Select Committee on Northern Ireland Affairs Written Evidence


Memorandum submitted by Albie Sachs, Judge of the Constitutional Court of South Africa


  I was in chambers at the Constitutional Court in Johannesburg, and in a state of some excitement because I was told that somebody called Henry had arrived at reception. I took out my security pass, went to the security door, opened it, and I saw him there. He had telephoned me some days before to say that he had been part of the group that had organised the placing of the bomb in my car. He was going to speak to me at the TRC and he wanted to see me before he did so. He came through the door, he was shorter than myself, slim, younger, he walked to my chambers; he with a military gait, I with my judge's ambulatory style, looking at each other without looking. Both of us were curious. He was thinking—"Who is this person I helped to try to kill?" I was wondering—"Who is this person who wanted to block me out?"

  His name was Henry. He told me that he had been to Potchefstroom University, had been a bright student. He had good parents, especially his mother, who was a very moral person. He was selected to go into the army—he said he was a good soldier. He rose quite rapidly through the ranks and was selected for special operations. Then he described how he had been part of the team that had organised the taking of photographs of my car. He told me about other commando attacks that were being organised at that time to kill other people in Mozambique. And then, he began to look at me rather quizzically. He began to speak in an almost petulant tone, as he looked around my chambers, the pictures on the wall, the comfort, the pot plant. He told me that he had been one of those dismissed from the army as a result of the Goldstone Commission findings. He had received about R150,000 and invested it in a company with a certain Eugene de Kock, and had subsequently lost the money. He was quite aggrieved, and told me that he too had been injured, he had received a bullet wound in his leg. The implication was that the generals were now either still in the security forces or they had received large "golden handshakes". They had been treated well and he was one of foot soldiers who had been abandoned. And here was I, the person he had tried to kill, sitting in my office as a judge, part of the new elite, receiving a good salary, successful.

  Usually when somebody comes to visit me, I show the ordinary civility and shake hands when I receive them, and I shake hands when I say goodbye. But with Henry I experienced a very cheap emotion, I wanted to say to him: "Henry, I'm sorry, I can't shake your hand, you know why". But I resisted it. I said to him that normally I shake the hand of someone who visits me, but I can't shake your hand. I told him to speak to the TRC, to tell them what he know, to contribute to the store of knowledge that our country has about its past, to be as honest as he could. I said that maybe he and I would meet afterwards, then we could see. I forgot about him after that.

  What was this body called the Truth and Reconciliation Commission, which was somehow going to humanise the relationship between my would-be assassin and myself? It has been subjected to two major critiques. The radical critique, alluded to by Kaiser Nyatsumba and Colin Bundy, more or less says that by identifying gross violations of human rights, which affected a certain number of individuals at the forefront of the struggle, attention is taken away from the deep, systematic, pervasive dispossession and humiliation of the majority of people. It actually serves a negative purpose. And from that point of view, it undermines any possibility, contradictory as this may seem, of reconciliation. It is an important perspective, and one of the many perspectives that have emerged from this deeply engaging, profoundly affecting, brilliant, difficult, dark, intense process that we all participated in and watched and argued about. While I acknowledge the importance of this critique, I think it is basically wrong, although it should be a part of the overall assessment. It has to be one of the many voices that make up the total symphony of the process.

  Why focus on these individual cases of torture, assassination and violence, when apartheid itself was a denial of humanity that involved dispossession of land, suppression of language, culture, and personality? I think there were very good reasons for doing this.

  First of all, these cases were hidden, secret and denied. The Groups Areas Act was known, the Land Act was known, the wars of dispossession were known. But these were covert activities conducted in a clandestine way. Secondly, they were criminal even in terms of the laws of apartheid. Torture, assassination, and fraud were crimes even in terms of South African law. That is one reason why they were secret. Something had to be done in relation to those crimes.

  Thirdly, they had an intensely cruel, savage and affecting character. They were the epitome of domination and dehumanisation, and of organised, institutionalised control of one section of the population. Attacking these cases was doing much more than revealing the agony of certain individuals. It was exposing a system that gave rise to those actions, which covered up and condoned them, which rewarded the persons who committed them. It was a powerful counter attack against extreme forms of immorality which were rooted in systematic, organised injustice. I believe that the personalising of the accounts, far from being the weakness of the process, is its strength. The objective of the whole TRC process was to help humanise South Africa and to move away from abstract characterisations and categories. The oppressed are people, and there were contradictions amongst the oppressed. We had to make people realise that human beings were doing things to other human beings. Perhaps the most difficult part of the whole process was to acknowledge that the perpetrators themselves were human beings. They come from the same genetic stock, the same nation, the same race, in a broad sense, as we do. And for our own humanity, for our own strength, for our own glory, for our own confidence in the future, for our own reconciliation with our fellow South Africans, we must find a spark of humanity—"ubuntu"—in even the least of us, in even the worst of us.

  The question was asked yesterday whether it is right to try and develop some kind of psychological profile of Eugene De Klerk. I heard Phumla describing her five visits to the maximum security prison in Pretoria, to speak to and try to understand Eugene de Kock. I was filled with admiration for her, this slight African woman, going to meet the man, the killer, the representative of all the violence and terror of the centuries. And she went to meet him with courage and with psychological understanding, to try to find out who he was, and the reasons for his actions—through a form of dialogue, not forgiveness. I am proud to be a South African belonging to a nation that has the capacity and spirit to conduct these kinds of enquiries. They are not dehumanising to the person who has dehumanised so many others.

  I think even in terms of the transformation of our country, the process has created such a powerful and intense moral climate that it wipes out any possibility of denial. Even the most right-wing newspapers always start their editorials by saying that we have to acknowledge that terrible things were done in our name by peoples. Once that is done, it creates a climate which puts intense moral pressure on those who supported the system of apartheid to change, and to contribute towards change.

  If the radical critique raises the question of what is meant by reconciliation, I'd like to give my views on that. Reconciliation doesn't need each victim to forgive each perpetrator, and for the perpetrator to apologise, and for the parties to embrace. That is asking too much, and it is inappropriate. There have been a few wonderful examples of exactly that, but what reconciliation really means is some kind of basically shared understanding of the terrible things that were done, and of who did them. Reconciliation also involves an understanding of how it happened and what the context was. Only when that understanding is there, can the nation move forward. We now take the work of the TRC, which has been so successful, for granted as though its achievements were given.

  Reconciliation lies in converting knowledge into acknowledgement of the pain, in hearing the voices of the victims speaking for themselves in their multiple voices, from all sides, from many different quarters, from all the sections of our society who have suffered pain in different ways. It lies in the perpetrators acknowledging however haltingly, in whatever limited a way, at least something of what they did. Reconciliation means the nation, and the world, acknowledging that these terrible things happened.

  The conservative critique takes two forms. The one is in relation to methodology, and that raises the question of what truth is. The Jeffrey book is a critique of what are called different concepts of truth. The truth can be seen in very different ways. Prior to the establishing of the TRC I drew a distinction between what I call microscopic truth and dialogic truth. Microscopic truth is discerned when you observe a limited, prescribed field—you control the variables, you exclude everything else, and you make your observations in terms of the relationship between the variables. Microscopic truth can be a positive science. It is what is examined in a legal case—one has to decide whether this person killed that person, with intent to kill on a specific date. That is all you really ask.

  Dialogic truth is of a different order. It involves the multiple perspectives, experiences, and interpretations of events of the different participants. It is a kind of a social truth. One of the difficulties about analysing the TRC lies in the fact that it was dealing with both kinds of truth at the same time.

  I have since added two further categories of truth. There is logical truth where simply by a process of inference you can deduce the truth from the statement. There is experiential truth. Gandhi referred to "my experience of truth". He did not commence with a systematic philosophy, and then apply it to his life. He started off with his life, his experience, the phenomenon of being himself in a particular place in particular circumstances. And out of those lived experiences, he generalised. In South Africa, experiential truth is so powerful and so massive and so vivid and so varied.

  If the TRC did nothing else, it enabled this experiential truth to come out, wave upon wave. I think it is rather absurd to say that these statements are worthless because they were not given under oath. That is applying a kind of technical legalism, that is appropriate when you are dealing with due process of law. You cannot convict without proper testimony, proper cross-examination, without narrow, microscopic examination. But when you try to find out what happened and what it meant to the people concerned, when you want to hear the voices, when dignity consists not only in the findings, but in the right to speak and be heard, the right to be acknowledged, for your pain to become the pain of the nation, then the experiential side becomes predominant and very important.

  I think the TRC Report is a brilliant document. I loved it because it was so uneven, it was rough, it had its seams, you could see the stitching, and it was authentic, it was real. It was not one of these boring, homogenised commissioned reports that are read only by a few experts. It contained the passion, the variety, and even the contradictions of the process itself. There are a number of findings that I did not feel all that comfortable with, but that was not important. The important thing was that in the process, the TRC put its findings down on the table, and was itself a protagonist, it was not simply recording history. It was a very active participant in the process. The TRC was a site of struggle, an ideological, conceptual, political, emotional, personal struggle.

  The TRC's mode of operation was also unique. I always mention what to me was so strange, was Archbishop Tutu crying. Judges do not cry. We do not have songs at the beginning of the process. We do not have a comforter sitting beside witnesses, patting their shoulders, giving them support. Court processes are not human in the way that the TRC processes were. There was something very different and inventive, and creative about the process. It was very special indeed.

  It was not the state setting out to prove anything. The state was not prosecuting, it was not a denunciation. It was a platform, it was a vehicle, it was an arena, it was a site, it was a place, and the voices came out. The perpetrators spoke. How I wished that they had not come in their suits. They were tense and nervous. They would have opened up if they had been human, if they had cried, if they had shown more emotion, the way Benzien did. How affecting that was—how contradictory it felt, to see this man crying, this horrible person, and yet somehow feeling ashamed of what he had done. It has never happened this way as far as I know in any other country. It has not happened during show trials, nor as a result of torture.

  The feature that also strikes people so much is that this all happened across the board. If the success of the TRC is judged by the fact that it angered everyone on all sides, then it was hugely successful! There were no victors, and there were no losers. The TRC's approach was that it was going to look at everybody, nobody would escape this process. Again, this is unique as far as I know in the world, and it gave the TRC an extraordinary credibility.

  The second part of the conservative critique comes from those who find that amnesty is incompatible with justice. What does this word "justice" mean? Does it simply mean sending people to prison, or repaying money? In terms of social processes, is that the beginning and end of justice? Is there no justice if you do not send someone to jail, or if you do not see a transfer of money?

  This approach is too limited. From a practical point of view, the machinery for prosecution is dominated by the very people who were implicated in the crimes. From an idealistic point of view, in the end the objective is that we can all live together in one country. That was the great dream of Albert Luthuli and Oliver Thambo, the people who contributed so much. It was living together for future generations, stopping that cycle of domination and control.

  The perpetrators paid a price. You saw them, tense, nervous, receiving counselling for post-traumatic stress. They have to look into the faces of their children, their wives, their neighbours, having confessed to the most grievous, horrible crimes. The victims received information, knowledge that they did not have before, where the alternative would have been nothing. Their pain was acknowledged, bodies were recovered and they were honoured. Their sacrifices were acknowledged as an integral part of the terrible trauma and travail that gave rise to the new South Africa.

  There is still much to be done in terms of reparations. I personally feel that the payment of money is not the primary response, as it can never be enough. You cannot put a price on a person's life. But to live in a democratic society, to feel that one is a free human being, that is worth everything, it is beyond rubies. I think the symbolical reparations are important. Money alone cannot humanise and restore dignity. The matter of reparations is not simply a question for the government. I think it is something for all of us to pay attention to. Someone said that she was willing to give 1% of her salary to a public fund, to contribute towards the relief of those who suffered. I would like to support that by pledging a contribution. I am sure there will be thousands and thousands of South Africans who will respond in the same way. Not only the beneficiaries of apartheid, but those of us who survived, who delight and feel joy in the achievement of South Africa today. Perhaps you earn a generous salary and you can give a percentage of your salary for the next three years, to some kind of fund. I am sure there will be a huge response from ordinary people who are wondering what can they do.

  Henry came back into my life. I was at a party when I heard someone saying "Hello, Albie". I looked around, and there he was. He told me that he had given his information to the TRC. He mentioned Bobby?? and Hendreasen?? He was on first name terms with people who he had been trying to kill. I felt so pleased that he had taken that step, and looked at him, and shook his hand.

  A few days ago, Indres Naidoo came to see me about the republication of a book he and I wrote about Robben Island. He refers to information given to him by Henry in the postscript that he has written, and he suggests that the bomb was meant for Indres Naidoo and not for me. Our book is out of date, and the truth is incomplete. And a strange kind of argument emerges between Indres and myself. I insist the bomb was meant for me, and he thinks the bomb was meant for him! It is curious that it is important for me, for my ego, my vanity, that I am the intended victim!

  And new nuances continue. I heard that after Henri left the party all aglow, he went home and cried for two weeks. Somehow, this affected me quite deeply. We are now living in the same moral country. I would not invite him to go to the cinema with me but if I saw an empty seat on a bus and noticed that Henri was sitting next to it I would happily sit down beside him.

  I tell these stories simply to illustrate that the discovery of truth is a continuing process. New information emerges, but what is important is that we talking, as free citizens in a free country. The dignity of the South African nation has been restored. And for this I thank the TRC.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 14 April 2005