals, as well as the process of appealing an adverse outcome. The preferential treatment given to some victims, seemingly based on personal and political affiliations, needs to be stopped and replaced with a transparent process that is just and open to all victims.

While the responsiveness of the government to the comments on the Notice 282 regulations remains to be seen, it is clear that the regulations as currently formulated will not address the actual needs of thousands of victims of gross human rights.  This is simply because the process of drafting specifically excluded meaningful consultation and participation by victims and the organizations that represent them.  There can be little doubt that such regulations cannot stand as reasonable and justifiable in an open and democratic society based on freedom and equality.

vi)        A closed victims’ list policy violates the Equal Protection Clause and other fundamental rights protected in the Bill of Rights.

A closed victims’ list policy benefits only a specified group of apartheid victims who managed to submit statements before a certain date and denies thousands of similarly situated individuals—who also suffered gross human rights violations.  Those similarly situated victims who did not make the list are extremely disadvantaged as a consequence and are denied  equal protection under the law.[33] It does not appear that those behind the regulations have applied a contextual consideration to the actual effects of the regulations on comparable people. The regulations differentiate between classes of victims, based only on the question as to whether they were able to access the TRC statement-taking department before a certain date.  It is entirely unclear what legitimate governmental purpose is served by such differentiation.  We submit that no legitimate government purpose is served and that government will act irrationally if it proceeds with such regulations as presently formulated.

Not only does such differentiation bear no rational connection to any legitimate government purpose, we submit that such unequal treatment moreover amounts to unfair discrimination.  This is because the DoJ policy treats people differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity.[34] It also seriously impacts their ability to live their lives to their full potential and to care for their families.  

The differentiation is exacerbated by the position of the excluded victims in society.  The bulk of the excluded victims make up some of the most seriously marginalized people in South African society.[35] Differentiation that places additional obstacles before persons already disadvantaged is manifestly unfair.[36] That such differentiation is done under a law that was meant to address cruel inequalities of the past and heal bitter divisions, adds insult to injury.  There can be no question that several rights of the excluded group of victims have been seriously impaired, such as their rights to life, freedom and security of the person, health care and education.   More particularly their rights to fundamental dignity are denied.   Their exclusion from the reparations scheme denies them their inherent or instinsic worth as human beings.  They are effectively told that they are not worthy of respect and concern.[37] The Constitutional Court has held that respect and importance of human dignity requires that the exercise of power, particularly the power of government, must be premised on the inherent worth of human beings. The legality of any official action must be assessed in terms of whether human dignity is undermined in any way.[38]

Not only is their intrinsic worth as human beings eroded, but also their position as human beings within their communities and wider society is seriously demeaned.  The closed list policy dishonours the respect, dignity, value and acceptance of this group of victims in that their personal standing with their families and the wider community is degraded.

The Constitutional Court has also conceptualised human dignity as part of “ubuntu” or humaneness, in which the community or group plays an indispensable role.  This view equates dignity with compassion and caring for the vulnerable persons in the community. Ubuntu is accordingly characterised as social justice and emanates from the communal nature of traditional African societies.[39] This approach is seen as more compatible with “the overall spirit and purpose of the Constitution” which promotes not only individual rights, but also social, economic and community rights.[40] We submit that the differentiation is offensive to the concept of “ubuntu” or humaneness in that the authorities are indifferent to the very real impact on the excluded group of victims in the narrow pursuit of maximizing efficiencies and minimizing costs. In so doing the government, instead of displaying compassion and caring as required by the new constitutional order, displays indifference or contempt to the position of the excluded victims.  The regulations accordingly serve to undermine the social, economic and community rights of the victims who did not make it onto the closed list.

We submit that on either analysis, the closed list policy adopted in the regulations, violates the inherent dignity of excluded victims as individual human beings and as members of the wider community.

When viewed against the benefits afforded to perpetrators of South Africa’s past conflicts, the dismal reparations policy of the government has added considerable trauma to the lives of victims.  The authorities have bent over backwards to accommodate perpetrators by affording them a generous offer of conditional amnesty; extending the cut-off date for the committal for political offences; extending the life of the Amnesty Committee by some 5 years to ensure that each and every last matter before it was properly handled; establishing a misguided prosecution policy that provided for a backdoor amnesty for those who had not applied for amnesty;[41] providing for a special dispensation for political pardons again to benefit those who did not make use of the TRC process; and by an effective blanket amnesty through simply not prosecuting those perpetrators who were denied amnesty or who did not apply.  In contrast, those victims who were not able to make use of the TRC process are simply shown the door.  Such contrasts in treatment are inimical to the compacts that gave birth to our constitutional democracy.  They certainly do not serve the national projects of national reconciliation and unity.

Indeed reparation was seen as a “quid pro quo” or a means for “alternative redress” for the losses that victims would have to endure as a result of the amnesty process.[42] While the life of the Amnesty Committee was happily extended for years to ensure the full completion of its work, no thought was given to a similar extension of the life of the TRC statement-taking department.[43] The reparations provided so far can hardly be described as a “quid pro quo” or a means for “alternative redress.”  There ought to have been an appropriate balance struck between benefits afforded to perpetrators and victims.  This much has been recognized by the Constitutional Court,[44] which has repeatedly stressed the delicate interplay of benefit and disadvantage that underlies the Act’s provisions as well as their effect and intent.[45]