Khulumani Responds to the Department of Justice’s finding that neither Biko nor Aggett were victims of apartheid era gross human rights violations

Khulumani Support Group congratulates Mr Mike Masutha on his appointment as Minister of Justice and Correctional Services; and Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, on his re-appointment. Khulumani Support Group also congratulates Minister Jeff Radebe on his appointment as Minister in the Presidency.

Khulumani looks forward to continuing constructive engagement with the Department of Justice and Correctional Services and the Presidency about the following unfinished business of both The Presidency and also the previous Department of Justice and Constitutional Development.

On 27 March 2014, delegates mandated by the membership of Khulumani Support Group met with the Director General in The Presidency, Dr Cassius Lubisi. The Department of Justice and Constitutional Development (DOJ) had been invited to the meeting by The Presidency, but sent their apologies at the last minute.

After a fruitful discussion, various reasonable proposals and recommendations were made, and an undertaking was given to ‘get back’ to Khulumani by ‘Good Friday.’ And indeed Khulumani did receive a response on Good Friday.

The response consisted of a covering letter from The Presidency, and an enclosure which was a letter from the Director General of the DOJ, Ms N. Sindane. The letter contained most of the same arguments that the DOJ have raised in the last decade of Khulumani’s engagements with them; but this time introduced a new component – ‘two legal opinions, including one from Senior Counsel,’ which seems to reinterpret how ‘a person can be found a victim [of apartheid gross human rights violations] for whom reparations may be recommended.’

In essence, the legal opinion is that a victim is someone who was found by the TRC to have suffered gross human rights violations and the granting of amnesty [to the perpetrators].

The gross human rights violations recognised in the national Unity and Reconciliation Act included killings, abductions, torture, and severe ill treatment (KATS).

What this means is that Steve Biko is not considered a victim for whom reparations may be recommended because the perpetrators who applied for amnesty for his torture were refused amnesty. It also means that Dr Neil Aggett is not considered a victim for whom reparations may be recommended because the perpetrators (found responsible for his death by the TRC) did not even apply for amnesty.

And yet, we are informed that both Biko’s and Aggett’s families were given ‘TRR’ numbers which allows them to claim reparations. We do not know whether Steve Biko’s family claimed the R30,000 once off reparation. Dr Aggett’s family did not claim the R30,000 once-off reparation for his loss of life. Apparently they could not stomach the thought of accepting ‘blood money.’ This is a legitimate choice of the Aggett family – but for many other families of people who died at the hands of the apartheid era security forces, whose lives remain damaged, reparations would literally be life-saving especially amongst an ageing population of people who experienced firsthand ‘the harshness of the previous regime’. (Ms Thuli Mahlangu, Director for Care and Services to Older Persons in the National Department of Social Development) According to Ms Mahlangu, for our government, older persons are not a priority, even those who bore the brunt of the struggle for freedom and justice.)

What is clear is that the TRC Unit in the DOJ has not developed a clear and comprehensive policy for reparations. There has been a dearth of serious policy work on providing for the well-being of struggle veterans in South Africa, apart from the development of legislation to provide benefits for military veterans.

The President’s Fund (established in terms of the National Unity and Reconciliation Act – or ‘TRC Act’) has money available for victims of gross human rights violations. Khulumani agrees that ‘checks and balances’ need to be in place for the identification of victims and the distribution of this money. (For example, despite his claims of being a ‘victim’ of apartheid – as were ‘all black people,’ Khulumani would not consider Chief 

Operations Officer of the Department of Justice, Dr Khotso de Wee, to be a victim who is eligible for reparations because he does not meet the criteria of the TRC Act.)

The Constitutional Court stated in the AZAPO case that the money in the President’s Fund for individuals and the money for community reparations should be split approximately 50:50. However, there is no comprehensive policy to provide for the TRC’s recommended programme of community reparations to a generation that continues to suffer.

More than a decade too late, Emeritus Archbishop Tutu speaking in Boston, bemoaned the fact that government in 2003 did not follow the TRC recommendations to pay out reparations to victims over six years (amounting to about R120,000) – but it decided on a once-off amount.

The TRC recognised about 21,000 victims of gross human rights violations. However only about 2,000 victims of gross human rights were afforded the opportunity to give verbal testimony before the TRC. Many were excluded. Those excluded were people whose statements were not properly taken, and therefore not included; people who could not travel to a TRC venue; people who became emotional about what happened to them while their statements were being taken, and were then labelled as ‘mentally unstable’ by the statement takers and never had their statements submitted to the TRC.

It must be remembered that there was a vast underground resistance movement in South Africa during the apartheid era. These people are now struggle veterans who did not necessarily carry arms or initiate attacks on the enemy; but who gave operatives shelter and food and protected them. Some of them were discovered, arrested, and suffered gross human rights violations at the hands of the apartheid security forces. In addition, people sheltering liberation activists in neighbouring countries often had their homes targeted and bombed. None of the ANC’s promises of compensation have been materialised for these individuals and families.

Amongst those who have claimed a ‘special pension’ for their services to the liberation struggle on the grounds that they were unable to provide for their own pensions, are Ms Lindiwe Sisulu (former Minister of Public Service and Administration, and now Minister of Human Settlements); Mr Max Sisulu former Speaker of Parliament; the new Minister of Mineral Resources, Mr Ngoako Ramatlhodi; Deputy Minister of Public Works, Mr Jeremy Cronin. Despite having been ‘repaired’ as Khulumani members put it, these high-earners are receiving these special pensions in addition to their salaries.

The contribution to South Africa’s liberation of non-military struggle veterans; and those of victims like Biko and Aggett, should not be belittled or sidelined by the Department of Justice or by government.

We call on the new Minister of Justice to apply his mind to the proposal to set up an Advisory Committee to finally put in place a reparations policy of which we can be proud, that will draw on the excellent recommendations of the TRC; the Constitutional Court case judgment in the so-called AZAPO case to develop a fair and just policy for redress, reparation, restitution and justice in South Africa – a policy that might also become a welcome ‘export’ of this country beyond the export of a Truth Commission which put issues on the national and international agenda that have yet to be resolved. 

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