Special Hearings — Armed Forces Hearings — 1997-10-10

SATHYANDRANATH RAGUNANAN MAC MAHARAJ: Can I just ask Commissioner Burton, this question, is it asked against the backdrop of who do we see as a victim of gross violations or is the distinction something else that you're trying to get to grips with?

MARY BURTON: I think that is my main concern for my own purposes, I think it's quite a difficult decision in any kind of warfare like this.  I understand it's a very broad question, but we offer for example where the situation - can I mention a specific case?  Let us look for example at the group of people who came to be known as the Upington Twenty Six. They killed an agent. Some of them, one of them killed an agent of the State.  In that encounter,
I can't actually remember whether were injured, but there could have been. So, and in many other instances they have been.  So we have also people who were attacking but of whom one or more were shot, killed, injured. What is their status?  In the question of the Upington 26 there was a trial, there was a common purpose trial, that's another issue as well. They served sentences. Where does one draw culpability, where does one draw victimhood status?

MR LAX: If I could just elaborate a little bit. As a lawyer one looks, there's a principle in law which Matthews would be familiar with, which is in a sense volenti non fit iniuria, in other words, consent to engage in certain conduct means you abdicate your right, you waive your right to thereafter claim that you were injured in that process, but there's a further dimension to all of this which relates to Geneva Protocols and a whole range of other things which basically says that when people engage in activity which is likely to result in their own injury and they are in fact injured in the process, and I'm drawing a distinction between injury that exceeds the normal bounds, for example a cadre gets arrested and then he's summarily executed when that wasn't necessary. That's the one extreme if you like.  The other extreme though is that he's injured in the process, and he then dies and then is that a gross violation?  Not is that person a victim, let's not confuse the issue, is that a gross violation of human rights?  Because victim status follows on the
decision that it is a gross violation and some of us have been struggling with this debate and we're just interested to hear as former military people, what your impression of that would be.

SATHYANDRANATH RAGUNANAN MAC MAHARAJ: Well that's not an easy one because I think we're all grappling. Let's just ask the question in the case of Nazism.  Today it has been acknowledged by the Swiss banks that they have to compensate the Jewish people who banked in the Swiss banks.  Until the nineties the very idea that they could recover their property was alien to any thinking and certainly the Swiss government and the banks did not accept any responsibility.  Now here's a case, we go further.   You're finding today in France with somebody facing trial, a Frenchman currently on trial for having handed over a number of people to the Nazis to be sent to the concentration camps.  I don't know what his defence is going to be but he might say that he was just sending them to the labour camp.  But today we accept that those consignments were gross violations.  And in the case of the banks, not returning the money to those who deposited it or their descendants is regarded as a violation of their rights.
 Here in South Africa, none of us participated in the struggle on the basis that, did you expect to be alive today?  We never expected that. We didn't do so on the basis that we saw ourselves as victims of the struggle, we saw ourselves as serving our people who 
were victims of an unjust system.  But that doesn't help us. 
 We also know from our painful experiences that you can't compare sacrifice or measure sacrifice.  A woman cadre raped in detention goes through that instant more than what I underwent over 60 continuous days of torture in 1964 and remains with a scar perhaps right through her life. And I think I'm intact now. There's no basis for comparing.  So I think what you are grappling with is such an area where you've moved into the greyest area between victim and perpetrator and innocent victim and conscious victim.  I don't know whether we are ever going to find an answer to that boundary.  
 I think that we have to accept that the driving force of this process is to try and unearth what happened, why it happened and to do so in a way that will promote reconciliation.  And I think that the measure of who feels  more victim, the victims themselves must speak and they must say how they feel.  I have never seen myself as a victim even when they tortured me.  I have never seen myself as making a sacrifice in the struggle.  I've seen the struggle as a privilege to serve my people. So I don't know if that rules me out of compensation. It's not my aim - (General laughter)
  I'm simply saying that I think that the people who see themselves as victims must speak and you must listen to them because how they feel is important to how we bring about reconciliation. That's the only answer I can give, I don't know if you can add to it. The lawyer will try a legal one.

CHAIRPERSON: Let the records show that it is  Mr Matthews Phosa.

MATTHEWS PHOSA: Chairperson I was not going to talk it is just that someone spoke a language that I understand volenti non fit iniuria.  So I thought I must respond to these things.  I think there's a broader context which some of us are very anxious and worried that the TRC seems, at least at this stage, not to be taking into account. The resolutions of United Nations of the OAU and many international organisations including the churches,  The United Nations declared apartheid a crime against humanity.  A crime, it was a crime, the whole world saw it as a crime.  No qualification.  The churches regarded it as a heresy.  Now the TRC cannot be unmindful of these international moral judgements.
 I think it's a broader context in which we should look at this whole thing, but take the other thing of victims and -, there are certainly victims in a conflict of this nature and there are many and I agree that you cannot deny them the right to be victims if they are victims.  But I don't think we should vulgarise the sacrifices made by activists even when we deal with reparation and say that because I've lost an arm I need R10. That's not what it's all about which is why Mr Maharaj is making this emotional point about seeing himself and like most of us as people who were engaged in a very noble cause which was worthy of prosecuting.

CHAIRPERSON: Well I can only say to you Mr Phosa, wait until you see the report and you will see that we have been far-sighted, much more far-sighted than ...(intervention)

MATTHEWS PHOSA: I think the people of South Africa will wait with anticipation for that report.

CHAIRPERSON: Thank you.

SATHYANDRANATH RAGUNANAN MAC MAHARAJ: Is that far-sight that arises Chairperson from the fact that newspapers show you in deep contemplation in several poses?

CHAIRPERSON: Exactly. (General laughter) Mr Kasrils.

RONNIE KASRILS: I'd just like to pose a question. Is the question that you've posed, Mrs Burton, aimed to try to distinguish the question of who is a victim of human rights violation and who isn't?  You did start off to talk about the dividing line between people as cannon fodder or somebody who actually participated in a direct act.  If your only goal is to try to focus in on the reparation aspect, then I don't think I've got anything to add, but if you're interested, if part of this question is about how do you distinguish between a combatant having his or her human rights violated or not having their rights violated, then I've got something to say.