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 armyhe 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 actionsthrough
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
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 fieldyou
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 caseone 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
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 washow 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
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
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.