Although some may consider the regulations a step in the right direction, the majority of South Africa's victims are in fact excluded from these benefits because the regulations stipulate that only those who went to the TRC can access these benefits.

The government has repeatedly insisted on using a closed list policy when dealing with victim reparations.   One main consequence of a closed list policy is that the victim community will become divided between those who appear on the closed list, namely Volume 7 of the TRC’s final report, and those who do not.  This distinction is likely to lead to huge resentment against the minority of victims who now qualify for special treatment on a fairly arbitrary basis.  The exclusion of the majority of victims goes against the spirit and principles contained in the national reconciliation project, which formed the basis of the TRC.  The preferential treatment of a minority of victims was not what the TRC had envisioned, and the publication of names in Volume 7 was not meant to elevate this group to a higher status than others.

The use of a closed list policy not only violates the TRC and the Constitution,  but also the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which the South African government has ratified.  These international treaties contain provisions for all victims of gross human rights to seek remedies.  The South African government is ignoring the fact that many victims did not make submissions to the TRC and are therefore unable to be formally recognized as victims and receive reparation benefits.  Many were however unable to make submissions to the TRC for a range of reasons. It is the Coalition’s belief that there should not be a closed list, but rather an on-going registration process for victims, as has been the case in countries such as Brazil, Peru, Guatemala, and Sierra Leone.

It has also recently come to light that there seems to have been preferential treatment of some victims who appear on the list.  Over the years, the TRC Unit has provided assistance to some TRC-identified victims in their attempts to access education and medical benefits.  Victims who received assistance were referred to the Departments of Education and Health, and the assistance was provided through these Departments’ budgets.  It seems, however, that this assistance has not been widely publicized, but rather dispensed through the individual discretion of officials.  Therefore, even within the closed list, preferential treatment has occurred.

The proposed regulations do not properly honour or acknowledge the contributions made by victims to the liberation of South Africa from its apartheid past.  The recent Military Veterans Bill recognises the contributions made by the military formations, through provision of special pensions, housing, education, skills development, assistance with creating businesses and business opportunities – notably through a process that has allowed a repeated re-opening of the list of those who would qualify.  But benefits for victim are being looked at on a much less generous basis.  Many victims suffered comparable instances of torture, assaults, and de-humanisation as their military counterparts, but as civilians fighting battles on the streets of South Africa’s townships.  They should receive the same honour and acknowledgement through a comprehensive and inclusive reparations policy.

The government has isolated itself from victims of human rights violations during apartheid and those seeking justice for those repressions, such as the Coalition.  Furthermore, the government's closed list policy threatens to create divisions within the victim community, which undermines any attempt to enable victims to become survivors, and threatens reconciliation and national healing

The present regulations fail to provide justice for victims of one of the longest human rights struggles waged in the world. They also fail to ensure that government takes its obligations to make reparation for gross human rights violations seriously. The struggle slogan comes to mind “ No peace without justice”. The long-term peace of South Africa demands equal justice and equality before the law, not the closing of the book on issues that remain unresolved and unaddressed. The continuing adherence to a closed book approach in which justice for victims and survivors of gross human rights violations is sacrificed, undermines the high regard with which South Africa’s transitional mechanism, the TRC, was viewed across the world and threatens the long-term peace and stability of the country. South Africans continue to live with the past and this past needs to be confronted and addressed moving forward.

For further comment, please contact:

• Dr Marjorie Jobson          Khulumani Support Group             082 268 0223
• Mr Hugo van der Merwe   CSVR                                                082 570 0744
• Ms Shirley Gunn             Human Rights Media Centre          082 450 9276