I remember my call to her nearly two years ago to ask her how I might contact the Mxenge children. The South African Coalition for Transitional Justice is contemplating bringing an amicus in the case between The Citizen and Robert McBride. In dispute is the substance of the meaning of the amnesty provided by the Truth and Reconciliation Commission. McBride has challenged the right of the Citizen newspaper to call him a murderer. This charge arose from his conviction for the placing of a bomb in Magoo’s Bar in Durban in which three women pedestrians had been killed and many patrons wounded. For this crime, McBride had received the death penalty. The TRC later amnestied his crime. McBride had claimed in court that the granting of amnesty effectively expunged his conviction “for all purposes”. This, he claimed in court, wiped out the record of his criminal act and meant that he “could no longer be considered to a criminal”. The lower court decided that it would be untrue to call him a murderer.

We remember that a Mxenge - Churchill Mheli Mxenge, the brother of Griffiths Mxenge, had been an applicant in the May 1996 case, Azapo v The President, which sought to challenge the constitutionality of the amnesty provisions of the Promotion of National Unity and Reconciliation Act 34 of 1995. His co-applicants were Nonsikelelo Margaret Biko and Chris Ribeiro. These provisions provided that a perpetrator could not be held criminally or civilly liable in respect of an unlawful act associated with a political objective committed prior to 6 December 1993 as a result of the granting of amnesty. They also removed any vicarious liability in law of the state or any other body, organisation or person. The Court upheld the constitutionality of the section arguing that the granting of amnesty for criminal liability was necessary to provide an incentive for offenders to disclose the truth about past atrocities and that this might assist in the process of reconciliation and reconstruction.

I am given the contact number for the two sons of Griffiths and Victoria Mxenge. I call. We talk for two hours. Do you know it is twenty-eight years since the murder of our father? No-one wants to speak about it anymore. And yes, we would be willing to be applicants in a case to protect the right of victims to speak the truth about crimes amnestied by the TRC.

The Court hears argument. Lawyers for the amici argue that the granting of amnesty cannot alter the historical facts and that the right to express the truth needs constitutional protection. In passing judgment, the court holds that truth-telling was the moral base of the transition from the injustice of apartheid to democracy and constitutionalism and that the TRC process, which was premised on the necessity of truth-telling in pursuit of national unity and reconciliation, could not operate so as to muzzle truth and render true statements about our history false. Justice Edwin Cameron, writing on behalf of the majority, held that proscribing the truth would be antithetical to the adequate compilation of the collective memory of South Africa’s past and the court’s decision is hailed as a milestone towards securing the emerging right in international customary law of the “right to truth” for victims of human rights atrocities worldwide.

There have been more lawsuits – the successful court challenge to the amended prosecutions guidelines which opens the way for the criminal prosecution of individuals who failed their amnesty applications; the successful interdicting of the President to prevent the granting of Presidential Pardons to offenders who claimed a political motivation for their crimes without consultation with the victims of these perpetrators; and the international case suing multinational companies that conducted exclusive business with apartheid security agencies, for their complicity in aiding and abetting the perpetration of gross human rights violations during apartheid.

Is this the state of the struggle against injustice? Has it become a resort to legal challenges on peripheral issues that impact mainly on the lives of offenders? In this sense the victories have been very limited. The President has been forced to consult with victims before he pardons a political offender and victims may now speak truthfully about the crimes perpetrated by individuals even if they were awarded amnesty by the TRC. While the right to pursue prosecutions for the crimes associated with the conflicts of the past has also been won, there is an absence of political will to pursue apartheid crime prosecutions. Each of these represents a technical advance in post-apartheid jurisprudence which have little impact on the lives of those who have been most affected by the past.

None of these hard-won advances have been radically transformative. None have assisted a radical reconceptualisation or imagining of the possibilities of a justice in post-apartheid South Africa. Perhaps this was never the intention of the TRC. Perhaps its main purpose was to legitimise the new state and to provide for a period of social stability so that the political elites could set about putting the country back on a productive track. As we know, the goal of the Mbeki Presidency was not the building of an inclusive society, but as Matthews points out, the deracialising of the class of the wealthy. There has been noteworthy progress towards the achievement of this goal with the proportion of Africans in the top 20 percent of income earners having increased from 39 percent in 1995 to 48 percent in 2009. But, at the same time, inequality within the African population has increased sharply[1] and poverty has deepened and become especially concentrated in rural areas and in former Bantustans where poor-quality soil and water scarcity hamper the development of viable livelihood strategies. Poverty is also concentrated on the fringes of cities and towns to which people have migrated in search of work. The past is very evident in this reality – a situation that has been compounded by the denial of access to land, to own certain assets, to run businesses, to quality education and to live in well-located areas close to work places.

The present has been constrained by the failure of the transition to prioritise redress for apartheid and colonial injustice. When Justice Mahomed pronounced that “much of the unjust consequences of the past could not ever be fully reversed” and that there would need to be a firm and generous commitment to reconciliation and national unity, he was tacitly colluding in the unspoken agreement that the focus for the first post-apartheid decade would be on strategies to expand the middle class and especially those who had access to better quality education. He concluded his statement with the assertion that “It might be necessary in crucial areas to close the book on that past”[2]. This has probably been the greatest flaw of the transition – that there was a widespread assumption that there would be winners and losers in the transition and that most of those who were victimised in the past, would in all probability not see justice in their lifetime.

Khulumani asserts that the book of the past cannot in fact be closed and that processes of addressing the past need to be ongoing. The focus on closing the book of the past has to a significant extent been led by lawmakers who were given prominence in the transition.

Justice Mahomed asserted that political transition was in his view the domain of the lawmaker because it was the lawmaker who had to exercise judgment in the process of the “difficult, sensitive, perhaps even agonising, balancing act required between the need for justice to victims of past abuse and the need for reconciliation and rapid transition to a new future; between encouragement to wrongdoers to help in the discovery of the truth and the need for reparations for the victims of that truth; between a correction in the old and the creation of the new. It is an exercise of immense difficulty interacting in a vast network of political, emotional, ethical and logistical considerations.”

In allowing the law to dominate in the transition, there have been disproportionate advantages to the elite and disproportionate sacrifices amongst those most harmed by apartheid. The elites control decision-making on policy choices that determine the development trajectory of society. Their choices have the capacity, as Fedderke[3] points out, to trigger either economic expansion or descent into protracted social conflict. South Africa sits at this pivotal point in the present with increasing social discord and accelerating despair amongst almost 50% of the population.

The incomplete addressing of the country’s major challenges has been brought into stark relief with the tabling this past week of the first public report of the National Planning Commission. Its Diagnostic Overview highlights that the country faces major challenges and that many of these challenges having been inherited from the past.

In explaining the origin of these challenges, former Justice Mahomed in the judgment in Azapo v the President, spoke of the history of the country that was “dominated (for decades) by a deep conflict between a minority which reserved for itself all control over the political instruments of the state and a majority who sought to resist that domination”. The main casualty of the conflict, he asserts, was the human rights of those who resisted the system and as the conflict deepened through the institutionalisation of discrimination and exploitation, internal political confrontation became entrenched and debilitating. It was accompanied by labour militancy, student unrest and punishing economic isolation. The mass political oppression began to traumatise the entire nation.

It is clear that the TRC was embarked on as a way of facilitating a transition from a past characterised by conflict towards a future based on the building of respect for human rights. The TRC’s approach of striving for understanding rather than vengeance, for reparation rather than retaliation, and for ubuntu rather than victimisation, placed victims who chose to come forward in the invidious position of having to perform as the protagonists of “a new humanity” without concurrent ongoing efforts to advance social justice. There seems to have been acceptance at this stage that the unspoken sacrifices associated with this process would be carried by the ordinary citizens who had become the targets of political oppression.

Fullard and Rousseau assert that the majority of those who went to the TRC were these “ordinary citizens” and suggest that they were not political activists. From Khulumani’s perspective, it has been these ordinary citizens who became politicised through the resistance to apartheid injustices and whose actions contributed to bringing down the apartheid regime. It is for them that the securing of post-apartheid justice is so important.

There has been a failure to balance justice for victims of past abuse with justice for perpetrators and beneficiaries of apartheid. The invitation of the TRC to come forward to give your statement about the ways in which you were harmed, was a recognition of the role played by ordinary people in bringing about the transition. Victims and survivors did come forward in numbers and their participation did considerably fill out the historical record. The gifting of these stories has helped to expand the understanding of what happened to people in the past and how people suffered. But it has done little to change the circumstances of peoples’ lives. In many ways the promotion of the TRC as a model of how deeply divided societies can move forward, has done victims and survivors a disservice. The world has focused on an instrument of transition rather than on engaging in a longer-term process of repairing the past to restore the future for thousands of victims and survivors of gross human rights abuses.

Presently the future is under threat for thousands of those who facilitated the transition at great personal cost. Many of these are members of Khulumani Support group. Women constitute 65% of the membership. This is coherent with the findings by Meintjies and Goldblatt[4] that the effects of the 'ordinary' workings of apartheid in fact affected women more severely and adversely than men. Women were subject to more restrictions and suffered more in economic terms than did men during the apartheid years. “The type of abuse caused by influx control and related laws had usually much longer-term consequences, than the types of violations on which the Commission was mandated to focus its attention. The “suffering” was not only physical, but also constituted attacks on the very selfhood of many women and men.

The values modelled by the TRC failed to provide the institution with a transformative agenda. The appeal for understanding undermined the demand for truth-telling and speaking. Victims who appeared in person to testify were thoroughly prepared and their statements were adjusted to allow for what could and could not be said. There was a degree of sanitisation of the truth. These practices have continued with selective processes of memorialisation. The reality of victims’ existence and survival was not carefully exposed to reveal the impact of apartheid legislation and abuses on limiting and frustrating individuals from realising their fullest potential or on exposing the full extent of the losses suffered by victims of apartheid abuses including the loss of life, of land, of opportunities and education and of access to jobs.

The disparities in the outcomes of the TRC processes has come recently into sharp focus with the gazetting on May 11, 2011 of regulations[5] to allow the President to make payments for educational assistance and health benefits for individuals whose names appear in Volume 7 of the TRC Report.

Despite the unceasing lobbying and advocacy of victims and survivors, the regulations were gazetted without the meaningful involvement of victims in their conceptualisation and drafting and in defiance of the right of victims to participation. The regulations fail to provide 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 despite the fact that the Act contains no provisions that support a closed list of victims eligible for reparations. The Act stipulates only the type of harm that a person must have suffered in order to be considered a victim. The adherence to the closed list policy conflicts with the purpose of the Act, which seeks to rehabilitate and restore the human and civil dignity of victims. The proposal to provide educational and health reparations to some victims and not to others amounts to unfair discrimination since it impairs the fundamental human dignity of thousands of victims who are not on the closed list.

By the closing date for public comment of June 8, 2011, Khulumani had in the 30 calendar day period provided, facilitated that hundreds of victims submitted short statements opposing the regulations that do further injustice to the victim community. In the submissions from Khulumani and from the South African Coalition for Transitional Justice, there is a demand for regulations to be responsive to victims’ needs; for an ongoing registration process to be established to allow all who are victims of gross human rights violations under the criteria specified in the Promotion of National Unity and Reconciliation Act to access the TRC-recommended grant of R120,000.00 payable as a monthly reparation grant over five years as well as educational and medical benefits; and for the adoption of community reparation and rehabilitation measures.

This recent mass involvement across the provinces of South Africa of those who suffered gross human rights violations, is the culmination of years of consciousness-raising and capacity building in active citizenship that lays the foundation for strategic support and interventions that could provide secure the socioeconomic transformation of the lives of victims and their families.

Victims drove the process of constructing a Charter for Redress over the course of 2005, the year in which the Department of Justice finally established a TRC Unit. Sadly this Unit has had minimal impact on the lives of victims and survivors to date.

Some key demands of the Charter are for all victims and survivors who suffered harms recognised by the TRC to be included in measures for reparations; for all the recommendations of the TRC to be adopted; for the state to acknowledge its obligations to facilitate the repair of these harms given that victims forfeited their rights to pursue civil action against perpetrators who were granted amnesty;  for meaningful participation by victims in the investigation and hoped-for resolution of all the cases of the forcibly disappeared, not only those that were tabled with the TRC; for the policy process to provide community reparations to be fully participatory; and for consultation with victims as to the use of the President's Fund over which the President has sole discretionary prerogative. These demands still stand.

Fundamental to the agenda of victims and survivors is the recognition and acknowledgement of their contributions to the realisation of freedom and democracy in South Africa and their inclusion in processes of symbolic memorialisation.

Central to these advocacy efforts is the focus on measures for socioeconomic transformation of the lives of victims through efforts to facilitate access to equal rights, resources and power to provide for the material needs of victims for increased income and for income security, for increased access to resources and to employment opportunities and to the satisfaction of basic needs. Beyond the material needs are the perceptual needs for victims to drive the movement to become more visible, to advance their self-esteem and self-confidence and to craft their own visions of the future. The relational needs that involve greater participation in decision-making, greater access to bargaining power and greater capacity for self-reliance, as opposed to the passive stance of beneficiaries of state hand-outs, are also critical.

In October 2010, civil society convened with COSATU to table another Charter – a Charter for Social Justice in South Africa. Its preamble states, “We are one of the most unequal countries in the world, and unless we mobilise for change, the levels of inequality will become entrenched.”

We agree with Justice Mahomed that the families of those whose fundamental human rights were invaded by torture and abuse are not the only victims who have endured “untold suffering and injustice” in consequence of the crass inhumanity of apartheid. We recognise that this is an ongoing struggle and that generations of children born and yet to be born will still suffer the consequences of poverty, of malnutrition, of homelessness, of illiteracy and disempowerment generated and sustained by the institutions of apartheid and its manifest effects on life and living for so many.

We do however see the potential in an empowered victim movement to drive the changes needed and to shift the present fixation of the state on the delivery of services to passive clients to relationships in which citizens assert their capacity to be the authors of the change they need. In this process, victims and survivors are taking responsibility for actions that could begin to reverse present realities through facilitating the development of the latent human potential and resources of every person who has directly or indirectly been burdened with the heritage of the shame and the pain of our racist past.

Just one year after the hosting of the Soccer World Cup which focused the attention of the entire nation on a shared goal, we are called to focus on the shared challenge of reversing the situation of growing poverty and inequality in South Africa. We do not need any further distractions. We sit at the epicentre of several crises that affect not only ourselves but also other parts of the world. These crises are the social crisis of inequality, poverty and discrimination; the democratic crisis in which rights are not provided equally to all persons; the geopolitical crisis of unfinished decolonisation; and the environmental crisis of society reaching the limits of the ecosystems of the planet.

We have much to learn from those who have led the struggles in the past in finding the capacity to face these challenges. To this end, Khulumani is committed to remembering and honouring the committed actions of its members and to creating opportunities for intergenerational exchanges to inform understandings of the present with this knowledge and experiences.

One example of this has been the use of the film, Zulu Love Letter as a tool to create space for children to dialogue with parents and other elders. It is a process that promises healing for victims and inspiration for young people.

I end with a poem "Tears were burning in my eyes" written by one young person, Nothemba Ndevu from the Western Cape.

Tears were burning in my eyes

When I thought about thousands of South Africans

Who lost their lives, fighting for the liberation struggle

When I thought about the pass laws,

The Bantu education and the engraved Blacks Only signs

Tears were burning in my eyes

As I thought what it was like to have a black skin then

The skin we used to think was cursed

How whites used to make jokes about our being

Tears were burning in my eyes

When I thought how we were used

Turned against each other

Fighting against each other

Tears were burning in my eyes

They were tears of joy

Proud to be South African

Courage, determination, unity

Has brought us where we are today.

Tears were burning in my eyes

As the Zulu Love Letter took me to our painful and glorious past

Made me examine my present and look towards the future with hope.

Tears were burning in my eyes

For the youth of South Africa

Wondering whether they know how blessed they are

To have tools like Zulu Love Letter

To educate them about our history.

Tears were burning in my eyes

As the Zulu Love Letter evoked emotion

I can not change the past but I can certainly work for a better future.

Tears were burning in my eyes.