Victims have endeavoured to ensure that the Fund is managed with this important purpose in mind, and President Mbeki conceded at the ANC’s Polokwane conference in December 2007 that the Fund would be retained for community reparation programs to rehabilitate communities that suffered during apartheid and are still in distress.
The proposed regulations do not include any community reparation provisions as stipulated in the Act and as recommended by the TRC. The TRC Report reads: “Entire communities suffer the adverse effects of post-traumatic stress disorder, expressed by a wide range of deponents to the Commission. It is therefore recommended that rehabilitation programmes be established both at community and national levels.”[3]
The TRC Report goes on to make specific education and health recommendations under the heading of “Community Rehabilitation,” which are ignored by the current regulations. These include establishing local treatment centres for physical and emotional needs, community-based survivor support groups, community crisis and trauma skills training, specialised trauma counselling services, and family-based therapy.[4]
It is readily apparent that the TRC recommendations do not contemplate limiting health assistance to listed victims. The TRC Report also includes comprehensive mental health recommendations, yet the Notice 282 regulations limit the medical benefits to “health services” as defined in section 1 of the National Health Act,[5] which does not provide for mental health services.[6]
Further, the TRC Report also details education recommendations under the heading of “Community Rehabilitation,”[7] but the DoJ has dismissed the community aspect in promulgating these regulations that distinguish between individuals living together in distressed communities based on an incomplete victims’ list.
[1] Act 34 of 1995 § 42 (S. Afr.).
[2] Id. at § 42 (2A).
[3] TRC of S. Afr. Report, Volume 5, Ch. 5: Reparation and Rehabilitation Policy, ¶ 94 (Oct. 1998). “In consultation with appropriate ministries, community-based services and delivery should be strengthened and expanded to have a lasting and sustainable impact on communities. . . . The activities that emerge from this policy should aim to bring people together, to promote mutual understanding and reconciliation.” Id. at ¶¶ 50-52.
[4] Id. at ¶¶ 100-06.
[5] Regulations Relating To Medical Benefits For Victims § 1, Government Notice (GN) R282/2011 (S. Afr.).
[6] See National Health Act 61 of 2003 § 1 (S. Afr.) (“‘[H]ealth services’ means- (a) health care services, including reproductive health care and emergency medical treatment, contemplated in section 27 of the Constitution; (b) basic nutrition and basic health care services contemplated in section 28 (1) (c) of the Constitution; (c) medical treatment contemplated in section 35 (2) (e) of the Constitution; and (d) municipal health services.”).
[7] TRC of S. Afr. Report, Volume 5, Ch. 5: Reparation and Rehabilitation Policy, ¶ 107-12 (Oct. 1998).
