Issued by: Truth and Reconciliation Commission
July 31, 1997
The Truth and Reconciliation Commission, represented by its Acting Chairperson, Dr Alex Boraine, today filed with the High Court its response to a court application by the National Party.
Background
The application was launched after a press conference following the second hearing of the National Party, during which Archbishop Desmond Tutu and Dr Boraine expressed concern at Mr F W de Klerk's claim that he was unable to answer questions put to the Party on the grounds that he was unaware of the events and circumstances in question.
The application calls for the dismissal of Dr Boraine as a member of the Commission. It also asks the court to declare that the Archbishop conducted himself at the press conference in a manner unbecoming of his office as Chairperson, and to order the Commission to carry out its work in compliance with the requirements of the Promotion of National Unity and Reconciliation Act. It also asks for two interdicts prohibiting the Archbishop and the Commission from making public statements which, it claims, may convey the impression of partiality and lack of objectiveness.
Dr Boraine has been authorised to depose on behalf of the Commission and Archbishop Tutu. The Archbishop is undergoing medical treatment in the United States.
Counsel representing the Commission is Jeremy Gauntlett SC, assisted by Advocates Andrew Breitenbach and Vuyani Ngulwana.
Main points in the TRC's response
1. The first point raised in the response is that the remedies the National Party asked for are not those which a court may reasonably grant. The Act provides for only two remedies in the event of "misconduct" by a Commissioner. These are the removal (or impeachment) of a Commissioner by the President after a Parliamentary process and provision for the laying of criminal charges. Neither of these has been sought by the National Party.
Similarly, the Commission says the declarator asked for in respect of the Archbishop does not comply with the Supreme Court Act, would have no legal consequences and is thus entirely academic.
2. The TRC also notes that although the National Party has brought this application on a basis of semi-urgency, this does not justify the extensive resort to hearsay evidence by Mr Jaco Maree of the NP who, it points out, neither represents the National Party in government nor holds a position in the senior party leadership. Mr de Klerk is therefore asked to confirm the hearsay evidence on which Mr Maree relies.
3. The Commission has at various times come into conflict with each of the political parties. The TRC reminds the court of the occasion when the Archbishop threatened to resign as Chairperson in response to the ANC's argument that some of its activities were connected with a "just war".
4. The Commission cannot preserve what Dr Boraine describes as "a sanitised silence" as it is not a judicial body. It must act fairly and "confront apparent evasion and obfuscation". This is not to anticipate the Final Report, but in order to ensure that individuals and organisations have the fullest opportunity to respond before the Final Report is prepared. The Commission must at all times act within the framework of its broader purpose - the furthering of a climate of reconciliation and national unity.
5. By way of illustration, torture is just one form of gross violation of human rights which is commonly acknowledged to have been widely practised in South Africa. In the light of this, and in the face both of amnesty applications and victims' testimony in this regard, the National Party has failed to give a full account of its involvement in or knowledge of such events. Nor has it addressed its own political accountability in this regard.
6. Indeed, Mr de Klerk's answers to questions put to him by the Commission dealt only with what the National Party terms the "second period of apartheid" and what he himself knew or did not know. This is "self-evidently not the inquiry", the Commission says. It was for the NP to respond squarely to the questions and this it has failed to do. This is despite the fact senior members of the NP, Mr Adriaan Vlok and Dr Piet Koornhof have applied for amnesty.
7. Examples from a number of documents in the possession of the Commission are cited, including certain minutes of the State Security Council which demonstrate a number of "Goals". Particular reference is made to the linking of "Goal 15" with activities in the old Crossroads area in June 1986. In this regard, a statement by Director Leonard Knipe is appended.
Reference is also made to applications for amnesty by senior members of the security forces, including that of General Johan van der Merwe, together with the application made by Mr Vlok. These give strong support to the contention that the security forces were acting under orders from their political principals. Mr Vlok, for example, states that the bombing of Khotso House took place with the prior knowledge and approval of the then State President, Mr P W Botha.. (As the applications by General van der Merwe and Mr Vlok are confidential in terms of the Act, the response states that, should the NP's legal representatives wish to inspect them, the Commission will pass that request on to the people concerned.)
8. Dr Boraine notes the many occasions on which both he himself and the Archbishop have publicly expressed their respect for Mr de Klerk. This explains their "intense disappointment and distress" at the stance he adopted at the hearings.
9. The TRC's affidavit describes the passage of the Act through Parliament and refers to the various statements made by the National Party in this regard. It notes (and quotes from) the NP's expressed view that its members in Parliament played a significant role in ensuring that the legislation achieves its objectives to be impartial and to seek the truth without bias.
10. The papers also contain a description of the process by which Commissioners of the TRC were selected, pointing out that the National Party was represented on the Selection Panel and that the final appointments were approved by a Cabinet of National Unity. Indeed the Cabinet Minute records that both Mr de Klerk and Chief Buthelezi "concurred" with the appointments
Dr Boraine refers to a question posed to him by Senator Ray Radue (an NP member of the Selection Panel) related to the role of the press. Far from disagreeing with any of Dr Boraine's answers, Senator Radue stressed how important he believed that role was to the work of the Commission. Part of Dr Boraine's reply referred to the importance of regular press briefings.
11. The work of the Commission is described and elaborated upon in order, inter alia, to demonstrate the impossibility of any one member influencing the work of the Commission, and more particularly its Final Report, as the National Party suggests. "It is not possible, " Dr Boraine states, "for one Commissioner (notably me) to influence the TRC's work so as to jeopardise the fairness and objectivity of the Final Report...."
12. The TRC's affidavit then deals with various points raised by Mr Maree. The affidavit refers to a letter written by Mr R F (Pik) Botha to Dr Charles Villa-Vicencio, head of the Commission's Research Department, in which Mr Botha states that he recommended that Mr de Klerk apply for amnesty on behalf of the "former Cabinet".
Dr Boraine's affidavit on behalf of the Commission concludes that Mr. Maree's contentions "misconceive in fundamental respects the statutory objectives of the TRC and the manner in which the TRC is by law required to balance and serve these. The application is intended to circumvent other means laid down by Parliament to obtain proper relief.... It is evident that the NP, rather than respond to the identification of evident deficiencies in its evidence, regrettably anticipates a report prejudicial to its interests, and seeks through this application to impugn that potential result. I am constrained to submit that in so acting, the NP does not do so in good faith...."
Dr Boraine says: "I regret that this state of affairs should have come about, and I express the hope that the NP will yet take the opportunity of responding squarely to the matters put to it. The TRC as an institution, and Archbishop Tutu and I as individuals, bear neither it nor its office-bearers ill-will; we would welcome a reconsideration of its stance."
Dr Boraine asks that the application be dismissed and the court should order that the National Party must pay attorney-client costs, including the cost of two counsel.
The fourth and fifth respondents in the application are the President and Minister of Justice. The Minister of Justice has also filed a responding affidavit.
The matter will be heard by a Full Bench of the Cape High Court on September 5, 1997. Until then the matter is sub judice and the TRC cannot comment on the issues raised by the application.Copies of the application and the TRC's response to it may, however, be inspected by journalists at the TRC's offices.
Inquiries: John Allen, 082- 452-7859