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

MARY BURTON: I think Mr Lax is correct to draw the distinction
between our talking about victims and our attempt to find whether a gross violation of human rights has taken place, and in the documents that we look at it's no only questions about the role of apartheid but it also looks at all the Geneva protocols, the distinctions about just means in the waging of the war when a person is seen to be in a combatant position, when they are perhaps the victim of some other form of unacceptable military activity.  And so we're really looking at a number of stages along a continuum.  My original question was prompted partly by the difficulty of deciding whether for example a young township activist, caught up in an event can be regarded as a combatant in terms of his aware intention to participate in an event. So it is more the question of the role of combatants and when their rights are violated.

SATHYANDRANATH RAGUNANAN MAC MAHARAJ: From a point of view of mobilisation, I'm seeing mobilisation and activisation of an individual in stages. We did try to instil the pride in the masses that simply to participate in protests and struggle gave you a badge of being a combatant.  But that was from that perspective. The perspective was that we had to instil a sense of pride in the assertion of the individual, it was not from the point of view of helping you today with the problems you face.

CHAIRPERSON: Ronnie Kasrils.

RONNIE KASRILS: I would then just like to focus in on the
combatant's right.  Any of our combatants armed, going into battle or infiltrating the country and challenged by the security forces of the day, and that happened on a number of occasions and then there was a fire fight.  If one was injured or killed in that fire fight, one I would argue has accepted that fire fight on both sides as if we can call warfare normal, but certainly as part of genuine warfare, but if that combatant was wounded and after being wounded was executed, that is a flagrant violation of that person's rights.  That person once wounded should be treated as a prisoner of war and I think that one must take into account. 
 In the same way when as happened on many occasions, the security forces raided somebody's house, whether that person was living inside South Africa or in Gaberone and they attacked that house and killed that person, even if that person was sleeping with an AK-47 under his or her bed, that was a gross violation of their rights and I think one must keep that in mind. 
 In - I gave an example of the celebrated Death on the Rock with three IRA members who were killed in cold blood by the British SAS, that's a celebrated case of that kind and is condemned in terms of international law.

SATHYANDRANATH RAGUNANAN MAC MAHARAJ: It's one that the Commission has to really tease out amongst themselves.

CHAIRPERSON: Minister Modise.

MR MODISE: I just wanted to point out that whichever way we look at it, victims, and those who participated in the struggle in defence of their rights, who got injured, who fell, I think what we should look at in the end are the overall causes.  Why did people have to take that course?  Because under a normal system which recognised the rights of all people, there would be no need for people to choose that path.

CHAIRPERSON: Mr Lax.

MR LAX: Just one comment and then my final question. Just the term victim is one that's in the legislation unfortunately because somebody in my personal position would have preferred to see survivor or some other much more neutral empowering term, but we're stuck with it at the moment so when we use the word victim I just want you to understand that that's the language of the statute unfortunately.
 My last question is really aimed at a phenomena which I had, as a lawyer I dealt with quite often, and I wondered to what extent it formed part of the holistic strategy and the holistic campaign, that was the issue of people's courts and whether in any way there was something in MK strategy that sought to encourage that in local areas. I must say I'm not passing judgement on people's courts, I saw some very good ones and I saw some very bad ones. I'm not passing judgement at all.  I'm just asking to what extent that was a 
part of it and....

SATHYANDRANATH RAGUNANAN MAC MAHARAJ: People's courts were again a spontaneous development within the country in different communities arising from their particular situations. It may be possible that if you dig up in the literature of the democratic movement you would have found that different stages individuals also writing on this matter but it was never a matter formalised.  What did arise was the concept that a stage was reached around the mid-eighties, a post anti-Republic campaign that rudimentary organs of people's power were developing within the country and by the mid-eighties the need then to ensure non-functional the administrative machinery of the apartheid state to allow for people's organs to develop. And I would understand the people's courts phenomena, those who taught about it, who created them, where they rose spontaneously began to discuss it in that framework.  Like many efforts that we made, the regime often took what was happening and tried to turn it around.  Just like when we began to set up combat groups, SDU's they sent, now it is admitted by Joe Mamasela, to go and arm the Duduza youth with doctored handgrenades so that they went off instantaneously.  Similarly they turned around to destroy the relations and potential for a friendly relationship between the IFP and the ANC, and similarly, I think the peoples' courts, both became vulnerable to inflamed passion by the people and therefore
vulnerable to manipulation by provocateurs.
 It's not the end of the story of involving the people in a participatory democracy including the judiciary. The issue is coming up again in serious analytical debate but I do not recall that the ANC as a policy level sanctioned and advocated the people's courts.  Individuals would have commented on them but they were essentially a spontaneous development within the country.
 Anybody want to correct me on that?

CHAIRPERSON: Is that all?
 Well that brings to a close these proceedings and it remains for me to ...(intervention)

MATTHEWS PHOSA: Before you close the proceedings if you don't mind. You're dealing with a very difficult area so we thought we will read you very nice lines here. We've characterised as a very complete (...indistinct) analyse.

CHAIRPERSON: Is that a poem in Afrikaans?

MATTHEWS PHOSA: Listen. Just listen. English for a change. (General laughter)
"The first to go are the niceties, the little minor conformities thus suddenly seem absurdities. Soon kindling animosities, surmount old civilities and start the first brutalities. Then come bold extremities, the justified enormities, the unrestrained ferocities."
That is the character of our conflict.