Special Hearings — Legal Hearings — 1997-10-27

CHAIRPERSON: I think that perhaps I could just, government has of course been thinking exactly along those lines because unfortunately most of the donors that supported NGO's now enter directly into partnerships with government where perhaps in a certain instance the department of justice is responsible for making sure that those funds are dispersed. And recently with the act that they were proposing to pass in respect of this kind of situation where they know they can't deliver on the final product one has to look at that kind of collaboration. But I think the key question is the ownership of the results. And I think that's the contradiction that government doesn't want to sometimes give up the credit for the success of any particular action. And so perhaps that's where the difficulty really lies.

MR SIMPSON: If I can just make a comment on this you know I don't think this is a future scenario that we are considering. I think it's a current scenario. I think that certainly our relationship to the TRC itself is illustrative of the fact that one can collaborate and apply pressure at one and the same time. And I think that it's a potentially healthy if somewhat schizophrenic relationship. And the conundrum you identified is real. I think it's added to by the fact that we not just talking about policy here. We're talking about issues such as training, service delivery, public service delivery. A situation where in some respects non-governmental organisations continue particularly when it comes to victims to provide services which are not being delivered by the state. So that we are not only sometimes combative and critical of government, sometimes partners or subcontractors to government but we also sometimes serve as substitutors for government. And I do think it's about a complex relationship which we all have to learn to live with.

CHAIRPERSON: Hanif?

MR VALLY: My first question is if you put in your written submission give us your views of how this interaction with the judiciary should take place, practical ways of how civil society can interact with the judiciary id at all. And so that's not a question you can (...indistinct).
 The second issue is one sees from international bodies like the UN which consists of states, member states and their watchdogs are in reality the NGO's, the states can't be trusted to protect human rights unfortunately. And having said that if in your written input you can also give us an idea as to what role the NGO's can play and what recommendations can we as a commission make to reinforce this role of NGO's in (...indistinct) civil society and the protection of human rights. So it's requests rather than questions. Thanks.

CHAIRPERSON: Graham here?

MR SIMPSON: If I may just respond to the one as if it's a question because it provides a wonderful opportunity. And that is in respect of the starting point with regard to the interface between civil society and judicial offices. Quite frankly I think this commission is that starting point. And really ought to be and I think that considerable lobbying, advocacy and perhaps even pressure should be applied to ensure that such people do speak, are audible. And that quite frankly this is not just about those who are regarded as having been complicit. It may as much be about those who are regarding as having been judicial activists. The experience in that environment needs to be rendered audible for civil society. And I really believe this is the place to start that process.

CHAIRPERSON: Graham I think you raised in your submission this question of formal truth and I think the simple truth really and some of our experiences in the commission is that often the truth is obscured by all the legal paraphernalia that goes with it. And I wonder if you've given some thought to how in a sense a commission that should not really have been so fraught with legal problems has in fact become, where the lawyers I think become in some instances a kind of war between getting to the real truth.

MR SIMPSON: Ja I mean it's a difficult and largely philosophical question. I mean the fact is that in an environment where there is no one truth only versions in which one is implicit in your mandate is to consider the experiences on all sides of the political spectrum as if there is no set of moral issues which shapes how one views that. And I'm not suggesting there is. I think from the perspective of victims the moral distinctions fall away entirely because of the experience of victimisation across race, class and political persuasion is fairly standard and the symptoms of trauma that are associated with it are as well.
 I do think there's an inherent problem in the enterprise which is about walking the tightrope between the fact finding enterprise and one which is socially and psychologically sensitive and reconciliatory. And I'm afraid that's a tension which this commission was designed to live with. And I'm not sure that there is a way of dealing with that. 
 Perhaps the most illustrative thing for me is by reference to a court case in which I was one of several people giving evidence in extenuation. It was a matter which involved a fairly brutal killing in industrial context and the remarkable thing was that in, once there had been a conviction and they were looking for evidence in extenuation a psychologist walked into the court room and stood in the dock and argued that the behaviour of the accused was essentially irrational, uncharacteristic at an individual level. Thereafter a sociologist examined the exact same set of incidences and said from a perspective of understanding this particular dispute violence was an inevitable, rational and clear consequence of this. The court without ever having to consider the potential contradictions between those two found not one but two bases for extenuation. And I think that's the most powerful illustration of formal over and above social truth. And I think that, that's something that your commission has to deal with every day.

CHAIRPERSON: That was a good example thank you. Thank you very much for the submissions we look forward to receiving it in writing so that we can in fact deal properly with it. I'm sorry that we've kept you here so late this evening but thank you nonetheless.
 Yes. May I just apologise firstly for the members of NADEL and the I think the Association of Law Societies, Mr Sithole, Mr Krish Govender from NADEL, Mr C.R. Palmer from the Human Rights Commission. They unfortunately are catching the last flight to Durban and have left already so I think if I can just start with Mr Moldenhauer over there. 
 Mr Moldenhauer can I place on record our appreciation for the fact that you had been in attendance for the last three days and you were asked to do that, two days, you were asked to do that at quite late notice. I also want to place on record that you did bring along the magistrates from Pretoria who had informed you that in fact the letter that we had sent had not in fact been passed onto them by the magistrates commission or in fact by the department of justice. We sorry for that. We have arranged with them that they will forward us their submissions in writing but I'd like to give you an opportunity just to give us your evaluation of the two days here.