• Written by  Lwando Xaso, Sunday Independent
  • Published in In the News
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No progress for SA without redress - first of three articles by attorney Lwando Xaso on the issue of reparations

No progress for SA without redress -  first of three articles by attorney Lwando Xaso on the issue of reparations Picture: Leon Muller. Independent Media.

In the first of a three-part series on transitional justice, Lwando Xaso looks at how dealing with apartheid’s outstanding debt will help SA heal.

“Justice requires not only ceasing and desisting from injustice, but… punishment or reparation for injuries and damage inflicted.

“The essence of justice is the redistribution of gains earned through the perpetration of injustice. If restitution is not made and reparations are not instituted to compensate for… injustices, the injustices are in effect rewarded.

“And the benefits of such rewards conferred on the perpetrators of injustice will continue to draw interest, be reinvested and be passed on to their children, who will use their inherited advantages to continue to exploit the children of the victims of the injustices of their ancestors.

“Consequently, injustice and inequality will be maintained across the generations, as will their deleterious social, economic, and political outcomes.”

These are the words of African-American psychologist and writer Amos Wilson, who believed that the difference in power between Africans and non-Africans was the major social problem of the 21st century – a belief that I am sure many South Africans share.

A steady undercurrent of discontent continues to reveal itself in calls for economic freedom, transformation and land grabs, and the defacement and removal of colonial statues.

This makes it quite apparent that South Africa is continuing to grapple with its past. Despite our lauded Truth and Reconciliation Commission (TRC), many divisions and cracks remain.

At the 10th anniversary of the first sitting of the TRC, Anglican Archbishop Emeritus Desmond Tutu expressed his dismay at the “ungenerous reparations” made to victims of apartheid who appeared before the commission. South Africa’s transition has often been called “incomplete”, “insufficient” and “unfinished”.

If we acknowledge its incompleteness, then what are we doing about it? It is said that two things rob people of their peace of mind: work that is unfinished and work not yet begun. To our credit the work did begin – but it remains unfinished.

Can a truly healthy society be built upon unfinished business?

The business we are concerned with here, which continues to rob South Africa of its peace, is that of reparations.

In his provocative article, “The Case for Reparations”, published in the June 2012 edition of The Atlantic, American journalist Ta-nehisi Coates makes a compelling case for reparations to be made to African-Americans for slavery.

Coates makes his moral argument in numerous ways, even by quoting a Bible text from Deuteronomy 15:12. This states: “And if thy brother, a Hebrew man, or a Hebrew woman, be sold unto thee, and serve thee six years; then in the seventh year thou shalt let him go free from thee. And when thou sendest him out free from thee, thou shalt not let him go away empty: thou shalt furnish him liberally out of thy flock, and out of thy floor, and out of thy winepress.”

It cannot be said that the oppressed are liberated if they are liberated empty-handed.

Coates’s main argument is that until the US reckons with its compounding moral debts, it will never be whole.

His analysis prompted me to reflect on whether the debt that accumulated under apartheid owed to black South Africans had been paid in full – had there been liberal furnishing from South Africa’s proverbial flock and winepress?

The TRC’s Committee on Reparations and Rehabilitation made a clear case for reparations to victims of apartheid. It acknowledged that thousands of people had been severely affected by the conflicts of the past.

“If we are to get over the past and build national unity and reconciliation, we must make sure that people who suffered gross human rights abuses are acknowledged by providing them with reparation.

“These measures cannot bring back the dead or adequately compensate for pain and suffering, but they can improve the quality of life for victims of gross human rights violations and/or their dependants.”

One needs only to tune into a news bulletin, read a newspaper, tune into talk radio or read online comments to know that South Africa has not got over its past. If the committee’s logic, that reparations are a prerequisite of getting over the past, is correct, then the “ungenerous” reparations are the main cause of what ails our society today.

Reparation initiatives come in many forms, not just financial. They include, among other things, institutional reform, financial compensation for individuals or groups, guarantees of non-repetition, social services such as health care or education, and symbolic measures such as formal apologies and public commemorations.

It is notable that none of the leaders of the system of apartheid, including pre-democratic South Africa’s last president, FW de Klerk, have apologised for apartheid. This increases the sting of the absence of reparations.

In discussing reparations we have to keep in mind that truth- telling is a form of reparation.

South Africa at least had a truth commission – that is far more than African-Americans and many other oppressed groups in many parts of the world have had.

However, we must also keep in mind that the TRC took the testimony of about 21 000 victims, 2 000 of whom appeared at public hearings.

The commission received 7 112 amnesty applications. Amnesty was granted in 849 cases and refused in 5 392, while other applications were withdrawn.

The TRC made detailed recommendations for a reparations programme that including financial, symbolic and community compensation. It proposed that each victim or family should receive about R30 000 a year for six years.

Only victims who testified before the TRC were eligible for the reparations programme. It is reported that there were long delays in the payment of reparations. The amount paid in reparations paid to 21 000 victims was far lower than the amount recommended.

The TRC also recommended that the prosecution of perpetrators of human rights abuses should be considered in cases where amnesty was not sought or was denied.

Records were systematically destroyed between 1990 and 1994. The TRC reported that the National Intelligence Agency was still destroying records as late as 1996 and that “swathes of official documentary memory, particularly around the inner workings of the apartheid state's security apparatus, have been obliterated” making it almost impossible for prosecutions to be pursued. Although the TRC subcommittee denied amnesty in numerous cases, few prosecutions actually ensued.

We must of course also keep in mind that a democratically elected government is in power and that there is a slew of laws, including the constitution, meant to improve the living conditions of the previously disadvantaged.

There are a number of programmes, such as land reform and affirmative action, of which I am a beneficiary, that are meant to advance the progress of black South Africans, and there are many public commemorations of our Struggle, which is also a form of reparation.

If the main components of transitional justice are truth, justice and reparations and we have fallen short on all three, then one can only conclude that there is an outstanding debt that accumulates interest every second it is left unpaid.

This reality makes the two decades of work done by the Khulumani Support Group – a movement of about 85 000 apartheid survivors started by those who testified at the TRC, for all apartheid survivors – all the more crucial. Their constant activism and the attention they continue to bring to this travesty is commendable considering that this matter remains largely absent from public discourse.

Khulumani needs the support of the whole country – the health of our democracy and the strength of our negotiated peace depend on it.

As law students we are taught the importance of accurately pleading a case to recover an outstanding debt. Pleadings must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

The complaint may be drafted with multiple counts stating the respective injuries and relief requested for each.

The court awards damages on the basis of the totality of the injuries and will not allow a double recovery for the same injury.

It is important to understand in advance what type of relief is sought. The complaint needs to be drafted in a way that realistically supports the requested relief.

A litigant may seek money damages, a court order to compel or enjoin an act by the defendant, or a combination of these and other remedies. Damages – patrimonial and non-patrimonial – are awarded to place the victim in the same position as he or she would have been in had the harm not occurred.

We must also know when a debt is to be recovered and when it has to be abandoned. Hypothetically, if a claim is to be pursued for this outstanding debt, would the debt be recoverable? If so, what remedy would be sought and against whom would it be sought? These are difficult issues.

One may even argue that we need a TRC for our TRC.

This is only part one.

*Xaso is lawyer with an LLM in constitutional and administrative law from UCT and an LLM in international human rights law from the University of Notre Dame.

** The views expressed here are not necessarily those of Independent Media.

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