Fr Michael Lapsley,S.S.M., The Institute for Healing of Memories 

Karin Chubb, Black Sash


Moral arguments for reparations in South Africa

The Truth and Reconciliation Commission came into being as part of a negotiated settlement to 
ensure a peaceful transition to democracy in South Africa. It was a moral response to the evil of 
apartheid. 

The Promotion of National Unity and Reconciliation Act of May 1995 gave a mandate to the TRC 
to, inter alia., make recommendations for reparations to victims of human rights violations.

To put the full mandate into effect, three committees were established: 

1. The Human Rights Violations Committee which held hearings throughout the country and 
     before which more than 20 000 people gave evidence in their individual capacity. 
2. The Reparation and Rehabilitation Committee which formulated the recommendations 
     required under the Act but which could only make recommendations to Parliament. 
3. The Amnesty Committee which investigated and heard applications for amnesty and which 
    was empowered to grant such amnesties. The decisions of this committee were final. 

The integrity of the entire TRC and, particularly, its credibility as a moral force, hinges on the 
reparations issue. The Act itself allows only for restorative justice and prevents other forms of 
justice once amnesty has been granted. It takes away the individual victims' normal rights to 
pursue justice through the courts and to achieve such reparations or at least such satisfaction as 
may be possible in the criminal justice system. Under the Act, the victims and survivors have to 
trust that the moral commitment made by the State when it established the TRC will indeed be 
honoured by the implementation of a comprehensive and effective reparations policy. 

It is important, in the light of subsequent events and arguments put forward by the government to 
justify its delays on reparations, to understand that victims and survivors came forward on an 
individual basis. The government has spoken against individual reparations on the grounds that 
many millions of South Africans were victims of Apartheid. Relatives of victims, survivors and 
perpetrators appeared before the TRC as individuals. To recognise the individuality of the one by 
granting him (we do not know of any women who did apply) amnesty for human rights violations 
and not of the other - by relegating their legitimate individual claims to a nebulous group identity - 
surely undermines the law on which the Commission is founded. If this is upheld, it will have 
tragic consequences in terms of trust in the law. 

Why were victims and survivors prepared to trust the TRC?
In some cases, deep misgivings and hostility were expressed and some families and survivors 
refused to come forward to testify before the TRC. They did not want the perpetrators to have the 
chance to apply for amnesty and thus escape the legal consequences of their actions. 

AZAPO and others went to the Constitutional Court to argue that the granting of amnesty would 
violate the constitutional right to justice. Although the case was dismissed, Judge Didcott pointed 
out that "Reparations are usually payable by States, and there is no reason to doubt that the 
postscript envisages our own state shouldering the national responsibility for those. It therefore 
does not contemplate that the state will go scot-free. On the contrary, I believe, an actual 
commitment on the point is implicit in its terms, a commitment in principle to the assumption by 
the State of the burden." (Azanian People's Organisation and others v President of the Republic 
of South Africa and others (SA) 671 1996)

However, many more chose to tell their stories before the Commission and they thus accepted 
the possibility that those who were guilty of inflicting gross human rights violations might be 
granted amnesty - in return for nothing more than telling the whole truth.

Why were people who had already suffered so much then ready to trust the TRC process to such 
an extent? One reason is the human need to tell the story and to have its truth acknowledged by 
the wider society. Another is the hope of finally hearing the whole truth in the amnesty 
procedures. But yet another reason must surely lie in the nature of the new state itself. Here, at 
last, the democratic government was in power that they had longed for and in whose cause so 
many of their loved ones had suffered and died. Here, at last, was a government that would 
restore justice that had so long been denied to most of this country's people. 

Apartheid inverted the moral order
It was the very essence of the apartheid state to invert the values and the justice system on 
which a free society is normally based. Under apartheid, evil was legally enforced and seen to be 
rewarded. Dispossession of property was legalised on a huge scale, murderers and torturers 
within the police and security forces were acclaimed by cabinet ministers and were promoted in 
the ranks. Policies were based on denials, lies, deceptions, betrayal and deceits. Young 
conscripts had to fight and die in a war which, for years, was denied at the highest levels of 
government. The apartheid government's contempt for all its citizens was clearly expressed in the 
operation of its webs of secrecy and censorship, in the entrenchment of mistrust and suspicion 
which permeated all parts of South African society. The highest executive of the apartheid state, 
its last president, F.W. de Klerk, demonstrated very clearly in his own appearance before the 
TRC that he was willing to betray the trust of everyone who had served under him. In that one 
hearing all present were treated to the unedifying spectacle of a Chief Executive who, having 
carried ultimate political responsibility for the implementation of policies which led to monstrous 
human rights violations, could do nothing more statesmanlike than absolve himself personally 
from all blame. Here was, indeed, a clear demonstration of the inversion of moral order and 
responsibility.

Allegations of violations of human rights were made against the ANC in exile. The ANC set up the 
Skweyiya and Motsuenyane commissions to investigate these allegations. In its response to both 
commissions, the ANC took the moral high ground by freely admitting to human rights violations 
in the pursuit of its just war. It clearly indicated that, while it had fought a just struggle, it had also 
transgressed its own moral values.

At that stage, the future leadership of the new South African government indicated its 
commitment to the reconstitution of a just social order and its readiness to accept the supremacy 
of the law. This, surely, must have been a major reason why victims and survivors were prepared 
to undergo the trauma of testifying before the TRC: their belief that justice would be done, to them 
as individuals, under a new government which they had helped to bring about. 

Apartheid's legacy: a damaged society
The establishment of the TRC was one important force in the moral reconstruction of a damaged 
society. It was one major pillar of the "bridge between the past of a deeply divided society 
characterised by strife, conflict, untold suffering and injustice, and a future founded on the 
recognition of human rights ..." (Final Report vol. 1, ch. 5, p. 103)

It is important to see that while the apartheid system benefited some and deprived the majority, it 
also damaged the moral fibre and integrity of the entire nation. To highlight a few aspects:

Widespread contempt for the law was brought about after decades in which most people in this 
country experienced the law as hostile to them, working only to the advantage of the few. Some 
of the levels of crime and corruption experienced now are surely a consequence of this. 

Privilege gained, directly or indirectly, through exploitation and suffering in most cases became 
the natural way of life and an accepted "right" for those of us who were born white. A relatively 
peaceful transition to democracy has continued to blind many of us to the responsibilities which 
flow from past violations, inequities and inequalities. The lack of general interest in the TRC 
proceedings especially on the part of white South Africans is a case in point. 

Arguably the most serious consequence, and the area where reparation and rebuilding are 
needed most urgently, is in the damage done to the youth. The generation which in any society is 
the most vulnerable and most in need of care and nurturing, has been brutalised, traumatised, 
made cynical, robbed of its security, its future, its ideals and and its dreams. Testimony given in 
the youth hearings and other HRV hearings before the TRC provides ample evidence of this. On 
both sides of the conflict, raw, untrained and often completely uninformed youths were used as 
cannon fodder. It is characteristic of most liberation struggles that very young foot soldiers are 
used - the longer the struggle continues the younger the children that become involved. In South 
Africa, young or even very young recruits were drawn into the conflict and often carried out 
missions without even the most basic training or infrastructural backup and security. They 
frequently did not survive. Those that did often were tortured and traumatised to such an extent 
that their psychological healing is, at best, extremely fragile. 

Young children were robbed of the basic rights of family, care and shelter by violent conflicts 
around them. Many suffered severe psychological trauma as well as physical injury - simply by 
being where they believed they would be protected.

In addition, vast numbers of young people missed out on even minimally adequate schooling 
through the iniquitous Bantu Education system. There was, in addition, a ruinous political 
strategy, embraced by some, that enrolled schoolchildren under the banner of "liberation before 
education". At the hearings of the TRC, a number of young survivors have voiced their demands 
for reparations in the form of preferential educational bursaries and continuing psychological 
counselling - i.e. to be given a chance to rebuild their lives. Our new state, and indeed our whole 
society need to take cognisance of the disillusionment among many of the young people who feel 
very strongly that political change would not have happened without the sacrifices which the 
youth have made.

Through indoctrination, censorship and an authoritarian "Christian National" education system, 
white conscripts were drafted into a war against their fellow citizens in the townships - or in 
neighbouring countries which defended their freedom against illegal occupation by the SADF. 
Relatively few of these youths had the benefit of a wider vision and the strength and support 
necessary to resist conscription. They, too are part of a damaged young generation who have to 
be healed and for whom society as a whole needs to take responsibility. It is interesting to note 
that, just in the last few months, young Afrikaners have been posing angry challenges to their 
elders who were the first generation of Afrikaners to ever send their young into a war that served 
to preserve their own privileges. 

Not common guilt but common responsibility
The TRC dealt with all who came before it on an equal basis. Both perpetrators and victims from 
all sides of the conflict had the right to appear as individuals. The perpetrators had the benefit of 
legal counsels to argue their case. The victims had the recognition of being heard - and the 
prospect of reparations. The balance is a crucial one for the moral legitimacy of the TRC and 
there is a consequent moral responsibility by the state and by the nation as a whole. 

The breadth of the hearings in both the HRV and the Amnesty Committees makes it impossible to 
shift responsibility for all violations onto a few major criminals. While the broader oppression of 
apartheid was not a focus of the TRC, it did become clear through the public hearings that evil 
was done on a broad scale - and no South African can ever in future claim not to know .

This raises the issue of guilt and acknowledgement. The German philosopher Karl Jaspers 
defines moral guilt as wide ranging and including criminal, political and military actions as well as 
indifference and passivity (Jaspers: The question of German guilt, New York, The Dial Press, p 
31). He goes on to suggest that it is only the acceptance of culpability which provides the 
opportunities for a new national beginning. In terms of the moral trajectory of the TRC, this shifts 
the responsibility of acknowledgement to the nation as a whole. We are required to accept 
responsibility for the history of which we are a part (Jaspers, 115). 

In a surprising application to the TRC's Amnesty Committee, a group of young black people 
applied for amnesty for apathy. In their application they argued "that we as individuals can and 
should be held accountable by history for our lack of necessary action in times of crisis, that none 
of us did all of what we could have done to make a difference in the anti-apartheid struggle, that 
in exercising apathy rather than commitment we allow(ed) others to sacrifice their lives for the 
sake of our freedom and an increase in the standard of living." (copy of the original application). 

Whether the TRC will make a lasting contribution towards moral reconstruction and renewal in 
South Africa hinges on two factors: The acceptance of responsibility for the past especially by 
those who benefited from apartheid, and the formulation and implementation of an effective 
reparations policy. According to the laws the government itself has passed, the latter is the 
responsibility of the State. 

One of the failures of the TRC process was that, on the whole, the white community did not 
engage with it. A clear reparations policy formulated and administered by the state but involving 
all sectors of civil society would open constructive ways in which we could, indeed, "take 
responsibility for our history". 

What if the State fails?
It must be stressed that all who testified before it also understood that within the TRC process 
there was the obligation to recommend reparations. Expectations were raised by commissioners 
themselves in many of the HRV hearings, when victims were asked what they would like the 
TRC to do for them. Unfortunately many victims and survivors did not and do not realise that the 
obligation for reparations does not rest with the TRC but with the state. The TRC has been 
criticised and even vilified for not achieving something which, from the outset, it was neither 
empowered nor designed to accomplish.

If there are no effective reparations, the question will be asked as to who benefited from the TRC. 
Apart from the staff of the commission and highly paid lawyers, it is mainly the perpetrators who 
will have benefited. From the beginning, the amnesty provisions created the suspicion that the 
TRC would favour perpetrators rather than victims - on all sides of the past conflicts. Already, the 
treatment of perpetrators has deepened the anger and pain of victims. Many feel that the 
condition of proportionality has not been taken into account sufficiently, or that the truth as they 
saw it or knew it had not been told. Credible and satisfactory reparations would help to address 
that anger now. If there are no reparations, or if there continue to be only minimal tokens, the 
judgement of history will indeed be that the TRC was a perpetrator-friendly exercise. 

Enormous damage would be done, at all levels, to the trust in a new democracy and to any faith 
in the rule of law. 

If the state fails, comparisons will be made between a defence budget of 32 billion rands and an 
individual reparations budget estimated at 5 billion. Under apartheid, defence and security 
spending overrode all other concerns. Are we heading down that road again? 

If the state fails, there will be disastrous longer-term consequences. The TRC will have left not so 
much a legacy of reconciliation but a community of embittered and angry people. The inversion of 
justice and moral order which we inherited from the apartheid era would continue. It would be a 
moral tragedy for all South Africans if the Truth and Reconciliation Commission would go down in 
history as a perpetrator-friendly exercise. 

We can do no better than to quote from the moral argument put forward in the Reparation and 
Rehabilitation Policy of the TRC's Final Report: 

"If we are to transcend the past and build national unity and reconciliation, we must ensure that 
those whose rights have been violated are acknowledged through access to reparation and 
rehabilitation. While such measures can never bring back the dead, nor adequately compensate 
for pain and suffering, they can and must improve the quality of life of the victims of human rights 
violations and/or their dependants. (...) Without adequate reparation and rehabilitation measures, 
there can be no healing and reconciliation." (Final Report vol 5, chapter 5, pp 174, 175)

5 September 2000